A case where the law is an ass...

[magnatom]

This report is very disturbing. How can justice be done if the comments and opinions of traffic accident experts are not allowed to be heard in court.

A driver whose van struck a 59-year-old woman during a cycling trip in memory of her late husband has been cleared of killing her through careless driving.
Charges against Nick Underdown over the death of Elspeth Kelman, on Arran in August 2008, were found not proven at Kilmarnock Sheriff Court.
A police report blamed the 28-year-old for the fatal accident.
But his defence counsel was successful in arguing that those parts of the report should not be seen by the jury.
The court heard how Mrs Kelman, from Glasgow, was on an annual cycle ride to honour her husband Ronald, who died from cancer aged 56 in 1994.
Fellow members of the congregation at Wellington Church, in the city's west end, were with her on the outing on 30 August 2008.


Mr Underdown had just rounded a bend on the A841 Brodick to Corrie coast road near Cladach when his Seat Inca ploughed into the cyclists before plunging down an embankment.
Mrs Kelman was pronounced dead at the scene. The church's retired minister, the Rev Leith Fisher, 67, was badly hurt in the crash.
The court was told that Mr Underdown, of Arran, was a reporter for the now-defunct Arran Voice newspaper and was off-duty at the time of the crash.
He denied the charge of causing death by careless driving.
The police accident report blamed Mr Underdown for the accident, finding he "failed to maintain proper control of the vehicle" and concluded "his actions have been careless".
Majority verdict
An investigator also stated in the report that "there was no wrongdoing on the part of the cyclist".
Mr Underdown's defence counsel, Jamie Gilchrist QC, argued successfully in a legal debate that those parts of the report should not be seen by the jury, which returned a majority verdict of not proven.
Mrs Kelman's sister condemned the verdict and insisted the tragedy could have been avoided.
Her sister, Frances Downie, said: "The shocking and violent nature of her death caused us horror, anger and agitation."

 

[4F]

Shocking

 

[Davidc]

The Car Is King And Don't You Dare Forget It.

Usual rules apply, so if you kill a pedestrian or cyclist while driving a motor vehicle in the UK you can expect:

To get off scott free
(or if you're very unlucky)
Get 3 points and a £100 fine.

Please understand that in the UK in a collision between a motor vehicle and a pedestrian or cyclist* the driver is never to blame. It's the person who was silly enough to be riding or walking who is responsible. There are no exceptions to this rule.

If you don't like it then move to somewhere where the law is civilised silly enough to work differently, such as Denmark or The Netherlands.

* same principle applies to horse riders and motor cyclists.

 

[Sam the Eagle]

not enough info in the report to decide whether it was the right decision or not I'm afraid. Shabby work from the Beeb

 

[magnatom]

The Car Is King And Don't You Dare Forget It.

Usual rules apply, so if you kill a pedestrian or cyclist while driving a motor vehicle in the UK you can expect:

To get off scott free
(or if you're very unlucky)
Get 3 points and a £100 fine.

Please understand that in the UK in a collision between a motor vehicle and a pedestrian or cyclist* the driver is never to blame. It's the person who was silly enough to be riding or walking who is responsible. There are no exceptions to this rule.

If you don't like it then move to somewhere where the law is civilised silly enough to work differently, such as Denmark or The Netherlands.

* same principle applies to horse riders and motor cyclists.

I think this a little unfair. It was a legal technicality by the sounds of it. I'm certainly not suggesting that it was anything to do with the fact that it was a car v's cyclist issue.

However, it shocks me that there can be a legal reason to exclude what must be the best expert advice resulting in a poor driver getting off without even a wrist slap.

 

[Coco]

Agree there's not enough info in the (BBC) report to determine why the jury weren't allowed to see the report. I suspect the jury made their decision based on what was presented to them in court and not what was presented in a news story. Would have been nice if the Beeb had provided the reasons for the (accident) report being withheld.

 

[Davidc]

I think this a little unfair. It was a legal technicality by the sounds of it. I'm certainly not suggesting that it was anything to do with the fact that it was a car v's cyclist issue.

