13th May 2014
In July 2012, Young travelled from Fife to Poolwewe to collect two lorries which he had purchased on the internet for spare parts. For the return journey to Fife one of the two lorries was loaded onto the platform of Young’s DAF lorry. The other lorry was attached to hitched to the read of the DAF lorry by means of a straight metal towing bar.
On the return journey Young drove the DAF lorry and his son was in the driver’s seat of the towed lorry.
The combination of lorries attracted the attention of police officers and Young was escorted to a yard operated by the Vehicle and Operator Services Agency (VOSA). Two VOSA officials inspected Young’s DAF lorry and found no faults. They then inspected the towed lorry and found numerous faults, notably the lack of power steering, functioning breaks.
The terms of the original charge were:
“on 25th July 2012 on a road or other public place, namely A9 Scrabster to Inverness public road at North Kessock you…did drive a mechanically propelled vehicle namely motor lorry registered number YJ04 TUH dangerously and did tow another motor lorry by means of a solid metal bar which was inadequately secured and the towed vehicle was generally unsafe and unroadworthy with inter alia no brakes, no power steering and numerous other serious defects:”
The appeal is based on three criticisms of Young’s original solicitor, Mr Wilson. These are as follows:
- “he failed to obtain from the appellant sufficient details of his defence, in particular, technical information relating to the state of the vehicles in question.”
- “the solicitor is criticised for not having tendered as a witness a Mr Thomas McDonald who, as an experienced transport manager for a haulage firm with extensive practical knowledge of freight road vehicles and their recovery”
- “the solicitor ought not to have advised the appellant that he should not give evidence.”
Using the first two of these objections Ogg hoped to base an “Anderson” appeal. That is, the defective presentation of the defence case. However, it was concluded that:
“It is not a basis for an “Anderson” appeal founding on a failure to advance a defence that, especially with hindsight, a more detailed inquiry of the accused and the topic might have permitted the instructed defence to have been more forcefully or persuasively advanced than it was in fact advanced.”
As to the second of Miss Ogg’s three criticisms, it was concluded that attempts to contact Mr McDonald, while unsuccessful, were appropriate. Additionally, Mr McDonald never tried to claim that he was in a better position than VOSA to adjudicate on the safety of Young’s towing set-up. In fact he made quite the opposite claim saying that he did not wish to be construed by Mr Wilson that be knew better than VOSA.
Like the first of Miss Ogg’s branches of appeal, it was concluded that this did not meet the requirements for defective representation in an Anderson Appeal.
Finally, addressing the third of the appeal’s criticisms. Miss Ogg argued that Mr Young should not have been asked crucial questions relating to the extent of control Mr Young junior had concerning the braking and steering of the towed lorry. It was argued that the best evidence would come from Mr Young junior, not Mr Young and that there was in fact considerable disadvantages in any contradictions or inconsistencies that may emerge.
Mr Wilson described the decision whether to advise Mr Young to give evidence as a “judgement call.” The appeal’s decision agreed with this description and, as such, is exempt from an “Anderson” appeal.
With all three criticisms addressed, the appeal failed.