Scottish Sheriff Court Decisions

PF Selkirk v Henry Rennie Drummond

22 April 2013

In deference to the careful submissions and presentation of the evidence I continued this case to give consideration to the issues.

 

The evidence and submissions bring into sharp focus an issue of the extent to which substantially excessive speed, in a context of challenged potential hazards ,can found a conviction for dangerous driving under Section 2 of the Road Traffic Act 1988, as opposed to a conviction for exceeding the speed limit which was offered and refused at the outset of the trial.

 

The bare bones of the evidence are the subject of a Joint Minute, to the effect that the accused drove his motor cycle at a speed of 124 miles per hour on a straight stretch of the A7 near Heriot in Scottish Borders Region.

It was common ground that there were no other characteristics of the driving itself which were the subject of criticism : it was also common ground that there was no other traffic travelling in either direction at the material time and that the road, weather and visibility conditions were all good.

 

The approximate length of the relevant section of road was variously put at between half and three quarters of a mile for its full visible extent. There is a corner at each extremity of the straight.

It was also common ground that the driving at 124 mph was over a relatively short distance although the precise extent of that distance was not agreed.

 

Technical evidence from a defence expert which I accepted , demonstrated that the distance covered during the actual functioning of the Laser speed measuring device was some 296.60 metres and that the motor cycle must have slowed from that speed in order to negotiate a corner at the exit from the straight. It could not be established what was its speed on entering the straight, the police car being stationed at a point some short distance along the straight itself and the timing of the speed being from a point after it passed the stationary police car.

 

On behalf of the accused it was asserted that he is a skilled motor cyclist who has undertaken Advanced Driver training and that his motor cycle was in near perfect condition : it was asserted that he was acutely conscious of potential hazards , that he was familiar with the road and had taken account of all of these hazards whilst driving at 124 mph.

The thrust of the evidence in the course of the trial was accordingly of competing analysis of those hazards, their relevance to potential danger and the extent to which they demonstrated that the driving of the accused fell far short of the standard of a careful and competent driver in the face of obvious or potential dangers.

 

Before enumerating those hazards it is appropriate that I provide the competing bases in law upon which the respective submissions proceeded.

 

The Procurator Fiscal Depute referred me to three cases viz.

1.    O'Toole v McDougall 1986 SCCR 56 which concerned an episode of driving at speeds between 100 and 120 mph over more than eleven miles on a dual carriageway with a speed limit of 70mph. There was other traffic present. There was ample evidence of a number of potential dangers although none was actually encountered. There was no evidence of danger or inconvenience to anyone.

The Lord Justice General concluded (p.59 ) that "...anyone who drives on that stretch of road in the face of potential dangers which it obviously carries at speeds of 100-120mph is driving recklessly, however skilful he might be in controlling the vehicle at whose wheel he sits..." (emphasis added)

 

2.Service v Daldrup 2005 SCCR 693 which involved driving at speeds up to 126mph on a motorway over a distance of 14.9 miles by a driver with extensive experience of driving at high speeds on unrestricted German motorways and that his vehicle was well maintained and had an efficient electronic braking system.

Once again the existence of a variety of potential hazards was explored in evidence, none of which was actually present. The sheriff acquitted the appellant on the basis that there was no other traffic present, it was daylight and good visibility for about half a mile.

On a Crown appeal the appeal was allowed and the case remitted back to the sheriff with direction to convict. It was observed ( p695 para(7)) that "...we are entirely satisfied that while it may be in most cases speed in itself is not enough, a speed of this level can be regarded as sufficient to constitute dangerous driving.(emphasis added) Equally we are satisfied there need not be actual risk but merely potential."

 

3.    McQueen v Buchanan 1997 SLT 765 where an accused drove at 114mph on a single carriageway subject to a speed restriction of 60mph and with no junctions or laybys on his side, road conditions and weather were good and traffic was light.

It was held that it was open to the sheriff to conduct an assessment as to the extent to which other drivers.....might be put at risk by the accused's speed and [was entitled to convict]

Importantly it was observed (p.766) that "...it should be emphasised that driving at a grossly excessive speed in itself may in certain circumstances give rise to such obvious risk that the statutory test is satisfied without the need to conduct a minute examination into the layout of the road and the presence or otherwise of other traffic in the vicinity. This case is not presented in that way by the Sheriff, so such questions as may arise as to whether pure speed can amount to dangerous driving are not present here. But drivers should not overlook the fact that they may be exposed to a charge of dangerous driving if they drive on roads which are not designed for high speed driving at speeds which are so grossly in excess of the speed limit that any reasonable person would conclude that the speed at which they were driving was so fast as to be in itself dangerous ....the demands of public safety require a common sense approach to what amounts to driving dangerously within the meaning of the statute............but the potential risks must also be assessed." (emphasis added)

 

 

Mr. McDonnell for the accused sought to distinguish each of the foregoing cases on their facts and referred me to Brown v Orr 1994 SCCR 668 where an episode of driving at 104mph on the A9 in daylight with good road conditions and visibility, no other traffic in the vicinity and none of the field entrances laybys road junctions etc was found to be sufficiently close to the points between which the speed was measured for there to be a potential danger and there were no findings to support a further finding that the tests [in section 2] had been satisfied.

 

I conclude from the foregoing references to authorities (i) that the skill and the experience of the driver is unlikely to be a material consideration to be taken into account in the whole circumstances of any particular case of this nature : (ii) that grossly excessive speeds on roads which are not designed for high speed driving would entitle any reasonable person to conclude that to drive at that speed was dangerous : (iii) that a common sense approach should be adopted : (iv) that no actual danger requires to be manifest but the existence of potential dangers forms part of the over all common sense assessment which must be made .

 

Potential hazards : these were explored in context along with their respective relevance or significance but I enumerate them in summary only.

1.    The driver himself is more vulnerable to injury

2.    Bus stops to the east and west of the carriageway

3.    An access junction to a cottage

4.    An access to a field

5.    Pedestrians ,farmers on quad bikes, horse riders can all be present and there is no formal pavement.

6.    Wildlife in the form of pheasants, partridges, rabbits to name but a few.

7.    The presence of roadkill.

8.    Gravel on the road and skid risk.

Not in the context of potential hazards but simply as a consequence of the speed there was evidence that the stopping distance for such a motor cycle travelling at 60mph is 92.6m or 303ft. At 124 mph that stopping distance increases to 306.9m or 1000ft.Thus at double the speed the stopping distance trebles.

Some reference was made to the fact that the pursuing police vehicle travelled at a speed of the order of 100mph along the same stretch of road and that if the accused was driving dangerously so were they.

That may well be so but it is nothing to the issue in this case.

 

I have concluded that the weight to be attached to the characteristics of potential as opposed to actual hazards will inevitably be a variable factor in the common sense approach which requires to be adopted : there will be few public roads where it could be said that there are no potential hazards.

The test to be applied is whether or not the driving by the accused fell far below the standard to be expected of a careful and competent driver in the face of obvious or potential dangers

In applying that test and on a common sense approach to what constitutes dangerous driving I would have been satisfied upon the basis of the speed alone, taking account of the stopping distances inherent in that speed and on that road that the accused was for that reason alone driving dangerously.

Separately and in addition I am satisfied that there were sufficient factors present to constitute potential danger and also for that reason the accused is guilty of a contravention of section 2.

T.A.K.Drummond QC April 2013