Evasive car owner rightly convicted

Appeal court rejects plea that police should have warned over failure to identify driver

News, 5 May 2005

The owner of a vehicle, required by the police to identify who was driving it on a particular occasion, does not have to be warned that failure to answer is an offence before he can be prosecuted for failing to comply.

The criminal appeal court has refused an appeal by James Brown, convicted in Aberdeen Sheriff Court of failing to comply with section 172(2)(a) of the Road Traffic Act 1988.

Mr Brown's car had been videoed travelling at 42mph in a 30 limit and he had gone to the police office to view the video. The image of the driver resembled Mr Brown but on being required to identify the driver, he replied he was unable to say, adding "It is an absolute disgrace to waste my time with this" when there were burglars and criminals breaking into houses. He had then been cautioned and charged.

On appeal Mr Brown argued that the absence of a clear finding that he had been warned that failure to answer was an offence, was fatal to the conviction. That was supported by an observation in a 1988 case, Duncan v MacGillivray.

The court however ruled that the comment could not be read in this way. "Any such suggestion as that would, in our opinion, be in conflict with the legislation itself, which contains no requirement for the giving of such an explanation. Furthermore, such a view would be in direct conflict with the observations of Lord Justice Clerk Grant in Foster v Farrell", a 1963 case. It would also, said the court, amount to "an unwarranted departure" from the principle that ignorance of the law is no excuse.

It was clear, the court added, that Mr Brown had been made well aware that he was facing a requirement in terms of section 172(2). "In our view, no more was required."

The court's opinion can be read at http://www.scotcourts.gov.uk/opinions/HCJAC52.html .