APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Mackay of Drumadoon Lord Bonomy Lord Malcolm	[2012] HCJAC 99 Appeal No: XJ1019/11 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in STATED CASE in causa COLIN MCINTYRE Appellant; against PROCURATOR FISCAL, KIRKCUDBRIGHT Respondent: _______

Appellant: Paterson, Solicitor Advocate; Paterson Bell

Respondent: Stuart, AD; Crown Agent

26 July 2012

Introduction

[1] The appellant appeals by way of stated case against his conviction at Kirkcudbright Sheriff Court on 22 September 2011 of a contravention of section 2 of the Road Traffic Act 1988 (as amended). No appeal is taken against the penalties imposed, a fine of £600 and disqualification from driving for a period of 1 year.

[2] The charge which the appellant, and his two co-accused, Douglas Robert Anderson and Michael Andrew McCulloch, faced was in the following terms:-

"On 9^th November 2010 on a road or other public place, namely the Market Hill, King Street, St Andrew's Street, and Abercromby Road, all in Castle Douglas and on the A713 Castle Douglas to Ayr Road near to Greenlaw, you COLIN MCINTYRE, DOUGLAS ROBERT ANDERSON and MICHAEL ANDREW MCCULLOCH did drive a mechanically propelled vehicle, namely motor cars registered number KS05LGW, X159UHH and R515KNH respectively dangerously insofar as you MICHAEL ANDREW MCCULLOCH driving R515KNH did challenge said COLIN MCINTYRE driving KS05LGW and DOUGLAS ROBERT ANDERSON driving X159UHH to race your said motor vehicles, then all said motor vehicles did leave said Market Hill and drive down said King Street and St Andrew Street and enter onto said Abercromby Road at speeds in excess of 30 miles per hour and on said Abercromby Road COLIN MCINTYRE did overtake you DOUGLAS ROBERT ANDERSON'S preceding motor vehicle on the approach to a blind summit on a part of said Abercromby Road with a double solid white line system, in place where it was not safe to do so, and on said A713 near to said Greenlaw, both aftermentioned [sic] motor vehicles drove at a speed in excess of the nationally applying speed limit of 60 miles per hour and you MICHAEL ANDREW MCCULLOCH did overtake said DOUGLAS ROBERT ANDERSON'S preceding motor vehicle on the approach to a blind hill crest with a solid white line system in place where it was not safe to do so and in the face of an oncoming motor vehicle then hidden in a dip in said roadway whereby the driver of said oncoming motor vehicle required to take evasive action to avoid colliding with said motor vehicles, causing it to leave the said roadway and whereby MICHAEL ANDREW MCCULLOCH'S said motor vehicle struck that of said DOUGLAS ROBERT ANDERSON, causing it to collide with an adjacent drystane wall and overturn, coming to rest on its roof on said roadway and whereby said MICHAEL ANDREW MCCULLOCH'S motor vehicle then struck an adjacent wooden fence, left said roadway and coming to rest in an adjacent garden and you COLIN MCINTYRE did drive your said motor vehicle away from the scene of said road traffic collision without stopping to render assistance or to summon assistance;

CONTRARY to the Road Traffic Act 1988, Section 2 as amended"

[3] At the conclusion of the trial, the appellant was convicted of that charge under deletion of the words "and on the A713 near to Greenlaw, drive at a speed in excess of the nationally applying limit of 60 miles per hour". The co-accused McCulloch had previously pled guilty to the charge. At the conclusion of the trial, the co-accused Anderson was acquitted of the charge.

[4] After the procurator fiscal had closed the Crown case the solicitor for the appellant made a submission in terms of section 160 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). The basis of that submission was that there had been insufficient evidence led to entitle the sheriff to allow the prosecution of the appellant to proceed, having regard to the provisions of section 1(1) of the Road Traffic Offenders Act 1988 ("the 1988 Act"). That subsection applies to a prosecution for a contravention of section 2 of the Road Traffic Act 1988 and falls to be read with section 2(1) of the 1988 Act.

