APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Nimmo Smith
Lord Wheatley
CGB Nicholson, CBE, QC
|
[2007]
HCJAC 10
Appeal
No.XJ736/05
OPINION OF THE COURT
delivered by LORD NIMMO
SMITH
in
REFERRAL TO THE HIGH COURT
OF JUSTICIARY UNDER PARAGRAPH 9 OF SCHEDULE 6 TO THE SCOTLAND ACT 1998
by
HIGHLAND DISTRICT COURT AT FORT WILLIAM
in
ROBBIE THE PICT
Minuter
against
PROCURATOR FISCAL, FORT WILLIAM
Respondent
_______
|
Act: Party
Alt: K Stewart, A.D.; Crown
Agent
2 February 2007
Introduction
[1] The minuter was charged at the instance
of the Procurator Fiscal at Fort William, in a complaint dated 6 August
2003, in the
following terms:
"[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 Fort William ("the District Court") on 6 August
2003. On that date the minuter intimated what
purported to be pleas to the competency of the complaint, and the matter was
continued without plea to 3 September 2003.
After debate the justices held that amongst the issues raised by the
minuter were issues that fell to be dealt with as devolution issues under the
Scotland Act 1998. The justices
continued the case without plea, to allow the minuter to lodge the necessary
devolution minute. The minuter lodged a
Bill of Suspension against that ruling.
That Bill of Suspension was ultimately refused by this court on 7 December
2004 (Robbie the Pict v Procurator Fiscal, Fort William, Appeal No.XJ1748/03, unreported).
[2] On 22 December
2004 the
clerk of the District Court received a devolution minute from the minuter,
which was dated 20 December 2004.
On 5 January 2005, the minute called in court. The justices held that the minute was in
proper form and had been intimated as required by the Act of Adjournal
(Devolution Issues Rules) 1999. They
held that the issues specified in the minute raised a devolution issue. They referred the minute to this court for
determination, under paragraph 9 of schedule 6 to the Scotland Act 1998
and paragraph 40.7 of the said Act of Adjournal.
[3] The minute
first called before the High Court of Justiciary on 1 July
2005. On that occasion the minuter intimated that
he wished to argue two preliminary points of law contained in a paper apart,
which had not previously been notified either to the court or to the
Crown. On the motion of the minuter the
reference was continued to a further hearing to enable the Crown to consider these
preliminary points, which in due course were debated on 15 November
2005. On 15 February
2006 the
court repelled the two preliminary points advanced by the minuter and continued
the reference to a date to be afterwards fixed for argument (Wylie v Robbie the Pict 2006 SCCR 221).
After sundry postponements for a variety of reasons, the reference came
before us for a hearing on 11 January 2007.
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 Roy Bridge ostensibly set by Highland Regional
Council, the statutory predecessor to the Highland Council. ... [The second
preliminary plea] challenges the legitimacy of the speed restriction itself, it
being erected on a trunk road but not by the Secretary of State as required by
law."
[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 21
April 1992. The A86 was not then a trunk road. Sections 12A to 12F of the Roads Act were
inserted by section 38 of the Local Government etc. (Scotland) Act 1994. By the Roads (Transitional Powers) (Scotland)
Order 1995 (S.I. 1995/1476) the Secretary of State, in exercise of the powers
conferred on him by sections 12A, 12B, 12C and 143(1) of the Roads Act, having
considered it necessary or expedient as a result of, or in connection with, the
establishment of new local government areas on 1 April 1996, directed inter alia that as from that date
various existing roads which were not trunk roads should become trunk
roads. Among these was the A86 between Spean Bridge and a point near Kingussie. Section 112(10) of and paragraph 1 of
Schedule 6 to the Roads Act provide inter
alia that all orders made, with respect to a road which becomes a trunk
road, by the former roads authority shall, if they were in force immediately
before the road became a trunk road, have effect with respect to the trunk road
as if made by the Secretary of State.
Accordingly, the 30 mph speed limit in Roybridge appears to us to have
been validly made when the A86 was not a trunk road and to have been continued
in force after it became a trunk road.
[8] We would add
that the Highland Council are statutory successors to
the Highland Regional Council, whose role in the creation of the speed limit is
as set out above. But, following the
general transfer of functions to the Scottish Ministers by section 53 of the
Scotland Act 1998, they and not the Highland Council are the parties with the
most obvious direct interest to maintain the validity of speed limits on the
A86 trunk road.
(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 12 October 1989, with an effective date for use of 8
November 1989.
[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 31 July
2003 the
minuter expressed his first "preliminary plea to competency" in these terms:
"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 Roy Bridge ostensibly set by Highland Regional
Council, the statutory predecessor to the Highland Council. ... Consequently it
is arguable that the independence and impartiality of Highland Council's local
District Court thus operated has been compromised in the objective perception
of the Scottish public at large. This
arrangement would therefore appear to radically violate the terms of
Article 6(1) of [the Convention], specifically the right of a person to an
independent and impartial tribunal in the determination of all matters civil or
criminal."
