A motorist who acted on legal advice and pled guilty to causing the death of a motorcyclist by driving while disqualified and uninsured has successfully appealed against his conviction.
The Appeal Court of the High Court of Justiciary allowed the appeal, which followed a reference by the Scottish Criminal Cases Review Commission (SCCRC), after ruling that this was an “exceptional case” in which the appellant’s lawyer, the procurator fiscal and the sheriff all proceeded upon an “erroneous understanding” of the relevant law.
The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Drummond Young, heard that the appellant Duncan Stewart pled guilty in December 2012 to a charge under section 3ZB of the Road Traffic Act 1988.
There was never any doubt that the accident, and thus the death, had been caused by the motor cyclist himself, who had pulled out to overtake a van, straight into the path of the appellant’s vehicle.
The actual driving of the appellant had not in any way contributed to the death, and indeed it was recognised that he had done all he could to prevent the accident.
It was clear from the transcript of the hearing at which the plea was tendered, from the terms of the plea in mitigation and from the sheriff’s sentencing remarks, that the basis upon which the plea had been tendered was that had the appellant not been driving when he should not, the accident could not have happened.
His solicitor had advised him that in these circumstances he was “deemed to have caused the death” and should plead guilty – the charge was effectively a “strict liability” one.
However, the case was referred to the court by the SCCRC on the basis that, contrary to the advice tendered to the appellant, and contrary to the basis upon which all had proceeded at the time of the plea, section 3ZB imports the concept of causation, and it was not the case that an individual was deemed to be guilty under the section whenever his vehicle was involved in a fatal accident.
The law had been clarified, some months after the plea had been tendered, by the UK Supreme Court in R v Hughes  UKSC 56, in which it was held that “.. in order to give effect to the expression ‘causes … death … by driving’ a defendant charged with the offence under section 3ZB must be shown to have done something other than simply putting his vehicle on the road so that it is there to be struck. It must be proved that there was something which he did or omitted to do by way of driving it which contributed in a more than minimal way to the death”.
The SCCRC noted that, while a plea of guilty could be withdrawn only in “exceptional circumstances”, this was such a case and could be distinguished from McLean v HMA 2011 SCCR 507, in which an appeal to withdraw a guilty plea tendered without the benefit of legal advice was refused on the basis that tendered a plea of guilty following a judicial ruling, can have his conviction set aside if that ruling is subsequently overturned”.
In Hughes there had been a clear change in the interpretation of the law, with the result that the basis upon which the plea had been tendered was “wrong in law”.
Counsel for the appellant, Fred Macintosh, adopted the commission’s reasoning and pointed out that in England and Wales a number of appeals had succeeded on the same basis following the UK Supreme Court judgment in Hughes, adding that there was no good reason for the law to be interpreted differently on either side of the border.
The advocate depute Iain McSporran QC advised the court that the Crown did not resist the appeal and conceded that this was a case in which there were exceptional circumstances, such that the conviction proceeding on a plea of guilty could be set aside.
The appellant’s driving had been “blameless” and he had been “incorrectly advised” that the offence was one of strict liability.
At the time the appellant tendered his plea the law was in a state of “flux”, but in deciding whether to prosecute cases under section 3ZB the Crown will now have regard to UKSC decision in Hughes.
The advocate depute also said that had the appellant’s case arisen after that decision he would not have been prosecuted.
‘Miscarriage of justice’
Delivering the opinion of the court, the Lord Justice Clerk said: “We are satisfied that this is an exceptional case in which the conviction should be set aside as constituting a miscarriage of justice, notwithstanding that it proceeded on the basis of a plea tendered on legal advice. We agree with the commission and counsel for the appellant that on the face of it the case of McLean is quite different and can be distinguished.
“In that case, when the appellant tendered his plea of guilty he was under no misapprehension as to the substantive law which applied, or whether the facts as admitted by him would constitute the offence to which his plea related…The situation in the present case, where the appellant’s solicitor, the procurator fiscal and the sheriff all proceeded upon an erroneous understanding of the substantive law is very different indeed.
“This court is not bound by the decision in Hughes, even though it relates to a UK statute. However, it is a decision to which high regard should be paid. It seems clear from para 22 of the judgment that the case did not turn in any way on that aspect of causation in criminal law upon which the law in the two jurisdictions is somewhat divergent. On the resulting question which was addressed by the court, namely whether the appellant’s driving was a cause of the death, we see no reason why a different approach should be taken in this jurisdiction.
“It is quite clear that the circumstances of the driving in the present case would not constitute an offence under section 3ZB on the law as explained in Hughes.”
Lady Dorrian added: “We are satisfied that this was a case in which the plea was tendered under substantial error or misconception for which the appellant was not responsible, and that the appeal must succeed.”