Jodi Gordon

Following the death of a loved one in a road traffic collision, how family members perceive justice to have been served varies dramatically. Of course, there are many variables at play including the nature of the collision, any remorse shown by the offending driver and the access to information for the bereaved family.

Under Section 2B of the Road Traffic Act 1988, causing death by careless or inconsiderate driving is set out as follows; “A person who causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, is guilty of an offence.”

The reality of our criminal justice system is that around 90,000 criminal reports are received annually. This exceedingly high volume of work results in driving offence cases often taking around two years to go to Trial. That was the case for the Cloy family.

On 29th April 2017 Michael Cloy, husband, father, and papa was killed when riding his motorcycle on the A711 near Dumfries. He was travelling home. Mr James Kiltie was driving his car in the opposite direction to Michael when he turned right, across his path. Michael took evasion action but in so doing collided with a van. He was pronounced dead at the scene due to his injuries.

On 13th April 2018, almost one year after the collision, Mr Kitlie appeared in Dumfries Sheriff Court and was formally charged. In December 2018, he entered a ‘not guilty’ plea and in February 2019 the Trial began. This meant that Michael Cloy’s distraught relatives had to listen to four days of evidence, including attempts by Mr Kiltie’s defence team to lay some of the blame on Michael. It was only on day four that Mr Kiltie changed his plea to ‘guilty’.

On 27th March 2019, Mr Kiltie appeared in Dumfries Sheriff Court for a fourth time to hear the sentence imposed on him. Mr Kiltie’s previous driving and custodial sentences were read out to the Court and after careful consideration by Sheriff Brian Mohan, he was sentenced to 12 months imprisonment and banned from driving for two years.

Part of the reasoning behind the custodial sentence was in relation to Mr Kiltie’s complete lack of remorse for what he had done. He even went so far as to blame Michael, alleging speed on his part. The Sheriff took a very dim view of this line of defence, as there was no evidence whatsoever that Michael had been riding his motorcycle at an inappropriate speed.

Of the 155 ‘Death by Careless Driving’ convictions in Scotland over a ten-year period from 2007 to 2017, only 15% resulted in a custodial sentence. The maximum that can be imposed by a Sheriff or Judge is five years but the vast majority, some 67%, are given Community Payback Orders (CPO).

Lynnette, Michael’s wife was content with the sentence but of course this is a very bitter sweet ending for her and the family. Lynnette said, “I had expected that he would be given a CPO and therefore was surprised but pleased that he was in fact sentenced to 12 months in prison. His complete lack of remorse and his attitude in Court made me feel that a custodial sentence was the only way justice could be served. Had he pled guilty earlier and shown any remorse for what he had done, then I would most likely have felt differently. I do think a two-year driving ban is light. In cases of ‘Death by Careless Driving’, I would prefer to see longer driving bans imposed by Sheriffs.”

This view was echoed by Chris Boardman, Olympic cyclist and Cycling Ambassador for the City of Manchester, after his mother, Carole was killed when she was out cycling in Deeside, Flintshire in 2016. The driver admitted causing death by careless driving and was sentenced to 30 weeks’ custodial sentence and an 18-month driving ban.

Following sentencing, Mr Boardman called for lengthier driving bans stating:

Although taking away someone’s liberty may seem like the highest price to pay following a fatality on the roads, would a lengthy driving ban not potentially act as a far greater deterrent and have a far greater effect on their day-to-day life, without the impact on the tax payer?

Of course, custodial sentencing must still be an option open to Sheriffs however, is it time to radically increase the length of driving bans and consider life-time bans. Driving is a privilege and that privilege should be removed if it is exercised carelessly or dangerously to the loss of life of another.

• Jodi Gordon is a partner at Road Traffic Accident Law (Scotland) LLP. A shorter version of this article appeared in The Herald.