John Frederick Scrimgeour-Wedderburn v. The Procurator Fiscal, Kirkcaldy [2019] HCJAC 57

Appeal from the Sheriff Appeal Court under section 194zb of the Criminal Procedure (Scotland) Act 1995:- The circumstances were that on 26 April 2018 the appellant was caught speeding in his motor car when he was recorded on a speed camera travelling at 55mph on the A92 near Glenrothes where the speed limit was 40mph. On 27 April 2018 a letter was sent to the appellant from the ‘East Safety Camera Unit’ of Police Scotland at Glenrothes giving the appellant notice of an intended prosecution in the following terms:- “...In accordance with Section 1 of the Road Traffic Offenders Act, 1988, I hereby give you notice that it is intended to institute proceedings against the driver of the above motor vehicle for the following alleged offence...”. The signature of the ‘Chief Constable’ Philip Gormley was an electronic facsimile was at the foot of the Notice, however, Mr Gormley had resigned as chief constable in February 2018. On 10 October 2018, at Kirkcaldy District Court, a summary complaint called and a trial was fixed for 21 January 2019 at which time a plea to the competency of the prosecution was lodged on the basis that the notice of intended prosecution received by the appellant was invalid. A debate was held on 4 February 2019 at which it was submitted the Notice was invalid as it had not been properly signed. On behalf of the respondent it was submitted that there was no need for the Notice to be signed and if there was a defect it was a minor one which did not invalidate it. The Justice of the Peace agreed with the Crown and repelled the plea to the competency. The appellant appealed to the Sheriff Appeal Court in conjunction with the case of Procurator Fiscal, Aberdeen v. Coulson, which related to the validity of a section 172 Notice in similar circumstances. The SAC refused the appeal stating that:- “...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 ... A notice of intended prosecution is no more than an administrative act ...”. The appellant appealed to the High Court under section 194zb of the Criminal Procedure (Scotland) Act 1995. On behalf of the appellant it was submitted the Notice was a formal document which required to be served on an accused and was not merely an administrative act but emanated from a body with the statutory authority to give it and where, as here, the Notice came from someone who was not entitled to issue it, it was invalid as a result. On behalf of the respondent it was submitted that the defect in the signature was irrelevant to the issue of whether the appellant had been put on notice about his driving and the appeal should be refused. Here the court refused the appeal. The court stated that the Notice is not merely an administrative act but is the statutory prerequisite to the prosecution of certain road traffic offences. The court noted that, whilst it does not require to be signed (like an indictment or a complaints does), it is a formal statement which must include the requisite information to enable an accused to commence preparations for his defence and must emanate from, or be expressly authorised by, a person or institution officially involved in the prosecution of motoring offences. The court stated that “a modicum of common sense” is required when considering whether a document constitutes sufficient notice. In the present case whilst the electronic signature was from a person who was no longer the Chief Constable, that error was not one which affected the validity of the Notice which included all the requisite information to meet the purpose of the statutory provision and there was nothing to mislead or prejudice the appellant.