02 March 2004
At advising on 2 March 2004 —
Lord Marnoch —
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 11.30 pm PC Henry Dey, now aged 44 with 23 years of police service and Sergeant Norman Harvey, now aged 52 and retired with 30 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 Vauxhall 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 50mph. 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 40–60 mph. 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'.
Lord MacFadyen —
'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?'
Temporary Judge Nicholson —
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