Scottish High Court of Justiciary Decisons

ROBERT WILLIAM LINDSAY GORDON v. PROCURATOR FISCAL, CUPAR [1999] ScotHC 12 (14th January, 1999)

This is the appeal of Robert William Lindsay Gordon. He was accused on a complaint that on 3 March 1998 on a public road he "did cause or permit William Gear to use a motor vehicle...without there being in force in relation to the use of the vehicle by...William Gear" an appropriate policy of insurance, contrary to the Road Traffic Act 1988, section 143(1) and (2). At the trial diet on 27 October 1998 Gear pled guilty as libelled. The appellant was found guilty after trial and the sheriff, in the light of all the evidence led at the trial, had to consider whether or not special reasons existed for refraining from endorsing the appellant's licence with the appropriate number of penalty points. There was no appeal against conviction.

The sheriff tells us that on the occasion in question the appellant and Gear had arranged to meet at Gear's mother's house. The appellant drove there in his own car. When the time came to go home the appellant was "not feeling one hundred per cent" and asked Gear to drive the appellant back from Kennaway to Lundin Links in the appellant's car. Both he and Gear owned motor cars. In the past he had discussed with Gear what sort of car insurance Gear had: Gear had given him to understand that his insurance was "fully comprehensive". In a later discussion the appellant had been told by his own parents that a person who had "fully comprehensive" insurance was allowed to drive vehicles other than his own and in doing so would still have the necessary insurance cover. The matter of the insurance was not raised on the occasion on 3 March 1998 but the appellant would not have invited Gear to drive if he had thought that Gear was not insured. In evidence Gear gave a different account of matters. In the light of the evidence the sheriff explains that he convicted the appellant "on the basis that he had given his co-accused (Gear) unconditional permission to drive on the mistaken belief that such use would be covered by the co-accused's own insurance and the situation was therefore distinguishable from that in McDonald v. Howdle 1995 S.C.C.R. 216".

The sheriff concluded that the explanation put forward by the appellant did not amount to a special reason. He proceeded upon the basis that he was prepared to accept the genuineness of the explanation put forward by the appellant, including the fact that he had been led into error as to what was meant by "fully comprehensive" and that that error derived from what he had been told by his parents. The sheriff explains that the comprehensiveness of the cover is not the same thing as the identification of the persons who are permitted to drive with appropriate insurance cover. The sheriff makes it plain that it did not appear to him that the appellant had made sufficient enquiry. He states:

On this basis the sheriff concluded that "his genuine belief had been reached on insufficiently sound grounds, moreover grounds that he could have improved on at the time". For these reasons he decided that there were no special reasons to refrain from endorsing the appellant's licence with penalty points.

For the appellant, Miss Scott submitted that, in the light of the decision in Marshall v. McLeod 1998 S.C.C.R. 317, the sheriff had erred. The basic fact was that the appellant in the present case had a genuine belief that the driving of the appellant's vehicle by Gear was covered by the insurance which Gear had in respect of Gear's own car. For practical purposes, this state of affairs was not distinguishable from that which the court considered in Marshall v. McLeod. There the driver had the assurance from the owner of the car that the owner's insurance covered the driving by the accused driver. Although the facts in the present case were slightly different, in that the accused was the owner of the car, the essential fact was that his genuine belief derived from information obtained from a person who in turn was the owner of a car and had insurance in respect of that car. What the case of Marshall v. McLeod illustrated, it was submitted, was that provided the person accused had a genuine belief that the driving was covered by insurance then, provided he had taken the steps necessitated by the circumstances, his special plea of mitigation allowed by section 44 of the Road Traffic Offenders Act 1988 should be sustained.

We have come, with some hesitation, to be of the view that this case is not distinguishable on its material facts from Marshall v. McLeod. In the present case, we have to proceed upon the basis of fact upon which the sheriff proceeded, namely that the appellant had a genuine belief that Gear's driving of the appellant's vehicle would be insured in terms of the comprehensive policy which Gear had in respect of his own car, and that that belief was based upon an assurance given by a person known to him. Gear, who was the owner of a car and who had stated that his insurance cover was fully comprehensive. He had taken the additional step of checking with his own parents, what was meant by comprehensive insurance cover, and had received the answer that that meant the insured was allowed under the terms of the insurance policy to drive other vehicles and still be covered. That, it appears to us, would be a normal feature of fully comprehensive insurance cover. On the basis of these enquiries we conclude that the correct inference was that the appellant had taken the steps necessary in the circumstances. We shall therefore quash the penalty to the extent of removing the endorsement of his driving licence with 6 penalty points.