Fury at sheriff’s helmet claim in cyclist death case

A SHERIFF who allowed a motorist to walk free after killing a 75-year-old cyclist has caused fury by saying she contributed to her death by failing to wear a helmet.

Sheriff James Scott has sparked outrage with his comments – made as he spared double road killer Gary McCourt from jail.

Many gathered at Edinburgh Sheriff Court yesterday expecting to see a prison sentence slapped on McCourt.

Instead, he was given just 300 hours of community service for causing the death of fun-loving pensioner Audrey Fyfe by careless driving.

The 49-year-old, who was previously jailed for causing the death of a young student by reckless driving in 1986, was also slapped with a measly five-year driving ban.

But it is the sheriff’s comments made in open court that have sent relatives of the victims reeling.

Sheriff Scott said that Mrs Fyfe “contributed significantly” to her own death because she was not wearing a helmet – a safety measure not required by law.

Her widower, John Fyfe, 81, spoke of his upset that his late wife was receiving “blame” from the sheriff when she was not at fault for the collision.

The retired British Rail worker said: “I think it’s a shame that the victim is being blamed for the careless driving of someone else. She was vulnerable because she was on her bike when this man was driving carelessly.

“He should have been banned from driving for life. That’s twice his driving has taken a life. A lifetime ban would have made other road users safer. Instead he could be back driving again in five years.

“I believe he’s still a danger on the roads and I’m concerned that he could be driving again so soon.”

Mr Fyfe, of Coillesdene Crescent, Joppa, had previously said he thought McCourt should be spared a jail sentence. Following yesterday’s sentencing he was less sure.

He added: “I don’t know if jailing him would have made any difference. It would just be a burden on the taxpayer. But I think he got off very lightly with 300 hours community service.”

The sheriff made his incendiary comments despite no expert evidence during McCourt’s four-day trial over whether a helmet could have saved Mrs Fyfe’s life.

And with the Crown Office confirming prosecutors are considering an appeal against the sentence due to its “undue leniency”, it seems likely further scrutiny could be given to the whole matter.

Away from the court, his comments have attracted widespread condemnation, especially in light of the fact he also caused controversy in 2010 when he gave the 90-year-old wife of the former Governor of the Bank of Scotland the all-clear to continue driving despite smashing her car into a cyclist,

City leader Andrew Burns led the criticisms. He said: “I’m completely astounded at the sheriff’s comments. It’s totally irrelevant and I’m amazed a sheriff has made such a comment that has no basis in fact.

“It infers she is partly to blame which is appalling and shows a complete ignorance of the situation.”

Green councillor Gavin Corbett said: “He says that Mrs Fyfe not wearing a helmet contributed to her death. That’s a bit like saying if I am shot while not wearing a bullet-proof vest then it’s my fault.

“Frankly, views like these are astonishing at a time when we should be bending over backwards to make cycling safer.”

Ian Maxwell, spokesman of cycle campaign group Spokes, was “concerned” about the sheriff’s comments.

He said: “They don’t seem appropriate in the circumstances and there also seems to be blame out on the victim here. There’s no requirement for wearing a helmet by law and this case was about a driver knocking over a cyclist in which there does not seem to be any dispute that he was at fault.

“We’re concerned that this decision could be a precedent for future court cases.”

Chris Hill, who runs the CityCyclingEdinburgh.info website, called on the Crown to up the sentence. He said: “On the face of it, the sheriff’s remarks about helmets are gratuitous and unwarranted as there has been no reported evidence about the extent or type of injuries.

“The apparent reduction in sentence in this case is regrettable and I hope the Crown Office takes a different view. A lifetime driving ban would be appropriate.”

Scottish Conservative Chief Whip John Lamont also lambasted the sentence. He said: “This is a staggering ruling. This man has now been involved in two separate incidents where a cyclist has died.

“He is clearly a danger to cyclists and at the very least he should have been banned from driving for life.”

The National Cycling Charity (CTC) described McCourt’s sentence as “scandalous”.

Peter Hayman, a CTC council member in Scotland, attended Mrs Fyfe’s funeral along with many from the city’s cycling community.

He said: “This 300 hours of community service and only a five-year ban as a sentence is scandalous.”

