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news
Statue of Justice, Old Bailey (licensed CC BY 2.0 on Flickr by Ronnie Macdonald).jpgHGV driver who killed cyclist spared jail after widow’s plea
A lorry driver who killed a cyclist on a country road in Scotland has been spared jail after the rider’s widows urged a court to show him clemency.
Appearing at Stirling Sheriff Court on Wednesday, 59-year-old David McGarry admitted causing the death of retired art teacher Neil Smith, aged 74, through careless driving, reports the Daily Record.
Mr Smith, from Cambuskenneth, Stirling, had been cycling with his son on the A82 ‘Road to the Isles’ in Perthshire on the afternoon of 23 August 2021 when the fatal crash happened close to Portlennan, near Crianlarich.
Despite the efforts of passers-by to try and save him, he died from traumatic injuries to his neck and chest.
The offence to which McGarry, who was heading to Fort William at the time of the collision and had been a lorry driver for 42 years, entered his guilty plea carries a maximum penalty of five years’ imprisonment.
However, Mr Smith’s widow, computer lecturer Dr Savi Maharaj, urged Sheriff Charles Lugton not to jail the rider, saying that she was not seeking retribution for her husband’s death.
She said that if McGarry, whom she wished peace and a fulfilled life,” wanted to make restitution, he could do so through supporting safer roads for cyclists and other vulnerable road users.
McGarry, from Whitehaven, Cumbria, was described by his advocate Gillian Ross as being “extremely touched” by Dr Maharaj’s comments.
She attributed the crash to a “momentary lapse” of attention on her client’s part, acknowledging that he should have been aware of Mr Smith’s presence before the collision.
“"He simply didn't see Mr Smith,” she said. “He accepts he should have seen him. But for whatever reason he did not.”
She added that McGarry, who was described as being distressed and in shock following the crash, has not driven since then, and is receiving treatment for PTSD.
The court was told that he had also recently had a leg amputed below the knee as a result of diabetes.
Sheriff Lugton sentenced McGarry to a community payback order that will require him to undertake 160 hours’ unpaid work within the next 18 months. He also handed him a 16-month ban from driving.
Acknowledging McGarry’s ongoing remorse, the sheriff said that the case was “very tragic,” adding that “the consequences must have been devastating for the family of the deceased, and I note in that regard the very generous comments they have made, which are greatly to their credit.”
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.
Latest Comments
- SteveBr 2 sec ago
Let's just ignore the fact that cars are killing cyclists.
- trenzalorian 2 hours 22 min ago
try deleting cookies and re-logging in. That worked for me (I also changed passwords so both site and fantasy passwords were still identical....
- chrisonabike 3 hours 33 min ago
Thanks! A great trip and a nice write up, more so for memories of places on that route....
- wtjs 4 hours 11 min ago
Maybe the Government could introduce a set monthly fee that allows drivers to be caught out as much as they like! ...
- wtjs 4 hours 22 min ago
there is a very big inner tube factory in Wuhan...
- David9694 4 hours 32 min ago
car crashes into...horse trough...
- LordSandwich 5 hours 41 min ago
The official advice is bollocks! They tell you to click when you see a potential hazzard, but anything could be a potential hazzard....
- andystow 6 hours 1 min ago
Here's where I got it. Not sure if they ship outside the US, though. https://magicpine.com/products/will-bike-for-beer-unisex-tee
- Pot00000000 8 hours 28 min ago
But some people do want that 🤷🏼♂️ these are race bike that also happen to be purchased by middle aged men who don't race. ...
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15 comments
Sorry if it sounds harsh, and I do think that Dr Maharaj's example of forgiveness is highly admirable, but I've long believed that sentencing in all forms of criminal cases should take no account of victim statements, whether they call for clemency or the maximum possible punishment. Justice is supposed to be blind and the judge is there to implement the recommendations of the Sentencing Council to ensure that the convicted person receives a condign sentence for their offence. If you start allowing the opinions of victims and/or their families to influence sentences it then becomes something of a lottery where one person may be spared jail and another sentenced to several years for exactly the same offence depending on whether they are lucky enough to have a forgiving victim/victim's family.
I tend to agree but you've also got to factor in that prison time is meant for rehabilitation not punishment or deterrence. What would they actually do in the prison to prevent this guy from doing it again?
I agree, I'm not saying that in this case it was necessarily wrong to spare him jail time, just that as a general principle sentencing should not take account of the victim's/victim's family's opinion, whether asking for leniency or severity. Whenever I hear those "victim impact" statements in court saying "X was a wonderful mother and wife who devoted herself to charity work" etc I'm afraid I always think oh, so if the victim had been a grumpy old loner whom nobody liked it wouldn't matter as much?
