Looking for White Van Man
How Did They Do That?
A Kangaroo in the Court Room
How to Procure Injustice
The Cost of Injustice
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 liked to use as a racetrack, took revenge by tailgating 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 said his car was damaged yet it was undamaged when examined by a
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 20 miles away at the time;
6 - my magic Citroen frequently overtook the witnesses' vehicles even though 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,
Driving along Dundee's Kingsway, doing an indicated
50mph, I moved out to overtake a slow truck laden with domestic bric-a-brac and 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 his number plate was obscured.
I had nowhere to go but 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.
Its driver clearly wasn't in any hurry - he just wanted to intimidate me. I wasn't in any hurry either and slowed down too. I refrained from
making 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 to look at me then
pointed at the Astra.
Then, 5 weeks later, two local policemen called at my house and charged me with Dangerous Driving.
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.
But the Procurator Fiscal's office (the Scottish equivalent of the CPS) is accustomed to dealing only with its friends in the legal fraternity.
At least I assume this is why my correspondence went astray.
9 days later, I received another summons - this one to appear in Court. When I rang, they said they hadn't received my plea!
So I sent them a copy, which they did admit to receiving.
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, an official called Barham at the Procurator Fiscal's office told me that I could get the witnesses' details
(so that I could ask them 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 the names and addresses of witnesses.
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 minute, just before the trial,
you or your solicitor will get a phone call from the Procurator Fiscal's office giving you a rough outline of what the witnesses will say in Court.
This is what the Copy Complaint said:
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 SK52DJO dangerously in that, near to the junction with Liff
Road you pulled out into the path of motorcycle registered number Y186VMW,
forcing [Witness] to brake to avoid a collision, and near to the junction with
Myrekirk Road, you overtook motor car, registered number SV53HVZ, on its
nearside, then swerved violently into its path, forcing [Witness] 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 Y186VMW, on its nearside; contrary to the
Road Traffic Act 1988, Section 2 as amended “
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 one from the officers who visited 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.
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.
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
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 SA53 HVZ could have been speeding to take a sick baby to hospital.
This, of course, is nonsense: only the emergency services have an exemption from speeding;
even a doctor speeding to save a patient's life would get 3 points on his licence unless he pleaded for an exemption in front of a magistrate.
Continuing the theme, he told me that a particular lady Sheriff thinks that if there is a car visible in the mirror then you should
not overtake. He himself 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.
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.
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 we nicknamed him "Crookwank" in recognition of his extreme self-regard and,
as it turned out, his mendacity.
Crookwank loved to tell stories that were intended to glorify 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. He had nothing to say about witnesses stitching up innocent defendants.
All his tales were to do with guilty people or incidents involving spectacular damage to property. In all, I reckon he spent at
least a third of our interview telling stories designed to show him in a good light.
I told him it was important to me 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 was a perfectly reasonable view for a solicitor to have, 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 the 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
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 Sheriff
Andrew Grant McCulloch decided the order in which cases would be heard. Mine was an easy decision because Crookwank was almost 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.
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 by Crookwank that it wasn't allowed.
The bewigged Sheriff made his grand entrance and Crookwank performed some abject grovelling to apologise for his lateness.
The young Fiscal Depute launched the case by calling her first witness.
I have left the details of the case against me to this point because I myself did not hear them until then.
This was partly because my solicitor did not bother to make any enquiries and partly because the Crown prefers to keep its evidence to itself.
Crookwank did get a brief summary of what the prosecution intended to say, taken over the phone the evening before and scribbled down on
a scrap of paper.
He hadn't thought of phoning me to report its contents.
Not knowing what the witnesses were going to say prevented me from checking out their stories 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,
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 these questions.
The three witnesses - dubbed CAR GENIE (aka the Muirhead Monster), the SINGING FISH (by Miro the Mad Mechanic)
and ROB ROY (aka the Perjurer's Apprentice) because they are all
associated with 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 a pillion passenger on The Singing Fish'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 can't be too difficult.
She was twice asked to be more precise by an increasingly irritated Fiscal Depute and eventually her wavering finger pointed directly at me.
Both Rob Roy and The Singing Fish 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 The Singing Fish 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 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 seem to cross his mind that the motorbike would have been a long way back, stuck in a queue of traffic, at the time of the
And so 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 question,
Sheriff McCulloch jumped in with an interjection, 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 aside 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 impossible 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 The Singing Fish 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 The Singing Fish, but gave a thumbs up
sign in return.
For his part, Car Genie never mentioned giving a thumbs up sign.
He was asked how he'd noted my registration number and also the number of the motorbike.
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 list of questions, he would be walking away, dismissing my suggestions, saying they were not relevant.
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 followed the written statement I had given him fairly closely.
But then he asked me something which was not in the statement and 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 coming up behind and flashing their bowls of petunias.