Road Traffic Act 1988 – Seán Crossan's Scots Law

Last weekend (more specifically Saturday 29 January 2022) saw a really significant overall of the UK’s Highway Code which means that pedestrians and cyclists will be given far greater protection.

I was originally going to entitle this Blog either Code of Silence or Code Unknown, purely on the grounds that the changes seem to have crept up without any real awareness on the part of the British public. The reason I say this is because I was listening to BBC Radio 2 during the week running up to the changes. Jeremy Vine, the host of the eponymous show, was discussing the impending reforms with a panel of interested parties. One of the guests, Leo Murray, from the climate charity Possible, basically remarked that the UK Government had been remiss in failing to publicise these important changes.

I have to admit that I had only become aware of these changes a few days previously when I happened to come across an article from a Scottish regional newspaper which had appeared on social media.

As a pedestrian, cyclist and motorist, I’m pretty glad that I did find out in time. I also have more than a passing interest in this area as someone who has been knocked off my bike twice in less than 18 months by motorists (who were both at fault). Drivers ,who don’t cycle or walk that much, often forget how vulnerable pedestrians and cyclists actually are.

The main outcome of the new rules is the creation of a hierarchy of road users where the most vulnerable individuals – pedestrians, followed by cyclists, and then horse riders will be given priority over motorists, buses and heavy goods vehicles.

This past week alone, I’ve had to make a conscious effort to slow down when turning my car left into junctions in order to give pedestrians priority. I also take greater care when I’m turning right into junctions or leaving roundabouts. I’m quite happy to do this because as an occasional pedestrian and, as a more regular cyclist, I understand that I will benefit from the changes to the Highway Code?

One of the features of the new Code – which I particularly support – is the right of cyclists to use the middle of the road in order to avoid potholes (and other debris), enjoy greater visibility and making it easier to turn right. There are also new rules about giving cyclists greater space when being overtaken by motorists.

Some driving commentators such as the former BBC presenter, Alan Douglas (speaking to Radio Clyde) , have expressed their misgivings about the new rules saying that they are great in theory, but less so in practice. We’ll just have to wait and see.

I do think, however, that this is a timely reminder to the (pure) motorist community ( i.e. those individuals absolutely wedded to the idea of the car as being the sole, legitimate form of road transport) that our highways are a shared space. I often enjoy debunking the old myth or chestnut when talking to (pure) motorists that cyclists do not pay vehicle excise duty. As a driver who also happens to be a cyclist, I do pay several hundred pounds a year in vehicle excise duty for the privilege of using the roads. As a matter of fact, a lot of motorists who drive electric cars and lower emissions vehicles are exempt from this form of taxation. In any case, the sum collected from vehicle excise is not used to pay for road building and maintenance. This comes from general taxation (see link to article below):

https://www.pressandjournal.co.uk/fp/pj-investigations/2477257/the-road-tax-debate-can-drivers-claim-to-own-the-roads/

When motorists use the term of abuse “bloody cyclists!”, they are actually falling into a false dichotomy or “them and us” mindset because many cyclists are in fact car drivers.

Heading towards stricter liability?

The new rules will certainly be the go to reference point in both criminal prosecutions for careless and dangerous driving (Sections 2 and 3 respectively of the Road Traffic Act 1988) and for civil claims in delict and tort involving personal injury and property damage.

Personally and professionally speaking, I’m more interested in the civil aspects of road accidents. In the second, more serious road accident that I was involved in, the driver was charged with careless driving (which was not contested) and probably received a fine and penalty points. I, on the other hand, was left with injuries – necessitating a lengthy course of physio – and a racing bike which had to be written off.

An out of court settlement with the driver’s insurance company eventually followed after my solicitors had raised the prospect of a civil claim. This outcome to the matter was much more satisfying for me than any action taken against the driver under the criminal law.

One area of controversy that surrounds the burden of proof in relation to delictual liability occurs in road traffic accidents involving pedal cyclists and motorists.

Currently, a cyclist who is injured in a road traffic accident must prove that the vehicle driver was at fault or to blame. Most European countries have reversed the burden of proof so that a motorist involved in a collision with a cyclist must prove that s/he was not to blame or at fault for the accident.

Only the United Kingdom, Cyprus, Malta, the Republic of Ireland and Romania operate a system whereby the cyclist must prove fault. This proposed reform, supported by many cycle organisations, has ignited passions and it remains to be seen whether it will find favour with British legislators.

