Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2008/HCJAC_61.html
Cite as: 2008 SLT 1049, 2008 GWD 35-535, [2008] ScotHC HCJAC_61, 2009 SCL 83, 2008 SCCR 815, [2008] HCJAC 61

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Nimmo Smith

Lord Eassie

Lord Wheatley

[2008] HCJAC 61

Appeal Nos: XJ576/08 and

XJ519/08

OPINION OF THE COURT

delivered by LORD NIMMO SMITH

BILLS OF SUSPENSION

for

ROBERT LOGAN

Complainer;

against

PROCURATOR FISCAL, HAMILTON

Respondent:

and

JAMES WILLIAM BEATTIE

Complainer

against

PROCURATOR FISCAL, JEDBURGH

Respondent

_______

Act: Taylor, solicitor-advocate, Gilfedder & McInnes, Edinburgh

Alt: Mure, AD; Crown Agent

Alt: Advocate General: Carmichael, Advocate General's Office

2 July 2008

Introduction

[1] The complainer Robert Logan ("Logan") pled guilty at Hamilton Sheriff Court on 18 March 2008 to inter alia charge 1 in a summary complaint. This was a charge of contravening section 103(1)(b) of the Road Traffic Act 1988 ("RTA 1988") (the offence of driving while disqualified). In respect of this charge the sheriff inter alia sentenced Logan to nine months' imprisonment.

[2] The complainer James William Beattie ("Beattie") pled guilty at Jedburgh Sheriff Court on 17 April 2008 to inter alia charges 3 and 5 in a summary complaint. These were both charges of contravening section 103(1)(b) of RTA 1988. In respect of each of these charges the sheriff inter alia sentenced Beattie to eight months' imprisonment, the sentences to be served concurrently.

[3] The question for our consideration is whether the imposition of each of these sentences was competent. In order to answer this question, it is necessary to set out the relevant statutory provisions.

The relevant statutory provisions

The Road Traffic Offenders Act 1988

[4] As already noted, it is an offence to drive while disqualified, contrary to section 103(1)(b) of RTA 1988. The Road Traffic Offenders Act 1988 ("RTOA 1988") provides by section 9:

"An offence against a provision of the Traffic Acts specified in column 1 of Part I of Schedule 2 to this Act or regulations made under such a provision (the general nature of which offence is indicated in column 2) shall be punishable as shown against the offence in column 3 (that is, on summary conviction or on indictment or in either one way or the other)."

Section 33 provides:

"(1) Where a person is convicted of an offence against a provision of the Traffic Acts specified in column 1 of Part I of Schedule 2 to this Act or regulations made under any such provision, the maximum punishment by way of fine or imprisonment which may be imposed on him is that shown in column 4 against the offence and (where appropriate) the circumstances or mode of trial there specified.

(2) Any reference in column 4 of that Part to a period of years or months is to be construed as a reference to a term of imprisonment of that duration."

Part I of Schedule 2 stipulates the mode of prosecution in Scotland (by virtue of section 9) and the maximum punishment by way of fine or imprisonment (by virtue of section 33). For the offence of driving while disqualified (column 1), contrary to section 103(1)(b) of RTA 1988 (column 2), where the mode of prosecution (column 3) is summarily, the maximum punishment (column 4) is "6 months or the statutory maximum or both", and where it is on indictment it is "12 months or a fine or both". (It may be noted that this offence may only be prosecuted summarily in England and Wales, where the maximum punishment is "6 months or level 5 on the standard scale or both"; this appears to be the only offence under RTA 1988 in respect of which there is such a difference, as between the two jurisdictions, in the mode of punishment provided by RTOA 1988.) A definition of the expression "statutory maximum" is provided by section 65 of and Schedule 1 to the Interpretation Act 1978 (as amended): with reference to a fine or penalty on summary conviction for an offence, in relation to Scotland, it means the prescribed sum within the meaning of section 225(8) of the Criminal Procedure (Scotland) Act 1995 (as amended by section 48 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007), i.e. £10,000.

The Criminal Proceedings etc. (Reform) (Scotland) Act 2007

[5] Section 43 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007) ("the 2007 Act") increased to 12 months the maximum sentence of imprisonment which may be imposed by the sheriff, sitting as a court of summary jurisdiction, for a common law offence. It did so by amending section 5(2) of the Criminal Procedure (Scotland) Act 1995 to read inter alia as follows:

"The sheriff shall, without prejudice to any other or wider powers conferred by statute, have power on convicting any person of a common law offence-

...

