Road Rage

Driving along Dundee's Kingsway, I moved out to overtake a slow-moving truck. I could see an Astra in the outside lane, roughly 100m back - a safe enough distance on a dual carriageway with a 50 mph limit. Or so I thought. The driver accelerated to over 70 mph. He didn't like being balked by someone bimbling along at 50, so he came right up behind me, flashed his lights and hooted. I had nowhere to go, but as soon as I had passed the truck, moved back to the inside lane. The Astra (Reg: SA53 HVZ) then cut sharply in front of me and slowed down. The driver clearly wasn't in any hurry - he just wanted to intimidate me. I wasn't in any hurry either, so I slowed down too, and 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.

A motorcyclist on a Kawasaki overtook me and slowed down alongside the Astra. The rider twisted round in the saddle to look at me and pointed at the Astra. I took this to mean something like, "you've just cut up someone important" - a copper perhaps, or a local bigwig.

5 weeks later, the local plod called and charged me with Dangerous Driving. Under Section 172 of the Road Traffic Act, you have to say who the driver was, so I said I thought I had probably been in Dundee on 15 June 2004.

Complaint

About 2 months later, I got a citation, or Copy Complaint, delivered by a Court Official. He told me I had to send the form back with my plea forthwith (they only gave me one day to send it back) or face going to Court to plead. He said I should enclose my driving licence when I sent it back. WRONG! You only do this if you are pleading Guilty. So I sent the form back, in a reply-paid envelope, without the benefit of legal advice. Now the Procurator Fiscal's office (the Scottish equivalent of the Crown Prosecutor) doesn't much like dealing with members of the public - it feels a lot happier when dealing with the legal brotherhood. As a result, correspondence from the likes of me is likely to be filed in the bin. And so, 9 days later, I received another summons to appear in Court. When I rang, they said they hadn't received my plea! I had to send them a copy, which they did admit to receiving. Almost a month later, I was given the dates of the two trial diets.

I wasn't certain of getting Legal Aid, so 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 Procurator Fiscal's office told me that I would 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 and then that they could not give advice. The official then offered this priceless advice:

"It's up to you to prove your innocence."

"I thought it was for the Prosecution to prove my guilt."

In fact, the procedure is that the Procurator Fiscal's office 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 get a phone call from the Procurator Fiscal's office giving you rough outline of what the witnesses will say in Court.

Diets

I did manage to get Legal Aid and my solicitor, Alexander Burn, wrote to the three witnesses for statements. One did give a statement, much to my surprise. There was also a statement from the plod who went to see them after the 'crime' was reported, and one from the plods who visited me to charge 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 this hearing, my solicitor found that he had another engagement on the trial date, so palmed me off on to someone else, a man with a reputation for being an expert in road traffic law. I went to see him. He questioned me as though I was a hostile witness in the Michael Jackson case. An example:

"Did you see him hit the central reservation?" "I don't think so."

"What do you mean? Did you or didn't you?" "Well he was behind me."

"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. This was a theme he returned to ad nauseum. He told me that a particular lady Sheriff thinks that if there is a car in visible in the mirror then you should not overtake. He himself said you should not overtake if there is a car within 5000 yards. If you do this during a driving test, he said, you would fail.

Crookwank

This was his chance to impress me with his skills. I was told he was an expert driver, having been a racing driver and a member of the Institute of Advance Motorists. He was also a psychologist, having the ability to tell whether a witness was prevaricating, just by looking at his knees. Shaking knees, apparently, are a sure sign of a liar. There were times when I had to stifle a smirk or two. 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. I was hugely unimpressed.

We called him Crookwank on account of his self-regarding mendacity (he would pump up his ego in front of us and lie about it later). He loved to tell stories. 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 no examples of anecdotes about witnesses stitching up an innocent person. All his tales were to do with guilty people or incidents where damage had taken place. In all, I reckon he spent at least a third of his time with me telling stories, many of them glorifying his legal skills.

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. This is a perfectly understandable and reasonable view. But it was at variance with his general attitude towards me, which was one of hostility, of bias. At one point he actually said he believed I was lying.

NIPs

I asked about Notices of Intended Prosecution. These are supposed to be sent within 14 days of most motoring offences. However, it seems that this does not apply if an accident has been alleged. It could be argued that there had been an accident in my case. 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. Later, however, he said that even a swerve could be construed as an accident.

