Lady Paton

Lord Drummond Young

Lady Clark of Calton

[2014] HCJAC 32

XJ118/14, XJ119/14, XJ120/14












Appellants: Hay; John Pryde & Co, Edinburgh

Respondent: Prentice, QC, AD; Crown Agent

26 March 2014

[1] These are three notes of appeal presented under section 174(1) of the Criminal Procedure (Scotland) Act 1995. They are notes of appeal against a decision of the Justice of the Peace Court at Hamilton relating to a preliminary plea taken on behalf of each of three appellants.. Three motor cyclists have been charged with exceeding the speed limit on an A-road in Lanarkshire. The charges in the complaint, which are in substantially identical terms apart from the name of the particular accused, are that:

"On 20 June 2013 on A725 between junctions for the M74, and the A721 being a road or part of a road specified in the aftermentioned order [name of the particular appellant] did drive a motor vehicle, namely cycle, registered number [stated] at a speed exceeding 60 miles per hour, namely at a speed of 100 miles per hour; CONTRARY to the Road Traffic Regulations Act 1984, section 17. The A725 Trunk Road (Shawlands to Whirlies Roundabout)(40mph, 50mph and 60mph speed limit) Order 2006 and the Road Traffic Regulation Act 1984, sections 88(1) and 89(1)"

[2] The three cases called at a diet of debate before the Justice of the Peace under section 144(4) of the 1995 Act. The argument taken by the solicitor for the appellants was that the complaint was so lacking in specification of the locus as to be a fundamental nullity and therefore not capable of amendment. Because of the lack of proper specification it was said that there was no fair notice to the accused of the charge and it was insufficient to show that the locus came within the jurisdiction of the Justice of the Peace court in Hamilton. The argument in summary was that the locus was only specified by a series of numbers, and that was insufficient. One should not have to look into those numbers to work out where the locus was. Instead the complaint should have specified a place such as Coatbridge or Bellshill. It was submitted that the case law indicated that it should be obvious to an accused person where the offence was said to have been committed and where jurisdiction lay. The reply for the procurator fiscal was that each case should be decided on its own facts and circumstances and that there was sufficient specification in the present case. Following advice given from the Justice's legal adviser, the defence objection was repelled. It was held that the combination of a specific road on which the appellants were said to be travelling, the A725, and two identified junctions, those with the M74 and the A721, would allow the appellants without too much difficulty to work out where the offence was committed and where jurisdiction lay. It was held that the omission by the place name or town did not make the complaint fundamentally null and incompetent. Certain amendments were allowed to the charge.

[3] An appeal has now been taken against that decision on broadly the same grounds as were ventilated before the Justice. There had been no motion to insert any further specification as to the locus, and the fundamental point was that the charges were each fundamentally lacking in the specification of the locus. There was no reference to any town or other settlement in the charge; only road numbers were provided, and that simply did not give enough notice. The result of that, it was said, was that the complaints were fundamentally null and were incapable of amendment. Reference was made to a number of cases.

[4] We have no hesitation in rejecting the argument for the appellants. We accept entirely that the locus must be specified adequately. If it is not, the complaint is a fundamental nullity. That is clearly established by case law dating back to cases such as Stevenson v McLeavy, 1879 6R J 33. In the present case the locus is specified by means of three road numbers. One of these, the A725, denotes the road on which the three appellants are said to have been travelling and the other two, the M74 and the A721, indicate the section of road where the offence is said to have taken place. It is perhaps worth observing that those road numbers form part of a general system of road numbering that applies throughout the United Kingdom under what is ultimately a statutory scheme. Those road numbers are indicated on any serious road map; that is a matter that falls within judicial knowledge. By using the road numbers it is possible to specify a section of road with great precision, frequently greater precision than is possible by using the names of towns and villages. This may be particularly obvious in rural areas, especially in more remote parts of the country where the towns and villages are widely spread and thus do not provide any great precision as to the location of a section of road. The same may also be true of roads in the vicinity of densely populated areas, as in the present case, where a trunk road may pass between two towns or may form a bypass which goes round the outside of a town but does not enter it. In such cases the use of road numbers is an obvious and clear means of specifying the precise locus of an alleged motoring offence.

