Stewart v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-Clerk (Dorrian),Lord Menzies,Lord Drummond Young |
| Judgment Date | 06 December 2017 |
| Neutral Citation | [2017] HCJAC 90 |
| Date | 06 December 2017 |
| Court | High Court of Justiciary |
| Docket Number | No 10 |
[2017] HCJAC 90
Lord Justice-Clerk (Dorrian), Lord Menzies and Lord Drummond Young
Cadder v HM Advocate [2010] UKSC 43; 2011 SC (UKSC) 13; 2010 SLT 1125; 2010 SCCR 951; 2010 SCL 1265; [2010] 1 WLR 2601; [2011] HRLR 1; [2010] UKHRR 1171; 30 BHRC 257
Healy v HM Advocate 1990 SCCR 110
McAngus v HM Advocate [2009] HCJAC 8; 2009 SLT 137; 2009 SCCR 238; 2009 SCL 408
McLean v HM Advocate [2011] HCJAC 67; 2012 JC 91; 2011 SCCR 507; 2011 SCL 970; 2011 GWD 24–536
R v Hughes [2011] EWCA Crim 1508; [2011] 4 All ER 761
R v Hughes [2013] UKSC 56; [2013] 1 WLR 2461; [2013] 4 All ER 613; [2014] 1 Cr App R 6; [2013] RTR 31; [2014] Crim LR 234
R v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269; [2007] 3 WLR 612; [2007] 4 All ER 1083; [2008] 1 Crim App Rep 19; [2008] Crim LR 222
R v McGuffog [2015] EWCA Crim 1116; [2015] RTR 34; [2015] Crim LR 818
R v Uthayakumar [2014] EWCA Crim 123
R v Williams [2010] EWCA Crim 2552; [2011] 1 WLR 588; [2011] 3 All ER 969; (2010) 174 JP 606; [2011] RTR 36; [2011] Crim LR 471
Rai v HM Advocate [2011] HCJAC 105; 2012 SCCR 591; 2012 SCL 283; 2011 GWD 37–772
Reedie v HM Advocate [2005] HCJAC 55; 2005 SLT 742; 2005 SCCR 407
Justiciary — Statutory offences — Road Traffic Acts — Causing death by driving while unlicensed or uninsured — Whether unlicensed or uninsured driver deemed to have caused the death of another whenever involved in a fatal road traffic collision — Road Traffic Act 1988 (cap 52), sec 3ZB
Justiciary — Procedure — Plea of guilty tendered on basis of legal advice — Law subsequently clarified such that the appellant appeared not to have contravened the relevant legislation — Whether circumstances so exceptional that conviction following plea of guilty should be quashed
Duncan Stewart was charged on indictment in the sheriffdom of Grampian, Highland, and Islands at Fort William with a contravention of sec 3ZB of the Road Traffic Act 1988. He pled guilty on 19 December 2012, and was sentenced on 17 January 2013. The appellant subsequently made an application to the Scottish Criminal Cases Review Commission. The SCCRC referred the case to the High Court of Justiciary.
Section 3ZB of the Road Traffic Act 1988 (cap 42) (‘the 1988 Act’) specifies that it is an offence for a person to cause the death of another person by driving a motorvehicle on a road while, at the same time, driving otherwise than in accordance with a licence or while uninsured or unsecured against third-party risks.
The appellant was indicted for a contravention of sec 3ZB of the 1988 Act. The appellant had been driving while uninsured. The deceased had pulled directly into the path of the appellant. The appellant's driving had not contributed to the death. The appellant was advised that the mere fact that he was driving when he should not have been, and that the vehicle he was driving was involved in a fatal accident, was sufficient to secure conviction under sec 3ZB. In light of that legal advice, he pled guilty to the charge.
The Scottish Criminal Cases Review Commission (‘SCCRC’) considered that, contrary to the legal advice given, sec 3ZB of the 1988 Act contained a test of causation and that an individual was not guilty under sec 3ZB whenever his vehicle was involved in a fatal accident. The SCCRC also considered that there existed exceptional circumstances of a kind that should allow the plea to be withdrawn. The appellant adopted the arguments as formulated by the SCCRC. The Crown did not resist the appeal.
Held that: (1) that sec 3ZB of the 1988 Act included a test of causation (paras 17–22); (2) extraordinary circumstances existed where the advice given to the appellant was mistaken as to an aspect of the substantive law, where at the time of the plea the law was in a state of flux, and where neither the appellant nor the sheriff was made aware that the legal point underlying the advice to plead guilty had been certified for consideration by the UK Supreme Court (paras 16, 21, 22); and appeal allowed.
McLean v HM Advocate 2012 JC 91 distinguished and R v Hughes[2013] 1 WLR 2461followed.
The appeal called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Dorrian), Lord Menzies, and Lord Drummond Young, for a hearing on 22 November 2017.
At advising, on 6 December 2017, the opinion of the Court was delivered by the Lord Justice-Clerk (Dorrian)—
[1] Opinion of the Court— On 19 December 2012, the appellant tendered a plea of guilty to a charge under sec 3ZB of the Road Traffic Act 1988 (cap 52) (‘RTA’) that on 8 May 2012 he did, by driving a mechanically propelled vehicle, cause the death of a motorcyclist, the circumstances being that the appellant was disqualified and uninsured.
[2] Section 3ZB of the RTA provides that:
‘A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under–
(a) section 87(1) of this Act (driving otherwise than in accordance with a licence), or …
(c) section 143 of this Act (using motor vehicle while uninsured or unsecured against third party risks).’
[3] The appellant had been disqualified for 15 months in March 2011. At the time of the incident he had applied for return of his licence and would have been entitled to drive from 3 June 2012. He had approached insurers specialising in disqualified drivers and had obtained cover at an enhanced premium. The cover was vitiated by the fact that he...
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