Drink-driver loses appeal against conviction following admission despite ‘no independent corroboration’ claim

It was argued on behalf of the appellant that there was “no independent corroboration” of the essential fact that he had driven the car to the hospital, but the Criminal Appeal Court ruled that the evidence corroborating the appellant’s admission was “sufficient to allow a conviction” even though it “may not have been very substantial”.

Lord Brodie, Lord Bracadale and Lady Cosgrove heard that the appellant Luke Paul Gray was convicted after driving a girl to the Accident and Emergency Unit at Monklands District General Hospital in Airdrie, where he was breathalysed and found to have 62mgs of alcohol in 100mls of breath, which exceeded the prescribed limit of 35mgs of alcohol in 100mls of breath, contrary to section 5(1)(a) of the Road Traffic Act 1988.

At trial the Crown led the evidence of a staff nurse who had suspected the appellant of driving while under the influence of alcohol or drugs, having seen that he had car keys in his hand, and to whom he admitted that he had driven to the hospital.

The Crown also led the evidence of two police officers, who said that when the appellant was asked where his car was, he indicated a Silver Vauxhall Astra parked on the road very close to the entrance to the A&E department and produced the car keys for the car from his pocket.

The appellant was required in terms of section 712 of the 1988 Act to provide the name of the driver of the car, to which he replied “I was driving the car”.

At the close of the Crown case the defence solicitor made a submission of “no case to answer” but the sheriff repelled that submission.

The appellant thereafter did not lead any evidence and he was subsequently convicted after the sheriff made certain findings in fact.

The issue in the appeal by stated case was whether the evidence led by the Crown was sufficient to corroborate an essential part of its probandum, that the appellant had been driving outside Monklands Hospital on the date in question.

On behalf of the appellant it was stressed that the rule that essential facts require to be corroborated remained an “important aspect of Scots law” and that notwithstanding the answer given to the question put to him, it remained necessary for the Crown to corroborate the fact that the appellant had been driving a motor vehicle in the identified public place.

It was submitted that there was no independent corroboration of the essential fact of driving, as all the relevant evidence had come from the appellant. In the circumstances he should therefore have been acquitted, it was argued.

In reply the advocate depute invited the court to refuse the appeal, as the appellant had made an admission as to having been driving the car and had pointed out a vehicle which he said was his car. In these circumstances “very little was required by way of corroboration,” it was argued.

The judges agreed and refused the appeal.

Delivering the opinion of the court, Lord Brodie said: “e have come to the conclusion that while the evidence corroborating the appellant’s admission may not have been very substantial, it was sufficient to allow a conviction in the terms of the charge.

“As the advocate depute had submitted, given the terms of the admission made by the appellant in response to the section 172 request, little more was required to establish his guilt. What there was, in our view, fell within two categories.

“The first category comprises the circumstances which related to the vehicle, that is the silver Vauxhall Astra pointed out by the appellant. The appellant was seen to have car keys in his possession, firstly by the nurse who encountered him in the Accident and Emergency Department and secondly, by the police officers to whom he produced the keys when he pointed out what, according to the appellant was his car.

“We accept that the information that the car was the car that he had driven, came from the appellant but there was a car near the entrance and the appellant produced keys which he said were the keys to that car.

“The second category of evidence comprises the facts associated with the woman with whom the appellant was seen to be by the nurse in the Accident and Emergency Department. The woman was clearly in an incapable condition.

“She was described by the nurse as ‘not in a good state, she was hanging off the edge of the chair’. It may be inferred that the woman would have been unable either to drive herself or to walk to the hospital.

“The appellant had apparently placed her in the wheelchair. The car, as we have already indicated, was parked close to the entrance to the Accident and Emergency Department. That is consistent with the appellant having brought a woman who was unable to make her own way without assistance to the Accident and Emergency Department.”