STEWART, APPEAL AGAINST CONVICTION FOLLOWING A REFERENCE FROM THE SCCRC BY AGAINST HER MAJESTY'S ADVOCATE [2017] ScotHC HCJAC

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> STEWART, APPEAL AGAINST CONVICTION FOLLOWING A REFERENCE FROM THE SCCRC BY AGAINST HER MAJESTY'S ADVOCATE [2017] ScotHC HCJAC_90 (06 December 2017) URL: http://www.bailii.org/scot/cases/ScotHC/2017/[2017]_HCJAC_90.html Cite as: [2017] HCJAC 90, 2018 JC 102, 2019 SCCR 4, 2018 SLT 25, [2017] ScotHC HCJAC_90, 2018 GWD 1-8

[1] On 19 December 2012, the appellant tendered a plea of guilty to a charge under

section 3ZB of the Road Traffic Act 1988 that on 8 May 2012 he did, by driving a

mechanically propelled vehicle, cause the death of a motor cyclist, the circumstances being

“A person is guilty of an offence under this section if he causes the death of another

person by driving a motor vehicle on a road and, at the time when he is driving, the

(a) section 87(1) of this Act (driving otherwise than in accordance with a licence), or

[2] The appellant had been disqualified for 15 months in March 2011. At the time of the

incident he had applied for return of his licence and would have been entitled to drive from

3 June 2012. He had approached insurers specialising in disqualified drivers and had

obtained cover at an enhanced premium. The cover was vitiated by the fact that he had not

[3] There was never any doubt that in the traditional understanding of the word 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. This was the

conclusion of the police investigation. 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 is 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.

“the circumstances of the accident have been fully explained to the court and I do

accept that there was nothing that could be said to be at fault with your driving as

such but, of course, you were disqualified, and indeed, because of that also lacking in

insurance and, as has been pointed out, you had no right to be on the road at all, and

in that sense, your presence was the cause of the death of the motor cyclist..”

[5] The appellant’s case has been referred to the court by the Scottish Criminal Cases

Review Commission 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 by the United Kingdom Supreme Court in R v Hughes [2013] UKSC 56,

some months after the plea had been tendered. The Commission considered that, whilst a

plea of guilty could be withdrawn only in exceptional circumstances (Healy v HMA 1990

SCCR 110; Reedie v HMA 2005 SCCR 4007), such circumstances existed in the present case.

In R v 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.

[6] In R v Williams [2011) 1 WLR 588 the judge’s direction to the jury that fault in the

manner of driving was not an element in the offence was upheld on appeal. In an offence

under section 3ZB, fault was not required and it was the mere act of driving which was

important. If that made a contribution to the result which was more than negligible or

minute, it constituted a “cause”. The court recognised that there had been considerable

criticism of the offence, on the basis, for example, that an individual who was stationery at

traffic lights would nevertheless be guilty of causing the death of a driver who ran into the

back of him and died. The Commission considered that a similar approach to that taken in

Williams was adopted in Rai v HMA 2012 SCCR 591 where the court noted:

“The offence created by section 3ZB of the 1988 Act has been the subject of some

formidable criticism – compare R v Williams at paragraphs 15-17, since it is sufficient

for its commission that there is a factual causal link between the driver being

unlawfully on the road and the fatality, the nature and quality of the driving being

[7] In Hughes, the UKSC addressed the question whether Parliament had used language

which had the far-reaching effects suggested in Williams, and concluded that it had not. The

“.. 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.”

[8] The Commission referred to McLean v HMA 2011 SCCR 507 in which, following the

decision in Cadder v HMA [2010] UKSC 43, an appellant sought to withdraw a plea of guilty

tendered on the basis that an incriminating statement made by him had been made without

benefit of legal advice. His appeal was refused on the basis (para 5) that:

“there is no practice in this jurisdiction under which an accused person, having

tendered a plea of guilty following a judicial ruling, can have his conviction set aside

[9] The Commission considered that the present case can be distinguished from McLean:

R v Hughes did not change the law, it merely clarified what the law had always been.

[10] Counsel for the appellant adopted the Commission’s reasoning. In England & Wales

a number of appeals had succeeded on the same basis, including R v McGuffog [2015] RTR 34

and R v Uthayakumar & Clayton [2014] EWCA Crim 123. In the latter case, the court noted

“The judgment of the Supreme Court in Hughes is clear. The use of the phrase

‘causing death by driving’ in section 3ZB, taken in context, means the Crown must

prove ‘something open to proper criticism in the driving of the defendant, beyond

the mere presence of the vehicle on the road, and which contributed in some more

than minimal way to the death’ (see paragraph 33). Section 3ZB requires “at least

some act or omission in the control of the car, which involves some element of fault,

whether amounting to careless/inconsiderate driving or not, and which contributes

in some more than minimal way to the death. It is not necessary that such act or

omission be the principal cause of death.’ (see paragraph 36).”

