Scottish High Court of Justiciary Decisons

APPEAL FROM THE SHERIFF APPEAL COURT IN TERMS OF SECTION 194zb OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BYJOHN FREDERICK SCRIMGEOUR-WEDDERBURN AGAINST THE PROCURATOR FISCAL, KIRKCALDY

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2019] HCJAC 57
HCA/2018/322/XC

Lord Justice General
Lord Menzies
Lord Turnbull

OPINION OF THE COURT

issued by LORD CARLOWAY, the LORD JUSTICE GENERAL 
in

APPEAL FROM THE SHERIFF APPEAL COURT IN TERMS OF SECTION 194ZB OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
JOHN FREDERICK SCRIMGEOUR-WEDDERBURN
Appellant
against
PROCURATOR FISCAL, KIRKCALDY
Respondent

Applicant: IM Paterson (sol adv); Paterson Bell Ltd
Respondent: A Prentice QC (sol adv) AD; the Crown Agent

26 July 2019

Statutory Provisions

[1] The Road Traffic Offenders Act 1988 provides:

“1 Requirement of warning etc. of prosecutions for certain offences
(1) …[A] person shall not be convicted of an offence to which this section applies unless –
(a) he was warned at the time the offence was committed that the question of prosecuting him…would be taken into consideration;
(b) within fourteen days… a complaint for the offence was served on him, or
(c) within fourteen days… a notice of intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed, was –
…
(ii) …served on him or on the person…registered as the keeper of the vehicle…”

Service may be effected by, inter alia, first class post.

[2] The Road Traffic Act 1988 provides:

“172 Duty to give information as to identity of driver etc in certain circumstances
…
(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…”

Facts

[3] On 26 April 2018, the appellant’s car was recorded on a speed camera as travelling at 55 mph on the A92 near Balfarg Junction, Glenrothes.  The speed limit for that section of road was 40 mph.  On the following day, a letter was sent to the appellant which, judging from its heading, emanated from Police Scotland.  Specifically, the heading stated that it was from the East Safety Camera Unit of Police Scotland at Glenrothes.  There was reference to the Unit’s website at www.safetycameras.gov.scot.  The heading contained the crest of Police Scotland.  The letter read:

“Dear Sir/Madam
NOTICE OF INTENDED PROSECUTION 
VEHICLE REGISTRATION MARK [Reg No]
In accordance with Section 1 of the Road Traffic Offenders Act, 1988, I hereby give you notice that it is intended to institute proceedings against the driver of the above motor vehicle for the following alleged offence:
Offence Details: Exceed 40 mph Speed Limit
Date and Time: 26-Apr-18 at 15.15 hours
Vehicle: [Reg No] MERCEDES
Vehicle Speed: 55 mph
Offence Location A92 GLENROTHES TO NEW INN NEAR TO BALFARG JUNCTION
THIS ALLEGATION IS SUPPORTED BY PHOTOGRAPHIC AND/OR DVD EVIDENCE
…
You are the Registered Keeper for the above-mentioned vehicle and, in accordance with section 172 of the Road Traffic Act 1988 you are REQUIRED to provide… the full name, date of birth (if known), and home address of the driver of the vehicle at the time and location specified…
…
Philip Gormley
Philip Gormley QPM
Chief Constable 
Police Service of Scotland”

.

The signature of Mr Gormley is an electronic facsimile.  Mr Gormley had resigned as chief constable in February 2018, before the date of the letter.

The Justice of the Peace and Sheriff Appeal Courts 

[4] The case called before the Justice of the Peace Court in Kirkcaldy on 10 October 2018.  A trial diet was fixed for 21 January 2019.  It was at that diet that the appellant sought to advance a plea to the competency of the proceedings on the basis that the Notice of Intended Prosecution was invalid.  A debate was held on 4 February 2019, at which the appellant founded upon cases concerning the signature of complaints (Lowe v Bee 1989 SCCR 476 and Shahid v Brown 2011 JC 119).  Under reference to Whiteside v DPP [2011] EWHC 3471 (Admin) and Pope v Clarke [1953] 1 WLR 1060 at 1062, the respondent countered that there was no need for a notice of intended prosecution to be signed.  If a defect in a notice was a minor one, the flaw did not invalidate it (London & Clydeside Estates v Aberdeen District Council 1980 SC (HL) 1).  The JP held that there was no need for the notice to be signed or for it to be signed by a particular person.  She therefore repelled the plea to the competency.

