Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 97

HCA/2014-2677/XJ

Lord Eassie

Lord Drummond Young

Sheriff Principal Lockhart

OPINION OF THE COURT

delivered by LORD EASSIE

in

APPEAL

by

PROCURATOR FISCAL, DUNDEE

Appellant;

against

RONALD MARTIN

Respondent:

Appellant:  Wade QC, AD;  Crown Agent

Respondent:  Tait, solicitor advocate;  Norrie & Gilmartin, Dundee

5 September 2014

Introductory
[1]        This is an appeal by the Procurator Fiscal in Dundee under section 174 of the Criminal Procedure (Scotland) Act 1995 against a decision of a Justice of the Peace dismissing a summary complaint brought against the respondent, to whom we shall refer as “the accused”.

[2]        The charge made in the summary complaint was in these terms:

“On 17^th September 2013 on Kingsway West, Dundee being within a length of road specified in the Schedule to the aftermentioned Order, you RONALD ALEXANDER MARTIN did drive a motor vehicle, namely motor car registered number MV62 RNA at a speed exceeding 50 miles per hour, namely at a speed of 75 miles per hour;

CONTRARY to the Perth-Dundee Trunk Road (A972) (Kingsway, Dundee) (50mph Speed Limit) Order 1989 and the Road Traffic Regulation Act 1984 Section 89.”

[3]        The accused challenged the relevancy of the complaint.  He contended that:

(i)         the Perth-Dundee Trunk Road (A972) (Kingsway, Dundee) (50mph Speed Limit) Order 1989 – “the 1989 Order” – was invalid since the A972 had been replaced by the A90;

(ii)        the 1989 Order contained so many errors and inaccuracies that it was now void for uncertainty; and

(iii)       (a) there was a lack of specification in the locus specified in the said complaint and (b) what specification of the locus did exist in the complaint was erroneous.

[4]        The Justice of the Peace upheld the first and third of those contentions.  He rejected the second.  The Justice of the Peace expressed his reasons for upholding the first argument respecting the 1989 Order thus:

“Having reviewed all the evidence presented to me, I am not convinced that the Kingsway, Dundee, has ever formed part of the Perth-Dundee Trunk Road as all the evidence points to that road, previously designated the A85 turning right (eastwards) and the Invergowrie roundabout and proceeding to Dundee City Centre.  That section of the road from Invergowrie roundabout to Dundee City Centre is still designated the A85.

Whilst the title of the Traffic Order refers specifically to the “Kingsway” it also specifically refers to the A972.  At the present moment there is still an A792 being Kingsway east but it does not fall any place within the limits set out in the aforementioned Traffic Order.  The stretch of road specifically referred to in the order currently, and at the time of this incident, is the A90.

On the basis of this I believe that I had no alternative but to uphold the Plea to Relevancy on the grounds that the Charge made specific reference to the Perth-Dundee Trunk Road (A972) (Kingsway, Dundee) (50mph Speed Limit) Order 1989, the Traffic Order which I conclude to be both wrongly titled from the outset and invalid on the basis that the A972 does not now include the stretch of road referred to in the Schedule to the Order.”

As respects the third of the accused’s contention, the Justice of the Peace states:

“So far as the Challenge to the Specification of the Charge, I find for the respondent are as the locus in this case is of the essence of the charge and sufficient detail must be given to establish this and I do not believe that ‘Kingsway West’ is sufficient specification.”

[5]        In order to give context to the reasons given by the Justice of the Peace it is necessary to set out the relevant provisions of the 1989 Order and to say something about the history of the Kingsway and  highways in the vicinity.

The 1989 Order
[6]        The 1989 Order[1] was made on 13 December 1989 and came into force on 22 December 1989.  It was made by the Secretary of State for Scotland in the exercise of powers conferred on him by section 84 of the Road Traffic Regulation Act 1984.  The order imposes a speed limit of 50mph “on the length of road specified in the schedule to this order”.  That schedule reads as follows:

“That length of the Perth-Dundee Trunk Road (A972) from a point on the southwest side of the roundabout situated at the junction of the A972 and Myre Kirk Road in a generally easterly direction to the west side of the roundabout situated at the junction of the A972 and Forfar road, a total distance of 6.4 kilometres or thereby.”

The Kingsway
[7]        The Kingsway was constructed in the early 1930s as a by-pass around the north of the city.  It is in two parts – Kingsway West and Kingsway East – the dividing point being at its intersection with the thoroughfare known as Forfar Road.  In 1936 Parliament enacted the Trunk Road Act 1936.  That statute provided, in brief, for a number of arterial routes in Great Britain to become the responsibility of central Government and described these as a “trunk road”.[2]  Schedule 1 to the 1936 Act details in tabular form the roads designated as trunk roads.  The following is an excerpt from that part of the schedule relevant to this appeal:

As can be seen from that excerpt, the entire Kingsway (West and East), or Dundee by-pass, had the classification number A972.  It retained that classification number in 1989 when the 1989 Order was promulgated.

[8]        Subsequently to the making of the 1989 Order, the Secretary of State for Scotland adopted a policy of improving the road links between Perth and Aberdeen.  The policy was directed to creating a dual carriageway road from the M90 motorway at Perth to Aberdeen.  The route selected for the dual carriageway followed the A85 from Perth towards Dundee and then proceeded along the Kingsway to its junction with Forfar Road and from there the route went northwards to Forfar (around which a by-pass was also constructed).  This route was in preference to the shorter, single carriageway, route from Perth to Forfar via Coupar Angus (which was, and is, classified as the A94).  As part of that policy the Secretary of State resolved in 1993 to re-designate, or renumber, the various sections of the upgraded, dual carriageway route from Perth to Aberdeen to give those sections the uniform classification number A90.  Previously, the road classified as A90 ran only between Edinburgh and Perth.

