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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Wilson v. Procurator Fiscal [2004] ScotHC 35 (08 June 2004) URL: http://www.bailii.org/scot/cases/ScotHC/2004/35.html Cite as: [2004] ScotHC 35 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Kirkwood Lord Wheatley Temporary Judge C.G.B. Nicholson, C.B.E., Q.C.
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Appeal No: XJ168303/03 OPINION OF THE COURT delivered by LORD KIRKWOOD in APPEAL under Section 174(1) of the Criminal Procedure (Scotland) Act 1995 by ROBERT LYNESS WILSON Appellant; against PROCURATOR FISCAL, Livingston Respondent: _______ |
Appellant: Shead; Keegan Walker
Respondent:
S. Di Rollo, Q.C., A.D.; Crown Agent8 June 2004
[1] The appellant appeared in West Lothian District Court facing a summary complaint containing two charges, the charges being in the following terms:"(1) on 17th December 2002 on a road or other public place namely A704
West Calder to Forth Road, half a mile west of the junction with the A71 Edinburgh to Kilmarnock Road, West Lothian you Robert Lyness Wilson being the driver of a motor vehicle, namely motor van registered number S345 CSF and an accident having then and there occurred owing to the presence of said motor vehicle on said road or public place whereby said motor vehicle collided with and damaged motor car, registered number X905 NBJ and (sic) did fail to stop and give your name and address and also the name and address of the owner and the identification marks of the vehicle to any person having reasonable grounds for so requiring: CONTRARY to the Road Traffic Act 1988, Section 170(2) and (4) and
(2) on 17th December 2002 you Robert Lyness Wilson being the driver of
a motor vehicle namely motor van registered number S345 CSF on a road or other public place, namely A704 West Calder to Forth Road, half a mile west of the junction with the A71 Edinburgh to Kilmarnock Road, West Lothian and an accident having then and there occurred owing to the presence of said motor vehicle on said road or public place whereby said motor vehicle collided with and damaged motor car registered number X905 NBJ and not having given your name and address to any person having reasonable grounds for requiring same, did fail to report said accident at a police station or to a constable as soon as reasonably practicable, and in any case within twenty-four hours of the occurrence thereof: CONTRARY to the Road Traffic Act 1988, Section 170(3) and (4)."
"170.-(1) This section applies in a case where, owing to the presence of a motor vehicle on a road, an accident occurs by which -
(a) personal injury is caused to a person other than the driver of that motor
vehicle, or
(b) damage is caused -
(i) to a vehicle other than that motor vehicle or a trailer drawn by that motor vehicle, or
(ii) to an animal other than an animal in or on that motor vehicle or a trailer drawn by that motor vehicle, or
(iii) to any other property constructed on, fixed to, growing in or otherwise forming part of the land on which the road in question is situated or land adjacent to such land.
(2) The driver of the motor vehicle must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle.
(3) If for any reason the driver of the motor vehicle does not give his name and address under subsection (2) above, he must report the accident.
(4) A person who fails to comply with subsection (2) or (3) above is guilty of an offence.
(5) If, in a case where this section applies by virtue of subsection (1)(a) above, the driver of the vehicle does not at the time of the accident produce such a certificate of insurance or security, or other evidence, as is mentioned in section 165(2)(a) of this Act-
(a) to a constable, or
(b) to some person who, having reasonable grounds for so doing, has
required him to produce it,
the driver must report the accident and produce such a certificate or other evidence.
This subsection does not apply to the driver of an invalid carriage.
(6) To comply with a duty under this section to report an accident or to produce such a certificate of insurance or security, or other evidence, as is mentioned in section 165(2)(a) of this Act, the driver-
(a) must do so at a police station or to a constable, and
(b) must do so as soon as is reasonably practicable and, in any case, within
twenty-four hours of the occurrence of the accident.
