HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD PROSSER
APPEAL BY STATED CASE
PROCURATOR FISCAL, KILMARNOCK
26 January 1999
The appellant Lawrence Kerrigan was found guilty of dangerous driving under section 2 of the Road Traffic Act 1988 at the Sheriff Court in Kilmarnock on 11 July 1997.
In this appeal by stated case it is accepted that the circumstances are such that a conviction under section 3 would have been appropriate. The contention is, however, that the sheriff was not entitled to convict of dangerous driving under section 2, having regard to the definition of dangerous driving contained in section 2(A)(1).
The offence in question occurred on the A71 Darvel to Strathaven road in February 1997. The crucial matters involved are that the appellant embarked upon the overtaking of a vehicle ahead of him, and in the event collided with an on-coming car. The road in question was one with only one lane for vehicles in each direction. What seems to have caused the problem was that in front of the car which the appellant began to overtake there was another vehicle, that vehicle in fact having a trailer. The front vehicle and trailer and the car immediately in front of the appellant had been travelling in front of him over a significant distance and close together. One can of course, speaking generally, sympathise with someone who is faced with vehicles ahead of him which are being driven so closely together that it is not possible or not easy to overtake one of them without overtaking the other.
The submissions on behalf of the appellant turned on a number of matters. First, it was pointed out that the appellant had said that he did not intend to overtake the front vehicle and its trailer as well as the vehicle immediately in front of him. What he had intended was to overtake one vehicle only and that had not apparently been rejected in terms of its truth by the sheriff. Moreover, the road in question was not one where overtaking was prohibited and furthermore certain signs which might have put him on his guard had been held by the sheriff probably not to have been seen by him owing to the presence of the other vehicles. The submission was therefore that while this would be an offence under section 3, and while it could be said that the driving fell below what would be expected of a competent and careful driver, the sheriff had erred in saying that the driving fell far below what would be expected of a competent and careful driver in terms of section 2(A)(1)(a). It was submitted correspondingly that it would not be obvious to a competent and careful driver that driving as this appellant did would be dangerous.
It is accepted that these are always matters of fact and degree and for the assessment of the court which hears the case. We do not doubt that there would be cases on facts perhaps quite similar to those in the present case where the assessment would be made in a different way and the sheriff might be satisfied that section 3 rather than section 2 applied. In the present case, however, by finding in fact 9 the sheriff has said, as a finding in fact, that at the point at which the appellant pulled out to commence the overtaking manoeuvre it was not possible for the appellant to overtake only the vehicle immediately in front in safety, and return to his own side of the road in between that vehicle and the one with the trailer. He goes on in that same finding to say that it should have been obvious to the appellant from the close proximity of the two vehicles which were in front of him, and which he had been following, that he could only carry out the overtaking manoeuvre in safety if he was satisfied that the road was clear of on-coming traffic sufficiently far ahead to overtake both vehicles and return to the east-bound carriageway. In his note accompanying the findings the sheriff elaborates somewhat on this view, saying that it seemed to him that the evidence was compelling that the two vehicles plus trailer were travelling together in close proximity and that it must have been obvious to someone following that it would not be possible to overtake the one to a position in between them, and then carry out a further manoeuvre. While, as we say, we think that cases may be very similar and result in different conclusions it was a matter for the sheriff in this case to decide the matters which are covered by that finding and those comments. It does not appear to us that standing that finding it can be said that the sheriff did anything that he was not entitled to do in finding guilt established as he did.
In these circumstances we hold that he was entitled to make the finding of dangerous driving and was entitled to convict the appellant of a contravention of section 2. That being so, the first two questions in the case are answered in the affirmative. The third question does not arise in the appeal as it now stands.