He called me two days before the trial to remind 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 Dundee Sheriff Court No. 5 I sat with a group of social workers in the public gallery while the Clerk of the Court and the Sheriff decided the order in which cases would be heard. Mine was an easy decision because Crookwank was 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 into Court to conduct, as he said, my trial.

Trial and Error

The trial began some 2 hours late. 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 Procurator Fiscal Depute (christened 'Numpty' by Crookwank) 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 Prosecution 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: the Court, it turned 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 practised your story. Yet the people who sit in your judgement believe they can elicit the truth simply by asking these questions.

Improbability Drive

The three witnesses - I'll call them CAR GENIE, MIRO and ROB ROY because they are all associated with fantastic creations - stood in the witness box, looked confident, and lied convincingly. Rob Roy was a tallish woman who claimed she had been a pillion passenger 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 can't be too difficult. She was asked to be more precise and eventually her wavering finger pointed directly at me.

Miro and Rob Roy 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 statement given that it was the evening rush hour. Actually, I had been surprised to find the Kingsway quiet, with no queues. But Miro and Rob Roy claimed there was a queue at the next roundabout, at Myrekirk Road, because a broken-down white van was blocking the inside lane. 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 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, swallowed this scenario hook, line and sinker. He never considered that the bike would have been quite a long way behind at the time of the incident. He never asked Rob Roy how she managed to see what happened at such a distance, even when she said: "I got quite a fright", as though the Astra was just in front of them.

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. If this was the white van mentioned by the witnesses, it made a kind of twisted, logical sense - in Dundee's Improbability Universe, the local boy racers might well claim their accidents take place in a remote part of the Galaxy so as confuse other motorists, as well as policemen and insurance assessors.

Car Genie, the Astra driver, said he was panicking that he was going to hit the crash barrier and run into the gravel. In the event 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. The Sheriff interjected, asking:

"How does it pass you again if it's already in front of you?"

"To be honest I was a wee bit shocked" and the error wasn't referred to again.

Winnowing out the Chaff

Rob Roy also twiddled with the knobs on the Improbability Drive when she twice said I had overtaken the bike when in front of it, but these unusual events were not even remarked upon. I was told 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 Genie the thumbs up sign to ask if he was OK. "He looked shocked," reported Miro, but gave a thumbs up sign in return.

For his part, 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 witness. He said he had written them down some time later. He was not asked how, if he was so shocked, he had been compos mentis enough to have the presence of mind to remember and write down 2 registration numbers.

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, he would be walking away. I wanted him to ask Genie why he had braked when a car cut in front of him: most drivers would not react quickly enough to brake, and would see little point in doing so when an offending car was speeding away from them. But this and other questions he simply waved away 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 the Sheriff to take notes. I followed the written statement I had given him fairly closely. But then he asked 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 Prosecutor 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 asked if I might not have seen the motorbike.

He then said he found all three witnesses reliable and credible. He complained to Numpty that the charge should not have been Dangerous Driving. The poor girl - she was a beginner - stuttered, apologised profusely and amended the charge to CARELESS DRIVING. After pronouncing a Guilty verdict, he asked my circumstances. Crookwank came over and seemed surprised when I told him I was on Benefit. 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 say to the Sheriff that I needed my car to visit an ageing relative. It probably made no difference: I was fined £300 and awarded 7 points. They took my licence there and then and doctored it.

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.

Lack of Appeal

A couple of days later my girlfriend and I went to see him to discuss my appeal. "Now what are your grounds for appeal?" he enquired. I said I thought that was his job. He said I had no grounds for appeal: "You are guilty of Careless Driving on your own admission. I'm an Advanced Driver. I used to race cars although I don't hurry now. I've been a PF. If I'd been on the Bench I'd have found you guilty." In Scotland you can only appeal on a point of law, by saying, in effect, that the Sheriff has got it badly wrong. Few solicitors are willing to stand up and say that, particularly when there is no transcript of the trial to refer to. However, this did not stop Crookwank from phoning the Legal Aid Board and getting an extension to my legal aid to cover the interview. The usual string of anecdotes followed, before we got down to discussing an appeal against the sentence alone. He said he did not advise it, because the appeal judge could increase the sentence or even reinstate the original charge. This sounded like blackmail.

I said, "I'll take that risk".

"It would be very foolish. I do not advise it."

"I'll take that risk".

"I do not advise it".