[5] Section 1(1) and section 2(1) of the1988 Act provide as follows:-

"1. (1) Subject to section 2 of this Act, 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 for some one or other of the offences to which this section applies would be taken into consideration, or

(b)   within fourteen days of the commission of the offence a summons...for the offence was served on him, or

(c)    within fourteen days of the commission of the offence a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed, was -

(i)                 in the case of an offence under section 28 or 29 of the Road Traffic Act 1988 (cycling offences), served on him,

(ii)               in the case of any other offence, served on him or on the person, if any, registered as the keeper of the vehicle at the time of the commission of the offence."

.....

"2. -(1) The requirement of section 1(1) of this Act does not apply in relation to an offence if, at the time of the offence or immediately after it, an accident occurs owing to the presence on a road of the vehicle in respect of which the offence was committed."

It is a matter of agreement that section 1 of the 1988 Act applies to an offence under section 2 of the Road Traffic Act 1988. The Crown contends that section 2 applied to the circumstances of this case.

Submissions on behalf of the appellant

[6] Mr Paterson, the solicitor advocate for the appellant, explained that before the sheriff it had been a matter of agreement that a police officer had verbally warned the appellant on 17 November 2010 about the possibility of prosecution. However, that was not on the date of the alleged offence. The appellant had also received written notice of an intended prosecution on 25 November 2010, a date outwith the 14-day period provided for in section 1(1) of the 1988 Act.

[7] Mr Paterson went on to explain that the sheriff had held that the Crown had been entitled to rely on section 2(1) of the 1988 Act. She had taken the view that there was evidence of a joint venture between the three accused, which had begun with their setting off from the Market Hill car park, travelling through Castle Douglas and out onto the A713 road, as part of which the appellant had overtaken the car being driven by the co-accused Anderson. The sheriff had accepted the Crown's submission that there was sufficient evidence of a continuity of conduct, involving the three accused, which had culminated in the accident involving the vehicles of the appellant's two co-accused. She had held that continuity of conduct provided a sufficient causal link between the appellant's offence and the accident. Accordingly, section 2(1) of the 1988 Act applied and the submission had been refused.

[8] In arguing that the sheriff had erred in refusing the submission of no case to answer, Mr Paterson accepted that the sheriff had been entitled to hold that the appellant had been driving dangerously. That dangerous driving had occurred when the appellant had overtaken the co-accused's car within Castle Douglas. He had done so on the approach to a blind summit in Abercromby Road and by crossing solid double white lines. Mr Paterson also accepted that the sheriff had been entitled to hold that there had been a race involving the three vehicles, when they left the Market Hill car park in Castle Douglas. He conceded that if the race continued after the three cars left Castle Douglas his argument would fail. However, he submitted that there had been no evidence from which it could be inferred that the race had continued after the vehicles had left Castle Douglas. For that reason, it had not been open to the sheriff to hold that the appellant's vehicle was connected with the accident involving the co-accused's vehicles. When that accident occurred, the appellant had been some distance ahead of the other two vehicles and had not been involved in any way in the occurrence of the accident.

[9] During his submissions Mr Paterson referred to two authorities, Quelch v Phipps [1955] 2 All E.R. 302 and R v Dean Myers and Ennis-Simpson [2007] EWCA Crim 599, [2007] 2 Cr.App.R.19. In the first of those two authorities the Court was concerned with the construction of section 22(1) of Road Traffic Act 1930, which provides that "if in any case, owing to the presence of a motor vehicle on a road, an accident occurs" the driver of that vehicle must, in certain circumstances, report the accident at a police station or to a police constable. The Court held that the statutory provision did not apply unless there was some direct (as opposed to indirect) connection between the vehicle being driven by the defendant and the occurrence of the accident. Mr Paterson argued that in the present case there had been no direct connection between the vehicle being driven by the appellant and the accident involving the co-accused's vehicles.

