Marcus Howe v. Procurator Fiscal, Ayr [2016] HCJAC 9

Appeal by stated case:- On 10 February 2015, at Ayr Sheriff Court, the appellant was found guilty after trial on summary complaint of a contravention of section 2 of the Road Traffic Act 1988, namely, dangerous driving, and a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, namely, behaving in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that he waved his fist and repeatedly kicked the side of another motor vehicle. The appellant appealed against his conviction by way of stated case. The issue here was whether a reply to a requirement made by a police officer in terms of section 172 of the Road Traffic Act 1988 was admissible as evidence only in relation to road traffic charges as set out in section 172(1) of the 1988 Act, and whether a response under section 172 could be relied upon by the Crown in proof of a separate charge of a different character not brought under the Road Traffic Acts. At the trial the solicitor acting on behalf of the appellant made a no case to answer submission at the close of the Crown case to the effect that the appellant’s response to the police officer’s question in terms of section 172 of the 1988 Act as to the identity of the driver of the vehicle was not admissible in relation to the statutory offence in terms of section 38 of 2010 Act which was not one of the offences specified in section 172(1). The sheriff repelled the submission and the appellant was subsequently convicted. Here on behalf of the appellant it was submitted that a reply to a requirement made of someone under section 172 of the 1988 Act was not available as evidence to corroborate the identity of an accused in relation to a non rod traffic offence. It was submitted that section 172 was a specific requirement relating to road traffic offences and narrow constraints had to be applied to it in light of ECHR compliancy considerations and the general rule that evidence led in relation to one charge could be relied upon in relation to other charges did not apply in relation to the limited nature of section 172. On behalf of the Crown it was submitted that the sheriff had not erred and the two charges related to a single course of driving, indeed it would have been open for the Crown to libel both charges as part of the same section 2 charge and it was competent to use the information given in response to a section 172 request. Here the court refused the appeal and held that the appellant’s response to the section 172 requirement was available as evidence in respect of both charges. The court considered that the section 172 response was obtained lawfully and became evidence available to the Crown for any offence related to the relevant vehicle at the time and place to which the section 172 enquiry was directed. The court referred to an example of where a driver caused the death of a pedestrian and the driver’s section 172 response would be available as evidence in respect of a charge of causing death by dangerous/careless driving in terms of section 1/2B of the Road Traffic Act 1988, however, if the Crown subsequently uncovered evidence so that the appropriate charge on an indictment should be a murder charge then it would be illogical for the section 172 response not to be available as evidence identifying the driver. The court’s view here was that the section 2 and the section 38 charges were so inextricably linked in the same sequence of events that the section 172 response should be available as evidence for both charges.