Whilst rehabilitation is part of the picture, incarceration plays a large part in punishment and deterrence.
https://www.gov.uk/government/speeches/prisons-reform-speech
Agree with "incarceration plays a large part in punishment" more or less - it may be more significant depending on the social effects it has on you e.g. after you get out. Example: if you didn't have much of a job it won't bother you so much - for some it would be career-ending.
"incarceration plays a large part in ... deterrence" - debatable. Surely "deterrence" is "the odds of you getting caught times the overall expected negative value of the various punishment options (negative value of each times odds of being awarded that)"?
Then there are also perverse incentives e.g. cases where it may be legally "logical" to "ensure there are no witnesses" after a crash rather than rendering aid - or as has happened in the UK to drive off and claim to police that you "had a few stiff ones to calm your nerves" when you got home.
Driving - being a normal "habitual" activity has another problem with "deterrence" here. Many poor driving behaviours are simply not considered criminal (or "not real crime"). Since there is mostly no feedback when people break the law this is reinforced. So many drivers set out on their journeys with confidence in a series of learned behaviours / habits which are not a good match with those expected by road law or the requirements of safety.
Except it doesn't work either as punishment or deterrent,recently attended a talk by a criminal justice barrister, who happens to run a brewery, Tap Social, that employs prisoners on work release programmes to help get them back into the community when they're released.
The stats they presented overwhelmingly showed prison doesn't work in the way we think it does, and actually creates far more problems, especially for reoffending, and is far more costly an option.
Whatever the views we hold of this case,actually sending this guy to prison wouldn't have achieved anything, but a cost to the state.
Bring back flogging!
Seriously though, nothing is perfect, doesn't mean nothing is the answer. The risk of incarceration will deter some people from committing crime - but it depends on other factors such as the risk of getting caught, the possibility for leniency in the court and the individual's circumstances (nowt to lose or lots to lose etc.).
The troubling thing about cases like this, is it sends out the message you will get off lightly if you kill someone when driving if you are not paying attention. The impact is broader than the circumstances of the particular case.
This also sets a precedent whereby the defendant's friends/family could pressure the victim's friends/family into calling for clemency
Like others, I do respect the widows wishes not to jail the driver, but I also wonder if this is the wish of Mr Smith's son who was riding with his father at the time. As he would have been close to being killed also and would have witnessed the traumatic death of his father I wonder if his views are different.
Moving on to why the driver did not see the cyclist, it appears that Mr McGarry is in the later stages of diabetes (amutation of limbs only happens after years of having the condition) so could it be an abnormal sugar level issue was to blame? Was it at least looked into? We will never know.
I do respect the widows wishes not to jail the driver
One function of the law is to look after the interests of the victim and other potential victims of driving like this. The latter is partially taken care of by the amputation, so his lorry driving days are over but he could conceivably drive a car in future, although that seems unlikely. Even so, a much longer driving ban would have been a rather weak signal that the law does not regard killing a cyclist because you didn't notice them as 'just one of those things'- one which doesn't even warrant a jail sentence. I think the wishes of the family should carry no more weight than they do when they think a sentence is too lenient- which is pretty much no weight at all. The suspicion is that the court has taken account of all this 'shock, PTSD, distress, remorse' bollocks
It's possible his son wasn't riding with him at the time. The collision report only mentions one cyclist:
https://www.cyclestreets.net/collisions/reports/2021991080086/
Looking at the street view from the collision report, this was on a fairly straight section of road, where the HGV would have had a 40mph speed limit. The visibility is good, yet it doesn't seem any attempt to overtake was made, the HGV just ran into the back of the cyclist. That can't be explained by a momentary lapse.
Dr Savi Maharaj is not seeking retribution, but I think nearly all here would like some justice and the sentence in no way reflects taking someone's life.
I can understand not giving a prison sentence, but a 16 month driving ban for taking someone's life is an insult. Spare him prison by all means if the widow wishes that, but please don't let him ever drive again. He lost that privilege when he denied another person the right to live.
Simon: I assume the reference to Dr. Maharaj not wanting the "rider" to be jailed is meant to say "driver".
I respect the wishes of the widow of the cyclist killed, but it has to be said that it does nothing to increase the safety of other cyclists. I'm afraid I don't subscribe to the notion of a momentary lapse of concentration, and the presumption that this is a "one-off". Drivers, and most especially those who claim professional status, owe a duty off care to all other road users, and the continued and repeated refusal of courts to apply anything like the maximum penalties available does nothing to reinforce that duty.
Regarding the influence of victim statements, I do have experience of being injured whilst on the bike by a negligent driver. The incident made it to court, where the driver pleaded guilty (having previously pleasded not guilty). I found the ability for me to express my feelings about how the incident had affected me to the guilty party the most beneficial part of the whole prosecution process. For the incident in question I was able to pass on to the prosecution lawyer (out of court) my feelings - and I consider the magistrate probably made adjustment for that in sentencing, which helped me.
For me, what matters is that the guilty party learns from their mistake and doesn't do it again to someone else. The past can't be altered - the future can.