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Cite as: 2005 1 JC 320, 2005 SLT 744, 2005 SCCR 400, 2005 GWD 25-499, [2005] HCJAC 52, [2005] ScotHC HCJAC_52

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Brown v. Procurator Fiscal, Aberdeen [2005] ScotHC HCJAC_52 (27 April 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Hamilton

Lord Emslie

[2005HCJAC52]

Appeal No: XJ641/04

OPINION OF THE COURT

delivered by LORD OSBORNE

APPEAL

STATED CASE

in causa

JAMES BROWN

Appellant;

against

PROCURATOR FISCAL, Aberdeen

Respondent:

_______

Appellant: A.L. Brown, Advocate; Drummond Miller, W.S. (for George Mathers

& Co., Aberdeen)

Respondent: B. McConnachie, A.D.; Crown Agent

27 April 2005

The background circumstances
[1] The appellant faced a complaint in the District Court in Aberdeen in the following terms:

"on 18 August 2003 at Nelson Street Police Office, Aberdeen you JAMES BROWN being the person keeping a motor vehicle, namely motor car registered number W594 OSA, 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 the Road Traffic Act 1988, section 89 which occurred at about 1520 hours on 9 July 2003 at St. Machar Drive, Aberdeen did fail to give such information as to the identity of the driver of said vehicle as you were required to give by John Stewart a constable of Grampian Police on behalf of a Chief Officer of Police, namely the Chief Constable of said Grampian Police; CONTRARY to the Road Traffic Act 1988 section 172(2)(a) and (3)."

The appellant pled not guilty and went to trial on 18 February 2004.

[2] At the close of the Crown case, a motion of no case to answer was made on the appellant's behalf which was rejected by the Justice. Accordingly, it is necessary to record the evidence led in support of the Crown case. That evidence came from Police Constable John Stewart and Alexander Robertson, a civilian employed in the Camera Safety Unit of Grampian Police. Both of these witnesses identified the appellant as having attended at Nelson Street Police Office in Aberdeen on 18 August 2003, for the purpose of viewing a video recording of vehicle W594 OSA allegedly committing a speeding offence at St. Machar Drive, Aberdeen on 9 July 2003. The video had been taken by a Speedscope Laser Detection Device. Constable Stewart testified that the purpose of the appellant's attendance had been to establish the identity of the driver of said vehicle. A Notice of Intended Prosecution had been sent to the appellant as the registered keeper of the vehicle, giving details of the alleged offence, which had not been returned. The video in question had been played in court when both Crown witnesses confirmed that it was the video that had been played for the appellant on 18 August 2003. It was not disputed that the video showed vehicle W594 OSA travelling in excess of the speed limit in St. Machar Drive on 9 July 2003. The video had been played through several times at the Police Office for the benefit of the appellant and use made of the freeze frame facility at appropriate points. The Justice narrates that she was able to see for herself that the video showed vehicle W594 OSA and, as the vehicle approached the camera, there was a clear image of the driver. She records that the driver of the vehicle was an elderly gentleman, very similar in appearance to the appellant. Constable Stewart gave evidence that, after the appellant had viewed the video, he noted the appellant's details and made a requirement in terms of section 172 of the Road Traffic Act 1988, hereafter referred to as "the 1988 Act", for him to name the driver of the vehicle at the time of the alleged offence. Constable Stewart was not asked to give further detail of what exactly he had said to the appellant. Mr. Robertson recalled that Constable Stewart had "cautioned the appellant in terms of section 172" - he had shown his warrant card to the appellant and read out the appropriate section to him although he did not state what was read out. Both witnesses corroborated the appellant's reply, namely:

"At this moment in time, I am unable to say. I don't think I should say anything further other than there are burglars and criminals breaking into houses and breaking the law and you are wasting taxpayers money trying to do me with driving at 42 miles per hour in a 30 mile per hour. It is an absolute disgrace to waste my time with this."

