Scottish High Court of Justiciary Decisons

ROGER JEFFREY MURRAY v. HER MAJESTY'S ADVOCATE [2000] ScotHC 112 (8th December, 2000)

[1] The appellant is Roger Jeffrey Murray, who was convicted at the Sheriff Court at Ayr of a contravention of Section 1 of the Road Traffic Act 1988 as amended. In the form in which the indictment went to the jury it averred that the appellant did

[2] One of the issues explored in evidence at the trial was whether the appellant had been using a mobile 'phone at the time of the accident. A Crown witness, Arthur Frater, spoke to seeing the appellant collapse on being told, after the accident, that Mr. Shafiq was dead. He said that, on recovering, the appellant had said words to the effect that "It was that stupid fucking bitch from the office was on the 'phone." The inference from that remark would have been that, at the time of the accident, the appellant was speaking on the telephone to a lady in his employers' office. However, the defence produced the relevant telephone records which indicated that there had been no telephone call between the appellant's mobile 'phone and his employers' office at the relevant time. Moreover, Mrs. Smith, a lady in her sixties, who was the only female who worked in the office, gave evidence to the effect that she had not been speaking to the appellant on the telephone at the time of the accident.

[3] In these circumstances, when he addressed the jury, the procurator fiscal depute referred to Mr. Frater's evidence and pointed out, inter alia, that only Mr. Frater spoke to this supposed remark by the appellant. He went on:

After the procurator fiscal depute had spoken, Mr. Burns, in what the Sheriff described as "his usual eloquent way", made a common law submission on behalf of the appellant, to the effect that head (c) in the indictment, relating to the use of the mobile 'phone, should be withdrawn from the jury. Somewhat surprisingly, in view of what he had said to the jury, the procurator fiscal depute resisted that motion. The Sheriff decided that the jury should have an opportunity to take the decision on the facts of this matter. In the event, the jury convicted the appellant of the charge as libelled, including head (c).

[4] At the outset of the hearing before this court the Advocate Depute conceded that he could not ask us to sustain the appellant's conviction in respect of head (c) of the indictment since the procurator fiscal depute had expressly asked the jury to believe Mrs. Smith. The logical consequence of that, as the procurator fiscal depute had indeed said, was that at the relevant time any call could not have been with the office. But, if that was so, then Mr. Frater's evidence on this matter, which did not refer to anything other than a telephone call with a woman in the office, could not be correct. In other words, the procurator fiscal depute's stance before the jury in relation to Mrs. Smith's evidence necessarily implied that the Crown's view was that the jury could not rely on Mr. Frater's evidence. Since that was indeed the Crown's view, one would have expected the procurator fiscal depute either himself to have amended the indictment to remove head (c) or, at the very least, not to have opposed Mr. Burns' common law submission. In fact, as we have seen, he did neither and the matter was left to the jury. The Advocate Depute's position was, however, that the procurator fiscal should have amended the indictment. He therefore invited the court to proceed on the basis that the jury had been entitled to find only heads (a) and (b) in the indictment proved.

[5] The Advocate Depute argued that, even with that element removed, the court should sustain the appellant's conviction of a contravention of Section 1 of the 1988 Act. On behalf of the appellant Miss Scott contended that the Advocate Depute's concession meant that the court would require to quash the conviction and substitute a conviction of the implied alternative charge of a contravention of Section 3.

[6] Because of the way the hearing of the appeal developed, it is preferable to examine the Advocate Depute's argument as to why, despite his concession, the court should sustain the appellant's conviction of a contravention of Section 1 of the 1988 Act. He argued that the averment about the appellant using the mobile 'phone had no bearing on the averments as to his driving. The charge did not say, for instance, that he had been using a 'phone handset, so that one of his hands would have been holding the 'phone rather than grasping the steering-wheel in the proper fashion. In fact, he said, the evidence showed that the device had been built into the driving cab and its use did not involve the appellant in holding a handset. All that was involved was speaking into a microphone fitted into the framework of the cabin. That would not necessarily have affected the manner of driving and the charge did not, for example, say that the use of the 'phone had in some way diverted the appellant from attending to his driving. So, even if one proceeded on the basis that the jury should not have been left to consider the evidence relating to the use of the 'phone, that did not affect the overall position. The appellant had still been convicted of driving at 52 m.p.h. on a stretch of road with a 40 m.p.h. limit and of driving when he knew that the braking system of the trailer was defective. These were the only matters which had ever been of significance in the case.

[7] The argument was advanced with the Advocate Depute's habitual skill, but we are unable to accept it since it really runs counter to the entire position of the Crown both in drawing the indictment and in proceeding to trial on it. Although the Advocate Depute maintained that the averment relating to the use of the mobile 'phone did not relate to the appellant's driving, that submission is inconsistent with the structure of the charge. The appellant is said to have driven dangerously in three respects, (a) by driving at an excessive speed, (b) by driving when the braking system was defective and (c) by driving when using a mobile 'phone. The charge then goes on to narrate that, as a result of the dangerous driving so specified ("whereby"), various things happened whereby the deceased died. The averments relating to the use of the mobile 'phone in (c) are plainly intended to define one aspect of the appellant's dangerous driving, just in the same way as the averments in (a) and (b) are intended to define two other aspects which had led to the death of Mr. Shafiq.

