APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lady Paton Lord Marnoch	[2010] HCJAC 122 XJ706/10 OPINION OF THE COURT delivered by LORD OSBORNE in STATED CASE by JAMES DAVID McKIM Appellant; against PROCURATOR FISCAL, STONEHAVEN Respondent: _____________

Appellant: I Paterson, solicitor-advocate; Kinnear & Falconer, Stonehaven

Respondent: P Di Emidio AD; Crown Agent

10 November 2010

[1] In this appeal by Stated Case, the appellant, James David McKim, appeared on a summary complaint in the Justice of the Peace Court in Stonehaven on a charge brought under section 3 of the Road Traffic Act 1988, as amended, which is narrated on page 1 of the Stated Case.

[2] In summary, it involved the allegation that on the occasion and at the place in question the appellant drove his motor car without due care and attention, or without reasonable consideration for other persons using the road or public place, in that he held a mobile phone in his hand whilst driving, looked at the device and caused his vehicle to move from side to side. Evidence was led from three witnesses, two police witnesses who had been driving in the same direction as the appellant and who observed his manner of driving and the appellant himself. The two police officers' evidence is narrated by the justice and essentially they gave evidence supporting the charge in the complaint. The appellant himself gave evidence. He said that he had been listening to music in his car, but when he turned the radio off he heard his mobile phone rattling and decided to move it to its special case to the left of the gear stick in the car. He had not been using the telephone to make telephone calls or send text messages. He explained that he had a hands-free kit in his car. He stated that he had his phone in his hand as he had lifted it to put it in its cradle. He denied using his thumb on the keyboard and denied that he had been veering from side to side as alleged, save to the extent that any car would veer according to normal road undulations.

[3] Following the hearing of evidence and submissions the justice made certain remarks which are narrated at page 5 of the Stated Case. She said that "I found all the witnesses to be credible and reliable.". She says that she does not disagree that she made the remark in the terms quoted in the application for the Stated Case. What is quoted there appears on page 14 of the Stated Case, and in paragraph 2.2 of the Note of Appeal, or application for the case, it is averred "at the time of returning the verdict, Justice Mary Singleton confirmed that she found both the evidence given by the appellant and the respondent's witnesses, Constable David Robert Findlay and Constable Stuart Albyn, to be reliable and credible." She then proceeded to convict the appellant.

[4] In response to that part of the Stated Case in which this issue is raised and, in particular, in response to the paragraph quoted from the application for the case, the justice says this:

"I do not disagree that I made the remark in the terms quoted. However that was not what I had meant to say. I accept that my choice of words was unfortunate and may have misled the defence as to the reasoning behind my decision. The evidence given by all three witnesses was given in a clear and confident manner and I did indeed find the Crown witnesses to be both credible and reliable. The appellant was confident in his manner and did agree with much of the evidence given by the police officers, but I did not believe the appellant's version of events where they differed from that led by the Crown and accordingly I had no reasonable doubt regarding his guilt. Had I believed the evidence of the appellant I may well have had a reasonable doubt regarding the evidence of the police officers which would have led me to acquit the appellant but this was not the case."

[5] Before us it was submitted that the proceedings before the justice were, in effect, irregular and involved a miscarriage of justice. It was argued that the well-informed and impartial observer of these proceedings would have been confused by the remarks made in court by the justice and would have been unable to understand, given those remarks, why the appellant had been convicted. We have come to agree with that submission. The justice's remarks, we consider, were inexplicable and inevitably productive of a lack of confidence in the rationality of the justice's decision. The explanation which she has given to us in her note in the Stated Case cannot, in our opinion, affect the impression of the trial which was given at the time and would have been observed by an impartial and well-informed observer. It is trite but true to say that justice must be seen to be done and that was not achieved in this case, in our judgment. We note that the questions which are posed in this Stated Case are not apt to focus the issue which was argued before us and accordingly we simply state that we shall quash the appellant's conviction upon the basis that a miscarriage of justice has occurred in respect that justice was not seen to be done in this case.

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