Scottish High Court of Justiciary Decisons

ANGUS HAMILTON v. PROCURATOR FISCAL, GLASGOW [1999] ScotHC 21 (27th January, 1999)

This is an appeal by Stated Case by Angus Hamilton, who appeared in the Sheriff Court at Glasgow on 3 September 1997 on a charge under section 4 of the Road Traffic Act, the charge in question being of attempting to drive a vehicle. There were also two other charges which are not the subject matter of the Stated Case. The matter turns on very simple facts. We do not need to go into the background. The simple matter is that the appellant tried to start the engine of the car and, thereafter, having failed to start the engine of the car, he got out and matters took a different course.

The question was raised as a matter of submission as to whether the sheriff was entitled to hold this attempt to start the engine of the car to be an attempt to drive. No other acts had been taken to indicate that more was being done, but it was plain that the appellant had in fact entered the car, got into the driver's seat and in that way had then moved on to attempt to start the engine. There was no suggestion that his intention in trying to start the engine was anything other than an intention to start it for the purpose of then driving the car. The question is whether in repelling that submission and eventually convicting, the sheriff erred as to the boundary between preparation and perpetration, the classic terms used in identifying the offence of attempt.

We were referred to the case of Guthrie in 1992 where, in somewhat complicated circumstances, a driver was found asleep and there was a background of having tried to start the vehicle. We find it difficult to draw close analogies between the particular facts of particular cases and we think the present case must be judged on its own facts. Taking that approach, we find the distinction between trying to start the engine and trying to drive over-refined. We are satisfied the sheriff was entitled to see an attempt to start the engine as an attempt to start the vehicle, i.e. to drive. In these circumstances the questions in the case are answered in the affirmative and the appeal refused.