Smith v Ross
| Jurisdiction | Scotland |
| Judgment Date | 25 February 1983 |
| Date | 25 February 1983 |
| Docket Number | No. 7. |
| Court | High Court of Justiciary |
JC
L.J.-G. Emslie, Lords Cameron, Stott.
Statutory offences—Road Traffic Acts—Driving when unfit through drink or drugs—Evidence—Sufficiency of evidence—Whether invalidity of arrest negated other, substantial, evidence—Road Traffic Act 1972 (cap. 20), sec. 5 (1) and (5).
R was acquitted of a charge of driving a motor car when unfit through drink or drugs, contrary to sec. 5 (1) of the Road Traffic Act 1972. His arrest under sec. 5 (5) was invalid because the arresting police officers had not personally seen him driving the car. There was other, substantial, evidence before the Sheriff, but he felt bound to acquit because of the invalid arrest. The Procurator-fiscal appealed.
Held that if there is an unlawful arrest the Crown may not rely on procedures which depend on there having been a lawful arrest, but the Court is entitled to have regard to evidence not depending on these procedures. The evidence here was "overwhelming"; and appeal allowed.
Seaton v. AllanSC 1973 J.C. 24 considered.
James Rutherford Ross was charged in the Sheriff Court at Edinburgh on a complaint at the instance of Edwin George Smith, Procurator-fiscal, which inter alia set forth: "(6) On date last libelled, on a road or other public place, namely Duddingston Park South and Cleekim Drive, Edinburgh, you were when driving a motor vehicle, namely a motor car, unfit to drive through drink or drugs: contrary to the Road Traffic Act 1972, section 5 (1)."
The respondent pled not guilty to all the charges on the complaint. After trial on 27th October 1982 the Sheriff (Middleton) found him not guilty. The Procurator-fiscal requested the Sheriff to state a case for the opinion of the High Court of Justiciary. The case set forth that the following facts, inter alia, were admitted or proved:—"(1) At about 3 A.M. on 1st January 1981 John Leydon and his wife were walking on the footpath of Duddingston Park South, Edinburgh, when they saw a car being driven from waste land onto the road, apparently in pursuit of three or four boys who were running in front of it; (2) The boys and the car passed the Leydons going in the opposite direction, and turned into a cul-de-sac; (3) About two minutes later the car emerged from the cul-de-sac, came from behind Mr and Mrs Leydon and veered towards them; (4) As it approached them the nearside front wheel mounted the kerb close to the place where they were walking and they were compelled to jump to the side in order to prevent being struck by the car; (5) The car then moved to its offside, passed them and disappeared from their view into Cleekim Drive which joins Duddingston Park South; (6) There were either two or three passengers in the car and the driver of the car was the respondent; (7) A few minutes after the car in question had turned from Duddingston Park South into Cleekim Drive a police vehicle arrived and stopped beside the Leydons, and police officers spoke briefly to them. They reported what had occurred and the police vehicle was then driven on some hundred yards into Cleekim Drive, where there the police officers found the car about which the Leydons had reported, stationary and unoccupied. The conversation between the Leydons and the police lasted only a few minutes. There were three men standing on the road near to the car and the respondent, who was one of them, was seen to walk towards the front of the car and step on to the footpath. When a police officer went to speak to the respondent he staggered, waved his arms and shouted. He smelled strongly of alcohol. He was asked who was the driver of the car which was locked, but did not answer. At this point the Leydons arrived and pointed out the respondent as having been the driver of the car. The two police officers at...
To continue reading
Request your trial