[5] The Sheriff Appeal Court heard the appeal ([2019] SAC (Crim) 4) in conjunction with Procurator Fiscal, Aberdeen v Coulson, which was concerned with the validity of a section 172 requirement in similar circumstances.  The appellant departed from the submission based upon any comparison between notices of intended prosecutions and complaints.  He relied instead on Foster v Farrell 1963 JC 46, Pamplin v Gorman [1980] RTR 54, Michie v Gilchrist 2000 SCCR 627 and Arnold v DPP [1999] RTR 99) which were concerned with the section 172 requirement.  In refusing the appeal, the SAC held (at para [7]) that:

“For notice to be validly given under section 1 of the Road Traffic Offenders Act 1988, it is necessary only for the notice of intended prosecution to comply with the requirements of that section.  The section does not require a notice to be signed.  It does not stipulate who may serve the notice, or whose authority is required to do so.  The requirements are that the notice must specify the nature of the alleged office and the time and place where it is alleged to have been committed.  Nothing else is required.  Accordingly, the presence of a digital signature is irrelevant.  It does not affect the validity of the notice for its statutory purpose, which is the limited purpose of giving notice of an intended prosecution.  It follows that an inaccuracy in identification of the Chief Constable is irrelevant to whether notice has properly been given.  The Chief Constable’s authority is not required for section 1 purposes.  A notice of intended prosecution is no more than an administrative act.  This is consistent with the fact that such notice can be given verbally (sic) at the time of the offence, or by service of a complaint”

.  

Submissions
Appellant

[6] The appellant maintained that a notice of intended prosecution was a formal document which required to be served on an accused.  It was not merely an administrative act.  It had to emanate from a body with the statutory authority, implied or express, to give it.  This notice was invalid because it came from someone who was not entitled to give it.

Respondent

[7] The respondent maintained that the status of a notice of intended prosecution had to be understood by looking at the purpose of the legislation.  Such notices were not formal documents, such as complaints or indictments.  Their objective was to draw to the proposed accused’s attention, while the facts were still in his mind, the prospect of prosecution; thus enabling him to prepare his defence (Pope v Clarke (supra) at 1062; followed in McGlynn v Stewart 1973 JC 33 at 38; Walker v Higson 1997 SCCR 767).  No specific form was required (Richardson v Delgarno 2012 JC 160 at para [7]).  There was a presumption that the requirements of the section had been met (Service v Cotton 2008 SCCR 272 at paras [5-6]).  The issue was whether the notice sufficiently specified the nature of the offence, with the necessary particulars, to recall the mind of the potential accused to the facts upon which the prosecution intended to rely.  The defect in the signature of the Chief Constable was irrelevant to the issue of whether the appellant had been put on notice about his driving.  There were, at one end of the spectrum, cases in which a fundamental obligation had been outrageously ignored or defied, such that the citizen could safely ignore what had been done and treat it as having no consequences to him.  At the other end, there were cases where the defect in procedure had been so nugatory or trivial, that the authority could safely proceed; confident that the courts would decline to listen to any complaints (London & Clydeside Estates v Aberdeen District Council (supra) at 30).

Decision

[8] A notice of intended prosecution is not a mere administrative act.  Whether in oral or written form, it is a statutory prerequisite to the prosecution of certain road traffic offences.  Although it is not akin to an indictment or a complaint, and does not require to be signed (Arnold v DPP [1999] RTR 99), such a notice cannot be given casually (Hughes v Nimmo 1910 SC (J) 45, Lord Ardwall at 47).  It is a formal statement, which must provide the requisite information to enable the potential accused to prepare his defence (ibid; Watt v Smith 1942 JC 109, LJG (Normand) at 112).  It must emanate from, or be expressly authorised by, a person or institution officially involved in the prosecution of motoring offences (ie Police Scotland or the Crown Office and Procurator Fiscal Service).  A statement by an ordinary citizen could hardly suffice.  It is not a requirement that the Chief Constable or even an officer of a senior rank be involved.  Roadside warnings will, of course, be given by officers of all ranks. 

[9] In determining whether a particular document constitutes a sufficient notice, “a modicum of commonsense” is appropriate (Venn v Morgan [1949] 2 All ER 562, Lord Goddard CJ at 563; adopted in Walker v Higson 1998 SLT 131, LJC (Cullen), delivering the opinion of the court, at 132).  Errors in, for example, the description of the alleged offence may be ignored, if the notice nevertheless served its purpose and the accused was not misled (Pope v Clarke [1953] 1 WLR 1060, Lord Goddard CJ at 1062).  It is sufficient for its validity if the purported notice satisfies the over-riding purpose of section 1 of the Road Traffic Offenders Act 1988, at least in the absence of the accused having been prejudiced or misled (McCoull v Skeen 1974 SLT (notes) 48).  Whether it does so is bound to involve a consideration of its whole terms.

[10] The notice of intended prosecution in this case came on notepaper headed “Police Scotland” and bearing that institution’s official crest.  There was a specific reference to the East Safety Camera Unit and to the relative website which, if consulted, would have made it even clearer that the Unit operated under the auspices of the police.  All the requisite details of the alleged offence were given.  The letter concluded with an electronic signature of a person who was not then the chief constable (a fact of which the appellant may, or may not, have been, aware).  This was an error, but it was not one which affected the validity of the notice, which continued to meet the purpose of the statutory provision.  It is not suggested that the error misled or prejudiced the appellant.

[11] The appeal is refused.