Farrell v Concannon
| Jurisdiction | Scotland |
| Judgment Date | 12 October 1956 |
| Docket Number | No. 3. |
| Date | 12 October 1956 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Carmont. Lord Sorn.
Statutory Offences—Road Traffic Acts—Driving motor vehicle when under influence of drink or drugs—Evidence—Sufficiency—Corroboration—Medical examination of suspect—Procedure to be followed by police—Proof of compliance—Road Traffic Act, 1930 (20 and 21 Geo. V, cap. 43), sec. 15 (1).
A lorry driver was cautioned and charged with a contravention of sec. 15 of the Road Traffic Act, 1930, in respect of driving his lorry when under the influence of drink. After he had been taken to the police station he was asked whether he consented to being examined by a doctor. He was told that, if he consented, the result of that examination might be used in evidence against him. He gave his consent. At his subsequent trial the police constable who had asked his consent gave evidence that he had told the accused that he was not compelled to submit to a medical examination. The police constable's testimony on this point was not corroborated. The Sheriff-substitute having found the charge not proven, on the ground that a material fact necessary for conviction had not been corroborated,—
Held (1) that it was necessary to prove that the accused had been told that he was not compelled to submit to medical examination, but (2) (dub. Lord Carment) that this fact might be established by the evidence of a single witness.
Observed by Lord Sorn that the proper practice is to have a corroborative witness.
Reid v. Nixon, 1948 J. C. 68, considered anddiscussed.
Peter Concannon was charged in the Sheriff Court at Airdrie on a complaint at the instance of James Farrell, Procurator-fiscal, which set forth "that on 29th March 1956, on the Glasgow-Edinburgh Road, at a part thereof near Shawhead Roundabout, Bellshill, Lanarkshire, you were when driving and when in charge of a motor lorry, registered number JUS 357, under the influence of drink or a drug to such an extent as to be incapable of having proper control of said motor vehicle; Contrary to the Road Traffic Act, 1930, section 15."
The accused pleaded not guilty, and on 22nd June 1956, after evidence had been led, the Sheriff-substitute (Thomas Young) found the charge not proven. At the request of the Procurator-fiscal, he stated a case for appeal to the High Court of Justiciary.
The stated case set forth that the following facts were admitted or proved:—"(1) The accused is 39 years of age, is a motor driver, and on 29th March 1956 was in charge of a motor lorry belonging to his employers. (2) Shortly after eleven o'clock that night, near the Shawhead Roundabout on the main Glasgow to Edinburgh road, the accused was driving the said motor lorry, registered number JUS 357. He was stopped by a policeman because of his erratic driving, then cautioned and charged with a contravention of section 15 of the Road Traffic Act, 1930, and taken to the police station at Bellshill. There was no corroboration that the accused's driving was erratic. (3) The appellant was unsteady on his feet, smelled strongly of alcohol, his speech was slurred, and on his own admission he had spent some considerable time that night in a public house where he had taken a quantity of alcoholic drink. (4) At the police station he was asked if he consented to being examined by a doctor and was told that, if he consented, the result of that examination might be used in evidence against him. He gave his consent. (5) At the same time he was also told of his right to summon a doctor of his own and that facilities would be given to enable him to do so. Efforts were made to get doctors on his behalf, but these were unsuccessful, as these doctors refused to come. (6) The respondent was examined by the doctor summoned by the police. He certified that the appellant was under the influence of drink to such an extent as to be incapable of having proper control of a motor vehicle. (7) The respondent was thereafter warned and charged that, on the date and at the place libelled, he was while driving and in charge of a motor lorry, registered number JUS 357, under the influence of drink or a drug to such an extent as to be incapable of having proper control of the said motor vehicle."
In stating the grounds of his decision the Sheriff-substitute commenced by saying:—"I reached my decision with regret, as I was satisfied that the accused at the time of his arrest was under the influence of drink to such an extent as to be unable to drive his motor lorry. I found the charge not proven, however, on the ground that a material fact necessary for the conviction of a person accused of this offence was not corroborated. That material fact was that the accused, at the time he is asked for his consent to medical examination by the police doctor, should be told he is not compelled to submit to that examination. One constable—the constable who actually asked for his consent—said in evidence that he also told the accused he was not compelled to submit, and I was quite satisfied that the accused was told this by that constable, although the accused in evidence denied...
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Reference By Hma Against Clb
...the Full Bench in Gillespie v Macmillan 1957 JC 31. In the months prior to Gillespie v Macmillan, the court had heard Farrell v Concannon 1957 JC 12 in which a sheriff had found a drink driving charge not proven on the basis that the Crown had failed to prove by corroborated evidence that t......
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MacLeod v Nicol - Torrance v Thaw
...55, at p. 57. 2 H.M. Advocate v. Cameron, (1839) 2 Swin. 447. 3 Walker and Walker on Evidence, pp. 404, 411–2; Farrell v. ConcannonSC, 1957 J. C. 12; Gray v. FarrellUNK, 1969 S.L.T. 250, Lord Wheatley at p. 4 Road Safety Act, 1967 (cap. 30), secs. 2 (3) and 3 (3). 5 Reference was also made ......