Driving Without Insurance In Scotland

Driving Without Insurance in Scotland | Road Traffic Act 1988 Section 143

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What is Driving Without Insurance?

Read on for some basic information on Driving without insurance in Scotland. We appreciated not everyone wishes to read screeds of text, particularly if you are viewing this on a mobile phone. However far more detailed information is provided at the bottom of the page in our “Learn More” boxes.

The Road Traffic Act 1988, Section 143 provides:

 “It is an offence to use  a motor vehicle on a road or public place when there is not in force a relation to the use of the vehicle such a policy of insurance or such security in respect of third party risks as complies with the Road Traffic Act.”

The above charge is often called (as we ourselves have described it) “driving without insurance“. However the fact is that the Road Traffic Act states to “USE” a vehicle without insurance – or such security in respect of third party risks – is an offence. The car may be parked or just sitting in the street and you could be guilty of the offence. Similarly, however, if your insurer confirms they would still meet third party risks even in light of your insurance policy being invalid, you could have a defence to the charge.

The charge of Driving without insurance in Scotland under the Road Traffic Act 1988 section 143 is one of strict liability. It does not matter whether you did not intend to drive without insurance. There is one exception. Where an employee is working for his employer AND does not own the vehicle in question AND has no reason to believe there is not a valid policy of insurance in place, then there is a statutory defence under section 143(3). We have defended a case where a private hire taxi company had failed to insure one of their drivers and he was subsequently charged with s143. He had tendered a guilty plea in absence of representation. When we met with him we explained that, in fact, he had a defence.  His guilty plea was withdrawn, the Crown accepted his not guilty plea and he lived to drive another day. We provide more information on other potential defences and special reasons not to endorse below. We have an exceptional track record both in defending the charge outright or persuading the court that there are special reasons.

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‘Causing and Permitting’ another to Drive Without Insurance:

“What about when I lend my car to a friend or if I let someone test drive the car when selling it?”

This is a classic example of “causing and permitting” which is a separate offence under section  the Road Traffic Act 1988 section 143 (1)(b).

It is our view that you have a responsibility under the Act to examine an insurance document and satisfy yourself that one is in place whenever you let another person drive your vehicle. However there are different evidential considerations to this charge than a charge of Driving without insurance in Scotland. Strict liabilty, in our opinion does NOT apply to a charge of causing and permitting another to drive. Therefore what may only amount to special reasons for a person charged with driving without insurance in Scotland (such as lack of knowledge or intent) may amount to a complete defence to a causing and permitting charge. The bottom line, as always, is to get legal advice.


LEARN MORE ABOUT DRIVING WITHOUT INSURANCE

Driving without insurance in Scotland is a serious charge. Upon conviction there can be a fine of up to £5,000, between 6-8 penalty points imposed on the licence and the court can impose discretionary driving ban. In Glasgow we are aware of a spate of  driving bans imposed by Justices who felt that this was entirely appropriate. Legal advice is essential if you are facing a charge of driving without insurance. In certain cases, it may be possible to persuade the court that special reasons apply not to endorse your licence even although you are Guilty of the offence. As a general rule, special reasons apply if you had an honest and reasonable belief that there was a policy of insurance in place at the time of the offence. You can read more about this in our Special Reasons box below.

Apart from the statutory defence above, the prosecution have to prove ”use” to secure a conviction and that the offence took place on a public road or other such public place. This is not always as simple as it may sound. It is therefore worthwhile getting a defence team that is fully aware of the latest cases relating to the definitions of “use” and “public place”. The Crown also has to establish prima facie that there was no policy of insurance in place and the rules regarding hearsay evidence may have a bearing here. Aside from these issues, however, the Crown only needs to establish a prima facie case that you were driving without insurance in Scotland. The evidence does not require to be corroborated or proved beyond reasonable doubt. So, once the Crown has proved

  1. That you were “using” the vehicle;
  2. That the “use” occurred on a road or other public place
  3. That there is prima facie evidence of no valid policy of insurance

then the burden switches to you. Because of the strict liability rule the Crown does not need to prove that you knew – or should have known –  your insurance had run out. To defend a driving without insurance charge you need to show you were insured or explain in mitigation of your guilt why you did not have it. In our experience, it is not all that unusual that the police rely on information from the Motor Insurance Bureau and this should not be taken at face value. In several cases we have been able to prove to the satisfaction of the prosecution that insurance was still in place.

One further thing worth remembering is that an insurance contract is a two-sided affair involving the insured and the insurer. There are rules about when a contract of insurance can be avoided. It is not necessarily the case that a contract no longer exists just because an insurer says so. Therefore even if you think you have no defence to a charge of Driving Without Insurance in Scotland seek legal advice before answering the copy complaint. It is too serious and complex an area to blunder in without a considered view. We will provide a FREE case consultation either online or by telephone. 