(d) to impose imprisonment, for any period not exceeding 12 months."

[6] Section 45 of the 2007 Act provides:

"(1) The maximum term of imprisonment to which a person is liable on summary conviction of a relevant offence is, by virtue of this subsection, 12 months.

(2) Accordingly, the specification of a maximum period of imprisonment in every relevant penalty provision is, in relation to any relevant offence to which it applies, to be read subject to subsection (1).

(3) Without prejudice to subsections (1) and (2), the Scottish Ministers may by order amend the specification of a maximum term of imprisonment in a relevant penalty provision so as to specify, in relation to the relevant offence to which it applies, that the maximum term of imprisonment to which a person is liable on summary conviction is 12 months.

(4) The specification of a maximum period of imprisonment in a relevant power is, in relation to any offence to which it applies, to be read as a period of 12 months.

(5) Without prejudice to subsection (4), the Scottish Ministers may by order amend a relevant power so as to increase to 12 months the maximum term of imprisonment specified in the power.

(6) In this section, a "relevant offence" is an offence under a relevant enactment or instrument which is--

(a) triable either on indictment or summary complaint, and

(b) punishable on summary conviction with a maximum term of imprisonment of less than 12 months.

(7) In this section--

a "relevant enactment" is an Act passed before this Act,

a "relevant instrument" is any subordinate legislation made before the passing of this Act,

a "relevant penalty provision" is a provision of a relevant enactment or instrument which specifies the penalties to which a person is liable on summary conviction of a relevant offence,

a "relevant power" is a provision of a relevant enactment which confers a power (however expressed) for subordinate legislation to make a person, as regards an offence that is triable either on indictment or summary complaint, liable on summary conviction to a maximum term of imprisonment of less than 12 months.

(8) For the purposes of subsection (7), reference to the passing of an Act is to be construed, in the case of an Act of the Scottish Parliament (including this Act), as reference to the passing by the Parliament of the Bill for the Act."

[7] It is by virtue of these provisions that the sheriff in each of these cases proceeded on the basis that his sentencing powers for a contravention of section 103 (1)(b) of RTA 1988, where prosecuted on summary complaint, had been increased from six months' to twelve months' imprisonment.

The Scotland Act 1998

[8] Section 29 of the Scotland Act 1998 ("the Scotland Act") provides inter alia as follows:

"(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

(2) A provision is outside that competence so far as any of the following paragraphs apply-

...

(b) it relates to reserved matters,

...

(3) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances

(4) A provision which--

(a) would otherwise not relate to reserved matters, but

(b) makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters,

is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise."

Section 126(5) provides as follows:

"References in this Act to Scots criminal law include criminal offences, jurisdiction, evidence, procedure and penalties and the treatment of offenders."

[9] Schedule 4 to the Scotland Act provides inter alia as follows:-

"2.--(1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters.

(2) In this paragraph, "the law on reserved matters" means-

(a) any enactment the subject-matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament, and

(b) any rule of law which is not contained in an enactment and the subject-matter of which is a reserved matter,

and in this sub-paragraph "Act of Parliament" does not include this Act.

(3) Sub-paragraph (1) applies in relation to a rule of Scots private law or Scots criminal law (whether or not contained in an enactment) only to the extent that the rule in question is special to a reserved matter...

3.--(1) Paragraph 2 does not apply to modifications which--

(a) are incidental to, or consequential on, provision made (whether by virtue of the Act in question or another enactment) which does not relate to reserved matters, and

(b) do not have a greater effect on reserved matters than is necessary to give effect to the purpose of the provision.

(2) In determining for the purposes of sub-paragraph 1(b) what is necessary to give effect to the purpose of a provision, any power to make laws other than the power of the Parliament is to be disregarded."

