Scottish High Court of Justiciary Decisons

ROBERT JARDINE v. PROCURATOR FISCAL, HAMILTON [1998] ScotHC 15 (13th November, 1998)

The appellant is Robert Jardine who was served with a complaint at the instance of the procurator fiscal at Hamilton libelling a number of charges under the Road Traffic Act 1988 and other legislation. One of the charges was that the appellant, being the person keeping a vehicle the driver of which was alleged to be guilty of various offences, did fail to give such information as to the identity of the driver of the vehicle as he was required to give by a constable acting on behalf of the Chief Constable of Strathclyde Police, contrary to Section 172(2)(a) and (3) of the Road Traffic Act 1988. Although he originally pled not guilty to the charge, the appellant was allowed to withdraw that plea and to intimate a plea to the competency of the charge on the basis that the section of the statute on which it is founded is void.

At the ensuing debate in the Sheriff Court, the argument was that Section 172 was incompatible with Article 6 of the European Convention on Human Rights and that the Convention had been incorporated into the law of the United Kingdom - and, more particularly, into the law of Scotland - by virtue of certain provisions in the Treaty establishing the European Community as amended by the Treaty on European Union. The suggestion, at least as presented to this court, seemed to be that the power of the court to declare Section 172 to be void would derive from the supremacy of Community law as confirmed by Section 2(1) and (4) of the European Communities Act 1972. See, for instance, R. v. Secretary of State for Transport ex parte Factortame Ltd. (No.2) [1991] AC 603. The question of whether the provisions in the EC Treaty had had that effect was said to raise an issue as to the interpretation of the Treaty which the Sheriff was urged to refer to the European Court of Justice in Luxembourg for a ruling under Article 177. The Sheriff decided not to refer the matter and repelled the plea to the competency. The appellant appealed to this court on the basis that the Sheriff had erred in deciding not to refer the point. Now that the matter had reached this court from which no appeal lies, we were obliged, it was said, to refer the matter.

Article 177 EC provides inter alia:

For present purposes it is sufficient to note that, so far as concerns the proceedings in the Sheriff Court, Article 177 confers on the court a power which it may choose to exercise in appropriate circumstances. It is the court - rather than the parties - which is given the power to request a ruling and the intention behind the provision is to allow the court to seek assistance from the Court of Justice if it requires that assistance to decide the matter properly. On the other hand the Article confers no right on the parties in a case to have a matter referred. In relation to the Sheriff's refusal to refer the point, therefore, the only question for this court can be whether the Sheriff erred in law in the exercise of the discretionary power which he enjoys under Article 177 or exercised that power in a way in which no reasonable sheriff would have exercised it.

In presenting the appeal Mr. Allan briefly sketched the argument that Section 172 of the 1988 Act might be thought to require an accused person to incriminate himself and so to be incompatible with the right to a fair trial enshrined in Article 6 of the Convention. There is, of course, no need to express any view on that point for present purposes. Although he referred in passing to the preamble to the Treaty on European Union, Mr. Allan went on to explain that the principal basis for his argument, that the Convention already formed part of our domestic law, was Article F in the Common Provisions introduced into the EC Treaty by the Treaty on European Union. In particular he referred to Article F(2) and (3) EC:

He also referred to the well-known provisions of Article 5 EC:

As we understood the argument, it was to the effect that Article F laid down the objective that the Convention should be respected by the Member States comprising the Union and that by virtue of Article 5 it was the duty of the United Kingdom to take all appropriate measures to ensure the fulfilment of that objective. It was therefore possible to interpret Article F and Article 5 as making the Convention part of our law, that being an effective measure for ensuring the objective of securing respect for the fundamental rights guaranteed by the Convention. The Sheriff was presented with a similar argument and was urged to request the Court of Justice to rule on it.

As the terms of Article F(2) make plain, it is concerned with the position of the European Union rather than with the position of the individual Member States as such. Article F(2) explicitly recognizes that the Union is to respect fundamental rights, whether under the Convention or resulting from the constitutional traditions common to the Member States, as general principles of Community law. Plainly, this indicates that the Court of Justice would require to respect such fundamental rights, but, in any event, the Court of Justice has long held that they form part of Community law. So, for instance, in Kremzow v. Austrian State [1997] E.C.R. I - 2629, which the Advocate Depute cited, the Court referred to earlier decisions and held that fundamental rights form part of the Community law of which the Court ensures observance (paragraph 14). But the Court went on to point out that it "has no such jurisdiction with regard to national legislation lying outside the scope of Community law" (paragraph 15). The position is that fundamental rights form part of Community law, but the Treaty provisions have no effect in any field of the law of a Member State which lies outside the field of application of Community law (cf. paragraph 19). Therefore the Treaty does not have any wider effect of incorporating the Convention throughout the domestic legal systems of the Member States. In this case, which concerns a provision in the Road Traffic Act, no issue of Community law arises and therefore nothing in the Treaty has introduced any fundamental rights in relation to this provision of our law.

The conclusion that Article F(2) has not brought about the wholesale incorporation of the Convention into our law is hardly startling in a week in which Her Majesty the Queen has signified assent to the Human Rights Act 1998. Were the argument for the appellant correct, Parliament would have striven mightily but achieved nothing. We should add that the conclusion which we have reached is consistent with the conclusion of Lord Ross in Kaur v. Lord Advocate 1980 SC 319 at pages 331 et seq., to which the Sheriff was referred. That aspect of his Lordship's reasoning was based, of course, on the terms of the EC Treaty as they were in 1980 and on the decisions of the Court of Justice up until that date. On the other hand it is not affected by the observation of Lord President Hope in T. Petitioner 1996 S.C.L.R. 910 at pages 910 - 911 that this court should depart from the view that the Scottish courts are not entitled to have regard to the Convention as an aid to construction or otherwise.

For these reasons we are satisfied that the Sheriff was fully entitled to decide the matter without referring any question of interpretation of the EC Treaty to the Court of Justice and that he decided it correctly. Moreover, the answer to the argument raised by the appellant is so obvious as to leave no scope for any reasonable doubt. Therefore, even though there is no appeal from this court, we do not require to refer the question of interpretation to the Court of Justice for a ruling (S.R.L. CILFIT and Lanificio di Gavardo S.p.A. v. Ministry of Health [1982] ECR 3415 at paragraph 16). In these circumstances we reserve our opinion as to whether, in any event, before the evidence had been heard and the facts had been established, it could be said that a decision on the question of interpretation was necessary to enable the court to give judgment. See R. v. International Stock Exchange ex parte Else (1982) Ltd. [1993] Q.B. 534 per Sir Thomas Bingham M.R. at page 545D-G.

For these reasons we shall refuse the appeal and remit to the Sheriff to fix a new trial diet.