APPEAL AGAINST SENTENCE BY LW AGAINST PROCURATOR FISCAL, GLASGOW
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
Lord Mackay of Drumadoon Sheriff Principal Lockhart | [2012] HCJAC 30 Appeal No: XJ695/11 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in APPEAL AGAINST SENTENCE by L W Appellant; against PROCURATOR FISCAL, GLASGOW Respondent: _______ |
Appellant: C. Mitchell; John Pryde & Co, Edinburgh
Respondent: S McKenna, ad hoc; Crown Agent
23 February 2012
[1] On 11 May 2011 the appellant was convicted after trial at the Justice of the Peace Court in Glasgow of a contravention of the Road Vehicles (Construction & Use) Regulations 1986, Regulation 110(1)(a) and the Road Traffic Act 1988, Section 41D(b). The offence involved the appellant driving a motor car whilst she was using a hand held mobile telephone.
[2] The conviction attracted 3 penalty points. The appellant already had 10 penalty points endorsed on her licence, in respect of three prior speeding offences. She was accordingly liable to disqualification for a minimum period of 6 months, in terms of Section 35 of the Road Traffic Offenders Act 1988 (“the 1988 Act”).
[3] On 6 July 2011 the Justice of the Peace held an exceptional hardship proof to determine whether, under reference to the provisions of Section 35 of the 1988 Act, there were grounds for mitigating the normal consequences of the conviction, namely disqualification for a minimum period of 6 months. Having heard evidence from the appellant and her husband, having considered various productions that were tendered on the appellant’s behalf, and having been addressed on behalf of the appellant, the Justice of the Peace held that disqualification would not give rise to exceptional hardship. He ordered that the appellant be disqualified from driving for a period of 6 months. The appellant now appeals against that disqualification
[4] During the exceptional hardship proof, the appellant gave evidence that she was 36 years of age and a nurse by profession. She was employed by Company A, with whom she had worked for 2 years. Her duties involved working with medical equipment and advising medical practitioners on the use of that equipment. She travelled throughout Scotland every week. She did so by car, running up a mileage of approximately 800 miles per week. Details of her monthly salary were produced.
[5] The appellant gave evidence that it was a term of her employment that if she lost her driving licence, her employment would be terminated. If she were to lose her current employment, there were very few nursing jobs available within the Glasgow area.
[6] The appellant also gave evidence about her family. The appellant is married with two children. In July 2011, her son was aged 16 and her daughter 15. Both were still at school. The appellant’s husband was employed in another part of Scotland. The documents before the Justice of the Peace included information about the costs of maintaining the matrimonial home, which the appellant and her husband owned. It was subject to a mortgage in respect of which the appellant and her husband required to make monthly repayments. The appellant produced a schedule detailing the family’s outgoings. The productions also included a bank statement that indicated that the appellant and her husband had an overdraft of approximately £15,000.
[7] The appellant gave evidence about her daughter who suffers from medical and educational problems. Because of the educational problems that she has experienced, the appellant’s daughter had spent the first year of her secondary education at a fee-paying school. She had then moved to a state school, for her second year of secondary education. Unfortunately she had encountered further medical and educational difficulties. After numerous meetings with members of staff at the state school, which explored the help available to their daughter, the appellant and her husband had decided that it was imperative that her daughter should return to the fee-paying school. She had done so in January 2011. The pursuer had obtained a bursary for her daughter, which reduced the fees payable to the fee-paying school. Notwithstanding the bursary, the move back to the fee paying school had resulted in monthly payments in respect of school fees, extending to several hundreds of pounds. Since her daughter’s return to the fee-paying school, she had coped better and had passed her first examination in two years. The appellant gave evidence that were she to lose her job her daughter would not be able to stay on at the fee-paying school. That would be “devastating” for her daughter.
[8] In his evidence, the appellant’s husband gave evidence about his employment. He confirmed that the family’s household budget was “very tight”, the history of events concerning their daughter and the risk that, if the appellant lost her job, their daughter would probably be required to be removed from the fee paying school and return to a state school.
