Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 81

HCA/2014-005137/XJ

Lord Drummond Young

Lady Clark of Calton

Sheriff Principal Abercrombie

OPINION OF THE COURT

delivered by LADY CLARK OF CALTON

in the stated case

in causa

DAVID SCOTT CARMICHAEL

Appellant;

against

PROCURATOR FISCAL, AIRDRIE

Respondent:

Appellant:  Jackson QC;  John Pryde & Co SSC

Respondent:  Goddard, Sol Adv, AD;  Crown Agent

15 July 2015

Summary
[1]        The appellant was convicted on 11 November 2014 after trial on summary complaint under deletion of part of the charge.  He appealed against conviction and sentence.  The court having heard submissions in respect of the appeal against conviction, answered question 5 posed by the sheriff in the negative and quashed the conviction.  Question 5 focused the issue as to whether on the facts found, the sheriff was entitled to convict the appellant.  These are our reasons for quashing the conviction.

The charge on the complaint and the conviction
[2]        In the course of hearing the appeal it became obvious that there was a lack of clarity about the terms of the conviction standing manuscript changes to the terms of the charge which appear in the printed copy of the complaint, the narration by the sheriff in the stated case and the sheriff court minutes which are included in the documents produced for our consideration.  In terms of section 159(3) an amendment shall be sufficiently authenticated by initials of the clerk of court.  No such authentication appears in the papers presented in this appeal

[3]        The charge in its original printed form in the complaint states:

“(001)  Being the holder(s) of the office of Constable of Strathclyde Police and the rank(s) of Constable stationed at Coatbridge Police Office and it being your duty in terms of Section 17(1)(b) of the Police (Scotland) Act 1967 where an offence has been committed (whether within or outwith the Police area in which the said Police Force is maintained) to take all such lawful measures for the purposes of bringing offenders with all due speed to justice, you DAVID SCOTT CARMICHAEL did wilfully neglect your duty and violate the trust and duty of your said office as Constable(s) in the course of your employment as such, in that you did on 31 October 2012 at 7 Calder View Avenue, Coatbridge and elsewhere in Coatbridge having been alerted by radio message from Strathclyde Police force control that a report had been received that motor vehicle registration mark SE07 FYB had been driven on a public road whilst the driver was suspected to be under the influence of alcohol, at 7 Calderview, Coatbridge and elsewhere in Coatbridge, (1) fail to make full and proper enquiry and collate all information and witness statements into the circumstances of said report (2) fail to administer to Daryl McKillion (now deceased), then residing there, preliminary breath test in pursuance of your powers under section 6 and 6A of the Road Traffic Act 1988 and (3) provide a false report to Strathclyde Police force control by radio transmission on your police radio that there had been no reply at the door of said house at 7 Calderview, Coatbridge, when you called to make enquiry there.” 

[4]        In paragraph 2 of the stated case, the sheriff narrates “the terms of the charge”.  That narration does not refer to the words “and witness statements” which appear in the printed copy.  The address 7 Calderview, where it appears second in the charge, has also been altered in manuscript to read 7 Calderview Avenue.  Unfortunately we are unable to find in the minutes any reference to these manuscript changes which are not authenticated.  The sheriff in his narration makes reference to the Road Traffic Act 1968 but this is plainly an error as the printed copy of the charge refers to the Road Traffic Act 1988. 

[5]        In paragraph 24 of the stated case, the sheriff explains that

“at the conclusion of the Crown case the fiscal sought without objection to amend the complaint by referring to the failure to follow the section 172 as well as the section 6 procedure.  There was no objection to this.”

The sheriff does not explain whether the amendment was allowed albeit by inference it appears that he did allow the amendment.  There is no reference to any such amendment in the minutes.  The precise form of any amendment is not recorded and is not authenticated.  What we deduce happened is that following a motion by the procurator fiscal depute, a manuscript amendment was made to the printed copy of the charge in the complaint.  This appears to be to the effect that after the word “section” in sub-paragraph (2) of the charge there was inserted, “172 and”.  If this is correct sub-paragraph 2 of the charge would read:

“failed to administer to Daryl McKillion (now deceased), then residing there, preliminary breath test in pursuance of your powers under section 172 and 6 and 6A of the Road Traffic Act 1988 and.” 

[6]        The court minute recording the conviction dated 11 November 2014 states “the court found the accused guilty under deletion of 6 and 6A in line 13 of the charge on charge 1”.  This is a deletion to sub-paragraph (2).  Assuming that the amendment “172 and” was granted, the effect of the deletions recorded in the minute would be that the appellant was found guilty of the charge in which sub-paragraph (2) would read after deletion: 

 “(2) fail to administer to Daryl McKillion (now deceased), then residing there, preliminary breath test in pursuance of your powers under section 172 of the Road Traffic Act 1988 and.” 

