SENTENCING STATEMENTS

On sentencing, Sheriff Jackson said:

“Emma Burke Newman was a 22-year-old woman of joint French and American citizenship who was, on 27 January 2023, living and working as an architectural student in Glasgow.

On that same day, at 10 o’clock in the morning she was cycling to work. She was dressed appropriately and was plainly visible to all other road users.

At the Northern end of King George V Bridge in Glasgow city centre Emma brought her bike to a standstill at a red light. She was positioned in what is known as a cycle safe zone. The accused, Mr Paul Mowat, was driving a lorry at that time. He too was stopped at those same traffic lights. His vehicle was positioned slightly over the beginning of the cycle safe zone and so had encroached into that zone.

When the lights turned to green Emma appears to have delayed very slightly in setting off from her position. The accused was turning his vehicle left. When he did so, the lorry being driven by him moved forwards until the front nearside bumper of that lorry and the rear wheel of Emma’s bike were in close proximity. As the accused turned his lorry left onto the Broomielaw, the front nearside bumper of the lorry collided with the offside of the rear pannier rack of Emma’s bicycle. This small, momentary, collision has caused the most dreadful consequence. Emma fell from her bike and was dragged under the offside of the lorry. That lorry continued on its journey for some 53 metres before a driver in the vehicle behind the lorry alerted the accused to what had happened.

Mr Mowat alighted from the cab of his lorry and was heard to say, “I didn’t see her”. The emergency services attended quickly at the scene in the form of a specialist team of doctors, critical care paramedics and nurses with specialist skills and equipment. Following treatment at the scene of the collision, Emma was taken to the Queen Elizabeth University hospital in Glasgow where, despite the concerted efforts of medical personnel there, she was pronounced dead at 11:25 AM on 27 January 2023. A later post-mortem examination found Emma to have suffered extensive injuries and the cause of Emma’s death was recorded as multiple injuries due to a road traffic collision.

In the time since the delivery of the agreed narrative in this case I have had the opportunity of reading Mr Mowat’s counsel’s written submissions in mitigation. Of significance, I learned from those submissions that immediately after leaving his cab, Mr Mowat held Emma’s hand and apologised to her, whilst reassuring her that help was on its way. Whilst this very important piece of information comes late in the day, I rather suspect that that is a consequence of Mr Mowat’s stoicism and reluctance to speak up about such a matter. I have also been able to read a number of personal references which gave me a fuller understanding of Mr Mowat’s character and background. Having read those references I am quite content to accept that Mr Mowat is being entirely truthful when he speaks of these closing moments in Emma’s life.

In May 2023 a physical reconstruction of the collision was carried out at the scene. The collision investigators charged with the investigation of Emma’s death have gone to what I consider to be considerable lengths to establish the precise cause of this collision. I take the opportunity to commend those officers for the painstaking details they were able to establish that have shone such a bright light on what happened in that brief moment. The report of the collision investigators finds that the accused failed to stop his lorry at the advanced stop line in his lane and so he partially obstructed the cycle safe area. He also failed to stop sufficiently far behind the first white line in his lane so that he could have seen the entire area where cyclists would be waiting and so he created a blind spot in front of his lorry, contrary to rule 178 of the Highway code. I note also, for reasons that have not been explained to me, that the driver of the blue bus in lane three was positioned in such a way as to entirely cover the cycle safe zone.

The collision investigators also concluded that Emma’s route along lane one of the road was visible from the accused’s position in his driving seat for approximately 2 to 3 seconds if the accused had been looking in the rear nearside mirrors at that time. The accused failed to ensure that the nearside close proximity and front projection mirrors were clean which resulted in him having an obstructed view through these mirrors. The responsibility for ensuring that those mirrors were clean lies with the accused as part of the walk-round checks he was expected to carry out prior to driving the lorry that day.

The reversing camera screen fixed to the dashboard was in such a position that it completely obscured Emma’s presence from the driver’s position unless the driver moved his head to obtain a different view. If the accused had moved his head to check the blind spot behind the screen before moving off, he would have been able to see Emma.

Finally and, in a more general sense, the collision investigators concluded that the accused was driving his vehicle in a busy location where he would reasonably be expected to encounter hazards such as other vehicles, cyclists and pedestrians. Given the presence of the cycle lane in lane 1 to his nearside, the other cyclist in that lane, the pedestrian crossing ahead and the size of the heavy goods vehicle he was driving, he should have been more attentive to the likelihood of encountering any of these hazards at the junction, in particular checking any blind spot before moving off or changing direction as per rule 211 of the Highway code. The investigators also concluded that Emma had unfortunately placed herself in a vulnerable position so close to the accused’s lorry. There were, they point out, a number of alternative options available to her in seeking to navigate what was on any view a busy junction.

It is in the light of these observations by the investigators that the accused has pleaded guilty to driving his vehicle without due care and attention or without reasonable consideration for other persons using the road.

Having tendered his plea of guilty at this court on 22 February 2024, a criminal justice social work report was called for and is now available. That report describes a man who, until the commission of this offence had been a very hard working and conscientious man who is a father of 2 children and a partner to his current partner for over 30 years. He suffers from a number of ailments including high blood pressure, anxiety and stress which he attributes to the commission of this offence. He gave up work after this offence took place. He is 69 years old. Perhaps of most significance in this report is that he tells its author that he feels deep remorse for this offence. Further, he recognises the significant impact that his actions have had upon Emma’s family. I should add that I also take the view that in offering to resolve the stressful matter of this court action by way of an accelerated procedure he has given physical manifestation to that remorse. I would very much imagine that Emma’s family and friends will have taken even a small degree of comfort from the knowledge that Mr Mowat was accepting responsibility for his action on that morning.

