Symmers v Mcfadyen
| Jurisdiction | Scotland |
| Judgment Date | 13 October 1999 |
| Docket Number | No 24 |
| Date | 13 October 1999 |
| Court | High Court of Justiciary |
JC
Lord Sutherland, Lord Kirkwood and Lord Allanbridge
Procedure—Summary procedure—Implied latitude as to place—Pannel charged with dangerous driving on various roads—Crown leading evidence without objection of driving on two nearby roads not specified in charge—Whether locus of the essence of the charge—Whether implied latitude included two roads not libelled—Criminal Procedure (Scotland) Act 1995 (cap 46), sched 3, para 4(2)1
A pannel was charged on a summary complaint with dangerous driving, contrary to sec 2 of the Road Traffic Act 1988, as amended. The libel narrated that the driving occurred “on a road or other public place, namely Morison Gardens, Loch Road, and Stewart Terrace, all South Queensferry”. The Crown led evidence that the pannel was seen as he drove his vehicle in Morison Gardens at about 1 am. As the police started to follow the pannel's vehicle, the pannel accelerated and turned into Loch Road. The pannel then emerged at the junction of Loch Road with Kirkliston Road but failed to obey a “give way” sign there. Thereafter the pannel turned off Kirkliston Road into Burgess Road without slowing down and as a result, his vehicle crossed the centre line of the road and, once it was in Burgess Road, swerved across the centre line and braked violently causing the police to take evasive action. The sheriff rejected a submission that the evidence of the pannel's driving in Kirkliston Road and Burgess Road was inadmissible because no notice had been given of these loci in the charge. The pannel was found guilty as libelled and appealed to the High Court of Justiciary by stated case.
Held (1) that as the events in Kirkliston Road and Burgess Road were of an entirely different nature to those which had occurred in the prior roads, the locus was of the essence of the charge and no latitude under para 4(2) of sched 3 to the 1995 Act could be implied (p 151A); and (2) that the sheriff had been wrong to take into account the evidence of the events in both streets and, in the absence of such evidence, the sheriff was not entitled to convict the pannel (p 151B); and appeal allowed.
Observed that the Crown could have sought leave to amend the charge and no doubt the sheriff would have allowed amendment since all the evidence by that time would have been led (p 150H).
Terry Symmers was charged in the sheriffdom of Lothian and Borders at Edinburgh at the instance of Robert Lees, procurator fiscal there, on a summary...
To continue reading
Request your trial
-
Brian Fletcher V. Her Majesty's Advocate
...Gemmell 1975 SLT (Notes) 93 McGarry v HM AdvocateSC 1959 JC 30 Salmond v HM AdvocateUNK 1992 SLT 156; 1991 SCCR 43 Symmers v McFadyenSCUNK 2000 JC 149; 2000 SLT 507; 2000 SCCR 66 The appeal called before the High Court of Justiciary, comprising the Lord Justice-General (Hamilton), Lady Pato......
-
Cameron v Swan
...Civ 544 Stupple v Royal Insurance Co Ltd [1971] 1 QB 50; [1970] 3 WLR 217; [1970] 3 All ER 230; [1970] 2 Lloyd's Rep 127 Symmers v Lees 2000 JC 149; 2000 SLT 507; 2000 SCCR 66 Towers v Flaws [2015] CSIH 97; 2020 SC 209; 2020 SLT 259; 2020 Rep LR 43 Whittle v Bennett [2006] EWCA Civ 1538 Woo......
-
Samuel Cameron Against Martin Swan And Another
...with driving in three separate streets, it was not competent to lead evidence of his driving in neighbouring streets (Symmers v Lees 2000 JC 149). The defenders were not precluded from advancing this argument in a reclaiming motion, even if it had not been raised at first instance. [51] The......