156 mph driver was "culpable and reckless"

Common law suitable alternative charge to dangerous driving for "one of the highest speeds" recorded

News, 1 December 2005

A driver caught on camera doing 156 mph on the A92 in Fife while using a mobile phone should have been convicted of culpable and reckless conduct when the Cown failed to prove the procedural requirements for dangerous driving, the appeal court ruled today.

The court held that the sheriff at Kirkcaldy was wrong to acquit Ronald Klos on the basis that there was no evidence of actual danger, damage or injury.

Mr Klos had been charged with dangerous driving or alternatively speeding on the 70 mph-limited road, but the Crown had failed to show that the necessary notice of intended prosecution had been sent within 14 days of the offence. In these circumstances the procurator fiscal moved the sheriff to hold the common law charge proved as an alternative as permitted by the Criminal Procedure (Scotland) Act 1995.

Temporary Judge Gordon Nicholson QC, speaking for the court, said the court did not accept that evidence of actual danger, damage or injury would always be necessary. "In some instances the quality of the conduct itself will be such as to satisfy the test of being described as culpable and reckless."

In the present case, he continued, there were several features which, taken together, demonstrated that Mr Klos was guilty. First, and most importantly, was his speed. "We cannot say whether 156 mph is the highest speed ever recorded on a Scottish road, but we suspect that it must be among the highest."

Although the police video recording lasted for only seven seconds, it could not be assumed that he maintained this speed only for that period. Other traffic could reasonably be expected at 8.45 am when the offence occurred, and the court did not see "how to drive at 156 mph can be described as anything other than culpable and reckless".

As for the mobile phone, "it defies common sense" to suppose that Mr Klos was only holding it to his ear and not actually using it, and the sheriff was wrong to say there was no evidence of use. Since there was an effect both on Mr Klos's control of the vehicle and on his concentration, the sheriff ought to have found him guilty of the common law offence.

The court's opinion can be read at http://www.scotcourts.gov.uk/opinions/2005HCJAC136.html .