19 February 2011

Judicial quotation of the week...

Eccentric litigants seem to have been keeping their futile but entertaining petitions from the doors of Scotland's appeal courts of late. The dearth may now be lifting. Idly fumbling through the electronic annals of Parliament House, the humble case of Daniel Cox v. Procurator Fiscal, Aberdeen caught my eye. The details themselves are perfectly quotidian. Mr Cox was convicted of driving at 49 miles an hour in 30 mile per hour zone by the Aberdeen Justices of the Peace Court. He received three pips on his driving licence and was fined £250. Clearly not a fellow to pinch his nose and swallow his legal medicine, Cox appealed his conviction on the basis that old peculiar of Scottish evidentiary jurisprudence, the corroboration rule.

Contended Cox, the accuracy of the Unipar SL 700 laser speed detection device had to be spoken to by two independent sources of evidence. Here is where things got trickier. The Procurator Fiscal relied on the evidence of two police officers who had carried out certain checks on the instrument before mounting up and scourging the Granite City for Mr Toad impressionists. They reassured themselves that the laser alignment was functioning properly by opening fire on a blameless nearby lamp-post.  The range, they tested by employing the instrument to measure between two settled pre-measured points in the police garage, thirty metres apart, Finding that the particular device was functioning properly, the polis thought nothing more of the matter. Cox had his doubt. How did they know that points A and B in the garage were 30 metres apart? Only one of the police officers had been involved in measuring the distance, but that was some time earlier. What if some cruel faerie or mischievous goblin had been capering about in the garage the night before, maliciously altering the distance between the two points? What if the surface of the earth had - in an astonishing coincidence - contracted between A and B and the device simultaneously inaccurately mismeasured to the same degree? Cox insisted that that measurement ought to have been corroborated and that by dint of not having been, he should have been acquitted on the basis of an insufficiency of evidence.

The Court reminded us of a case from 1957 and the somewhat less technologically sophistical procedure employed by the polis at that time to see if vehicles vrooming in excess of the speed limit. In Gillespie v MacMillan a speeding motorist's appealed against his conviction. In the opinion of the Court, Lord Hardie expounds:

"... the methodology adopted at that time did not involve the use of approved devices but rather the use by a police constable at each end of a measured distance of a stopwatch, the issue for the court was similar to the issue in the present case. The contention of the appellant in that case was that there was not sufficient evidence in law to warrant the conviction of the appellant, since the exact moment of entry into the measured distance was spoken to by one witness only, as was the exact moment of exit from the measured distance, and that each of these two events must be proved by two witnesses."

Gone are the days when police officers had to know their speed = distance / time.  In the event, Cox was unable to persuade the bench that range-accuracy of the instrument was required to be demonstrated by corroborated evidence, so he'll have to fork out his £250 and thole his three penalty pips. In its reasoning, the Court quoted these pungent phrases from Lord Justice Clerk Thomson's judgment in Gillespie:

"If law were an exact science or even a department of logic, there might be something to be said for this argument. By relying on the disparate qualities of space and time the logician can prove that in a race the hare can never overtake the tortoise. But law is a practical affair and has to approach its problems in a mundane common-sense way. We cannot expect always to have a tidy and interrelated picture; in real life a surrealistic element is apt to creep in, and the picture, though untidy and inharmonious may be a picture all the same." Lord Justice Clerk Thomson in Gillespie v. MacMillan 1957 JC 31, 40.

A rare example of Scots legal poetics?

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