Driver who claims she cannot remember fatal crash that killed cyclist walks free from court

Worked for Rupert Murdoch...

However, it seems her defence seemed to be she had blacked out whilst driving, so was not in control of the car and not her fault for the death, not suffered from shock afterwards. Hence the refuting of the witness seeing her on her phone seconds after impact.  The prosecution were trying to prove she was aware enough to instantly try to phone someone after the incident. They couldn't so the jury returned the verdict. 

Would be interesting to see more detail - we've only got some points contested by the defense. As you point out it's up to the prosecution to prove it - defense need do nothing themselves. But it seems it wasn't contested that she was in the car and driving it before, and the car was the same one which caused the death. Seem to be witnesses for both the "before" and "after".

Just wondering if to get a conviction it's a question of lucking out with both competent represention and an unusual sympathetic judge / jury, or whether this is actually currently beyond our logical abilities to prove?

Or maybe we're seeing the legal development of the dangerous driving charge? Recall "...driving falls far below the standard expected of a competent and careful driver and it would be obvious that driving in that way would be dangerous".

Maybe if you're not conscious you legally can't be driving, ergo the barrier to proving this charge includes refuting every kind of "medical incident", disproving automatism etc.? (I understand there are some limits to the latter and it's rarely used but can be a trump card).

Frankly considering all this I'm evenmore in favour of making it harder to get squashed in the first place.

Inference is not evidence. Until there is presumed liability in these cases a lack of evidence means the driver is going to be acquitted. 

Presumed liability is for civil cases though not criminal.

hirsute wrote:

Presumed liability is for civil cases though not criminal.

Beat me to it. I'm not aware of anywhere this pertains to criminal cases although I'm happy to be educated!

Secret_squirrel wrote:

Inference is not evidence. Until there is presumed liability in these cases a lack of evidence means the driver is going to be acquitted. 

(See below for presumed liability). But lack of what evidence though? The very definition of the particular offenses (dangerous and careless) is so utterly subjective it seems that this is set up to be "how long's a piece of string". (Imagine if we defined speeding offenses by "going above the speed a careful driver would" with no reference to speed limit signs. "Wanton and furious driving" if you will.) This is doubled because the driver is most commonly being judged by their "peers" (other drivers) but on-road cyclists are in the minority in the population.

Just as a thought experiment say this person kept showing up for the same offense and making the same plea? The same logic would seem to follow. "Isn't it a pity that this keeps happening to you?"

Again I'd really much rather we spend energy (and money) on ensuring this doesn't happen in the first place.  Although of course continually reading these does stir up a desire to see someone held accountable. Or at least have the pause button pushed on their license for a period to reduce the risk for everyone else.

Presumed liability is for civil not criminal cases in any jurisdiction that has it.

It would have no baring on a case like this.

I am definitely for introducing it into Scotland though.

Edit: sorry I see a couple of people were quicker off the mark than I was.

Wouldn't hold your breath on that one. The current government stubbornly refuses to introduce presumed liability and has done so since coming to power. In the same way they have made no progress in ensuring vulnerable road users are safe be it through infra or the judicial system and Police Scotland are still to roll out a portal for reporting instances of shoddy driving. I'm hoping that the Greens will be strong enough to make some decent inroads in regards to sustainable travel in Scotland and not be cowtowed by the SNP. Rant over! 

chrisonatrike wrote:

Would be interesting to see more detail - we've only got some points contested by the defense....

The Record seems to have a bit more detail than the Gazette.  https://www.dailyrecord.co.uk/news/scottish-news/scots-driver-sobbed-cou...

I remember this incident. The road in question is on one of my loops. This particular stretch is about half a mile long between the junction ( light controlled) and the roundabout which actually is designed well enough to stop it being used as a sling shot when coming from Bishopton. That and a kink in the exit road helps slow vehicles down after which it is pretty much as straight as a die for about a mile with the interruption of traffic lights and a traffic island.  

Going by her stating she was doing approx 40 she would have blacked out for thirty seconds give or take  I would imagine that would have been sufficient for the police to seize her licence pending on medical checks maybe this happened as she appears to been given an all clear medically.  

Turns  out she was also wearing sliders which may have had an influence on the outcome of the collision. Footwear catches one of the pedals. Reach down to fix it. Who knows?

Seems as well that the prosecution offered a DBCD but the Crown wanted the DBDD. Resulting in the  car centric - (cynical am  jury returning a not proven verdict to a young lassie starting off in life thus keeping her record untarnished. Would the result have been different with the careless driving charge or if the offender was a local NED doped up to his eyeballs. Yea I know. I'm jaded and cynical regarding the Scottish judicial system regarding driving offences. 
 

@Rendell  this particular road is rarely used by peds. If they do use it, it's between the estate and the village the opposite direction to the crash. 

Cardiologist, Stuart Hutcheon, earlier told jurors that before the incident, McDowall was not prone to black outs or fainted.

He agreed with a professor’s suggestion that for this to occur at the single event of the road traffic incident was “quite a coincidence”.

How did "I can't remember after the accident what happened" equate to "know one knows at all what happened"?

Apart from hitting and killing someone whilst be in charge of a vehicle.

Why did the Police not check her phone records or her mother's? With a dispute over the call, it would be clear whether a phone was used.

The whole thing stinks. No matter what way you look at it there's a plethora of issues that the jury appears to have pretty much disregarded. A few of my colleagues are retired police officers and they're aghast at the outcome of this particular case. 

DP. 

Secret_squirrel wrote:

Unfortunately true or not it's a reasonable defence - both shock and impact can cause memory loss.  The key is proving negligent behaviour on the driver and it sounds like there was a lack of evidence to do this. Otherwise they wouldn't have been focusing on the aftermath. 

doesn't change the fact the she killed him while driving on the wrong side of the road, whether she remembers or not does not change what she did or her culpability. the only defence could be a merdical episode causing the driving on the other side. Not memory loss caused by doing something that was blatently dangerous to begin with.

Secret_squirrel wrote:

Unfortunately true or not it's a reasonable defence - both shock and impact can cause memory loss.  The key is proving negligent behaviour on the driver and it sounds like there was a lack of evidence to do this. Otherwise they wouldn't have been focusing on the aftermath. 

Surely it is similar to the situation with providing an alibi though? Presumably the witness who allegedly saw her on her phone also saw the accident? In which case there is eye-witness testimony that she was driving the car on the wrong side of the road, hit and killed the cyclist. 

In those circumstances, simply claiming not to remember and asserting you might have blacked out requires you to provide some evidence for that assertion, and not simply have a jury take your word for it ... just like you have to provide evidence that you were somewhere other than the crime was committed rather than it just being accepted because you said so. 

The prosecution cannot prove that she didn't black out, and it is unreasonable to expect them to, so it is up to her to demonstrate that this could be the case, not just say so. 

Also, as others have said ... if the jury accepted her explanation that she wasn't responsible for the cyclist's death because she blacked out at the wheel, she should definitely have her licence taken away until she can demonstrate she has addressed her medical condition. 

Jetmans Dad wrote:

 Presumably the witness who allegedly saw her on her phone also saw the accident? In which case there is eye-witness testimony that she was driving the car on the wrong side of the road, hit and killed the cyclist. 

The witness saw her on the phone immediately after the accident, doesn't mean they saw the accident - could have been walking with their back to it and turned on hearing the impact.