APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Mackay of Drumadoon Lord Bonomy Lady Cosgrove	[2011] HCJAC 44 Appeal No: XJ150/11 OPINION OF THE COURT delivered by LORD BONOMY in CROWN APPEAL UNDER SECTION 174 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by PROCURATOR FISCAL, ABERDEEN Appellant; against DAVID DALGARNO Respondent: _______

Appellant: Brodie QC AD; Crown Agent

Respondent: Shead; Paterson Bell, Edinburgh

28 April 2011

[1] The complaint against the respondent libelled a charge that he contravened section 2 of the Road Traffic Act 1988 on 7 July 2010. He was stopped by uniformed police officers who warned him in terms of section 1 of the Road Traffic Offenders Act 1988 ("the Act") in relation to careless driving, cautioned him and charged him with that offence. The respondent challenged the competency of the complaint on the ground that the warning given in terms of section 1 of the Act related to careless driving and no mention was made of the more serious charge of dangerous driving which he then faced. The debate before the sheriff and before us proceeded on the assumption that the warning satisfied the requirements of section 1(1)(a) of the Act, at least in respect of careless driving. The respondent's contention, upheld by the sheriff, was that, since the respondent had not been warned that the question of prosecuting him for dangerous driving would be taken into consideration, he could not be convicted of that offence and that prosecution on the complaint containing that libel was incompetent.

[2] Section 1(1) of the Act is in the following terms:

"Requirement of warning etc. of prosecutions for certain offences

(1) Subject to section 2 of this Act a person shall not be convicted of an offence to which this section applies unless-

(a) he was warned at the time the offence was committed that the question of prosecuting him for some one or other of the offences to which this section applies would be taken into consideration, or

(b) within fourteen days of the commission of the offence a summons (or, in Scotland, a complaint) for the offence was served on him, or

(c) within fourteen days of the commission of the offence a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed, was

(i) in the case of an offence under section 28 or 29 of the Road Traffic Act 1988 (cycling offences), served on him,

(ii) in the case of any other offence, served on him or on the person, if any, registered as the keeper of the vehicle at the time of the commission of the offence.

....

(4) Schedule 1 to this Act shows the offences to which this section applies."

The offences to which section 1(1) applies, set out in Schedule 1, are offences of moderate gravity, the most serious being dangerous driving and the others including careless driving, speeding and failing to comply with traffic directions. Section 2 of the Act provides that notice is not required where there has been an accident, apparently on the basis that the consequences of the conduct are adequate notice to the potential accused of his involvement in events which could lead to prosecution.

[3] The Advocate depute and counsel for the respondent were agreed that notice that consideration was being given to prosecution on a more serious charge would be sufficient compliance with section 1 for prosecution on a less serious charge of a similar, the most obvious example being notice relating to dangerous driving and proceedings for careless driving (Milner v Allen [1933] KB 698). They were also agreed that proposition would apply equally where the difference between the two possible charges was of no substance (Walker v Higson 1997 SCCR 767). The narrow point for determination was whether prosecution on a more serious charge could follow upon notice relating to a less serious charge, in this case dangerous driving and careless driving respectively. The answer to that question is to be found in the proper interpretation of section 1(1)(a), in particular the words "warned...that the question of prosecuting him for some one or other of the offences to which the section applies would be taken into consideration", on which there is guidance to be derived from authority, albeit the narrow question posed in this case has not been authoritatively answered.

[4] A useful starting point is the opinion of the Lord Justice-General (Normand) in Watt v Smith 1942 JC 109 at 112. The Lord Justice-General was commenting on the import of section 21 of the Road Traffic Act 1930 which provided as follows:

"Where a person is prosecuted for an offence under any of the provisions of this Part of this Act relating respectively to the maximum speed at which motor vehicles may be driven, to reckless or dangerous driving, and to careless driving he shall not be convicted unless either -

(a) he was warned at the time the offence was committed that the question of prosecuting him for an offence under some one or other of the provisions aforesaid would be taken into consideration; or

..."

Two alternative methods of giving notice similar to the provisions now found in the 1988 Act then followed, but did not, as in this case, arise. Having quoted from section 21 the Lord Justice-General then expressed his view in these terms:

"The purpose of these provisions is not all together clear, but it seems to me that it was to ensure that warning should be given to the motorist that he had been guilty of conduct which might involve him in one of the less grave charges under the Act, on the theory that he might be guilty of a contravention without being aware of it. Notice was therefore required in order that he might collect the evidence, which is sometimes transient. ....

