Scottish High Court of Justiciary Decisons

DEREK MICHAEL LAPPIN v. PROCURATOR FISCAL, AYR [2001] ScotHC 8 (23rd February, 2001)

[1] Within a few weeks of passing his driving test and while still only 18 years of age the appellant Derek Michael Lappin was detected exceeding the 70 mph speed limit on the A78 Loans to Troon bypass dual carriageway by driving at a speed of 89.3 mph. The police officers who stopped the appellant issued a fixed penalty ticket, thus offering him the opportunity to pay a fine of £40 and have three penalty points applied to his driving licence. The appellant tried to pay the fine and have the matter dealt with in terms of that offer. He was unable to do so because he had not applied for and obtained his driving licence. As a result he received a summary complaint in respect of the offence. He pled guilty by completing the reply form issued with the complaint. He completed the "Written Explanation" section of the form in these terms:

He also provided details of his financial position. The justices imposed a fine of £120 and ordered six penalty points to be endorsed on the appellant's driving licence.

[2] The period of two years from the day on which a person first passes his driving test is a "probationary period" in terms of section 1 of the Road Traffic (New Drivers) Act 1995. If during that period he is convicted of an offence involving obligatory endorsement and six or more penalty points are ordered to be endorsed on his licence, then the Transport Secretary must be advised and he must revoke the driving licence. That is the automatic consequence for this appellant of the order made by the justices.

[3] Miss Ogg for the appellant developed an argument that the number of penalty points selected was excessive in this way. She submitted that the justices should have taken into account the fact that an offer of a fixed penalty had been made. It was not clear that they had attached any weight at all to that factor. In addition, they were bound by the well-established rule of good practice, which applies whenever the possibility of an order for disqualification arises, to give an accused who pleads guilty by letter an opportunity to appear personally and make additional submissions. As a result of these errors in law the justices had made an order for an excessive number of penalty points.

[4] On the strength of what has been said in a number of earlier cases the Advocate Depute conceded that the fact of an offer of a fixed penalty and the circumstances in which it was not taken up are relevant to the question of sentence if the case later comes before a court. In none of the cases referred to in the course of debate before us has any attempt been made to analyse the way in which these factors per se may be relevant to the question of sentence. Indeed, the Scottish cases seem to us to tend towards the view that the offer of a fixed penalty either irrelevant or immaterial. In Fyfe v. Procurator Fiscal, Forfar (unreported 4 March 1998) Lord Prosser, in delivering the Opinion of the Court, said this:

In the present case the offer was made by the police officers who stopped the appellant. Miss Ogg suggested that the very fact that experienced police officers at the locus, who saw the offence being committed, considered that it could be dealt with by this procedure was a factor which should be weighed in favour of a lower, rather than higher, number of penalty points. It is not apparent to us why that should be so. It is the task of the court to make an impartial, objective assessment of the material circumstances surrounding the commission of the offence. The court should do that on the material presented and not on the basis of the reaction of those who detected or investigated the offence. In two identical cases, the offer might have been made in one but not in the other. However sympathetic a court might be, having regard to the circumstances in which the offer was not taken up, it is hard to see why that should be reflected in that case, with no possibility in the other. In the Opinion of the Court in Coomer v. Procurator Fiscal, Duns (unreported 21 January 200) Lord Sutherland explained the position thus:

We entirely agree, and it was not suggested otherwise by Miss Ogg, that the court is not bound to relate the penalty imposed to the fixed penalty offered. Beyond that Coomer does not go.

[5] Reference was also made to Halleron v. Vannet 2000 S.C.C.R. 50 where the court was dealing with the situation where an offer of a fixed penalty had not been taken up, a plea of guilty had been tendered before a lay justice and the adjourned diet then called before a stipendiary magistrate with greater sentencing powers. In dealing with that issue at page 52B Lord McCluskey giving the Opinion of the Court said:

Our attention was also drawn to the judgment of the Divisional Court in Karagozlu v. D.P.P. [1996] E.W.H.C. 239 (22 November 1996) where an opinion favourable to Miss Ogg's argument was expressed, but again without analysis in light of a Crown concession similar to the one made in the present case. The court rejected the idea that the magistrates were bound to restrict their order to the number of penalty points in the fixed penalty offered. In dealing with the relevance of the existence of the fixed penalty procedure and the reasons why the particular driver had not followed "that attractive route" and of the fact that a plea of guilty was tendered Schiemann L.J., with whom Butterfield J. agreed, said this:

The appellant in that case had forgotten about the fixed penalty notice in his hurry to get to the airport.

