Scottish High Court of Justiciary Decisons

JASON PENMAN v. PROCURATOR FISCAL, DUNFERMLINE [2001] ScotHC 107 (9th October, 2001)

[1] The appellant in this stated case is Jason Penman who was convicted at Dunfermline Sheriff Court of a charge that on 14 August 1999 in Timmons Park, Lochgelly he drove a motor vehicle without there being in force a policy of insurance, contrary to section 143(1) and (2) of the Road Traffic Act 1988. He was fined £150 and disqualified from driving for a period of six months.

[2] The sheriff found that on 14 August 1999 at 10.40 p.m. the appellant drove his Ford Orion motor car in Timmons Park, Lochgelly. He was seen by two officers

in a police car, which had stopped to allow the appellant's car to pass. The appellant was in the driving seat of his car but had a front seat passenger. The two police officers gave evidence. When P.C. Clark was giving evidence the appellant's solicitor objected on the ground that the prosecutor had deliberately elicited the fact that the appellant had a previous conviction for an offence under the Road Traffic Act, and there had therefore been a breach of section 166(3) of the Criminal Procedure (Scotland) Act 1995. It was further submitted that the disclosure of the appellant's previous conviction had resulted in a breach of Article 6 of the European Convention on Human Rights in respect that the appellant could not receive a fair trial.

[3] The circumstances in which reference was made to the fact that the appellant had a previous conviction under the Road Traffic Act are set out in the stated case. After the police had observed the appellant driving his car in Timmons Park, they tried to pursue the appellant's car because the driver of the police car, P.C. Clark, suspected the appellant of driving while disqualified. At that time the appellant could not be found but at 23.05 p.m. that evening he was stopped in Timmons Park when he was on foot. The police officers were invited by the appellant into his house and he satisfied them that he was not disqualified from driving. In the event, he was then detained, taken to the police station and interviewed and he admitted that the car had not been insured. His position was that he had not been the driver of the car when it was seen by the police. When P.C. Clark was giving evidence the procurator fiscal depute asked him what had taken place in Timmons Park when the appellant had been detained that evening. P.C. Clark then disclosed that the appellant had a previous conviction for a contravention of the Road Traffic Act by saying that the appellant had told him that his disqualification from driving had expired on 1 August 1999. Before the sheriff the appellant's solicitor alleged that the procurator fiscal depute had elicited this evidence deliberately and that consequently there had been a breach of the prohibition contained in section 166(3) of the Criminal Procedure (Scotland) Act 1995. It was also submitted that there had been a breach of Article 6 of the European Convention on Human Rights. The procurator fiscal depute, on the other hand, stated that the information bearing upon the appellant's record had been volunteered by the witness and not in any way elicited by the Crown.

[4] In the stated case the sheriff made the following observations:

[5] Section 166(1)-(3) of the 1995 Act is in the following terms:

[6] Mr. Wheatley, who appeared on behalf of the appellant, submitted that there had been a breach of section 166(3) and also a breach of Article 6 of the European Convention. The sheriff had erred in continuing with the trial after the appellant's previous conviction had been disclosed to him and there had been a miscarriage of justice. The breach of section 166(3) had occurred because the procurator fiscal depute had twice raised the issue as to whether the appellant had been disqualified from driving. Mr. Wheatley stated that he was unable to contend that the procurator fiscal depute had deliberately elicited the evidence about the appellant's conviction, but he submitted that there had been negligence on her part as she knew the factual position, having had a police statement in front of her, and she should have proceeded more carefully, particularly in view of the fact that credibility was an issue in the case as the appellant's position was that he had not been driving the car on the date of the alleged offence. However, Mr. Wheatley did concede that, as the precise wording of the questions put by the procurator fiscal depute to P.C. Clark were not known, it might be difficult for the court to hold, on the basis of the information contained in the stated case, that there had been a breach of section 166(3). However, the fact that the appellant had a previous conviction under the Road Traffic Act did emerge in the course of P.C. Clark's evidence. That had created a situation where a reasonable observer would have realised that the sheriff knew that the appellant had a previous conviction and would have suspected that that would adversely affect his assessment of the appellant's credibility with the result that the appellant would not receive a fair trial. In the circumstances justice had not been seen to be done and, as the trial had proceeded to a conclusion, there had been a miscarriage of justice (McKee v. Browne 2001 S.C.C.R. 6). The sheriff should have deserted the diet so that a trial before another sheriff could take place. This was not a case where the sheriff could properly have decided to disregard the conviction. In the circumstances there had been a miscarriage of justice.

[7] In reply, the advocate depute submitted that it had not been established that there was a breach of section 166(3). The sheriff had stated that the evidence relating to the previous conviction had not been elicited by the procurator fiscal depute deliberately, and on the basis of the information contained in the stated case it could not be inferred that it was elicited carelessly. The second issue was whether, the evidence about the conviction having come out, it could properly be said that the appellant could not receive a fair trial and that any conviction would constitute a miscarriage of justice. The sheriff had stated that he had ignored the reference to the previous conviction and that had been a perfectly proper course for him to take (Carmichael v. Monaghan 1986 S.C.C.R. 598; Kerr v. Jessop 1991 S.C.C.R. 27 and MacLean v. Buchanan 1997 S.L.T. 91), particularly having regard to the nature of the conviction which did not relate to dishonesty. The sheriff had been entitled to proceed with the trial and there had been no miscarriage of justice.

[8] In our opinion the submissions of the advocate depute are well-founded. The sheriff heard the evidence and informs us that the evidence relating to the previous conviction was not deliberately elicited by the procurator fiscal depute, and Mr. Wheatley was unable to present an argument to the contrary. While he submitted that the procurator fiscal depute had been negligent or careless in her questioning of P.C. Clark, the difficulty for the appellant is that while the stated case contains the evidence given by P.C. Clark, it does not specify what questions were put to him other than that he was asked what had taken place in Timmons Park when the appellant was detained there in the evening. In the circumstances we do not consider that it has been established that the prosecutor laid the conviction before the court and that there was a breach of section 166(3). However, it was clear that evidence was given by P.C. Clark which showed that the appellant had a previous conviction under the Road Traffic Act, and it was submitted on behalf of the appellant that as a result of that disclosure the appellant could not receive a fair trial. The sheriff stated that he ignored the reference to a previous conviction. Whether a sheriff can properly disregard evidence which should not have been before him, and proceed with the trial, must depend on the nature of the evidence. The evidence in this case demonstrated that the appellant had been convicted of some type of road traffic offence, not an offence of dishonesty. Even though the credibility of the appellant was in issue, we are satisfied that in the circumstances of this case the evidence of the conviction was a matter which the sheriff was entitled to disregard, and should certainly have been able to put out of his mind. While justice must not only be done but must also be seen to be done, we have reached the conclusion that the course taken by the sheriff was correct, that he was entitled to proceed with the trial and, on the evidence before him, convict the appellant and that there was no miscarriage of justice.

[9] We shall answer all four questions in the affirmative and refuse the appeal.