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 (Scotland) Act 2000, provides for the
appointment of all persons to serve as justices of the peace for any local
authority area. They are appointed by
the Scottish Ministers on behalf of and in the name of Her Majesty. They can only be removed from office by order
of a tribunal constituted under section 9A of the 1975 Act, which was
inserted by section 9 of the 2000 Act, and then only if the Tribunal finds
that the justice is unfit for office, by reason of inability, neglect of duty
or misbehaviour. Their independence from
the prosecutor is assured, as all prosecutions in the District Court proceed at
the instance of the procurator fiscal who acts under the authority of the Lord
Advocate: section 6(3) of the
Criminal Procedure (Scotland) Act 1995. The Lord Advocate has no part to play in
their removal or appointment. Their
independence from the local authority too is provided for by section 12 of the
1975 Act, as substituted by section 10 of the 2000 Act, which provides
that the office of a justice shall not be held by a member of a local
authority."
[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 Clark v Kelly,
which is binding on us, can be distinguished in the circumstances of the
present case.
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 Findlay v UK (1997) 24 EHRR 221 the European Court said, at para.73, under reference to
article 6(1) of the Convention:
"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 Kearney v HM Advocate 2006 SC (PC) 1 at para.22:
"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 Scotland and many more in England and Wales.
A safety camera partnership is described in these terms:
"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 Highland roads by encouraging and educating
all road users to drive within permitted speed limits... through the use of
safety cameras situated in areas where there is a history of collisions and
excessive speed."
The organisations participating in the partnership are
Northern Constabulary, the Highland Council, Scottish Ambulance Service, Highlands and Islands Fire and Rescue Service,
Scottish Executive and the Crown Office and Procurator Fiscal Service.
[18] The minuter
asserted that he did not seek to undermine any effort to improve safety on the
roads. Although his speed at the time of
the commission of the alleged offence was detected by means of a radar device,
he advanced criticisms of the use of safety cameras. First, he said that the public perception was
that they were used simply as a means of generating revenue. We have no reason to think that this is so; and
on its website NSCP expressly states:
"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 Clark v Kelly was
not relevant in the circumstances of the present case.
[20] The Advocate
Depute submitted that Clark v Kelly could not be distinguished. He submitted that the fact that the clerk was
in the employment of the local authority did not have any practical consequence
for the trial. The clerk's duty was to
provide guidance on points of law, not on the facts. He was either an advocate or a solicitor, and
bound by the Code of Conduct of his profession.
The justices were bound by their judicial oath. They were free to accept or reject the
clerk's advice. An appeal was available
against whatever decision they took.
[21] In our opinion the present case cannot be
distinguished from Clark v Kelly. It can simply be regarded as an example of Clark v Kelly in
practice. The clerk of the District
Court, in his capacity as such, is not an employee of the local authority. He is employed by the local authority to
perform the statutory functions set out in section 7(1) of the 1975
Act. The local authority are under an
obligation to pay his salary, but that does not make them his "paymasters", as
the minuter put it. In addition to the
considerations derived from Clark v Kelly,
upon which the Advocate Depute founded, there is the consideration that
section 7(1) of the 1975 Act defines the clerk's responsibilities. The minuter laid repeated emphasis on the
perception that an uninformed member of the public might have. But the test is whether the fair-minded and
informed observer who is aware of the relevant facts, who as "a reasonable
member of the public is neither complacent nor unduly sensitive or suspicious",
and who gives due weight to the justices' judicial oath, would conclude that
there is a real possibility that the District Court will be biased: see Helow v Advocate General for Scotland at paras 34 to 35 and authorities
referred to therein. Such an observer
must be taken to be aware of the statutory functions of the clerk and of the
relationship between the clerk and the court as discussed in Clark v Kelly. If the practice outlined in that case is
followed, the minuter will have the opportunity of making submissions about
both fact and law during the course of the trial. He will be told what advice the clerk has
given to the justices, and will have an opportunity of making further
submissions about it. If he takes the
view that the advice is wrong, but the justices accept it, and he is convicted,
he can bring an appeal to this court.
The clerk must be taken to be aware of all of this. We can see no reason for thinking that he has
any incentive other than to perform his statutory and professional duty to give
impartial legal advice to the justices.
There are enough safeguards in place to prevent him from doing
otherwise, either consciously or unconsciously.
The clerk cannot possibly be described, as the minuter sought to
describe him, as "part of the mechanism of prosecution", involving an "unholy
alliance" of agencies which have "ganged up".
[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.
