Letter delivered to Lord Advocate supporting sentence appeal

We met to present a letter to the Lord Advocate outlining why the ludicrous sentence handed down to McCourt for causing Mrs Fyfe’s death should be appealed. We also met with the Head of Appeals and Head of Criminal Justice Policy at the Crown Office to discuss concerns with the leniency of the sentence and the legally irrelevant comments made by the sheriff about helmets.

The appeal process

The deadline for lodging an appeal is May 31st, so we do not have to wait long to know if the 3,500 plus emails calling for an appeal that were sent to the Lord Advocate by our supporters were successful. If an appeal is lodged the High Court of the Justiciary could take a few months to change the sentence, but they are under no obligation to change it if they do not find it to be ‘unduly lenient’. Sheriff Scott, who gave Mr McCourt the paltry sentence, must submit a report to the High Court explaining his reasoning behind the sentence. We hope that this report will be made public so we can glean an insight into how he possibly felt that the sentence he decided upon was just.

Crown Office open to dialogue

The Crown Office representatives were open to the comments relating to this case and expressed their interest in meeting with CTC, other interested stakeholders and public bodies to discuss the wider issues relating to sentencing and prosecutions in Scotland. Their interest in discussing these issues was piqued when I explained that CTC attends regular meetings with their counterparts in England and Wales (the Crown Prosecution Service) as part of the Justice Review working group, which meets regularly to discuss a review of the justice system. 

The fact that McCourt's driving should really have been classed as 'dangerous' rather than 'careless' was brought up in the meeting. But the comment was rebuffed by the Head of Appeals because, as he said, 'dangerous driving implies deliberate behaviour' and McCourt's poor driving was not deliberate. This is a common misconception amongst legal officials: the Road Traffic Act 1991, which replaced ‘reckless’ with ‘dangerous’ driving, removed all trace of mens rea (‘guilty mind’, or criminal intent) from the offence.  Thus, an act of dangerous driving should be treated as ‘dangerous’ whether the offender was acting willfully, aggressively, recklessly or made a simple misjudgement. 

The perception that dangerous driving is a deliberate act is widespread among prosecutors, who often seem to decide between ‘dangerous’ and ‘careless’ charges by considering whether the offence involved willful risk-taking or a simple lapse of attention.