The appellant was then cautioned and charged with the offence libelled. He made no reply. The Justice narrates that, in cross-examination, it was put to the Crown witnesses that the appellant had indicated at some point that his brother might have been driving. Both witnesses were adamant that the appellant had made no suggestion as to who had been driving. Constable Stewart stated that, if the appellant had mentioned that his brother had had access to the car, he would have gone and interviewed his brother because that was his job. The evidence of these two witnesses, together with a Joint Minute agreeing the position and accuracy of the Speedscope Laser Device, which produced the aforementioned video film, was the Crown case.

[3] The Justice records that, at the close of the Crown case, the appellant's agent made a motion of no case to answer on two grounds. The first of these is not the subject of this appeal. The second ground was that, where a police officer has required someone to identify the driver of a vehicle and has had a refusal, the correct procedure is to explain to that person that a failure to answer is an offence and thereafter to put the question again. In support of this contention reliance had been placed on the case of Duncan v. MacGillivray 1988 S.C.C.R. 488 and the observations of Lord Justice General Emslie therein. It is recorded that the Crown had argued that that case could not apply since, in the present case, the appellant had not refused to reply. The Justice explains that she agreed with the Crown contention that the case in question could be distinguished. In these circumstances the Justice decided to reject the submission. Thereafter the trial proceeded, with the appellant giving evidence on his own behalf. Thereafter the Justice found the appellant guilty of the charge. Subsequently, the appellant applied to the Justice for a stated case on a number of grounds. At the hearing before us, it was indicated that the appeal would be based only upon ground 2. It was in the following terms:

"Whether the Justice erred in rejecting the defence submission at the close of the Crown case that there was no case to answer in terms of the statutory provisions of the Criminal Procedure (Scotland) Act 1995."

[4] Since they featured in the submissions before us, it is appropriate to narrate the brief findings in fact made by the Justice. These were as follows:

"1. That motor car registered number W594 OSA was detected by a Speedscope Laser Detection Device at approximately 1520 hours on 9 July 1993 travelling at 42 miles per hour on St. Machar Drive, Aberdeen where the speed limit is 30 miles per hour.

2. The appellant was the registered keeper of said vehicle at the time of that alleged contravention of the Road Traffic Regulation Act 1988 section 89.

3. On 18 August 2003 at Nelson Street Police Office, Constable John Stewart, then acting on behalf of a Chief Officer of Police, cautioned the appellant and asked him in terms of section 172 of the Road Traffic Act 1988 to name the person who was driving vehicle registered number W594 OSA on 9 July 2003 at approximately 1520 hours. The appellant had, immediately before the requirement was made, been shown a video of the relevant vehicle at the relevant time in which the driver of the vehicle was clearly shown. In my opinion, based on the video I was shown in court, the appellant would when shown the video have had no difficulty in identifying the driver.

4. The appellant was cautioned and was aware that if he refused to answer the constable's question he would be guilty of an offence.

5. The appellant replied 'At this moment in time, I am unable to say. I don't think I should say anything further other than there are burglars and criminals breaking into houses and breaking the law and you are wasting taxpayers' money trying to do me with driving at 42 miles an hour in a 30 mph. It is an absolute disgrace to waste my time with this.'

6. At the time of making this reply, the appellant was well aware of who the driver of the vehicle was. The appellant failed to comply with the requirement under subsection 172(2)(a) of the Road Traffic Act 1988."

The submissions of the appellant
[5] When this stated case came before us, counsel for the appellant, having indicated that he intended to rely only upon ground of appeal 2, explained that the point he intended to raise affected finding-in-fact 4. Thereafter, counsel drew our attention to the terms of section 172(2)(a) and (3) of the 1988 Act. He also drew our attention to the Justice's narrative of the evidence, in particular the statement that:

"Mr. Robertson recalled that Constable Stewart had 'cautioned the appellant in terms of section 172'. He had shown his warrant card to the appellant and read out the appropriate section to him although he did not state what was read out."

