Watson v Muir
| Jurisdiction | Scotland |
| Judgment Date | 13 July 1938 |
| Docket Number | No. 27. |
| Date | 13 July 1938 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Ld. Fleming. Ld. Moncrieff.
Procedure—Procedure before trial—Test and inspection of motor vehicle after road accident—Procurator-fiscal instructing test without notice to owners—Subsequent trial of owners for statutory offence—Admissibility of evidence regarding results of test—Motor Vehicles (Construction and Use) Regulations, 1937 (S. R. & O. 1937, No. 229), Reg. 95—Motor Vehicles Construction and Use (Amendment) Provisional Regulations, 1937, Reg. 9.
The Motor Vehicles (Construction and Use) Regulations, 1937, by Reg. 95, provide that, subject to the consent of the owner of the premises, a police constable in uniform may test and inspect the brakes of a motor vehicle on any premises where the vehicle is. The Motor Vehicles Construction and Use (Amendment) Provisional Regulations, 1937, by Reg. 9, prohibit the exercise of this power unless the owner of the vehicle also consents, or has been given notice in the prescribed manner.
After a collision between a motor car and a pedal cycle, which resulted in fatal injury to the cyclist, the owners of the car removed it to a garage for repairs. Before anything had been done to affect the operation of the braking system, the police, on the instructions of the procurator-fiscal, stopped the repairs and instructed the garage to hold the car at their disposal; and four days later they removed the car, without protest, for the purpose of testing the brakes. No notice of the test had been given to the owners of the car, and their consent had not been obtained. The driver and the owners of the car were subsequently charged with statutory offences arising out of the condition of the brakes. In a question as to the admissibility of evidence regarding the results of the test in view of the absence of notice to the owners,—
Held that the evidence was admissible, in respect that the common law powers of search possessed by the procurator-fiscal had not been restricted by the Regulations of 1937, and that, in the circumstances, he was entitled to exercise those powers without a warrant in the absence of protest from the custodiers of the car.
Observed, per Lord Moncrieff, that it was desirable that persons liable to be criminally affected as a result of such a test should have an opportunity of being represented at the test.
John Watson, Old High School House, High School Close, Dalkeith, and A. & W. Douglas, flour millers, Dalkeith, were charged in the Sheriff Court at Edinburgh on a complaint at the instance of Thomas Greenlees Muir, Procurator-fiscal, which set forth,inter alia, that "(2) Time and place above libelled, you, A. & W. Douglas, did cause and permit you, John Watson, to drive and use, and you, John Watson, did drive and use, said motor car, on which the braking system and means of operation thereof fitted to said motor car were not maintained in good and efficient working order and properly adjusted: Contrary to Regulation No. 68 of the Motor Vehicles (Construction and Use) Regulations, 1937 …"1
On 18th May 1938 the Sheriff-substitute (J. A. T. Robertson), inter alia, found the accused guilty of this charge, and at their request stated a case for appeal to the High Court of Justiciary.
The case set forth that the following...
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