APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Emslie Sheriff Principal Lockhart	[2012] HCJAC 60 XJ1239/11 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL BY STATED CASE by ANDREW JOHN ELPHINSTONE Appellant; against PROCURATOR FISCAL, ABERDEEN Respondent: _____________

Appellant: C.M. Mitchell; Drummond Miller LLP (for George Mathers & Co., Aberdeen)

Respondent: Brown Q.C., A.D.; Crown Agent

27 March 2012

[1] On 24 October 2011, at the Sheriff Court in Aberdeen, the appellant was convicted of a contravention of section 2 of the Road Traffic Act 1988 by driving his car dangerously at speeds of up to 113 mph on the A96 Inverurie By-pass on 15 June 2010. The sole issue in the appeal is whether there was sufficient evidence of the identification of the appellant as the driver of the car; more particularly whether the Sheriff was entitled to make finding-in-fact 10 in the Stated Case to that effect.

[2] The driving occurred at about 11.25 am when a Mitsubishi overtook a police car driving at speed northwards near the Thainestone and Port Elphinstone roundabouts. It was proved, first, that the appellant was, in terms of form VQ13, the registered keeper of the car. On 25 June 2010, when he was asked in terms of section 172 of the 1988 Act, who had been driving the car at the relevant time, the appellant admitted that it had been him. The Sheriff held that the admission coupled with proof that the appellant was the registered keeper sufficed. In that regard, he had been referred to Souter v Lees 1994 SCCR 33. There, it had been proved that the appellant's car had been involved in an accident. In a reply to a section 172 request he had said: "No one else had the car. I had the keys." That was sufficient to prove identity. However, as the Sheriff noted, in Winter v Heywood 1995 JC 60, the fact that the appellant was the registered keeper of a car was deemed insufficient to corroborate an eye witness identification of the driver of that car by a stranger.

[3] The submission was that Winter v Heywood (supra) was determinative of the situation here since the only evidence available to corroborate the admission had been the content of form VQ13. It was submitted that proof that the appellant was the registered keeper did not confirm or support the evidence of identification in the manner described by Allison: Practice (at p. 551) which referred to the need for a "train of circumstances". This was the position, notwithstanding that it was acknowledged that the law had undergone a degree of change since then, in particular in the form of Hartley v HM Advocate 1979 SLT 26 and Fox v HMA 1998 JC 94. In response, the Advocate Depute submitted that, where there was a clear admission in response to a section 172 request, very little else by way of corroboration was required. That had been made clear in Cuthbert v Hingston 1993 SCCR 87 (Lord Justice General (Hope) at 89) and Sinclair v Clark 1962 SLT 307.

[4] When leave to appeal was granted at the second sift, the court stated that:

"Leave to appeal is granted on the question of sufficiency of evidence of identification of the driver and to consider the cases of Winter v Heywood, Hartley v HMA as well as the effect of Fox v HMA".

It is important to note initially that Winter v Heywood (supra) proceeded upon a concession by the Crown and the ultimate decision was that the evidence, which involved additional circumstances beyond the registration document, had been sufficient. Nevertheless it is correct to say that the court accepted that the concession by the Crown had been correctly made because, according to the Lord Justice General (Hope): "Cars are frequently driven by people who are not the registered keepers of them". However, Winter v Heywood preceded the restatement of the requirement of corroboration by the Lord Justice General (Rodger) in the Full Bench decision of Fox v HM Advocate 1998 JC 94 which disapproved (at pages 106-7) his predecessor's analysis in Mackie v HMA 1994 JC 132. In Mackie it had been said that circumstantial evidence was only corroborative of direct evidence if it was more consistent with that direct evidence than with a competing account given by an accused. What was said in Fox v HM Advocate, in contrast, is that the circumstantial evidence need only confirm or support the direct evidence. It need not be more consistent with it than with a competing factual account.

[5] Where there is an unequivocal admission by an appellant in terms of the statutory requirement that he was the driver of the car and no contrary account of who might have been driving the car at the time is advanced, the court has no difficulty in holding that proof that the appellant is the registered keeper, meaning effectively (but not always) that he is the owner of the car, is sufficiently corroborative of the identity of the driver in respect that it does support or confirm the admission. The fact that persons who are not the registered keeper may occasionally drive cars does not detract from the fact that it is far more likely than not, with a private car, that the driver will be the registered keeper or the spouse, child or other close relative of that person.

[6] In these circumstances the Court will answer all three questions in the Stated Case in the affirmative and refuse the appeal.

JJ