Murray v Macmillan

Judgment Date16 October 1941
Docket NumberNo. 2.
Date16 October 1941
CourtHigh Court of Justiciary


Lord Justice-Clerk. Lord Mackay. Ld. Jamieson.

No. 2.

Statutory Offences—Road Traffic Acts—Permitting use of motor vehicle on road without insurance against third-party risks—Disqualification for holding licence—"Special reasons" for reducing or remitting statutory period of disqualification—Road Traffic Act, 1930 (20 and 21 Geo. V, cap. 43), sec. 35 (1) and (2).

The Road Traffic Act, 1930, by sec. 35, subsec. (2), enacts that a person convicted under that section of the offence of permitting the use of a motor vehicle not insured against third-party risks "shall, unless the Court for special reasons thinks fit to order otherwise," be disqualified for a period of twelve months for holding a licence.

A medical practitioner pleaded guilty in the Sheriff Court to a contravention of the Road Traffic Act, 1930, sec. 35, and the Sheriff-substitute, being of opinion that he was bound by the cases ofAdair v. Munn and Adair v. Brash,1940 J. C. 69, disqualified him for holding a licence for twelve months. From a stated case on appeal it appeared that the appellant was an assistant to two doctors in large practice; that he was often engaged on night duties; that he was medical attendant to the employees at an aerodrome and at three collieries, and that he also was in charge of first-aid surgical services and precautions against air raids at a post four and a half miles from his residence.

Held that appreciable prejudice to the public interest likely to arise from an offender's disqualification, such as was suggested by the facts of the present case, was a "special reason" which might entitle a Court to reduce or refrain from imposing the period of disqualification under sec. 35; and the case remitted to the Sheriff-substitute for further consideration.

Adair v. Munn and Adair v. Brash,1940 J. C. 69,—which related to the disqualification imposed for a contravention of sec. 15 (1) by driving when under the influence of drink—discussed and distinguished.

Robert Murray, medical practitioner, 1 Ballantine Drive, Ayr, was charged along with his brother, Ernest Willis Murray, of the same address, in the Sheriff Court at Ayr on a complaint under the Summary Jurisdiction (Scotland) Act, 1908, which set forth, inter alia,that "you the said Ernest Willis Murray did use and you the said Robert Murray did cause or permit the said Ernest Willis Murray to use [a motor car owned by Robert] without having in force in relation to the user of said motor car such a policy of insurance or such a security in respect of third-party risks as complied with the requirements of Part II of the Road Traffic Act, 1930: contrary to the Road Traffic Act, 1930, section 35." 1

Robert Murray pleaded guilty, and was sentenced by the Sheriff-substitute (Scott, K.C.) to a fine of eight pounds or sixty days' imprisonment, and was disqualified for holding a licence for twelve months.

At his request a case was stated for the opinion of the High Court of Justiciary. The case set forth that the following facts were admitted:— "1. The appellant, who is twenty-four years of age, is a medical practitioner, residing at 1 Ballantine Drive, Ayr. 2. He has been for some time and is assistant to Arnold Jones and Stanley Scott, who are partners in a large medical practice in Prestwick.Inter alia, it is the appellant's duty to attend to a proportion of “night calls.” On account of the fact that the population of Prestwick is at present greatly increased because of war conditions, it is admitted that the medical practitioners there are very busily engaged. 3. Among the numerous patients whom the appellant as assistant aforesaid may have to visit are civilian employees of an aviation company at an aerodrome. He is in charge of first-aid surgical services and precautions against air raids at a place situated approximately four and one-half miles from his residence. At three collieries several miles from his home he is medical attendant to the employees. These duties may involve urgent night calls. 4. For the appellant, his solicitor exhibited a document, signed by the said Stanley Scott, in the following terms:—

Monkreddan House,


Ayrshire, 27th May 1941.

This certifies that Dr Robert Murray is presently employed as an assistant by Dr Arnold Jones and myself, and it is absolutely essential for him to have a car to do his work. As the practice is very extensive, it would be quite impossible for him to perform his duties without a car.

(Signed) Stanley Scott, M.B., Ch.B., F.R.C.S. Edin..

Surgeon, Ayr County Hospital."

The questions of law for the opinion of the Court were:— "1. In the circumstances, was I entitled to hold that no “special reason” existed within the meaning of section 35 (2) of the Road Traffic Act, 1930? 2. Was I, in the circumstances, bound to order the disqualification prescribed by section 35 (2)?" 2

The case was heard before the High Court of Justiciary on 17th September 1941.

LORD JUSTICE-CLERK (Cooper).—InAdair v. MunnSC4 a Full Bench of this Court gave judgment in two appeals brought to test the question of the nature of the jurisdiction falling to be exercised under section 15 (2) of the Road Traffic Act, 1930,5 in remitting, in whole or in part, in respect of "special reasons" the disqualification for holding a driving licence which follows as a statutory consequence upon a conviction under section 15 (1).

The present appeal may be described as a sequel to Adair v. MunnSC,6 for it raises the same issue with regard to the identical language used in section 35 (2) of the Act.

The relevant facts may be summarised as follows:—The appellant, a medical practitioner, permitted his car to be driven by his brother, who was too young (as the appellant must have known) to hold a driving licence. The cover afforded by the appellant's current and valid policy of insurance did not apply when the car was being driven by an unlicensed driver. A minor accident having occurred, a prosecution followed against both the appellant and his brother, and the appellant pled guilty to, inter alia, a charge under the second branch of section 35 (1), viz., permitting the car to be used without there being in force, in relation to the user of the vehicle by the driver, a policy of insurance as required by the Act. Under this charge the appellant was fined £8 with the alternative of sixty days' imprisonment, and was disqualified for twelve months. This disqualification is meantime in suspense.

The facts alleged as relevant to the issue of remission of disqualification may be summarised in the statement that the appellant, as the assistant to two local medical men in large practice, could not dispense with the use of his car under the conditions prevailing in the district, and that his professional services were required, often at night and at considerable distances from his home, not only for attendance upon a civilian population inflated...

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