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Crown allowed to upgrade charge to death driving

12 August 2009

A man who thought he was to be charged only with careless driving after causing the death of an elderly man outside a pub, has failed to have the Crown ruled as barred from changing to prosecution on indictment for causing death by dangerous driving.

Temporary Judge Colin MacAulay QC in the High Court at Edinburgh rejected a preliminary plea by David Griffiths that in beginning summary proceedings by serving a complaint, the Crown was barred from proceeding on indictment unless there was a change of circumstances.

Mr Griffiths was charged with causing the death of 85-year-old David Hutchins in Roslin, Midlothian, in March 2008 when his car left the road on a bend and hit Mr Griffiths who was then in the beer garden of a pub. The legislation enacting the offence of causing death by careless driving had not then come into force. The incident was reported by the procurator fiscal to Crown counsel, who advised the careless driving charge. Counsel was not sent CCTV footage of the incident, but the fiscal's office then reviewed the case and sent counsel the footage, after which new instructions were issued for the dangerous driving charge.

Judge MacAulay said the Crown had clearly advised that Mr Griffiths was to be prosecuted, and this distinguished the case from the 1976 case of Thom, where the Crown had publicly announced that no further steps were to be taken. Here the Crown had not barred itself from proceeding on indictment on reconsidering the case. The list D school sex abuse case of Murphy, where a change of type of proceedings had been allowed, did not depend on a change of circumstances. In any event change of circumstances had to be seen in relation to the decision maker, and counsel had had additional material the second time.

While the fiscal's office should not have "jumped the gun" before getting the second report from counsel, there was no bar to the indictment.

Cick here to see the full judgment.

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