Update on -
New Causing Death Offences.

As previously reported, the two new Causing Death offences came into force on the 18th August 2008. We have raised concerns with the Crown Office over the facts that while Section 3ZB of the RTA (causing death whilst driving uninsured, unlicensed or disqualified) should be easier to prove in court it is foreseeable that persons accused of contravention of Section 2B will be seeking expert representation in court with the services of expert crash investigators. The defence only has to seed “reasonable doubt” in the minds of jurors.

As it has taken about 12 months for these new cases to get to court - it is only in recent months that we can look at how the new law is working. The first “not guilty” plea to Causing death by careless driving Section 2B of the RTA took place in Kilmarnock Sheriff Court on 2nd November 2009.

The background to this case was: In August 2008, Elspeth Kelman aged 59, was on an annual group cycling trip in memory of her late husband when a van being driven by Nick Underdown aged 28 struck her and Rev. Leith Fisher aged 67. The crash took place on the A841 Brodick to Corrie road on the Isle of Arran. This road is part of the Sustrans national cycle network. Elspeth’s injuries were fatal and the Rev. Leith Fisher was seriously injured and died in March 2009.

Families at SCID know there are no words to describe the devastation which follows, the weeks, months and years after a fatal road crash.

As the law stands; any person standing accused of a crime has the right to choose his/her representation in court; conversely victim families do not, as the Crown represents the public interest. In a number of jury trials we have attended over the past years, we have observed that the outcome can be dependent on the calibre of the accused’s representative in court. We have on numerous occasions commented on the “inequality of arms” in court. Advocates and Solicitor Advocates who specialise in specific areas of law are defending in Sheriff Courts against depute procurators who have heavy and very varied workloads. It is not up to the accused to prove his/her innocence, it is up to the Crown to prove guilt beyond reasonable doubt. However a balance remains unstuck between the rights of the accused and the rights of the victims.

The case at Kilmarnock Sheriff Court epitomises this scenario. The defence agent representing Nick Underdown was Mr Jamie Gilchrist; a QC of renown experience who was recently part of the defence team representing Abdelbaset al-Megrahi. Mr Gilchrist was called to the bar in 1994 and according to the Legal 500 he “thinks out of the box and turns his hand to anything.”

The jury at Kilmarnock Sheriff Court took less than 1 hour to come to a “not proven” verdict. Whether this verdict was the correct one or not, cannot now be challenged. However what can be challenged is: Is the public interest and victim families being well served? We believe not.

A starting point to redress the balance would be the appointment of specialist procurators fiscal to investigate and prosecute persons standing accused of fatal driving offences. A national network of prosecutors has already been created to specialise in environmental and wildlife law and also for crimes of sexual and health & safety offences.

To date, the Policy Group at Crown Office remains unconvinced and state that procurators are well acquainted with these (fatal driving) offences.