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Ballantyne & Anor v. Procurator Fiscal [2004] ScotHC 18 (02 March 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Marnoch

Lord Macfadyen

C G B Nicholson, QC

XC116/02 and XC117/03

OPINION OF LORD MARNOCH

STATED CASES

in the causes

NORMAN McDERMOTT HUNTER

First Appellant

against

PROCURATOR FISCAL, ABERDEEN

Respondent

and

ANDREW BALLANTYNE

Second Appellant

against

PROCURATOR FISCAL, ABERDEEN

Respondent

Act: Ms McKenzie (for First Appellant), Gilchrist (for Second Appellant); Drummond Miller, WS

Alt: Mitchell, Crown Agent

2 March 2004

[1] The appellants, as co-accused, were convicted of the charge that:-

"On 25 May 2001 on a public way, namely Sea Beach Esplanade, Aberdeen, they did promote or take part in a race or trial of speed between motor vehicles, namely motor car registered number M574 HGB and motor car registered number A18 NOM; CONTRARY to the Road Traffic Act 1988, section 12(1)".

[2] They now appeal against that conviction.

The findings in fact are in relatively short compass and, in the case of the First Appellant, are as follows:-

"(1) On 25 May 2001 around 11.30pm P.C. Henry, now aged 44 with twenty three years of police service and Sergeant Norman Harvey, now aged 52 and retired with thirty years police service, were on traffic duty and were parked in a marked police car, facing west on Sea Beach Esplanade, Aberdeen, near to the Beach Boulevard.

(2) The officers had checked that the speedometer on their vehicle was calibrated when they went on shift that night.

(3) The weather was fine and the Beach Boulevard and Sea Beach Esplanade are lit by street lighting up to the point where the Ice Arena is situated on Sea Beach Esplanade.

(4) The officers saw a red Ford Escort registered number A18 NOM and a blue Vauhall Corsa number M574 HGV drive along Beach Boulevard and turn left into Sea Beach Esplanade. The speed limit at that point on the Sea Beach Esplanade is 15 mph. It rises to 30 mph at around the exit to an accommodation road which leads to Pitoddrie football ground.

(5) They observed both cars drive along the Sea Beach Esplanade up to a roundabout near to the Beach Ballroom, both at speeds around 50 mph. The red Escort preceded the Corsa as they exited from the roundabout and up to the exit to the Ice Arena on the left, then the two cars drove parallel to each other with the Corsa offside the Escort - that is the Corsa on the right hand carriageway.

(6) The officers observed both drivers driving at speeds from between 40-60mph. They observed both drivers driving for short distances abreast of each other then one slowing down to drive behind the other then speeding up again to overtake the other so that at times the Escort was in front and at times behind, and the driver of the Corsa doing the same. The driving abreast, one slowing down and then speeding up and then the other and vice versa happened at least twice on the straight stretch of Sea Beach Esplanade for a distance of over half a mile.

(7) Sea Beach Esplanade bends sharply to the left near to its north end and then runs from west to east. The officers observed the Escort slowing down considerably as he came up to the bend while the Corsa continued on round that bend. PC Dey slowed his vehicle down to around 35 mph and followed the cars round the bend and overtook the Escort. He tried to match the speed of the Corsa but required to slow at the sharp bend as the Corsa continued PC Dey activated the blue flashing lights and siren on his vehicle and followed the Corsa. The driver of the Corsa stopped. The Escort drew up behind the police vehicle and PC Dey stopped the driver of it.

(8) The co-accused was the driver of the Corsa and the front seat passenger was Scott Morrison.

(9) The appellant was the driver of the Escort and there was a female front seat passenger.

(10) Sergeant Harvey spoke to the co-accused who was still in the driving seat of the Corsa, while PC Dey stood beside him, and after charging him with a contravention of section 12 of the Road Traffic Act 1988 ('the Act') both officers spoke to the appellant. They asked for his details, PC Dey warned him in terms of section 1 of the Act and thereafter cautioned and charged him with a contravention of section 12 to which the appellant replied 'I was just being stupid. I don't know why. I apologise for being stupid. I did not mean to be dangerous'.

