High Court holds motorist could not pervert the course of justice by giving ‘deer’ defence

The defence given by Graham Turner to the dangerous driving charge was that a deer had run onto the road and caused him to swerve, something he had stated to passers-by and emergency services personnel who spoke to him at the scene. The Crown’s position was that he did so conscious of his guilt.

The case was heard by Lord Turnbull.

No ongoing investigation

The accident occurred when the accused was driving on the M9 motorway near Plean, Stirling, at approximately 6:30 in the morning. Further information provided by the accused disclosed that he and his two passengers had been deer stalking in Spean Bridge during the night.

While driving along the motorway the accused’s vehicle left the road and travelled down the embankment, striking trees and flipping onto its roof. The accused survived but his two male passengers both died at the scene.

Two passing motorists who stopped to provide assistance described the accused as being in complete shock, which was also confirmed by the ambulance technician and paramedic who attended. The accused said to the motorists that a deer had run onto the road and he swerved to try and avoid it, and he repeated words to this effect to the members of the ambulance service.

Whilst he was in the ambulance, the accused was questioned by the police. He identified himself as the driver of the vehicle and was then informed that the circumstances of the collision would be investigated and cautioned that he did not need to say anything about it. The accused gave the same account of there being a deer on the road to the police.

The first charge on the accused’s indictment alleged that he had fallen asleep at the wheel, causing his vehicle to drift onto the hard shoulder and then down the embankment, thus causing death by dangerous driving. The second charge was that, being conscious of his guilt, he perverted the course of justice by falsely stating to various persons, including those he spoke to prior to the arrival of the police, that a deer had run onto the road.

It was submitted for the accused that, because there was no ongoing criminal investigation at the time the accused spoke to the passing motorists and to ambulance personnel, there was no course of justice to pervert at the material time. He was simply asked what had happened by concerned individuals who were trying to help him and was only repeating what he said earlier to the police officers who spoke to him.

The advocate depute submitted that the course of justice commenced at the point when it was suspected a crime had taken place, in this case the point when the vehicle crashed. The accused had therefore engaged in an active effort to build up a picture of what had happened.

Need for help

In his opinion, Lord Turnbull said of the commencement of the course of justice: “Whilst it is clear that the authorities were alerted to the need for assistance before the accused spoke to anyone specified in charge 2, there is no suggestion that anyone involved at that stage thought that they were reporting a crime.”

He continued: “They were responding to the realisation that there was a need for emergency help. I can see no basis upon which it could be said that the course of justice had commenced by the point at which the accused is said to have spoken to [the passing motorists].”

Turning to the accused’s comments to the police, he said: “If an incident was of such a nature that it was plainly open to the inference that the police investigation might result in criminal proceedings against someone, then it was an investigation which can properly be said to have been in the course of justice since it had already begun and was in the hands of the police. That is the situation which applied when the attending police officers spoke to the present accused.”

Profoundly uncomfortable

Having established that there was a criminal investigation, Lord Turnbull next considered whether the accused’s statement that a deer had run into the road, including when it was given as his defence to the first charge libelled, could constitute a perversion of the course of justice.

Noting that the decision to charge the accused appeared to reflect a change of practice on the part of the Crown, he went on to say: “Since I was provided with no legal analysis of the basis upon which the specified conduct could constitute the crime libelled, I was left with the impression that the decision to include charge 2 may not, in fact, have been the product of mature consideration.”

Evaluating the context of the second charge, he said: “There is, it seems to me, something profoundly uncomfortable in explaining to a jury that the accused person is to be presumed innocent of the first charge brought by the Crown but at the same time permitting the Crown to present a public accusation that his account of innocence in relation to that charge is to be characterised as an attempt to pervert the course of justice.”

He concluded: “The uninterrupted flow of the course of justice includes an assessment of the accused’s defence. The course of justice is not ‘interfered’ with by having to take account of a claim to be innocent, whether that claim is in the end rejected or not. On the contrary, the uninterrupted course of justice requires that such a claim is fully weighed. In reaching this decision I am fortified by the obvious contrast with previous charging practice which is disclosed in the present indictment.”

For these reasons, Lord Turnbull held that the second charge against the accused was irrelevant. Had the charge been relevant, he would have held that that the statements made by the accused prior to speaking to the police were not made in the course of justice and should not be included in the charge.