[10] Section 30(1) of and Schedule 5 to the Scotland Act define reserved matters. The Schedule provides by Part II for specific reservations, under various heads. Under Head E--Transport, section E1, "Road transport", includes the subject-matter of inter alia (d) RTA 1988 and RTOA 1988. By paragraph 5(1) of Part III of the Schedule, references in the Schedule to the subject-matter of any enactment are to be read as references to the subject-matter of that enactment as it had effect on the principal appointed day (i.e. 1 July 1999) or, if it ceased to have effect at any time within the period ending with that day and beginning with the day on which the Scotland Act was passed, as it had effect immediately before that time.

Extra-statutory materials

[11] The provisions of the 2007 Act quoted above had their origin in recommendations made in a report to the Scottish Ministers in 2004 by the Summary Justice Review Committee, chaired by Sheriff Principal McInnes. As can be seen from a subsequent document entitled "Smarter Justice, Safer Communities: Summary Justice Reform--Next Steps", published by the Scottish Executive, these recommendations were accepted, with modifications, and were reflected in the Bill which followed. The policy underlying the relevant clauses of the Bill may be discovered from the following extracts from the Policy Memorandum and Explanatory Notes which accompanied it.

[12] The Policy Memorandum stated:

"CHANGES TO THE SENTENCING POWERS OF THE SUMMARY COURTS

Policy Objectives

206 The Executive believes that professional sheriffs should be able to deal with a wider range of cases under summary procedure than they are currently entitled to, including some that would attract a higher penalty. An increase in the maximum sentence that can be imposed in summary cases will allow more cases to be dealt with under summary procedure. The most serious matters will, however, continue to be dealt with under solemn procedure in the sheriff courts and the High Court.

Key Information

207 The ordinary sentencing power of the sheriff, in common law cases, when sitting as a court of summary jurisdiction is currently limited to three months imprisonment or detention. Where the accused is convicted of a second or subsequent offence inferring dishonest appropriation of property (or an attempt thereat) or a second subsequent offence inferring personal violence the court may sentence the accused to a custodial sentence not exceeding six months. The maximum fine which may be imposed for a common law offence and certain statutory offences, "the prescribed sum" is currently set at £5000.

208 The Bill provides that the sentencing power of the sheriff when sitting summarily is increased to a maximum custodial sentence of twelve months, irrespective of whether the offence is a first or second/subsequent conviction. The Bill also increases the prescribed sum to £10,000. The maximum amount of compensation that a sheriff can grant in respect of a summary offence will also be increased to £10,000.

209 Statutory offences which are triable 'either way', that is summarily or on indictment, and which have a maximum sentence on summary conviction of less than 12 months imprisonment, will have that maximum increased to 12 months. The maximum penalty available in respect of such offences when tried on indictment will remain unchanged. The Bill also makes provision to increase the maximum custodial penalty available to the court in respect of 3 categories of statutory offence which are triable summarily only, where the current maximum period of imprisonment is less than 12 months imprisonment. These are:

· section 6 of the Emergency Workers (Scotland) Act 2005 (relating to assaulting an emergency worker - 9 months maximum at present);

· the Police (Scotland) Act 1967 (assaulting a policeman - 9 months maximum at present); and

· s37(4)(b) of the Antisocial Behaviour (Scotland) Act 2004 (entering premises in contravention of a closure order - at present, 3 month maximum for a first offence, 9 months for a second or subsequent offence).

The maximum penalty on summary conviction in respect of these offences will be increased to 12 months imprisonment to reflect the new common law maximum. Other than the provisions mentioned above the maximum sentences for statutory offences that are triable only summarily are unchanged."

[13] The Explanatory Notes stated:

"PART 3 - PENALTIES

Sentencing Powers

Section 43: Common law offences

249. This section amends section 5(2)(d) of the 1995 Act by increasing the maximum sentence of imprisonment which can be imposed by a sheriff for a common law offence in a summary case from 3 months to 12 months. At present, section 5 (3) of the 1995 Act provides that the maximum sentence of imprisonment for a second or subsequent offence involving violence or dishonesty is 6 months. This provision is repealed meaning that, in future, all common law offences will be punishable with a maximum custodial sentence of 12 months on summary conviction. The sentencing powers of the district court are unaffected.

...

Section 45: other statutory offences

256 This section brings the maximum summary prison sentences for certain statutory offences into line with a new maximum sentence for common law offences set out in section 43 of the Act.

