Appeal allowed where guilty plea based on shared error of law
A motorist's conviction for causing death while driving uninsured has been overturned on appeal, despite his having pleaded guilty to the charge, where the case was conducted on a shared view of the law that was subsequently overturned by the UK Supreme Court.
The Criminal Appeal Court allowed an appeal by Duncan Stewart, which followed a reference by the Scottish Criminal Cases Review Commission, against his conviction under s 3ZB of the Road Traffic Act 1988 by causing the death of a motorcyclist at a time when he was driving while disqualified and uninsured.
The appellant had been disqualified for 15 months in March 2011 and would have been entitled to drive again from 3 June 2012. On 8 May 2012 he was driving when an oncoming motorcyclist pulled out to overtake and collided with his vehicle. There was no question but that the motorcyclist was solely to blame for the accident. The appellant had applied for the return of his licence and had already arranged insurance, which was vitiated by his still being disqualified. He pleased guilty, on legal advice, on the basis that had he not been driving when he should not have, the accident could not have happened: the charge was effectively a strict liability one.
Some months later that view of the law, which was based on Scottish and English case law was overturned by the UK Supreme Court in R v Hughes [2013] UKSC 56, which held that someone charged with the offence under s 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": something in the manner of their driving was required as well.
The SCCRC noted that McLean v HM Advocate (2011) held that there was no practice in Scotland under which an accused person, "having tendered a plea of guilty following a judicial ruling, can have his conviction set aside if that ruling is subsequently overturned", but considered that the present case could be distinguished on the basis that Hughes had clarified rather than changed the law.
Lord Justice Clerk Lady Dorrian, Lord Menzies and Lord Drummond Young agreed; the Crown too accepted that exceptional circumstances existed. "At the time when the present appellant tendered his plea... the law was in fact in a state of flux", Lady Dorrian stated in delivering the opinion of the court. Parties in the present case, and the sheriff, had been unaware that the Court of Appeal in England, in the Hughes case, had questioned the earlier authority, while holding itself bound by it, and certified the case for appeal.
"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", she concluded.
She also noted that after investigation the Crown had identified seven cases where a prosecution had already taken place that might be affected by the decision in Hughes.