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Successful Appeal Against Conviction on the Grounds of Being “Incorrectly Advised”

HMA v DUNCAN STEWART 2017

A motorist that pled guilty to causing the death of a motorcyclist by driving in 2012 has now successfully appealed against his conviction. Mr Stewart was disqualified from driving and not insured at the time of the offence. On the advice of his solicitor he pled guilty. However, he decided to appeal his conviction and with the help of the Scottish Criminal Cases Review Commission was successful.

The Appeal Court ruled this was an “exceptional case” and that the appellant’s lawyer, the procurator fiscal and the sheriff all had an “erroneous understanding” of the law relating to this case. The deceased motorcyclist had pulled out to overtake a van and went straight in to Mr Stewart’s car. His driving therefore did not cause the motorcyclists death and this was accepted by all parties.

The basis upon which the plea had been tendered was that had the appellant not been driving when he should not have, the accident could not have happened. On this argument his solicitor told him he should pled guilty as the offence was a strict liability offence. However, the case was referred to the Court again by the SCCRC on the basis that the Road Traffic Act does not state that this is the case.

The law had been clarified, just months after the plea had been tendered, by the UK Supreme Court in R v Hughes in 2013, in which it was held that “in order to give effect to the expression ‘causes … death … by driving’ a defendant charged with the offence under section 3ZB must be shown to have done something other than simply putting his vehicle on the road so that it is there to be struck”.

However, to have a guilty plea withdrawn it would have to be “exceptional circumstances.” The advocate depute Mr McSporran QC advised the court that the Crown did not resist the appeal and agreed that this was a case with exceptional circumstances, and that the appellant was. “blameless” and he had been “incorrectly advised. Lord Justice Clerk stated when voicing the opinion of the Court: “We are satisfied that this is an exceptional case in which the conviction should be set aside as constituting a miscarriage of justice, notwithstanding that it proceeded on the basis of a plea tendered on legal advice.

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