Dr. David Griffiths, Procurator Fiscal, Perth V. William Brierley
| Jurisdiction | Scotland |
| Judge | Lord Johnston,Lord Nimmo Smith,Sheriff Principal C.G.B. Nicholson |
| Judgment Date | 23 February 2006 |
| Neutral Citation | [2006] HCJAC 22 |
| Court | High Court of Justiciary |
| Published date | 24 February 2006 |
| Date | 23 February 2006 |
| Docket Number | No 30 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Johnston Lord Nimmo Smith C.G.B. Nicholson, CBE, QC, | [2006] HCJAC 22 Appeal No: XJ 1720/05 OPINION OF THE COURT delivered by C.G.B. NICHOLSON, CBE, QC in APPEAL by STATED CASE in causa DR. DAVID GRIFFITHS Procurator Fiscal, Perth Appellant; against WILLIAM BRIERLEY Respondent: _______ |
Respondent: S. Collins, solicitor advocate; Rollo, Davidson, Macfarlane, Cupar
23 February 2006
Background
[1] This is a Crown appeal against a decision by a sheriff at Perth not to impose what is commonly known as a "totting up" disqualification in terms of section 35 of the Road Traffic Offenders Act 1988. The respondent was originally charged with a contravention of section 2 of the Road Traffic Act 1988 but, at a notional trial diet on 12 May 2005, he pled guilty to an amended charge which libelled a contravention of section 3 of the Act. At that stage it seems to have been thought that the respondent was then subject to a probation order, and in that situation the sheriff adjourned the case for the preparation and production of a social enquiry report. For various reasons which are not now of consequence there were several further adjournments, and it was not until 6 October 2005 that the sheriff was finally able to proceed to sentence. On that date he imposed a fine of £150 and ordered endorsation of the respondent's driving licence with four penalty points. As at 6 October 2005 there were already nine live penalty points on the respondent's licence. Normally, of course, the addition of four further points would have obliged the sheriff to impose a period of six months' disqualification for driving. However, for reasons to which we shall return shortly, the sheriff did not impose any disqualification; and it is that decision by the sheriff which is the subject of the present appeal by the Crown.
The statutory provisions
[2] Section 35 of the Road Traffic Offenders Act 1988 repeats "totting up" provisions which were originally introduced by section 19 of the Transport Act 1981. So far as relevant for present purposes, section 35 provides:
"(1) Where -
(a) a person is convicted of an offence to which this section applies, and
(b) the penalty points to be taken into account on that occasion number twelve or more, the court must order him to be disqualified for not less than the minimum period unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified.
...
(4) No account is to be taken under subsection (1) above of any of the following circumstances -
(a) any circumstances that are alleged to make the offence or any
of the offences not a serious one,
(b) hardship, other than exceptional hardship, or
(c) any circumstances which, within the three years immediately
preceding the conviction, have been taken into account under that subsection in ordering the offender to be disqualified for a shorter period or not ordering him to be disqualified."
In the present case it was accepted that the offence to which the respondent had pled guilty is one to which section 35 applies; and it was also accepted that, if the normal consequences of conviction were not to be mitigated in terms of subsection (1), the sheriff would have been obliged to impose a disqualification for a period of six months.
The sheriff's decision
[3] In considering the implications of section 35 of the 1988 Act the sheriff, as he has told us in the Stated Case, did not begin by deciding the number of penalty points which should be imposed. He recognised that even the minimum number of points which might be imposed (namely three) would be sufficient to bring the section into play, and in that situation he turned his attention at once to the question whether mitigating circumstances, as provided for in subsection (1), had been established.
[4] It appears that some attempt was made to persuade him that disqualification of the respondent would result in exceptional hardship both for the respondent himself and for his employers for whom he worked as a driver. However, the sheriff reached the conclusion that exceptional hardship had not been established; and his decision on that matter has not been challenged in the present proceedings.
[5] The sheriff then went on to consider a somewhat novel submission as to what would amount to a ground for mitigation in terms of section 35(1)(b) of the 1988 Act. Putting it shortly for the moment, that submission was based on a consideration of the respondent's criminal history and, in the context of the public interest, his prospects for rehabilitation.
[6] An examination of the respondent's criminal history reveals that in 2002 he was dealt with in respect of two indictments containing offences of a sexual character. The first indictment contained five charges, one of which was a charge of shameless indecency committed between 1 July 1985 and 30 June 1986, and the other four of which were charges of indecent assault committed on various dates between 1998 and December 2000. The second indictment contained two charges of indecent assault committed in 2000, with one of the charges involving an assault on a 15 year old girl while she was having an epileptic fit. It appears that the respondent was made the subject of probation orders in respect of both of the foregoing indictments, with the probation orders coming to an end in January 2005, that is to say subsequent to the date of commission of the current offence, but some months prior to conviction and sentence.
[7] Against the foregoing background of offending, the social enquiry report prepared for the purposes of the present case contains the following assessment:
"Mr Brierley has completed a Probation Order and is currently assessed as posing a medium risk of re-offending and harm to women in the community. His job has provided him with a structure and focus, raising his self-esteem and assisting in the reduction of re-offending. He would lose his employment if he was unable to drive and it is assessed that this would raise the likelihood of re-offending and harm."
[8] In light of that assessment it was submitted to the sheriff at the stage of sentencing that he ought properly to take the view that the continued rehabilitation of the respondent, in the form of his employment as a driver, would be in the public interest and would amount to a ground for mitigating the normal consequence of his having acquired twelve or more penalty points on his driving licence. The sheriff accepted that submission, and in the Stated Case (at page 5) he states:
"In light of the information placed before me, I had no difficulty in concluding that in the event of the Respondent being disqualified, he would constitute a greater risk of reoffending not only for the period of disqualification but also thereafter in light of the difficulty he was likely to experience in obtaining alternative employment. By reference to R v. Preston and R v. Thomas [cited and considered below] I considered that I could properly take account of the rehabilitative process. In those circumstances, I considered that the greater public interest supported the respondent retaining his driving licence as part of the rehabilitative process thus reducing the risk he posed."
It is against that decision that the Crown has now appealed.
Submissions for the appellant
[9] The advocate depute began by reminding us of the three grounds of appeal which had originally been stated on behalf of the appellant. They were (put shortly) that:
"(i) The sheriff had erred in law by proceeding to consider mitigating
circumstances prior to determining the number of penalty points to be imposed for the present offence;
(ii) The sheriff had erred in law in deciding that he could refrain from
disqualifying the respondent despite holding that there would be no exceptional hardship to the respondent in so doing; and
(iii) The sheriff had erred in law in taking into account an irrelevant and
extraneous circumstance, namely the effect disqualification might have on the likelihood of the respondent committing...
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