System must protect the victim, not the accused

Aftermath of a fatal road crash highlights serious failings in our legal process, writes Brenda Mitchell

Iwork in a profession where I have never questioned the job that I do. Sometimes, however, a case comes along that reinforces my conviction not just about why the job is so important, but also why I will continue to fight for change in the way civil law is perceived and treated.

I had that overwhelming sense of purpose reading Lesley Reid’s impact statement following the death of her sister and brother-inlaw in a fatal road traffic collision.

On 1 September, 2016, Lesley’s sister, Fiona Stanley, was travelling pillion with her partner Charlie Howden on her vintage motorcycle with their dog Cleo in the sidecar when they were killed in a collision with a BMW travelling on the wrong side of the road.

Throughout the legal processes that followed, the actions of the driver, his insurance company and the Procurator Fiscal culminated in distressing delays and growing disbelief that the victims of such a serious incident could be pushed aside. For 17 months, Lesley and Charlie’s family were kept in the dark with no explanation as to how their loved ones had been killed on a short motorcycle ride home.

In this particular case, the information management team at Police Scotland were unhelpful to the point of being obstructive. Requests for an abstract report to identify the third-party insurer and intimate the claim were rebuffed with questions about our right to ask for it – something that had never happened to me before – or we were redirected to the Procurator Fiscal’s office. In the end, we did receive the vehicle and insurance information, only to discover the abstract report had been released to the motor insurers on their request and without delay.

In March 2017, when Motorcycle Law Scotland (MLS), acting for the families of both Fiona and Charlie, contacted the driver’s insurance company, they denied all liability on the part of their client, blaming the deceased couple instead. It was a position they held even when criminal charges were brought against their policy holder and continued despite their driver changing his plea from “Not guilty” to “Guilty” when the court case got underway in December 2017.

Meanwhile, the Procurator Fiscal’s office had to be constantly chased for updates. Delays followed indecision and the criminal case was only concluded in March this year. On behalf of the Crown, Procurator Fiscal Iain Gray from the Road Traffic Fatali- ties Unit made it clear that: “The accused’s BMW crossed the solid double white line wholly into the opposingcarriageway.”thedriver had also been talking on his phone at the time of the collision. He was ultimately sentenced to 200 hours Community Payback Order, six months Restriction of Liberty Order and banned from driving for four years.

It was only following that conviction that the third-party insurer altered their position on liability and agreed to negotiate settlement of the civil claim for damages some 18 months later.

The linear process of criminal and then civil cases for road traffic collisions denies the families of victims any understanding of events or information as to what happened to their loved ones while it disproportionally protects the perpetrator.

At the same time, it can play into the hands of insurance firms wishing to delay settlement.

While financial compensation will never replace a loved one, it can alleviate hardship on those left behind, or help secure proper care in cases of severe injury. Under the current system, it can takes years to resolve civil cases if there are delays caused by the criminal process at the outset.

On so many levels, this case highlights the problems with the system we have inherited for road traffic collisions and why it’s time to bring in changes that more closely reflect a compassionate society. The system protects the accused at the expense of the victim, while civil law which acts to protect the victim, is relegated to a subordinate role. To make matters worse, in this case we had an insurer unwilling to investigate a claim until its back was against the wall.

There has to be a way forward that allows for a dual or parallel process of criminal and civil cases, through sharing information between solicitors to ensure families of the bereaved and those injured are compensated fairly and quickly rather than kept in the dark and financially starved for many months and often years.

Brenda Mitchell is senior partner at Road Traffic Accident Law Scotland LLP which incorporates Motorcycle Law Scotland, Cycle Law Scotland and Pedestrian Law Scotland