One of the most striking things about a charge of Driving Without Insurance in Scotland is just how unfair it is. As we have detailed above, the offence is one of strict liability. Therefore even if your policy of insurance was (legitimately) cancelled without your knowledge then you are Guilty of the offence. Similarly, if you thought your policy would auto-renew and it doesn't then you are Guilty of the offence even if this was due to an error on the part of the insurer. Finally even if you are misled by another person into thinking there is a valid policy covering you, you are Guilty of driving without insurance in Scotland. And, because endorsation of your licence with penalty points or disqualification is "mandatory", there seems no way out.

Fortunately "mandatory" means "mandatory unless there are special reasons not to do so". This is thanks to section 44 of the Road Traffic (Offenders) Act 1988. This piece of legislation can be crucially important if you are charged with Driving Without Insurance in Scotland. It provides that the court need not endorse the licence with penalty points "if for special reasons it thinks fit not to do so". Therefore there is a two-stage test. First the court must be satisfied that there are special reasons. Then the court must be persuaded to exercise its discretion and not impose penalty points. In practice if the first stage is met, the second - in our experience - has always followed. 

What are special reasons?

We have a separate page dedicated to special reasons here. However in the context of a person charged with Driving Without Insurance in Scotland, the law has evolved in a particular way. Essentially there is a two-tier test. First the court must be satisfied that the driver had a honest belief that a policy of insurance was in place. Second there must be a reasonable basis for that belief. In our experience, the first test is more straightforward. The vast majority of people we speak to seem honestly shocked that there was no policy of insurance in place. The second test is more challenging and becomes more difficult the longer the policy has not been in place. In general, however, all of the unfair scenarios detailed above would provide the potential for special reasons. 

If special reasons are established, the driver remains convicted of driving without insurance in Scotland. However the usual penalty of 6-8 penalty points does not follow and this can be the difference between a licence being saved and lost.


COMMONLY ASKED QUESTIONS

This is complicated. If you can provide proof of the mistake then the police may rescind the ticket but, in our experience, this can be difficult. It would be better to seek legal advice before doing anything. The last thing you want to do is inadvertantly provide the police with more evidence against you (and, in our experience, this can and does occur). Whatever you do, however, do not pay the ticket until you have obtained legal advice. Once it is accepted, that is usually the end of the matter and there is no going back, mistake or not.

No. The offer of a fixed penalty is an alternative to prosecution. If you pay the £300 fine and take the six points then that is the end of the matter from a legal perspective. No conviction is recorded against you. You will, however, likely face vastly increased insurance premiums in the future. Our research indicates that it can be harder for a person in these circumstances to get new insurance than for someone convicted of drink-driving.

This depends and is answer is probably "no". If the insurance company has acted illegally by terminating your contract of insurance then you may have a defence to the charge on that basis. A contract of insurance is not necessarily voided just because the insurer claims that it is. This can be relevant in particular if the insurer claims the contract is void due to a missed payment. In the usual course of events, however, the likely route will be a special reasons argument to avoid penalty points and most probably also avoid the financial penalty.

Unfortunately, and unfairly, yes. Even if special reasons are established you are technically still guilty of Driving Without Insurance in Scotland and a conviction will be recorded against you. In very limited circumstances this can be avoided if the court can be persuaded to deal with the case by an absolute discharge before moving to conviction but such cases are a very small minority. you will however avoid penalty points and, usually, a fine. Perhaps even more importantly, insurance companies should take the finding of special reasons into account when establishing future premiuims.

You will have been charged with a causing and permitting offence. You will have a defence to the charge on the basis that you were misled. The rules regarding strict liability for Driving Without Insurance in Scotland do not apply to charges of causing and permitting.

You may have a defence in terms of section 143(3) of the Road Traffic Act 1988. There are three criteria - (1) you do not own the car; (2) you are using it in the course of employment and (3) you did not know and had no reason to believe that you were not covered. In the sceanrio described above, the first two criteria are clearly met. The third will depend on the facts of the case. Much may turn on what you were told. It is important to note that, as this is a statutory defence, the onus of proof lies with you. It is not for the Crown to disprove the defence.

A lot, none of it easy. The starting point will be your policy documentation - not just the certificate of insurance but also the policy booklet and other documents. Then it may be necessary to obtain transcripts and voice recordings from your insurer. It may be necessary to make an application under the Data Protection Act 1998 to obtain these. If the evidence shows that you were genuinely misled by your insurer, you will at least have special reasons and it may even be possible to persuade the Crown that there is no public interest in continuing with the prosecution.