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news
Statue of Justice, Old Bailey (licensed CC BY 2.0 on Flickr by Ronnie Macdonald).jpgDriver who claims she cannot remember fatal crash that killed cyclist walks free from court
A motorist in Scotland who says she has “no recollection” of a crash in which a cyclist was killed has been acquitted of causing death by dangerous driving after a jury returned a not proven verdict.
Jordan McDowall, aged 21 and from Erskine, had been charged with the offence following the death of cyclist Kevin Gilchrist, 51, on Greenock Road, Inchinnan, Renfrewshire on 28 July 2018, reports The Gazette.
At her trial in the High Court in Glasgow, she claimed she could not remember the collision, which happened when she veered onto the wrong side of the road and crashed into Mr Gilchrist, saying she had a “gap” in her memory.
During the trial, Paul Kearney QC, prosecuting, asked Ms McDowall, who had only been driving for seven weeks at the time of the fatal crash, “Is it not the case you were fully conscious but for whatever reason not paying attention to the road ahead?”
“No,” she replied, saying that the last thing she remembered was exiting a roundabout.
She also denied being on her mobile phone after the crash, despite eyewitness evidence to the contrary.
“If the witness is right, it means you were conscious enough and alert enough to be using your phone straight after an episode of loss of consciousness and memory,” Mr Kearney said.
“I don't know what happened,” she replied.
The verdict of not proven is one of three available to the 15 jurors trying cases in Scottish criminal courts, the other two being guilty or not guilty. As with a not guilty verdict, one of not proven constitutes an acquittal.
It is generally considered by legal commentators as being returned in cases in which the jury believes there is culpability on the defendant’s part, but the prosecution has been unable to establish their guilt beyond reasonable doubt.
Since road.cc was established in 2008, there have been at least three other cases in which a jury has returned a verdict of not proven against a motorist accused of causing a cyclist’s death.
In 2009, van driver Nick Underdown was acquitted of causing the death by careless driving of Elspeth Kelman, who had been on an annual bike ride on Arran to commemorate her late husband.
The case was the first time a motorist had stood trial on that charge in Scotland, with the offence introduced in August of the previous year, the same month the fatal crash happened.
Lorry driver John Stewart was acquitted in 2014 of causing the death by careless driving of Andrew McNicoll in Edinburgh in in January 2012.
The trailer the driver was towing struck Mr McNicoll, causing him to crash into a parked car, sustaining fatal injuries.
The trial heard that police collision investigators had been unable to establish that the driver was to blame for the victim’s death, however.
In 2018, a jury unanimously returned a verdict of not proven on a charge of causing death by dangerous driving against a motorist who had killed cyclist Gary Christie in Kirkcaldy in November 2016.
The same jury, however, found David Gordon guilty of the lesser charge of causing death by careless driving.
Simon joined road.cc as news editor in 2009 and is now the site’s community editor, acting as a link between the team producing the content and our readers. A law and languages graduate, published translator and former retail analyst, he has reported on issues as diverse as cycling-related court cases, anti-doping investigations, the latest developments in the bike industry and the sport’s biggest races. Now back in London full-time after 15 years living in Oxford and Cambridge, he loves cycling along the Thames but misses having his former riding buddy, Elodie the miniature schnauzer, in the basket in front of him.
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52 comments
Don't even know the deceased or the family he leaves behind but the injustice of this outcome makes me feel ill.
This sort of case is why cyclists need presumed liability laws..
https://bicyclingaustralia.com.au/news/safety-advocacy-is-it-time-for-pr...
Nope, see comments below.
It would be for civil not criminal cases.
Regardless of the nonsense defence or the fact that blacking out doesn't affect the moral culpability. The fact this woman has walked scott free seems ludicrous!
Kill someone in a car = ah, don't worry about it. Cars rule! Carry on.
You're missing the point. She walked free because whether we like it or not there was insufficient evidence to convict her.
Would you really want a legal system that operates on hearsay, assumptions and suppositions?
The jury decided that but then most of them are motorists who drive above average and you know, shit happens when you drive but hey, that's ok.
Thats always a possibility but in this case I doubt it due to the "Not Proven" verdict. If they really were rabid Car-ists it would have been Not Guilty. There is no way we will ever fully know unless we meet one of the barristers or jurists IRL, but the verdict suggests to me that the jury felt there was some culpability but not enough evidence to support it.
As cyclists we are always going to assume - from experience - that in cases like this the driver did something wrong and someone died as a result. However as painful as it is we also need to acknowledge that we are spectating from the sidelines with partial information.
I do not, obviously. However from what I can read the driver hit the cyclist whilst behind the wheel and that does not appear in doubt.
The fact no one saw it and the driver can't remember what happened should not define culpability in this case. If a tree falls over in the woods does it make a sound? If a driver causes an accident and no one is alive to tell the tale does that mean there is no responsibility. If they can't prove that she was neglegent, then they should at least prosecute for some other offence, not let her drive off and get on with her life.
I would like to think that the prosecution conducted a detailed look at her phone before and immeditley after the accident and I wonder why a witness who stated she was on her phone was seemingly ignored. Of course this is an internet lynch mob job on the woman, but either the facts or the journalism reported aren't right or this is yet another seemingly terrible tragedy for which a driver walks away from. Human life simply does not seem as valued in the laws concerning driving a motor vehicle.
That sounds dangerously close to State mandated revenge to me. Someone died so someone must be punished.
I'm concerned about her ability to drive and not endanger people if she is subject to blackouts of which she has already had one fatal outcome. Drivers with epilepsy are not allowed to drive for IIRC 3 years after their last attack, so I would expect a similar driving ban to affect this driver, especially as one person has already lost their life.
At least not proven has a bit of stigma to it.
