Complainer: S Collins, Solicitor Advocate; Capital Defence, Edinburgh (for David Sutherland & Co, Aberdeen)

Respondent: Niven Smith, AD; Crown Agent

19 February 2013

[1] In this Bill of Suspension, the complainer pled guilty to charge 2 (driving without insurance). He pled not guilty to charge 1 (taking a vehicle without permission) and charge 3 (driving otherwise than in accordance with the conditions of his driving licence, namely, corrected vision). His pleas of not guilty to charges 1 and 3 were accepted by the Crown.

[2] The case was continued for a "special reasons" proof on 20 August 2012. At that diet, the complainer sought to withdraw his plea of guilty as he had discovered that, although he had been driving a friend's vehicle and he had pled guilty on the basis that the friend had no insurance cover for him, he was in fact covered by his own insurance policy. The justice nevertheless refused to permit the complainer to withdraw his plea, for the reasons given in paragraph 7 of the justice's report.

[3] Mr Collins acknowledged that the complainer should have checked his own insurance at an earlier stage. However in this appeal we now have a copy of a certificate of motor insurance which the Crown accept (for today's purposes) is ex facie valid i.e valid to cover the complainer driving a friend's car on the date in question, 19 September 2011. Importantly, that document was not before the justice. As the justice points out at paragraph 7 of his report, "I did not accept the complainer's position re his own policy." Nevertheless the document which we see covers the complainer's driving other vehicles provided that, first, he was driving with the consent of the owner and secondly, he was driving in accordance with the conditions of his own driving licence.

[4] Mr Collins' primary submission was that the justice's order refusing to allow withdrawal of the plea of guilty should be suspended, and the case remitted for the purposes of a trial on charge 2. We understood the advocate depute's position to be that the Crown, whilst today accepting the insurance certificate as ex facie valid, do not concede that the complainer was covered by insurance at the relevant time. In particular, two areas (according to the Crown) require evidence. First, evidence of the owner's consent and secondly, whether the complainer was driving in accordance with the conditions of his driving licence (in particular with corrected vision). It is a matter of some importance that the Crown do not concede either of these two points.

[5] In all the circumstances we consider that this case is distinguishable from the case of Pirie v McNaughton 1991 SCCR 483 for two reasons. First, the complainer raised the issue during proceedings which were still live. Secondly (and importantly) this case concerns a statutory offence which simply could not be committed if there was extant at the relevant time a relevant policy of insurance. We note again that the complainer raised this issue at a stage when the justice could have given him an opportunity to withdraw his plea and have the matter judicially determined.

[6] In the result we pass the Bill. For the reasons given above, we quash the conviction on charge 2 and quoad ultra we remit to the justice to proceed to a trial diet on charge 2.

DAW