A Road Rage Incident on Dundee's Kingsway

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Improbability Driving in Dundee


The following saga relates my experience fighting an accusation of Dangerous Driving in a Scottish Court. I post the story for a number of reasons:

    The 3 witnesses in the case conspired to make false allegations against me: they lied in Court; they committed perjury; they conspired to pervert the course of justice.
    I discovered that the Scottish justice system makes no effort at all to stop such malicious complaints getting to the prosecution stage.
    The case was badly mishandled by my solicitor, who denied making false representations to the Scottish Law Society when I complained to that body about him.
    As it is difficult to get the full facts about Scottish Summary Court procedures, this may help others who face a similar predicament.

Here is a summary:

A driver, angry at being held up on his local road, which he probably used as a racetrack, had a temper tantrum and tailgated me; this didn't satisfy his fury so he got together with a mate and reported me to the police.
This mate was a motorcyclist who pretended to be a witness. For good measure he got his girlfriend to say she was riding pillion so that she could also claim to be a witness.

The conspirators embellished their story with a number of improbable events - like the Douglas Adams space ship with the Improbability Drive, they twisted the laws of space and time: 

1 - the driver reported that his car was damaged but a scuff mark on a tyre was all the police could find.  

2 - the complainant managed to remember 2 registration numbers, despite claiming to be shocked;  

3 - my venerable diesel Citroen was said to have outrun a Kawasaki ZX 1100 motorbike; 

4 - the Kawasaki's rider claimed that he always kept to speed limits; 

5 - his 'witness' said she "got quite a fright" when observing the 'accident' even though she was probably 20 miles away at the time; 

6 - my magic Citroen frequently overtook the witnesses' vehicles even when it was already in front of them;

7 - and finally, the least improbable fact (which Douglas Adams fans will appreciate) is that the complaining driver lives near Liff.

Unfortunately, the Sheriff refused to believe that such improbable evidence made the witnesses any less credible: he accepted their version of events and convicted me.

After the trial, I found definitive proof that a crucial part of the prosecution's story, relating to the time and location of the incident, was false.

Road Rage

Driving along Dundee's Kingsway, doing an indicated 50mph, I moved out to overtake a truck laden with domestic bric-a-brac doing about 25 mph. I could see an Astra in the outside lane, more than 100m back, a safe enough distance on a dual carriageway with a 50 mph limit. Or so I thought. The Astra's driver was moving fast and didn't like being held up, so he showed his displeasure by flashing his lights, hooting and tailgating so close that I couldn't see his number plate. As soon as I passed the truck, I moved back to the inside lane. The Astra then cut sharply in front of me and slowed down to about 35mph. The driver clearly wasn't in any hurry - he just wanted to intimidate me. I wasn't in any hurry either and stayed behind the Astra. I refrained from making any rude gestures. And that was the end of a fairly typical and unexceptional road rage incident. But for a couple of things that happened later.

First, a motorcyclist on a Kawasaki overtook and slowed down alongside the Astra. The rider twisted round in the saddle, looked in my direction, then pointed at the Astra with his gloved forefinger.

Then, 5 weeks later, two local police officers called at my house.
They cautioned me and charged me with Dangerous Driving.
I said I remembered an incident when a car tailgated me outrageously.
They may have taken this down in their notebooks but they did not then ask for a formal statement.

Complaint

About 2 months later, I received a Citation, also known as a COPY COMPLAINT, hand delivered by a Court Official. He told me I had to send the form back with my plea forthwith or face going to Court to plead. He said I should enclose my driving licence with the form. As you only do this if you are pleading Guilty, the Official clearly assumed I was guilty. As time was short (I was only given a couple of days), I sent the form back, in the reply-paid envelope provided, without the benefit of legal advice.
9 days later, I received another summons - this one to appear in Court. When I rang, they said they hadn't received my plea. I had to send them a copy. They phoned to confirm receipt.
Almost a month later, I was given the dates of my two trial diets (see below).

In the meantime I called the various agencies to enquire about the procedures to be adopted by someone defending himself.
They were generally unhelpful and frequently inaccurate.
For example, the Fiscal Officer at the Procurator Fiscal's office told me that I could get the witnesses' details (so that I could ask for their statements) from the Court.
When I called the Court I was told this was wrong. The court official added that they could not give advice.
She then offered this piece of advice:

    "It's up to you to prove your innocence."
I retorted that
    "I thought it was for the Prosecution to prove my guilt."

The usual procedure, I learned later, is for the Procurator Fiscal's office to give out witnesses's names and addresses to a solicitor. If the witnesses refuse to give a pre-cognition statement, as it is known, they can in theory be required to do so in front of a judge. In practice, this almost never happens. What does happen is that at the very last moment, just before the trial, your solicitor will get a phone call from the Procurator Fiscal Depute giving you a rough outline of what the Crown's witnesses will say in Court.
It's pretty hard to get this information without a solicitor. If you go it alone, the system will put all sorts of obstacles in your way.

