Motorist given eight penalty points on licence for ‘tailgating’ offence loses appeal against ‘excessive’ sentence

The Sheriff Appeal Court refused the appeal after ruling that the sheriff imposed a “generously discounted penalty” by deciding not to disqualify the appellant after he pled guilty to careless driving.

Sheriff Principal Mhairi Stephen QC and Sheriff Paul Arthurson QC heard that Mark McInally was charged by the Procurator Fiscal, Edinburgh on summary complaint with a contravention of section 2 of the Road Traffic Act 1988, namely “dangerous driving”.

But at the trial diet the prosecutor accepted the appellant’s plea of guilty to a reduced charge of a contravention of section 3 of the 1988 Act, namely “driving without due care and attention” on 3 December 2014 on the M90 near Echline Junction.

The points range for such an offence is three to nine penalty points and the court may order disqualification, but the sheriff imposed eight penalty points and a fine of £225.

The sheriff described the appellant’s driving as “ridiculous” and said that “tailgating” - following the vehicle in front at only two or three metres on a motorway - might lead to a “serious accident” on a high speed road.

However, in the note of appeal it was submitted that the sheriff erred in his assessment of the appellant’s driving and that the sheriff was wrong to describe the appellant’s driving as “verging on dangerous driving”.

Further, it was argued that the sheriff, having considered the nature of the driving and the penalties open to him, erred in not discounting the imposition of eight penalty points.

Counsel for the appellant submitted that in the absence of other aggravating factors such as undertaking or changing lanes, the appellant’s driving on the morning in question involved him travelling at the same speed as other vehicles on the motorway, albeit close to the vehicle in front.

It was argued that this was at the “lower end” of the range of careless driving and did not merit a starting point or headline sentence of eight penalty points, which counsel described as “manifestly excessive”.

But the appeal sheriffs disagreed with the arguments advanced and considered that the appeal should be refused, having regard not only to the facts on which the sheriff sentenced but also on sentencing and discount principles.

Delivering the opinion of the court, Sheriff Principal Stephen said: “The course of driving by the appellant on the day in question in December 2014 has properly been described by the sheriff as ‘tailgating’ – driving some two to three metres from the car in front at motorway speed. To drive in this manner is not momentary inattention or distraction but instead any driver who drives in this manner deliberately courts danger.

“The degree of culpability is high. There is a clear likelihood that a serious collision may occur with the associated risk that injury and damage is caused. The sheriff was fully justified in categorising this type of driving as being at the upper end of careless driving.

“To drive so close to the vehicle in front gives little or no chance of being able to stop without causing a collision. This is aggressive and irresponsible driving.

“The sheriff was correct to consider disqualification. We are of the view that the court is entitled to impose a period of disqualification for this type of aggressive driving.

“Having categorised the appellant’s driving to be at the very top end of the careless scale we consider that the sentence imposed of eight penalty points and a modest fine was lenient.”

On the matter of discount, she added: “The question for the Appeal Court is whether the sentence imposed by the sheriff constitutes a miscarriage of justice. For the reasons we have already given we agree with the sheriff’s assessment of the offence and we adopt the principle that it is only in exceptional cases that this court will interfere with a discretionary decision on discount for which the sentencing sheriff has given cogent reasons.

“Indeed, we consider that a period of disqualification is justified on the facts of this case. Arguably, the sheriff has afforded the appellant a generously discounted penalty by firstly declining to disqualify and then, by restricting the penalty points imposed for reasons which unduly favour the appellant.”