Driving Without Insurance In Scotland

What is the offence of Driving Without Insurance in Scotland?

Driving without insurance in Scotland, or more accurately, using a vehicle without insurance, is an offence under the Road Traffic Act 1988 section 143.

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.”

Theoretically car may be parked or just sitting in the street and you could be guilty of the offence if you are deemed to be “using” it. 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.

Penalties for Driving Without Insurance in Scotland

• Fixed Penalty: 6 points and a £200 fine
• Prosecution: either 6-8 penalty points or a period of discretionary disqualification plus a fine of up to £5,000

Legislation:

• Road Traffic (Offenders) Act 1988, schedule 2

Explanation

The most common penalty for driving without insurance in Scotland  is a fixed penalty of 6 penalty points and a fine of £200. If there is an associated charge, or if the person does not/cannot accept the fixed penalty then the matter will be reported to the Procurator Fiscal.

Case Law:

• Gemmell and Others v HMA2011 HCJAC 129: amongst other things, determined that discount should apply to “driving” penalties such as the amount of penalty points or the length of the disqualification. Prior to Gemmell, the discount did not apply to the driving penalty. The discount cannot result in less than 6 points being imposed.

Will I be Disqualified?

Disqualification can occur for two main reasons:

• Repeat offending: if you have previously committed this offence, the court may deem a period of discretionary disqualification to be appropriate
• Totting up: this occurs where the he amount of points imposed takes the driver to 12 points in a 3-year period. This can lead to a disqualification under section 35 of the Road Traffic (Offenders) Act 1988 – more commonly known as “totting up”. Anyone on 6 points or more is at risk of totting up and should seek specialist legal advice as soon as possible because all is not lost. You may be able to argue that ”Exceptional Hardship” would occur if you lost your licence. See our dedicated page here.

Legal advice is essential if you are facing a charge of driving without insurance in Scotland. 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 and we discuss this below.

In the overwhelming majority of our cases, ours clients are not disqualified.

Case Law:

• Docherty v Normand 1995 SCCR 20: a case which highlights the importance of getting legal advice. It was held that a straightforward 1st offence could attract a period of disqualification.

Defences

Statutory Defence

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).

The Prosecution Must Still Prove “Use”

• Explanation: the prosecution has to prove “use” to secure a conviction and also that the offence occurred on a road or other public place
• Defence: 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”

Hearsay Arguments

• Explanation: notwithstanding that this is a “strict liability” offence, the Crown still has a prima facie burden to establish that there was no policy of insurance in place
• Defence: the Crown often thinks it can rely on 2nd hand or even 3rd hand “hearsay” evidence to establish this. This is often not the case and we will object to inadmissible evidence

Defences Based on the Policy Itself

• Explanation: the Crown often argues that “no valid licence” equates to “no insurance”. This is not always the case
• Defence: the precise wording of the policy is what matters here. This can be important for provisional licence holders or holders of foreign licences

Insurance Still In Effect

• Explanation: the Crown usually argues that, just because the insurer or the MIB has said no insurance is in place, then there is no insurance in place
• Defence: 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.

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. You may be surprised. Contact us. We will provide a FREE case consultation either online, by telephone or at our Glasgow office.

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 and it transpires they were not insured to drive 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).

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.

Special Reasons

One of the most striking things about a charge of Driving Without Insurance in Scotland is just how unfair it is. You may be Guilty of the offence 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 even if this was due to an error on the part of the insurer.
• 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. It provides that the court need not endorse the licence with penalty points “if for special reasons it thinks fit not to do so”.

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. 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.

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Reason 1 – We Are The Pioneers

Other firms also claim this. But see when the domain was registered to see how long the firm have actually been online. Our domain was registered in 2001. We believe we were registered years in advance of any rival firm. We are invited, founder members of the Association of Motor Offence Lawyers.

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We base our success rate on 1000 independently analysed cases chosen at random. Other firms may claim even higher success rates. Do not simply accept them at face value. Ask them what their case sample size was. How do they define case success? We have successfully defended sports stars, famous personalities, peers of the realm, members of the Royal Family, fellow solicitors, advocates, leading QCs and police officers. We do not name names unless the case is already in the public domain but you can see some of our reported cases here.  As we helped them, so we can help you:

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Reason 5 – Nationwide Representation 

Although our offices are in Glasgow, we regularly defend motorists in every Court in Scotland. On any given month, our solicitors appear in courts across the country, including Aberdeen, Dumfries, Edinburgh and Paisley. Wherever your case is being heard, we have the experience and resources to represent you effectively.

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Q: The police have told me there was no insurance on my vehicle and gave me a ticket. They are wrong. What can I do?

A: 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 inadvertently 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.

Q: If I accept a ticket will I have a criminal record?

A: 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.

Q: My policy was ended without my knowledge. Will this give me a defence?

A: 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.

Q: I let a mate drive my car. He told me he was insured but he wasn’t. Now I’m being charged?

A: 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.

Q: My boss told me to deliver something using the work car. I was stopped by the police and charged. What can I do?

A: 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 scenario 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.

Q: What can be done to prove that I had insurance or had genuine grounds for believing that I did??

A: 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.