APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal Nos: XJ1986/03
OPINION OF THE COURT
delivered by LORD MARNOCH
SCOTT ROBERT MORTON MILLER and AGNES MILLER
PROCURATOR FISCAL, Falkirk
Appellants: P. Wheatley, Solicitor Advocate; Wheatley & Co.: C. Shead; Wheatley & Co.
Respondent:Ms. D. Bain, A.D.; Crown Agent
3 August 2004 In each of these Stated Cases the prosecution of the appellant for a breach of section 5(1)(a) of the Road Traffic Act 1988 followed on the vehicle in question having been stopped in the course of a random check of vehicles by the police. The purpose of the checks was variously described by the police officers concerned, but it was common ground amongst three out of four of them that the check in question was directed generally to crime prevention and detection, including road traffic offences, whereas the fourth officer spoke only to the check being directed to road traffic offences. There was also reference by one officer to a lot of crime occurring in the early hours of the morning when, in each case, the random check was conducted. Whatever else, there is no dispute that in each case a random check was being carried out and this was said to amount to a "whim" or "caprice" on the part of the police, thus taking their actions outwith the proper ambit of section 163 of the Road Traffic Act 1988 and distinguishing the cases from Stewart v. Crowe 1999 S.C.C.R. 327.  In our opinion, however, and in agreement with the reasoning of the sheriff in each case, it is in a sense the random nature of the check which prevents the actions of the police being seen as motivated by whim or caprice. As it was put in Stewart v. Crowe (at p. 329)
"The randomness of what was done obviously distinguishes the case from situations where a particular person is stopped for reasons particular to himself".
In that case, of course, there was reference to a Christmas "campaign" by the police but what seems to us to be important is that in the instant cases, just as much as in Stewart v. Crowe, what was done by the police constituted a systematic approach to the prevention and detection of criminal offences in general. In that respect the instant cases are, we think, also indistinguishable from Steel v. Goacher  R.T.R. 98. A further argument was presented to the effect that section 163 should in any event be construed differently in light of the incorporation into domestic law of Article 8 of the European Convention on Human Rights. In our opinion, however, the meaning given to section 163 in Stewart v. Crowe is entirely compatible with Article 8(2) of the Convention in that, as so construed, that section represents a necessary and proportionate response by Society in its attempt, inter alia, to prevent the commission of crime. Further, we are quite satisfied that, as so construed, section 163 is sufficiently clear and understandable to meet the test of "legality".  For the foregoing reasons we are of opinion that the random stopping of the vehicles in question was within the ambit of section 163 of the 1988 Act and, in that situation, it was accepted that on the findings in each case the police officers concerned were well entitled to embark on the statutory procedures which led to the respective convictions of the appellants. These appeals must therefore be refused.