[9] When the appellant’s solicitor addressed the Justice of the Peace on the evidence and productions before the court, no reference was made to any authorities.
[10] In his report to this court the Justice of the Peace indicates that he did not consider the plea of exceptional hardship had been made out. He accepted the appellant would lose her employment but stated “it was not established that the appellant would be unable to regain employment at some future date”. Returning to the question of the reflected hardship on the appellant’s husband and family, he indicated that had it not been established that the appellant had made any approaches to the mortgage lenders to discuss the rescheduling or “freezing” of mortgage payments. He continued “therefore, it had not been established that repossession would occur and that the family would lose their home”.
[11] When dealing with the position of the appellant’s daughter, the Justice of the Peace summarised the contents of the various medical reports that were before him. Having done so, he indicated that it had not been proved to his satisfaction that the loss of the appellant’s income would automatically mean that the daughter would be compelled to leave the fee paying school. That conclusion was followed by a discussion in which the Justice of the Peace suggested that from a study of the defence productions it appeared clear that there were examples of discretionary spend which could be dispensed with rather than removing the daughter from the fee paying school. With regard to the appellant’s daughter the Justice of the Peace also indicated that even if the appellant found the financial situation unsustainable, once she lost her employment, and her daughter required to be removed from the fee paying school, he had no reason to doubt that a state school would be able to accommodate the daughter’s educational requirements, as discussed in the medical reports.
[12] Before this court, counsel for the appellant explained that the appellant had changed her employment since the date of the proof before the Justice of the Peace. Although she continued to be involved in specialised nursing, some of which was in high dependency units, the appellant was now self-employed as a nurse and was allocated nursing duties throughout Scotland by Company B, based in Edinburgh, which provides to medical institutions and patients throughout Scotland the services of nurses required to fulfil short-term nursing commitments. A file of the assignments the appellant had undertaken with Company B was provided for consideration by the court. It was explained that in her employment the appellant was earning at least as much as she had been earning in her previous employment. However, if she lost her licence she would not be able to carry out this specialised work. That would impact on the family finances.
[13] It was accepted on behalf of the appellant that simply losing employment was not sufficient to make out a case of exceptional hardship. It was argued on behalf of the appellant, however, that although the Justice of the Peace had looked separately at each of the reasons that had been advanced in support of the contention of an exceptional hardship, he had failed to look at the totality of the circumstances to assess their cumulative effect. Loss of the appellant’s employment would place the family home at risk. It would affect the family’s ability to pay the mortgage repayments and other regular financial commitments in respect of the house. The house itself could not be sold except at a significant loss. More importantly loss of the appellant’s employment could lead to her daughter losing her place in the fee-paying school. Her daughter had originally been removed from the fee-paying school in 2008, when the appellant’s husband had lost his job. Considering the problems that her daughter had encountered after leaving the fee-paying school for the first time, the appellant considered that it was imperative that her daughter remained at the fee-paying school. Within four days of her daughter’s return there, she had been assessed by an educational psychologist. Support measures has been put in place, including “one to one learning support” and techniques to assist with reading. It was considered that her continued attendance at the fee-paying school was critical to her development.
[14] It was argued on behalf of the appellant that when the Justice of the Peace had considered the issue of exceptional hardship he had failed to recognise that when the appellant lost her employment (as he had accepted she would do), the resulting period of unemployment would extend for at least 6 months. It had to be borne in mind that when the appellant had her licence returned to her, she would be competing for employment in a market where employment opportunities were limited.
[15] Under reference to a number of authorities which counsel brought to our attention, it was argued that the nature and extent of the loss, which the appellant’s family was at serious risk of suffering, fell to be considered as exceptional hardship and that the Justice of the Peace had erred in that respect. The cases upon which reliance was placed included Muguraneza v P F Glasgow, unreported 11 December 2008; Gardner v P F Perth, unreported 23 October 2009 and Bruce v P F Dundee, unreported 14 April 2011.