[10] In the second of the authorities, R v Dean Myers and Ennis-Simpson, the facts of the case involved the two appellants and a third young man, who were driving separate cars. The third young man was killed in an accident. Prior to the accident, the three young men were observed driving in "something of a convoy". They were observed driving dangerously, cutting across traffic, travelling at excessive speed and driving on the wrong side of the road. As they drove along a road in London, all three drivers had turned round their cars in a dangerous manner, so as to face in the opposite direction. The first defendant performed a handbrake turn, the second defendant performed a three-point-turn and after all three drivers had turned round the third driver set off back along the road. Several hundred yards along that road the third driver's car veered to the right, collided with a parked van and the driver was killed. Subsequent investigation indicated that there had not been any contact between the three cars and that the cause of the accident had been the driving of the third driver and his unnecessary use of a handbrake, possibly because he was intending to complete a handbrake turn.

[11] The judgment of the court was delivered by May L J, who in his judgment referred to Quelch v Phipps. Having compared the policy that lay behind section 22 of the Road Traffic Act 1930 with that behind the provisions of section 1 and 2 of the Road Traffic Offenders Act 1988 he stated:-

"16.In our judgement, it is helpful to examine the policy or purpose of each of the two statutory provisions to which we have been particularly referred and where Parliament has, in rather different circumstances, referred to an accident occurring owing to the presence of a vehicle on a road. Section 22 of the 1930 Act required the driver of the vehicle to report the accident at a police station. The case of Quelch v Phipps shows that the driver of the vehicle did not have to be to blame for the accident, nor was it necessary for the vehicle itself to have sustained an impact with another vehicle or object or a person. But the policy appears to have been that those involved in some way causatively in a road traffic accident should be required to report that accident to the police.

17. The policy of sections 1 and 2 of the Road Traffic Offences Act 1988 is of course different. By section 1, Parliament has provided that those prosecuted for road traffic offences to which the section applies are not generally to be convicted unless they receive a warning or notification that they are at risk of being prosecuted at or soon after the time of the offence. The policy must be to recognise that it is increasingly difficult to deal with and, if appropriate, to defend road traffic prosecutions with the passage of time, and drivers ought, in fairness, to know that they are at risk of prosecution at or soon after the event.

18. The policy of the relevant exception in section 2 must be, speaking generally, that drivers who have committed a relevant road traffic offence and whose vehicles have been involved in or concerned with an accident, do not need the warning of notification because the very fact of being involved in or concerned with the accident is a sufficient indication of the risk of prosecution. We use here the expression 'being involved in or concerned with' for the moment to gloss the statutory language, not to define. The section requires (a) 'the commission of a road traffic offence' and (b) 'an accident occurring at the time of the offence or immediately after it, owing to the presence on the road of the vehicle in respect of which the offence was committed.'

19. In many such instances, we would expect the offence to have been the or at least a cause of the accident, but the section does not we think absolutely require that. This is because the section attributes the accident to the presence of a vehicle on the road, not to the fact that its driver committed a road traffic offence. The policy of the section however, in our view, requires there to be a sufficient causal link between the offence and the accident that the driver does not need to be warned of the risk of prosecution.

20. Applying that analysis, we consider that there was a sufficient causal link between Bastien's fatal accident and the presence on the road of the vehicles which these appellants were driving dangerously. All three of them were driving dangerously: one of them crashed his car. The accident occurred owing to the presence on the road of all three dangerously driven vehicles. Neither of the appellants needed to be warned, in the light of their involvement in that accident, that they risked prosecution."

Submissions on behalf of respondent

[12] In response, the Advocate Depute argued that the sheriff had been entitled to repel the submission of no case to answer. It was submitted that the sheriff had been entitled to hold that the three drivers had been engaged in a joint venture, which had involved them leaving the car park in procession, taking part in a race on the public roads, during which the appellant had dangerously overtaken the car of the co-accused Anderson. Some distance thereafter, after the three accused had left Castle Douglas, the accused McCulloch had overtaken the car of the accused Anderson and the accident had occurred. Relying on the authority of R v Myers and Ennis-Simpson, the Advocate Depute submitted that were was a sufficient causal link between the accident and the presence on the road of all three of the cars, which had been taking part in a race and two of which had carried out dangerous overtaking manoeuvres.