This does not make sense as section 172 does not give any power to administer a preliminary breath test.  In contrast to the minute recording the deletions, the sheriff states in N13:

“I deleted the reference to a failure to administer a preliminary breath test section 6 and 6(a) of the Road Traffic Act 1998”. 

We note that if such a deletion had been made in that form, sub-paragraph (2) would read “Daryl McKillion (now deceased) then residing there 172.”  This also does not make sense.  If the sheriff was intending to advise that all the words in sub-paragraph 2 were deleted by him it would leave a bare reference to 172 which would also be meaningless. 

[7]        The court minutes provide to this court the official record of the conviction.  There is an obvious difficulty with the conviction recorded in the minutes as we have explained.  The explanation by the sheriff adds to the confusion.  The advocate depute stated that he was unable to explain or resolve the difficulty.  He conceded that he was unable to support a conviction in terms of charge 1 sub-paragraph 2.  We consider that concession is well founded and that the conviction in relation to sub-paragraph 2 cannot be sustained. 

[8]        We observe that where a complaint is amended or a conviction is made under deletion, it is essential that an accurate record should be available by authentication of the amended complaint and the terms of any deletion to the charge at conviction should be accurately recorded in the minutes.  Obviously it is also essential to ensure that the terms of any conviction make sense. 

Submissions by counsel for the appellant
[9]        Senior counsel focused on the specific terms of the charge in the complaint.  His main submission was that the alleged wilful neglect of duty and specification thereof libelled in the charge are premised on “where an offence has been committed”.  The facts of this case related to an investigation by the appellant into an anonymous report that a male under the influence of drink had driven a black Peugeot or Corsa registration number SE07 FYB from a shop in Carnbroe towards Sikeside.  This anonymous report was not borne out by the evidence available to the appellant.  On the information available to the appellant, he had no reasonable basis to conclude any offence had been committed using the vehicle he saw parked at 7 Calderview Avenue, Coatbridge or that the owner or anyone else had committed an offence by driving said vehicle.   

[10]      It had never been disputed that the appellant had provided a false report of his investigations, albeit he later corrected that.  Counsel submitted that in the context of the charge as libelled, said report by the appellant could not amount to a wilful neglect of duty.  The reference to section 172 in sub-paragraph 2 of the charge was also ill founded.  There was no basis for the appellant to make such a request to Daryl McKillion in circumstances where there was no evidence that any offence had been committed.  This was not a case in which there was evidence available to the appellant that an offence had been committed involving motor vehicle registration mark SE07 FYB.  The sheriff correctly deleted the reference to section 6 and 6A of the Road Traffic Act 1988 in the charge on the basis as he explained in N13 that the appellant “had not seen the car being driven nor was there any information of a moving road traffic offence involving the suspect”. 

[11]      Counsel referred to the steps which the appellant had carried out during the course of his enquiry.  These were set out in the findings in fact found by the sheriff.  The appellant said he would attend at the address given in the callout which was the address of the registered keeper and insured person for a vehicle, a black Peugeot or Corsa at 7 Calderview Avenue, Carnbroe (FF4).  He observed a black Corsa SE07 FYB parked.  It was raining and the area under the car was dry.  He sought further information by radio at 17:21:52 and was told that an anonymous female had made the call at 16:55.  He passed the Corsa, put his hand on the bonnet and said “it’s cold” (FF5).  He knocked at the door of the house and at the time spoke to Daryl McKillion whom he recognised as a police officer.  The appellant explained the reason police officers were attending and asked Daryl McKillion if he had been drinking and driving the car earlier.  He received the answer that McKillion had been drinking the previous night, that he had not been driving the car earlier and that he had been in bed resting.  He also obtained confirmation from Daryl McKillion that he was the owner of said black Corsa.  The appellant considered that Constable McKillion was a trustworthy officer whom he knew and he believed his denial that he had driven the car from the shop in Carnbroe (FF7).

[12]      Counsel submitted that on the findings in fact there was no evidence available to the appellant at the relevant time to entitle him to conclude that any offence had been committed by anyone.  Therefor there were no further enquiries incumbent upon him thereafter in the particular circumstances of the case.  The false report might be the basis for disciplinary proceedings but this was not a case in which the appellant made a false report where there was evidence available to him that an offence had been committed.  There was no such finding in fact.  The sheriff accepted that the appellant considered Constable McKillion as trustworthy and the appellant believed his denial that he had driven the car from Carnbroe.

