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Cite as: [2003] ScotHC 62

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Her Majesty's Advocate v. Kirk [2003] ScotHC 62 (21 November 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Kirkwood

Lord Bonomy

Appeal No: XJ1650/03

OPINION OF THE COURT

delivered by LORD BONOMY

APPEAL

HER MAJESTY'S ADVOCATE

Appellant;

against

ARCHIBALD MARSHALL KIRK

Respondent:

_______

Appellant: Turnbull, Q.C., A.D.; Crown Agent

Respondent: Shead; HBM Sayers

21 November 2003

[1] On 21 July 2003 the respondent, Archibald Marshall Kirk, pled guilty to the following charge:

"on 24 November 2002 on a road or other public place, namely St Andrews Road, Guardbridge, Fife at Guardbridge you ARCHIBALD MARSHALL KIRK did drive a mechanically propelled vehicle, namely motor car registered number Y576RSN without due care and attention or without reasonable consideration for other persons using the road or public place whereby it veered across the road and collided with a bus, registration number L307PSC, whereby both vehicles were damaged and you, James Brodie, c/o Cupar Police Office and George Stewart, now deceased and formerly of 56 James Anderson Place, St Andrews were injured; CONTRARY to the Road Traffic Act 1988, Section 3 as amended."

The sheriff admonished him and ordered his licence to be endorsed with three penalty points. The procurator fiscal has challenged that disposal as unduly lenient in exercise of his right to appeal set out in section 175(4) and (4A)(b) of the Criminal Procedure (Scotland) Act 1995. An admonition was among the disposals in summary proceedings which The Prosecutor's Right of Appeal in Summary Proceedings (Scotland) Order 1996 (1996 No. 2548 (S. 197)) provided may be challenged by the Crown with effect from 1 November 1996.

[2] The respondent allowed his taxi to drift onto the wrong side of the road and collide with an oncoming bus. Although neither vehicle was being driven at a speed in excess of the speed limit, the resultant impact caused massive damage and had tragic consequences. Both passengers in the taxi were injured, one fatally. The respondent was also injured.

[3] The advocate depute invited us to the view that the sheriff's approach to the facts of the case was misconceived and had led to his viewing the offence as much less serious than it was. The sheriff had laid great weight on the absence of a detailed explanation for what happened. The respondent had been driving normally within the speed limit of 40 m.p.h. There was no suggestion that any defect in the taxi or the road surface contributed to the collision. There was no suggestion of sudden illness or hint of sudden emergency. The respondent could not recall what had happened. In short, there was no explanation as to why the taxi had drifted onto the wrong side of the road. Faced with these circumstances the sheriff had concluded that it would have been unfair to the respondent to interpret his actions as involving any form of deliberate conduct, such as overtaking or turning right in the face of oncoming traffic, or driving at speed, or trying to do other things whilst driving. That had then led the sheriff to go further and to conclude wrongly that the degree of carelessness involved was modest, justifying the most lenient of penalties. The sheriff's erroneous evaluation of the objective facts was most plainly demonstrated by the distinction he drew between the plain significance of the aftermath of an accident in determining the question whether the driver was guilty of careless driving (as illustrated in Ryrie v. Campbell, 1964 J.C. 33, and Pagan v. Fergusson 1976 S.L.T. (Notes) 44, to which the sheriff made reference in his report to us) and the difficulty, as he saw it, of assessing the degree of culpability involved from the aftermath, where the court is left in the dark about why exactly the accident came about. In the submission of the advocate depute the sheriff should have assessed the degree of culpability involved by reference to the whole circumstances of the accident, including its aftermath, and imposed an appropriate sentence.

[4] In response to the advocate depute's submission that the sheriff had erred in his approach Mr. Shead, for the respondent, confined himself to the assertion that the sheriff had not misdirected himself about the nature of the offence. However, his principal submission was that, even if he had, the whole circumstances of the case were such that it could not be said that the sentence imposed was unduly lenient. Unless that could be said, then this court should not interfere with the sentence, albeit the sheriff's approach had been erroneous - H.M. Advocate v. Bell, 1995 S.C.C.R. 244. He pointed in particular to the Opinion of the Court at page 250D where this was said:

"It is clear that a person is not to be subjected to the risk of an increase in sentence just because the appeal court considers that it would have passed a more severe sentence than that which was passed at first instance. The sentence must be seen to be unduly lenient. This means that it must fall outside the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate. ... There may also be cases where, in the particular circumstances, a lenient sentence is entirely appropriate. It is only if it can properly be said to be unduly lenient that the appeal court is entitled to interfere with it ... ".

[5] We agree with Mr. Shead that a proper assessment of whether the disposal of the case was unduly lenient depends upon a consideration of all factors relevant to sentence, including the factors placed before the sheriff in mitigation. However, the starting point must be the gravity of the offence itself. We accept the submission made by the advocate depute that the sheriff erred in the approach he took to his assessment of the gravity of the offence. In this case the circumstances of the collision and its consequences should have led the sheriff to conclude that this was not a case of momentary inadvertence but one involving a significant degree of carelessness. It was against the background of that assessment that the sheriff ought to have weighed in the balance the various other factors, many of them favourable to the respondent, which he took into account and which were these. The respondent is a 54 year old widower with two grown up children, who retired from the Scottish Ambulance Service after 30 years public service, during which he was required to drive ambulances, often at speed. He was an experienced driver used to coping with difficult situations. He was a first offender. His income consisted of a pension of £600 per month and earnings of £180 per week net from working in the taxi control room. He had also been working part-time as a taxi driver for about four years. He sustained severe injuries to his left leg and plainly continued to suffer disability when he appeared before us. In December he will have a further consultation with the consultant surgeon in charge of his case to decide what further surgery is required to his left leg. He had not driven since the accident and there was, and is, no immediate prospect of his returning to driving. That means, of course, that disqualification may have no practical impact on him.

[6] Having regard to the whole circumstances of the case and of the respondent, we are left in no doubt that the disposal of this case was unduly lenient. While the respondent's driving history and experience and the effect that the accident has had on him are substantial mitigating factors, they do not mitigate the gravity of the offence committed in this case to the point of permitting the imposition of the most modest penalty available to the sheriff. Where Parliament provides a range of penalties for an offence, in the absence of highly exceptional circumstances the penalty imposed in any given case ought to fall at a point in the range of possible penalties which properly reflects the gravity of the offence and takes into account such aggravating and mitigating factors as are present. Viewed in this way it is plain that to admonish the respondent and order the endorsation of the minimum number of penalty points on his licence did not reflect the significant degree of carelessness exhibited by the respondent. We shall accordingly allow this appeal, quash the sentence imposed by the sheriff and impose an appropriate penalty. We shall continue the appeal to a date to be fixed to enable counsel for the respondent to address us on the appropriate penalty to be imposed.