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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> BRIAN HAMILTON v. PROCURATOR FISCAL, LINLITHGOW [2000] ScotHC 37 (22nd March, 2000) URL: http://www.bailii.org/scot/cases/ScotHC/2000/37.html Cite as: [2000] ScotHC 37 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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1771/99, 1692/99 and 1693/99 OPINION OF THE COURT delivered by THE HONOURABLE LORD SUTHERLAND in NOTE OF APPEAL TO THE COMPETENCY AND RELEVANCY by BRIAN HAMILTON Appellant against PROCURATOR FISCAL, LINLITHGOW Respondent and CROWN NOTES OF APPEAL by PROCURATOR FISCAL, LINLITHGOW Appellant against THOMAS GLASS and DOUGLAS MILLER SHAW Respondents _____________ |
Appellant: (1) N. Beardmore, (2) and (3) J. R. Doherty, Q.C., A.D.
Respondent: (1) J. R. Doherty, Q.C., A.D., (2) N. Beardmore and (3) P. Wheatley, Solicitor Advocate
22 March 2000
[1] We have before us three notes of appeal raising the same issue, namely whether a sheriff can call for a DVLA print-out in a case where the accused is not the holder of a driving licence because he is disqualified.
[2] The issue arises from the decision in Anderson v Allan 1985 S.C.C.R. 262 where the Court held that if an accused never had had a licence then the Court could not have regard to a DVLA print-out. In the subsequent case of McCallum v Scott 1987 S.L.T. 491 it was held that the court could look at a DVLA print-out if the accused consented, but otherwise could not. It is, however, important to notice the difference between the legislation under which these two cases were decided and the current legislation.
[3] Once upon a time, before a court could look at previous convictions, these convictions had to be contained in a schedule which was attached to the complaint and served on the accused. Various innovations have been made to that procedure and in the case of road traffic offences the innovations are statutory. Under section 101(4) of the Road Traffic Act 1972 there was a requirement for an accused person to deliver his licence to the court. In the Road Traffic Act 1974 there was an amendment which added, by paragraph 10 of Schedule 3, a new section 101(4A). That section provided:
"Where a person is convicted of an offence involving obligatory endorsement and his licence is produced to the court, then in determining what order to make in pursuance of the conviction the court may take into consideration particulars of any previous conviction or disqualification endorsed on the licence."
That was the legislation which was in force at the time when Anderson and McCallum were decided. There was, however, a very material alteration made by section 70(1) of and paragraph 3 of Schedule 1 to the Criminal Justice (Scotland) Act 1987. In terms of that paragraph there was a new sub-section (8) added to section 101 of the 1972 Act which was in the following terms:
"(8) Notwithstanding sections 311(5) and 357(1) of the Criminal Procedure (Scotland) Act 1975 (requirements as to notices of penalty and previous convictions), where a person is convicted in Scotland of an offence involving obligatory endorsement
(a) where his licence is produced to the court, sub-section (4A) above shall apply;
(b) where no such licence is produced, subject to sub-section (8B) below, sub-section (8A) below shall apply.
(8A) Where this sub-section applies, it shall be competent for the court in determining what order to make in pursuance of such conviction as is mentioned in sub-section (8) above to take into consideration particulars of
(a) any previous conviction or disqualification pertaining to the person; and
(b) any penalty points ordered to be endorsed on any licence held by the person which have to be taken into account under section 19(3) of the Transport Act 1981,
specified in a document purporting to be a note of information contained in the driver and licensing records maintained by the Secretary of State in connection with his functions under this part of this Act."
Sub-section (8B) dealt with the various formalities which must be complied with if the prosecutor decided to put such a document before the Court, and provided inter alia that the accused person must be asked if he accepts the accuracy of the document and contained procedures if he disputes the accuracy of it.
