Garry Whillans V. Procurator Fiscal, Edinburgh
| Jurisdiction | Scotland |
| Judge | Lord Bonomy,Lord Wheatley,Lord Hardie |
| Judgment Date | 29 July 2010 |
| Neutral Citation | [2010] HCJAC 91 |
| Docket Number | XJ315/10 |
| Published date | 01 September 2010 |
| Court | High Court of Justiciary |
| Date | 01 September 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Hardie Lord Bonomy Lord Wheatley | [2010] HCJAC 91 Appeal No: XJ315/10 OPINION OF THE COURT delivered by LORD HARDIE in BILL OF SUSPENSION by GARRY WHILLANS Complainer; against PROCURATOR FISCAL, EDINBURGH Respondent: _______ |
Complainer: Brown; Patterson Bell Ltd
Respondent: D Young, Advocate Depute; Crown Agent
29 July 2010
Factual Background
[1] The complainer was charged at the instance of the respondent on a summary complaint containing the following charge:
"On 28th July 2009 on a road or other public place, namely M9 Edinburgh to Stirling Motorway (Northbound) at Junction 1, Kirkliston, Edinburgh you GARRY WHILLANS did drive a mechanically propelled vehicle, namely motor car registered number ML03 KYY dangerously and did drive across from the centre lane to the slip road without properly signalling, manouvre into the path of Peugeot motorcar, registered number SE53 FYN then driven by Kerry White, care of Lothian and Borders Police, whilst braking heavily, cause said Kerry White to take evasive action resulting in a collision between your vehicle, Peugeot motorcar registered number ML03 KYY (sic) driven by said Kerry White and Foden motor lorry registered number T597 RKS then driven by Andrew Stewart Wilson, care of Lothian and Borders Police;
CONTRARY to the Road Traffic Act 1988, Section 2 as amended."
On 27 October 2009, the complainer signed a written intimation of his intention to plead guilty as libelled and returned it to the court prior to the pleading diet on 20 November 2009. On that date, his plea of guilty was recorded but the court deferred sentence until 4 December 2009 for the personal appearance of the complainer in respect that he was liable to be disqualified from driving. The decision of the court was intimated to the complainer by a letter dated 20 November 2009 from a Sheriff Clerk Depute in the following terms:
"I refer to your letter in which you pled guilty and can confirm that you were dealt with as follows:
The case was continued until 4 December 2009 at 10:00AM for the following reasons: for the personal appearance of the accused in respect that the accused is liable to be disqualified from driving.
Failure to appear may result in a warrant being granted for your apprehension."
[2] On 4 December 2009, the complainer was represented by a solicitor in circumstances narrated below. In his report, the Sheriff stated that the circumstances of the offence, as narrated to the court, were that at approximately 1640 hours on 28 July 2009, on the M9 Edinburgh to Stirling Motorway (Northbound) near Junction 1, Kirkliston, Edinburgh the complainer had driven from the centre lane across to the slip road without properly signalling and, whilst braking heavily, had manoeuvred into the path of a car driven by Kerry White (accompanied by her partner and two children) who had been obliged to take evasive action. A collision had ensued between the complainer's vehicle (which had driven into the rear of the motorcar driven by Kerry White) and a Foden motor lorry then being driven by Andrew Stewart Wilson in the course of his employment. Although no one was injured as a result of the collision, there was extensive damage to the complainer's motorcar and the rear of the motorcar driven by Kerry White. When interviewed by police officers, the complainer had given them an account which corresponded with the wording of the charge in the complaint. Having heard a plea in mitigation on behalf of the complainer, the Sheriff imposed a fine of £660, discounted from £1,000 to reflect the plea of guilty, and disqualified the complainer from holding and obtaining a driving licence for a period of one year and thereafter until he had passed the extended driving test.
[3] In the Bill of Suspension, the complainer avers that on 4 December 2009 when he attended at Edinburgh Sheriff Court for 10am, he remained unrepresented. He was directed to the appropriate courtroom and sat outside until about noon when the court police officer told him to sit inside. He was the last person left on the public benches and a solicitor approached him and asked to speak to him outside the court. He did so. The solicitor asked him if he needed help and if he knew what was going on. He told the solicitor that he did not know what was going on and the solicitor asked to see the complaint. He asked the complainer what had happened and obtained details about his financial circumstances. The complainer signed a form at the request of the solicitor. The complainer had only explained briefly what had happened when the case was called. He had not been advised that disqualification would result. Following the imposition of the penalty, the solicitor told the complainer that was all that could have been done and the complainer later received a letter from the solicitor confirming the outcome of the case.
[4] Subsequently, the complainer sought separate legal advice "as he was shocked at the outcome of the case." In the Bill of Suspension, the following averments are made on his behalf:
"Following the incident giving rise to the charge, the police had arrived on the scene. Prior to their arrival the lorry driver had indicated that it would be his fault as he had driven into the back of the other car. When the police arrived they spoke to the driver of the lorry and then the occupants of the other car. Lastly they spoke to the complainer and his two passengers. He is a jockey and was travelling with his friends to an evening race session at Perth. The complainer was told that all witnesses said he was at fault so he admitted he must have been. The police officers indicated to the complainer that if he was prepared to go on a course for young people involved in such accidents that would be the end of the matter. If not, he would receive three penalty points and a fine. The complainer was to telephone the officer after 2pm the following day to discuss the course."
The complainer alleges that he forgot to telephone the officer because of work commitments. When he received the summary complaint several months later, he still believed that he would simply receive a fine and three penalty points and therefore completed the form pleading guilty. He had no idea that disqualification was inevitable, nor did he understand the gravity of the charge. When he received the letter...
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