Speeding motorist who challenged whether police warning was given ‘at the time of the offence’ loses appeal against dangerous driving conviction

The Sheriff Appeal Court refused the appeal after ruling that the fact that the appellant was found close to the car “a short time after” the incident provided the “necessary corroboration”, and that the sheriff was “entitled” to conclude that the warning given when he was cautioned and charged almost two hours after the incident was “at the time of the offence”.

Dangerous driving

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Derek Pyle and Appeal Sheriff Peter Braid, heard that the appellant Peter Coltman was convicted in October 2017 after trial at Dunoon Sheriff Court of a charge of contravention of section 2 of the Road Traffic Act 1988.

The facts as found by the sheriff were that at about 6.30pm on the date libelled a Vauxhall Meriva driven by the appellant on the A815, overtook three cars at excessive speed while approaching the brow of a hill, causing Ross Spiers, who was travelling in the opposite direction, to brake heavily in order to avoid a collision.

Mr Spiers returned to Dunoon to report the incident to the police, which he did about 20 minutes later, following which the police went to the appellant’s last known address to find that he no longer lived there.

As they were driving back they passed the Vauxhall Meriva outside the Oakbank Hotel in Sandbank and when they entered the hotel they found the appellant inside.

Admission

The officers made a section 172 requirement of him at 8.13pm and the appellant’s reply was “Me, I was driving”.

He was cautioned and charged with a contravention of section 2 of the Road Traffic Act 1988 and was then given a warning in terms of section 1 of the Road Traffic Offenders Act 1988, at 8.15pm.

The sheriff found as a fact that a search of the Police National Computer (PNC) revealed that the registered keeper of the car was the appellant’s wife and that according to the V5 registration form, produced by the defence during the Crown case, the appellant’s wife was the registered keeper.

The sheriff also found as a fact that all that took place from the time of the incident on the A815 and the report to the police and the discovery of the appellant in the Oakbank Hotel was “connected to the incident” and that the warning given to the appellant was given “at the time the offence was committed”.

The Crown conceded that evidence about the PNC check carried out by police in the course of their investigations was inadmissible hearsay, but the appeal nevertheless raised two issues: namely: whether the sheriff was entitled to find that the warning in terms of section 1 was given “at the time the offence was committed” and; whether, absent the inadmissible evidence of the PNC check, there was corroboration of the appellant’s admission to police that he was the driver of the vehicle at the material time.

Corroboration

In relation to the second issue, counsel for the appellant submitted that the evidence of the V5 was “insufficient” to corroborate the appellant’s admission, since it did not provide compelling support for the admission.

Reference was made to Elphinstone v Richardson 2013 JC 29, which counsel distinguished in that there the corroboration consisted of the fact that the appellant himself was the registered keeper.

As for the other potential corroborating fact, namely that the appellant was found in the proximity of the car when the police made the section 172 requirement, counsel submitted that there was a “physical and temporal disconnect” between that and the incident, given that the appellant was not found at the locus and that some time had elapsed since the incident had occurred.

Rejecting that argument, the court observed that “very little” was required to corroborate the appellant’s admission to police.

Delivering the opinion of the court, Appeal Sheriff Braid said: “The appellant was found in the Oakbank Hotel in the proximity of the car which was parked outside, a short time after the incident. Indeed it was the presence of the car outside the hotel which alerted the police to the appellant’s presence within. That happened soon enough after the incident, and close enough to it – we are not given distances in the stated case, but we do know that it was in the general vicinity from the fact that the police were on their way back from their visit to the appellant’s previous home address – that it is capable of providing the necessary corroboration. That would provide a sufficiency of evidence in itself, but corroboration can also be found in the fact that the registered keeper of the car was the appellant’s wife, a close family member.”

‘Unbroken chain’ of events

In relation to the first issue, the court observed that the phrase “at the time the offence was committed” had often been the subject of judicial consideration, but “not all of it entirely consistent”.

The sheriff, in deciding that the warning was given to the appellant at the time the offence was committed, followed Sinclair v Clark 1962 SLT 307 where it was said that “literal compliance was in practice virtually impossible” and that there must be “some latitude” in interpreting it – an “unbroken chain of circumstances”.

Counsel for the appellant argued that there was a dual or conjunctive test, namely that not only must there be an unbroken chain of circumstances but also an additional test of reasonableness, as described in Regina v Okike 1978 RTR 489.

However, the appeal sheriffs considered that that argument read “too much” into the cases and that the sheriff had correctly applied the law to the facts of the case.

Sheriff Braid said: “here is one test, which is one of fact, and is simply whether, applying reasonable latitude, the warning can be said to have been given at the time of the accident. In considering what is reasonable latitude, no doubt regard will be had to whether there was an unbroken chain of circumstances although that can never be the only factor and the passage of time must also be relevant. Were there to be a complicated and unbroken police investigation lasting several days, for example, it is difficult to envisage that any warning given thereafter could ever be said to be at the time of the offence. The important point to note however is that it is a question of fact and degree in every case. In the present case the sheriff did not misdirect himself. Rather, it is clear from his reasoning…that he correctly applied the law as set out in Sinclair v Clark. He was therefore entitled to find in fact, as he did, that the warning was given at the time of the offence.”