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Cite as: [2005] ScotHC HCJAC_136, [2005] HCJAC 136

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Procurator Fiscal v. Klos [2005] ScotHC HCJAC_136 (01 December 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Johnston

Lord Mackay of Drumadoon

C.G.B. Nicholson, CBE, QC,

[2005HCJAC136]

Appeal No: XJ1237/05

OPINION OF THE COURT

delivered by C.G.B. NICHOLSON, CBE, QC

APPEAL

STATED CASE

in the cause

PROCURATOR FISCAL, Kirkcaldy

Appellant;

against

RONALD KLOS

Respondent:

_______

Appellant: B. McConnachie, Q.C., A.D.; Crown Agent

Respondent: J. Gilchrist; Beaumont & Co., Edinburgh

1 December 2005

Background
[1] This is a Crown appeal, by way of Stated Case, against verdicts of not guilty which were returned by the sheriff at Kirkcaldy in respect of four charges on a complaint against the respondent. The circumstances giving rise to those verdicts are as follows.

[2] Towards the end of 2004 the respondent was served with a complaint containing four charges. They were -

"(001) on 2 May 2004 on a road or other public place, namely the eastbound carriageway of the A92 between Kirkcaldy West interchange and the Redhouse roundabout, Fife, you ... did drive a mechanically propelled vehicle, namely motor car registered number 15 RK dangerously in that you did drive same at 156 miles per hour; CONTRARY to the Road Traffic Act 1988, section 2 as amended

or alternatively

on [said date and at said locus] being a dual carriageway road in terms of Article 2(c) of the aftermentioned Order, you ... did drive [said motor vehicle] at a speed exceeding 70 miles per hour, namely at a speed of 156 miles per hour; CONTRARY to the 70 miles per hour, 60 miles per hour and 50 miles per hour (Temporary Speed Limit) Order 1977 Article 2(c) continued in force by the 70 miles per hour, 60 miles per hour and 50 miles per hour (Temporary Speed Limit) (Continuation) Order 1978 and the Road Traffic Regulation Act 1984 Sections 88 and 89

(002) on [said date and at said locus] you ... did contravene or fail to comply with a construction and use requirement other than a requirement specified in sections 41A(a) or 41B(1)(a) of the aftermentioned Act in respect of a motor vehicle, namely motor car registered number 15 RK in that you did use a handheld mobile phone while driving; CONTRARY to the Road Vehicles (Construction and Use) Regulations 1986 Regulation 110(1) and the Road Traffic Act 1988, Section 42(a)

(003) on [said date and at said locus] you ... did drive a motor vehicle, namely motor car registered number 15 RK while the registration mark was not fixed on said vehicle as required by Section 23 of the aftermentioned Act in that the correct registered number of SP04YTD was not displayed to the front and rear; CONTRARY to the Vehicle Excise and Registration Act 1994, Section 42

(004) on 5 May 2004 at the premises FFDR Ltd & Subsidiary Companies, 22 Bank Street, Lochgelly, Fife you ... being the person keeping a motor vehicle, namely motor car registered number 15 RK, and the driver of said motor vehicle being alleged to be guilty of an offence to which the aftermentioned Section applies, namely a contravention of Section 2 of the Road Traffic Act 1988 which occurred at about 0845 hours on 2 May 2004 [at the locus referred to above] did fail to give such information as to the identity of the driver of said vehicle as you were required to give by 209 Jackson a Constable of Fife Constabulary on behalf of a Chief Officer of Police, namely the Chief Constable of said Fife Constabulary; CONTRARY to the Road Traffic Act 1988 Section 172(2)(a) and (3)."

[3] On 20 October 2004 the respondent tendered pleas of not guilty to the foregoing charges, and the trial commenced on 21 April 2005. It was not completed on that date, and it continued on 1 June 2005. On that date the Crown evidence was concluded, and there was a submission of no case to answer in respect of charges 1, 2 and 3. That submission was repelled by the sheriff. After some further evidence the trial was again continued. The evidence was subsequently concluded on 8 June 2005 and the sheriff thereupon found the respondent not guilty of all four charges.