Mrs Fyfe died two days after being struck by McCourt at the junction between Portobello Road and Craigentinny Avenue on August 9, 2011. McCourt, of Niddrie Mill Avenue, was convicted after a trial last month.

The trial heard how McCourt admitted to police he had “clipped” Mrs Fyfe’s wheel.

Wearing a leather jacket and jeans, he could be seen smiling and joking with friends and family before entering court three. Looking nervous in the dock, he hung his head with relief after the sheriff failed to impose a prison term, saying instead: “Mrs Fyfe wasn’t to blame in any way for the accident. However, she was not wearing a safety helmet and that in my view contributed significantly to her death.”

Surrounded by his supporters, he rushed from the Chambers Street court building and sped away in the passenger seat of a waiting green Vauxhall Corsa. He could not be reached for further comment.

We revealed last month how McCourt also caused the death of cyclist George Dalgity, in Regent Road, back in 1985. He is understood to have served only eight months for the incident that claimed the life of the 22-year-old student.

His mum, Liz, 80, said: “We were told that after George was hit that McCourt didn’t stop, the police had to go looking for him. We were also told he didn’t have a licence or insurance.”

A Crown Office spokesman confirmed they were weighing an appeal. “Crown Counsel will give careful consideration as to whether the sentence was unduly lenient,” he said.

The sheriff sparked anger in an almost identical situation. Lady Suzanne Risk sent Robert Benn, 40, flying off his bike after she failed to see him at a junction in Inverleith Place in October 2009.

Lady Risk appeared at Edinburgh Sheriff Court in February 2010 with her 88-year-old husband, Sir Thomas, who retired as the head of the Bank of Scotland in 1991 and passed away last year.

Admitting driving without due care or attention, she accepted she was at fault for the crash but Sheriff Scott fined her £200 and put six penalty points on her licence.

Sheriff’s reasoning

SHERIFF James Scott laid out his reasoning for the decision not to jail Gary McCourt before imposing the community payback order.

At the outset, the sheriff said the death of pensioner Audrey Fyfe was a “very tragic case in any view”.

Sheriff Scott said that Mrs Fyfe was a “vulnerable road user in that she was a cyclist” but he agreed with defence solicitor Robert Fairbairn’s mitigation that the collision was due to McCourt’s “momentary inattention”.

He added that he would “take into account the aggravation of [McCourt’s] previous conviction for reckless driving” in considering sentences.

Sheriff Scott said: “I have no doubt that Mr McCourt has expressed genuine remorse on a number of occasions.”

He added that McCourt had clearly been affected by his action, suffering from depression and showing “signs of Post Traumatic Stress Disorder”.

Sheriff Scott continued: “Mrs Fyfe wasn’t to blame in any way for the accident. However, she was not wearing a safety helmet and that in my view contributed significantly to her death.”

The sheriff said that the collision involved “minimal contact” and McCourt’s previous conviction was from “27 years ago”.

He added that drink or drugs use and speeding were not aggravating factors.

He said McCourt’s remorse over the incident and Mrs Fyfe’s failure to wear a helmet were factors in his sentencing decision, adding that the “fatal outcome was wholly disproportionate” to the accused’s actions.

Twitter reactions

The furore sent micro-blogging site Twitter into a frenzy.

Cllr Andrew Burns @AndrewDBurns: I’m frankly completely astounded at the comments by the Sheriff in this tragic case. The comment about helmet-use is just appalling.

Simon Young@SimonCycling: Unbelieveable. 2nd time cyclist-killer gets community service.

Unchained Mag@unchainedmag: Gary McCourt sentenced for cycling death. This is sickening, twice he has done this.

Gregor Hutton@gregorhutton: Scandalous that judge gave him community service because the cyclist wasn’t wearing a helmet.

Amy Taylor@TrashTaylor: Driver gets community service after killing second cyclist – can we consider re-sentencing?

Jane Carnall@EyeEdinburgh: Careless driver, 2-time killer yet judge lets him off prison sentence because cyclist he killed wasn’t wearing a helmet?

Stuart N @therealstuartn: Wonder what he will get for third cyclist? 60 quid fine? Shocking.