Scottish High Court of Justiciary Decisons

GERALD NIVEN v. PROCURATOR FISCAL, DUNDEE [1999] ScotHC 49 (9th March, 1999)

This is an appeal by stated case by Gerald Niven who was convicted on 17 February 1998 at the Sheriff Court in Dundee of an offence under Section 2 of the Road Traffic Act 1988. He was also fined and disqualified.

The case is one which turned essentially on sub-section 2 of Section 2A of the 1988 Act. That sub-section provides that a person is to be regarded as driving dangerously for the purposes of Sections 1 and 2 if it would be obvious to a competent and careful driver that driving a vehicle in its current state would be dangerous. The sheriff, by finding 10, has found that it would have been obvious to a competent and careful driver that driving the accused's vehicle in the state it was in on the date in question would have been dangerous. If that finding stands the appeal fails. The submission was that on the other findings finding 10 not justified.

The general situation can be described fairly briefly. The rear window of the car and both side windows on both sides of the car had been covered by a very dark adhesive film applied to them. The covering on the window on the driver's door extended only half of the way, leaving the top four or five inches clear. The near side mirror was missing and the off side mirror was badly broken.

The police, who were of normal height, could not see to the right through the clear gap at the top of the driver's window. The police pointed out that there was no view to the near side and it was thus not possible to see any pedestrian on the pavement or pedestrians crossing behind the car. Any reflections in the mirror were very vague and did not extend to the rear of the vehicle and the sheriff further makes findings relating to the fact that there was no clear view into the car through the front because of the dark windows. Drivers of other vehicles would not have been able to have eye contact and the like.

It is recorded that the accused said that he could see out and it was not unsafe and that he "would wind down the window if he wanted to see out". It was pointed out that the driver's window has a manual control and there was no evidence of electric operation of the far or near side window.

The submission was that the sheriff had not been justified in inferring that the windows had been in their raised or closed position but it appears to us that there was ample basis for that conclusion, considering the conditions at the time and the comment made by the accused as to what he would have done if he wanted to see out. The matter becomes one of general impression. We are entirely satisfied that on the basis of the condition that this car was in, finding 10 was entirely justified. The sheriff was entitled to convict. The appeal is refused.