[9]        As a result of that administrative renumbering, the present position is that, west of its intersection with Forfar Road, the Kingsway – that is to say Kingsway West – has lost its original Ministry of Transport classification  A972 and assumed the classification A90.  East of that intersection – that is to say Kingsway East – the Kingsway retains the original classification of A972.

The validity of the 1989 Order
[10]      In essence, two points are advanced in the argument for the accused that the 1989 Order is invalid.

[11]      The first is that both in the title to the 1989 Order and, more importantly, in the schedule to that Order there is an inaccuracy in that the affected length of the Kingsway is described as being a part of the “Perth-Dundee Trunk Road”, whereas the trunk road to Dundee consisted solely of the A85 from Perth to “west of Dundee”.  (It is, we understand, accepted by both parties that the Justice of the Peace was mistaken in thinking that trunk road status extended eastwards along the section of the A85 east of the Invergowrie roundabout, known as Riverside Avenue, and later, Riverside Drive, Dundee.)

[12]      In so far as it may have any consequences, that inaccuracy was present at the inception of the 1989 Order.  But, we consider that any conceivable ambiguity presented by that inaccuracy is readily resolved by the reference in the schedule to “A972” and, more importantly, the fixed points of the junctions with Myrekirk Road and Forfar Road,  Moreover, the existence of such a resolvable ambiguity does not render the measure invalid.  It simply gives rise to a need for interpretation.

[13]      The second point flows from the change made in 1993 to the classification of the Kingsway West as being a part of the A90 and no longer a part of the A972.

[14]      In its essence the contention advanced on behalf of the accused amounts to the proposition that a legislative measure, otherwise validly promulgated, which refers to a geographical location by its name, ceases to be valid if at a later date that location assumes or is given a different name.  In our view that proposition is erroneous.  As an ordinary rule of interpretation of a legislated instrument, one starts by looking at the circumstances obtaining when the instrument was made.  (Questions may arise in some cases whether the measure may apply to changed circumstances, such as the advent of some new technology not in existence at the time of promulgation. But nothing of that nature arises in the present case).  In order to construe the instrument it may thus be necessary to make some historical inquiry.  The need to make such inquiry may no doubt render the meaning of the legislation less immediately, or directly, ascertainable but one remains in the field of construing the instrument by reference to the factual matrix in which it was made.  That need does not, in our opinion, have the consequence of rendering the measure invalid.  In light of the fact that the Kingsway bore the classification A972 in December 1989 there can be no doubt that the length of road which is specified in the schedule to the 1989 Order is indeed the Kingsway West between Myrekirk Road and Forfar Road, Dundee.

[15]      Accordingly we consider that the Justice of the Peace erred in holding the 1989 Order to be invalid.

Specification of the locus
[16]      We turn now to the second ground upon which the complaint was dismissed.  As was observed by this court recently in Strawbridge and Others v HM Advocate [2014] HCJAC 32, whether the locus stated in a charge is stated with sufficient specification depends on the particular facts and circumstances of the case.  In that case the court held that a charge of speeding on a relatively lengthy section of rural road was not irrelevant for lack of specification of a precise location within that section. 

[17]      That said, modern methods of speed detection and measurement will commonly enable a relatively precise location to be given.  In the present case the advocate depute stated that the location of the alleged offence was detailed more precisely in the summary of evidence.  In so far as she suggested that the provision of the summary of evidence obviated or reduced the need to give adequate specification in the charge we disagree. The summary of evidence is a communication between the prosecutor and the accused.  The degree of specification or detail given is not open to any challenge by the defence.  The summary of evidence does not bind the prosecutor at the trial; and departure from the summary of evidence is not subject to any degree of judicial control, in the way in which amendment of a libel is controlled.

[18]      In the present case it is apparent from what we were told that – given the speed detection methods upon which the prosecution is based - the prosecutor could have given  greater specification of the location – for example as being between junction X and junction y on the Kingsway West.  In our opinion that would have been wholly desirable. And the Advocate depute did not suggest any reason for which that could not have been done either initially or in response to the defence request by way of a simple amendment of the terms of the charge.

[18]      However, ultimately the question for us is not whether further detail was desirable or could readily be provided as a matter of prosecution policy, or whether, as a simple matter of pragmatic co-operation with the defence request, the prosecutor should have amended the libel, but rather whether further specification of the locus was necessary or essential for the relevancy of the charge.  With some hesitation, we have come to the conclusion that the charge is not irrelevant on that account.  The road is clearly specified as being the Kingsway West and, while the section specified in the 1989 Order extends to 6.3 kilometres, that distance might not be thought to be an extravagantly libelled length of road. The Justice of the Peace does not explain the reasons for this branch of the decision, but from the report of the submissions on behalf of the accused it appears that in those submissions there was a degree of linkage to the primary submission on validity.  In the circumstances we are not persuaded that we can say that the Justice of the Peace had proper reasons for dismissing the complaint on grounds of want of specification of the locus within the 6.3 km of the affected road.

[19]      For these reasons we consider that the prosecutor’s appeal against the decision dismissing the complaint succeeds.