[6] Founding on the overall effect of these cases, particularly Halleron and Karagozlu the Advocate Depute submitted that the fact that a conditional offer of a fixed penalty had been made and the circumstances surrounding the failure of the appellant to take advantage of it were factors in the procedural history of the case. They could thus be taken into account, in the same way as an early plea of guilty, or a delay in the final disposal of the case through no fault of the appellant. We consider that on this basis the history is not in principle irrelevant, though we find it difficult to envisage its having significance. Seen in that light the statement by the justices in their report - "We took full account in imposing sentence of the Appellant's comments with respect to his failed attempts to pay the fixed penalty" - is a clear indication that they took the fact of the offer and the circumstances in which it was not taken up into account in an appropriate way. We were not persuaded that these factors should have been taken into account in any other particular way in the circumstances of this case.

[7] Miss Ogg's argument that the justices were bound to give the appellant an opportunity of appearing personally to make submissions was founded on what she maintained was the close analogy of disqualification and the practice of allowing such an opportunity wherever that was an issue - see e.g. Buchan v. Ingram 1997 S.C.C.R. 509 at 510. The Advocate Depute maintained that the circumstances were not analogous to disqualification and with his analysis we agree. It is true to say that the effect of ordering six or more points to be endorsed on the driving licence is the automatic revocation of the licence without an appeal or any opportunity to make representations against revocation. However, the effect of the revocation is not to prevent the probationer driver from driving with a provisional licence. He would thus be entitled to drive, accompanied by another qualified driver. He can apply immediately to re-sit his test. On passing the test he is immediately entitled to drive without supervision. He does not begin a fresh period of probation. In terms of section 7 of the Road Traffic (New Drivers) Act 1995 the passing of a further test brings the probationary period to an end. It is plain that the purpose of sections 1, 2 and 3 of the Act is not to prevent a newly qualified driver who offends from driving for a period but to secure his re-qualification by demonstrating again his competence to be licensed to drive. It would be wrong for justices to order a particular number of penalty points to be endorsed on a licence in order to trigger the operation of sections 2 and 3 of the Act. It would be equally wrong for justices to select a low number of penalty points to avoid the application of these sections. The correct approach is for the justices to make their determination according to the circumstances of the offence and the offender which the Crown and the accused person have chosen to present to them. It was submitted by Miss Ogg that the appellant had been given the false impression that the orders made would be for three penalty points by having received an offer of a fixed penalty and by having thereafter received a complaint without a notice of potential penalty in keeping with current practice and thus did not realise the importance of setting out mitigating personal circumstances in the reply form. We do not consider these to be circumstances which would justify a finding that the justices erred by not giving the appellant an opportunity of appearing personally before them. It was plainly the purpose of the 1995 Act to heighten the awareness of newly qualified drivers of their responsibilities under road traffic law. They know that they are on probation and that special rules apply to them which do not apply to more experienced drivers. It should be obvious to any newly qualified driver that should he exceed the 70 mph speed limit by a significant amount a serious view is likely to be taken of the case by any court. For speeding a minimum of three and a maximum of six penalty points may be ordered to be endorsed on the driver's licence if he is not disqualified. That is a basic rule of which any driver is presumed to be aware. We do not consider that there are any particular circumstances in this case which would justify a finding that the justices were bound to allow a personal hearing. The justices have given sound reasons based on the speed involved and the appellant's youth and lack of experience as a qualified driver for viewing the case seriously.

[8] For these various reasons we find that the justices did not err and did not impose an excessive sentence. We shall accordingly dismiss the appeal.