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Cite as: [2006] HCJ 67, [2006] ScotHC HCJ_67

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Johnston

Lord Carloway

Lord Macphail

[2006] HCJAC 67

Appeal No: XJ1183/06

OPINION OF THE COURT

delivered by LORD JOHNSTON

NOTE OF APPEAL AGAINST

CONVICTION

STATED CASE

in the cause

ROSS ANGUS

Appellant;

against

PROCURATOR FISCAL, Airdrie

Respondent:

_______

Act: Shead; Drummond Miller, Edinburgh

Alt: Prentice; Crown Agent

26 July 2007

[1] The appellant was convicted after summary trial before the sheriff at Airdrie of a contravention of the Road Traffic Act 1988, section 2 as amended. He was fined £400 and disqualified from holding or obtaining a driving licence for one year, with a further instruction to sit a test. No appeal is taken against sentence.

[2] The sheriff found the following facts admitted or proved:

"1. On 5^th April 2005, the appellant was the driver of a Renault Clio motor vehicle registration number S739 LOH at the locus.

2. The locus is a dual carriageway road that runs north/south from Coatbridge to Shawhead where access is gained to the M8 motorway. The road has 2 lanes in each direction with a central reservation.

3. At the north end of Whifflet Street there is a mini roundabout and thereafter the road is straight for about 100 yards where there is a major four way junction controlled by traffic lights at Calder Street.

4. Approximately 50 yards after the mini roundabout and about 50 yards before the main junction with Calder Street there is a pedestrian crossing controlled by lights.

5. The pedestrian crossing comprises a set of lights on the east side pavement, two sets of lights on the central reservation, one facing in each direction, and another set of lights on the west side pavement of Whifflet Street.

6. On 5^th April 2005, at approximately 11.45 a.m. a bus travelling south on Whifflet Street pulled out of a bus stop bay approximately 15 yards from the pedestrian crossing. The bus was travelling on the inside lane of the southbound carriageway.

7. As the bus approached the pedestrian crossing, the light on the pedestrian crossing changed from green to red as the result of the button on the pedestrian crossing being pressed by a young boy standing on the east pavement of Whifflet Street.

8. The boy, David MacDonald, who is 11 years old, was standing waiting for the pedestrian light to change so that he could safely cross with his cousin who was with him, Shannon Gordon, aged 12 years.

9. The bus stopped at the pedestrian crossing which was showing a red light on both the east pavement light and the central reservation light. A lorry travelling south on Whifflet Street at the locus pulled up behind the bus which was stationary in the inside lane.

10. At this time, the light at the main junction with Calder Street was green.

11. The young boy and girl walked across the pedestrian crossing.

12. The appellant was driving south from the mini roundabout along Whifflet Street towards the pedestrian crossing. The appellant knew the locus well having driven along Whifflet Street on numerous occasions.

13. The appellant's car was travelling at a speed below the speed limit of 30 mph in the offside lane of the dual carriageway.

14. There was no other vehicle in front of the appellant's vehicle and the appellant had a clear view of the pedestrian crossing light on the central reservation.

15. The appellant did not obey the red light signal at the pedestrian crossing and the appellant's vehicle did not stop at the pedestrian crossing. The appellant would have been aware that he was approaching the pedestrian crossing.

16. The appellant's vehicle hit Shannon Gordon as she proceeded to cross the pedestrian crossing.

17. Shannon Gordon fell to the ground after being struck by the appellant's vehicle and sustained injury. She was admitted to Monklands Hospital and thereafter to Yorkhill Hospital where she remained for observation until 7^th April 2005. She suffered abrasions to her upper right chest and displacement of her front upper tooth which caused bleeding from her gums. She also had bruising and swelling to her right ankle.

18. After the appellant's vehicle struck Shannon he stopped his vehicle within approximately 6 yards of the pedestrian crossing.

19. After the pedestrian light changed to red there was a period of approximately 5 seconds before the appellant's vehicle struck Shannon Gordon.

20. The appellant made no reply when cautioned and charged.

21. That the manner of the appellant's driving was far below what would be expected of a competent and careful driver and it would have been obvious to such a driver that driving in such a manner would be dangerous."

Mr. Shead, appearing for the appellant, challenged the substance of the conviction but he had a number of preliminary, and what could be described reasonably as technical points of a preliminary nature.

[3] In the first place he pointed to the nature of the charge which averred only in support of the statutory provision that the appellant had failed to obey a red signal at the pedestrian crossing there and collided with the victim using that crossing. He pointed out that there were no averments of excessive speed or any other aspect of bad driving, which he submitted called into question much of the evidence that based the sheriff's finding in fact.

