Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 127

HCA/2015-2772/XJ

Lady Paton

Lord Drummond Young

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY CLARK OF CALTON

in the

STATED CASE

by

EAMON FITZPATRICK

Appellant;

against

PROCURATOR FISCAL, PAISLEY 

Respondent:

Appellant:  S McCall QC;  John Pryde & Co (For Levy &McRae Glasgow)

Respondent:  A Edwards, AD;  Crown Agent

15 December 2015

Summary
[1]        On 29 May 2015, the appellant was found guilty after trial before the Justice of the Peace Court at Paisley, on an amended charge which stated: 

“(001) on 16th December 2013 on a road or other public place, namely School Road, Paisley you EAMON FITZPATRICK did drive a mechanically propelled vehicle, namely motor vehicle Toyota Avensis registered number JEZ1491 without due care and attention or without reasonable consideration for other persons using the road or public place in that you did fail to comply with a requirement of a school crossing patrol then there in uniform and exhibiting a prescribed sign and you did impede children and their guardians from crossing the said road;  CONTRARY to the Road Traffic Act 1988, Section 3 as amended.” 

The justice imposed a fine of £300 and five penalty points as a sentence. 

[2]        Thereafter, the appellant made an application for a stated case.  In a document which was presented in terms of section 176(3) of the Criminal Procedure (Scotland) Act 1995, submissions were made on behalf of the appellant to the effect that it was unreasonable to reject the evidence of the appellant, Mrs Leadbetter and Mr Craig Stewart (an expert witness) and to accept the evidence of the witnesses Elaine Caulfield and Valerie Wilkie.  Various reasons to support the submissions were set out.  The draft stated case was issued to the appellant’s solicitor on 16 July 2015.  A document submitted by the appellant in terms of section 179 of the Criminal Procedure (Scotland) Act 1995 entitled “Proposed Adjustments for the Appellant” contained 18 paragraphs with proposed adjustments which appear to relate to the evidence recorded by the justice.  The appellant did not propose any adjustments directed to alteration of the existing findings in fact, to add new findings in fact, or to reframe the questions of law.  The proposed adjustments for the appellant and respondent were received and a hearing on the adjustments took place on 23 July 2015. 

[3]        The justice made the following findings in fact: 

“1.       The complainer, Elaine Caulfield, was working as a school patrol officer at Ralston Primary School on the morning of 16 December 2013.  She started her shift at 08.30. 

2.         The complainer was dressed in full uniform which consisted of a coat and hat both of which were yellow in colour with fluorescent bands.  She had her “lollipop stick” with her. 

3.         The complainer helped adults and children to cross School Road, both to and from the school side of the street.  She did so using the lollipop stick. 

4.         The complainer had 17 years’ experience as a school crossing patrol and had attended training during her career. 

5.         The weather was wintry and cold.  It was wet and it had been raining earlier that morning. 

6.         At the time of the incident it was daylight, but not very bright given the weather and time of year.  Lighting conditions were reasonable.  Some cars still had their headlights on. 

7.         At around 9am the complainer was standing on the side of the road opposite the school.  A female with a 3 year old child was on the other side of the road (the school side), waiting to cross. 

8.         School Road was busy with moving traffic as well as parked cars. 

9.         The complainer carried out her usual checks, noticing that the side of the road closest to her was clear and that traffic was at a distance on the other side of the road.  Afterwards she entered the road and put her lollipop stick up. 

10.       Before leaving the pavement the complainer started to tilt the lollipop stick, holding it out in front, positioned in a downward direction, and moving it up as she moved.  It was erected by the time she reached the middle of the road. 

11.       The way she carried the stick was usual procedure for the complainer and in accordance with the training she had received.  The procedure did not, however, concur with the guidance in the Highway Code. 

12.       The appellant was driving a Toyota Avensis car with registration number JEZ 1491.  He had parked his car in a parking bay across the road from the school.  The vehicle was facing in the direction of Penilee Road. 

13.       The complainer was in the middle of the road when the appellant’s vehicle came from the parking bays on her left and joined the front of the queue of cars. 