This is what the Copy Complaint said:

“on 15 June 2004 on a road or other public place, namely Kingsway West, Dundee, you [the Accused] did drive a mechanically propelled motor vehicle, namely motor car registered number SK52XXX dangerously in that, near to the junction with Liff Road you pulled out into the path of motorcycle registered number YI86XXX, forcing [Witness 1] to brake to avoid a collision, and near to the junction with Myrekirk Road, you overtook motor car, registered number SA53XXX, on its nearside, then swerved violently into its path, forcing [Witness 2] to brake and swerve to av [sic] avoid a collision, causing his vehicle to collide with the central reservation, and, near to the junction with Strathmartine Road, you overtook motorcycle, registration mark YI86XXX, on its nearside; contrary to the Road Traffic Act 1988, Section 2 as amended “

Diets

I managed to get Legal Aid and my solicitor wrote to the three witnesses for statements. Only one responded and gave a statement. There were also statements from the policeman who went to see them after the 'crime' was reported, and another from the officers who charged me.

The first hearing, the INTERMEDIATE DIET, takes place so that both prosecution and defence can say whether or not they are ready to proceed to trial. The accused has to attend, but only to confirm his plea. When you do this, the case goes forward to the TRIAL DIET. If you plead Guilty, the case will usually be concluded there and then, and the sentence imposed.

Driving Test

Just before the Diet, my solicitor found that he had another engagement on the trial date, so palmed me off on to someone else, an Associate of a neighbouring firm, a man with a reputation, so I was told, for being an expert in road traffic law. I went to see him.
He questioned me as though I was a hostile witness. An example:

    Q: "Did you see him hit the central reservation?"  A: "I don't think so."
    Q: "What do you mean? Did you or didn't you?" A: "Well he was behind me."
    Q: "But you're supposed to look in your mirror frequently, as in the Advanced Driving Test."

Fair enough, I thought. Perhaps he's playing devil's advocate, testing me and toughening me up for the trial. 

He then told me that, by my own admission, I was guilty of Careless Driving. By this he meant that you are not allowed to move out and impede following traffic, no matter what speed it is doing.
In support of this argument he declared that the driver of SA53XXX could have been speeding to take a sick baby to hospital.
Even if that were true, I was overtaking a truck and had nowhere to go.
Continuing his theme, he told me that a particular lady Sheriff thinks that if there is a car visible in your mirror you should never overtake.
He declared that you should not overtake if there is a car within 5000 yards - yes, 5000 yards. If you did this during a driving test, he said, you would fail. Later, during the post-trial debriefing, he claimed he'd been exaggerating.
This seemed to be such a warped view of overtaking law that I checked the Highway Code. Section 267 says merely that the overtaking lane should be "sufficiently clear" before you move out to overtake.
I wrote  to Stephen Mead, the Assistant Chief Examiner of the Institute of Advanced Motorists, who confirmed that you can overtake in such circumstances, providing the other driver is not inconvenienced.
What my solicitor did not do in that first interview was ask me for the details of my journey that day.
And he showed no interest in what I said when I was charged.
The fact that I'd told the officers, off the cuff as it were, that I'd been tailgated might make a good impression on the judge, because it was clearly not invented.
My solicitor could have asked for the officers to appear in court to verify imy remarks, but this did not seem to occur to him.

Crookwank

My new solicitor was keen to impress me with his skills. I was told he was an expert driver, having been a racing driver and an advanced driver, implying membership of the Institute of Advanced Motorists.
He was also walking lie detector, having the ability to tell whether a witness is prevaricating, just by looking at his knees: shaking knees, apparently, are a sure sign of a liar.
As well as these accomplishments, he was up there with the gods of the Scottish legal establishment: he fished with Lord Marnoch of the Appeal Court, hobnobbed with Lord Morrison of the Supreme Court and had a relative on the Privy Council. 

This was a man so far up his own arsehole that the only illumination came from his glittering ego.
We nicknamed him "Crookwank" after his extreme self-regard (he would constantly and shamelessly rub his ego in front of us) and also, as it turned out, his mendacity.

Crookwank loved to tell stories that glorified his legal skills.
At the outset, I'd told him I appreciated his view that a successful outcome would depend on establishing credibility, but asked if we could also take a proactive approach.
I wanted to get evidence of witness collusion, but didn't get to expand on this because he digressed into legal anecdotes of doubtful relevance. All his tales were to do with guilty people or incidents involving spectacular damage to property. He had nothing to say about witnesses stitching up innocent defendants. In all, I reckon he spent at least a third of our interview telling such stories.

