APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Nimmo Smith Lord Wheatley CGB Nicholson, |
[2007]
HCJAC 10
Appeal
No.XJ736/05
OPINION OF THE COURTdelivered by LORD NIMMO
SMITH in REFERRAL TO THE HIGH COURT
OF JUSTICIARY UNDER PARAGRAPH 9 OF SCHEDULE 6 TO THE by in ROBBIE THE PICT Minuter against PROCURATOR FISCAL,
Respondent _______ |
Act: Party
Alt: K Stewart, A.D.; Crown
Agent
Introduction
[1] The minuter was charged at the instance
of the Procurator Fiscal at
"[O]n 04 April 2003 on the A86
at Roy Bridge being a restricted road in terms of Section 82 of the Road
Traffic Regulation Act 1984 as amended by Section 126 and Schedule 7
of the Roads (Scotland) Act 1984, you ... did drive a motor vehicle, namely motor
car registered number 78D778, at a speed exceeding thirty miles per hour,
namely at a speed of 43 miles per hour;
CONTRARY to the Road Traffic Regulation Act 1984, Sections 81 and
89 ["the 1984 Act"]."
The complaint first called in the Highland District Court at
[2] On
[3] The minute
first called before the High Court of Justiciary on
The underlying issues
[4] Although it is not for us to make a
final decision at this stage on the issues which may arise if and when a trial
eventually takes place, it is necessary for an understanding of the devolution
minute that we say something about them.
In particular, as will be seen, the minuter alleges apparent bias on the
part of the clerk of the District Court, so it is necessary to consider what,
if any, the real issues of law will be on which the clerk will require to give
advice to the justices in the course of a trial. As we understood his submissions, the
appellant does not dispute that on 4 April 2003 he was driving a motor car
on the A86 at Roybridge; that there are signs in place indicating that the road
at that point is subject to a speed limit of 30mph; and that police using a
hand held radar speed measuring device measured his speed at 43mph. He told us that it was not his intention to
drive at this speed, and that he did so because he was following other cars in
a line of traffic. Most drivers in such
a situation would, if prosecuted, plead guilty and make what they could of a
plea in mitigation. Not so the minuter,
who, resourceful as ever, alleges that there are serious defects in the
underlying basis of the prosecution.
Grounds of defence at
trial
[5] In the event of a trial taking place, we
understand that the minuter would advance two grounds of defence, the first
relating to the validity of the30mph speed limit on the A86 road in Roybridge,
and the second relating to the approval of the radar device by means of which
his speed was detected. The minuter has placed extensive material before us
relating to both these grounds. In view
of this, we think it appropriate to make the following comments, most of which
are based on our own research and not on submissions made to us.
(1)
The validity of the 30mph speed limit in Roy Bridge
[6] In a letter dated 31 July 2003 the
minuter purported to tender preliminary pleas to competency, the second of
which, so far as material, was:
"[A] plea to the competency of the
charge itself on the basis that the A86 is a trunk road, not a restricted road,
and any restriction would be required to be imposed by lawful order of the
Secretary of State."
In the letter he accepted that there was an argument that
this plea might arguably be either a plea to competency or "a plea of 'no case
to answer' mid-trial". In the devolution
minute before us it is averred that:
"[T]he matter at hand concerns an
alleged breach of a speed restriction in
[7] Among the
papers before us is a copy of the Highland Regional Council (A86,
Roybridge)(Restricted Road) Order 1991, made by the Highland Regional Council as
the then roads authority in exercise of the powers conferred on them by inter alia sections 82 and 84 of the Roads
(Scotland) Act 1984 ("the Roads Act"), directing that the length of road at
Roybridge on route 86, near Fort William, Lochaber specified in the Schedule to
the Order was to be a restricted road for the purposes of section 81 of the 1984
Act. The Order came into operation on
[8] We would add
that the
(2)
Approval of the radar device
[9] As we understand it, the minuter's speed
was detected by a model of hand held radar speed measuring device called the
MuniQuip K-GP. In his written
submissions which he presented to us at the hearing (in which the minuter
wrongly described the device as a Muni-Quip KP), it is alleged that he
"can find no evidence that the
specific type of apparatus employed to measure vehicle speed, has been approved
by an order of the Secretary of State, specifically describing the device in
question, and been placed before both Houses of Parliament while published for
sale as a Statutory Instrument.