[4] It appears from what the sheriff says in the Stated Case that the respondent's evidence at the trial was that he had not been the driver of the car at the time and place in question. However, the sheriff clearly rejected that evidence, and his findings in fact are to the effect that the respondent drove his car on the date and at the locus libelled at the speed set out in the complaint. Those findings by the sheriff are not now challenged. The sheriff has also found that, while driving the vehicle at that speed, the respondent was holding a mobile telephone to his left ear with his left hand (with the consequence that he was steering the car with only one hand on the steering wheel). The sheriff has found that the respondent drove the vehicle at the speed libelled on a stretch of road where the speed limit was 70 miles per hour, and that he drove the vehicle along a lengthy right hand bend in the road. He found, as facts, that the respondent appeared to have full control of the vehicle at all times and that, on the video which recorded the incident, the respondent was seen to pass one other vehicle.

[5] In relation to charge 3 on the complaint the sheriff found that the respondent had purchased the vehicle, which had an original registration plate SP04 YTD, from a dealer in Dundee, who had delivered it to him bearing the personalised registration plate 15 RK. The sheriff states that the respondent understood that in those circumstances matters were in order with DVLA. In relation to charge 4 the sheriff has found that a requirement under section 172 of the Act was made of the respondent on 4 May 2004 but not on 5 May, the latter being the date libelled in the charge and also being the date when the respondent was cautioned and charged.

[6] Despite rejecting the respondent's evidence that he had not been the driver of the vehicle at the relevant time and place, the sheriff did accept his evidence to the effect that he had not received a notice of intended prosecution in respect of certain of the alleged offences and that he had not been served with a complaint within fourteen days of their commission. These are requirements which are set out in section 1 of the Road Traffic Offenders Act 1988. The procurator fiscal was unable to produce any documentation to counter the respondent's evidence on that matter, and she therefore accepted that charge 1 on the complaint (under both alternatives) must fall. However, she then moved the sheriff to convict the respondent on a common law charge of culpable and reckless conduct. In making that motion the procurator fiscal sought to rely on the provisions of paragraph 14 of Schedule 3 to the Criminal Procedure (Scotland) Act 1995 which is in the following terms -

"Where -

any act alleged in an indictment or complaint as contrary to any enactment is also criminal at common law; or
where the facts proved under the indictment or complaint do not amount to a contravention of the enactment, but do amount to an offence at common law,

it shall be lawful to convict of the common law offence."

As an example of the operation of the foregoing provision the procurator fiscal referred the sheriff to Horsburgh v. Russell 1994 SLT 942; 1994 SCCR 237. It appears that she accepted that, in order to invoke the provision, the Crown would require to give notice to the respondent of the salient facts which could establish a charge of culpable and reckless conduct. She submitted that the content of charges 1 and 2 in the present complaint could amount to the provision of such notice, consisting of the motor vehicle being driven at 156 miles per hour, while the driver was using a mobile telephone, and simultaneously driving along a lengthy bend in the road past one other vehicle. On that basis the procurator fiscal sought conviction on the common law charge together with convictions on charges 2, 3 and 4,

[7] For the respondent, his solicitor at the trial appears to have questioned whether paragraph 14 of Schedule 3 to the 1995 Act could permit a Road Traffic Act offence to be equiparated with a common law offence. In particular, however, he went on to submit that, on the common law alternative, it was necessary for the Crown to prove that actual danger or injury was caused by the conduct in question; and in that connection he referred to the fact that the video recording relied on by the Crown lasted for only seven seconds.

The sheriff's decision
[8] The sheriff (correctly, in our view) began his consideration of this case by looking to see whether the complaint, in its original form, contained sufficient specification to give appropriate notice to the appellant of the matters to be founded on in support of a charge of culpable and reckless conduct. On that matter he reached the conclusion that charge 1, with its reference to a speed of 156 miles per hour, together with charge 2 (the use of a mobile telephone while driving), gave adequate notice of the common law alternative offence advanced by the Crown. The sheriff then went on to consider whether the Crown had proved that charge to the requisite standard; and he concluded that the evidence was insufficient. In reaching that conclusion the sheriff appears to have been influenced by the fact that there was no evidence from other road users and that, as a consequence, there was no evidence of actual danger to others.

[9] In relation to charge 2 the sheriff took the view that, since the evidence was merely to the effect that the appellant had been holding a mobile telephone, there was no evidence to support the contention that he had actually been using it at the time. Accordingly, the sheriff returned a verdict of not guilty on that charge. In relation to charge 3 the sheriff accepted the appellant's evidence to the effect that he understood matters to have been correctly arranged with DVLA, and for that reason his verdict on that charge was one of not guilty. In relation to charge 4 the sheriff took the view that it was fatal to the prosecution that the requirement of the appellant had been made on 4 May, and not on 5 May as libelled in the charge; and for that reason he returned a verdict of not guilty.

