KYLE JOHN SIEGEL AGAINST THE PROCURATOR FISCAL, LERWICK
SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT LERWICK
[2016] SC LER 49
LER 16/49
JUDGMENT OF SHERIFF PHILIP MANN
Determining whether special reasons exists for not endorsing a driving licence
In causa
KYLE JOHN SIEGEL
Pursuer;
Against
THE PROCURATOR FISCAL, LERWICK
Defender:
Lerwick, 20 July 2016
The question in this case is whether or not special reasons exist for not endorsing Mr Siegel’s licence with penalty points for the offence of using a motor vehicle without there being in force a valid policy of insurance to cover that use, in contravention of section 143 of the Road Traffic Act 1988. The vehicle in question was owned by Mr Siegel’s mother, although it was at his disposal and he was the main driver. He entrusted the task of insuring the car for his use to his mother. He was to be responsible for payment of the premium by monthly instalments. The fact is that his mother did arrange insurance cover and there is evidence, which I have no reason to doubt, that she obtained a quote which shows that she intended that Mr Siegel be included on the policy as a named driver. However, for some unexplained reason, when the policy was issued Mr Siegel was not included as a driver. Mr Siegel did not make any specific enquiry of his mother as to whether or not insurance cover had been properly obtained. He did not ask to see the insurance policy.
I was referred to the case of Marshall v McLeod 1988 S.L.T. 1199. In that case the accused had been asked by the owner of the vehicle to drive it to a petrol station. Before doing so, the accused had enquired of the owner as to whether or not he was insured to drive the vehicle. He had received an affirmative response which he had no reason to disbelieve. The court found that special reasons existed because the accused “had taken the necessary steps”. Mr MacKenzie, for the crown, relied on the defence assertion in that case that the policy of insurance was not readily available for inspection whereas in this case it was. He also relied on the fact that in this case, in contradistinction to Marshall v McLeod, Mr Siegel had not made any positive enquiry of his mother.
On a close reading of Marshall v McLeod, it can be seen that the fact that the policy of insurance was not readily available for inspection did not form part of the court’s rationale. Special reasons were established purely and simply because the accused had made the appropriate enquiry and had received an affirmative response which he had no reason to disbelieve. Accordingly, I do not see that case as lending support to the crown case here as contended by Mr MacKenzie.
Each and every case of this kind will depend on its own facts and circumstances and, again, I do not think that it is necessarily fatal to Mr Siegel’s position that he made no specific enquiry. He relied on his mother to arrange the insurance cover. She made arrangements which turned out not to be effective. The question is whether or not Mr Siegel was entitled to rely on his mother making effective arrangements and whether or not he had any reason to disbelieve that effective arrangements had been made. In my view, in the particular circumstances of this case, involving a young man of 18 years of age and his mother, Mr Siegel was entitled to rely on the arrangement that he had made with his mother and in the absence of any intimation by his mother to the contrary he was entitled to assume that the arrangement had proved to be effective. I do not consider that it was necessary for him to make any specific enquiry of his mother or to inspect the policy of insurance before taking to the road. In my view, in the words of Marshall v McLeod, he had done what was necessary.
I appreciate that Mr MacKenzie is fearful that to accept of special reasons in this case is to set a dangerous precedent. In terms of section 44 of the Road Traffic Offenders Act 1988 I must endorse Mr Siegel’s licence unless for special reason I think fit not to do so. The question whether or not special reasons exist is one of law. There is no discretion involved in answering that question (Muir v Sutherland 1940 S.L.T. 403). Either the facts of the case amount, in law, to special reasons or they do not. If they do, there is a discretionary power not to endorse. If they do not, then I must endorse. Nothing, at this stage, turns on the effect of endorsement on Mr Siegel’s ability to hold on to his licence. There is no discretion to take that into account in determining whether or not special reasons exist. Since each case turns on its own facts and because there will inevitably be issues of credibility and reliability I do not see that the decision in any particular case will necessarily set a precedent. I therefore have no concerns on that score.
In the whole circumstances of this case, I hold special reasons to exist. Accordingly and at this stage noticing that endorsement of even the minimum of 6 penalty points will have the effect that Mr Siegel, being a recently qualified driver, will have his driving licence revoked, I will exercise my discretion and refrain from endorsing penalty points on Mr Siegel’s licence. Furthermore, I will admonish him for the offence.