APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HON. LORD SUTHERLAND
CONTINUED STATED CASE
PROCURATOR FISCAL, EDINBURGH
Appellant: C Shead; Gilfedder & McInnes
Respondent: R Doherty, Q.C, A.D.; Crown Agent
18 January 2000
This is the appeal of Sean Hoy who was convicted of contraventions of section 103 and 143 of the Road Traffic Act. He appeals against the conviction on the ground that he was not driving the vehicle at the time. The circumstances were that the appellant got into a car being observed by the police. The car was parked adjacent to the kerb. The appellant opened the driver's door and sat in the driver's seat. His passenger went to the front passenger door, opened it, took something from the footwell and then left the car to go back to a shop. In her absence the appellant started the car engine. Police officers approached the vehicle and they spoke to the appellant and asked him to turn off the engine. This he did and at that stage the car lurched forward slightly. The reason for this was that the handbrake was in fact defective and would not hold the car on a slope. In order to hold the car on the hill while the engine was running, the appellant was obliged to sit with his foot on the footbrake. When the engine was switched off the appellant required to put the vehicle in gear before leaving the vehicle so that in effect the gear was acting as the handbrake.
The question that arises is whether these activities of the appellant constitute driving for the purposes of sections 103 and 143. The sheriff says that the police officers observed the car moving albeit very slightly. The sheriff founds on what was said by Lord Justice General Clyde in the case of Ames v McLeod 1969 JC 1 where it was said that the key issue was whether or not the person was in a substantial sense controlling the movement and the direction of the vehicle. The sheriff took the view that the appellant controlled the vehicle by starting the engine and holding the car stationary by use of the footbrake given the condition of the defective handbrake. Mr Shead on the appellant's behalf today has submitted that albeit it is a narrow point, the evidence indicates that the appellant was not in fact driving. In order to constitute driving there must be some movement of the vehicle and the driver would have to be in control of the movement and direction of the vehicle. In the present case the movement of the vehicle was of an entirely minimal nature and only occurred after the appellant had been spoken to by the police and asked to get out of the car. In these circumstances he submitted that there was quite insufficient control of the car and in particular there was insufficient movement to constitute driving. The Advocate Depute on the other hand submitted that there was sufficient evidence in this case. The appellant was undoubtedly in control of the car, he was sitting in the driving seat, he disengaged the gear which was holding the car on the slope, started the engine and then held the car on the incline by the use of the footbrake which he required to press continuously in order to keep the car stationary on the hill. In these circumstances he was intervening in the movement and direction of the car and but for his intervention the car would have rolled downhill. Insofar as there was some slight movement at the end of this manoeuvre, that was as a direct result of the appellant having disengaged the gear. In the whole circumstances therefore the appellant had got beyond the stage of preparing to drive the car and was actually driving the car. The Advocate Depute submitted that there was in fact no need for any positive movement of the car if in fact the nature of the intervention of the driver was such as to be in control of the movement and direction of the vehicle. He accepted of course that there could be circumstances where the engine could be started, as for example in order to produce some heat from the heater, and that in itself would not constitute driving. The starting of the engine per se would not constitute driving because that in itself does not control the movement and direction of the vehicle. Once the driver commences interference with the braking system however, a different situation arises because that is controlling the movement and direction of the vehicle.
In our view not a great deal of assistance can be obtained from cases such as Ames or McArthur v Valentine 1990 JC 146 or Henderson v Hamilton 1995 SCCR 413. The first two of these cases raised the question as to whether someone who was pushing the car when the engine was not running could be a driver and that is not the position we are in here. Henderson was a case which was really about evidence, and whether the appellant in Henderson who was sitting in the car could be said to have been on the evidence the driver because he must have driven the car into that particular position. It is true that the Lord Justice Clerk in a dissenting judgment at p. 415C says,
"As was observed in Ames v McLeod the issue as to whether an accused was driving depends on whether he was in a substantial sense controlling the movement and direction of the car and it is not necessary to constitute driving that the accused should be sitting in the driving seat. However in my opinion it is plain that for an accused to be held to have been driving it must be shown that the vehicle in question had been set in motion and that the appellant was controlling its movement and direction."
Mr Shead founded on that passage and in particular the part which says that it must be shown that the vehicle had been set in motion. We accept that that observation may have been relevant to the circumstances in Henderson v Hamilton where the car was at all times completely stationary and the appellant was in fact found lying across the passenger seat with the engine running and the issue was whether he had driven the car to that position.
In our view the situation in the present case is a rather unusual one particularly because of the fact that the handbrake was defective and it required either that the car be in gear with the engine switched off or alternatively that the person in the driver's seat had to depress the footbrake and hold the footbrake down in order to prevent the car from moving. The position quite clearly therefor is that in the latter alternative in order to prevent movement of the car downhill there required to be a direct and continuing personal intervention on the part of the person in the driving seat. Having regard to the fact that the engine was running at the time, that the appellant was the person in the driving seat, that the appellant had disengaged the gear in order to start the engine and as a consequence required to keep his foot on the footbrake in our opinion goes beyond mere preparation for driving, and he has commenced driving even though there may have been no movement at all. The fact that there was movement at the end of the proceedings is a clear indication in our view that the appellant must have been driving because there would have been no movement but for the intervention on his part by disengaging the gear and using the footbrake. The correct test is to look at what the appellant was doing and not necessarily the result. For example, if the car had in fact rolled forward and hit another car perhaps a foot or two in front of it there can be no question but that the appellant would have been driving the car. The things that he was doing would have been exactly the same as he was doing in the present case. This shows that the question of movement of the car is not essential if the driver's activities have got beyond the stage of mere preparation for driving but have got to the stage when there is active intervention on his part to prevent movement and direction of the vehicle. In the somewhat unusual circumstances of this case we are quite satisfied that the appellant could be said to have been driving. In our view he was just as much driving as would be a person who in the course of proceeding along the road was stopped at a red traffic light, halted his vehicle, placed his foot on the footbrake and awaited the turning of the lights to green. It would clearly be nonsensical to suggest that he had driven up to that point and that when the lights changed he drove away from that point but at the time that he was stationary he was in fact not driving the vehicle.
In the whole circumstances therefore, we are satisfied that the sheriff was entitled to convict and accordingly we shall answer questions 1 and 2 in the negative and refuse the appeal.