Accordingly these orders may not in fact exist."
It is apparent from the extensive material which follows this
statement that the minuter is under the impression that for a device to be
approved the specific model must be the subject of a provision in a statutory
instrument.
[10] Section 20 of the Road Traffic Offenders
Act 1988 ("the 1988 Act"), as originally enacted, provided:
"On the prosecution of a person for
any speeding offence, evidence of the measurement of any speed by a device
designed or adapted for measuring by radar the speed of motor vehicles shall
not be admissible unless the device is of a type approved by the Secretary of
State."
The MuniQuip K-GP was approved by the Home Secretary under
this provision on
[11] New provisions
were substituted in place of section 20 of the 1988 Act as originally
enacted by section 23 of the Road Traffic Act 1991, with further
amendments by later statutory provisions.
The version currently in force may be found in the Encyclopaedia of Road Traffic Law and Practice. Section 20(1) provides inter alia that evidence (which in
Scotland shall be sufficient evidence) of a fact relevant to proceedings for an
offence to which that section applies (which by sub-section (2) includes an
offence under section 89(1) of the 1984 Act) may be given by the
production of a record produced by a prescribed device. Sub-section (4) provides that a record
produced or measurement made by a prescribed device shall not be admissible as
evidence of a fact relevant to proceedings for an offence to which the section
relates unless inter alia the device
is of a type approved by the Secretary of State. By sub-section (9) the expression
"prescribed device" is defined as meaning a device of a description specified
in an order made by the Secretary of State, which by sub-section (10) is
to be a statutory instrument. It is this
provision which has given the minuter the impression that the MuniQuip K-GP
cannot be described as a prescribed device unless it has been the subject of a
specific provision in a statutory instrument.
The minuter, however, appears to us to have overlooked two matters. In the first place, the MuniQuip K-GP was
approved by the Secretary of State under section 20 of the 1988 Act as
originally enacted, in terms of which no more was required than that the device
be of a type approved by the Secretary of State. While section 20 as originally enacted was
replaced by the substituted provisions referred to above, the Road Traffic Act
1991 (Commencement No.4 and Transitional Provisions) Order 1992 (S.I.
1992/1286) provided that the radar speed measuring devices approved by the Home
Secretary under section 20 as originally enacted had continuing effect as
if given for the purposes of the substituted section 20(4), so nothing
more was required. Secondly, and in any
event, for a device to be a prescribed device in terms of the substituted
section 20, it requires to be of a type
approved by the Secretary of State. By
the Road Traffic Offenders (Prescribed Devices) Order 1992 (S.I. 1992/1209) it
is provided that a device designed or adapted for measuring by radar the speed
of motor vehicles is a prescribed device for the purposes of section 20 of
the 1988 Act (as substituted by section 23 of the 1991 Act). This would, if need be, apply to the MuniQuip
K-GP. The minuter appears to us to fail
to recognise the distinction between a type of device and a specific model of a
device of that type.
Comment
[12] For obvious
reasons, we do not purport to express a concluded view on the foregoing
matters. However, the above considerations
appear to support the provisional view that neither ground of defence is likely
to be arguable. If, however, the minuter
still sees fit to advance them, it will be for the District Court to reach a
decision on them in light of the submissions presented to them.
The devolution issue
[13] The European Convention for the Protection
of Human Rights and Fundamental Freedoms ("the Convention") provides by article
6(1) inter alia:
"In the determination of...any criminal
charge against him, everyone is entitled to a fair and public hearing...by an
independent and impartial tribunal established by law."
In his letter of
"A plea of personal bar against the
Crown on the basis of the Crown's relationship with the Clerk of the Court
being an institutionalised violation of anyone's human right to a fair hearing
from an independent and impartial tribunal in a 'District Court'."