Discussion

[13] In our opinion, the sheriff was entitled to refuse the submission made at the end of the Crown case, which was to the effect that, having regard to the provisions of section 1 of the 1988 Act, she had heard insufficient evidence in law to allow the case to proceed any further against the appellant.

[14] In the Stated Case, the sheriff summarises the evidence the Crown led. The co-accused McCulloch gave evidence about the three accused meeting in the Market Hill car park in Castle Douglas, where he had challenged his co-accused to a race. He spoke to them saying "no" at first, but to them then agreeing. He gave evidence that the three accused had then driven their cars out of the car park, with the co-accused Anderson leading, the appellant following next and the witness himself last of the three. He spoke to the appellant overtaking the co-accused Anderson and the three cars heading out of Castle Douglas onto the A713 road. He gave evidence of the collision which subsequently took place. It had occurred when he had overtaken the co-accused Anderson's car and had found his vehicle in the path of the oncoming vehicle.

[15] Crown witnesses Adam Graham and James Kelly both spoke to the co-accused McCulloch challenging the co-accused Anderson to a race; to the three accused leaving the car park; to the appellant overtaking Anderson within Castle Douglas on the approach to the brow of a hill, where they considered it dangerous for him to do so; to the appellant heading out onto the A713 road followed by the other two accused; and to the appellant stopping 100-150 yards ahead of the collision involving the two co-accused to observe the scene of the collision, before driving off (see finding in fact 10).

[16] Crown witness Andrew Moore spoke to the three vehicles leaving the car park at the same time and "shooting off" as they left Castle Douglas.

[17] Crown witness Michael Houston, who was driving along the A713 in the opposite direction to the vehicles of the three co-accused, spoke to requiring to take evasive action when he was confronted by the accused McCulloch's vehicle on the wrong side of the A713 road.

[18] Crown witness Albert Connolly spoke to coming upon the accident after it had happened. He spoke to the accused Anderson's vehicle resting on its roof on the roadway after colliding with an adjacent drystane wall and the accused McCulloch's motor vehicle coming to rest in a garden adjacent to the road way.

[19] PC Stuart McNeil spoke to all three accused accepting during police interview the proposition that they had taken part in a race on a public road.

[20] In our opinion the sheriff was entitled to repel the submission made under reference to section 160 of the 1995 Act. From the evidence led by the Crown, it was open to her to infer that the three accused departed from the Market Hill car park on a joint venture. That joint venture had been in the nature of a race on the public roads. After that race began the accused in the three cars followed the same route within Castle Douglas and after they left Castle Douglas. The three vehicles remained in sight of each other up until the accident involving the appellant's two co-accused. Two of the three accused executed dangerous overtaking manoeuvres. The first was carried out by the appellant. It involved the appellant exceeding the speed limit of 30 mph, when he overtook the vehicle of his co-accused Anderson on the approach to the blind summit and crossed over solid double white lines. The second dangerous overtaking manoeuvre involved the co-accused McCulloch crossing onto the wrong side of the A713 road and was a direct cause of the accident involving both of the appellant's co-accused. Following the occurrence of that accident the appellant stopped within 100-150 yards of the scene of the accident.

[21] In our opinion, following the guidance to be found in R v Myers and Ennis-Simpson, it was open to the sheriff to take the view that the offence which the appellant faced and which the Crown evidence was capable of establishing fell within the ambit of section 2(1) of the 1988 Act. That offence involved all three drivers racing. It was open to the sheriff to infer that when the accident occurred, or immediately before it, all three accused were racing. On that basis, it was open to the sheriff to hold the accident had occurred for, amongst other reasons, the presence on the road of the car being driven by the appellant when he committed the offence he faced. In these circumstances section 2(1) of the 1988 Act applied and the requirement of section 1(1) of the 1988 Act did not apply to the prosecution of the appellant on the charge he faced and of which he was convicted. For these reasons the sheriff did not err in law in repelling the submission in terms of section 160 of the1995 Act.

[22] In these circumstances, the first question in the stated case falls to be answered in the negative and the second question in the positive. The appeal against conviction is refused.