On behalf of the appellant it was submitted that the meaning of that passage and of finding-in-fact 4 was unclear. That lack of clarity was fatal to the conviction. In this connection reference was made to Duncan v. MacGillivray and Wheatley Road Traffic Law in Scotland, (3rd Ed.), pages 189-193, particularly paragraph 7.5.8. It was there stated that the officer making the requirement under section 172(2)(a) ought to explain that failure to answer was an offence. That passage was said to be supported by the remarks of the Lord Justice General in Duncan v. MacGillivray. It was not demonstrated, either by the evidence narrated by the Justice, or by any finding-in-fact, that such an explanation had been given by Constable Stewart to the appellant. In these circumstances, the conviction was flawed and should be quashed. Counsel for the appellant was referred to the case of Foster v. Farrell 1963 J.C. 46, but had no comment to make upon it.

Submissions for the respondent
[6] On behalf of the respondent, the Advocate depute submitted that the critical issue was whether a requirement under section 172(2)(a) had to include a warning that a person failing to comply with the requirement committed an offence. The submissions of the appellant on that matter were wrong. It was plain that the words used in the section did not create any necessity for the giving of such a warning. The case of Duncan v. MacGillivray, relied upon by the appellant, was distinguishable. In that case an individual had been asked the simple question whether he had been driving a vehicle in which the police had taken an interest. The issue in the case had been whether the affirmative answer given to that question to an officer who had had the authority to make a requirement under section 172(2)(a) was admissible in evidence in a prosecution in which the Crown had required to prove that the individual had in fact driven the vehicle in question. Counsel for the appellant had relied upon certain obiter remarks in the report of that case, which were not sound. In these circumstances the appeal should be refused.

Decision
[7] In the first instance, it is appropriate to consider the terms of section 172 of the 1988 Act, so far as they bear upon the issue in the present case. They are as follows:

"172(2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies -

(a) the person keeping the vehicle shall give such information as to the

identity of the driver as he may be required to give by or on behalf of a chief officer of police, ...

(3) Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.

(4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was ...".

[8] It is to be noted from the foregoing provisions that, in terms of subsection (3), subject to the following provisions, it is provided, without qualification, that "a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence." In particular, there is no qualification, either in subsection (3), or elsewhere in the section, to the effect that, before an offence is committed by failure to comply with a requirement, there must have been either some warning to the individual to whom the requirement is made, or, more specifically, a statement that failure to comply with the requirement may amount to the commission of an offence. In the absence of any such provision, no reason emerges from the legislation itself as to why it might be necessary for such warning or statement to be given.

[9] Before coming to consider the submission made, which was based upon observations in Duncan v. MacGillivray, we think it appropriate to examine how earlier legislation, which was the counterpart of section 172 of the 1988 Act, has been viewed. In Foster v. Farrell the applicable provision was section 232 of the Road Traffic Act 1960, which was in very similar terms to section 172 of the 1988 Act. In that case, an accused person who had been charged with three contraventions of the Road Traffic Act 1960, to which the provisions of section 232(2) applied, had been required by a police officer, before he had been cautioned, to say who was the driver of the car concerned in the charges. The accused admitted that he had been the driver. There was no finding in the case on the question of whether the giving of the information was required "by or on behalf of" the chief constable. It had been conceded that the statement made by the accused was inadmissible at common law on account of the absence of a caution. The issue in the case was whether the accused's statement was admissible in evidence as being a statement elicited by a person who had been authorised, either generally or specially by the chief constable, to require the giving of such information. It was decided that the statement was inadmissible, since there was no finding to that effect. The court considered a number of arguments which are not relevant in the circumstances of the present case, but, at page 54, Lord Justice Clerk Grant said this:

"Finally, I have no doubt that it is unnecessary to warn or caution a person before requiring him to give information under section 232. Such a warning or caution would be wholly inappropriate and out of place when the person concerned is bound by statute, and under penal sanction to give the information required."

While those observations were made in relation to section 232 of the Road Traffic Act 1960, in view of the similarity between that section and section 172 of the 1988 Act, we have no reason to suppose that they are any less applicable to the provisions of the latter section.

