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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> BRIAN CATHCART v. HER MAJESTY'S ADVOCATE [1998] ScotHC 21 (16th December, 1998) URL: http://www.bailii.org/scot/cases/ScotHC/1998/21.html Cite as: [1998] ScotHC 21

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BRIAN CATHCART v. HER MAJESTY'S ADVOCATE [1998] ScotHC 21 (16th December, 1998)

The appellant is Brian Cathcart who was convicted at Airdrie Sheriff Court of a charge of driving a motor vehicle while disqualified, contrary to Section 103(1)(b) of the Road Traffic Act 1988, and of a charge of driving without insurance, contrary to Section 143(1) and (2) of the same Act. He was sentenced to ten months imprisonment and disqualified from driving for fifteen years on Charge 1 and was admonished on Charge 2. He appealed against his conviction of both charges.

At the appellant's trial the Crown case was based on the evidence of a number of police officers who had gone to search the appellant's house in relation to a matter which is not the subject of these proceedings. Two officers said that they saw the appellant driving his car a short distance into a parking space in the street outside his house. The appellant gave evidence in which he said that the police evidence was false and that the car was sitting parked and did not move. The appellant said, however, that he had used a remote control from inside the house to open the car doors in order to take items out of the car which a prospective purchaser was coming to see. There was evidence at the trial that, during the police search, someone, who was apparently interested in buying the car, had come to the house.

There was thus a sharp conflict in the evidence between the police witnesses and the appellant. One focus of that conflict was evidence about the keys to the car. The police witness said that, when the police officers saw the appellant park the car, they approached him, arrested him and put him into a police vehicle. Constable Reid said that he asked the appellant for the car keys and that, while in the vehicle, the appellant handed the keys to him. Constable Reid said that he went to the appellant's car, but that he did not actually need to use the keys to open it since the doors were unlocked. Constable Reid added that, having inspected the car, he locked it and, as he recalled, he gave the keys to Constable Brown.

As we have explained, the police were present to search the appellant's house. Officers did so and there was evidence that Constable Brown completed a production schedule showing what had been found during the search. One item showed that keys for the appellant's car had been recovered from the top of a cabinet in the living room. The appellant's position was that these were the only keys to the car and that they had all along been in the house. The police evidence was to the effect that the keys found in the living room were not the same keys as had been recovered from the appellant when he was arrested. Their position therefore was that there were two sets of keys, one which had been taken from the appellant outside the house and another which had been found on the cabinet in the living room.

After various hearings before this court which we do not need to consider in detail, a Crown Office official wrote to the agents for the appellant stating that the official had been informed that the police maintained that

It is obvious that the Crown are accepting that the police evidence about the keys at the trial was wrong on a crucial point. Whereas at the trial the police witnesses' position was that there were two sets of keys, the position now being advanced is that there was only one set of keys which had been taken from the appellant outside and eventually placed on the living room cabinet where they were found during the search and logged as having been recovered from there. That was precisely the explanation which was put to Constable Reid in cross-examination at the trial and which he rejected.

The situation therefore is that, on an issue which was explored in great detail and which was critical to the defence challenge to the police evidence, the Crown now accept that the evidence of the police witnesses was wrong. It is therefore apparent that the Crown approach on a significant matter at the trial was flawed. For these reasons we are satisfied that there was a miscarriage of justice at the trial in November 1996. Given all the circumstances, including the nature of the offences with which the appellant was charged, the time which has elapsed since the alleged events in July 1995 and the fact that the miscarriage of justice arose out of admittedly inaccurate evidence by Crown witnesses, we do not consider that the Crown should be given permission to bring a fresh prosecution. We shall therefore simply allow the appellant's appeal and quash his convictions on both charges.