Carmichael v Shevlin
| Jurisdiction | Scotland |
| Judgment Date | 21 November 1991 |
| Docket Number | No. 10. |
| Date | 21 November 1991 |
| Court | High Court of Justiciary |
JC
L. J.-C. Ross, Lords Morison, Caplan.
Statutory offence—Road Traffic Acts—Disqualification—"Totting-up"—Sheriff deciding not to disqualify accused from driving under "totting-up" procedure on ground of mitigating circumstances—Accused genuinely believing he was insured to drive when in fact he was not—Whether sufficient ground for mitigating normal consequences of "totting-up" procedure—Road Traffic Offenders Act 1988 (cap. 53), sec. 35.1
The accused pled guilty to a charge of driving without insurance in contravention of the Road Traffic Act 1988, sec. 143 (1) and (2). The sheriff ordered that the accused's licence be endorsed with six penalty points and then required to consider disqualification under the "totting-up" procedure contained in sec. 35 of the Road Traffic Act 1988. The sheriff decided that as he fully accepted that the accused honestly believed that he was insured to drive at the relevant time, he should not proceed to disqualify him. The Crown appealed, contending that this was not a ground of mitigation under sec. 35 and that the sheriff was, accordingly, not entitled to refrain from disqualifying the respondent.
Held that the respondent's belief that he was insured was a circumstance relating to the offender and that, in any event, sec. 35 (1) was expressed in fairly wide terms, and the sheriff was accordingly entitled to have regard to all the
circumstances and to regard the respondent's belief as a ground for mitigating the consequences of the conviction; and appealrefused.R. v. PrestonUNK [1986] R.T.R. 136 followed.
Bernard Shevlin was charged in the sheriffdom of South Strathclyde, Dumfries and Galloway at Hamilton at the instance of William George Carmichael, procurator fiscal there, on a summary complaint the libel of which set forth inter alia a contravention of sec. 143 (1) and (2) of the Road Traffic Act 1988, namely that he had used a motor vehicle without there being in force a policy of insurance in the required terms.
The accused pled guilty on 9th April and the sheriff (Alexander) ordered that his driving licence be endorsed with six penalty points but decided that there were grounds for mitigating the normal consequences of the conviction and accordingly refrained from imposing disqualification under the "totting-up" procedure. The Crown thereafter requested that the sheriff state a case for the opinion of the High Court of Justiciary. The terms of the sheriff's note in...
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