Lord Justice Clerk
Appeal No: C593/97
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by LORD CAPLAN
NOTE OF APPEAL
PROCURATOR FISCAL, Stirling
Act: Donaldson; Digby Brown
Alt: Bell, Q.C., A.D.; Crown Agent
24 March 1999
Between 7 July and 9 July 1997, inclusive, the appellant, David Paterson, appeared for trial on indictment at Stirling Sheriff Court. The indictment contained 12 charges. In the course of the trial guilty pleas were tendered to charges 2, 3, 4, 5, 6 and 11. After trial the jury found the appellant guilty of the remaining charges, namely 1, 7, 8, 9, 10 and 12.
Of these charges charge 1 was the most serious and was to the effect that on 24 August 1996, on the C86 Dunblane to Blackford Road, the appellant caused the death of Nicholas Edward Brown by driving the motor vehicle BSN 879B dangerously and at an excessive speed while the vehicle was in a dangerous condition, and that he failed to keep the vehicle under control at a bend, causing it to swerve about the road, skid and overturn whereby Nicholas Brown was thrown from the vehicle and killed. This was said to be contrary to section 1 of the Road Traffic Act 1988. The charge had originally contained an allegation that the appellant had been driving at speeds of up to 70 m.p.h. but this was deleted by amendment.
Charge 12 was the next most serious charge and was to the effect that at the locus of the accident the appellant had attempted to pervert the course of justice. This he did by inducing Brian McFarlane and Steven Nairn (who were passengers in the appellant's motor car at the time of the accident) to pretend to the investigating Police Constables that the deceased Brown had been the driver of the car when the accident occurred.
Charges 2 and 3 were to the effect that the appellant had driven without insurance and a test certificate. Charge 4 was to the effect that as a provisional licence holder the appellant had driven without being accompanied by a qualified driver. Nor had he displayed "L" plates. Charges 5, 6, 7, 8, 9, 10 and 11 all related to breaches of the Road Vehicle (Construction and Use) Regulations 1986. The substance of the breaches alleged was that the front near and off-side tyres of the vehicle had insufficient tread, and were over-inflated, so as to be unfit for use. The rear off-side tyre was similarly over-inflated. The bodywork of the vehicle around the front near-side and off-side suspension mounting was defective so as to create a danger of injury to any person if the motor car was used. Similarly a danger in the use of the vehicle arose because the air filter cover flametrap had been removed from the air filter housing.
In moving for sentence the procurator fiscal had produced a schedule of previous convictions which showed one non-analogous conviction. However it had to be noted that the appellant had had some previous involvement with the children's panel system for joy-riding. At the time of the accident he was 17 years of age. The deceased was a front passenger in the vehicle and a close friend of the appellant.
The sheriff, having obtained reports, on 1 August 1997, sentenced the appellant to 12 months detention in respect of charge 1 and to six months detention in respect of charge 12. These sentences were to run consecutively to one another. In addition periods of disqualification from driving for a total period of five years were imposed. The other charges were disposed of by way of admonition and dismissal.
The appellant appeals against conviction and sentence. The first ground of appeal against conviction, in respect of which leave to appeal was granted, is to the effect that the sheriff erred in law in directing that there was sufficient evidence to entitle the jury to bring in a verdict of guilty to a contravention of section 1 of the said Act as opposed to section 3 of the Act. The second ground, for which leave to appeal was granted, was to the effect that the sheriff misdirected the jury by indicating that the crucial evidence in relation to the standard of driving at the time was the indirect evidence of the traffic police officers, their deductions and conclusions, as opposed to the direct evidence of the passengers in the vehicle at the material time. In his charge to the jury the sheriff set out with clarity the tests respectively required for conviction under section 1 and section 3 and it is not maintained that the tests themselves were in any respect erroneously stated.
The evidence in the case is set out by the sheriff in a report and two supplementary reports. The important features of the evidence may be said to be as follows; At the time of the accident two friends of the appellant were passengers in the back seat of the vehicle, namely Brian McFarlane and Steven Nairn aged 17 and 18 years respectively. McFarlane in his evidence indicated that the accused had obtained his car about a week before the accident. When the four youths in the car first set out the deceased Brown drove, because the appellant had no sufficient licence to drive. However, a short distance along the road the appellant took over and Brown transferred himself to the passenger seat. At a sharp left-hand bend on the road the appellant lost control of the car and it rolled over two or three times. McFarlane claimed that the appellant had not been driving fast but then McFarlane had been talking to his fellow passenger in the back seat and had not been concentrating on what was going on. Steven Nairn, the other passenger, confirmed the evidence of McFarlane. He thought that when the accident happened the car had been travelling quite fast, possibly 50 to 55 m.p.h. Both McFarlane and Nairn confirmed that the appellant had asked them to say that the accident had occurred while the deceased had been driving. The appellant himself did not give evidence. Police Constable Mary McKenzie, James Sneddon and Sergeant Lane arrived at the locus immediately following the accident. These witnesses confirmed that the appellant at first had lied about who was driving the motor car, but he eventually admitted that he had been the driver.
P.C. Morrison of the Traffic Department spoke to the road being a narrow C class single track road with passing places. Weather conditions were dry and there was a speed limit of 60 m.p.h. When he had questioned the appellant the latter had indicated that he had skidded while travelling at approximately 45 to 50 m.p.h. Constable Taylor Duncan confirmed P.C. Morrison's evidence.
P.C. Taylor Duncan, along with P.C. Lewis Allan, examined the state of the appellant's vehicle later in Dickson's Garage, Dunblane. Constable Taylor Duncan described the defects set out in the relevant construction and use charges. He observed that the filter and cover plate (which was found detached in the boot of the car) would have been removed to make the car sound more powerful. This plate could not have come off accidentally.