[4] Under reference to Petrovich 1990 S.C.C.R. 1 and Jordan v Allan 1987 S.C.C.R. 202 he submitted that the stated case was in any event defective because there were not definitive and determinative reasons given by the sheriff for her conclusions. In this respect he pointed to the determinative part of the sheriff's Note:

"I disagree with Mr. Morrison. I had to look at the evidence from the point of view of a bystander at the scene at the time watching what was proved to have happened. Would I have considered that the standard of driving fell far below the standard required of a competent and careful driver? I had no hesitation in answering that question in the affirmative. The Appellant knew the road well and used it regularly. He knew the pedestrian crossing was there and had an unobstructed view of the crossing from the mini roundabout. He checked the green light and then took his attention away from that for a period of at least 5 seconds. he failed to observe the light changing from red to green. He failed to sop at the red light and struck the little girl on the crossing. This is much more serious than a mere want of due care and attention. There was in my view a high degree of negligence on the part of the Appellant and the risk that ought to have been obvious to any careful and competent driver was not noticed by the Appellant by reason of his gross inattention. I fail to see how Mr. Morrison's analogy of excessive speeding impacts on that decision. If a driver drives at excessive speeds there is a chance he will get away with it unless caught in a speed trap or whatever. That does not make the driving involved less dangerous just because the driver does not get caught. The Appellant was caught because his dangerous driving caused an accident which was thankfully less serious than it was."

[5] Against that background Mr. Shead went on to argue that upon the merits of the matter the sheriff had not properly determined the issues raised by this court in Aitken v Lees 1993 S.C.C.R. 845 and in particular the passage of Lord Justice General Hope at page 848 where, paraphrasing, he numerated the two aspects of the test which must both be satisfied to establish conviction under section 2(a).

[6] Mr. Shead submitted that the sheriff had failed to address her mind properly to both aspects of the test and, in any event, had reached conclusions which only supported an element of carelessness and did not go to the extent of establishing dangerous driving within the meaning of the provision as interpreted by Aitken. In the final analysis he submitted the evidence did not justify a conviction for dangerous driving. All that was averred and he submitted relevantly proved against the background of the terms of the charge was that the appellant drove cross the pedestrian crossing against a red light and struck the child.

[7] Mr. Shead also faintly submitted that the sheriff had not properly considered the appellant's evidence in order to reach the conclusions on the whole case as instructed in Petrovich but with that proposition we cannot agree, particularly having regard, for example, to finding in fact 12 which only could have come from the appellant himself in his evidence.

[8] The advocate depute in reply confined himself simply to addressing the findings in fact as a whole which he said more than supported the notion of dangerous driving as epitomised by the section and the two tests which he submitted the sheriff had applied and made findings in fact in that respect (finding 21).

[9] With regard to the preliminary points made by Mr. Shead we note the terms of the averments, or lack of them, in the charge, but it is important to recognise that no objection was taken at the trial to the evidence which was led beyond those basic averments with regard to speed, direction of travel, other vehicles in the vicinity of the crossing and the like, which comprised much of the findings in fact. In our opinion, whatever may have been the technical effect of the charge which might have led either to a plea to the relevancy or to certain objections being taken to evidence being led at the trial the fact that neither of these steps was taken meant that the evidence was properly before the sheriff and she was entitled, indeed bound, to consider it all. The stated case, accordingly, is in no way defective for that reason, nor is it so in relation to lack of reasoning. We consider that, taken as a whole, it is perfectly clear the sheriff gives detailed and rational reasons for her conclusions.

[10] Turning to the merits of the matter, we consider that, taken as a whole, across the board, the findings are more than sufficient to meet the test laid down in Aitken. The substance of the matter upon the findings made by the sheriff is that the appellant drove across the pedestrian crossing against the red light without concentrating upon that but rather on the traffic lights further ahead. The presence of vehicles already stopped at the crossing and, much more importantly, the fact that he struck the child on the crossing are all material to this consideration. While, of course, it has frequently been said that the consequences of dangerous driving in the terms of injury and the like have to be ignored in the assessment of the driving, the striking of the child bears directly upon the nature of the driving as being part of the commission of the crime. It reflects an element of danger in the driving. In addition, while the speed that was found by the sheriff to apply at the time was not outwith the limit it can still be categorised as excessive by reason of the fact that the child was struck.

[11] It has to be borne in mind that the question for us is not whether we would have convicted the appellant of dangerous driving but rather whether the sheriff was, in the circumstances, and upon the facts found by her, entitled to do so. We have no hesitation in answering that question in the affirmative.

[12] That is sufficient for the disposal of this appeal but we should record that argument was addressed as to whether or not it was open to this court, if satisfied that the section 2 conviction could not stand, could nevertheless substitute a verdict of careless driving under section 3 which was neither averred in the alternative nor sought in the lower court by the procurator fiscal. In this respect reference was made to Buchanan v Harrison 1989 S.C.C.R. 398; Sneddon & Another v H.M. Advocate 2005 SCCR 367 and Anderson v Griffiths 2005 S.C.C.R. 41.

[13] On the face of it Buchanan supra would seem to be strong authority that unless the alternative verdict is sought in the court below, it cannot be substituted by this court. But that case must be looked at in the context of both Sneddon and Anderson, particularly the latter which would seem to suggest that it is not necessary if the Crown is seeking an alternative verdict before this court that it should also have done so in the court below, always assuming that the alternative was not averred, in which case the issue does not arise.

[14] We do not have to decide this point but we would express the view that, particularly in the context of convictions relating to quality of driving, it would not be necessary for a successful application by this court of an alternative verdict that the latter should have been sought in the court below. If we had been required to do so we would have therefore adopted the line taken in Anderson. Given that a verdict of careless driving was obviously open on the evidence there would be no problem as regards a substitution in that respect.

[15] However, for the reasons we have given we shall answer questions 2 and 3 in the affirmative.