Jamie Andrew MacLean v. Procurator Fiscal, Stornoway [2015] HCJAC 77

Appeal against sentence:- On 24 April 2015, at Stornoway Sheriff Court, the appellant pled guilty on summary complaint to:- (1) a contravention of section 3 of the Road Traffic Act 1988, namely, driving without due care and attention; and (2) a contravention of section 170(3) and (4) of the 1988 Act, namely, failing to report an accident to a police constable or at a police station as soon as reasonably practicable and in any case within 24 hours of the accident. The appellant was fined by the sheriff and in respect of each charge the sheriff considered that six penalty points should be imposed discounted to four in each case on account of the plea of guilty, making a total of eight points. The appellant appealed against the number of penalty points imposed. It was submitted that, having regard to the terms of section 28 of the Road Traffic Offenders Act 1988, the appellant’s licence should only have been endorsed with five penalty points. Section 28(4) provides:- “(4) Where a person is convicted (whether on the same occasion or not) of two or more offences committed on the same occasion and involving obligatory endorsement, the total number of penalty points to be attributed to them is the number or highest number that would be attributed on a conviction of one of them (so that if the convictions are on different occasions the number of penalty points to be attributed to the offences on the later occasion or occasions shall be restricted accordingly)...”. It was submitted that the range of penalty points attributable to a contravention of section 3 of the Road Traffic Act 1988 is three to nine points whereas for a charge of failing to report the range is five to ten points and it was not competent for the sheriff to impose less than five points for that offence as any discount applied could not displace the statutory provisions. The sheriff reported that he considered the offences were sufficiently different and separate in nature for them each to be marked with penalty points (section 28(5)). On behalf of the appellant it was submitted that the section 170 offence was linked to the section 3 offence, indeed the section 170 offence could not arise without the earlier section 3 offence, and it could not be said that the two offences arose out of separate incidents. On behalf of the Crown it was conceded that the sheriff was incorrect to consider that the two offences arose out of separate incidents. Here the court allowed the appeal and quashed the penalty points in relation to the careless driving charge and increased the penalty for the charge of failing to report to five points.