Charged with Dangerous Driving in Scotland based on Speed Alone?
A prospective client came to see us last week charged with Dangerous Driving in Scotland. We had spoken to this client not long after he had been stopped by the police. He described that he had been charged with speeding. The alleged speed was 135mph in a 70mph limit.
The first thing that we asked was whether he was sure he had been charged with speeding. In our experience that sort of speed will lead to a driver being charged with Dangerous Driving in Scotland. However he was adamant that it was a speeding charge. Even when he received his case papers and contacted us again, he believed he was charged with speeding.
Review of Client’s Case Papers:
When accused of these kinds of speeds, you are likely to be charged with Dangerous Driving in Scotland, not speeding
When he came into the office, we looked at his case papers. They confirmed what we already suspected. He had been charged with dangerous driving, contrary to the Road Traffic Act 1988, section 2. The main basis of the allegation was speed but the police had made clear he was charged with dangerous driving. The driver expressed shock. He had thought those charged with dangerous driving in Scotland required to have done something much worse than drive too fast. We have some sympathy with that view. Some driving is self-evidently and obviously dangerous like that seen here. And in some cases, speed is clearly the basis of an obvious charge of dangerous driving, such as being involved in a high-speed police chase in a built up area.
But what about cases where the speed is extremely high but it occurs on an empty motorway with no other traffic or hazards? If the speed was high enough, can you be charged with Dangerous Driving in Scotland based on speed alone? The answer is “yes”. The question of whether you can be successfully prosecuted, however, may provide a different answer.
Legal Changes:
The evolution of the law since the 1970s, in Scotland at least, is interesting. The Road Traffic Act 1972 section 2 provided for charges of “reckless, or dangerous, driving generally. It stated:
“If a person drives a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road, he shall be guilty of an offence”
Therefore the 1972 Act provided for an offence of driving at a speed dangerous to the public. It was also clear from the Act, however, that speed alone would not be sufficient to constitute reckless driving. Rather regard had to be taken of the nature of the road and the amount of traffic present. Based on the 1972 Act, therefore, a person driving at extremely high speed on an empty motorway in good weather conditions would not be driving recklessly. Moreover, the part of this section relative to driving “at a speed….. dangerous to the public” was specifically revoked by the Criminal Law Act 1977, section 50. The present day replacement for the 1972 provisions – sections 2 and 2A of the Road Traffic Act 1988 – make no mention of speed at all.
Justification?
So what is the justification for someone being charged with Dangerous Driving in Scotland based on speed alone? The answer can be found in one interpretation of the case law as it has developed in Scotland since the 1990s. The learned author of the English text “Wilkinson’s Road Traffic Offences” appears to suggest that this is judicial overreach, stating:
“Although the offence of driving at a speed dangerous to the public was abolished with effect from December 1, 1977 by s50 of the Criminal Law Act 1977, the High Court of Justiciary in Scotland would appear to have come perilously close to recreating that offence in non-statutory form by its decision in Trippick v Orr 1995 SLT 272″.
In fact, in Trippick (where the speed was 114mph on a 70mph dual carriageway), the accused was not convicted on the basis of speed alone but also potential dangers such as two major junctions in the vicinity of the recorded speed. The author is, in our opinion, correct to say this essentially recreates the revoked 1972 Act as the presence of the junctions on a dual carriageway would come under the ambit of “nature, condition and use of the road”. Since then various decisions, culminating in Service v Daldrup 2005 SCCR 693, indicate that grossly excessive speed will be a major factor in determining whether the driving is dangerous. However evidence of grossly excessive speed alone, apart from perhaps truly exceptional circumstances, will not be sufficient for a charge of dangerous driving in Scotland. In the vast majority of cases there must also be potential dangers.
Differences?
What is the difference between “potential” and “actual” dangers? A good example would be the presence of junctions. A junction may well be a potential danger even if there are no cars using it at the time. It will be an actual danger if there is a car actually using it. But that only concerns sufficiency of evidence. The only hard and fast rule about being charged with Dangerous Driving in Scotland is that there is no rule – each case will be a matter of fact and degree. So while the Crown may have a sufficiency of evidence for a charge of dangerous driving in Scotland based on grossly excessive speed past junctions, that does not necessarily mean that the driving is dangerous beyond reasonable doubt.
Being charged with dangerous driving in Scotland based on speed is therefore a complicated and difficult area of the law. We have successfully secured recent acquittals in cases with speeds as high as 124mph in a 70 limit and 110 mph in a 60 limit past numerous potential dangers. We also negotiated a plea to speeding in a case involving 105mph in a 50mph across a busy bridge and saved our client’s licence (see a snippet of the Trustpilot review elsewhere on this page). So if you have been charged, simply click the button below to call us now.