(7) A person who fails to comply with a duty under subsection (5) above is guilty of an offence, but he shall not be convicted by reason only of a failure to produce a certificate or other evidence if, within five days after the occurrence of the accident, the certificate or other evidence is produced at a police station that was specified by him at the time when the accident was reported."
"10.-(1) Notwithstanding anything in any enactment or rule of law to the contrary, a district court in Scotland may try-
(a) any fixed penalty offence (within the meaning of Part III of this Act),
and
(b) any other offence in respect of which a conditional offer (within the
meaning of sections 75 to 77 of this Act) may be sent.
(2) Subject to subsection (1) above, the district court may not try any offence involving obligatory endorsement."
Schedule 2 to the Road Traffic Offenders Act 1988, which relates to the prosecution and punishment of offences under the Traffic Acts, provides inter alia as follows:
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" (1) Provision creating offence |
(2) General nature of offence |
(3) Mode of prosecution |
(4) Punishment |
(5) Disqualification |
(6) Endorsement |
(7) Penalty points |
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RTA section 170(4) |
Failing to stop after accident and give particulars or report accident |
Summarily |
Level 5 on the standard scale |
Discretionary |
Obligatory |
8-10 |
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RTA section 170(7) |
Failure by driver, in case of accident involving injury to another, to produce evidence of insurance or security or to report accident |
Summarily |
Level 3 on the standard scale |
" |
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" (1) Provision creating offence |
(2) General nature of offence |
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RTA section 170 |
Failure of driver in accident involving injury to another to produce evidence of insurance or report the accident " |
What was in dispute in this case was the proper construction of the entry relating to section 170 in Schedule 5 in the context of the other relevant statutory provisions.
[10] Counsel for the appellant submitted that the district court did not have jurisdiction to try the two offences contained in the complaint. Section 170 created two separate offences, namely a contravention of section 170(4) and a contravention of section 170(7), the former being by far the more serious as it involved a higher level of fine as well as discretionary disqualification and obligatory endorsement. Conditional offers were directed at the less serious traffic offences and it was inherently unlikely that an offence under section 170(4) should be able to be tried in the district court. Counsel stated that the practice of the Crown has been to prosecute alleged contraventions of section 170(4) in the sheriff court and not in the district court, and that it was his understanding that the district court could only impose a sentence of disqualification in a "totting-up" case. The critical point at issue was the proper construction to be placed on the reference to section 170 in Schedule 5. In counsel's submission, the proper construction of the entry in Schedule 5 was that only an offence under section 170(7) was open to conditional offer. In any event, if there was any ambiguity, it should be resolved in favour of the appellant. Counsel founded on the description, in Schedule 5, of the general nature of the offence which, he said, clearly referred, not to section 170 as a whole, but only to a section 170(7) offence. This was demonstrated by the fact that the description in Schedule 2 of the general nature of the offence in section 170(7) was very similar to the general description of the offence given in Schedule 5. If the entry relating to section 170 in Schedule 5 was construed in light of the background circumstances, it was clear that Parliament had not intended that an offence under section 170(4) should be able to be tried in the district court. [11] The advocate depute submitted that the Justice had reached the correct conclusion and that the district court did have jurisdiction to try a case involving an offence under section 170(4). Schedule 5 referred, not to section 170(4), but to section 170. In the Schedule there were repeated references to sections and their subsections. If Parliament had wished to restrict conditional offers to section 170(7) offences, it would have done so by restricting the reference in the first column of Schedule 5 to section 170(7). In the circumstances the reference in Schedule 5 to section 170 was not restricted by the terms of the accompanying description of the nature of the offence. The advocate depute also informed us that it was the policy of the Crown to prosecute section 170(4) offences in the sheriff court, and he was unable to offer any explanation as to why the prosecution in the present case had been brought in the district court.Decision
