APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Hardie Lord Bonomy Lord Wheatley	[2010] HCJAC 91 Appeal No: XJ315/10 OPINION OF THE COURT delivered by LORD HARDIE in BILL OF SUSPENSION by GARRY WHILLANS Complainer; against PROCURATOR FISCAL, EDINBURGH Respondent: _______

Complainer: Brown; Patterson Bell Ltd

Respondent: D Young, Advocate Depute; Crown Agent

29 July 2010

Factual Background

[1] The complainer was charged at the instance of the respondent on a summary complaint containing the following charge:

"On 28^th July 2009 on a road or other public place, namely M9 Edinburgh to Stirling Motorway (Northbound) at Junction 1, Kirkliston, Edinburgh you GARRY WHILLANS did drive a mechanically propelled vehicle, namely motor car registered number ML03 KYY dangerously and did drive across from the centre lane to the slip road without properly signalling, manouvre into the path of Peugeot motorcar, registered number SE53 FYN then driven by Kerry White, care of Lothian and Borders Police, whilst braking heavily, cause said Kerry White to take evasive action resulting in a collision between your vehicle, Peugeot motorcar registered number ML03 KYY (sic) driven by said Kerry White and Foden motor lorry registered number T597 RKS then driven by Andrew Stewart Wilson, care of Lothian and Borders Police;

CONTRARY to the Road Traffic Act 1988, Section 2 as amended."

On 27 October 2009, the complainer signed a written intimation of his intention to plead guilty as libelled and returned it to the court prior to the pleading diet on 20 November 2009. On that date, his plea of guilty was recorded but the court deferred sentence until 4 December 2009 for the personal appearance of the complainer in respect that he was liable to be disqualified from driving. The decision of the court was intimated to the complainer by a letter dated 20 November 2009 from a Sheriff Clerk Depute in the following terms:

"I refer to your letter in which you pled guilty and can confirm that you were dealt with as follows:

The case was continued until 4 December 2009 at 10:00AM for the following reasons: for the personal appearance of the accused in respect that the accused is liable to be disqualified from driving.

Failure to appear may result in a warrant being granted for your apprehension."

[2] On 4 December 2009, the complainer was represented by a solicitor in circumstances narrated below. In his report, the Sheriff stated that the circumstances of the offence, as narrated to the court, were that at approximately 1640 hours on 28 July 2009, on the M9 Edinburgh to Stirling Motorway (Northbound) near Junction 1, Kirkliston, Edinburgh the complainer had driven from the centre lane across to the slip road without properly signalling and, whilst braking heavily, had manoeuvred into the path of a car driven by Kerry White (accompanied by her partner and two children) who had been obliged to take evasive action. A collision had ensued between the complainer's vehicle (which had driven into the rear of the motorcar driven by Kerry White) and a Foden motor lorry then being driven by Andrew Stewart Wilson in the course of his employment. Although no one was injured as a result of the collision, there was extensive damage to the complainer's motorcar and the rear of the motorcar driven by Kerry White. When interviewed by police officers, the complainer had given them an account which corresponded with the wording of the charge in the complaint. Having heard a plea in mitigation on behalf of the complainer, the Sheriff imposed a fine of £660, discounted from £1,000 to reflect the plea of guilty, and disqualified the complainer from holding and obtaining a driving licence for a period of one year and thereafter until he had passed the extended driving test.

[3] In the Bill of Suspension, the complainer avers that on 4 December 2009 when he attended at Edinburgh Sheriff Court for 10am, he remained unrepresented. He was directed to the appropriate courtroom and sat outside until about noon when the court police officer told him to sit inside. He was the last person left on the public benches and a solicitor approached him and asked to speak to him outside the court. He did so. The solicitor asked him if he needed help and if he knew what was going on. He told the solicitor that he did not know what was going on and the solicitor asked to see the complaint. He asked the complainer what had happened and obtained details about his financial circumstances. The complainer signed a form at the request of the solicitor. The complainer had only explained briefly what had happened when the case was called. He had not been advised that disqualification would result. Following the imposition of the penalty, the solicitor told the complainer that was all that could have been done and the complainer later received a letter from the solicitor confirming the outcome of the case.

[4] Subsequently, the complainer sought separate legal advice "as he was shocked at the outcome of the case." In the Bill of Suspension, the following averments are made on his behalf:

"Following the incident giving rise to the charge, the police had arrived on the scene. Prior to their arrival the lorry driver had indicated that it would be his fault as he had driven into the back of the other car. When the police arrived they spoke to the driver of the lorry and then the occupants of the other car. Lastly they spoke to the complainer and his two passengers. He is a jockey and was travelling with his friends to an evening race session at Perth. The complainer was told that all witnesses said he was at fault so he admitted he must have been. The police officers indicated to the complainer that if he was prepared to go on a course for young people involved in such accidents that would be the end of the matter. If not, he would receive three penalty points and a fine. The complainer was to telephone the officer after 2pm the following day to discuss the course."

