Duncan Stewart v. Her Majesty’s Advocate [2017] HCJAC 90

Note of appeal against conviction following a reference from the SCCRC:- On 19 December 2012, at the sheriff court, the appellant pled guilty to a charge of driving a mechanically propelled vehicle and causing the death of a motor cyclist whilst the appellant was disqualified and uninsured contrary to section 3ZB of the Road Traffic Act 1988. The date of the offence was 8 May 2012. The appellant had been disqualified for 15 months in March 2011 and by the date of the current incident he had applied for his licence to be returned and he would have been entitled to drive from 3 June 2012. The circumstances of the ‘offence’ were that the motor cyclist had pulled out to overtake a van and went straight into the path of the appellant’s vehicle.  There was no aspect of the appellant’s driving that contributed to the deceased’s death and he could do nothing to prevent the accident. When the plea was tendered it was on the basis that had the appellant not been driving when, on account of the absence of a valid licence or certificate of insurance he should not, the accident would not have happened. The appellant had received that advice from his solicitor, namely, that he was deemed to have caused the death and the charge amounted to one of strict liability. Here the case was referred to the court by the Scottish Criminal Cases Review Commission on the basis that contrary to that advice, the basis of the plea and the basis upon which the sheriff sentenced the appellant, causation is applicable in relation to section 3ZB and a finding of guilt is not automatic in such circumstances when a vehicle is involved in a fatal accident. As a result of a case which was subsequently decided by the United Kingdom Supreme Court (R v Hughes [2013] UKSC 56) there had been a change in the interpretation of the applicable law resulting in the basis upon which the plea had been tendered being wrong in law. In Hughes at paragraph 28 the Supreme Court concluded:- “.. 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 in referring the case referred to McLean v HMA 2011 SCCR 507 where the appellant sought to withdraw a plea of guilty tendered on the basis that an incriminating comments made by him had been made without benefit of legal advice. McLean’s appeal was refused on the basis that the law had changed, however, the SCCRC sought to distinguish the present case on the basis that Hughes did not change the law but, rather, clarified what the law had always been. On behalf of the appellant it was submitted that Hughes was correctly decided on the issue of the statutory interpretation and there was no good reason for differentiating between cases on either side of the border. The Crown did not resist the appeal and stated that whilst it was only in exceptional circumstances that a conviction resulting from a plea of guilty could be set aside, this was such a case. Here the court allowed the appeal and set aside the conviction. The court considered that this was an exceptional case that allowed a conviction following from a guilty plea, tendered on legal advice, to be set aside. The court noted that the decision in Hughes, months after the plea was tendered in the present case, made clear that the plea had been tendered under substantial error or misconception for which the appellant was not responsible. The court observed that the McLean case, which followed the decision in Cadder v HMA [2010] UKSC 43, changed the law of evidence rather than the substantive law. The court stated that whilst Hughes was not binding on the court there was no justifiable reason for taking a different approach in Scotland.