APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
OPINION OF THE COURT
THE LORD JUSTICE GENERAL
NOTE OF APPEAL AGAINST SENTENCE
STEVEN STEELE URQUHART
HER MAJESTY'S ADVOCATE
Appellant: Wheatley, Solicitor-Advocate; John Pryde
Respondent: Di Rollo, A.D.; Crown Agent
23 July 1999
The appellant is Steven Steele Urquhart who pled guilty on 25 September 1998 at the Sheriff Court at Edinburgh to a contravention of Section 3 of the Road Traffic Act 1988 which consisted in driving his car without due care and attention and without reasonable consideration for others using the road or place by driving at excessive speed, by losing control at a bend, causing the car to skid across the carriageway, mounting the pavement, colliding with and demolishing a wall and gates, and coming to rest across the carriageway obstructing oncoming vehicles. The Sheriff fined the appellant £250 payable at £6 per fortnight. That aspect of the sentence is not under appeal. In addition the sheriff ordered that the appellant's licence be endorsed with nine penalty points. Since his licence had already been endorsed with three penalty points on a previous occasion, the result was that under the totting-up procedure the total number of points on his licence was then such that the appellant was automatically disqualified from holding or obtaining a driving licence for six months.
The appellant has appealed against the sentence imposed by the Sheriff on the ground only that the number of points which he ordered to be endorsed was excessive. It should be noted that the number of points which he ordered, namely nine, was the maximum which could be ordered for a contravention of Section 3 of the Road Traffic Act. When this appeal was originally put out before the Court it was heard by a Court of two Judges but they continued it to a date to be afterwards fixed for consideration by a bench of three Judges. That is how it has come before us today.
The Sheriff explains that he selected nine points really for two reasons. The first was that he regarded it as a bad case of careless driving, showing such a significant degree of lack of care and attention that the imposition of the maximum number of penalty points was amply justified. In considering that matter it is necessary to have regard to the circumstances of the offence as described by the Sheriff.
The offence occurred on 27 May 1998 at about 9pm when, according to the procurator fiscal's narrative, the weather was fine. However, in submissions to the Sheriff on behalf of the appellant it was apparently said that the weather was not in fact fine and in particular the roads were wet. The Sheriff proceeded in determining the case on the basis that the road surface was indeed wet at the relevant time. The Sheriff tells us that a witness in a car which was behind the appellant's car saw the appellant driving at speed. For the appellant it was said that he was driving at 45 mph in an area which was subject to a 30 mph limit. The appellant lost control at a bend. The car went across the south-bound carriageway, struck the kerb and mounted the pavement where it collided with a wall and gates, demolishing them, and then went back across the south-bound carriageway and came to a stop in the middle of the road. The car was extensively damaged.
In selecting the penalty the Sheriff took into account the facts that in circumstances where the road surface was wet the appellant had driven at a speed which was considerably in excess of that permitted and which turned out to be in excess of what was reasonable in all the circumstances to the extent that he had lost control of his vehicle. He ought, says the Sheriff, to have abided by the permitted speed limit and driven at such a speed as would have enabled him to keep control of his vehicle in the prevailing conditions. He had pleaded guilty inter alia to causing the car to skid and plainly the speed at which he had been driving was a major causative factor in that. The Sheriff did not accept the implication in the plea in mitigation that the skid was somehow not the appellant's responsibility.
There was a second reason for the Sheriff choosing to impose nine points. He had regard to the fact that the appellant's licence showed that on 19 May, only eight days previously, he had been convicted of speeding and three points had been endorsed on his licence. The present offence, again involving excessive speed, had been committed only eight days later. On the previous occasion only the minimum number of points had been applied but to the Sheriff it was clear that the appellant had paid little heed to the warning which his previous conviction should have conveyed to him. The Sheriff felt that he now required a more effective reminder of his obligations.
The Sheriff then says that these circumstances combined, that is to say the circumstances of the offence itself and the circumstance that it had been committed eight days after his conviction for speeding, led him to the conclusion that, while this might not have been one of the very worse cases of careless driving, for which the imposition of a period of disqualification would have been appropriate, endorsement of the appellant's licence with the maximum number of penalty points was both necessary and amply justified in the overall interests of public safety.
In presenting the appeal this morning Mr Wheatley informed us that the reason why it had been continued by the bench of two Judges on the previous occasion was because some question had arisen as to whether it had been proper for the Sheriff to take into account the circumstance that the appellant had been convicted of speeding on 19 May. In the interval, however, Mr Wheatley's researches had revealed the case of Nicolson v Westwater 1995 S.L.T. 1018. In that case this Court had considered a somewhat analogous point. The Court referred there to the terms of Section 31(1) of the Road Traffic Offenders Act 1988 which provides:
"(1) Where a person is convicted of an offence involving obligatory or discretionary disqualification and his licence and its counterpart are produced to the Court - (a) any existing endorsement on the counterpart of his licence is prima facie evidence of the matters endorsed and (b) the Court may, in determining what order to make in pursuance of the conviction, take those matters into consideration."
In Nicolson the Sheriff had imposed the maximum number of penalty points and his only reason for doing so had been the accused's record of previous speeding convictions. The accused had appealed, contending that the Sheriff was not entitled to take account of the previous convictions when considering the appropriate number of penalty points to impose and that the gravity of the offence was the only relevant consideration. The Court rejected that argument and held (at p. 1019):
"In our view the statutory provisions do not allow for the argument which has been advanced by counsel today. The provisions relating to the imposition of penalty points are entirely general and there is no suggestion that the Court can only take into account the gravity of the offence in considering what is the appropriate number of penalty points to be imposed. Similarly, in Section 31 there is nothing to suggest that the order made in pursuance of the conviction which can relevantly be made, having considered the previous convictions, is to exclude an order imposing penalty points."
Mr Wheatley acknowledged that the decision in Nicolson was authority for the view that a Court in deciding what number of penalty points to impose was entitled to have regard to the matters endorsed on the licence, including therefore any previous conviction. He submitted that this Court might take the view that that was an erroneous decision but we note that the decision has stood for four years and has not been questioned, apparently either in this Court or in England. For our part we are satisfied that it proceeds on the basis of a correct interpretation of the provisions of Section 31(1).
For that reason we take the view that in this case it was competent for the Sheriff to take into account the endorsement on the licence which showed that the appellant had been convicted of speeding on 19 May.
Mr Wheatley submitted nonetheless that, even if we were to take that view, we should hold that it had been excessive for the Sheriff to impose nine penalty points. He did not really question the description which the Sheriff gave of the driving and he accepted that it could be regarded as a bad case of careless driving. He said that the Sheriff had failed, however, to give sufficient weight to two particular matters, the first being that no other vehicle had been involved and the second being that no one had been injured. We note that these were in fact the circumstances of the case but we have to say, given the narrative of the events, that this may well have been more due to good fortune than to anything else. When we consider the nature of the offence as narrated by the Sheriff and we consider the fact that it was indeed committed by the appellant eight days after he had been convicted and fined for speeding, we are satisfied that the Sheriff was entitled to take the view that the whole circumstances of the offence were such as to merit the imposition of the maximum number of penalty points. The appeal must be refused.