The submissions at the appeal hearing
[10] The advocate depute opened his submissions by advising us that he did not propose to argue that the sheriff had been wrong to proceed on the basis that charges 1 and 2 must fall in their statutory form, on account of a failure on the part of the Crown to comply with the requirements of section 1 of the Road Traffic Offenders Act 1988. Although such an argument had been advanced in the application for a Stated Case, in fact the point had been conceded by the procurator fiscal in the course of the trial, and the advocate depute advised us that he did not seek to depart from that position. He also advised us that he did not propose to argue that the sheriff had been wrong to acquit the respondent in respect of charges 2 and 3. In relation to charge 2, he said, conviction on that charge would amount to double jeopardy since its substance had been subsumed into the common law offence of culpable and reckless conduct; and, in relation to charge 3, he considered that the approach adopted by the sheriff was one which he was entitled to take in the circumstances. In the result, therefore, the advocate depute's submissions were directed to the verdicts of not guilty in respect of the common law replacement for charge 1 and in respect of charge 4. He began by dealing with charge 4.

[11] In relation to that charge the advocate depute noted that it did not appear to be disputed that a requirement under section 172 had been made of the respondent and had not been complied with, and that the only point in issue was that the requirement had been made on 4 May 2004 and not on 5 May 2004, as libelled in the charge. On that matter the advocate depute submitted that the sheriff had failed to recognise that the Crown is permitted a certain latitude as to time in an indictment or complaint. That has been provided for by statute for a very long time, and the current expression of it is to be found in paragraph 4(1) of Schedule 3 to the Criminal Procedure (Scotland) Act 1995 which provides -

"The latitude formerly used in stating time shall be implied in every case where an exact time is not of the essence of the charge."

In the present case the exact date when the statutory requirement under section 172 was made of the respondent was not of the essence of the charge. Consequently, it was submitted that, having found that the charge was otherwise proved in all respects, the sheriff ought to have returned a verdict of guilty.

[12] Turning to the common law charge of culpable and reckless conduct, the advocate depute submitted that in the present case the requisite likelihood of danger was, as he put it, blatantly obvious, given that the respondent had been driving at the grossly excessive speed libelled, namely 156 miles per hour, given that he had done so while holding a mobile telephone in one hand, resulting in his controlling the car with only the other, and given that this had occurred at a time of the day when the presence of other traffic on the road was to be anticipated. In that situation, it was submitted, there was no need for evidence as to specific dangers.

[13] In support of the foregoing submissions the advocate depute referred to certain passages in the opinions delivered in HMA v. Harris 1993 SCCR 559. He began by referring to a passage in the opinion of the Lord Justice Clerk, at page 563 D-E, where his Lordship quotes, with apparent approval, a passage in the opinion of the Lord Justice-General in the earlier case of Quinn v. Cunningham 1956 JC 22; 1956 SLT 55. That passage is in the following terms:

"As the law stands, therefore, this complaint can only be relevant if it libels that degree of recklessness which constitutes the crime at common law, that is to say, a recklessness so high as to involve an indifference to the consequences for the public generally."

Standing the factors on which he founded in the present case, the advocate depute submitted that the present respondent plainly had shown a complete indifference to the consequences for the public generally, which might flow from the manner in which he was driving.

[14] The advocate depute went on to refer to a passage in the opinion of Lord Murray in Harris (at page 566B) where his Lordship said:

"In my opinion the court in Quinn were right to emphasise the high degree of culpability required to be averred and proved before reckless conduct as a crime at common law could be established. Carelessness, negligence or even recklessness in general are not enough. There must, I think, be conduct deliberately done in face of potential danger to another or others in complete disregard of the consequences for him or them."

By reference to the foregoing the advocate depute submitted that to drive at more than double the maximum speed permitted on a motorway or dual carriageway, with only one hand on the steering wheel, could not possibly be described as anything other than acting deliberately in the face of potential danger in complete disregard of the consequences. In that situation he invited us to overturn the sheriff's decision in relation to the alternative common law charge of culpable and reckless conduct. He also suggested that, if we were to be with him on his submissions, we should remit the case to the sheriff to record findings of guilt on the charges in question and thereafter to proceed to sentence.

