Tudhope v Eadie
| Jurisdiction | Scotland |
| Judgment Date | 15 November 1983 |
| Docket Number | No. 2. |
| Date | 15 November 1983 |
| Court | High Court of Justiciary |
JC
L.J.-C. Wheatley, Lords Hunter, Robertson, Dunpark, Ross.
Statutory offences—Road traffic offences—Penalties—Whether "penalty points" to be endorsed on a licence constitute a penalty requiring notice to be given to an accused—Transport Act 1981 (cap. 56), sec. 191—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 311 (5)†.
An accused was charged on a summary complaint with a statutory road traffic offence. The notice of penalties which was served on the accused contained a reference to his being liable to have his licence endorsed. It contained, however, no reference to the imposition by the sheriff of a specified number of "penalty points" in terms of sec. 19 of the Transport Act 1981 as that provision was not then in force. The accused pleaded guilty but the sheriff declined to impose any penalty points in the absence of any reference to them in the notice of penalties. The prosecutor appealed by stated case to the High Court of Justiciary.
Held (1) that it was clear from sec. 19 of the Act that the "penalty points" to be imposed by a court were a penalty in that they were a disability or disadvantage imposed by the court.
(2) That their endorsement on a licence was therefore not merely a recording of a conviction on the assumption that the authorities on the nature of endorsement under the Road Traffic Act 1972 were correct.
(3) That no penalty points could accordingly be imposed in the absence of any reference to them in the notice of penalties; and appealrefused.
Pirie v. Rivard 1976 S.L.T. (Sh. Ct.) 59,Scott v. AnnanUNK 1982 S.L.T. 90 doubted;Donnelly v. ShottonUNK 1983 S.C.C.R. 236 not followed.
James M'leod Eadie was charged in the Sheriff Court at Glasgow on a summary complaint at the instance of James Mackenzie Tudhope (Procurator fiscal, Glasgow) with a contravention of section 5 (2) of the Road Traffic Act, 1972. The accused pleaded guilty and the sheriff (Lothian) imposed a fine and
2endorsed the accused's licence. The notice of penalties in terms of section 311 (5) of the Criminal Procedure (Scotland) Act 1975 was served on the accused with the complaint before section 19 of the Transport Act 1981 came into force and contained no reference to the endorsement of penalty points on the accused's licence. The sheriff accordingly declined to order such endorsement of penalty points.At the request of the prosecutor the sheriff stated a case for the opinion of the High Court of Justiciary. The stated case contained the following questions of law: "1. Was I correct in holding that penalty points are not part of the endorsement? 2. In the circumstances was I correct in refusing to impose penalty points?"
The case was first heard before the High Court of Justiciary on 17th and 18th May 1983 on which latter date it was determined that the appeal should be heard before a court of five judges. The case was so heard again on 18th October 1983.
The arguments of the parties appear fully from the opinion of the Lord Justice-Clerk.
At advising on 15th November 1983,—
LORD JUSTICE-CLERK (Wheatley).—This appeal raises a matter of procedural importance as well as a pure question of law. The respondent was charged with and pled guilty to a contravention of section 5 (2) of the Road Traffic Act 1972. The offence took place on 9th April 1982, the respondent pled guilty on 5th November 1982 and he was sentenced on 26th November 1982. The notice of penalties served on the respondent along with the complaint was in the form which was common and current before the relevant provisions of section 19 of the Transport Act 1981 came into operation on 1st November 1982. It contained a reference to endorsement of licence simpliciter,but there was naturally no reference to penalty points which were not in operation when the notice was served. In respect of the respondent's plea of guilty the sheriff fined him £60 and ordered endorsement of his licence, but refused to impose any penalty points despite the request of the prosecutor that he should do so. He states that his refusal was based on the view that penalty points were to be
distinguished from the mere endorsing details of a previous conviction because, firstly, they are in terms part of the penalty and, secondly, in certain circumstances, although this was not the position here, the Court has a discretion on the number of points to be awarded. In that situation he regarded the imposition of penalty points as being clearly part of the sentence and that accordingly reference to liability thereto should have been given in the notice of penalties. Since this had not been done, and since he opined that penalty points were to be distinguished from the mere endorsing details of a previous conviction he made the decision which is now the subject of the appeal.Two questions of law are posed for the opinion of the Court. The first one is: "Was I correct in holding that penalty points are not part of the endorsement?" The second one is: "In the circumstances was I correct in refusing to impose penalty points?" It was agreed by both parties, and properly so, that in view of the terms of section 19 of the Transport Act 1981 which were in operation when the sentence was passed, the awarding of penalty points is an inherent part of the endorsement and that accordingly the first question falls to be answered in the negative. So be it. It was also agreed by both parties that the second question was not properly worded but should read: "In the circumstances was I correct in refusing to endorse the respondent's licence in terms of...
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