257 Subsection (1), read with subsections (6), (7) and (8) set out the new maximum, and define the penalty provisions that will be altered. Offences which will be affected are those which can be tried under either solemn or summary procedure (sometimes referred to as "triable either way") and attract maximum prison sentences of less than 12 months on summary conviction. The new maximum summary penalty for such offences will be 12 months.

258 The effect of subsection (2) is that the statutes which create the affected offences are to be read subject to the amended sentencing limit.

259 Subsection (3) allows the Scottish Ministers to amend the maximum period of imprisonment specified in the statutory offences to which subsections (1) and (2) apply. This means that, in due course, textual amendment of the relevant statutes can take place, avoiding ongoing reliance on the general amendment. Subsection (4) provides that the maximum period of imprisonment provided for in a relevant power is to be read as a period of 12 months. Subsection (5) allows the Scottish Ministers to amend certain provisions in enactments that contain powers to create offences. Where an enactment provides for the creation of offences punishable on both solemn and summary conviction, the maximum summary penalty may, by order, be increased to 12 months."

[14] In February 2006, the Minister for Justice and the Presiding Officer of the Scottish Parliament issued statements confirming their respective opinions that the provisions of the Bill would be within the legislative competence of the Scottish Parliament.

The Bills of Suspension

[15] Each of the complainers has now sought, by way of bill of suspension, to challenge the competency of the sentence of imprisonment imposed by the sheriff in each case. It is submitted that the sentence is incompetent because it exceeds the statutory limit of six months' imprisonment provided by RTOA 1988 for a contravention of section 103(1)(b) of RTA 1988 where the prosecution is brought on summary complaint. It is submitted that section 45 of the 2007 Act has no application to RTA 1988 or RTOA 1988. Road transport and specifically both RTA 1988 and RTOA 1988 are reserved matters in terms of the Scotland Act. Accordingly, it is submitted, it is not within the legislative competence of the Scottish Parliament to intromit with the sentencing powers laid down in those statutes, and any purported attempt to do so is ultra vires.

[16] Since the issues raised in both bills of suspension are the same, and moreover since both complainers were represented by Mr Taylor, we decided to conjoin them and to dispose of them together.

The devolution minutes

[17] After the bills of suspension had been lodged in this court, devolution minutes for both complainers were also lodged. Reference is made in each of them to section 29 (1) of the Scotland Act 1998 in support of the proposition that section 45 of the 2007 Act intromits with reserved matters and is therefore outwith the legislative competence of the Scottish Parliament.

[18] The devolution minutes were intimated to the Advocate General. Although the devolution issues were not raised before the sheriff in accordance with Rule 40.3 of the Act of Adjournal (Criminal Procedure Rules) 1996, having heard submissions from Mr Taylor, and in the absence of opposition from the Crown or the Advocate General, we decided in the circumstances of the case to allow the devolution issues to be raised in the present proceedings in terms of Rule 40.5 (1).

Submissions of Counsel

Submissions for the Complainers

[19] In developing the averments in the bills of suspension and the devolution minutes, Mr Taylor submitted that road transport was a reserved matter. By increasing the sentencing power of the sheriff under RTOA 1988 for the offence of driving while disqualified, section 45 of the 2007 Act made modifications to Scots criminal law as it applied to this reserved matter. It accordingly fell to be treated as relating to this reserved matter, as provided by section 29(4) of the Scotland Act. The proviso in the subsection did not apply to a provision which sought to amend a statute relating to a reserved matter. Its purpose was to preserve the integrity of United Kingdom legislation on reserved matters. RTOA 1988 could be amended by an Order made by the Secretary of State in exercise of the powers conferred by sections 104, 112(1) and 113(4) and (5) of the Scotland Act, in the form of a statutory instrument laid before the United Kingdom Parliament in accordance with section 115(1) of, and paragraphs 1, 2 and 3 of Schedule 7 to, that Act. This had been done in the case of The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (Powers of District and JP Courts) Order 2007 (S.I. 2007 No. 3480 (S. 7)). Why should this Order exist if the Scottish Parliament could sort these problems out itself?