14.       The appellant’s car made a loud noise and passed the complainer at a speed of around 10 to 20 miles per hour.  He drove along the side of the road where the parent and child were waiting to cross. 

15.       The appellant did not comply with the school crossing patrol’s requirement to stop and in doing so impeded the witness Valerie Wilkie and her three year old child from crossing the road. 

16.       The appellant stopped his car immediately after having passed the complainer in the middle of the road. 

17.       The complainer got a fright and tried to get out of the appellant’s way.  She thought he was going to knock her down.  She was upset, shocked and agitated.  She was argumentative and shouted at the appellant. 

18.       The appellant drove round the block, parked his car and spoke to the complainer. 

19.       The appellant did not want the matter to be reported to the school or the police. 

20.       The appellant was familiar with the locus as his two children attend Ralston Primary.  He often takes them to and from school on non‑working days.” 

[4]        The legal questions posed in the stated case for consideration by the court are: 

“1.       Was I entitled to find that the appellant’s driving fell below the standard required of the reasonable, competent and prudent driver? 

2.       Was I entitled to convict the appellant of the charge as amended?” 

Submissions by counsel for the appellant
[5]        Counsel for the appellant invited the court to answer both questions in the negative.  She submitted that the findings in fact made by the justice were insufficient to support a conviction in terms of section 3 of the Road Traffic Act 1988 (“the 1988 Act”).  She drew attention to the offence created by section 28 of the Road Traffic Regulation Act 1984 which deals specifically with the stopping of vehicles at school crossings.  She submitted that finding in fact 15 did not of itself create a contravention of section 3.  The justice appeared to have conflated behaviour which might be an offence under section 28 with offending behaviour under section 3.  Section 3 imposed a statutory test which must be satisfied before there could be a conviction.  In the findings in fact, the justice failed to identify what it was about the appellant’s driving that amounted to carelessness.  There was no finding in fact, for example, that Elaine Caulfield with the stop sign, was visible to the appellant when he failed to stop or that the appellant had time to stop, taking into account the manoeuvre he was making. 

[6]        Counsel also sought to address the court on the basis that it was unreasonable for the justice to reject the evidence of the road traffic expert, Mr Craig Stewart, that the reasons given by the justice for not relying on his evidence were wholly inadequate and that the justice therefore had no proper basis for rejecting the evidence.  When asked by the court how this issue was focused in the questions in the stated case, counsel submitted that the first question was wide enough to allow such an issue to be canvassed in circumstances where the expert evidence had not been challenged by the Crown.  Counsel stated that this issue was clearly flagged up in the proposed adjustments to the application for a stated case as an issue relied on by the appellant in challenging the conviction.  Counsel accepted that the appellant had not sought to make any adjustments to the findings in fact.  She invited this court to make a new finding in fact to reflect the conclusions of the expert in these terms: 

“15A.  That there was not sufficient time and distance available to the appellant in which to react to the signal to stop given by the complainer or [to conclude] that the driving exhibited by the appellant had fallen below that expected of a careful and competent driver.”

This wording was an adaptation of the submissions which had been part of the proposed adjustments. 

[7]        Counsel accepted that the justice was entitled to reject expert evidence in favour of eye witness evidence but submitted that in this case the reasoning of the justice was so weak as to amount to an unreasonable rejection.  The justice had placed weight on the expert’s error about the applicable law which was irrelevant as that was not part of his expertise.  The justice had not given any reasons for rejecting the various detailed measurements and calculations which underpinned the expert’s evidence and which were unchallenged at the trial.  In conclusion, counsel submitted that no reasonable justice could have rejected the expert evidence and on the basis of that evidence, finding in fact 15A should have been made by the justice.  It followed, she submitted, that the appeal should be granted. 