Conclusion

Although the reforms to the Highway Code are certainly revolutionary in some respects, I would hesitate to say that we have arrived at a destination of strict liability in relation to road accidents. The changes do represent a new philosophy in road use whereby whoever you are you should always be thinking about those individuals who are more vulnerable than you.

A guide to the main changes brought in by the updated Highway Code can be viewed by clicking on the link below:

https://www.gov.uk/government/news/the-highway-code-8-changes-you-need-to-know-from-29-january-2022

Postscript

In April 2022, Neil Greig, Policy and Research Director at IAM Roadsmart, claimed that:

“An alarming number of motorists are driving on British roads without awareness of key changes which fundamentally shift the dynamics of shared use.

… This is a serious safety risk which could actually see the updated code causing more conflict on our roads rather than less.”

A survey carried out by Mr Greig’s organisation concluded that one in five drivers was not aware of the recent changes to the Highway Code. A large reason for this ignorance was the fact that the U.K. Government had failed to advertise adequately the changes to the Code. Apparently, a new information campaign to be carried out in the Spring will hopefully rectify this unfortunate situation.

A link to the IAM Roadsmart’s website can be found below:

https://www.iamroadsmart.com/media-policy/media-enquiries/news-details/2022/04/08/uncertainty-over-new-hierarchy-of-road-users-could-cause-more-conflict-on-our-busy-shared-streets

Copyright Seán J Crossan, 5 February & 9 April 2022

Photo by Dorian Hurst at Unsplash

Introduction

In Chapter 1 of Introductory Scots Law, I discuss the importance of corroboration. In a criminal trial, the prosecutor must prove that the accused is guilty of a crime beyond reasonable doubt. This is a very strict burden in that the prosecution must be able to corroborate its evidence against the accused. Corroboration means that there must be at least two independent sources of evidence such as witness testimony and the use of expert and forensic evidence. Reasonable doubt is a nagging doubt which would lead a reasonable person to the conclusion that it would be unsafe and unjust to find the accused guilty. The requirement of corroboration was most recently challenged by Lord Carloway, now Scotland’s Lord Justice General, when he was asked to undertake a Review of the Scottish criminal justice system at the request of the Scottish Government.

On 17 November 2011, Lord Carloway (then the Lord Justice Clerk) controversially suggested in his published Report that the requirement of corroboration be abolished. This proposal did not find universal favour and, although the Scottish Government did attempt to implement this reform by way of the Criminal Justice (Scotland) Bill in 2013, it was abandoned in the teeth of strong opposition and did not form part of the eventual Criminal Justice (Scotland) Act 2016. Notably, Police Scotland, the Crown Office and the Procurator Fiscal Service had all favoured the abolition of the requirement for corroboration.

Recently, the Appeal Court of the High Court of Justiciary has considered the issue of corroboration. I shall now turn my attention to the Court’s opinion.

Jacqueline Shuttleton v Procurator Fiscal, Glasgow [2019] HCJAC 12 HCA/2019/20/XC

The question before the Appeal Court (regarding a reference from the Sheriff Appeal Court) was principally concerned with whether CCTV footage from the locus of the alleged offence could be regarded as sufficient corroboration to prove the charge against the accused.

The accused (Shuttleton) had been charged with the offence of careless driving under Section 3 of the Road Traffic Act 1988 (as amended). She had been involved in a collision with another motor vehicle. There were no independent witnesses to the incident. A Police officer, PC Birrell, who was part of a mobile unit, came across the aftermath of the collision. He and his colleague were able to view the collision later on CCTV footage (which a City of Glasgow Council camera had captured). PC Birrell had found the vehicles of the accused and another driver blocking the road. He was soon after joined by his colleague, PC Russell, and by this time the vehicles had been moved to the side of the road.

Upon viewing the CCTV footage, the police officers noted that the accused had been driving her white VW Polo; she indicated to turn right, but then without warning she turned left; this caused a collision with a vehicle behind her.

At the trial in the Justice of the Peace Court, the accused was convicted of the Section 3 offence, but her defence agent objected to the provenance or authenticity of the CCTV footage. The Justice dismissed this objection and concluded that the footage was real evidence which was then proof of fact.

That said, the Justice found that the case raised an issue of “novelty and complexity”:

“Whether the evidence of the two police officers who attended after the collision and viewed the CCTV footage could amount to corroboration or whether it is no more than a descriptive piece of (uncorroborated) real evidence.”

The accused was permitted to appeal to the Sheriff Appeal Court which then submitted a reference to the Appeal Court of the High Court of Justiciary.