The complainer alleges that he forgot to telephone the officer because of work commitments. When he received the summary complaint several months later, he still believed that he would simply receive a fine and three penalty points and therefore completed the form pleading guilty. He had no idea that disqualification was inevitable, nor did he understand the gravity of the charge. When he received the letter requesting him to attend personally on 4 December 2009 and advising him that he was "liable to disqualification", he still remained of the view that points would be put on his licence in accordance with the views expressed by the police officer. The complainer maintains that he is not guilty of the charge of dangerous driving and that he tendered a plea of guilty in error and without the benefit of legal advice. In these circumstances, the complainer seeks suspension of the conviction and sentence following thereon.

Submissions on behalf of the Complainer

[5] Counsel for the complainer invited us to pass the Bill. Essentially, he relied upon the foregoing narrative from which he invited us to conclude that the complainer did not understand the charge to which he was pleading guilty and that he had only been properly advised about that matter when he sought legal advice after the sentence had been imposed. Counsel relied upon Frost v McGlennan 1998 SCCR 573 as an analogous case in which an accused had tendered a plea of guilty in error to a charge of driving dangerously by driving at excessive speed and failing to slow down at a pedestrian crossing. In that case the accused erroneously thought that he was charged only with speeding and was tendering a written plea of guilty to that offence. The court passed the Bill of Suspension and suspended the conviction and sentence that had followed the erroneous plea of guilty.

Submissions on behalf of the Respondent

[6] In response, the Advocate Depute relied upon the unequivocal terms of the charge and of the letter sent to him by the Sheriff Clerk Depute. Moreover, the complainer had the benefit of legal representation when he appeared for sentence. The Advocate Depute invited us to refuse to suspend the conviction and sentence.

Discussion

[7] Although counsel for the complainer relied upon Frost v McGlennan, it might be of some assistance to consider some of the authorities before and after that decision. In MacGregor v MacNeill 1975 JC 57, the court was concerned with a case in which a solicitor tendered a plea of guilty on behalf of his client in the absence of the client, contrary to instructions to tender a plea of not guilty. The following day the solicitor, in the absence of any objection by the Procurator Fiscal Depute, persuaded the Sheriff to recall the sentence and to allow the plea of guilty to be withdrawn and substituted by a plea of not guilty. In due course, a trial took place following which the court found the accused not guilty of the charge. The Crown appealed by Stated Case against the acquittal but abandoned the appeal because the proceedings before the Sheriff as a result of which the conviction and sentence was quashed by him were incompetent. In the Bill of Suspension subsequently brought by the complainer to quash the conviction and sentence following upon the erroneous guilty plea, the Crown did not dispute that the plea of guilty had been tendered in error. In these circumstances, the court passed the Bill and quashed the proceedings during which the plea of guilty had been tendered. In his Opinion, Lord Justice Clerk Wheatley referred with approval to Spowart v Burr (1895) 1 Adam 539. In particular, he quoted with approval the views of Lord Adam who had "made it clear that a bill of suspension would not be entertained in the ordinary case where the panel has pleaded guilty, and after sentence wishes to go back on his plea". The Lord Justice Clerk also observed:

"In the same case Lord McLaren said this at p.546:

'But in the present case the statement for the complainer really amounts to nothing more than this, that the record of his plea is untrue. He says that he never gave such a plea. If inquiry were allowed on a mere circumstantial statement of this kind, I do not see how it could be refused in any case where the accused came forward and said that he had not in fact tendered the plea which the record bears that he had tendered. Where relief is asked on the ground that there has been an error in the proceedings, or some mistake on the part of the judge, there must be clear averments as to how the error or mistake originated, and unless upon such averments, inquiry cannot be allowed.'"

Thus at least as early as 1895 the court was unwilling to permit convictions to be set aside where a plea of guilty had been tendered, unless there were very exceptional circumstances. In MacGregor v MacNeill, the Lord Justice Clerk recognised that the mistake was not due to anything done by the judge or prosecutor but nevertheless considered that the court could intervene if the circumstances disclosed that an injustice had resulted to an accused person. Thereafter he observed:

"I would like to point out, however, that there were very special circumstances here present, that a very full explanation has been given to the court, and that the explanation has been fully accepted by the Crown. I would not like it to be thought that this decision can be regarded as a precedent which would allow any claim that a wrong plea had been tendered automatically to result in proceedings being quashed. Each case will depend on its own circumstances, and very special circumstances will be required to justify the remedy which the complainer seeks in this case".

In the present case, we note that it is suggested in the Bill of Suspension that after the complainer was asked to confirm his plea, he then heard a brief plea in mitigation advanced on his behalf. He further avers that "this was disputed by the Crown who suggested that the case was more significant than had been suggested by the solicitor". The Sheriff in his report has stated that he had no note of such an event taking place and there was nothing in his notes to suggest that any such dispute took place. Nor did he have any recollection of any dispute about the circumstances which were the subject of submissions to him.

