Brenda Mitchell

On 29 April 2017, Michael Cloy was killed whilst riding his motorcycle on the A711 close to Dumfries. A driver, Mr James Kiltie, turned across his path. Michael was pronounced dead at the scene.

Michael was 47 years of age and married with three children. He had served in the British Army for a period of 25 years as part of the King’s Own Scottish Borderers Regiment and then the Adjutants General’s Corps. On leaving the army, he worked as an HGV driver. He was a vastly experienced driver and rider. On the day he was killed, he was with his daughter, Hope Cloy, but they had taken separate routes home on their respective motorcycles. Michael’s sudden death left his wife, Lynnette and their family devastated.

The driver, James Kiltie, was charged with causing death by careless driving under Section 2B of the Road Traffic Act 1988. Within a matter of weeks, following upon Michael’s death, Police Scotland compiled a full collision investigation report. This is a factual report to establish the cause of death.

Michael Cloy’s family have still not been able to access that report. James Kiltie pleaded ‘not guilty’ to his charge of careless driving. The Jury Trial commenced at Dumfries Sheriff Court on the 26 February 2019, almost two years following the collision. On the fourth day of the trial, James Kiltie changed his plea from ‘not guilty’ to ‘guilty’ and he will be sentenced at Dumfries Sheriff Court on 27 March 2019.

As the solicitor who represented Michael Cloy’s widow and his family in the civil case, I have still not been able to access the collision investigation report because the Crown Office and Procurator Fiscal Service (COPFS) maintain that even a collision investigation report in relation to cause of death cannot be released in case it is “prejudicial to the outcome of the criminal trial”. Michael’s widow attended the criminal trial and had to listen to evidence in open court regarding how her husband was killed. How can this be acceptable in a modern-day society?

By denying access to factual reports into cause of death in road traffic collisions, our criminal justice system protects the accused at the expense of the victims. Often civil claims for compensation to pay for funeral costs, lost income and loss of support cannot be advanced until police evidence is made available. It can take many months, and more often years, to bring cases to trial and, during that time, the bereaved and those injured through no fault of their own are denied access to much needed compensation. Michael was the main breadwinner. Imagine the suffering when you don’t know how your love one died and you cannot raise an action against the driver’s insurers in civil law because the evidence to enable you to do so is withheld for years on instructions of the COPFS?

We raised a civil action for the family on February 2018 - a high risk strategy without the collision investigation report. We knew there were witnesses and we were able to complete some investigations. It will come as no surprise to the motorcycling community to hear that lawyers representing James Kiltie averred that Michael Cloy had “come down the road at speed and lost control”. The civil case was concluded successfully against a background of uncertainty with no definitive answers for the family as to how Michael died, just an averment he was riding at “speed”.

It’s a disgrace that those who are accused of causing death by careless or dangerous driving are given access to collision investigation reports, yet those who are victims are not. We believe that victims MUST be given access to police collision investigation reports into the cause of death within 6 weeks and without cost.

Michael Cloy was not speeding. He was riding within the speed limit as a careful and competent rider but knowing the true cause of his death was a guessing game for his widow Lynnette. She can of course apply for a copy of the collision investigation report now that the criminal case is concluded and a fee of around £473 will be charged by Police Scotland adding insult to injury.

We have raised this issue with the COPFS and been advised that our concerns will be passed on to the Deputy Crown Agent, Serious Case Work, Chambers Street, Edinburgh. That office will also liaise with the policy department.

Meantime, James Kiltie will be sentenced on the 29th March 2019.

• Brenda Mitchell is a senior partner at Motorcycle Law Scotland. View her profile here.