Submissions by the advocate depute
[13]      As we have noted, the advocate depute accepted that there were difficulties in relation to sub-paragraph 2 of charge 1 and did not support that part of the conviction.  He sought to persuade us that on the findings of fact, the sheriff was entitled to convict the appellant in respect of the charge as narrated in subparagraphs 1 and 3.  We are grateful for the written note of the advocate depute which he developed in oral submissions.  The advocate depute sought to pray in aid evidence before the sheriff about lawful measures which the appellant should have taken.   We understood him to accept however that although there was evidence about police practice, there were no findings in fact by the sheriff about the professional duty incumbent upon a police officer placed in the situation which the appellant found himself.  The advocate depute also sought to rely on evidence that the appellant made no effort to find out the identity of the anonymous caller to obtain more information.  He submitted this would have enabled a different decision to have been made by the appellant about whether there was evidence available of an offence being committed.  In respect of sub-paragraph 3 he relied on the undisputed evidence reflected in finding in fact 8 that the appellant had made a false report and the circumstances in which that was made.  He also submitted that the false report brought “the enquiry to an end.” 

Discussion
[14]      The sheriff, in his report, sets out the findings in fact that he finds admitted or proved.  Findings in relation to the state of knowledge of the appellant at the time of his decision-making are found in findings in fact 4 to 8.  These are critical findings.  It is important to bear in mind that the appellant’s state of knowledge is not to be assessed taking into account information not available to him.  There are findings in fact which looked at retrospectively might lead to the conclusion that an offence had been committed.  For example, finding in fact 12 is to the effect that the anonymous witness was a police officer who knew and could identify Constable McKillion.  She had seen him in the Carnbroe Stores, under the influence of drink and had seen him driving away from the store.  This important information from an identifiable eye witness was not known to the appellant as the police officer chose not to reveal her identity and made an anonymous report in limited terms.  The appellant investigated the anonymous report and reached the conclusion that

“….Constable McKillion was a trustworthy officer whom he knew and he believed his denial that he had driven the car from the shop in Carnbroe.” (FF 7).  

The appellant’s decision-making and assessment of lawful measures to bring an offender to justice which he should have deployed, is not to be judged with hindsight taking into account information that was not available to him.  In our opinion there are no findings in fact to justify the conclusion that the appellant should have reasonably believed that any offence had been committed.  The sheriff by making the deletions with the explanation given appears to accept that.  We consider therefor that there is force in the main submission made by counsel for the appellant.  That is the first problem for the Crown’s position and, when we analyse the terms of the charge, we consider it is an insuperable problem. 

[15]      The second problem is that even if the Crown did not have the first difficulty, the charge is based on allegations about a failure “to take all such lawful measures for the purposes of bringing offenders ... to justice ...” and the specification is set out in sub-paragraphs 1 to 3 of the alleged wilful neglect of duty.  The Crown did lead some evidence from senior police officers about the nature and scope of lawful measures which should have been taken.  We note however that there are no findings in fact about what lawful measures were incumbent upon a police officer such as the appellant in the circumstances in which he was placed on the evidence available to him.  The advocate depute sought to persuade us that an example of the appellant’s wilful neglect of duty was a failure by the appellant to trace the anonymous call.  He made reference to some of the evidence and finding in fact 12 which states: 

“…an experienced police officer such as the appellant would know that all calls into the police call centre were recorded and that the number from which the call was made was also recorded…”

In our opinion finding in fact 12 falls far short of a finding in fact which would provide a foundation to support the submission by the advocate depute.  There is no finding in fact that the appellant should have attempted to obtain the mobile number and trace the witness who was the anonymous caller.  The fact that another police officer carried out such a trace in the police station does not mean that such a duty was incumbent upon the appellant while on patrol duties. 

[16]      In our opinion if the charge on this complaint is properly analysed, we consider subparagraph 2 cannot be sustained and further that the findings in fact made by the sheriff do not support the conviction of the charge as libelled.  It is for these reasons that we answered question 5 in the negative.  In view of our conclusion, we consider it unnecessary to answer the other questions posed by the sheriff.  Our task in this appeal is limited.  Neither the trial nor this appeal are designed to take the form of a general inquiry into deficiencies by police personnel in this investigation.  Such issues can be fully investigated in disciplinary or other proceedings.

[17]      We also wish to express some reservations about the nature of the charge in this case.  We observe that the Police (Scotland) Act 1967, section 44, makes specific provision for “offences by constables”.  The appellant was not charged under section 44.  Section 17 of the 1967 Act, to which reference is made in the charge, does not create any criminal offence.  The references in the charge to sections 172, 6 and 6A of the Road Traffic Act 1988 are references to statutory powers of the police.  They do not impose a mandatory duty on a police officer to carry out these powers.  The advocate depute submitted that the charge on the complaint is a common law offence.  Had we not been persuaded on other grounds to quash the conviction, we would have wished to have full submissions about the nature of the charge in this case and the nature and scope of the crime at common law.

SLR