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Read more about victims of crime and sentencing.
HMA v Adam Fernie
Mar 31, 2022
On sentencing Lord Weir made the following statement in court:
On 25 August 2019 you had reason to be driving northwards on the B937 Eden Bridge to Lindores road in Fife. Your route took you past a popular leisure area known as Heatherhall Woods at the same time as the late Mr Iain Anderson was cycling past the layby which lies to the east of the woods. That coincidence was to have tragic and fatal consequences. The van you were driving struck Mr Anderson’s bicycle and he died at the scene. The jury was satisfied that his death was caused by your dangerous driving, and convicted you of a contravention of section 1 of the Road Traffic Act 1988.
The victim impact statements of Mr Anderson’s immediate family are eloquent of the enduring pain and loss they have suffered as a result of this incident. As in all cases of this nature, no sentence I can pass can ever compensate for the loss of a loved one. The task of the court is to assess the culpability involved in the offence on a consideration of all of the circumstances. In doing so it has regard to a number of established parameters including those contained within the Principles and Purposes of Sentencing guideline published by the Scottish Sentencing Council and the relevant sentencing guidelines published by the Sentencing Guidelines Council of England and Wales.
In determining the seriousness of this offence, I take account of the evidence in the trial to the effect that the collision occurred on a straight stretch of road, in light traffic, and in fine weather. The reconstruction of the collision placed Mr Anderson’s bicycle where it could have been expected to be in the roadway, which was itself in good condition. All things being equal, the circumstances were such that a vulnerable road user like Mr Anderson ought to have been readily visible to following vehicles such as yours.
The collision investigation found no physical evidence consistent with hard braking on your part. It found evidence of considerable impact damage at the front of your van and, unsurprisingly, to Mr Anderson’s bicycle.
I acknowledge that the jury heard evidence of comments made by you in the immediate aftermath of the collision about the effect of the sun, and you have since provided the social worker with an explanation about how that feature affected you at the time, while also referencing the involvement, in some way, of a van in front of you. I may say that that was not an explanation which the jury had before it in terms, and it sits rather uneasily with the evidence not only of the witness who was attending to his car engine near the scene but also of the police collision expert who placed the sun in a position to the south of, and therefore behind, you at the point of impact.
In short, the evidence points to you having been completely and inexcusably unaware of Mr Anderson’s presence on the road. From what you told the social worker it appears that, even after the collision, you were unaware of what it was you had struck as you continued northwards with the windscreen of your vehicle shattered.
Balanced against those circumstances I take account of the absence of any evidence of excessive speed or impairment in your capacity to drive. I also take into account that the evidence of witnesses immediately before the incident did not support the existence of a prolonged and deliberate course of bad or erratic driving in the build up to the collision.
Accordingly, in the range of possible outcomes, an assessment of the totality of the circumstances places this at the lower end of the spectrum of seriousness for an offence of causing death by dangerous driving.
In considering matters of mitigation I note that your record of previous convictions contains one offence for speeding. That offence aside you have no relevant previous convictions. In taking account of all that has been said on your behalf this morning, I have anxiously considered your personal circumstances, including your age (80) and the fact that your wife does not enjoy good health, and also your business interests over many years. The social worker assesses you as presenting a low risk of re-offending, and draws attention to the remorse you have expressed to her in relation to Mr Anderson’s death.
That said, I also take account of the remarks of the social worker about the difficulty you appear to have shown in accepting full responsibility for the collision, referencing instead the deceased’s lack of helmet or high visibility clothing. For the avoidance of doubt, I do not consider that these are features which mitigate your culpability on this occasion. It is also right that I should have regard to the terms of the impact statements to which I made reference earlier in these remarks.
Taking all these matters into account, and the principles of fairness and proportionality overall, I do not consider that the public interest would properly be served by taking the exceptional course of imposing a non-custodial sentence in this case. The sentence I therefore impose is one of thirty two months’ imprisonment. That sentence will necessarily date from today.
You will be disqualified from driving for a period of 76 months. That period of disqualification comprises a period of 5 years together with an additional period of 16 months to reflect the custodial sentence I have just imposed. You will require thereafter to take the extended test of competence to drive.