[4] Section 101(8)-(8B) was in fact repealed by the Road Traffic Offenders Act 1988, which was a consolidation statute, and was re-enacted in section 32 of that Act which, with some minor amendments, now reads:
"(1) Subsections (2) to (5) below apply where a person is convicted in Scotland of an offence involving obligatory or discretionary disqualification but his licence and its counterpart are not produced to the court
(2) The court may, in determining what order to make in pursuance of the conviction, take into consideration (subject to subsection (3) below)
(a) particulars of any previous conviction or disqualification pertaining to him, and
(b) any penalty points ordered to be endorsed on the counterpart of any licence held by him which are to be taken into account under section 29 of this Act,
which are specified in a document purporting to be a note of information contained in the records maintained by the Secretary of State in connection with his functions under Part III of the Road Traffic Act 1988."
There then follow similar provisions relating to the accused being asked if he admits the accuracy of the particulars and the procedure to be followed if he does not.
[5] It was maintained on behalf of the Crown that the decisions in Anderson and McCallum were superseded by the effect of the Criminal Justice (Scotland) Act 1987 provisions as re-enacted in 1988. It is, in our view, perfectly clear that under the original 1972 provisions, as amended, that section only came into force at all "where his licence is produced to the court". If the accused's licence is not produced to the court then that section simply would not apply. In that situation it is hardly surprising that the court came to the conclusion which it did in Anderson and McCallum. The position, however, is now very different under the later legislation which deals specifically with the position not only where the licence is produced to the court, but also the position where no such licence is produced.
[6] It was contended, contrary to the Crown argument, that the use of the word "licence" in the phrase "where no such licence is produced" means that the effect of Anderson still applies and that therefore no account can be taken of any DVLA print-out where there never has been a licence. In our view, however, that argument is fallacious. What the section is concerned with is the position where no licence is produced to the court. In our opinion it matters not whether it is not produced because the accused has lost it, because it has been eaten by his dog, because he has been disqualified, or because he never had one. In all of these situations, the fact is that no licence is produced to the court, and where no licence is produced to the court it is quite apparent, in our view, that sub-section (8A) applies. Sub-section (8A) in turn makes it abundantly clear that it is competent for the court to consider the DVLA print-out in a situation where no licence is produced.
[7] In these circumstances we are satisfied that the decisions in Anderson and McCallum have indeed been superseded by the later legislation and that it is now competent, in the event of no licence being produced to the court for whatever reason, for the court to have regard to the convictions contained in a DVLA print-out.
[8] As we say we have no doubt that that is the correct construction of the legislation. If there had been any ambiguity about it, we are comforted by the fact that at the report stage in the House of Lords, when introducing the Criminal Justice (Scotland) Act 1987, the Lord Advocate said this:
"Doubts have arisen as to the circumstances in which the courts may take account of the particulars of a convicted person's driving history when they are recorded in a print-out from the driver licensing record, that is the record which is held on computer by the DVLC in Swansea. The present provisions of the Road Traffic Act 1972 allow the court to take account of these particulars when they are recorded in a driving licence produced to the Court. Situations arise, however, when no licence can be produced, or indeed where the convicted person is not a licence holder. In these cases courts have not always felt able to use the DVLC print-out to provide the particulars in question. In such circumstances we wish the courts to be able to have placed before them an extract from the DVLC records containing the information that the courts have ordered should be endorsed on any licence which the motorist may hold. This is achieved by the present amendment."
On the whole matter, therefore, we are satisfied that in the cases of Glass and Shaw, where the Sheriff refused to have regard to the DVLA print-out, the Crown appeal must succeed, and in the case of Hamilton, where the Sheriff sought a DVLA print-out and an objection was taken to that course, that appeal must fail. As far as the disposal of these cases is concerned therefore, in the case of Hamilton, where the matter has not proceeded to sentence, we shall simply refuse the note of appeal and remit the matter to the Sheriff Court to proceed as accords. In the cases of Glass and Shaw we shall allow the Crown appeal against the sentence imposed and we shall quash the sentences which were imposed on each of these two accused. We shall require to continue these cases in order that this court may consider what is the appropriate sentence to impose having regard to the terms of the DVLA print-outs.
VA