[12] As we have indicated, it was common ground that the district court has jurisdiction in this case only if the offences with which the appellant has been charged are conditional offer offences in terms of section 10(1)(b). Conditional offer offences are listed in Schedule 5 which contains a reference to section 170 without any restriction. There is, however, an apparent conflict in relation to that entry as section 170 contains two subsections, namely subsections (4) and (7), which create separate offences, and the description in Schedule 5 of the general nature of the offence appears to relate only to section 170(7) and is, indeed, very similar to the description of a section 170(7) offence set out in Schedule 2. Further, in considering the proper construction of the entry in Schedule 5 we are entitled to have regard to the general background, which was not disputed, and was to the effect (1) that the intention of the legislature has been to direct the less serious traffic offences to the district court and (2) that a section 170(4) offence was significantly more serious than a section 170(7) offence, the former involving a higher level of fine, as well as discretionary disqualification and, in particular, obligatory endorsement. Further, it has admittedly been the practice of the Crown to prosecute section 170(4) cases in the sheriff court, and not in the district court. On the whole matter, and having regard to the legislative background, we are satisfied that it was the intention of Parliament that, in the case of section 170, only a contravention of section 170(7) was to be a conditional offer offence, and that that is the proper construction to be placed on the entry in Schedule 5. That being so, it follows that the district court does not have jurisdiction to try the offences with which the appellant has been charged.Disposal
[13] With regard to the disposal of this appeal, the advocate depute submitted that, if we held that the two charges could not competently be tried in the district court, then we should send the case back to the Justice to consider whether or not it should be remitted to the sheriff court to be dealt with there. In making this submission, the advocate depute sought to rely on section 7(9) and (10) of the Criminal Procedure (Scotland) Act 1995 (a section which is headed "District court: jurisdiction and powers") which provides as follows:"(9) Without prejudice to subsection (8) above, where either in the preliminary investigation or in the course of the trial of any offence it appears that the offence is one which-
(a) cannot competently be tried in the court before which an accused is
brought; or
(b) in the opinion of the court in view of the circumstances of the case,
should be dealt with by a higher court,
the court may take cognizance of the offence and commit the accused to prison for examination for any period not exceeding four days.
(10) Where an accused is committed as mentioned in subsection (9) above, the prosecutor in the court which commits the accused shall forthwith give notice of the committal to the procurator fiscal of the district within which the offence was committed or to such other official as is entitled to take cognizance of the offence in order that the accused may be dealt with according to law."
The advocate depute also referred to section 58 of the Act, which relates to hospital orders, and to Renton & Brown, Criminal Procedure, para. 2-29. His submission was that, while section 7(9) did not expressly empower the district court to remit the case to the sheriff court, there was a necessary implication that such a power existed. The advocate depute admitted that he was not aware of any modern instance of such a remit having been made in a summary prosecution.
[14] In reply, counsel for the appellant submitted that the terms of section 7(9) were far from clear. They appeared to provide that, if the case was sent back to the district court, and that court took cognisance of the offences, then it would require to commit the appellant to prison for a period not exceeding four days. In section 58 there was an express power enabling the district court to remit to the sheriff court, such a power being conspicuously absent in section 7(9) and (10). Counsel submitted that the terms of section 7(9) were not applicable in the circumstances of the present case. The statutory provisions in question may well be a throw-back from prior legislation, covering a situation where an accused appeared on indictment in the burgh court and had to be remitted to the sheriff court or the High Court, but it was difficult to see how they could be applied in the circumstances of the present case. The advocate depute was endeavouring to circumvent the provisions of section 10 of the Road Traffic Offenders Act 1988. [15] While the advocate depute attempted to found on section 7(9), it is our opinion that it is not applicable in a case such as the present, namely a summary prosecution where the charges are not punishable by imprisonment. It does not expressly confer on the district court a power to remit to the sheriff court and it appears to provide that if the lower court was to "take cognizance" of the offences it would require to commit the appellant to prison. The advocate depute could point to no instance where there had been a section 7(9) remit in a summary prosecution. A further difficulty would be that we would be remitting the case back to the district court having held that that court has no jurisdiction. On the whole matter we are not prepared to take the course urged on us by the advocate depute. We will simply allow the appeal.