Submissions for the Lord Advocate

[20] The Advocate depute submitted that the purpose and effect of the provision in section 45 of the 2007 Act is to increase generally the criminal sentencing powers of a court of summary jurisdiction, the sheriff court, and so to enable such courts to deal with a wider range of cases in terms of severity and caseload. The provision does not increase the maximum sentence on conviction for the offence itself, which remains triable on indictment or by summary complaint; it only increases the sentencing power of the sheriff. The provision does not relate to the reserved matter set out in Head E1(d) in Part II of Schedule 5 to the Scotland Act. To the extent that the provision merely makes modifications of Scots criminal law (e.g. the penalties which may be imposed by sheriffs on conviction following a summary complaint) as it relates to reserved matters, and would not otherwise relate to reserved matters, section 29(4) of the Scotland Act provides that the provision is to be treated as relating to reserved matters "unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise". In the present case, the purpose of the provision is to make the relevant Scots criminal law (namely the law with regard to penalties, procedure and jurisdiction in relation to the sheriff) apply consistently to both common law offences (section 43 of the 2007 Act, amending section 5 of the Criminal Procedure (Scotland) Act 1995) and also to statutory offences (whether contained in Acts of the Scottish Parliament or in Acts of the Westminster Parliament: see section 45 of the 2007 Act). Given that purpose, the provision does not fall to be treated as relating to the reserved matters set out in Head E1(d). In terms of paragraph 3 in Part I of Schedule 4 to the Scotland Act, the modifications made by section 45 of the 2007 Act to the reading of Part I of Schedule 2 to RTOA 1988 are merely incidental to, or consequential on, the more general aspect of the provision, which relates generally to the powers of the sheriff in relation to statutory offences, whatever their origin; and the modifications do not have a greater effect upon reserved matters than is necessary to give effect to the purpose of the provision in section 45.

Submissions for the Advocate General
[21] Miss Carmichael adopted the Advocate depute's submissions. She added that S.I. 2007 No. 3480 was made as part of the scheme provided by the 2007 Act for the replacement of district courts with justice of the peace courts, and consequential removal of the existing limitations on the powers of the district court when dealing with road traffic offences.

Discussion

[22] In our opinion the Advocate depute's submissions are clearly to be preferred. As can be seen from the foregoing summary, the discussion centred on the provisions of section 29(4) of the Scotland Act. Contrary to the averments in the bills of suspension and the devolution minutes, to the effect that section 45 of the 2007 Act relates to reserved matters, Mr Taylor did not invite us so to find.

[23] It was common ground between the parties that the penalties provided by RTOA 1988 for a contravention of section 103 (1)(b) of RTA 1988 are part of Scots criminal law, having regard to the inclusive definition contained in section 126(5) of the Scotland Act. It was also common ground that, since the subject-matter of the 1988 Acts is a reserved matter, as provided by Schedule 5 to the Scotland Act, one of the effects of section 45 of the 2007 Act is to make modifications to this part of Scots criminal law, as it applies to this reserved matter. Section 45 is accordingly to be treated as relating to this reserved matter, as provided by section 29(4) of the Scotland Act, unless the proviso to the subsection applies, i.e. unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.

[24] While we were not fully addressed on the extent to which recourse may legitimately be had to extra-statutory materials as an aid to the construction of a statutory provision such as section 45, in order to discover whether its purpose is such as to bring it within the proviso to section 29(4), it appears to us to be legitimate to have regard to the passages in the Policy Memorandum and Explanatory Notes, quoted above, which contain express statements about its purpose. From these it may be taken, as the Advocate depute submitted, that the purpose and of the provision in section 45 of the 2007 Act is to increase generally the criminal sentencing powers of the sheriff, sitting as a court of summary jurisdiction, and that the provision, construed in this light, fulfils this purpose. We agree with the Advocate depute that, in the present case, the purpose of the provision is to make Scots criminal law with regard to penalties, procedure and jurisdiction in the sheriff court apply consistently to both common law offences and statutory offences. As provided by paragraph 3 in Part I of Schedule 4 to the Scotland Act, the modifications made by section 45 of the 2007 Act to the reading of Part I of Schedule 2 to RTOA 1988 are merely incidental to, or consequential on, the more general aspect of the provision, which relates generally to the powers of the sheriff in relation to statutory offences, whatever their origin; and the modifications do not have a greater effect upon reserved matters than is necessary to give effect to the purpose of the provision in section 45. For the reasons given by Miss Carmichael, S.I. 2007 No. 3480 does not assist the complainers.

Disposal

[25] For these reasons, we shall refuse to pass both bills.