[15] In response Mr Gilchrist, for the respondent, began by conceding that the latitude submission advanced by the advocate depute in relation to charge 4 presented something of a difficulty. However, he submitted that, in order to take advantage of the statutory provision, the procurator fiscal ought to have sought leave to amend the complaint. In support of that submission reference was made to Wimpey Homes Holdings Ltd v. Lees 1991 SCCR 447. Mr Gilchrist then went on to observe that, in any event, the sheriff has not made an explicit finding in fact to the effect that a requirement under section 172 was made, and not complied with, on 4 May. An adjustment to the Stated Case to that effect had been proposed by the procurator fiscal (see page 29 of the print), but in the Note at the end of the Stated Case the sheriff states that he rejected that adjustment, along with some others, on the basis that "they did not conform with my own notes of the evidence". In those circumstances, it was submitted, there is no factual basis for a conviction on charge 4, even if the statutory latitude as to time were to be held as operating in the Crown's favour.

[16] Turning to the proposed alternative charge of culpable and reckless conduct, Mr Gilchrist submitted that the common law offence requires a higher degree of culpability than is necessary for the statutory offence under section 2 of the Road Traffic Act. In that connection he referred to Quinn v. Cunningham (supra), and in particular to a passage at the foot of page 24 where the Lord Justice General uses the words "gross or wicked". Noting that at the end of the day a sheriff is not obliged to convict of an alternative common law charge, Mr Gilchrist submitted that the question for this Court is whether, on the facts found proved, the sheriff in the present case was entitled to come to the view that the charge had not been established. He submitted that we should find that the sheriff was so entitled.

[17] Since Mr Gilchrist had introduced some new material in relation to charge 4, we gave the advocate depute an opportunity to address us again on that. In relation to the absence of a finding that the statutory requirement under section 172 had been made, but not complied with, on 4 May, he drew our attention to a passage at the end of the first paragraph on page 6 of the Stated Case. There the sheriff records -

"With regard to charge 4, Mr Beaumont [the respondent's solicitor at the trial] submitted that while he accepted the onus lay upon the Respondent, the Respondent could rely on the defence available to him in terms of section 172(4)."

The advocate depute submitted that the clear inference to be drawn from that was that the requirement had been made and not complied with, and that that was accepted as a fact by the respondent. In relation to Wimpey Homes Holdings Ltd v. Lees the advocate depute submitted that it was a special case, where the sheriff had found the appellants guilty of a course of conduct on the basis of a complaint which libelled only a single occasion. That being so, it was submitted, the case does not provide authority for the proposition that there must be a formal amendment on every occasion when the latitude provision in the 1995 Act is to be invoked.

Decision
[18] In relation to charge 4 we agree with the advocate depute that the Wimpey Homes case founded on by Mr Gilchrist is distinguishable from the present one. It appears that in that case the appellant company was charged with a breach of certain Regulations on a specified date, but the sheriff, apparently ex proprio motu, came to the conclusion that the failure to comply with the regulation in question had persisted since a date more than a fortnight before the date libelled. That, in effect, involved convicting the appellants in respect of a course of conduct, when only a single instance of breach of the regulation was libelled in the complaint. In that situation we do not find it surprising that this Court came to the view (the Crown consenting) that the sheriff had not been entitled to take the course which he did, in the absence of amendment of the complaint. In the present case, by contrast, the substance of the charge relates only to a single short incident and, since time is not of the essence of the charge, we are in no doubt that the statutory latitude extended, without the need for any amendment, to cover the incident having taken place on the day previous to that libelled in the complaint. We are, accordingly, of the opinion that the sheriff erred in returning a verdict of not guilty on the basis that the complaint specified the "wrong" date.

[19] The second line of argument advanced by Mr Gilchrist in respect of charge 4 has caused us rather more difficulty. It is perfectly true that the sheriff's findings in fact are silent as to a section 172 requirement having been made of the respondent on 4 May, but not having been complied with. It is also the case that a proposed adjustment by the procurator fiscal which was intended to make good that deficiency was rejected by the sheriff, on the ground that it did not conform with his notes of the evidence. On the other hand, the passage in the Stated Case which was founded on by the advocate depute, and which we have quoted in paragraph [17] above, certainly appears to indicate that there was evidence of a requirement having been made, and not complied with, on 4 May, and that that evidence was accepted on behalf of the respondent. Moreover, finding in fact number 5 does narrate that a "request" had been made by the police on 4 May, though the finding does not go on to state whether or not it had been complied with; and at page 8 of the Stated Case the sheriff again confirms that there had been "an earlier request" of the respondent for information as to the identity of the driver. Some significance may also, we think, be attached to the manner in which the sheriff has framed the question for this Court in relation to charge 4. That question is in the following terms -

"On the facts stated, having accepted the evidence led by the Crown as credible and reliable, did I err in law in acquitting the Respondent on Charge 4?"