[8] In Healy v HMA 1990 SCCR 110 the appellant appealed against conviction in circumstances where she had tendered a plea of guilty at a diet in terms of section 102 of the Criminal Procedure (Scotland) Act 1975 (the predecessor of section 76 of the 1995 Act). In refusing the appeal, the Lord Justice Clerk (Ross) endorsed the approach adopted by the Advocate Depute in that case and observed:

"The appeal on the merits is resisted by the Crown and the advocate depute has stressed that before the court would allow a plea of guilty tendered in this way to be withdrawn, the court would require to be satisfied that there were exceptional circumstances justifying such a course. As the advocate depute put it, it would have to be shown that the pleas had been tendered under some real error or misconception or in circumstances which were clearly prejudicial to the appellant. We are satisfied that that is the approach which must be made because it is a recognised principle of the law that there must be some finality in litigation and it would not be in the interests of justice if individuals after they had been sentenced were permitted lightly or easily to withdraw pleas of guilty which had been tendered by merely asserting that on their part there had never been any real willingness to make the plea."

Thus prior to 1998, there was clear authority that a conviction would not be set aside where a plea of guilty had been tendered unless there were truly exceptional circumstances or where there had been a genuine error or misconception prior to the plea being tendered.

[9] Against that background, Frost v McGlennan was decided and we note that Healy v HMA was cited to the court. As we have observed, the accused in that case was charged with driving dangerously by driving "at excessive speed, namely at speeds in excess of 70mph in a 30mph zone, and did drive through a pedestrian crossing without slowing down." The accused pled guilty by signing the form that accompanied the complaint. He had not sought legal advice prior to doing so. Following the plea of guilty being recorded, a letter in similar terms to the letter in the present case was sent to the accused. Following upon its receipt, he consulted a solicitor who advised him that, contrary to his belief, the charge was one of dangerous driving, not speeding. He instructed his solicitor to seek to withdraw the plea of guilty which he had tendered under material error. At the continued diet, the solicitor acting for the accused sought to withdraw the plea of guilty but the Sheriff refused to allow it to be withdrawn and proceeded to sentence the accused. It is clear that the court in its Opinion delivered by the Lord Justice General (Rodger) did not intend to alter the settled law as enunciated by Lord Justice Clerk Ross in Healy v HMA (Op. cit.). Rather in passing the Bill, the court relied upon a passage in the Sheriff's report from which the court inferred that the Sheriff would not have permitted the accused to withdraw the plea of guilty even if he had concluded that the complainer had failed to appreciate that the charge was one of dangerous driving rather than speeding. While the court may have taken a generous view of the circumstances in that case, it is understandable how it reached its conclusion because the specification of the charge essentially involved driving at excessive speed. In contrast, in the present case the specification involved driving across a motorway from the centre lane to a slip road without signalling, manoeuvring into the path of another motorcar whilst breaking heavily and causing a collision between his vehicle, the other motorcar and a lorry. The specification in the charge was indicative of seriously bad driving. Moreover, the charge alleged that the complainer drove dangerously in the manner specified. Thus there could have been no doubt in the mind of the complainer that he was tendering a plea of guilty to driving in that manner, whereas in Frost v McGlennan the reference to driving at an excessive speed had apparently confused the accused into believing that he was simply charged with speeding.

[10] In subsequent cases, the court has affirmed the need for exceptional circumstances before a plea of guilty may be withdrawn. In Reedie v HMA 2005 SCCR 407, the Lord Justice Clerk (Gill) observed at paragraph 11:

"A plea of guilty constitutes a full admission of the libel in all its particulars (Healy v HM Advocate). It is not a conditional admission that is subject to reconsideration in the light of a subsequent decision of the court (Dirom v Howdle 1995 SCCR 368), nor, in our view, in the light of a subsequent verdict in the trial of another party on the same charge. In view of the conclusive nature of such a plea it can be withdrawn only in exceptional circumstances (Dirom v Howdle) for example, where it is tendered by mistake (MacGregor v MacNeill) or without the authority of the accused."

The terms of the complaint in this case were clear. By his plea of guilty the complainer was admitting the libel in all its particulars. He does not suggest that he made any error in that regard. Rather the Bill is based upon the assertion that a police officer told him that there would be no proceedings if he went on a course for young drivers who had been involved in such accidents If not, he would be fined and receive three penalty points. While we have difficulty in accepting that assertion, we shall proceed on the basis that it is true. Even on that basis, there is no justification for our passing the Bill. As the Lord Justice Clerk observed in his Opinion in Gallagher v HMA [2010] HCJAC 46:

"In view of the conclusive nature of a plea of guilty, the court will allow it to be withdrawn only in exceptional circumstances. The court will not entertain an appeal of this kind if it is prompted only by the fact that the sentence imposed was greater than the appellant had been led to expect." (Para. [15])

The last sentence of that quotation encompasses the situation in the present case, taking the complainer's account at its highest.

[11] In all the circumstances we shall refuse to pass the Bill.