Bus driver wins appeal against dangerous driving conviction after appeal court views CCTV
A bus driver found guilty of dangerous driving after failing to leave a sufficient gap as he drove past a parked van and passing pedestrian has successfully appealed against his conviction.
The Sheriff Appeal Court quashed the conviction after viewing CCTV footage of the incident, ruling that the appellant’s driving did not meet the test for dangerous driving, or even the lower test for careless driving.
Sheriff Principal Mhairi Stephen QC, sitting with Appeal Sheriff Michael O’Grady and Appeal Sheriff Andrew Cubie, heard that the appellant Charles Henderson was charged with dangerous driving following an incident on 3 January 2018 in Aberdeen, where he was alleged to have driven the bus in such a manner as to “fail to leave a sufficient gap between said vehicle and Alexander Morrison, causing him to become pinned against said vehicle and motor car”, contrary to section 2 of the Road Traffic Act 1988.
‘High risk of harm’
Following a trial at Aberdeen Sheriff Court, he was convicted of the charge - under deletion of the words “causing him to become pinned against said vehicle and motor car” - having found that the accused drove “far too close” to Mr Morrison and there was a “high risk of harm” to the complainer.
However, the appellant challenged the sheriff’s decision to convict of dangerous driving, arguing that the driving as shown on the CCTV footage failed to amount to either dangerous or even careless driving.
It was submitted that the sheriff had removed the gravamen of the offence by deleting what was libelled as the effect or consequence of the appellant not leaving a sufficient gap, which left the charge as one of failing to leave a “sufficient gap” between the bus and the complainer.
In fact, there was “no impact whatsoever” between the bus and Mr Morrison, nor was he “pinned against his vehicle”.
Although Mr Morrison is libelled as “a passing pedestrian” his presence on the roadway was due to him having parked his van on a double yellow line while making deliveries.
It was argued that Mr Morrison had been an “unsatisfactory witness” who had “exaggerated” what had occurred.
The sheriff’s finding in fact 4 was to the effect that the bus driver was going at “a slow speed”, probably around 15 miles per hour.
Mr Morrison, who had stepped around his vehicle to the offside, must have been “clearly visible” to the bus driver, as he was wearing a hi-vis jacket, and it was daylight.
The accused had seen the delivery van parked close to the bus stop but did not stop to let Mr Morrison get into his van, and continued to travel past him, passing him so closely that he had to ‘flatten himself” against his van to avoid injury, and hold on to the door handle for safety as the bus passed him.
There was “no contact” between the bus and Mr Morrison, but the sheriff found that the bus driver drove his bus in such a manner that there was “not sufficient safe space” left between the bus and the van.
Counsel for the appellant challenged the proposition that there was insufficient space between the bus and the van when no collision or impact had occurred between the bus and the van or between the bus and the complainer, adding that the finding that there was a high risk of harm “could not be justified on the evidence”.
Allowing the appeal, the judges described the appellant’s driving as “misjudgment” rather than dangerous or careless.
Delivering the opinion of the court, Sheriff Principal Stephen said: “We take a different view of the CCTV evidence from the sheriff. The video is important and, as we have said, is part of the factual matrix.
“We are of the view that, at its highest, the appellant’s driving or actings might be considered a misjudgement but that is putting it at its highest. This is not a situation where the appellant has shown a complete disregard for the safety of other road users.
“On further consideration of the CCTV, we have formed the view that what occurred here, with particular regard to the front facing camera footage, is that there was an unfortunate coincidence between the complainer walking round the front of his vehicle in a fairly normal fashion effectively into the path of the bus as it began to move into the bus stop.
“Such a situation, (moving vehicles passing close to parked vehicles) which can arise daily on our roads, involves drivers and pedestrians making decisions or assessing risk in a very short space of time.
“This was, in effect, a dynamic and developing situation where both the driver and the pedestrian, Mr Morrison, required to exercise their own judgement. Crucially, there was no impact between the bus and Mr Morrison.”
The appeal sheriffs concluded: “In these circumstances, we have little difficulty in concluding that the sheriff was not entitled, even on the facts she found proved, to come to the view that the appellant’s driving fell far below the standard of the careful and competent driver and accordingly we answer the question posed by the sheriff in the stated case in the negative.
“The sheriff was not entitled to find that the appellant’s driving met the test for dangerous driving (section 2A Road Traffic Act 1988).
“We are, of course, concerned also to deal with the lesser standard of careless driving and for the reasons we have already given, mainly due to the timing issue we take the view that this was not a situation where a criminal offence was committed at all by the appellant.
“We are not satisfied that the standard of the appellant’s driving in this particular instance meets the lower test for careless driving. In these circumstances clearly the conviction for section 2 (dangerous driving) must be quashed and there is no finding that there has been a contravention of section 3 of the Road Traffic Act 1988.”
© Scottish Legal News Ltd 2020