Lorry driver loses appeal against conviction for dangerous driving and statutory breach of the peace

The Criminal Appeal Court rejected the appellant’s claim that section 172 of the Road Traffic Act 1988, which imposes a duty to give information to a police officer as to the identity of a driver, was an exception to the general rule that evidence led in respect of one charge could be used in relation to other charges.

Lady Paton, Lord Menzies and Lord Matthews heard that the appellant Marcus Howe was found guilty after a summary trial in Ayr Sheriff Court in February 2015 of (charge 1) driving too close to another car, performing a dangerous overtaking manoeuvre which caused an oncoming vehicle to swerve to avoid a collision, and then persistently following the other car, contrary to section 2 of the 1988 Act.

He was also convicted of an offence under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (charge 2) after climbing out of his lorry to approach the other motorist named in charge 1 and behaving in an aggressive manner by waving his fist as him and causing damage to the car by repeatedly kicking the side of the vehicle.

At the close of the Crown case the solicitor for the appellant submitted that the appellant’s response to a police officer’s question in terms of section 172 of the 1988 Act was not admissible in relation to charge 2, as the statutory offence of breach of the peace in terms of section 38 of the 2010 Act was not one of the offences specified in section 172(1).

Thus there was no corroboration of the identity of the appellant as the perpetrator in charge 2 and accordingly it followed that there was insufficient evidence and no case to answer in respect of charge 2.

The sheriff repelled the no case to answer submission, but the appellant appealed by way of stated case, arguing that the sheriff erred in rejecting a submission that a reply to a requirement made by a police officer in terms of section 172 was admissible as evidence only in relation to road traffic charges or otherwise as set out in section 172(1), and in holding that, on the contrary, a reply made in answer to such a request might properly be relied upon by the Crown in proof of a separate charge of a different character outwith the scope of the Road Traffic Acts.

Counsel for the appellant submitted that it was “not a legitimate purpose” to use the reply given to the section 172 inquiry in order to corroborate the identity of an accused in respect of a non-road-traffic-related matter.

While it was conceded that, as a general rule, evidence led in relation to one charge could be relied upon in relation to other charges, nevertheless it was submitted that, in terms of section 172, the only basis upon which the response generated by a section 172 inquiry could be used against the accused person was in relation to a road traffic matter.

Because of the rule against self-incrimination, narrow constraints had to be applied to the use to which section 172 could be put, in order to make the provision “ECHR-compliant”.

Section 172 was therefore an exception to the general rule that evidence led in respect of one charge could be used in relation to other charges.

Arguing that the appeal must fail, the advocate depute argued that it was open to the Crown to libel the events in charge 2 as part of charge 1 and as the sheriff noted in the “reasons for decision”, the driving and the statutory breach of the peace were “inextricably linked”.

It was also submitted that the courts regularly used evidence led in respect of one charge to provide evidence in respect of another charge and therefore it was competent to use the information given in response to a section 172 request.

The appeal judges were not persuaded that the sheriff erred in repelling the no case to answer submission for the reasons he gave, and concluded that the appellant’s response to the section 172 requirement was available as evidence in respect of both charges 1 and 2.

As Lord Hope of Craighead explained in the 2003 case of Brown v Stott, “the approach which has been taken to provisions of this kind is that, unless the legislation provides otherwise, answers which a person is compelled to give in response to a statutory requirement can be used against that person in criminal proceedings”.

Delivering the opinion of the court, Lady Paton said: “The response was obtained lawfully in terms of section 172. It then became evidence available to the Crown (admittedly requiring corroboration) for any offence related to the relevant vehicle at the time and place to which the section 172 inquiry was directed. The observations of Lord Hope, quoted above, confirm the validity of that approach, and also the proportionality of using the section 172 response ‘in criminal proceedings’ (and not just in the narrower context of ‘road traffic offences’).

“The appropriateness of such a use of the section 172 response is illustrated if certain hypothetical circumstances are envisaged: if a driver collided with a pedestrian causing death, the driver’s section 172 response would be available as corroborative evidence in respect of a charge of causing death by dangerous driving in terms of section 1 of the Road Traffic Act 1988; but if the Crown, on further investigation, found that the driver had appeared deliberately to have driven at the pedestrian with murderous intent such that the case had to be re-indicted as ‘murder’, it would be illogical and unprincipled if the section 172 response could not to be used as corroborative evidence identifying the driver in the alleged murder case.

“Finally, we note that, in the circumstances of this particular case, there was a sequence of events involving road traffic matters and also the appellant’s alleged behaviour in breach of section 38 of the 2010 Act. That behaviour was very much part of the sequence of events involving the dangerous driving. As the sheriff notes, the behaviour was ‘inextricably linked’ to the alleged road traffic offence, namely a contravention of section 2 of the 1988 Act.”