(11) On 12 June 2001 Scott Morrison gave a statement to the police about the incident in which he said that the co-accused and the appellant were racing their cars by speeding up and slowing down. He told the police the truth.

(12) As result of their observations both officers formed the opinion that the appellant and the co-accused were racing each other.

(13) By driving as narrated in finding in fact 6 the appellant was taking part in a race with the co-accused on Sea Beach Esplanade on 25 May 2001 around 11.30pm".

In the case of the Second Appellant the findings are identical except for findings 8, 9 and 10 which, for him, read as follows:-

"(8) The appellant was the driver of the Corsa and the front seat passenger was Scott Morrison.

(9) The co-accused was the driver of the Escort and there was a female front seat passenger.

(10) Sergeant Harvey spoke to the appellant who was still in the driving seat of the Corsa, while PC Dey stood beside him, and after charging him with a contravention of section 12 of the Road Traffic Act 1988 ('the Act') he replied 'All I can say is I didn't realise I was being so stupid'. Both officers thereafter spoke to the co-accused".

[3] The argument for the appellants was that before there could be a "race or trial of speed" within the meaning of the Section there had to be some element of competition or, to put the matter otherwise, some objective which would produce a "winner". These criteria were not met, so it was said, by the finding or findings that, as these vehicles progressed along the Sea Beach Esplanade in the manner described by the sheriff, the vehicle at any one point being overtaken slowed down while the other speeded up to overtake. It would have been different if the vehicle from time to time being overtaken had accelerated but that was not the position in the present case.

[4] In my opinion the submissions advanced on behalf of the appellants and, in particular, the purported distinction for which they contended involved a narrow and highly technical approach to the construction of the Section in question which, in the context of the Section, is simply not justified. As has already been made clear by this Court in Ferrari v McNaughtan 1979 S.L.T.(Notes) 62 the "race or trial of speed" envisaged by the Section is something which requires no antecedent arrangement and in my opinion it is equally something which, particularly in its early stages, may take many different forms.

[5] In the present case, Findings in Fact nos. 4 and 5 tell us that both vehicles were driving at speeds of around 50 mph at points on the Sea Beach Esplanade where the speed limit was 15 mph rising to 30 mph. Finding in Fact 6 then tells us, amongst other things, that, while the vehicles were driving for short distances abreast of each other, the speeds were between 40-60 mph. These findings on their own satisfy me that in this case the Sheriff was well entitled to take the view that some form of racing or trial of speed was taking place as between the two appellants. So far as the finding or findings about slowing down are concerned, "jockeying for position", a comparison between the respective speeds of acceleration and the goading of the other driver to greater speeds are, it seems to me, all possibilities. Alternatively, the overtaken vehicle may have slowed down simply in the interests of relative safety. It is, however, in my opinion quite unnecessary to reach a concluded view on any of these matters, it being sufficient to say - as, indeed, I have already said - that the learned sheriff, who heard the evidence, was well entitled to conclude that the appellants were taking part in some form of race or trial of speed. In taking that view she was fortified not only by the impression of the two reporting police officers but also by the evidence of Scott Morrison who was a passenger in one of the vehicles and who apparently gave evidence to the effect (Finding 11) that the appellants "were racing their cars by speeding up and slowing down".

[6] In all the foregoing circumstances my motion to your Lordships would have been that we answer the first question in the Stated Case in the negative and the second question in the affirmative. Since, however, I understand that I am in a minority on this matter these questions must be answered differently, the appeal allowed and the convictions of each appellant quashed.

Ballantyne & Anor v. Procurator Fiscal [2004] ScotHC 18 (02 March 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Marnoch

Lord Macfadyen

C G B Nicholson Q.C.

