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Cite as: [2004] ScotHC 29

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Stockton v. Procurator Fiscal [2004] ScotHC 29 (14 May 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord MacLean

Temporary Judge C.G.B. Nicholson, C.B.E., Q.C.

Appeal No: XJ1809/03

OPINION OF THE COURT

delivered by

TEMPORARY JUDGE C.G.B. NICHOLSON, C.B.E., Q.C.

APPEAL AGAINST SENTENCE

JEREMY PATRICK STOCKTON

Appellant;

against

PROCURATOR FISCAL, EDINBURGH

Respondent:

_______

Appellant: Party

Respondent: Henderson, A.D.; Crown Agent

14 May 2004

The background to the appeal
[1] On 19 March 2003 the appellant was driving his car on Milton Road West, Edinburgh, when a speed camera detected that he was driving at 50 miles per hour. The maximum speed limit on that road is 30 miles per hour, and the appellant's speed consequently constituted a breach of the Road Traffic Regulation Act 1984, sections 81 and 89.

[2] In due course the appellant received a fixed penalty notice in respect of that offence. That notice indicated that the matter could be dealt with by the imposition of a fixed penalty of £60 and the endorsement of three penalty points provided that the appellant paid that penalty, and produced his driving licence for endorsation, to the relevant clerk of Edinburgh District Court within 28 days of the date of the notice.

[3] Within that period the appellant attended at the relevant office. He tendered payment of the fixed penalty and he handed over his driving licence for endorsation with the three penalty points mentioned in the fixed penalty notice. However, the relevant official declined to accept payment of the fixed penalty on the basis that the appellant had tendered a "foreign" driving licence. In fact what the appellant had tendered was a UK driving licence issued by DVLA in Northern Ireland.

[4] Payment of the fixed penalty having been refused, the appellant was subsequently prosecuted in respect of the speeding offence. He pled guilty by letter, and in that letter, it appears, he set out the earlier circumstances which we have just described. The case came before the District Court at Edinburgh on 4 August 2003. It appears that the Justice was unimpressed by the appellant's explanation regarding his failure to pay the fixed penalty, and he then proceeded to impose a fine of £180 together with five penalty points. Unsurprisingly, in our view, the appellant was aggrieved by the fact that, as a citizen of the United Kingdom, he should have been dealt with in that way simply on account of the fact that he was prevented from paying the fixed penalty by reason of holding a driving licence issued in Northern Ireland rather than at Swansea. In those circumstances he has now appealed to this Court against the sentence imposed in the District Court.

The statutory background
[5] Having read the papers in this case in advance of the hearing which was fixed for 14 May 2004, we were anxious that we should be addressed regarding the statutory provisions which, presumably, had been relied on by the official who declined to accept payment of the fixed penalty on the basis that the appellant's licence was a "foreign" one. We noted, however, that the appellant was to appear on his own behalf at the appeal hearing and in that situation, on 13 May, we invited the advocate-depute to carry out some investigation overnight in order, if possible, to ascertain whether or not the appellant's offer to pay the fixed penalty had been correctly refused on account of the place of origin of his driving licence.

[6] We are grateful to the advocate-depute for his endeavours in that connection. Quite plainly, in the absence of a full debate, it would be inappropriate for us to express any concluded and binding view on this matter. However, on the information presently available to us it does appear that the fixed penalty procedure may not, under existing legislation, be available to the holder of a driving licence issued in Northern Ireland.

[7] Fixed penalty procedure is provided for in section 75 of the Road Traffic Offenders Act 1988. Subsection (8)(a)(ii) of that section provides that a person issued with a fixed penalty notice must, among other things, deliver "his licence and its counterpart" to the fixed penalty clerk. Section 75 does not itself define what is meant by "licence" for the foregoing purpose. However, section 98(1) provides that, throughout the Act, "licence" means a licence to drive a motor vehicle granted under Part III of the Road Traffic Act 1988.

[8] When one turns to Part III of the Road Traffic Act it seems to be clear that a "licence" for the purposes of that Act, and therefore for the purposes of the Road Traffic Offenders Act, does not include a licence other than one issued at Swansea to residents of England, Wales and Scotland. In relation to Northern Ireland licences their exclusion from the definition appears to be confirmed by the provisions of section 109. Subsection (1) of that section provides, reading it shortly, that the holder of a Northern Ireland licence may drive a motor vehicle in Great Britain; and the subsection goes on to say that this is so "notwithstanding that he is not the holder of a licence under this Part of this Act". In our opinion, the fact of there being separate provision for Northern Ireland licence holders, including in particular the words which we have just quoted, seems to make it perfectly clear that a Northern Ireland licence is not a "licence" within the meaning of Part III of the Road Traffic Act, and that it is consequently not a "licence" for the purposes of the Road Traffic Offenders Act, including in particular those parts of that Act which deal with fixed penalties.

