Why is the driver not charged?

The number of motorcyclists killed and seriously injured on Scottish roads is increasing and action has to be taken to address motorcycle safety. In our experience, Police Scotland seem to be quick to only charge motorcyclists, even when a collision may have been due to both rider and driver error. The question is, why is the driver not charged?

On 28th June, Ian was riding his Yamaha MT motorcycle on the A83 towards Ardgarten. The driver of a Volkswagen van was travelling in the same direction ahead of him. Ian approached the line of traffic queued behind the VW. The VW was driving at around 45 mph, so Ian overtook the line of traffic when he considered it was safe to do so. Making sure there was no oncoming vehicles, Ian moved out into the opposing carriageway keeping his speed well within the limit of 60 mph. Suddenly, the VW driver executed a right-hand turn towards the junction with Ardgarten Forest Park. Ian did not notice any indication from the old VW which is not surprising given the size and location of the indicators. The VW struck Ian’s motorcycle knocking him off resulting in a significant upper limb injury.

We intimated a claim to the driver’s insurance company and liability was firmly denied with the insurers commenting that Ian was in breach of the Highway Code and, in particular, Rule 167 which states that you should not overtake on approach to a junction.

The Highway Code

A whole host of Highway Code Rules applied to the driver too. Rule 161 advises drivers to use their mirrors frequently. Rule 179 advises drivers well before turning right to use their mirrors to make sure they know the position and movement of traffic behind them. Rule 180 advises drivers to watch out for motorcyclists and to check mirrors and blind spots to make sure they are not being overtaken. Rule 211 advises drivers that it’s often difficult to see motorcyclists. It seemed that the driver of the VW had ignored all of these rules. Ian had been in the opposing carriageway overtaking for at least 4.5 seconds prior to the collision. In other words, he was there to be seen.

Despite that, Police Scotland charged Ian with a Section 3 offence of careless driving. The VW driver was not charged.

The driver had failed in his duties

Ian’s criminal case called at Dunoon Sheriff Court in March the following year. At that time, the Crown advised that they had not yet completed their investigations so it was rescheduled to July. In July, Ian’s Criminal Defence Lawyer asked for a disclosure of police documents. None were available and so the case was rescheduled a second time until October.

At this Hearing in October, the Crown unbelievably asked for a further continuation (postponement). However, it was made clear by Ian’s Defence Solicitor that there was no reason why the Crown could not have disclosed the police evidence. It was an outrage to request a further continuation. The Justice of The Peace agreed, and the case had to be deserted by the Crown on the basis that they had not supplied police evidence. There was in fact very little police evidence.

Whilst that position was helpful to the civil case, we still had to prove negligence on the part of the VW driver before Ian could be compensated for his injuries and loss. With weeks to go before the final Court Hearing, we eventually received an offer. The offer was not the full value of the claim because it had to be accepted that Ian was overtaking at or near a junction. However, there was a recognition by the Defenders that the VW driver had also failed in his duties to take reasonable care for other road users.

Motorcycling Injuries

Motorcycle Law Scotland will always fight our client's corner

Although Ian’s case was successful, he alone had to cope with the stress of an outstanding criminal prosecution which was eventually unsuccessful. He alone sustained significant orthopaedic injuries that were, in many ways, life altering. His injuries would undoubtedly have been a lot worse, perhaps even fatal, if he had not been wearing an air vest. Ian has not returned to motorcycling which is something that he was passionate about before the accident. He still continues to suffer restriction of movement and still does all his physiotherapy exercises each day.

At Motorcycle Law Scotland, we will always fight our client’s corner. However, the question here is not so much the civil case but rather why Ian was singled out for prosecution when the VW driver was not. What message does it give to drivers who seriously injure motorcyclists when they have been negligent? Do they expect to get off scot free in connection with any criminal prosecution? It would seem so in this example.

As stated at the start of this client story, the number of motorcyclists killed on Scotland’s roads is increasing and focus needs to shift away from what seems to be the blame game as far as Police Scotland is concerned.

Our Award Winning Team

Brenda Mitchell - Senior Partner

Brenda Mitchell

Senior Partner

Brenda has been a Personal Injury Lawyer for over 35 years and for the last 20 years has specialised representing injured motorcyclists, cyclists and pedestrians.

Jodi Gordon - Partner

Jodi Gordon


Jodi has predominantly represented cyclists involved in road traffic collisions and specialises in assisting those who have suffered very serious and complex injury.

Thomas Mitchell - Associate

Thomas Mitchell


Thomas represents clients who have been involved in road traffic incidents and he specialises in representing vulnerable road users such as pedestrians, cyclists and motorcyclists.

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