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Appeal Against Conviction on the Grounds of “Insufficient Evidence”

HMA V SCOTT SMITH 2017

A motorist who was found guilty of driving while using a mobile phone has had an appeal against his conviction rejected. Mr Scott claimed that the evidence of two police witnesses was “insufficient” to prove that an offence had been committed. However, the Sheriff Appeal Court upheld the decision of the Justice of the Peace Court.

The Appeal Court heard that the appellant, Scott Smith, was convicted of using a mobile phone while driving. Two police officers were on specific mobile patrol in their vehicle when they saw the appellant driving holding an object. Both police officers described the man looking down and touching a mobile phone.

The appellant claimed that he was only holding a black note book and the defence made a “no case to answer” submission, however the Judge found the appellant guilty. He stated that the officers could not prove this was the case and he in fact did not have a mobile phone on the scene.

On appeal the appellant solicitor advocate Ms Ogg argued that the no case to answer submission ought to have been sustained. Regulation 110 required that the Crown prove that the appellant not only had a mobile phone, but also that it could make or receive a call or one or more of the other functions specified in regulation 110(6). To clarify this, the phone would need to be examined.

Refusing the appeal, the Court ruled that the appellant’s submission “misunderstands the nature of the law of evidence and misconstrues the regulation”.

It was concluded: “The regulation does not require expert evidence to be led in order to prove that the device falls within the statutory definition…A court will be entitled to accept, without the need for further evidence, that a witness can recognise a hand held mobile phone, within the meaning of regulation 110, upon seeing it, and that a mobile phone is capable for the purposes of regulation 110(6)(c) of carrying out an ‘interactive communication function’.” Therefore, the justice was entitled to convict based on this Police evidence.

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