The question then is, What is the meaning of the requirement that a warning shall be given that the question of prosecuting for an offence under some one or other of the provisions aforesaid will be taken into consideration? In my opinion, in order that that duty should be complied with, a warning must be given to the effect, not that some undefined prosecution may be considered, but that a prosecution under one or another of the sections 10, 11 and 12 of the Act may be considered. It is not necessary that the police officer should select one of these sections to the exclusion of the other two. He may do so, and the consequences of that may have to be dealt with in another case. But, in my opinion, he may give the notice in the alternative form that a prosecution will be considered under one or other of the three sections. ....

The question then arises whether the warning in the present case was sufficient. The terms of the warning were "I've got to warn you that the circumstances of the accident will be reported to the Fiscal for the purpose of considering a prosecution." Notice was given that a prosecution of some kind might take place, but not the smallest notice of the offence which might be charged. It might be a prosecution at common law; it might be a prosecution under the Act, relating to speed, or to reckless or dangerous driving, or to careless driving; or it might be another statutory prosecution altogether. In my opinion, such a notification is not the warning required by paragraph (a)..."

While the Lord Justice-General left open for consideration in another case what might be the consequences of the notifying police officer selecting one of the sections to the exclusion of the other two, he clearly expressed the view that notice should include reference to an offence which might be charged, and was to alert the motorist in order that he might collect evidence.

[5] Just how specific that notice should be had already been considered in Milner v Allen. There the issue was whether it was competent to proceed with a prosecution for driving "without due care and attention" when the notice given was that prosecution would be considered in respect of driving "in a manner dangerous to the public". The court had no hesitation in deciding that "driving to the danger of the public" was not a term of art referable only to the statutory offence in these terms. The Lord Chief Justice (Hewart) put the matter thus:

"The object of the notice is to take back the recollection of the motorist to the facts upon which reliance is to be placed. I do not know that the matter can be more aptly expressed than in para. 8 of the Case where the Justices use these words: 'We were of the opinion that the requirements of s.21 of the Road Traffic Act, 1930, had been complied with, and that the appellant was not in any way prejudiced in his defence.' The notice served on him gave him adequate notice of the essential facts in the case, and the summons was of a less serious nature than was indicated in the notice. ...."

The purpose of the notice was similarly identified in McGlynn v Stewart 1973 JC 33 where the particular issue was different. This point was touched upon by the Lord Justice-Clerk (Wheatley) at page 38 when he said:

"In my opinion the proper approach to the issue is to look at the intendment of the sub-section. It is manifestly to provide a prospective accused with notice within a reasonable time of the intention to prosecute. In the interests of fairness this is plainly desirable, because it not only prevents the person involved from being kept unduly long in a state of suspense without knowing whether or not he is going to be prosecuted, but it enables him, if need be, to collect evidence for his defence at a time when the recollection of potential witnesses is fresh."

That purpose will generally be satisfied where prosecution for a less serious offence follows upon notice that consideration is being given to prosecution for a more serious one. It is difficult to see how prejudice to the accused is likely to arise in that situation.

[6] However that purpose will generally not be achieved where a significantly more serious offence is prosecuted following upon notice relating to a less serious one. There is a material difference between the consequences of prosecution for a contravention of section 2 of the Road Traffic Act 1988 (dangerous driving) and section 3 of the same Act (careless driving), in respect that disqualification for holding or obtaining a driving licence is mandatory on conviction of the first but discretionary and infrequently imposed for contravention of the second.

[7] The Advocate depute suggested that the test in Walker v Higson, that the notice will generally be sufficient where there is no difference of substance between the two charges, applied to the present situation, and that notice relating to careless driving was sufficient. We reject that submission in this case in view of the material difference between the offences identified above. Although it is not necessary to give the warning in any particular technical form and cautioning and charging a person on the spot with specific offences, without any express statement that a prosecution for that offence might take place will suffice (Lindsay v Smith 1990 SCCR 581), in the present case no indication that prosecution for dangerous driving would be considered was hinted at.

[8] The circumstances of the present case illustrate how the material difference between charges of careless and dangerous driving might lead to the motorist being prejudiced by a notice relating to the less serious one. The respondent gave instructions to his solicitor, before returning to his employment in Libya, to plead guilty to the charge of careless driving when the complaint was served. That led in due course to a plea of guilty to the charge of dangerous driving being tendered erroneously and having to be withdrawn with leave of the court.

[9] For these reasons we consider that the sheriff rightly decided that the charge of dangerous driving was incompetent. However, it may be that that does not resolve the issue finally. As Mr Shead reminded us, a charge of careless driving is an implied alternative in any charge of dangerous driving. It therefore remains for consideration whether the prosecution might continue on the complaint but restricted to the alternative charge of careless driving. In this regard we note that the language of section 1(1) of the Act prohibits "conviction" rather than "prosecution" in the absence of appropriate notice. We shall accordingly remit to the sheriff to proceed as accords in the light of any further arguments that parties may seek to advance.