Motorist found to have caused death by dangerous driving after examination of facts fails in appeal against decision

The Appeal Court of the High Court of Justiciary upheld the ruling by a temporary judge, who was satisfied beyond reasonable doubt that the appellant had committed the offence libelled and that, on the balance of probabilities, there were no grounds for acquitting him.

‘Death by dangerous driving’

Lord Brodie, Lord Drummond Young and Lord Turnbull heard that the appellant “ASG” was indicted in the High Court in respect of three charges, the first of which was that on 10 January 2016 he caused the death of a pedestrian who was crossing Renfrew High Street by dangerous driving, contrary to section 1 of the Road Traffic Act 1988.

The appellant, who was driving without wearing glasses when his eyesight was below the standard required, failed to observe the elderly man crossing the road and struck him with his vehicle to his severe injury, as a result of which he died in hospital five days later.

At a preliminary hearing on 22 February 2019 the court was advised that a plea in bar of trial had been lodged on the ground that the appellant suffered from vascular dementia and was accordingly unfit for trial.

Having considered the medical reports provided to it and having regard to the criteria set out in section 53F of the Criminal Procedure (Scotland) Act 1995, the court found in terms of section 54(1) that on the balance of probabilities the appellant was unfit to stand trial and appointed a diet for an examination of facts in terms of section 55 of the Act.

The examination of facts took place on 22 July 2019 and the following days before the temporary judge.

‘Examination of facts’

Identification of the appellant as the driver of the motor car at the relevant time having been agreed, the attendance of the appellant was excused in view of his medical condition, in terms of section 55(5) of the 1995 Act.

The court had heard evidence from a police officer who attended the scene of the accident and spoke to the appellant, who told that officer that he had turned into Charles Avenue from the High Street but claimed he simply did not see the pedestrian crossing the road.

The appellant confirmed to the constable that he had been the driving the car which struck the man and that it was his vehicle.

After carrying out a breath test, which returned a negative result, the officers advised the appellant that they would require him to undertake eyesight test, which he volunteered to do but he was unable to read another car number plate.

And at no time before, during or after the test did the appellant indicate that he required to wear glasses, nor did he make any reference to wearing glasses at the time of the accident, although the officer did notice that there were several pairs of glasses thrown on the back seat of the car.

On 26 July 2019 the temporary judge found that he was satisfied beyond reasonable doubt that the appellant had committed the offence libelled in charge 1 - the advocate depute having indicated to the court that he was no longer seeking a determination in respect of the other two charges on the indictment - and that, on the balance of probabilities, there were no grounds for acquitting him.

‘Insufficient evidence’

However, the appellant appealed the temporary judge’s finding, arguing that the evidence led was “insufficient” to allow the judge to make the inferences necessary for a conviction on charge (001).

It was submitted that there was no direct evidence that the appellant was not wearing glasses at the time of the collision.

The police officers could only speak to the positions of the now deceased complainer and the appellant’s vehicle after the event.

Nothing ought to have been inferred from the fact that the appellant had not asked police officers for, or mentioned, his glasses; he was exercising his right to silence.

He had not been cautioned and there was no onus on him to advise the police as to his visual acuity. Further, no enquiry had been made by the attending officers as to whether the appellant had been wearing his glasses.

Proof of such a failure was necessary to bring the appellant’s driving within the ambit of section 1 of the 1988 Act; absent proof of a failure to wear glasses, the test for dangerous driving could not be met - meaning the driving could amount only to “careless driving”.

The appellant was carrying out a manoeuvre at the same time, and so had limited opportunity to see the deceased. In the absence of some other aggravating factor, such as excessive speed, in colliding with the deceased the appellant could only be held to be guilty of careless driving.

‘Failure to wear corrective eyewear’

Refusing the appeal, the judges came to the same conclusion as the temporary judge.

Delivering the opinion of the court, Lord Brodie said: “That the appellant was found not to be wearing glasses shortly after the accident, that no glasses were found in a place where he might be expected to have placed them had he been wearing them when driving, that he did not produce glasses thereafter despite participating in an eye test, that he attributed the accident to his not seeing a presumably slow-moving pedestrian who was in plain sight, and that the attending police officers could only explain the accident as having occurred because the appellant had not seen the pedestrian, taken together, leads us to infer that the appellant was not in fact wearing the corrective eyewear which was necessary if he was to be fit to drive and that it was the appellant’s consequently impaired vision which caused him not to see the now deceased and therefore to drive his car into a collision. 

“Not to wear necessary corrective eyewear when driving, is to drive in a way that falls far below what would expected of a competent and careful driver and this would be obvious to a competent and careful driver. Accordingly, having regard to section 2A of the 1988 Act we conclude, on the primary facts determined by the temporary judge, that the appellant did the act which constituted the offence of contravention of section 1 of the Act with which he had been charged.”