[11] In Rai the issue of whether Williams had been correctly decided was not before the

court. The issue there was whether the driving had in fact caused death. The court did not

[12] There is no good reason for the law to be interpreted differently on either side of the

border. The observations in McLean do not present a bar to the appeal, since in the present

case the effect of the plea was that there was no judicial ruling on the issue. The case of

Hughes involved a relatively straightforward exercise in statutory interpretation, whereas

Cadder had involved reconsideration of long-standing constitutional principles.

[13] The Advocate Depute advised that the Crown did not resist the appeal. The Crown

accepted that there required to be exceptional circumstances before a conviction proceeding

on a plea of guilty could be set aside, but concede that such circumstances existed. The

appellant’s driving had been blameless and he had incorrectly been 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. In the appeal to the Court of Appeal in Hughes, the court had noted further, robust

[14] In deciding whether to prosecute cases under section 3ZB, the Crown will have

regard to the decision of the UKSC in Hughes. Had the appellant’s case arisen after that

decision he would not have been prosecuted, and the Crown view was that the appellant

should not in fact have been prosecuted. The Crown had investigated cases in which a

prosecution had already taken place and were satisfied that only seven cases might be

[15] The Advocate Depute agreed that Rai was not exactly in point. The only issue there

was whether the appellant had caused a death. Further, the factual situation in both

Williams and Rai could be distinguished from the present case. In those cases, the vehicle

driven by the appellant collided with and killed the deceased, in Williams by striking the

vehicle, and in Rai by hitting a pedestrian. If the issue is whether the driving caused death, a

conclusion that it did so would be difficult to argue with. The position here was entirely

different, where the deceased had driven onto the wrong side of the road, and collided with

[16] 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 intervening decision in

Cadder altered neither of these things: it merely changed one aspect of the law of evidence.

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

[17] 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 (R v

Kennedy (No 2) 2007 2 WLR 612; McAngus v HMA 2009 SCCR 238). 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.

[18] In Rai the question whether Williams constituted a correct statement of the law was

not a live one for the court to answer. It seems to have been conceded, at least implicitly, that

it did, but no submissions were made on the matter and the court did not require to make a

(i) that the sheriff failed to make it clear that the jury had to be satisfied that the

deceased had been alive when struck (it being suggested that death might

have occurred when he was run over by a truck after being knocked down by

(ii) whether his directions might have led the jury to think that the mere

fact of driving illegally was sufficient for proof of guilt, without a

requirement for a causal connection of any kind, even a factual one; and

(iii) re-iterating these grounds, that no reasonable jury could have

[19] It is true that the court expressed the view that the Court of Appeal’s decision in

Williams had been correct, but this (para 7) was in connection with a matter other than the

issues raised as grounds of appeal, and, as noted above, in circumstances where there was

no dispute about the matter. The passage is therefore obiter, and in our view Rai does not

amount to a decision of the court (a) that Williams was indeed correct; or (b) which is

binding on us. The passage referred to above, in which the court referred to the criticisms of

section 3ZB referred to in Williams, related to the sentence appeal in Rai and is equally of no

[20] Furthermore, the case can be distinguished on its facts. 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. However, it is by no means clear that the

circumstances of Rai would not have been sufficient for commission of the offence: much

would turn on the extent to which the appellant might have been expected to be aware of

the presence of a pedestrian on the road, and other factors which, for understandable

[21] At the time when the present appellant tendered his plea (19 December 2012), and

indeed even at the time of the decision in Rai (26 October 2011) the law was in fact in a state

of flux. The Court of Appeal had issued its decision in Hughes in November 2010, in which

it had set out at considerable length detail of the academic criticism of Williams, which it

“47 We add only this. It could be said that if Parliament intended that a person

would be invariably guilty of the offence against section 3ZB even though the person

killed was 100% responsible for his death, then Parliament should have made that

clear by using express language. Whether it is in the public interest to prosecute in

these circumstances is a matter for the Director of public Prosecutions.”

[22] On 6 October 2011 the following question was certified for consideration by the

“Is an offence contrary to section 3ZB of the Road Traffic Act 1988, as amended by

section 21(1) of the Road Safety Act 2006, committed by an unlicensed, disqualified

or uninsured driver when the circumstances are that the manner of his or her driving

is faultless and the deceased was (in terms of civil law) 100% responsible for causing

The appellant was not made aware of this, nor was the sheriff. 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.

Scottish High Court of Justiciary Decisons