However, it shocks me that there can be a legal reason to exclude what must be the best expert advice resulting in a poor driver getting off without even a wrist slap.

Sorry, I don't agree.

If this had been anything other than a motoring offence and someone had been killed there would have been a different reaction to the technicality.

There's a widely distributed mindset in this country which accepts death and injury caused by motor vehicles as inevitable and acceptable, and this sort of nonesense is part of it. We're not the worst over this, but that doesn't excuse it.

Fortunately for drivers like Mr Underdown I'm never likely to be responsible for traffic law .......

 

[psmiffy]

I think it said that the jury were not allowed to see all the accident report – I would assume the disallowed portions would be the conclusions – on the basis that it would be for the court to decide – obviously the conclusion was strong enough that the prosecution went ahead but the evidence was not strong enough to convince a jury beyond reasonable doubt – thus the verdict of “not proven”

In my mind if you hit a cyclist you are (and I hesitate to use the word careless) at the very least driving carelessly – until there is a change in the law so that the onus is on the driver to prove that they were not driving in a careless or dangerous manner then this will be a continuous theme – additionally where guilty verdicts are obtained the subsequent linking of sentencing to the amount of injury, non-helmet wearing etc results in absurdly lenient sentences being handed down on regular basis

 

[Theseus]

Not defending the verdict, but for the benefit of the non-Scottish on the forum there are 3 possible verdicts in Scottish law. Guilty, Not Guilty & Not Proven.

Not Proven does not say that the accused in not guilty, it says that although (s)he may be guilty there is not sufficient evidence to convict.

 

[WeeE]

Not defending the verdict, but for the benefit of the non-Scottish on the forum there are 3 possible verdicts in Scottish law. Guilty, Not Guilty & Not Proven.

Not Proven does not say that the accused in not guilty, it says that although (s)he may be guilty there is not sufficient evidence to convict.

Well put, touche.

It's not a frequent verdict, and is generally taken to mean to be the jury wants to draw their concern about a deficiency in the evidence - or the law as it's currently formulated, or sometimes dissatisfaction with a judge's instructions - to public attention. It more or less says "We couldn't convict because of a technicality."

 

[ACW]

As i understand it, if further evidence comes to light, you can go back to court with a not proven verdict.

 

[WeeE]

As i understand it, if further evidence comes to light, you can go back to court with a not proven verdict.

I never heard of that, just thought it was an acquittal as much as a "not guilty" verdict. Interesting!

 

[colly]

Sorry, I don't agree.

If this had been anything other than a motoring offence and someone had been killed there would have been a different reaction to the technicality.

There's a widely distributed mindset in this country which accepts death and injury caused by motor vehicles as inevitable and acceptable, and this sort of nonesense is part of it. We're not the worst over this, but that doesn't excuse it.

Fortunately for drivers like Mr Underdown I'm never likely to be responsible for traffic law .......

Quite so.

Imagine if an electrician had left some wiring live while his mate worked on it and his mate had died. I doubt the HSE report would have been excluded from the evidence.
Manslaughter would be the most likely charge.

 

[CopperBrompton]

I never heard of that, just thought it was an acquittal as much as a "not guilty" verdict.

It is: there is absolutely no difference between the two in law.

However, I do rather like the fact that it allows the jury to express an opinion in those cases where they think someone is probably guilty but the prosecution failed to satisfy them beyond a reasonable doubt.

As for the case itself, I agree with the assessment that it was probably a case of them being allowed to read all of the factual content of the report, but not the speculative conclusion.

 

[CopperBrompton]

Imagine if an electrician had left some wiring live while his mate worked on it and his mate had died. I doubt the HSE report would have been excluded from the evidence.

No more than the police report was here.

Assuming our guesses are correct, exactly the same would apply: the parts of the report saying 'the electrician left some wiring live and his mate then entered the room to work on it' would be admissable, while the bit saying 'We think he was therefore responsible for the death' wouldn't be as that decision rightly belongs to the jury.