Scottish High Court of Justiciary Decisons

1. The appellant was charged on a summary complaint containing two charges. The first alleged that on 4 September 1998 he drove a motor car dangerously and at an excessive speed, reaching 72 mph, on Dundee Road, near its junction with Branklyn Gardens, Perth, contrary to section 2 of the Road Traffic Act 1988. The second charge was a charge of contravention of sections 81 and 89 of the Road Traffic Regulation Act 1984, depending upon the same narrative of facts. The appellant pled not guilty to both charges and went to trial on 29 June and 13 July 2000. On the latter date, the sheriff found the appellant guilty of both charges. On the first, he fined the appellant £200, disqualified him from driving for one year and imposed a requirement to sit the extended driving test. On the second charge, the appellant was fined £100 and his licence was endorsed. The appellant appeals by stated case against his conviction on both charges. The advocate depute conceded that in the particular circumstances there was duplication between the two charges and that the conviction on the second charge should be quashed. The issue, therefore, in this appeal relates only to the section 2 charge.
2. The Crown led the evidence of two police constables who carried out a radar speed trap at 9 p.m. on 4 September 1998 at the locus. The first constable, P.C. Warmer, described the radar gun in use and its manner of operation and the testing done to ensure its accuracy. He said that they had tested the gun, which was the Muniquip type, at the start of their tour of duty at 3 p.m. P.C. Warmer described using the radar gun by pointing it at the vehicle and reading the speed for three seconds before pressing a locking trigger. There was no other vehicle on the road at the locus at that time. The constables then pursued the vehicle driven by the appellant, and stopped him after about a half mile. Constable Warmer described the road at the locus as a two-lane carriageway in a built-up area of houses and other buildings, with a pavement on each side. He said that there is a side road which leads onto Dundee Road at the locus and on the north side there are lock up garages which lead directly on to the pavement adjoining the road. Shortly after the locus the road goes into a series of sharp bends before straightening out before the junction with the dual carriageway a short distance away. It was dark at the time and street lights were on but the weather conditions were fair and the road was dry.
3. That is the narrative of the evidence of one constable, as given by the sheriff. According to the sheriff, the other constable, P.C. Martin, gave evidence only about the locus and road conditions, the speed of the appellant's vehicle and the subsequent pursuit. The sheriff then says:

"Both from the sound of the appellant's vehicle and from his first sight of it, P.C. Martin was convinced that the vehicle was travelling at an excessive speed. He watched P.C. Warmer operate the radar gun and described how the gun was pointed at the vehicle, the reading displayed and how the locking trigger was used. The reading which he saw was 72 mph as previously described by P.C. Warmer. He repeated what P.C Warmer had said about the road and the road conditions and the pursuit."

4. At the conclusion of the Crown case, the appellant's solicitor submitted that there was no case to answer. The sheriff repelled that submission. The points made in the submission mirror the submission in this appeal and the sheriff deals with each of them in his note. However, when the matter was before the sheriff the position was complicated because of the presence of the second charge. There was, as a result, some discussion of the effect of section 20(6) of the Road Traffic Offenders Act 1988, which permits speed to be proved by the production of a certificate, in certain circumstances, and also of the question whether it was necessary to prove that the Secretary of State had approved the device. Neither of these issues arises in relation to the charge under section 2. We do not, therefore, require to decide all the submissions made to the sheriff and his reasoning upon them. It is sufficient to note that a submission was made that neither charge could be established without corroborated evidence of the speed of the appellant's vehicle. The sheriff says that he agreed with that view and he decided that there was such evidence. His reason for saying so was that both constables spoke to the reading on the device and that, in his opinion, the accuracy of the device was sufficiently proved by the evidence of P.C. Warmer as to the testing of the device at the beginning of the shift. On that basis, the sheriff found that it was established as a fact that the speed of the vehicle, when observed by the constables, was 72 mph. The locus was subject to a 30 mph speed limit. He accepted, and repeated in his findings, what had been said in evidence about the nature of the locus and on that basis held that the charge of dangerous driving had been established.
5. In presenting the argument for the appellant, Mr. Shead accepted that proof by corroborated evidence of the precise speed of a vehicle was not necessary to establish a charge of dangerous driving under section 2: indeed such a charge might be established by suitable evidence, even on the basis of broad estimates of speed. He submitted, however, that in the present case proof of the actual speed was essential to the conclusion that there had been dangerous driving. Since there was no corroboration of the accuracy of the device at the material time, P.C. Warmer's evidence stood alone as evidence of the actual speed. If the findings were examined there was nothing in them to support the conclusion that the driving of the vehicle must have been dangerous from any other point of view. The advocate depute, on the other hand, submitted that there was sufficient evidence of the speed of the vehicle and, in any event, that the evidence of the constables based on their assessment of the driving of the vehicle and P.C. Warmer's evidence as to the accuracy of the device was sufficient to entitle the sheriff to hold the charge proved.
6. In our opinion, it is clear that if proof of the precise speed at which a vehicle was travelling were necessary in order to prove the commission of an offence and if that proof was offered by reference to a device such as the radar gun, then corroborated evidence of the accuracy of the device would be necessary to establish the charge. However, for the purposes of a charge under section 2, it is not necessary, as Mr. Shead acknowledged, to prove the actual speed. It is sufficient if there is acceptable evidence to prove that the vehicle was driven in a manner and at a speed dangerous in the particular circumstances. In the present case there was evidence from P.C. Warner that the speed had been measured, by a device which he had tested and found accurate, at 72 mph. That clearly constituted one source of evidence from which the sheriff might be entitled to conclude that the car was driven dangerously. Driving at a high speed is not necessarily in itself dangerous, even in an area of restricted speed limit, but the evidence of a speed of 72 mph in a 30 mph area, taken with the other evidence as to the nature of the locus clearly would entitle a sheriff to draw that conclusion, if he thought fit. The question, therefore, is whether the evidence of the second police constable was sufficient to corroborate that of the first constable. Constable Martin evidently gave evidence that he was convinced from his observation of the vehicle that it was travelling at an excessive speed. He also reached that conclusion from the sound of the appellant's vehicle. The description of speed as excessive is perhaps capable of being regarded as ambiguous. In some circumstances, a speed of 40 or even 35 mph, exceeding a speed limit of 30 mph, might be described as excessive. However, it was for the sheriff to interpret the evidence which he heard and in the whole circumstances, and having regard to the fact that P.C. Martin observed the reading taken by P.C. Warner, although he was not able to speak to the accuracy of the device, the sheriff was, in our opinion, entitled to interpret P.C. Martin's evidence as supporting the conclusion that the speed was excessive, in the appropriate sense relative to the charge.
7. In the whole circumstances, therefore, we are of opinion that the sheriff was entitled to convict the appellant of charge 1. We shall therefore answer the first question in the case in the affirmative. We shall answer the second question in the affirmative in relation to charge 1 and in the negative in relation to charge 2. The third question relates to the imposition of the sentences and does not arise in view of the concession made by the Crown.