Coogans v MacDonald
| Jurisdiction | Scotland |
| Judgment Date | 15 June 1954 |
| Docket Number | No. 18. |
| Date | 15 June 1954 |
| Court | High Court of Justiciary |
HIGH COURT (Full Bench).
Lord Justice-General, Lord Justice-Clerk, Lord Carmont, Lord Russell, Lord Patrick.
Summary Procedure—Complaint—Statutory offence—Notice of penalty—Reckless or dangerous driving—Liability to disqualification for holding a licence—Whether to be stated as a penalty—Road Traffic Act, 1930 (20 and 21 Geo. V, cap. 43), secs. 6 (1) (a) and 11 (1)—Criminal Justice (Scotland) Act, 1949 (12, 13 and 14 Geo. VI, cap. 94), sec. 46 (3) and Seventh Sched. (Form No. 2).
The Criminal Justice (Scotland) Act, 1949, by sec. 46 (3), requires that, where a summary complaint includes a statutory charge, a notice corresponding to Form 2 of the Seventh Sched. and specifying the penalty shall be served on the accused along with the complaint.
Under sec. 6 (1) of the Road Traffic Act, 1930, the Court before which a person is convicted of any criminal offence in connexion with the driving of a motor vehicle (with certain exceptions) may order him to be disqualified for holding or obtaining a licence.
Held by a Full Bench that such a disqualification was a penalty of which notice required to be given in the manner prescribed by sec. 46 (3) and Form No. 2 of the Seventh Sched. to the Criminal Justice (Scotland) Act, 1949, and that, in the absence of such notice, a sentence of disqualification fell to be quashed.
Craig v. Adair, 1950 J. C. 60, commented onand distinguished.
Daniel Coogans was found guilty in the Sheriff Court at Glasgow of reckless driving in contravention of section 11 (1) of the Road Traffic Act, 1930, and was fined and disqualified for holding or obtaining a licence to drive a motor vehicle for a period of two years. Thereafter he brought a bill of suspension in which he craved the Court to suspend the warrant which ordered his disqualification.
The complainer averred, inter alia:—"(1) The complainer … is by occupation a driver of a motor vehicle … (2) On or about 3rd September 1953, the complainer was charged at the instance of the respondent with a contravention of section 11 of the Road Traffic Act, 1930, with an alternative charge arising out of the same set of circumstances laid under section 12 of the said Act. The said charges were proceeded with by way of summary complaint under the Summary Jurisdiction (Scotland) Act, 1908 … To said charges the complainer pleaded “Not Guilty”, and after trial, which took place in the Glasgow Sheriff Court, he was convicted of the charge laid under section 11 of the Road Traffic Act, 1930, and sentenced by the Sheriff-substitute to a fine of £8 and suspension of his driving licence for a period of two years. (3) The said complaint against the complainer set forth the penalties to which the complainer was liable under section 11 of said statute in the following terms, viz.:—“… whereby you are liable to a penalty not exceeding £50, or to imprisonment for a term not exceeding four months.” No mention was made by the respondent in said complaint of any liability to suspension of driving licence. Section 11 of said statute provides only for suspension of driving licence in the event of a second conviction thereunder. The said section is silent on the matter of suspension of driving licence in the event of a first conviction thereunder. Apart from the conviction now complained of, the complainer has not previously been convicted of an offence under section 11 of said statute. (4) In consequence of the terms of said complaint and in particular of the form of words therein, quoted verbatim in statement 3 supra, the complainer was led to believe that, in the event of conviction, no question of suspension of his driving licence would or could arise. Accordingly in his plea in mitigation of sentence no reference was made by his solicitor to mitigating circumstances relevant to the question of licence suspension. (5) The complainer is dependent upon his possession of a current driving licence for his livelihood, and a period of two years' suspension of his driving licence means for him a period of unemployment. Since his conviction he has been unemployed. He hopes to obtain employment as a conductor at reduced wages, but that is not certain. In any event the only trade which he knows is that of a motor vehicle driver. (6) The complainer humbly submits that such a suspension for a first offence under the eleventh section of the Road Traffic Act, 1930, is in the circumstances set forth harsh and oppressive. The complainer further humbly submits that such a suspension in the circumstances set forth was, under the said statute, incompetent. Alternatively, and in any event, whether competent or not, the suspension of his driving licence was harsh and oppressive and contrary to justice in view of the fact that the respondent, in specifying the penalties to which the complainer would be liable in the event of conviction, chose to omit all reference to the suspension of the complainer's driving licence, so misleading the complainer and prejudicing him in the conduct of his defence and in the presentation of mitigating circumstances to the Sheriff-substitute before sentence."
The Procurator-fiscal averred in answer, inter alia:—(Ans. 3) "Admitted that the complainer had not been previously convicted of an offence under section 11 of said statute. The said complaint is referred to for its terms, beyond which no admission is made. Quoad ultra denied. Reference is made to section 6 and section 11 (3) of said statute." (Ans. 4) "It is not known and not admitted what the complainer thought regarding the question of suspension, nor what his solicitor might have said if he had considered the question of licence suspension. Quoad ultradenied. Explained that all the mitigating facts set forth in the bill were placed before the Sheriff-substitute before sentence was passed." (Ans. 5) "Admitted that the complainer, in so far as employment as a driver is concerned, is dependent upon his possession of a...
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