Sheriff Appeal Court quashes dangerous driving conviction after finding no crash would have occurred

About this case:

• Citation:
  [2026] SAC (Crim) 2
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff David Young KC

Appellant Gavin Murdoch argued that the sheriff was wrong to find it was established that his driving had compelled a police car to take immediate evasive action. The Crown accepted there was a discrepancy between the police evidence and CCTV footage of when the appellant’s car was first seen by the officers but argued that the sheriff was entitled to place greater weight on the police testimony.

The appeal was heard by Sheriff Principal Aisha Anwar KC, with Appeal Sheriffs Iain Fleming and David Young KC, who delivered the opinion of the court. Freeman, solicitor advocate, appeared for the appellant and Harvey, advocate depute, for the Crown.

Created reasonable doubt

At trial, the Crown let evidence from two police officers, Sergeant Ferguson and Sergeant Gallagher, who had been on patrol duties at around 00:25 hours on 10 November 2024 when they noticed a white Toyota, driven by the appellant, straddling the white centre line markings of the carriageway on Perth Road while travelling in excess of the 20mph speed limit. Sgt Ferguson made a remark to his colleague about the speed of the car, which was approaching their vehicle, and turned the police vehicle to the left of the carriageway to, in his view, avoid a collision.

A pursuit followed, which ended at 00:39 hours when the appellant stopped his car at Rosewood Terrace, Dundee. He was noted by the police officers to be unsteady on his feet and smelled of alcohol. A roadside breath test was carried out, and the appellant was cautioned in respect of his failure of the test. CCTV footage from Perth Road was also shown which showed that at the point the bonnets of the two cars drew level, there was room for the police car to pass comfortably without reaching the centre line and colliding with the appellant’s vehicle.

The sheriff assessed the police witnesses as credible and reliable, and that the differing vantage points of the officers and the CCTV explained any differences over the degree over the centre of the roadway the appellant’s car was. Sergeant Ferguson’s evidence was the best evidence of whether or not there would have been a collision, as he was the driver of the police vehicle and closest to the appellant’s car.

For the appellant it was accepted that there was eyewitness evidence that the police driver had to take evasive action, however viewing the CCTV images demonstrated that this was not correct. Those images should have created a reasonable doubt in the sheriff’s mind. The advocate depute submitted that the sheriff’s assessment was not plainly wrong, and even if the finding about taking evasive action was removed, there was sufficient evidence to comprise dangerous driving.

Plainest of considerations

Noting that appellate courts should be slow to interfere with findings of fact, Appeal Sheriff Young said of the CCTV footage: “The CCTV images are clear. They show the point at which the two cars drew level from an angle that allows the viewer to see the relative positions of each car. It is plain from viewing the CCTV images that the driver of the police car did not take evasive action before the bonnets of the cars had passed each other. It is plain that the evasive action taken by the police driver car did not prevent a collision between the two cars, far less a head-on collision.”

He added: “The police driver’s evidence was not consistent with what was shown in the CCTV images. It will often be advantageous for witnesses, who were present and who saw what happened, to comment on what the images depict. This will be so, especially if the witness testifies to something not obviously apparent from the images, or denies something apparently shown in the images. None of this detracts from the fundamental position that, once the provenance of the images is established, they become real evidence in causa which the sheriff can use to establish fact, irrespective of concurring or conflicting testimony. As an example, even if all the witnesses say that the deceased was stabbed in the conservatory, if CCTV images show that he was shot in the library, then so be it.”

Considering that this was not a case where unclear images were supplemented by oral evidence, Appeal Sheriff Young said: “This is one of the very rare occasions where an appeal court can be convinced by the plainest of considerations that it is justified in finding that the trial judge has formed a wrong opinion. In view of the CCTV images, the sheriff was plainly wrong to find reliable the police driver’s evidence that, but for the evasive action he took, there would have been a head-on collision.”

He concluded: “The finding that there was an accident is contained in finding-in-fact (8). More significantly, the finding that there was an accident is expressly based on the finding about taking immediate evasive action to avoid a head-on collision. Given that finding-in-fact (8) is no longer supported, there is no finding that there was an accident. Moreover, the evidence that comprised the accident is no longer supported. In any event, there were no other findings that would have been capable of supporting the conclusion that an accident had occurred.”

The appeal was accordingly allowed, and the appellant’s conviction quashed.