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HIGH COURT OF JUSTICIARY
[2024] HCJ 2
IND/2016-3002
OPINION OF LADY POOLE
in the Petition of
JAMES ROBERT HILTON
Petitioner
______________
Crown: Alan Cameron; Crown Agent
Petitioner: Self representation; N/A
29 August 2024
[1]
The petitioner applied to the High Court for early restoration of his driving licence.
In 2017 he plead guilty to an offence of causing death by dangerous driving under section 1
of the Road Traffic Act 1988 ("RTA"). The court minute recorded the sentence imposed on
him on 19 May 2017 in the High Court as follows:
"imprisonment for a period of 4 years and 2 months, and disqualified from holding
or obtaining a driving licence for a period of 9 years from this date and ordered that
he sit the extended test of competence to drive and ordered endorsement".
[2]
Section 42 of the Road Traffic Offenders Act 1988 (the "1988 Act") governs removal
of disqualification. The court's powers to remove disqualification are limited by
section 42(6). This has the effect that removal of disqualification is not available under
section 42 where disqualification was imposed under section 36(1) of the 1988 Act
2
(disqualification until test is passed). That type of disqualification is subject only to appeal
under section 38(2) of the 1988 Act.
[3]
Part of the sentence to which the petitioner was subject was disqualification imposed
under 36(1), until the extended test of competence to drive was passed. The petitioner's case
fell within section 36(2) of the 1988 Act, because disqualification for a period of 9 years had
been imposed under section 34 of that Act on conviction of an offence under RTA section 1.
It was therefore not competent for the petitioner to seek removal of the part of the sentence
containing the requirement of sitting the extended test of competence to drive, because of
the provisions of section 42(6) of the 1988 Act.
[4]
However, part of the court's sentence was disqualification under section 34 of the
1988 Act (the 9 year period). Section 42(6) does not exclude applications for removal of
disqualifications imposed under section 34 of the 1988 Act. It was therefore competent for
the petitioner to seek removal of his disqualification from holding or obtaining a driving
licence for a period of 9 years from 19 May 2017. This is consistent with the outcome of a
number of previous court decisions (R v Nuttal 1971 RTR 279, HMA v Murray McAllan
19 December 2016, HMA v Allan Duffus 25 January 2017, Grant Andrew Whyte 28 March
2017, HMA v Sandeep Singh 19 December 2022, none of which contain reasons on this point).
[5]
More than half of the 9 year period of disqualification imposed under section 34 of
the 1988 Act had expired. The petitioner was therefore eligible to apply for removal of
disqualification under section 42(3) of that Act. The matters a court must consider in
deciding whether or not to grant the application are set out in section 42(2).
[6]
Looking first at the petitioner's character and conduct, he is 32 years old. He has
only two previous convictions, one for the index offence, and a prior offence of speeding
dealt with by financial penalty. He has no further convictions since the offence. He has
3
completed the restorative justice programme in HM Prison Grampian, which has assisted
him with better decision-making skills and a sense of responsibility. He has served his
time in prison. He has undergone counselling to come to terms with the offence. He is
remorseful for his actions. Within 2 weeks of being released from prison, he obtained
employment in the hospitality industry. He has since moved into recruitment, where he is
doing well. He has moved to Edinburgh for employment opportunities, although his family
lives in the north of Scotland.
[7]
Second, the nature of the offence. The offence was extremely serious and resulted
in the death of an 81 year old man. A lengthy period of disqualification was merited. The
petitioner has benefitted from his case pre-dating the introduction of extension periods
under section 35C of the 1988 Act. However, the petitioner has been disqualified for about
7¼ years of the 9 year period imposed by the court. Even if the remainder of the period
were to be removed, he would still be unable to drive without proper supervision until he
has passed the extended test of competence.
[8]
Finally, having regard to the other circumstances of the case, the court noted that
the petitioner himself suffered serious injuries in the car crash which have given him long
standing health problems of his own. His employer has written a reference which speaks
very highly of him, his strong work ethic, and his proven track record of success. However,
the reference also notes that the petitioner's lack of driving licence has impacted on his
efficiency and ability to capitalise on new business opportunities. It requests the court to
grant his application so he can make further contributions to the company and business
community. In addition to work purposes, the petitioner wishes to drive for family reasons.
He would like to be able to see members of his family in the north of Scotland who do not
4
live on public transport routes more easily, and his partner has current issues with being
able to drive due to an eye condition.
[9]
The court was satisfied, having regard to the character of the petitioner, his conduct
subsequent to the order, the nature of the offence, and all the circumstances of the case, that
it was proper to remove the period of disqualification with effect from 29 August 2024, the
date it granted the application. The court removed the remaining period of the 9 year
disqualification from driving imposed upon the petitioner by the High Court on 19 May
2017.
[10]
The court did not order restoration of the petitioner's driving licence, as he
requested. The court has no powers to make such an order, given the terms of section 42(6).
The petitioner remains subject to having to sit the extended test of competency to drive. The
practical effect of the court's order is that the petitioner may now apply for a provisional
licence and then take the extended test of competency to drive (Wilkinson, Road Traffic
Offences, paragraph 20-106). He remains disqualified from driving without proper
supervision until he has passed that test.
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