[8] Moreover, if the Advocate Depute were right and the averment about the mobile 'phone really had no bearing on the appellant's dangerous driving, that averment would be irrelevant. So his submission on behalf of the Crown really involved a submission that this part of the Crown's indictment was irrelevant. That was not, of course, the basis upon which the Crown proceeded, or upon which the jury were directed to consider the issue, at the trial. For instance, at one point the Sheriff told them:

A little later, having dealt with the evidence about the mobile 'phone, the Sheriff said this:

[9] As we understand the passage, the Sheriff first directed the jury that if they had reasonable doubt about (c), then they had to delete it. He then told them that, if they (also) had reasonable doubt about (a) or (b), then they had (also) to delete the head in question, while if they (also) had reasonable doubt about both (a) and (b), they would require to acquit the appellant completely. But if all, or any one or two of (a), (b) and (c) were proved, then the jury had to apply the tests which he had already given them to decide whether what had been proved amounted to dangerous driving or careless driving.

[10] In summary, the Sheriff directed the jury that driving while using the mobile 'phone (head (c)) was one of the matters which they required to assess when deciding whether the appellant had driven dangerously. On the Advocate Depute's argument, the two passages which we have quoted from the Sheriff's charge to the jury would have amounted to misdirections since the fact that the appellant had been using the mobile 'phone while he was driving could never have formed a basis upon which the jury could have determined that he had been driving dangerously. But, when the Advocate Depute's concession on head (c) is analysed, in reality it entails the conclusion that the Sheriff misdirected the jury when he told them that they could find that the appellant had been driving while using the mobile 'phone and that this could, either alone or with other factors, amount to dangerous driving.

[11] If one looks at the matter less technically, it seems to us that, when reaching an overall view as to whether the appellant had been driving dangerously, the jury might well have attached some significance to their conclusion that at the relevant time he was using the mobile 'phone. They might, for instance, have thought that this factor aggravated the character of his driving at speed and with defective brakes so as to bring it within the realm of dangerous driving. At the very least, it is impossible for this court to proceed on the basis that the jury's finding that the appellant had been using the mobile 'phone was immaterial and of no possible relevance to their overall conclusion that he had been driving dangerously.

[12] The Advocate Depute submitted that, even when the use of the mobile 'phone was taken out of the picture, sufficient remained to allow us to conclude that the jury would "necessarily" have convicted the appellant of a contravention of Section 1 of the 1988 Act and that there had therefore been no miscarriage of justice. In support of that submission, he asked us to look at photographs of the road and of the junction where the accident occurred, since he said that these showed that the appellant had collided with the vehicle at the junction when he must have had a clear view of the vehicle. But, as Miss Scott pointed out, the Crown's case that the appellant had been driving dangerously was not based on general allegations of this type, but was based, rather, on the specific allegations of speed, defective brakes and the use of the mobile 'phone contained in the indictment. It is therefore these matters which we must consider when deciding whether there has been a miscarriage of justice.

[13] In fact, neither the Advocate Depute nor Miss Scott cited authority for the test which we should apply in reaching that decision. As we have explained, however, the Advocate Depute's concession really means that the Sheriff misdirected the jury to the effect that they could find it proved that the appellant had used the mobile 'phone and that this could form one of the factors in deciding whether the appellant had been driving dangerously. For that reason, it may not be irrelevant to recall that, under the pre-1980 law, in the case of a misdirection of this kind, the court could affirm the jury's verdict only where it could conclude that, on the evidence properly admissible, a reasonable jury would "without doubt" have returned the same verdict: McKenzie v. H. M. Advocate 1959 J.C. 32 at pp. 37 - 38, per Lord Justice Clerk Thomson citing Viscount Simon L.C.'s formulation in Stirland v. D.P.P. [1944] A.C. 315 at p. 321 and describing the test as "high and exacting". In the absence of any full discussion of the appropriate test, we prefer to ask ourselves the question whether a reasonable jury would either "necessarily" (the Advocate Depute's suggested test) or "without doubt" (the McKenzie test) have found the appellant guilty of dangerous driving. Whichever formulation is adopted, we answer the question in the negative since we cannot say that the finding in relation to the mobile 'phone would "necessarily" or "without doubt" have been immaterial to a reasonable jury's conclusion that the appellant had driven dangerously.

[14] For these reasons, which stem ultimately from the important evidence of Mrs. Smith and from the attitude of the procurator fiscal depute to that evidence in the trial, we must quash the appellant's conviction of a contravention of Section 1 of the Road Traffic Act 1988 and substitute a conviction of a contravention of Section 3 of the Act. We shall continue the appeal to hear counsel for the appellant's submissions in relation to sentence.