[16] In our opinion the Justice of the Peace erred in his consideration of the issues before him. When dealing with the appellant’s employment, whilst he accepted that she would lose her employment in the event of disqualification, the Justice of the Peace went on to state “it has not been established that the appellant would be unable to regain employment at some future date”. In our opinion it is clear from the authorities to which we have referred that is too high a test. Once the Justice of the Peace accepted, as he did, that the appellant’s employment would come to an end, he had to have regard to the real risk that with immediate effect and throughout the period of disqualification (if not indeed over a longer period of time), the appellant would be unable to find similar employment. Those difficulties, accentuated, as they would be by the current economic situation, were liable to continue throughout the 6 month period and ought to have been taken account of by the Justice of the Peace. It was not for the appellant to prove that so long as she remained disqualified, or indeed for some unspecified period thereafter, she would definitely be unable to find alternative employment.
[17] In our opinion the Justice of the Peace also erred in respect of the approach he took to the matrimonial home. Here again he appears to have applied too high a test. Having regard to the monthly mortgage repayments the appellant and her husband required to make, loss of the appellant’s employment would pose a risk to the family’s ability to meet their financial commitments in respect of the matrimonial home. Whether or not the appellant had made any approaches to the mortgage lenders to discuss re-scheduling or otherwise re-phasing the mortgage payments, such a risk existed. The risk may not have been high, when viewed in isolation, but it existed and should have been considered as part of the overall assessment of the issue of whether loss of employment would lead to exceptional hardship.
[18] In our opinion the Justice of the Peace also erred in his assessment of the risk to the welfare of the appellant’s daughter. Again the Justice of the Peace appears to have adopted too high a test. He states that the appellant and her husband had failed to prove that the daughter would be compelled to leave the fee paying school, in the event that the appellant were to lose her job. The important factor he ought to have borne in mind was that the loss of the pursuer’s employment would give rise to a real risk that a further change of school would require to take place. It is clear from the statement of receipts and payments produced by the appellant, that such a risk cannot be excluded, even if expenditure on items of “discretionary spend” is reduced or deleted. Furthermore, having regard to his assertion that a state school would be able to accommodate the daughter’s educational requirements as well as the fee paying school could, the Justice of the Peace appears to have ignored the risk of emotional hardship and distress the daughter would have been liable to suffer around the time of any further move and in the months thereafter. In particular he should have taken into account that such a move would have been the daughter’s third change of schools within a short period of time; the personal and educational difficulties she had experienced since the first move; and the fact that she was now making good progress at the fee paying school. In reaching the conclusions we have about the Justice of the Peace’s analysis of this case, we recognise that he does not appear to have been assisted by the submissions he received, which ought to have addressed on a fuller basis than they did the issues that were involved in the hearing before the court.
[19] In these circumstances we consider it is open to this court to consider the matter afresh. On the basis of the information before us, we are quite satisfied that if the appellant were to be disqualified for a period of 6 months she would be unable to continue in her present employment over a period of at least 6 months. That employment requires her to drive to various hospitals and patients throughout Scotland. The hours she works are long and it would be impracticable for her to fulfil the work if she were to be dependant on public transport. We are equally satisfied that the loss of her employment for a period of 6 months, (let alone for any longer), would lead to a significant drop in the family’s income. That was the position when the case was before the Justice of the Peace. It remains the position now. Such a loss of income would impact on members of her family. It could give rise to a risk to the family’s ownership of the family home. In our opinion there is a strong probability that it would give rise to a real and significant risk to the welfare of her daughter. Without elaborating on the problems which her daughter has suffered in recent years, we are quite satisfied that if it were to be necessary for her daughter to move school again, that would give rise to upset and distress that falls to be categorised as exceptional hardship. In our opinion, were the appellant to be disqualified there would be a risk of such exceptional hardship materialising. In these circumstances we are prepared to hold that the plea of exceptional hardship has been made out. We will accordingly allow the appeal to the extent of quashing the order disqualifying the appellant from driving for a period of 6 months. The fine and penalty points will remain as they are. Section 35(4)(c) of the 1988 Act will preclude any further reliance on a similar plea within the next few years.