Scottish High Court of Justiciary Decisons

JOHN THOMSON LOVE v. PROCURATOR FISCAL, HAMILTON [1999] ScotHC 185 (13th July, 1999)

The appellant John Thomson Love was charged on a complaint along with a co-accused, Daniel Kelly. The complaint contained two charges. The first, directed against Kelly alone, was that on 25 March 1997 he used a motor vehicle without a policy of insurance being in force, contrary to section 143(1)(a) of the Road Traffic Act 1988. The second charge, against the appellant and also against Kelly, was a charge under section 173(1)(b) of the Road Traffic Act 1988 and alleged that the appellant did, with intent to deceive, lend or allow to be used by Kelly a certificate of insurance and present it to a police officer. Having heard evidence the sheriff convicted the appellant on that charge.

The stated case narrates that the facts put forward on behalf of the Crown came within narrow compass. Two police constables on duty on 25 March 1997 at 5.10 a.m. had occasion to stop a Mercedes car driven by the second accused Kelly, who was alone in the car. Kelly was given the usual request to produce documents. On 30 March, he attended at Wishaw Police Office and handed in a valid driving licence, an M.O.T. certificate and an insurance certificate issued by the General Accident Fire & Life Assurance Corporation. The narrative in the stated case says that that was a certificate "in respect of the vehicle": we shall revert to that point in a moment. The certificate had been issued to the appellant under the designation "John Love, trading as Wishaw Tyre & Exhaust Centre" at an address in Wishaw. The police officers followed up their enquiries, because the certificate did not bear the name of Kelly. They found that the firm of Wishaw Tyre & Exhaust Centre had ceased trading but that the appellant was now trading from different premises under the name of the "Clyde Valley Motor Company". The police officers also discovered that the policy of insurance in relation to which the certificate had been issued had been terminated by the General Accident on 13 December 1996; the finding is it was terminated as a result of default in the payment premiums. On 11 April 1997 the two police officers called at the premises of the Clyde Valley Motor Company. They asked the appellant if he was the proprietor of the firm of the Wishaw Tyre & Exhaust Centre and he agreed that he was. He was then asked about the certificate of insurance and to whom he had given it and he replied, "It's in the cabinet. If any of the boys who drive for me need it they just take it out." One of the constables then mentioned that the certificate had expired in December of the previous year and the appellant replied, "You know who had it. I'm not saying any more until I see my lawyer. I don't like your attitude."

At the end of the Crown case, there was a submission that there was no case to answer, principally on the ground that there was no evidence that the appellant had lent or allowed the expired insurance certificate to be used by his co-accused with intent to deceive. The point was also made that the police officers had not told the appellant the name of the person who had produced the certificate of insurance bearing his name, nor what the vehicle was that was being driven when he was stopped. The officers conceded in evidence that they could have given that information and that they could have asked the appellant how Kelly had come to be in possession of the certificate. The sheriff repelled the submission on the ground, firstly, that the certificate had been issued to the appellant and had expired several months before it was handed to the police; secondly, that he had admitted to the police officers that the certificate was available to any driver; and, thirdly, he came of the reply, quoted above, "You know who had it". There was defence evidence led but the sheriff rejected that evidence and it is not necessary to go into it.

The stated case does not include a copy of the certificate in question, and there is only the passing reference, mentioned above, that the certificate was in respect of the Mercedes vehicle. We do not know what its precise terms were, nor whether it purported to apply to one vehicle or to vehicles generally. Secondly, we do not have any information in the case as it stands about the communication to the appellant that the policy of insurance under which the certificate was issued had been cancelled.

The submission made on the appellant's behalf by Mr Shead was, firstly, that there was no finding in the stated case that the appellant knew that the policy had expired and, secondly, partly relying on the first submission, that the sheriff had no material on which he was entitled to infer that the appellant knowingly allowed the co-accused to use the certificate and from which he could infer intent to deceive, which is essential to the charge. For the Crown it was submitted that the information before the sheriff was sufficient for him to make the necessary inferences, although the case was not perfect and it would have been better if the sheriff had made specific findings as to the appellant's knowledge of the termination of the policy and as to his intent to deceive. It was, however, submitted that the policy had terminated more than three months before the occasion of the driving in question, through default in the payment of premiums, and that there was material from which the sheriff could have made the necessary inferences.

The case is not, as we have indicated, completely satisfactory as it is stated to us. It is possible, in our view, that there might have been material before the sheriff from which he might have inferred that the appellant must have known that the policy had been terminated, but the conclusion that the appellant did know would be one which the sheriff would require to draw on the evidence and there is no finding in the case to that effect. Similarly, the conclusion that the appellant allowed the certificate to be used with intent to deceive is one which might perhaps have been drawn from evidence before the sheriff but has not been made the subject of a specific finding. In the whole circumstances we have come to the conclusion that the case does not disclose sufficient material to justify the inference that the appellant was guilty of the crime charged against him. We shall therefore answer the two questions in the stated case in the negative and quash the conviction.