I told him it was important that he believed my version of events.
He replied that he could not say one way or the other. He could not take a view on a client's innocence or guilt.
While this is a perfectly reasonable stance for a solicitor to take, it was at variance with his general attitude towards me, which was one of hostility, lack of objectivity and bias.
During our debriefing after the trial he actually said he thought I was lying.

NIPs and scuffs

I asked about Notices of Intended Prosecution. These are supposed to be sent within 14 days of most motoring offences. However, this rule does not apply if an accident has been alleged.
It could be argued that there had been an accident - even a swerve can be construed as an accident.
Crookwank illustrated this with a tale of a drunken tramp who fell asleep in a barn and unwittingly set the hay alight - although he said he had not done it he later admitted he could have done it while asleep. I said I failed to see the connection with my case because there was clear damage, even though it was an unintended consequence. In my case, the only damage was said to have been a scuffmark on a tyre. 

Crookwank called me two days before the trial to remind me of the date, to explain the procedure, and to tell me that he would be there "to conduct your trial".

In the Court of the Silken Snots

At 9am in Court No. 5 at Dundee Sheriff Court I sat with a group of social workers in the public gallery while the Clerk of the Court and the Sheriff, Andrew Grant McCulloch, decided the order in which cases would be heard.
Mine was an easy decision because Crookwank was 3 hours late and we would have to go last.
When he eventually arrived we hunted for an interview room and settled in a tiny cloakroom for a briefing. We were frequently interrupted by people coming in for their coats.
At 12:05 we left my partner in the waiting room and went upstairs to Court No. 5 to see if they were ready for us. They were ready but when I asked Croowank if my partner could be informed, he brushed the request aside. As a result she missed the entire morning session.
I got the distinct impression that Crookwank hadn't got a complete grasp of the details of my case - although I'd sent him a letter outlining ways in which the prosecution case might be attacked, he asked rather basic questions such as:
"what direction were you travelling in?"
He wanted to know how far from the roundabout the incident had occurred; when I said I couldn't be absolutely sure, he said snottily:
"It's important to give exact distances," and:
"You didn't bring the maps I wanted."

After reading over my statement, he shuffled into his shabby gown and led me upstairs to the courtroom to conduct, as he put it, my trial.

Trial and Error

The courtroom was hot and stuffy. I went into the dock and took a swig of water from my bottle, but was immediately reprimanded and told (correctly) by Crookwank that it was not allowed.
The bewigged Sheriff made his grand entrance and Crookwank performed some abject grovelling to apologise for his lateness.
The Fiscal Depute launched the case by calling her first witness.

I have left the details of the case against me to this point because my solicitor had only just told me what they were.
He hadn't bothered contacting the Procurator Fiscal Depute to see if she would reveal details of the case against me.
Instead, he'd received a summary of the Crown's case, taken over the phone the night before and scribbled down on a scrap of paper.
He hadn't thought of phoning me to tell me.

Not knowing what the witnesses were going to say prevented me from checking out their story and finding evidence that they were lying.

Not that it would have made much difference to the outcome: the Court, it turns out, is not interested in hard evidence. All it is required to do is decide who is the more credible - witness or defendant. This is done by asking questions, some of them awkward, but most of them routine and easy enough to answer if you have rehearsed your story.
The grand people who sit in your judgement believe they can elicit the truth simply by asking such questions.

Improbability Drive

The three witnesses - dubbed CAR GENIE (aka the Muirhead Monster), MIRO (aka the Perjurer) and ROB ROY (aka the Perjurer's Apprentice) because they are all associated with mythical or surreal creations - stood in the witness box and lied with varying degrees of authority.

Rob Roy was a tallish woman who claimed she had been riding pillion on Miro's motorbike.
I knew that the bike could not possibly have had a pillion rider.
She was asked to identify me. Clearly nervous, she waved vaguely at me.
She had never seen me before, but if you're presented with a bloke in the dock flanked by two policemen, it shouldn't be too difficult.
Yet telling lies in a court of law must be quite a daunting thing to do and Rob Roy was struggling to get over her fear.
Again and again she was asked to be more precise by an increasingly irritated Fiscal Depute and eventually her wavering finger pointed directly at me.

Both Rob Roy and Miro said that at the Swallow Roundabout I had swerved into their path to avoid a lorry, causing him to brake. They said the road was busy, a reasonable-sounding statement given that it was the evening rush hour.
Actually, I had been surprised to find the Kingsway quiet, with no queues.
But Rob Roy and Miro said there was a queue at the next roundabout, at the junction with Myrekirk Road, because a broken-down white van was blocking the inside lane further along the dual carriageway.
Improbably for riders of a powerful motorbike (a Kawasaki ZX1100), they said they had joined the queue in the outside lane and watched me speed up the empty inside lane until I came to the broken-down van, whereupon, they said, I swerved into the path of Car Genie's Astra, which braked and hit the central reservation.