Submissions by the advocate depute
[8]        The advocate depute invited the court to refuse the appeal and answer the two questions of law in the affirmative.  He submitted that finding in fact 15 should not be viewed in isolation and when taken together with findings in fact 9, 12, 13 and 14 against the background of the other findings in fact, the justice was entitled to conclude that there was a breach of section 3 of the 1988 Act.  The offence libelled was not limited to a failure to stop.  The offence averred driving without due care and attention or without reasonable consideration for other persons, and failure to comply with the requirement of a school crossing patrol was part of the driving without due care and attention.  The justice as fact finder was entitled to take all the facts and circumstances into account and that was reflected in the findings in fact.  The advocate depute submitted that in the context of this case, stopping distances were irrelevant.  The appellant was carrying out a manoeuvre from a stationary position in the circumstances set out in the findings in fact.  The advocate depute drew attention to an adjustment which had been proposed by the Crown.  This adjustment stated:  “the appellant ought to have seen the complainer and should have stopped for her”.  This adjustment was refused by the justice, as the justice considered that it was not a finding in fact.  The justice did include reference to this in the stated case, and at page 39 the justice stated: 

“In my opinion the appellant ought to have seen the complainer and he should have stopped for her.  Given that the locus was well known to the accused and was outside a primary school, I felt that he should have taken more care…”. 

[9]        The advocate depute accepted that there might be some criticism to be made of the precise formulation of the first question in law posed by the justice.  She did not accept however that this enabled the appellant to raise issues which the appellant had not sought to focus by adjustment in the stated case by reference to an appropriate question in law.  It was not for this court to attempt to make any new findings in fact as proposed by the appellant.  The advocate depute submitted that whether one phrased the first question in the way suggested by the Crown in their proposed adjustments, which focused upon the standard of a competent and careful driver, or in the way set out by the justice, the outcome would be the same and that nothing turned in this respect on the precise wording of the first question of law. 

Decision and reasons

[10]      The stated case procedure has a long history and the practice and procedure have often been explained in this court.  Issues cannot be raised by an appellant merely by drafting submissions in the application for a stated case.  An appellant must focus in their adjustments issues which they wish to raise, both in relation to findings in fact and questions of law which they propose for consideration by the appeal court.  We do not accept that either of the questions in this stated case entitles the appellant to argue in the context of this case that no reasonable justice could have rejected the expert evidence.  For the same reasons we consider that it is too late in this appeal process for this court to consider new proposed findings in fact not proposed to the justice.  We are therefore not prepared to entertain the appeal insofar as it is based on these submissions. 

[11]      In any event we consider that the substantive submissions of the appellant which we summarise in paragraphs 6 and 7 are without merit.  The justice heard eye witness evidence about the events on 16 December 2013 and explained that he preferred the evidence of the Crown eye witnesses “… who spoke to exactly what they saw as the events unfolded”.  The justice accepted as credible and reliable, for the reasons given, the direct eye witness evidence of Elaine Caulfield and Valerie Wilkie.  The expert evidence, in the assessment of the justice, was based on averages and a number of assumptions to do with the incident, and plainly the justice was not assisted by that.  We also consider that the justice was entitled to be influenced by the fact that the expert in his report went beyond his expertise in giving his views about legal matters and apparently erred in law.  We consider that an expert should generally be careful to confine his opinions to matters within his expertise.  In addition it would be inappropriate for this court, even if it were so minded, to make a new finding in fact such as the proposed finding in fact 15A.  This court has no knowledge of what evidence was before the justice about these matters or what the assessment of the justice was.  The appellant did not propose any new findings in fact based on measurements or stopping distances for consideration of the justice.  Without some factual basis, the conclusion of the expert cannot assist the court.  Had there been proposed adjustments of new findings in fact, this court would have had the comments of the justice.  There would have been some proper basis to consider the assessment of the evidence which might have enabled this court to consider the issue. 

[12]      We are also unpersuaded that there is any merit in the submission made by counsel for the appellant that on the findings in fact made, the justice was not entitled to convict of a breach of section 3 of the 1988 Act.  Taking into account the busy location opposite the school, and findings in fact 9 to 15, we consider that the justice was well entitled to convict the appellant of the charge on the complaint. 

[13]      In this case there is no dispute about the legal test applicable to section 3 of the 1988 Act.  We consider that the second question focuses the live issues in the case and supersedes question one.  We answer the second question in the affirmative and refuse the appeal against conviction.  There is no appeal against sentence.