The Appeal Court was asked to consider the following issues:

(i) In situations where the actus reus (wrongful act) was caught on CCTV footage and was the sole piece of evidence, could the evidence of the two police officers who attended the locus and later viewed the CCTV footage be enough to establish corroboration or should it be regarded as having the status of no more than a descriptive piece of real evidence?

(ii) In situations where the act reus is caught on CCTV footage; is the only evidence of said act; and its provenance has been established, can the footage alone be regarded as sufficient evidence of the actus reus of the offence?

(iii) If the actus reus is caught on CCTV footage; is the only evidence of said act; and its provenance has been established, is the fact finder entitled to establish that the act has taken place based upon his viewing of the footage?

In its submission, the Sheriff Appeal Court made reference to a previous case – Gubinas & Radavicius v HMA [2017] SCCR 463 – that it was “at least arguable that … a corroborated case can be established on the basis of a single piece of CCTV alone, where the provenance of the CCTV is properly established”.

The “Cluedo” Reference

Gubinas & Radavicius contained a very interesting statement (at paragraph 59) which became known as the “Cluedo” reference (after the well known murder mystery board game):

“….once the provenance of the images is shown, they become real evidence in causa which the sheriff or jury can use to establish fact, irrespective of concurring or conflicting testimony. Even if all the witnesses say that the deceased was stabbed in the conservatory, if CCTV images show that he was shot in the library, then so be it.”

On the basis of the “Cluedo” reference, could it now be interpreted that CCTV footage had some sort of special evidential status?

The Appeal Court Opinion

Lady Dorrian, the Lord Justice Clerk, sitting with Lords Drummond-Young and Turnbull gave the unanimous opinion of the Court.

She made a number of really helpful statements in relation to the use of CCTV footage:

“In Gubinas the court made it clear (para 56) that the CCTV footage was but one source of evidence, comparable to a witness speaking to events seen or heard, making it equivalent simply to one source of evidence. This did not suggest that the evidence was available as corroborated proof of fact, rather that further, corroborative evidence was required for sufficiency of proof. That this was so could be seen in the discussion of the role such evidence played in the issue of identification.”

Very wisely, Lady Dorrian went on to make a comparison with the use of fingerprint or DNA evidence. She noted (often) that fingerprint or DNA evidence on their own would not be sufficient grounds for convicting an accused. They would certainly be relevant, but not conclusive for corroboration purposes.

With regard to CCTV images, the authenticity (or provenance) of the footage must be established and then a “further cross-check” must be carried out. In Shuttleton case, the Police officers were able to demonstrate that the events recorded in the footage (i.e. the collison) were accurate. In fact, a nearby shop had a CCTV camera and the officers were able to obtain its footage which had also captured the collision. Although the footage from the shop camera was not shown in evidence at the Justice of the Peace trial, Lady Dorrian stated that this would have provided the “necessary corroboration”.

She concluded by stating that:

“Footage from two separate cameras would be sufficient, as long as
these were two systems separate from each other.”

Her Ladyship in response to the three questions posed in the appeal reference (above) arrived at the following conclusions:

(i) No, it was not possible for the evidence of two police officers who arrived at the locus after the actus reus had been committed to provide sufficient grounds for corroboration. The evidence of the officers should be regarded as descriptive only.

(ii) Yes, in the circumstances, the CCTV footage could establish grounds for proving that the actus reus had indeed taken place.

(iii) Yes, in these circumstances, the fact finder (i.e. the police officers) after viewing the CCTV footage would have sufficient grounds for believing that the actus reus had been committed.

Conclusion

The Sheriff Appeal Court was quite correct to refer the issue of the evidential status of CCTV footage to the High Court of Justiciary simply because this was a matter which was routinely raised at many trials.

The High Court was not saying that CCTV footage should have special status for corroboration purposes. Its authenticity or provenance must first be established. It will then be important to determine whether the footage alone can establish evidence of the actus reus; and, finally, it will be up to the fact finder viewing it to conclude that the actus reus has taken place.

Assuming that these requirements are met, CCTV footage will be a very powerful form of evidence which can be used to establish corroboration. The “Cluedo” reference in Gubinas & Radavicius (above) can now be fully understood in the light of the Shuttleton opinion.

A link to the Appeal Court’s judgement can be found below:

https://www.scotcourts.gov.uk/docs/default-source/default-document-library/2019hcjac12.pdf?sfvrsn=0&utm_source=Scottish+Legal+News&utm_campaign=0bf929637d-EMAIL_CAMPAIGN_2019_03_01_08_33&utm_medium=email&utm_term=0_07336e1dbf-0bf929637d-66775629

Tag: Road Traffic Act 1988

Revolutionary Road?

Corroboration