At that hearing on 22 February 2024 the procurator fiscal depute also tendered a note of a previous conviction of the accused as she was entitled to do. That conviction dates from nearly 50 years ago. I should make it plain, at the outset of the sentencing process, that I consider the conviction to be of such an age and different character from the present matter that I will proceed as though the accused were a first offender.

I have read a number of references submitted on Mr Mowat’s behalf and they speak of a man with a fine work ethic and a blameless career as a professional driver. They tell me of a man who is minded to put the well-being of others at the forefront of his mind. He appears to be a decent, caring man who has been devastated by the consequences of what he has done. His mental health has suffered as a direct consequence of his actions.

I have also had the opportunity of reading the victim impact statements submitted by Emma’s parents and submitted, by Emma’s mother, on behalf of Emma herself. They are evocative of the loss and despair they feel, still, at the death of their only child. Both parents remind the court that with Emma’s death they lose out on so much more, such as her constant companionship and the promise of grandchildren (being just two examples). These statements describe a quite extraordinary woman. A renaissance woman. A lover of Robert Burns and Munros and all things Scottish. A woman of social conscience and responsibility. A woman conscious of the need to protect our world and our environment. A woman of unimaginable promise.

Plainly, nothing that the court can do is able to compensate for, or lessen that loss or that despair, but I am grateful for the opportunity of learning more about her all too short, but already full and well-lived life.

As a part of the sentencing process I take a number of factors into account. In the first place, I take account of the sentencing guidelines provided by the Scottish Sentencing Council, both in relation to the principles and purposes of sentencing and in relation to the sentencing process in determining the appropriate sentence. I recognise the need to achieve fairness and proportionality.

I have also had regard to the Scottish Sentencing Guidelines dealing with causing death by careless or inconsiderate driving.

Finally, I have had regard to the oral and written submissions made to me by Counsel on Mr Mowat’s behalf.

In applying the relevant sentencing guideline the first step is for the court to assess the seriousness of the offence – that is done by looking at the culpability of the offender and the harm caused. But as the guidelines recognise, the level of harm – that a death has been caused – is fixed by law; no greater harm than that can have been caused. No greater loss can arise. So the seriousness of this offence is largely determined by the culpability of the offender.

The guidelines provide examples of the level of seriousness, starting at its highest in level A, which covers driving which falls not far short of dangerous driving. That is not what happened in this case. Level C is careless or inconsiderate driving arising from a momentary inattention. And level B is any driving not falling into A or C.

The guideline for seriousness at level C uses the word “momentary”. I have already explained briefly the findings of the collision investigators that essentially, there was fault on Mr Mowat’s part in a number of different ways which include not ensuring that the nearside close proximity and front projection mirrors were clean in advance of the commencement of that day’s work. The remainder of the observations made by the investigators relate to the brief moments around his setting off following the appearance of the green light. While those latter faults can properly be classed as momentary, the failure to properly examine his mirrors before setting off cannot be so described. As a consequence of this finding, I assess the level of seriousness to be in the middle range at level B

I then turn to consider the sentencing range. In terms of the guidelines, such level B offences have a sentencing range of a level 2 community payback order. That is a non-custodial disposal. The law also imposes a period of disqualification, which I will deal with later.

I then require to consider the list of additional factors to which the guidelines point, which are circumstances surrounding the offence or the offender which either aggravate or mitigate the offence.

There is only one factor which I consider can properly be described as aggravating, that being the status of Emma as a cyclist, namely a vulnerable road user, who rightly deserves the protection of the law.

I then turn to the factors in mitigation; the accused has an excellent driving record. He has shown genuine remorse, understanding and empathy; he has given up work as a driver. At the scene of the collision he acted in a compassionate and humane manner. He held her hand and comforted her. I also require at this stage of the process to reflect the collision investigator’s finding that Emma unfortunately placed herself in a vulnerable position at the junction.

In sentencing, the court requires to balance a number of considerations. Specifically I need to balance the recognised sentencing objectives of punishment, deterrence, rehabilitation and the expression of society’s disapproval.

Other factors are also properly taken in to account. He pled guilty by accelerated procedure, accepting responsibility and avoiding the delay and ordeal which a trial might present. In doing so he accepted responsibility at the first opportunity which the law allows. He is clear about the effect on the family of the death and expresses considerable and enduring remorse.

In considering all these matters, I concluded that an appropriate fair and proportionate sentence is the imposition of a Community payback order which will consist of two components;

There will be a supervision requirement for a period of twelve months where he will follow the instructions of his supervising officer.

He will undertake 100 hours of unpaid work in the community to provide a degree of payback to society for your actions to be completed within 12 months. That has been modified from a total of 150 hours to reflect his early plea of guilty.

Disqualification;

The law requires disqualification to be imposed. The period of disqualification is determined by the risk posed by the accused as well as any relevant offending pattern. The report reflects a low risk of reoffending and Mr Mowat is effectively a carer for his partner. The period of disqualification will be 12 months. I have modified that from a period of 18 months, again, to reflect the early tendering of this plea.

I should also mention an observation contained within the written submissions of counsel that the older style of heavy goods vehicle such as that being driven by Mr Mowat on the 27 January 2023 is gradually being phased out due to the large blind spots in the curtilage of the vehicle caused by the driver being positioned so high up in the cab. They are being replaced by smaller vehicles where the driver sits far lower with a larger windscreen affording a panoramic view of the roadway at close to cycle level. I mention this development simply as an observation which may provide a small degree of comfort to those who have been affected by Emma’s death.”

21 March 2024