[10] We now turn to consider Duncan v. MacGillivray. In our view it is important to appreciate what was involved in that case. At the stage of its decision the relevant legislation was section 168(2) of the Road Traffic Act 1972, which was in substantially similar terms to section 172 of the 1988 Act. The circumstances were that the appellant had been seen by a constable driving a vehicle. When he stopped, the constable approached, smelled alcohol on his breath, and summoned another constable. When the second constable, who was authorised to make requirements on behalf of the chief constable under section 168(2), arrived at the locus the appellant was standing beside his vehicle. The second constable, without cautioning the appellant or referring to section 168(2), asked him if he had been driving the vehicle, and the appellant replied that he had. At the appellant's subsequent trial for a contravention of section 6 of the Road Traffic Act 1972 (driving with excess alcohol in blood) the Crown relied on that reply. The sheriff held it to be admissible and convicted the appellant who appealed to the High Court. The court decided that it was unnecessary for a constable, authorised under section 168, to use any particular form of words when demanding information in the exercise of that authority; accordingly the reply given by the appellant was admissible and the appeal was refused. It was recognised that there was no doubt that the answer to the question had been essential to the conviction of the appellant.

[11] It will be seen from our description of the circumstances of that case that the issue which the court had to decide was the admissibility in evidence of the affirmative answer given to the demand made by the authorised police officer. The case did not involve a prosecution based upon any failure to comply with a requirement made under section 168(2) of the Road Traffic Act 1972. It is against that background that the observations upon which the appellant in this case founded must be viewed. At page 490 of the report, Lord Justice General Emslie, after referring to McNaughtan v. Buchan 1980 S.L.T. (N) 100, said:

"It may be taken from that case that when all the preconditions are satisfied, no particular form of words is required to be used by the demanding officer when he elects to exercise the authority which he undoubtedly possessed. If he merely asks the simple question which Constable Gunn asked in this case and there is a refusal to answer it, then he will no doubt have to explain that failure to answer is an offence, and put the question again."

[12] With regard to the last sentence in the passage just quoted, we would begin by noting that the observation was unrelated to the particular circumstances of that case and was accordingly obiter. Furthermore, we consider that the observation does not bear the meaning attributed to it by counsel for the appellant. The "simple question which Constable Gunn asked" was, of course, "Have you been driving that vehicle?". The point of the decision in that case was that the constable's question amounted to a requirement under section 168(2) of the Road Traffic Act 1972, made by an authorised person, and that the reply was therefore admissible in evidence in the context of a prosecution in which the Crown had to prove the identity of the driver. However, in the last part of the observation, relied upon by counsel for the appellant, the Lord Justice General was contemplating a situation different from that with which the court was actually dealing in that case, namely a situation in which there had been a refusal to answer a simple question of the kind which Constable Gunn had asked. We take it that the context to which the Lord Justice General was then referring was a prosecution for a failure to comply with a requirement made in that form. It was in that context that he indicated that the questioner would require to explain that failure to answer the question was an offence. We can only suppose that the Lord Justice General considered that the purpose of such an explanation would simply be to make it clear to the person addressed that a statutory requirement was being made in terms of the legislation. We cannot read the Lord Justice General's observation as indicating that, where a clear statutory requirement has already been made, there is a further legal requirement that an explanation should be provided to the effect that failure to answer the requirement would be an offence. Any such suggestion as that would, in our opinion, be in conflict with the legislation itself, which contains no requirement for the giving of such an explanation. Furthermore, such a view would be in direct conflict with the observations of Lord Justice Clerk Grant in Foster v. Farrell, which we have quoted. Finally, it would amount to an unwarranted departure from the maxim ignorantia iuris neminem excusat. In all these circumstances we are unable to accept the submission of counsel for the appellant on that matter.

[13] Having reached the view just described, in our opinion, the substratum of this appeal disappears. It is quite clear from the Justice's account of the evidence and from finding-in-fact 3 that the appellant was made well aware that he was facing a requirement in terms of section 172(2) of the 1988 Act. In our view, no more was required. As the Justice has held, in finding-in-fact 6, the appellant failed to comply with the requirement under subsection 172(2)(a) of the 1988 Act. Accordingly, the offence was committed. In these circumstances, we shall answer both questions 1 and 2 in the case in the affirmative. The appeal is refused.