Crookwank, appropriately enough for a fisherman, appeared to swallow this scenario hook, line and sinker.
It did not cross his mind that the motorbike would have been quite a long way back, stuck in a queue of traffic, at the time of the supposed incident.
Perhaps this is why he did not challenge Rob Roy when she said:
"I got quite a fright",
as though the incident had happened right in front of her.

Some time after the trial I found a
Police Report of a vehicle that had broken down a mile away, at the Swallow Roundabout, about 40 minutes after I had passed through. This was almost certainly the broken-down white van mentioned by the witnesses.

Car Genie, the Astra driver, said that when I swerved into his path he panicked that he was going to run into the gravel and hit the crash barrier.
There is no gravel on the central reservation: only a low-profile, bevelled kerb.
In the event, he said, he merely touched the kerb and later found a mark on his tyre, but: "it was OK".
Later, under cross-examination, he said I had overtaken him again.
While my solicitor studied his notes, looking for his next routine question, Sheriff McCulloch interjected, asking:

    "How does it pass you again if it's already in front of you?"
Car Genie recovered himself, saying:
    "To be honest I was a wee bit shocked"
and the error wasn't referred to again.
Continuing the cross-examinion, Crookwank asked Car Genie about the locus of the incident, near the BP garage.
The witness replied that he knew the location referred to because there was usually a camera there, so he was within the speed limit.
My solicitor could have used this revealing remark to score a point by suggesting that the witness might have a propensity to speed when there were no cameras around.
But he didn't.

Winnowing out the Chaff

Rob Roy also twiddled with the knobs on the Improbability Drive when, on two separate occasions, she said I had overtaken her motorbike when I was in front of it.
But these improbable events were not even remarked upon.
Crookwank told me later that witnesses are allowed a few mistakes in their recollections: the Sheriff "winnows out the chaff" and makes his decision based on the balance of "good evidence".

The case continued with Rob Roy and Miro claiming that after witnessing the 'accident', they had given Car Genie the thumbs up sign to ask if he was OK.
"He looked shocked," reported Miro, but gave a thumbs up sign in return.

Car Genie, when he gave his evidence, said he didn't have any contact with the riders.
He was asked how he'd noted my registration number and also the motorbike's number.
He said he had written them down some time later.
He was not asked how, if he was so shocked, he had managed to remember 2 registration numbers while negotiating a busy road.

At the end of each witness cross-examination, Crookwank would come over to me and ask if I wanted him to ask any other questions. Even as I referred to my notes, he would be walking away, dismissing my suggestions, saying they were not relevant.

Courting Disaster

My turn in the witness box came. Prompted by Crookwank, I gave my account of events, pausing frequently to allow him and Sheriff McCulloch to take notes. I closely followed the written statement I had given him.
But then he asked me something which was not in the statement and which had never been discussed.
How many hours had I been driving for, and had I taken a break?
Without realising that these were questions best left to the prosecution I answered, innocently enough: 5 hours with no breaks.

This was the answer to the dilemma the Sheriff faced.
He had heard two conflicting stories, which, as he put it:
"might have happened on different days".
How to decide between them?
Now he was handed a non-stop driver on a plate.
He remarked that it was a long way to drive without a stop and that I might have been tired and so the obstructions on the road might not have registered.
He speculated that I might not have seen the motorbike.

Of course I hadn't seen it - it wasn't even on the horizon at the time.

Sheriff McCulloch then said he found all three witnesses reliable and credible.
He complained to the Fiscal Depute that the charge should not have been Dangerous Driving.
The poor woman stuttered, apologised profusely and amended the charge to Careless Driving.
After pronouncing a Guilty verdict, the Sheriff asked my circumstances.
Crookwank came over and seemed surprised when I told him I was on benefits.
As he was walking away I grabbed his gown and told him he was not to offer any plea of mitigation.
Seconds later, I heard him tell the Sheriff that I needed my car to visit an ageing relative.
His disobedience probably made no difference: I was fined £300 and awarded 7 points.
They took my licence and doctored it there and then .

Crookwank and I had a debriefing session in the little cloakroom.
He was cock-a-hoop, saying he had expected a Dangerous Driving conviction and a ban.
He admitted that he had made a mistake by asking me if I had driven non-stop, but claimed the Sheriff had already picked that up.
He was, he said, an expert in Road Traffic Law, but even experts make mistakes sometimes.

"Anyway," he said, "I think you're lying".

Now, whenever I drive through Dundee, I keep a lookout for sperm whales materialising from nowhere, with bowls of petunias balanced on their broad heads.