The reference there to acceptance of the evidence led by the Crown appears to suggest that evidence to support a conviction on the charge was in fact led by the Crown and accepted by the sheriff.

[20] In our view it is most unfortunate that the sheriff has not put this matter beyond any doubt; and it can only be assumed that, because he was disposed to acquit on this charge on the ground (which was in our opinion erroneous) that the complaint libelled the wrong date, he therefore considered it unnecessary to spell out in detail the evidence which he accepted in relation to what had occurred on the previous day. Looking at the Stated Case as a whole, however, we consider that it can properly be inferred that in fact the offence libelled in charge 4 was committed on 4 May rather than on 5 May. That being so, we are of opinion that the sheriff ought to have applied the statutory latitude as to time, and that he ought to have convicted of that charge. We should, perhaps, also add that Mr Gilchrist very fairly advanced this part of his submissions as what he called a "technical point" from which we infer that he was not in a position to suggest that the offence had not in fact been committed on 4 May.

[21] Turning to the alternative common law charge of culpable and reckless conduct, we readily accept that any such charge may be easier to prove if there is evidence of actual danger, damage or injury; but we do not accept that such evidence will always be necessary. In some instances the quality of the conduct itself will be such as to satisfy the test of being described as culpable and reckless. That, we think, is what Lord Murray must have had in mind when, in the passage which we have quoted in paragraph [14] above, he spoke of conduct "deliberately done in face of potential danger to another or others in complete disregard of the consequences for him or them".

[22] In our opinion there are several features in the present case which, taken together, demonstrate that the respondent was indeed guilty of culpable and reckless conduct. First, and most importantly, there is the speed at which he was driving. We cannot say whether 156 miles per hour is the highest speed ever recorded on a Scottish road, but we suspect that it must be among the highest. It was more than double the speed permitted on the road in question and, although the video recording made by the police lasted for only seven seconds, it cannot, we think, be assumed that the respondent maintained this speed only for that period of time. Given that the locus was a dual carriageway road, and that the time of the offence (8.45 am) was one when other traffic could reasonably be anticipated to be using the road, it was obviously foreseeable that, for example, there might be traffic in both lanes because one or more vehicles were overtaking others. In the face of foreseeable hazards, such as these, we do not see how to drive at 156 miles per hour can be described as anything other than culpable and reckless.

[23] Second, there is the matter of the mobile telephone. The sheriff has told us that he found the respondent not guilty on that charge because, while there was evidence that he was holding it to his left ear in his left hand, there was no evidence that he was actually using it at the time. While we no longer have to consider reversing the sheriff's verdict on that charge, in light of the advocate depute's very fair concession that that would amount to double jeopardy, we have to say that, in our view, it defies common sense to suppose that the respondent was doing no more than just holding the telephone and was not actually using it. All of that has consequences for the common law charge. The mere fact of holding the phone to his ear meant that he was controlling this vehicle, at the speed stated, with only one hand on the steering wheel. In the event of a sudden emergency, that was, we believe, bound, or at least likely, to have an adverse effect on the respondent's control of the vehicle. Moreover, if, as we infer, he was actually using the telephone at the time, that would be likely to have an adverse effect on his general level of concentration. As we understand it, it was precisely because of such considerations that the use of a hand-held telephone while driving a motor vehicle was criminalised in the first place.

[24] In the result we have, without difficulty, come to the conclusion that the sheriff was in error by giving too much attention to the absence of evidence as to actual danger and by not giving sufficient attention to the inherent quality of what the respondent was doing at the time and to the foreseeable consequences of such actings. In our opinion, therefore, the sheriff ought to have found the respondent guilty of the common law offence of culpable and reckless conduct.

[25] Accordingly, we shall answer questions (1) and (4) in the Stated Case in the affirmative, and we find it unnecessary to answer the remaining questions. We shall remit the case to the sheriff with a direction to find the respondent guilty of culpable and reckless conduct in the circumstances set out in charges 1 and 2 in the complaint, and guilty of the statutory offence set out in charge 4 in the complaint, and thereafter to proceed as accords to sentence. We have disposed of the case in this manner so as to preserve any right of appeal that the respondent may wish to exercise in respect of sentence.