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Cite as: [2004] ScotHC 17

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Brewster v. Procurator Fiscal [2004] ScotHC 17 (26 February 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Marnoch

Lord Abernethy

C G B Nicholson, QC

XJ159/03

OPINION OF THE COURT

delivered eo die by

THE RT. HON. LORD MARNOCH

in

STATED CASE

by

ALEXANDER JAMES BREWSTER

Appellant

against

PROCURATOR FISCAL, INVERNESS

Respondent

_____________

Act: McKenzie; Drummond Miller

Alt: Murphy, QC, AD, Crown Agent

26 February 2004

[1] The appellant was convicted of a charge that on 21 March 2002 on the A96 Inverness to Aberdeen road at Balloch Junction he drove a mechanically propelled vehicle, namely a motor van, without reasonable consideration for other persons using the road and he allowed the vehicle being towed by him to move from side to side hitting the verge and going up to the centre line of the road: all contrary to the Road Traffic Act 1988, section 3 as amended.

[2] The vehicle being driven by the appellant was a breakdown vehicle and the vehicle being towed by him had its own driver in the form of a Mr Hastings. The method of towing consisted of a single rigid towbar stretching between the centre rear of the towing vehicle and a towing eye in the front offside bumper of the towed vehicle. The evidence was, and the sheriff finds, that this method of towing was liable to cause some amount of swaying in the towed vehicle which could, however, be counteracted to some extent by the driver of the towed vehicle, Mr Hastings. The essential Findings in Fact on this matter are numbers 13-16 inclusive in the Stated Case which are in the following terms:

"13. The appellant ought to have adopted a method of towing which used an A-frame so called because the frame resembles the capital letter "A". The A-frame is a metal frame like an isosceles triangle whose apex is attached to the towing bracket at the rear centre of the towing vehicle and whose base at each side is attached to the front nearside and front offside. This results in a straight pull by the towing vehicle and not an angled pull as in the method adopted by the appellant.

14. Use of an A-frame would have prevented the swaying from side to side of the towed vehicle. Some of the swaying of the towed vehicle may have been caused by Mr Hastings' hopeless efforts to control his car as it was being towed by the recovery vehicle driven by the appellant.

15. The cause of the towed vehicle swaying from side to side was to a great extent the method of towing adopted by the appellant. Some of the swaying was probably caused by the ineffectual efforts of Mr Hastings to control the swaying of his car by using the steering wheel of his vehicle.

16. The appellant was in a substantial sense controlling the movement and the direction of the unit consisting of the towing vehicle joined to the towed vehicle by a rigid metal towbar."

[3] Miss McKenzie, Advocate, who appeared for the appellant, submitted that Findings 14 and 15 were unsatisfactory due to the vagueness of their terms in regard to what was said to be a critical matter, namely the extent to which the swaying was caused by Mr Hastings as opposed to by the appellant. She also submitted that the sheriff should have concentrated more on whether, having regard to the method of towing actually used, there was a lack of consideration for other road users, rather than on the idea that that method should never have been employed in the first instance.

[4] We do have some sympathy with these submissions. It does appear that the gravamen of the charge related to the extent to which swaying was allowed to take place and that this was a matter to be considered having regard to the actual method of towing which was used, as also to the extent of the contribution made to the swaying by Mr Hastings. In the end, however, we feel bound by the terms of Finding in Fact 16 which is to the effect that the appellant was in a substantial sense controlling the movement and direction of the unit consisting of both the towing and towed vehicles. There is no suggestion that he was unaware of the problems encountered by the towed vehicle and, indeed, the Application for a Stated Case narrates, in terms, that he was aware of that problem. In these circumstances we have decided that, despite Miss McKenzie's submissions, this appeal must be refused. We shall accordingly answer Question 1 in the negative and Questions 2 and 3 in the affirmative.

ES

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