APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Mackay of Drumadoon Lord Bonomy	[2012] HCJAC 42 OPINION OF THE COURT Delivered by LORD BONOMY In NOTE OF APPEAL AGAINST SENTENCE by ALAN HUNTER Appellant; against PROCURATOR FISCAL, KILMARNOCK Respondent: _______

Appellant: Paterson, Solicitor Advocate; Paterson Bell (for Allan Kerr, Irvine)

Respondent: Small, AD; Crown Agent

22 March 2012

[1] When this case first called on 7 September 2011 the appellant pled guilty to a charge that on 8 June 2011 he drove a van on the A71 road without insurance in contravention of section 143 of the Road Traffic Act 1988. Consideration of the question of sentence was adjourned until 27 October 2011 for a hearing at which the appellant sought to establish that there were special reasons why his licence ought not to be endorsed with penalty points. On the morning of the hearing the appellant's agent and the procurator fiscal depute entered into a joint minute in which they agreed all the relevant evidence, thus avoiding the need to call any oral evidence.

[2] The introductory paragraph of the joint minute stated that solicitor and fiscal depute had agreed "the following facts, without the need for proof, as being proven in law". The minute then narrated the facts as follows:

"(1) Motor vehicle SA 52 KYB is a van which commonly belongs to the Hunter family and is kept at 32 Hockhill Drive, Stevenston.

(2) There is a comprehensive motor insurance policy pertaining to said motor vehicle, on which Mr Alan Hunter Senior, the aforementioned accused's father, is a named driver. The policy is held in the name of Mr James Hunter, the accused's uncle. The policy was in date and valid at the time of the offence.

(3) There is a comprehensive motor insurance policy pertaining to motor car registration number A 14 NOH upon which the accused is a named driver. The policy was in date and valid at the time of the offence.

(4) On the date in question - 8 June 2011 - the accused's motorcycle had broken down. The accused attempted to contact Mr James Hunter to ascertain if he was insured to drive the first-mentioned motor vehicle in order to collect said motorcycle.

(5) Mr James Hunter was unavailable and consequently the said accused telephoned his father, said Alan Hunter Senior, as de facto an owner of said van.

(6) The said accused specifically asked Mr Alan Hunter Senior if he was insured to drive said motor vehicle SA 52 KYB and he received an affirmative answer.

(7) Said accused had no reason to disbelieve Mr Alan Hunter Senior.

(8) Said accused thereafter proceeded, in the honest and genuine belief, to drive the aforementioned motor van to collect his motorcycle.

(9) There is no reason to say that the accused failed to take the necessary steps to ascertain whether he was insured or not."

[3] The procurator fiscal depute appears to have taken an entirely neutral stance and made no submissions to counter those made by the appellant's agent to the effect that these facts established special reasons for not endorsing the licence. The appellant's agent invited the presiding justices to hold on the strength of that evidence, particularly the evidence that the appellant had driven in the honest and genuine belief that there was insurance cover, that special reasons from refraining from endorsing the licence with penalty points had been made out. He drew attention to the similarity between the circumstances of the present case and those of Marshall v McLeod 1998 SCCR 317 in which it was held that, where the owner gave an affirmative answer to the question whether the driver was covered by insurance and the driver had no reason to disbelieve him, there was no reason why the driver should have taken any further steps to check the position.

[4] It is plain from their report to this court that the justices embarked upon a painstaking analysis of the language of the joint minute apparently because they felt that in this situation oral evidence, which could have been further explored and challenged, including by them, should have been led. That analysis extended to exploring the meaning of "affirmative answer", a plain English phrase in daily use referred to in Marshall v McLeod, and then criticising the appellant's agent for entering into areas of evidence when answering the queries she faced from the bench. The reference to "de facto" ownership was described in the report as confusing, and statement 7 was said to be one on which the justices could place no reliance due to its vagueness.

[5] Finally the justices were critical of statement 8. While it is undoubtedly true that paragraph 8 could have been written in more precise terms, there was no real doubt about what was meant and had in fact been agreed. The justices' approach to the joint minute can best be summed up by quoting from their report the passage that deals with that paragraph in which they said:

"In statement 8 we are once more stifled by the lack of completeness and precision in it's (sic) drafting. What is or was the belief being referred to? We do not know and the defence have chosen not to lead evidence so we are denied clarification. One might assume it is the belief that the accused was insured to drive the said van? Perhaps, but this is not what the admission states and once more we are left assuming because we are presented with an incomplete and imprecise joint minute, rather than witnesses".

[6] It is appropriate that we should remind the justices of the purpose, status and significance of a joint minute of agreement of evidence in criminal proceedings. It is incumbent upon court practitioners, wherever possible, to avoid the unnecessary attendance of witnesses and the unnecessary use of valuable court time to address matters of fact which are not in dispute. Indeed in relation to trial proceedings, solemn and summary, a positive duty to seek agreement of evidence is imposed on both prosecutor and agent for the accused by section 257 of the Criminal Procedure (Scotland) Act 1995 ("1995 Act"). Where evidence is agreed and presented in the form of a joint minute, whether for consideration by a jury or by a panel of justices or a single judge, the facts set out in the joint minute are "deemed to have been duly proved" (section 256(3) of the 1995 Act). They must be taken into account by the adjudicating body in the course of its deliberations.

[7] Viewed in that way the joint minute of agreement in this case can be seen to state in plain and simple English the relationship between various members of the appellant's family and the two motor vehicles in question, the insurance position of the appellant's father, the non-availability of the appellant's uncle, the question the appellant asked his father and the straightforward simple answer he received, and then the three crucial statements that the appellant had no reason to disbelieve his father, that he drove in the honest and genuine belief that he was covered and that there was no reason to say that he had failed to take the necessary steps to ascertain whether he was insured or not. Standing the assent of the Crown to these statements of fact, it was in our opinion not open to the justices to conclude, as they did, that the enquiries made by the appellant were inadequate. It was for the justices to proceed upon the plain English meaning of the statements of fact before them. It was not open to them to distort the clear import of the facts presented to them to avoid arriving at the conclusion that was inevitable on those facts, that special reasons for not endorsing the appellant's licence with penalty points were made out.

[8] For these various reasons we allowed this appeal, found that there were special reasons for not imposing penalty points and not endorsing the appellant's licence, and quashed the order of the justices imposing six penalty points and ordering endorsement of the driving licence.