[5] In our opinion that is exactly what has happened in the present case. The references to the three road numbers indicate the precise section of road where the offence is said to have taken place. It lies in the middle of a triangle formed by the towns of Coatbridge, Bellshill and Uddingston. That is apparent from a cursory examination of a road map of north central Lanarkshire. It is, moreover, clear that that section of road lies in an area adjacent to Hamilton. It was not seriously disputed that that particular locus did not fall within the jurisdiction of Hamilton Justice of the Peace Court. This matter was not discussed by the appellants' counsel, who concentrated on a submission that the section of the road referred to in the complaints was not adequately specified.

[6] We were referred to a number of cases. The first of the more modern cases was Yarrow Shipbuilders Ltd v Normand, 1995 SCCR 224, where the reference was to an offence committed on "Unit 5, Ship 1047". This was in fact a ship under construction in Yarrow's shipyard, but nothing more was given than the private number used in the shipyard to identify the ship. It seems to us that this is quite different from the present case. That private shipyard number only makes sense in relation to Yarrow's shipyard; in the complaint in the present case, by contrast, the road numbers refer to the national system of road numbering, a public system. In Caven v Cumming, 1998 SLT 768, the charge was failure without reasonable excuse to ensure that the appellant's daughter attended "Whitehill Secondary School" contrary to the Education (Scotland) Act 1980. An objection was taken to competency on the basis that there was no specification that the school was within the jurisdiction of Glasgow District Court. It was held, however, that the complaint was not fundamentally null as enough had been said in naming a particular school to show that the locus lay within the relevant jurisdiction. The submission made in that case was that there was no reference to a town, let alone a street, but that argument was rejected. The Court said (at 770):

"Enough must be said in the complaint to show, within the terms of the complaint itself, that the locus lies within the jurisdiction of the court before which the complaint is brought.... It was the clear implication of the complaint that Whitehill School, which the child of the appellant, whose address was in Glasgow, had allegedly failed to attend, was in Glasgow. Specification of a locus in a charge and on the face of the charge itself is necessary both to demonstrate that the court concerned has jurisdiction and to give fair notice to the person charged of where the offence is alleged to have been committed.... We are satisfied that, having regard to the context and the wording of the present complaint, including in particular the naming of a particular and identifiable school, enough is said in the complaint to show, within the terms of the complaint itself, that the locus lies within the jurisdiction of Glasgow District Court".

[7] The court in Caven referred to the requirement that on the face of the charge itself the location must be specified. Nevertheless, the wording of the charge must require reference to what exists on the ground. In our opinion the reference to what exists on the ground may require the use of a map; that is the standard way in which people find locations. For that reason we consider that the requirement of using a map cannot be a fundamental objection to what is specified in the charge.

[8] Finally, in Herron v Gemmell, 1975 SLT Notes 93, the charge referred to a motoring offence on the ".... Glasgow inner ring road at a part thereof near Charing Cross underpass". The city in which the road was located was identified, but the critical point was that the road itself was only identified as the Glasgow inner ring road at a point specified with some degree of precision as being near a named underpass. That charge was thought to be quite sufficiently specific.

[9] The foregoing decisions make it clear that the sufficiency of specification must be considered in context on a case by case basis. We consider that it is certainly not fatal to a complaint that the town where an offence is said to have taken place is not expressly named, provided that the location is sufficiently clear. That appears from Caven v Cumming. Furthermore, in describing a section of road an expression such as "the Glasgow inner ring road at a part thereof near Charing Cross underpass" is sufficiently specific. It seems to us that the use of the road numbers in the manner followed in the present complaints is, if anything, even more specific. It is true that a map may have to be used to discover where the particular section of road is, but that is perhaps true of most locations and the need to use a map certainly cannot, in our view, be fatal as to the specification of a charge.

[10] In the present case, as we have indicated, even on a cursory look at a road map, it is readily apparent which precise section of road is referred to in the complaint. For these reasons we are of opinion that the Justice of the Peace was correct in holding that the present charges were not fundamentally null. These appeals are accordingly dismissed.