Reminds me of this one:
https://www.gazette-news.co.uk/news/19381160.spinnaker-pub-crash-colches...
Xozumti suggested he may have blacked out before the crash, although no medical evidence supports that assertion.
He pleaded guilty so blacking out would be an attempt to reduce the sentence.
Unsurprisingly he was caught driving during his subsequent 2 year ban.
If she was not on her phone at the time of the collision, or very shortly before it, I would eat my plastic cycling hat...
A helmet won't protect your stomach in this case. As is often rightly pointed out. I feel queasy myself about this one.
My first thought on reading the above was 'she must have been easy on the eye' and having now clicked on the article I can see that yes, she arguably was. Be interested to know the gender breakdown of the jury.
Other questions;
- Why the dangerous driving charge, when they prosecution clearly didn't have sufficient evidence? A death by careless driving would have been far simpler to prove surely?
- If the accused phone usage was so pivotal, why were phone records / activity not checked and proof either way established?
- If the blackout defence was to be used, did the prosecution not have time to prepare for this? If so, why was this not more effectively challenged, or at least the premise that the defendent had a requirement to prove they had a medical condition conveyed to the jury?
I feel for the victims family.
The photo I saw shows a bleach blonde with phone in hand.. I know the type well and her offence demonstrates distracted driving so common today with mobile phone use; regardless, without very convincing evidence she had a medical episode, she would have never got off in Australia. I hope causing the death of someone weighs very heavily on her conscience but somehow, I doubt it.
Fortunately in neither England nor Australia is judgment passed on the basis of choice of hair colour nor "I know the type well."
And looking around the world we can only be grateful - and vigilant - on that front!
Absolutely nothing to do with the topic or the direction but some poetry pops into my head (on the subject of Oscar Wilde's trial). Maybe just me: https://poets.org/poem/oh-who-young-sinner
Didn't know that one, thanks!
Honestly, that comment above makes my blood boil (and I should state that like most of us I'm not at all happy about the outcome of this case) - imagine subbing "young black man" for "bleach blonde", "The photo I saw shows a young black man with phone in hand. I know the type well." Shameful, stupid, and shamefully stupid statement.
I'm not so sure about that... I would be happy to wager that the jury would have been less favourable if it was a similarly aged, less well presented male standing in the dock.
There is an understandable (I guess) reluctance to be seen to 'ruin' the life of someone so young and 'desirable' (I use that word deliberately as a proportion of men probably do literally desire her, but many more, both male and female would desire the life she represents - young, stereotypically attractive, world at her feet etc.), and therefore jurors will struggle to remain fully impartial during the trial process
This is especially the case in motoring incidents due to the ingrained 'that could easily be me standing there' mindset of a significant proportion of motoring jurors.
Unless the defendent is obviously a 'bad'un' then a death by dangerous driving charge is always going to struggle.
Wasn't there a court case in the US a few years ago, where a (male) college student was accused of rape* and the college and the courts didn't exactly proceed as they ought to have. They were on record as saying that they didn't want to ruin the young man's future career over some bad activities lasting less than fifteen minutes.
*The woman in question was blacked out in an alleyway, IIRC, and he just did what all fine upstanding young college men do in those circumstances and decided to undress her and 'take advantage'...
Brock Turner. He was sentenced fro 6months, served 3. The assault was actually pretty horrific even considering the nature of those types of crime. The weak sentence was apparently cos he had a glittering future ahead of him.
Another reason to never venture out without a camera. I have no idea whether or not any footoage would have proved culpability but it could have been shown to the driver over and over again to help her regain her memory of what happened.
It wouldn't have helped Mr. Gilchrist but it may have helped other cylists especially if it was made public along with the result of the trial.
Maybe 'not proven' on her killing Mr Gilchrist, but surely for the safety of all other road users she should have been banned from driving anyway until the cause of this alleged blackout could be determined? I couldn't see any reference that she had voluntarily handed in her licence...
Just invoke the helen measures defence and say it was the cyclist's fault anyway.
The "I was driving safely on the wrong side of the road until the cyclist moved into my line of travel" defence.
I mentioned the same thing. If we take her at her word, she blacks out whilst driving and nothing medically seemed to have been shown why. So she should not be able to drive until this is resolved as it could easily happen again. As she has already caused the death of someone through it (and very relieved not to be punished for it for some reason), then surely she wouldn't want another death on her consciense when it happens again.
Sorry - I must have blacked out and missed your comment, AS
Brooksby , quite right , if she blacked out as she claims surly it would be prudent to suspend her license until such time it was considered safe to let her back on the road. It is a fact , however much dismissed that cyclists are considered a irritation on the road by the motoring community and as such almost all accidents involving them must be the fault of the cyclist , after all we don't pay the non existent road tax , that was abolished in1937 as long as the current attitude to cyclists exists we are all in real danger of being considered expendable.
"The trial heard that police collision investigators had been unable to establish that the driver was to blame for the victim’s death, however."
So i guess that Mr. Gilchrist just randomly decided it was a great day/time/evening to off himself with no assistance from Ms McDowall who was messing with her phone and driving on the wrong side of the road???
In my youth. I often made jokes about people suddenly hiccuping and dying out of the blue but this isnt a laughing matter.
I hope the judge and jury never come across a situation where a person who killed one of their loved ones gets to walk free from court without any charges being placed against them. The pain of the people who lost a friend, a brother, a loving father and a husband will be one that never heals especially when there was no real justice to find closure and close the chapter under.
my deepest thoughts and condolences to the friends and family of the deceased. I am saddened by the unfortunate circumstances of Mr. Gilchrist's passing yet my heart burns with anger at the lack of backbone the UK justice system has when it comes to dealing with such issues.
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