The Court of Criminal Appeal refused the appeal against sentence by HM Advocate.


On 8 April 2013, after a trial at Edinburgh Sheriff Court, a jury convicted Gary McCourt by a majority verdict of causing death by driving a motor car without due care and attention.

The sheriff imposed a sentence which comprised a Community Payback Order with a requirement that the respondent undertake 300 hours unpaid work (being the maximum available) within a period of 12 months, disqualified him from holding and obtaining a driving licence for five years and until he passes the extended test of competence to drive, and ordered endorsement of his driving licence.  The Crown appealed against this sentence as being unduly lenient. 

The sheriff summarised the evidence which he heard as follows:

“At approximately 6:30pm on 9 August 2011 the respondent was driving a motor car westwards on Portobello Road, Edinburgh.  The deceased, Mrs Audrey Fyfe, was riding a bicycle eastwards on Portobello Road.  The respondent intended to turn right into Craigentinney Avenue, which joins Portobello Road on its north side.  He testified that he, ‘slowed down to a crawl or stopped’ and ‘slowed down, more or less stopped’ at the junction, to allow an eastbound bus to pass by.  In the course of the trial the Crown attempted to prove that no such bus passed the junction at the material time, but the evidence was inconclusive.  In any event, the respondent testified that he moved off and began to turn right. His speed was approximately 5 to 10 mph.  He did not think that his vehicle had made contact with the cycle or cyclist.  He did not hear or feel any contact.


PC Stephen Wilson, an accident reconstruction expert, produced a collision investigation report in which he indicated that the markings and the damage to the car and the bicycle suggested a subtle impact that caused the rider of the cycle to lose control and fall.  His conclusion was that the respondent’s car struck the rear wheel and offside pannier of the bicycle.  The damage was very slight, therefore speed on impact was low and speed was not a contributory factor.  From the position of a scratch on the road surface made by the cycle’s offside pedal guard, PC Wilson concluded that after the collision the cyclist continued in the same direction of travel for 7 feet or more, lost her balance, and fell to her right.  Contact between the car and bicycle must have been minimal”.

On sentencing, the sheriff remarked that Mrs Fyfe’s failure to wear a helmet may have contributed to her death.  However, on appeal, the court observed that no evidence was led by either party as to the effect of not wearing a cycle helmet, and whether or not this may have caused or contributed to Mrs Fyfe’s death, nor were any submissions made to the sheriff by either party on this matter.  It is clear from the material placed before the court at the appeal hearing that there is a degree of controversy as to the efficacy of cycle helmets in preventing death.  The court considered that the sheriff was wrong to regard this as a matter of judicial knowledge. 

The sheriff assessed the respondent’s remorse as genuine, and there is no material which would justify the court in interfering with that conclusion. 

With regard to culpability, it was not disputed on behalf of the respondent that he was culpable in failing to look to his right before he began the manoeuvre of turning to his right.  It was also accepted that because of his careless driving the most tragic of consequences resulted.  However, in all the circumstances, the court could not disagree with the sheriff’s categorisation of this as a momentary inattention, the result of which was a low impact, low speed collision with Mrs Fyfe’s cycle.  Mrs Fyfe was clearly a vulnerable road user, and the sheriff recognised this.  However, the sheriff carried out a careful and detailed assessment of culpability and the court could detect no error in the way in which he went about this delicate task.

The court could also detect no error in the reasoning which led him to the conclusion that the respondent’s driving should be placed in the third, least serious, level of gravity (as set out in the Definitive Guideline produced by the Sentencing Council for England and Wales).

The sheriff sets out in some detail in his report to the court his approach to the previous conviction.  This approach did not depend only on the fact that the previous conviction was some 27 years ago, but also took account of the quality of the respondent’s driving.  The sheriff stated that had the quality of the respondent’s driving been at the more serious end of the range of carelessness, he would have been entitled to infer that the respondent had not learnt his lesson from the prior conviction, imprisonment and disqualification, but he was not able to do so. 

The court stated that it is perhaps easy to take a superficial view that by his bad driving the respondent has caused the death of two people in two road accidents over 27 years and that this required to be marked with a sentence of imprisonment.  However, the sheriff has carried out the delicate and detailed sentencing exercise with considerable care and has given full reasons for the conclusion which he reached.  The court must give weight to his views, particularly given that this is a case which has gone to trial and the sheriff has had the advantage of seeing and hearing all the evidence. 

Despite the sheriff’s error in treating the fact that Mrs Fyfe was not wearing a cycle helmet as a mitigatory factor, the court was unable to say that the sentence of a Community Payback Order with the maximum number of unpaid hours was unduly lenient.  It did not fall outside the range of sentences which the sheriff, applying his mind to all the relevant factors, could reasonably have considered appropriate.  In particular, the court could not say that, in all the circumstances of this case, the sheriff could only have reasonably considered a sentence of imprisonment to be appropriate.

The court was unable to agree with the Crown’s submission that the period of disqualification was inadequate.  This is a disqualification for a significant number of years, and even after those years have expired, the respondent will not be able to drive (if indeed he wishes to do so) until he has passed the extended test of competence.  Again, the court could not say that this aspect of the sheriff’s disposal was so outwith the range available to him as to be unduly lenient.

The court therefore refused the appeal.

The full decision will be available at 12.00noon

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