Scottish High Court of Justiciary Decisons

ROBBIE THE PICT v. PROCURATOR FISCAL, DINGWALL [2001] ScotHC 38 (8th June, 2001)

[1] The appellant was charged on summary complaint with eleven offences of failing without reasonable excuse to pay the toll exigible for crossing the Skye Bridge under the relevant order of 1992 made under the New Roads and Street Works Act 1991. The complaint has already been the subject of lengthy and complicated procedure which it is not necessary to rehearse for the purposes of this appeal. It is sufficient to say that on 2 October 2000 the appellant's pleas of not guilty to the first four charges on the complaint were accepted and that on that date the sheriff heard submissions as to the competency of procedure under the complaint. On 20 October 2000 the sheriff rejected the plea to the competency and appointed a trial diet for the complaint but granted leave to appeal. The sheriff was delayed by illness in the preparation of his report and as a result the appeal was not heard until 27 April 2001.

[2] The appellant's submissions in the appeal fell into two sections. The first concerned the applicability and effect of the maxim omnia rite et solemniter acta praesumuntur The second concerned the appellant's submission that a letter written by the then Lord Advocate, Lord Rodger, on 6 November 1995 to the Procurator Fiscal at Dingwall, should be produced so that its content could be known. The short answer to both these points could be that neither is a point of competency. Neither affects in any way the legal basis of the complaint, the authority of the prosecutor or the jurisdiction of the court to deal with the complaint. That would be enough for a disposal of this appeal, but since the appellant appeared on his own behalf we think it proper to say a little, but only a little, more about his submissions.

[3] The maxim omnia rite et solemniter acta praesumuntur came into the, by now, extensive jurisprudence connected with the subject of the Skye Bridge tolls in the opinion of the Lord Justice Clerk in Anderson v Hingston 1996 S.C.C.R. 921. One of the issues in that case was whether the individuals who called upon persons crossing the Skye Bridge to pay tolls were acting under the authority of Skye Bridge Limited. The Lord Justice Clerk observed that it would have been preferable if the question of their authority had not been left to inference but that, nevertheless, the Crown was entitled to rely on inferences from proved facts. He then rehearsed a number of matters of fact with regard to the uniforms worn by the persons who demanded tolls, and so on, and continued:

[4] The appellant's first point about that maxim was that it was in Latin, which was not the language of the court and not one which, therefore, he could understand. He submitted that in terms of Article 6 of the European Convention on Human Rights he was entitled to have the proceedings conducted in a language which he could understand. In our view, there is manifestly no substance in that submission. Apart from the fact that it was clear from the appellant's presentation of his argument that he did fully understand the maxim, the passage which we have quoted from the Lord Justice Clerk's Opinion in Anderson v Hingston supra clearly explains the process of reasoning which was applied and the maxim is only, so to speak, a tag attached to the conclusion of that argument.

[5] The appellant's second point was that the application of the maxim involved interference with the presumption of innocence and the proper burden of proof in a criminal trial and he again referred to the requirements of the Convention. In our view, this point is equally plainly unfounded. As the Advocate Depute submitted, it is an everyday matter of experience that inferences are drawn from proved facts in considering whether the guilt of a person subject to a criminal charge has been established. The maxim is no more than a statement of circumstances which may justify an inference and, as the appellant acknowledged, any such inference is rebuttable.

[6] The third point which we should notice is that the appellant submitted that, in any case, the reference to the maxim in Anderson v Hingston supra was obiter and that its application was not justified by the case of Marr to which the Lord Justice Clerk refers. Again, it is, in our view, amply plain that the passage which we have quoted was essential to the decision in Anderson v Hingston and cannot be dismissed as obiter. That decision is binding upon us and it is not open to us to re-examine the grounds upon which it was reached.

[7] As regards the letter of 6 November 1995, the appellant submitted that it appeared from statements made in Parliament that that letter had instructed the Procurator Fiscal to do further work. Even such an instruction was sufficient to imply that Lord Rodger, who was Lord Advocate at the time, could not be regarded as independent and therefore that any decisions in regard to matters affecting the Skye Bridge Tolls to which he had been a party must be regarded as tainted. He submitted, therefore, that it was a matter of public importance that the letter should be published. To that argument, the Advocate Depute replied that it was clearly established that the proper procedure for disclosure of any documentary material was by petition to the High Court, and referred to HMA v Ashrif 1988 S.C.C.R. 197. The appellant was, he submitted, well aware that that was the proper procedure, since such a petition had been lodged and continued to a date to be fixed. The appellant replied that in terms of the Convention it was now the duty of all courts to give effect to the Convention rights of accused persons. That is of course correct, but it does not follow that normal procedural rules should be departed from. The purpose of the requirement that orders for disclosure of documents should be made only after petition to the High Court is to ensure uniformity in practice and there does not appear to us to be anything inconsistent with the Convention in that requirement.

[8] In all the circumstances, in our view, there is no ground for these appeals and they should be refused and the case remitted to the sheriff.