Scottish High Court of Justiciary Decisons

GORDON MICHIE v. THE PROCURATOR FISCAL, PAISLEY [2000] ScotHC 60 (16th May, 2000)

[1] The appellant is Gordon Michie, who stood trial at the Sheriff Court at Paisley on 28 April 1999 on a complaint libelling five charges. After trial, the appellant was convicted of charge 4, which was in the following terms:

The present appeal is against that conviction.

[2] The relevant evidence, as narrated in the stated case, can be summarised as follows. Shortly before midnight on 2 September 1998 a car, of which the appellant was the registered keeper, collided with two other cars parked in Bruce Avenue, Paisley. A witness saw a man get out of the driver's seat of the appellant's car immediately after the collision. She recognised this man and identified him as the appellant. When the police were called to the scene, a police dog tracked from the driver's door of the appellant's car to the area around the appellant's house, which was situated a short distance from the locus of the collision. The appellant's car was examined by police officers. There was nothing to indicate that it had been stolen. Two police officers, P.C. Pollock and P.C. Stewart, saw the appellant the following day. P.C. Stewart informed the appellant that they were enquiring into the accident which had occurred the previous evening, and that they understood that the vehicle in question belonged to him. The appellant agreed that it did. He was asked if he had the keys to the vehicle. He said that he did have them. P.C. Pollock then said in his evidence, "Constable Stewart made a section 172 request and required the appellant to give us the name of the driver." The appellant replied, "Well, I don't know the name of the driver." He was then arrested and cautioned and charged. P.C. Stewart's evidence was to similar effect. In relation to the requirement made of the appellant, P.C. Stewart said, "I required the appellant in terms of section 172 of the Road Traffic Act 1988 to tell me the name of the driver."

[3] On the basis of the evidence, the sheriff made the following findings:

[4] The questions posed by the sheriff for the opinion of this court are as follows:

[5] Mr Shead, who appeared on behalf of the appellant, submitted that the evidence led was insufficient to establish that the requirement made by P.C. Stewart had been made on behalf of the Chief Constable. There was no evidence whatsoever, he submitted, to establish that P.C. Stewart possessed any authority from the Chief Constable to make such a requirement. Mr Shead founded on the line of authority stemming from Foster v Farrell 1963 J.C. 46, as establishing that in order to prove the commission of an offence under section 172 it was necessary to prove that the requirement had been made by a person authorised by the Chief Constable to ask for the information in question. Accordingly, the prosecution had to prove that such authority had been given to P.C. Stewart; but there was no evidence to that effect, the question of authorisation not having been raised during the evidence of either officer. Mr Shead however accepted that the existence of such authorisation did not necessarily have to be established by direct evidence: it might be inferred, where such an inference could reasonably be drawn from the established facts. In the present case, the sheriff drew such an inference from the unchallenged evidence that the requirement was made by a police constable ostensibly acting in terms of section 172, and therefore ostensibly acting on behalf of the Chief Constable. We consider that the sheriff was entitled to draw that inference in the circumstances. The requirement having all the appearance of having been made properly by an authorised police constable in accordance with section 172, the sheriff could infer from those circumstances, in the absence of contrary evidence, that the constable indeed possessed the authority which he ostensibly exercised.

[6] Mr Shead further submitted that the sheriff was not in any event entitled to find that the appellant had been present at the locus of the accident and must therefore have been aware of the identity of the driver. In this regard, Mr Shead founded upon the fact that the sheriff had upheld a submission of no case to answer in respect of other charges which libelled that the accused had been the driver of the motor vehicle in question. We do not however consider that there is any inconsistency between the sheriff's unwillingness to conclude, beyond reasonable doubt, that the appellant had been the driver of the vehicle in question, and his acceptance that the appellant had been present. It is plain that the sheriff accepted that the appellant had been in the motor vehicle at the time of the accident. He was entitled to do so, given the evidence of the eye-witness and the evidence concerning the tracker dog. In those circumstances, the sheriff was also entitled to conclude that the appellant must have known the identity of the driver.

[7] In the circumstances, we shall answer the questions in the affirmative and refuse the appeal.