In the devolution minute, the minuter has elaborated on this
by averring that:
"[T]he Crown, in the person of the
Procurator Fiscal at Fort William, has opted to prosecute the author of this
Minute in the District Court at Fort William.
The District Court operates under the aegis and authority of the
Highland Council using legally unqualified magistrates who are guided in
matters of law by a qualified Clerk to the Court whose salary is paid by
Highland Council. The matter at hand
concerns an alleged breach of a speed restriction in
The District Courts
(Scotland) Act 1975
[14] It was clear, and he accepted, that in
preparing his minute and his submissions before us the minuter had not
considered the provisions of the District Courts (Scotland) Act 1975 (as
amended)("the 1975 Act"). A convenient
summary of the provisions of the 1975 Act which are relevant for present
purposes may be found in the Opinion of Lord Hope of Craighead in Clark v Kelly 2003 S.C. (P.C.) 77, 2003 S.C.C.R. 194 at para.49, in these
terms:
"Section 9 of the 1975 Act, as
amended by section 8 of the Bail, Judicial Appointments etc (
[15] It can be seen
from this summary that there is no possible justification for the averment in
the minute that "the District Court operates under the aegis and authority of
the Highland Council", and indeed the minuter did not seek to develop this
averment in his submissions. At the
hearing before us the focus was mainly on the role of the clerk of the District
Court. Section 7(1) of the 1975 Act
provides:
"It shall be the duty of each local
authority to appoint and employ, whether on a full-time or part-time basis, an
officer to act as clerk of the district court for their area, who shall also
act as legal assessor in that court, and any person so appointed shall be an
advocate or a solicitor."
The role of the clerk came under scrutiny in Clark v Kelly, in which the Judicial Committee of the Privy Council had to
consider inter alia an argument that
he was in law part of the tribunal for the purposes of article 6(1) of the
Convention and that, as he lacked the security of tenure which was necessary to
ensure his independence, the District Court could not be said to be an
independent tribunal within the meaning of the article. It was held by the Committee inter alia that the clerk must be
regarded as part of the court for the purposes of article 6(1) of the
Convention, having regard to his essential role in the ordinary functioning of
the court; in assessing the independence
and impartiality of the tribunal, its structure had to be looked at as a whole,
and that taking account of the professional obligations of the clerk as a
lawyer, the restriction of the clerk's role to provision of legal advice, and
the availability of appeal against disputed legal conclusions, the structure of
the District Court did not breach the requirements for independence and
impartiality under article 6(1).
The Committee further held that any advice given by the clerk to the
justice in private should be regarded as provisional until the substance of the
advice had been repeated in open court and an opportunity given to parties to
comment on it; that the clerk should
then state in open court whether the advice was confirmed or varied, and if it
varied in what respect, before the justice decided to act on it; and that if these steps were taken the giving
of advice by the clerk to the justice would be compatible with the Convention
rights of an accused person. We shall
return to the question whether the decision in
Apparent bias
[16] The minuter was at pains to make clear
that he did not suggest that there was actual bias on the part of the clerk of
the District Court. He did, however,
submit that in the circumstances of the case there was a risk of apparent bias. In
"The court recalls that in order to
establish whether a tribunal can be considered as 'independent', regard must be
had inter alia to the manner of
appointment of its members and their term of office, the existence of
guarantees against outside pressures and the question whether the body presents
an appearance of independence.
As to the question of 'impartiality',
there are two aspects to this requirement.
First, the tribunal must be subjectively free of personal prejudice or
bias. Secondly, it must also be
impartial from an objective viewpoint, that is, it must offer sufficient
guarantees to exclude any legitimate doubt in this respect."
The second aspect relates to what is otherwise called
apparent bias. Lord Bingham of Cornhill
said in Davidson v Scottish Ministers (No.2) 2005 1 SC (HL) 7 at para.17, that it is difficult, if not impossible, to lay down any
hard-edged rules to distinguish a case where apparent bias may be found from
one where it may not. As Lord Hope of
Craighead said in
"Much will turn on the facts of the
particular case. The court must first
ascertain all the circumstances which may have a bearing on the suggestion that
the judge was biased. It must then ask
itself whether those circumstances would lead a fair-minded and informed
observer to conclude that there was a real possibility that the tribunal was
biased (Porter v Magill [2002] 2 AC 357, paras.102, 103; Lawal
v Northern Spirit Ltd [2003] UKHL 35,
[2003] ICR 856, para.14)."
