Motorist who failed to appear for ‘special reasons’ proof loses appeal against penalty points imposed

The complainer, who failed to appear in court on six occasions to argue her case, claimed that the Justice of the Peace had acted “incompetently” in proceeding to sentence the accused in her absence, but the Sheriff Appeal Court refused to pass the Bill of Suspension.

Sheriff Principal Mhairi Stephen QC, sitting with Appeal Sheriff Peter Braid and Appeal Sheriff William Holligan, heard that the complainer Kelly Ferguson was charged with a contravention of section 143 of the Road Traffic Act 1988 by driving in Main Street, Rutherglen on 24 August 2018 without third party insurance.

At the trial diet in the Justice of the Peace Court in Glasgow on 7 March 2019, the complainer pled guilty to the offence, conviction for which carries with it obligatory endorsement with penalty points in the range of six to eight. 

‘Special reasons’ 

On conviction, the solicitor for the complainer raised with the Justice of the Peace the proposition that special reasons existed for non-endorsation and a proof was fixed for 28 March 2019.

But that proof did not take place as the complainer did not attend court because, her agent explained, that she was unwell. 

The complainer then failed to attend a further five subsequent proof diets, for various reasons.

Ultimately, on the date fixed for the sixth proof on 7 August 2019, the Justice of the Peace declined to adjourn the case again to a further diet and proceeded to sentence, endorsing the complainer’s driving licence with the minimum number of penalty points and imposing a fine of £300, which she discounted to £270.

But the solicitor advocate for the complainer made a submission to the effect that the Justice of the Peace acted “incompetently” in dismissing the special reasons proof and proceeding to sentence. 

While it was accepted that there had been “a catalogue of failures” to attend court by the complainer, she was a young woman with health problems which affected her mobility. 

The vehicle she was driving was a mobility vehicle, and it appeared that a monthly direct debit payment covering maintenance and insurance had not been paid, which resulted in her insurance being cancelled. 

It was contended that there was “no basis” upon which the Justice of the Peace could discharge the special reasons proof and hold that there were no special reasons, when the proof could have been adjourned or a warrant issued for the failure of the complainer to attend court.

‘Unreasonable and unrealistic argument’

However, the appeal sheriffs observed that the complainer had been given ample opportunity to attend court to argue her case, and that the justice was entitled to proceed to sentence.

Delivering the opinion of the court, Sheriff Principal Stephen said: “The onus is on the complainer who has been convicted of the offence to bring forward material at proof to satisfy the Justice of the Peace that special reasons exist which would allow the Justice to refrain from endorsing and imposing penalty points. 

“In terms of section 44 of the Road Traffic Offenders Act 1988 the Justice of the Peace is required to endorse unless special reasons exist. 

“The complainer has failed to appear in court to put forward any explanation which might constitute special reasons. No vouching has been provided for the dates when the complainer is said to have been unwell. 

“The Justice of the Peace was not obliged to take any of the steps suggested in the Bill in light of the procedural history of this case. 

“The suggestion that the Justice ought to have issued a warrant for the arrest of the complainer to attend a proof which she had requested is frankly specious. 

“The suggestion that the court should have granted the complainer even further indulgence by fixing another proof is both unreasonable and unrealistic. It discloses a failure to understand that this is summary procedure and the court has finite resources.” 

‘Interests of Justice’

She added: “In our opinion, the interests of justice have been met by the court offering a series of opportunities to the complainer to discharge the onus of satisfying the court as to special reasons. 

“The Justice of the Peace was entitled to proceed to sentence and is correct to observe, as she does, in her report that “In the absence of special reasons being established by the appellant I was obliged to endorse her driving record.” 

Section 144(3)(b) of the Criminal Procedure (Scotland) Act 1995 provides that the court may hear and dispose of the case in the absence of the accused, in certain circumstances.

In Taylor v Lees 1993 SCCR 947 a complainer in a Bill of Suspension who had pleaded guilty by letter argued that the actings of the Justice of the Peace in dealing with sentence in his absence, having ordained him to appear personally, constituted “oppression” and a “miscarriage of justice”.

But the High Court refused to suspend the sentence and held that the justice had a discretion to deal with the complainer who had been given an opportunity to appear or be represented. 

Accordingly, in summary proceedings it does not follow that the court requires an accused to be present for sentencing even if he has been ordained to appear personally, unless the sentence is one of imprisonment or detention.

Declining to pass the Bill, the Sheriff Principal concluded: “The Justice of the Peace heard submissions in mitigation from the complainer’s solicitor and proceeded to impose the minimum number of penalty points and a discounted fine despite the plea being tendered at the trial diet. 

“That being so, and given the number of subsequent failures to appear, diluting still further any utilitarian value in the plea, we are surprised that the fine imposed was discounted at all and that the level of the fine falls below the fixed penalty especially as the complainer has in effect delayed the penal effect of her offending by virtually a year.”