XC116/02 and XC117/03

OPINION OF LORD MACFADYEN

STATED CASES

in the causes

NORMAN McDERMOTT HUNTER

First Appellant;

against

PROCURATOR FISCAL, ABERDEEN

Respondent;

and

ANDREW BALLANTYNE

Second Appellant;

against

PROCURATOR FISCAL, ABERDEEN

Respondent;

______

Act: McKenzie (for First Appellant), Gilchrist (for Second Appellant); Drummond Miller, W.S.

Alt: Mitchell; Crown Agent

2 March 2004

[7] The appellants, Norman McDermott Hunter and Andrew Ballantyne, were charged together that:

"on 25 May 2001 on a public way, namely Sea Beach Esplanade, Aberdeen [they] did promote or take part in a race or trial of speed between motor vehicles ... contrary to the Road Traffic Act 1988, section 12(1)".

Originally they each faced in addition a separate charge of contravening section 2 of the same Act by driving a mechanically propelled vehicle dangerously in that they caused their respective vehicles "to persistently travel at excessive speed". The charges under section 2 were, however, deserted pro loco et tempore.

[8] After trial the Sheriff convicted both appellants of the contravention of section 12(1). The contention which was advanced before us on behalf of both appellants was that the circumstances, as found by the Sheriff, did not justify the conclusion that they were taking part in a "race".

[9] Your Lordship in the Chair has set out the Sheriff's findings in fact, and it is therefore unnecessary for me to repeat them. It seems to me that the critical findings are findings 5, 6 and 7, although account also, in my view, requires to be taken of finding 10 in each case (which sets out the replies made by the appellants to caution and charge), of finding 11 (which refers to the statement of the appellant Ballantyne's passenger, Scott Morrison), and of finding 12 (which sets out the opinion formed by the police officers who observed the appellants' driving).

[10] The questions stated by the Sheriff for the opinion of this Court were:

"1. Did I err in making finding in fact number 13?

2. On the facts admitted or proved was I entitled to convict the appellant?"

[11] Section 12(1) of the Road Traffic Act 1988 provides as follows:

"A person who promotes or takes part in a race or trial of speed between motor vehicles on a public way is guilty of an offence."

It is not disputed that Sea Beach Esplanade is a public way within the meaning of the section.

[12] In my opinion the question whether the conduct of the appellants, as described in the Sheriff's findings-in-fact, amounted to a contravention of section 12 is a matter for the court. Neither the statement of Stuart Morrison nor the opinion expressed by the police officers is in my view conclusive on that issue. The word "race" must, in my opinion, be given its ordinary meaning in the English language, and it is for this court, in the light of the Sheriff's findings of primary fact, to determine whether the appellants were racing. That being so, I do not find it surprising that we were referred to no authority on the meaning of the section (except on the point that there is no need for proof of a prior arrangement to race: Ferrari v McNaughtan 1979 SLT (Notes) 62).

[13] In my opinion, the ordinary meaning of the word "race" connotes a competition as to speed. The alternative provided for in the section - a "trial of speed" - is in my opinion concerned with the situation where the participants compete as to speed, not directly against each other as in a race, but "against the clock". There is no suggestion that what was taking place in the present case was a "trial of speed" in that sense.

[14] In my opinion the findings-in-fact on which the Sheriff relied - primarily finding-in-fact 6 - do not support the conclusion, expressed in finding-in-fact 13, that the appellants were racing. It seems to me that the finding that each car at times, having been travelling in parallel with the other, slowed down and fell behind the other, is difficult to reconcile with the concept of a race. In the course of argument it was suggested to us that such slowing down might be a tactical part of racing, but while that may be so in foot races between human beings where it may be tactically desirable to tire out an opponent by forcing him to set the pace, it seems to me that no such consideration arises in races between vehicles where fatigue is not an element in the competition. I have no doubt that the findings justify the conclusion that the appellants were engaged in some form of jockeying for position, but I am of opinion that there may be various explanations for what they were doing, and that it cannot, without speculation, be said to have amounted to racing, as that expression is ordinarily understood.

