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

John Scrimgeour-Wedderburn challenged the competency of his proposed 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 constable of Police Scotland.

However, the High Court of Justiciary Appeal Court refused the appeal after both the JP court and the Sheriff Appeal Court had also rejected the challenge.

‘Notice of intended prosecution’ 

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull, heard that the appellant was recorded by a speed camera travelling at 55mph on a 40mph section of the A92 near Balfarg Junction, Glenrothes on 26 April 2018.

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.

The following day Mr Scrimgeour-Wedderburn was duly served with a notice of intended prosecution, 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.

At the trial diet at Kirkcaldy Justice of the Peace court the appellant challenged the competency of the prosecution on the basis that the notice was invalid because the signatory had no authority to issue the notice, but the JP repelled the plea having held that there was “no need” for the notice to be signed or for it to be signed by a particular person.

He appealed to the Sheriff Appeal Court, which also rejected the competency challenge after ruling that an inaccuracy in identification of the chief constable was “irrelevant” to whether notice had properly been given.

‘Invalid notice’

Mr Scrimgeour-Wedderburn then appealed to the High Court of Justiciary, arguing that a notice of intended prosecution was a “formal document” which required to be served on an accused.

It was not merely an administrative act; it had to emanate from a body with the statutory authority, implied or express, to give it.

This notice was invalid because it came from someone who was not entitled to give it, it was submitted.

But on behalf of the Crown it was argued that the objective of the notice was to draw to the proposed accused’s attention, while the facts were still in his mind, the prospect of prosecution; thus enabling him to prepare his defence.

The issue was whether the notice sufficiently specified the nature of the offence, with the necessary particulars, to recall the mind of the potential accused to the facts upon which the prosecution intended to rely.

It was argued that the defect in the signature of the Chief Constable was “trivial” and “irrelevant” to the issue of whether the appellant had been put on notice about his driving.

‘A modicum of common sense’

Refusing the appeal, the judges observed that while it was an “error” to conclude the notice with the electronic signature of the former chief constable, there was no prejudice to the appellant.

Delivering the opinion of the court, the Lord Justice General said: “A notice of intended prosecution is not a mere administrative act. Whether in oral or written form, it is a statutory prerequisite to the prosecution of certain road traffic offence.

“Although it is not akin to an indictment or a complaint, and does not require to be signed, such a notice cannot be given casually. It is a formal statement, which must provide the requisite information to enable the potential accused to prepare his defence.

“It must emanate from, or be expressly authorised by, a person or institution officially involved in the prosecution of motoring offences (ie Police Scotland or the Crown Office and Procurator Fiscal Service). A statement by an ordinary citizen could hardly suffice. It is not a requirement that the Chief Constable or even an officer of a senior rank be involved. Roadside warnings will, of course, be given by officers of all ranks.”

Lord Carloway continued: “In determining whether a particular document constitutes a sufficient notice, ‘a modicum of commonsense’ is appropriate. Errors in, for example, the description of the alleged offence may be ignored, if the notice nevertheless served its purpose and the accused was not misled.

“It is sufficient for its validity if the purported notice satisfies the over-riding purpose of section 1 of the Road Traffic Offenders Act 1988, at least in the absence of the accused having been prejudiced or misled. Whether it does so is bound to involve a consideration of its whole terms.”

The court concluded: “The notice of intended prosecution in this case came on notepaper headed ‘Police Scotland’ and bearing that institution’s official crest… All the requisite details of the alleged offence were given.

“The letter concluded with an electronic signature of a person who was not then the chief constable (a fact of which the appellant may, or may not, have been, aware).

“This was an error, but it was not one which affected the validity of the notice, which continued to meet the purpose of the statutory provision. It is not suggested that the error misled or prejudiced the appellant.”