[9] On the foregoing basis, accordingly, it would appear that in the present case the clerk at the District Court may well have been entitled to decline payment of the fixed penalty on the ground that the appellant had not tendered a licence to which the fixed penalty procedure applies. Had the position been otherwise it might well have been open to us to conclude that the subsequent prosecution of the appellant was incompetent on the basis that it was barred by an improper refusal to allow him to avail himself of the fixed penalty procedure as a means of paying the penalty for his admitted breach of sections 81 and 89 of the Road Traffic Regulation Act. In the circumstances, however, we consider that, for present purposes, we should proceed on the basis that the prosecution of the appellant took place competently. That being so, the question for us is whether the penalties selected by the Justice should, in all the circumstances, be regarded as excessive.

[10] Before coming to that, we conclude our brief survey of the relevant statutory provisions by observing that, in our opinion, they appear to be surprisingly discriminatory in relation to the holders of driving licences issued in Northern Ireland. We have already noted above that section 109 of the Road Traffic Act 1988 permits the holder of a Northern Ireland licence to drive in Great Britain (with the consequence that he or she will not be guilty on that account of a contravention of section 87 of that Act). However, section 109 goes on to provide, in effect, that the holder of a Northern Ireland licence will be liable to disqualification from driving, and to the imposition of penalty points, in the same manner as the holder of a licence issued elsewhere in the United Kingdom. Given those provisions, we consider that the Justice in the present case may have been unduly cautious when, as he tells us in his Report, he ordered endorsation of the five penalty points determined by him on the appellant's driving licence "in the event that he apply to DVLA Swansea for a driving licence". In our view, the terms of section 109 enable immediate endorsement to take place notwithstanding that the licence in question has been issued in Northern Ireland.

[11] That, however, leads us to the conclusion that it is wholly unacceptable and discriminatory that a citizen of Northern Ireland (which is, after all, part of the United Kingdom) should be subject to the same penalties under the Road Traffic Acts as a citizen from any other part of the United Kingdom, but should be denied the opportunity to avail himself of the fixed penalty procedure simply on account of the fact that his driving licence was issued in Northern Ireland rather than at Swansea. If that is, indeed, the effect of current legislation (as we tentatively believe it to be), we consider that it should be changed as soon as possible in order to remove this anomaly. The appellant, in his written grounds of appeal, has advised us that he understands that there are some moves afoot to bring about such a change in the near future, but the advocate-depute was unable to give us any information about that.

[12] In all of the foregoing circumstances we approached the present appeal on the basis that the present law appears to discriminate against the holders of Northern Ireland driving licences by excluding them from the potential advantages of the fixed penalty procedure while at the same time making them liable to all of the penalties provided for in the Road Traffic Acts in exactly the same way as citizens from any other part of the United Kingdom. In our opinion, these are considerations which should have considerable weight when, as is apparently inevitable in the case of Northern Ireland licence holders, such persons are dealt with by the courts rather than having their infringements of the Road Traffic Acts dealt with by the fixed penalty procedure.

The present appeal
[13] We have already noted that in the present case the Justice did not attach any weight at all to the matters which we have just been highlighting, and instead, as he tells us, he selected the sentence that he did by reference to "the degree of danger which the appellant's speeding represented, as reflected by the difference between the stopping distance at the speed limit and the stopping distance at the speed at which the appellant was travelling". We recognise, of course, that the fact that an offender has been offered a fixed penalty does not automatically mean that no greater penalty should be imposed in the event that he or she does not pay that penalty and is subsequently prosecuted (see, for example, Lappin v. O'Donnell 2001 SCCR 219, and other cases referred to therein). The appropriate sentence in every case will fall to be determined by reference to all the relevant facts and circumstances; and we do not seek to challenge that approach.

[14] In the present case, however, we are firmly of the view that, in the special circumstances which we have described above, it would be unjust and oppressive that the appellant should be penalised more harshly than was provided for in the fixed penalty notice when his failure to pay that penalty was occasioned solely by the fact that he is the holder of a Northern Ireland driving licence. Accordingly, we have taken the view that this appeal should be allowed. We have quashed the sentence imposed by the Justice, and in its place we have substituted a fine of £60 together with three penalty points, that being the penalty originally provided for in the fixed penalty notice.