Horsburgh v Russell
| Jurisdiction | Scotland |
| Judgment Date | 18 January 1994 |
| Date | 18 January 1994 |
| Docket Number | No 18 |
| Court | High Court of Justiciary |
JC
LJ-C Ross, Lords Sutherland, Clyde
Procedure—Summary procedure—Road Traffic Acts—Dangerous or careless driving—Breach of the peace—Pannel charged with alternative of dangerous or careless driving—Repeated skidding of motor car—No warning given or notice of intended prosecution—Whether facts sufficient to justify charge of breach of the peace not libelled—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 312(t)1—Road Traffic Offenders Act 1988 (cap. 53), sec. 1
Section 312(t) of the Criminal Procedure (Scotland) Act 1975 enacts that where any act set forth in a complaint as contrary to an Act of Parliament is also criminal at common law, or where the facts proved under such a complaint do not amount to a contravention of the statute, but do amount to an offence at common law, it shall be lawful to convict of the common law offence.
The pannel was tried on summary complaint with the alternative charges of dangerous or careless driving contrary to sec. 2 or sec. 3 of the Road Traffic Act 1988 respectively in that he had repeatedly caused his motor car to skid in a car park. At the end of the Crown case a motion of no case to answer was made on the basis that no warning or notice of intended prosecution had been made in terms of sec. 1 of the Road Traffic Offenders Act 1988 rendering it impossible to convict of the statutory offences. The Crown however founded upon sec. 312(t) of the 1975 Act and contended that although the statutory offences could not be proved the court could, in light of the evidence, find the pannel guilty of breach of the peace at common law. The sheriff repelled the no case to answer submission and convicted the pannel of breach of the peace. The pannel thereafter appealed to the High Court.
Held (1) that sec. 312(t) would normally apply to cases where the common law offence was similar to the statutory one, but the section was not to be construed narrowly and was applicable where the facts proved under the complaint did not amount to a contravention of the statute but amounted to an offence at common law; and, accordingly (2) that, as the facts proved in the present case amounted to breach of the peace, sec. 312(t) was applicable; and appeal refused.
Observed that the sheriff had a discretion to convict of the common law offence under sec. 312(t) but was not obliged to do so for he had to be satisfied that fair notice of the specification of the charge had been given to the pannel.
Bryan John Horsburgh was charged on summary complaint in the sheriffdom of Tayside, Central and Fife at Cupar at the instance of Edward Barclay Russell, procurator fiscal there, the libel of which set forth that: "[O]n 5th December 1992, on a road or other public place, namely Fluthers Car Park, Burnside, Cupar, North East Fife District, you did drive a mechanically propelled vehicle, namely motor car, registered number DLS 260V dangerously in that you did repeatedly cause said motor vehicle to skid; contrary to the Road Traffic Act 1988, sec. 2 as amended; or alternatively, on 5th December 1992, on a road or other public place, namely Fluthers Car Park, Burnside, Cupar, North East Fife District, you did drive said motor car without due care and attention or without reasonable consideration for
other persons using the road or other public place in that you did repeatedly cause said motor vehicle to skid; contrary to the Road Traffic Act 1988, sec. 3 as amended".
The pannel pled not guilty and proceeded to trial before the sheriff (C. Smith). At the close of the...
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