Motorist who claimed speeding prosecution notice signed by former police chief was ‘invalid’ fails in appeal

John Scrymgeour-Wedderburn challenged the competency of the prosecution on the basis that the notice included the digital signature of Philip Gormley, who had by that time resigned from his post as chief countable of Police Scotland.

However, the Sheriff Appeal Court refused an appeal against a lower court’s decision to reject the challenge.

‘Notice of intended prosecution’ 

Sheriff Principal Marysia Lewis, sitting with Appeal Sheriff Nikola Stewart and Appeal Sheriff Nigel Ross, heard that the appellant was charged with travelling at 55mph in a designated 40mph zone in a vehicle at a location near Glenrothes on 26 April 2018, having been captured by a speed camera.

Section 1 of the Road Traffic Offenders Act 1988 provides that a person shall not be convicted of such an offence unless he has received notification of the intended prosecution within 14 days.

Mr Scrymgeour-Wedderburn was duly and timeously served with a notice of intended prosecution dated 27 April 2018, which specified the nature of the alleged offence and the time and place where it was alleged to have been committed. 

But the notice also bore the digital signature of Philip Gormley, designated as chief constable, Police Service of Scotland, but he had resigned from that post on 7 February 2018 and was no longer a serving police officer.

The competency of the prosecution was challenged at debate at first instance on the basis that the notice was incompetent because the signatory had no authority to issue the notice, but the challenge was rejected and Mr Scrymgeour-Wedderburn appealed. 

‘Inaccuracy irrelevant’

Refusing the appeal, the court observed that a valid notice did not require a signature, meaning the inaccuracy was “irrelevant”.

Delivering the opinion of the court, Appeal Sheriff Ross said: “For notice to be validly given under section 1 of the Road Traffic Offenders Act 1988, it is necessary only for the notice of intended prosecution to comply with the requirements of that section. The section does not require a notice to be signed. It does not stipulate who may serve the notice, or whose authority is required to do so. 

“The requirements are that the notice must specify the nature of the alleged offence and the time and place where it is alleged to have been committed. Nothing else is required. Accordingly, the presence of a digital signature is irrelevant. It does not affect the validity of the notice for its statutory purpose, which is the limited purpose of giving notice of an intended prosecution. 

“It follows that an inaccuracy in identification of the Chief Constable is irrelevant to whether notice has been properly given. The Chief Constable’s authority is not required for section 1 purposes. 

“A notice of intended prosecution is no more than an administrative act. This is consistent with the fact that such notice can be given verbally at the time of the offence, or by service of a complaint.”

‘No case to answer’

In a separate appeal, the Crown successfully challenged a justice of the peace’s decision to uphold a claim that a requirement under section 172 of the 1988 Act that the owner of a vehicle caught exceeding the speed limit was invalid on the basis that it bore the signature of the former chief constable.

Kevin Coulson was charged with exceeding the speed limit on 10 March 2018 at a location on the Aberdeen to Dundee road by driving at 75mph in an area designated with a 50mph limit after being captured by a speed camera.

He was served with a notice of intended prosecution dated 13 March 2018, which bore the digital signature of Philip Gormley, and his designation as Chief Constable, although he no longer held office as a police officer. 

It was not disputed that the notice was otherwise timeously served and bore the necessary requirements to be a valid notice under section 1 of the 1988 Act, but Mr Coulson challenged the notice on two grounds. 

The first was identical to that in the Scrymgeour-Wedderburn appeal, while he second ground was that the notice also made a requirement of him to identify the driver.

It was submitted that, due to the “misdesignation” of Mr Gormley, the requirement had not been made lawfully. 

Those submissions were upheld at first instance, but the Crown appealed.

‘Justice erred’

In relation to the first argument, the Crown submitted that the mistaken reference to Mr Gormley did not invalidate the notice for the purposes of validly giving notice of intended prosecution. 

For the reasons set out in the Scrymgeour-Wedderburn appeal, the court agreed, and held that notice of intended prosecution was validly given to Mr Coulson.

In relation to the second point, the letter dated 13 March 2018 also placed a requirement under section 172(2)(a) of the 1988 Act, “by or on behalf of a chief officer of police”, for Mr Coulson as keeper of the vehicle to identify the driver at the material time. 

Mr Coulson duly complied with the notice and gave his own details as the driver at the material time and place, leading to the prosecution.

However, the justice of the peace upheld a submission at trial that there was “no case to answer” because the section 172 requirement had not been validly made, on the basis that the letter was issued in the name of a person who was not then a chief officer of police, or indeed a police officer.

The advocate depute argued that the justice had “erred”.

The question, it was submitted, was one of “authenticity” and a general authority to issue was “sufficient”. 

The court erred in failing to infer, on the basis of the surrounding facts, that there was no reasonable doubt that the requirement had been lawfully made.

Counsel for Mr Coulson referred to the terms of the letter and submitted that it was framed in personal terms, using phrases such as “I hereby give” and “I further give notice”. 

It bore the name of Mr Gormley, his wrong designation as chief constable, and what appeared to be a digital facsimile of his signature. 

It accordingly bore to be a “personal letter” by someone who was not authorised to make a section 172 requirement, and was therefore “invalid”.

‘Authenticity’

Allowing the Crown’s appeal, the court said: “In our view the justice erred in acceding to a submission that the notice requires to bear the name of a serving chief officer of police. In our view this elevates the requirements of section 172 beyond its terms. In our view the letter of letter of 13 March 2018 fulfilled the requirements of section 172, and the requirement placed on Mr Coulson was validly made.

“In our view the style or terminology of the letter does not detract from the terms of the statute – it is enough that it is issued ‘on behalf of’ the chief officer. Section 172 does not require personal signature or individual authorisation. 

“A practice has arisen of appending a digital signature, but that is not a requirement. It is not necessary to identify the chief officer making the requirement. It is not necessary for the notice even to refer to a chief officer, or any other authority.”

Sheriff Ross added: “It is enough, to satisfy section 172, that an unsigned, simple request for the relevant information be made. It is then the Crown’s task to persuade the court that the request was indeed made by or on behalf a chief officer of police, was properly made, and was validly served. 

“The question is, as the Crown submitted, not one of validity (there being no dispute that the request was made, in relevant terms, and duly served) but one of authenticity.

“The question is… whether the court at first instance was bound to draw an inference that the letter of 13 March 2018 was properly made under the authority of a chief officer of police. In our view the court ought, on the facts, to have made such a finding.

“The letter of 13 March 2018 bears to be a formal notice… It has full details of Mr Coulson’s address, vehicle registration and make, vehicle speed at the relevant time and precise identity of the locus. It identifies the relevant statutory provisions and their effects. 

“In the absence of contrary evidence or formal challenge, in our view the court was bound to accept that this document was issued on behalf of a chief officer of police.”