Reference may also be made to Helow v Advocate General for
Scotland [2007] CSIH5. It is
necessary therefore to consider with some care the circumstances founded on by
the minuter to see whether they would lead a fair-minded and informed observer
to conclude that there is a real possibility that the clerk of the District
Court may be biased and as a result that the District Court itself may be
biased.
The Northern Safety
Camera Partnership
[17] The minuter founds on the duty under
section 7(1) of the 1975 Act of each local authority, in the present case
the Highland Council, to appoint and employ an officer to act as clerk of the
District Court for their area. He points
to the ground of defence already mentioned, relating to the validity of the
30mph speed limit in Roybridge, which, according to him, means that the Highland
Council have an interest in seeking to uphold its validity. Then he introduces new matter (which was not
referred to in the minute but which the Advocate Depute did not suggest that we
should not take into account). The
minuter presented us with material derived from the website of the Northern
Safety Camera Partnership,www.nscp.co.uk
("the NSCP")`. It can be seen from the
website that there are eight such partnerships operating in
"This is a Road Safety initiative
launched by the Government, which aims to reduce the number of road accident
casualties by promoting safer driving within the legal speed limits. This aim will be achieved through the use of
safety cameras in areas where there is a demonstrable level of collisions and
speeding. The Northern Safety Camera
Partnership will operate in the Highland Area."
The NSCP is said to have been launched in July 2004. Its principal aim is stated to be:
"[T]o reduce road deaths and
casualties on
The organisations participating in the partnership are
Northern Constabulary, the Highland Council, Scottish Ambulance Service,
"None of the Partners are allowed to
make any profit from their participation in the scheme; they are only allowed
to recover their legitimate expenses."
Any excess is transferred to the Treasury. It may then be put to a variety of uses,
including expenditure on other aspects of road safety. Secondly, the minuter was critical of the siting
of two cameras on the A9, near Blair Atholl and Bankfoot. When it was pointed out to him that each of
these cameras was situated at a suitable distance before a road junction on a
single carriageway stretch of the A9, so as to deter drivers from approaching
these junctions at more than 60mph, the minuter was unable to advance further
argument to support his criticism. This
left, thirdly, as the major criticism, that:
"NSCP appears to be a system of public-private
prosecution... [T]his arrangement is unlawful when it involves the Crown Office
and Procurator Fiscal Service as prosecutors, Northern Constabulary as the
source of the initial report and personnel giving prosecution evidence and the
Highland Council as suppliers of the mechanism of prosecution..."
In principle, we can see nothing wrong with an arrangement
whereby the various public bodies who are members of NSCP join together to
promote road safety by means designed to deter drivers from driving too fast
and thereby committing offences. Their
participation in NSCP does, however, create a specific relationship between the
Procurator Fiscal and the Highland Council, which gives added point to the
minuter's submissions about apparent bias on the part of the clerk of the
District Court, which is a matter to which we now return.
Does the Highland
Council's membership of NSCP give rise to apparent bias on the part of the clerk
of the District Court and, if so, the District Court itself?
[19] The minuter
submitted that the Highland Council had an interest in the prosecution, because
the validity of the 30mph speed limit in Roybridge was to be put in question
and because of its membership of NSCP. (But
see our comments above about each of these points.) This, he said, gave rise to a conflict of
interest on the part of the clerk, who was an employee of the Highland
Council. He was the only source of legal
advice to the members of the court, and his advice might be influenced by the
policy of his employers. There was an
unholy alliance of parties who had joined up in court. The clerk's advice might be compromised by
policy considerations. The case of
[20] The Advocate
Depute submitted that
[21] In our opinion the present case cannot be
distinguished from
[22] For these
reasons we reject the submissions of the minuter.
Result
[23] We shall accordingly refuse the devolution
minute and remit the case back to the District Court to proceed as accords.