P.C. Henry Anderson pointed out that there was a sharp left-hand bend at the point where the accident took place. He had carried out skid tests. The road was commonly used for police driver training to bring out problems which could arise with a single track road. P.C. Lewis Allan was a well-qualified accident investigator. He confirmed that the left-hand bend, related to the accident, had to be taken with extreme caution. He indicated that he would not liked to have taken this bend driving at speeds of up to 45 to 50 m.p.h. He reckoned that excessive speed had caused the accident and that the motor vehicle must have been travelling at least at 42 m.p.h., and possibly faster. There were children in an adjacent playground area and there were cars in an adjacent public car park. A driver approaching the bend, as the appellant had been doing, had no clear view round it so that pedestrians and vehicles coming in the direction opposite to the appellant's direction of travel could not be seen. Thus the appellant's mode of driving was stated to have been inappropriate and created danger. P.C. Allan carried out speed tests at the bend and found that at 40 m.p.h. it felt unsafe to negotiate the bend. The fact that there were three passengers in the vehicle and faulty suspension would have aggravated the problem. He found no indication on the road that the car had braked. He examined photographs taken after the accident and opined from the markings on the road that the car had been driven round the bend in circumstances where the tyres had been put under extreme stress.
In support of the appellant's appeal his counsel argued that the evidence detailed by the sheriff could not properly support a conviction of an offence against section 1 of the Act. It was further claimed that the sheriff had misdirected the jury when, at page 14D-F of his charge, he had said:
"Now you have the evidence of the two passengers but the crucial evidence is the indirect evidence of the traffic police and their deductions and conclusions drawn from their investigations and made by their expert knowledge on certain situations".
It was suggested that the two passengers actually in the motor vehicle at the time of the accident could have contributed evidence which was just as valuable if not more so than that of the police witnesses. In any event the police evidence, at best, was that the appellant's driving had been "inappropriate" and "verging on recklessness".
We have found no difficulty in concluding that there is no substance in the appeal against conviction. The sheriff presented the jury with the correct tests for a section 1 offence. There is no rule of law or practical experience to the effect that a dangerous driver requires to be driving at any particular speed. The care expected of a driver must depend on a number of circumstances. It must depend on road layout and conditions. It must depend on the state and roadworthiness of the vehicle being driven. It must depend on existing perils and risks to others. Finally, it must depend on the driver's experience.
In the present case it was accepted that the appellant was driving at a speed which, in all the circumstances, experienced traffic police thought was excessive. In fact the speed was so extreme that the fatal accident occurred for no other apparent reason that speed of driving. There were adjacent dangers which should have been obvious to the appellant such as the children's playground, car park, and possibility of on-coming traffic. The car was in poor condition with defects which would have rendered control more difficult. The appellant was an inexperienced driver. He should not have been driving at all, but if he did drive he should have been driving with special care. The passenger Brian McFarlane was only 17 years of age and he conceded that he had been sitting chatting in the back seat and had not been paying much attention to what was going on. The other passenger Nairn was 18 years of age, but he gave evidence that when the accident happened the appellant's car had been travelling quite fast, possibly at 50 to 55 m.p.h. Essentially the young passengers could not have been experienced drivers if they had any driving experience at all. It follows that the sheriff cannot be criticised for observing that the police and expert evidence was very important evidence. It also has to be noted that this evidence was not challenged by any competing expert evidence.
In all the circumstances we are of the view that there was ample evidence to justify the sheriff in allowing the section 1 charge to be decided by the jury. Moreover, we can see no merit in the criticisms that were advanced of his charge.
We shall therefore refuse the appeal against conviction.
The appellant further appealed against sentence. In support of this part of his appeal his counsel argued that he was only 18 years of age at the time of the accident. He had suffered the pain of seeing his close friend killed. He was full of remorse and had required help from a psychologist. He was in regular employment. He had no outstanding convictions. He had been kept in custody for two and a half months which was equivalent to a five months custodial sentence. It was suggested that instead of affirming the custodial sentence we should substitute a sentence of community service for this. We were referred to Davison v. H.M. Advocate 1996 S.C.C.R. 736 where this course had been followed. It was pointed out that in any event the sheriff's sentence had proceeded upon an error in that he had suggested that the appellant had maintained his plea of not guilty to charge 12 until a late stage. In fact the appellant had tendered a plea of guilty to that charge at the commencement of the trial but it had not been accepted by the Crown.
The appellant in respect of the dangerous driving conviction has been convicted of a most serious charge. By an act of dangerous, irresponsible conduct (the implications of which were perfectly foreseeable) he created a lethal accident which killed his friend. Given the difficult road layout and the appellant's limited driving experience it was inexcusable that he should have driven as he did. We appreciate that what occurred has been tragic not only for the deceased victim but for the appellant. Nevertheless we cannot criticise the sheriff for deciding that in the case before him the interests of the public required a custodial sentence. Nevertheless we consider that, in the light of positive factors such as the youth of the appellant and his recent efforts to lead a responsible life, some reduction in the length of sentence imposed can be allowed.
In respect of charge 12 we consider that the sheriff erred in proceeding on the assumption that the appellant had elected to take this matter to trial. Before the trial and at the trial he had offered to plead guilty to charge 12, but the Crown had refused to entertain such pleas. The substance of the charge, a pretence that the deceased had been driving, was no doubt motivated by shock and panic. The offence remains a serious one but we consider that in the circumstances the period of custody imposed was excessive. In the whole circumstances we shall quash the sentences imposed by the sheriff and substitute nine months detention in respect of charge 1 and two months detention consecutive in respect of charge 12.