[15] Section 12 makes it an offence not only to take part in a race, but also to "promote" a race. I accept that one driver may attempt to provoke another into a race, in circumstances in which he would thereby be guilty of seeking to "promote" a race. I do not consider, however, that the Sheriff's findings are sufficient to convict either appellant on the basis that he was promoting a race. I do not consider that it is possible to find each of two drivers simultaneously guilty of "promoting" a race by attempting to provoke the other into a race. There is nothing to indicate that one of the appellants was trying to provoke the other into a race. In any event, the Sheriff did not proceed on the basis that there was promotion of a race. Her verdict was based on the finding that a race was actually occurring. For the reasons which I have given, I do not consider that the findings in fact are sufficient to support such a conclusion.

[16] I have no doubt that the conduct of both appellants was reprehensible and dangerous. They each rightly recognised, in their answers to caution and charge, that their behaviour was stupid. Indeed, if they had been charged with contravening section 2 of the Road Traffic Act 1988 on a libel which, in addition to referring merely to speed, as the charges which the Crown deserted did, referred also to the manoeuvring and jockeying for position described in finding-in-fact 6, I am of opinion that a conviction in respect of that charge could well have been justified. It is therefore not to be supposed that, in holding that the appellants were not guilty of racing in contravention of section 12, I am in any way condoning their behaviour.

[17] In the event, however, I find that I am unable to agree with your Lordship in the Chair. I am of opinion that the Sheriff's findings of primary fact do not justify the conclusion expressed in finding-in-fact 13, namely that the appellants were at the material time taking part in a race in contravention of section 12(1). I would therefore propose that question 1 in each of the stated cases be answered in the affirmative, and question 2 in the negative, and would therefore allow the appeals and quash the conviction of each appellant.

Ballantyne & Anor v. Procurator Fiscal [2004] ScotHC 18 (02 March 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Marnoch

Lord Macfadyen

Temporary Judge C.G.B. Nicholson, C.B.E., Q.C.

.XC116/02 and XC117/03

OPINION OF TEMPORARY JUDGE NICHOLSON

STATED CASES

in the causes

NORMAN McDERMOTT HUNTER

First Appellant;

against

PROCURATOR FISCAL, ABERDEEN

Respondent;

and

ANDREW BALLANTYNE

Second Appellant;

against

PROCURATOR FISCAL, ABERDEEN

Respondent;

Act: Ms McKenzie (for First Appellant), Gilchrist (for Second Appellant); Drummond Miller, W.S.

Alt: Mitchell A.D.; Crown Agent

2 March 2004

[18] I have had the advantage of reading in draft the opinions to be delivered by Lord Marnoch and by Lord Macfadyen in relation to these appeals, and I find myself

in complete agreement with what is said by Lord Macfadyen in his opinion. In my opinion a "race" connotes some sort of contest in which each of the contestants is endeavouring to travel as quickly as possible and to outstrip the other or others. In the present case the appellants are found to have been travelling at speeds of between 40 and 60 mph. Such speeds undoubtedly exceeded the permitted limit at the locus in question, but I venture to think that they were considerably lower than could have been possible in the vehicles concerned. Moreover, the sheriff has found that, in the course of the manoeuvres which were observed by the Police witnesses, each driver was from time to time slowing down in order to enable the other one to overtake or to drive abreast. Such conduct appears to me to be entirely inconsistent with the concept of a "race" as I have endeavoured to describe it. I, of course, agree entirely with Lord Macfadyen that the conduct of both appellants was reprehensible and dangerous; and, had they been appropriately charged with a contravention of section 2 of the Act, it is unlikely that they would have had any answer to such a charge. In the circumstances, however, I do not consider that they were properly convicted of a contravention of section 12.

[19] For the foregoing reasons I agree that question 1 in each of the stated cases should be answered in the affirmative, and question 2 in the negative, with the consequence that the appeals should be allowed and the conviction of each appellant quashed.