Scottish High Court of Justiciary Decisons

TERRY SYMMERS v. PROCURATOR FISCAL, EDINBURGH [1999] ScotHC 235 (13th October, 1999)

This is the appeal of Terry Symmers who was convicted of five offences under the Road Traffic Act including a contravention of Section 2 of the Act. It is only the conviction under Section 2 that is appealed.

The charge in the complaint narrates the locus as being "on a road or other public place, namely Morison Gardens, Loch Road, and Stewart Terrace, all South Queensferry". The evidence before the Sheriff as he tells us in his report was that the police saw the appellant driving his car in Morison Gardens about 1.00am. It is said that the police were "anxious to speak to him", for what reason is not explained. In any event, at that time the police car started to follow the appellant who speeded up and turned right into Loch Road. He then emerged at the junction of Loch Road and Kirkliston Road which contained a Give Way sign and the appellant did not stop. Thereafter he turned his car from Kirkliston Road into Burgess Road without slowing down. The momentum of the vehicle carried it over the centre line of the road and then in Burgess Road he began to swerve across the centre line and brake violently with the result that the police car had to take evasive action.

In these circumstances the Sheriff convicted and in our view was entitled to do so if he was entitled to take into account the events which occurred in Kirkliston Road and Burgess Terrace. What was submitted to this Court, however, as indeed was submitted to the Sheriff, was that Kirkliston Road and Burgess Road did not feature in the charge under Section 2 and therefore that any evidence relating to events in those two roads should not have been admitted.

The Advocate Depute submitted that under schedule 3, paragraph 4(2) of the Criminal Procedure (Scotland) Act 1995 there is an implied latitude. What that paragraph reads is:

The Advocate Depute submitted that the locus was not of the essence of the charge and that as Kirkliston Road and Burgess Road were in the near neighbourhood of the streets mentioned in the charge the evidence was admissible.

In our view this argument cannot prevail. It is perfectly clear that the Crown were aware of the existence of what was alleged to have happened in Kirkliston Road and Burgess Road, as apart from anything else, in charge 1 of the complaint which related to failing to stop on being required to do so by a police officer, all of the roads concerned were mentioned. It was no doubt in these circumstances that the solicitor for the appellant was not in a position to object to the leading of evidence as to what occurred in Kirkliston Road and Burgess Road. Furthermore, it appears that the solicitor took the point before the Sheriff that the locus was not mentioned in the charge. The Sheriff does not explain how he got round that problem, he merely narrates the fact that the submission was made to him. The Crown could, of course, have amended the complaint to include Kirkliston Road and Burgess Road in charge 2 and no doubt the Sheriff would have allowed that amendment because all the evidence by that time had come out. That, however, was not done.

In our view if the Crown choose to confine themselves to three particular roads in their narrative of dangerous driving, then they are confined to these particular roads unless there is some particular reason why some slight extension might be permissible. Thus for example if the nature of the dangerous driving was simply driving at a grossly excessive speed, it might be that the fact that the grossly excessive speed continued into another road, or perhaps even two roads, might be admissible and relevant. Where, however, the events which occurred in Kirkliston Road and Burgess Road were of an entirely different nature to those which had occurred in the prior roads, we are of opinion that the locus is of the essence of the charge and that therefore in the absence of the locus in charge 2 the events in these two streets cannot be taken into account. If these events are removed from the evidence it does not appear to us that the Sheriff would have been in a position to convict of dangerous driving. In these circumstances we shall answer question 1 in the affirmative and quash the conviction under Section 2.