Moss v Howdle

Factual and Procedural Background

The appellant was driving south on a motorway with a passenger who suddenly shouted out in pain without explaining the cause. Believing the passenger was seriously ill, the appellant drove at speeds exceeding the legal limit to reach the nearest service area as quickly as possible. Police observed and recorded the excessive speed and subsequently charged the appellant with contravening motorway traffic speed regulations. At trial, the appellant was convicted and fined but not disqualified from driving. He appealed against his conviction by way of stated case, arguing that necessity, based on a medical emergency, should be a defence to the charge.

Legal Issues Presented

1. Is a defence of necessity available for a road traffic offence of this nature under Scots law?
2. Can a medical emergency amount to necessity as a defence in such cases?
3. Was the sheriff correct in concluding that medical emergency is relevant only to sentencing and not to the availability of the defence?
4. Did the appellant have a real choice or lawful alternative to committing the offence, thus negating the defence?

Arguments of the Parties

Appellant's Arguments

• Necessity is a recognised defence in Scots law that should apply to this case.
• A medical emergency can constitute necessity, compelling the appellant to exceed the speed limit to reach assistance.
• The appellant acted under a not unreasonable belief that the passenger was seriously ill and was compelled to drive as he did.
• The defence should be available even if the danger threatened a companion rather than the accused himself.

Respondent's Arguments

• Parliament has made specific statutory exemptions for emergency vehicles, indicating that defences of necessity should be narrowly construed in road traffic cases.
• While the defence of necessity may exist, its boundaries should be tightly drawn.
• The appellant had lawful alternatives, such as pulling over to assess the situation, and thus was not constrained to commit the offence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering whether a defence of necessity exists under Scots law for road traffic offences. It affirmed that such a defence is available but must be narrowly construed, requiring an immediate danger of death or serious bodily harm. The court examined historical and contemporary authority, particularly Hume's Commentaries and Thomson v. HM Advocate, to delineate the defence’s scope and conditions.

The court distinguished between coercion by a third party and necessity arising from other dangers such as illness or natural disaster, concluding no relevant legal difference exists between these sources of threat. The defence can extend to situations where the accused acts to save a companion, not only themselves, consistent with the principle that "danger invites rescue."

Applying these principles to the facts, the court focused on whether the appellant was compelled to drive in breach of the law, or if he had a lawful alternative. The sheriff found the appellant had a real choice, noting he did not stop to ascertain the passenger’s condition and considered but did not use a mobile phone. The court agreed that the appellant was not constrained to commit the offence and thus did not satisfy the requirements for the necessity defence.

Holding and Implications

The court DISMISSED THE APPEAL and affirmed the conviction.

The direct effect is that the appellant’s conviction for exceeding the speed limit stands, as the defence of necessity was not established. The court confirmed that necessity can be a defence in road traffic offences involving immediate danger of death or serious harm, including medical emergencies and threats to third parties, but only where the accused has no reasonable legal alternative. No new precedent was set beyond clarifying the application of established principles in this context.