Hoy v McFadyen: HCJ 2000

The accused was charged with driving whilst disqualified. He had been in the driver’s seat and had started the engine. On turning off the engine the car lurched forward slightly. The handbrake was defective and would not hold the car on a slope. To hold the car whilst the engine was running, the accused had had to sit with his feet on the footbrake. When the engine was switched off, the accused was required to leave the vehicle in gear. It was argued that driving required motion and that the minimal movement of the car after the police approached and asked him to turn off the engine was insufficient.
Held: ‘In our view the situation in the present case is a rather unusual one, particularly because of the fact that the handbrake was defective and it required either that the car be in gear with the engine switched off or alternatively that the person in the driver’s seat had to depress the footbrake and hold the footbrake down in order to prevent the car from moving. The position quite clearly, therefore, is that in the latter alternative in order to prevent movement of the car downhill there required to be a direct and continuing personal intervention on the part of the person in the driving seat. The fact that the engine was running at the time, that the appellant was the person in the driving seat, that the appellant had disengaged the gear in order to start the engine and as a consequence required to keep his foot on the footbrake, in our opinion go beyond mere preparation for driving, and the appellant has commenced driving even though there may have been no movement at all. The fact that there was movement at the end of the proceedings is a clear indication in our view that the appellant must have been driving because there would have been no movement but for the intervention on his part by disengaging the gear and using the footbrake. The correct test is to look at what the appellant was doing and not necessarily the result. For example, if the car had in fact rolled forward and hit another car perhaps a foot or two in front of it there can be no question but that the appellant would have been driving the car. The things that he was doing would have been exactly the same as he was doing in the present case. This shows that the question of movement of the car is not essential if the driver’s activities have got beyond the stage of mere preparation for driving but have got to the stage when there is active intervention on his part to prevent movement and direction of the vehicle. In the somewhat unusual circumstances of this case we are quite satisfied that the appellant could be said to have been driving. In our view he was just as much driving as would be a person who in the course of proceeding along the road was stopped at a red traffic light, halted his vehicle, placed his foot on the footbrake and awaited the turning of the lights to green.’


Lord Sutherland


[2000] SLT 1060




CitedAmes v MacLeod OHCS 1969
The accused, who was alleged to have been driving a motor car, had been walking beside it as it ran down a slight incline, and had steered it by placing his hand on the wheel. The car had run out of petrol.
Held: The question turned on whether . .

Cited by:

CitedDirector of Public Prosecutions v Alderton Admn 25-Nov-2003
The defendant had been found sat in his car. He had been spinning its wheels, but not moving. The prosecutor appealed against dismissal of a charge of attempting to drive whilst under the influence of alcohol.
Held: The appeal succeeded. The . .
CitedDirector of Public Prosecutions v Moore Admn 2-Mar-2010
The defendant appealed by case stated from his conviction of attempting to drive a motor vehicle on a public road, having consumed alcohol in excess of the prescribed limit on the same occasion. At the time he was said to have attempted to drive, . .
Lists of cited by and citing cases may be incomplete.

Road Traffic

Updated: 12 May 2022; Ref: scu.189935