Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 9

HCA/2016/27/XJ

Lord Justice General

Lord Malcolm

Lord Turnbull

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

BILL OF SUSPENSION

by

JQ

Appellant

against

PROCURATOR FISCAL, PAISLEY

Respondent

Appellant: A Ogg (sol adv); Tod & Mitchell, Paisley

Respondent: Edwards QC AD; the Crown Agent

1 February 2017

[1]        Section 129 of the Antisocial Behaviour etc. (Scotland) Act 2004 provides that a constable who has reason to believe that a person has committed “a fixed penalty offence” may give that person a fixed penalty notice offering an opportunity, by paying the penalty, to avoid conviction for the offence.  Offences include breach of the peace, being drunk and incapable in public, persisting in playing music on being required to stop, malicious mischief and vandalism.

[2]        In terms of section 130, the notice must specify the offence, the penalty and the clerk of the Justice of the Peace Court to which it may be paid.  The notice must state that the alleged offender has the right to be tried for the offence and how that right is to be exercised.

[3]        Section 131 states that, if the alleged offender asks to be tried, proceedings may be brought against him.  Such a request “shall” be made by that person giving notice in the manner specified in the fixed penalty notice within 28 days.  Otherwise, proceedings cannot be taken against the person.  If, within the 28 days, the penalty is not paid and no notice from him asking to be tried is made, then the person is liable to pay 1½ times the sum.  The sum for which the person is “liable” is to be “treated as if it were a fine imposed by the justice of the peace court” (s 131(6)).  There is provision (s 133) for a “constable” to revoke a notice if satisfied that the person did not commit the offence.  There is no express power in the 2004 Act, as there is in the equivalent provisions in England (Criminal Justice and Police Act, s 10(5)) for the court to “set aside” such a “fine”, although section 213(1) of the Criminal Procedure (Scotland) Act 1995 allows a court to remit a fine which it has imposed in whole or in part.

[4]        On 12 August 2016 the appellant, who is aged 16, was issued with a fixed penalty notice for a breach of the peace committed at an address in Johnstone.  He avers that he had intended “to reject this notice and request a court hearing in order to establish his innocence”.  He gave the notice to his father, who had agreed to “deal with the matter”.  His father then forgot about it.  The statutory consequences then followed.  On 17 September 2016, the appellant received a “Notice of Registration of Fine ...” from the Clerk at Paisley Justice of the Peace Court stating that a “fine” of £60 had been registered against him in the court because he had failed to pay the fixed penalty (of £40).  The Notice required him to pay the “fine” by 15 October 2016, which failing the Fines Enforcement Officer might obtain an enforcement order against him.  Although this process does not involve any criminal conviction, the notice and “fine” are recorded.  They will not appear in any list of previous convictions, but may appear in circumstances involving “Enhanced Disclosure”. 

[5]        It is contended that the statutory provisions are incompatible with Article 6 of the European Convention because they “reverse the onus of proof after the 28 day period whereby the [appellant] is presumed guilty of the offence”.  The absence of a provision for challenge is also incompatible.  The “failure to provide an appeal procedure” deprives the relevant person of an effective remedy and is incompatible with Article 13.  On this basis the appellant, having no other remedy, seeks suspension of the registration of the fine.  There is also a plea of oppression regarding the operation of the system.

[6]        The Crown contend that the proceedings complained of are not criminal but administrative.  They play no part in them.  A Bill of Suspension is therefore an incompetent mode of review (MacLeod v Levitt 1969 JC 16).

[7]        The High Court’s powers at common law are those of “reviewing, in the widest sense of the word, the proceedings of all the inferior courts in Scotland in criminal matters” (Moncrieff: Review in Criminal Cases 162).  Suspension is appropriate to review “an illegal or irregular warrant, conviction or judgment of an inferior court” (ibid 170).  In modern practice, criminal proceedings are those instituted by the public prosecutor by indictment or complaint.  They involve “not the constitution and enforcement of a mere debt, but conviction as for an offence and sentence in modum poenae” involving the party being brought before the court, with the determination “being in the form of conviction, and not of decree” (Stevenson v Scott (1854) 1 Irv 603, Lord Ivory at 610, followed in Bruce v Linton (1861) 24 D 184).  On this basis, a Bill of Suspension is not a competent mode of proceeding; nor is a petition to the nobile officium of the High Court.  The act of registering the sum due as if it were a fine is not something capable of being suspended by the High Court since it involves no judicial act of a criminal court.  Suspending registration would simply leave the whole matter in limbo, since the fixed penalty notice would remain in existence.  The challenge which the appellant seeks to make is to the compatibility of the relevant provisions of the 2004 Act with Articles 6 and 13 of the European Convention.  If that is his aim, he may do so in the Court of Session by way of a petition for judicial review calling the Scottish Ministers, and possibly Police Scotland, as parties and seeking reduction of the Fixed Penalty Notice accordingly. 

[8]        In these circumstances it is neither necessary nor appropriate for the court to address the substantive issues raised in the Bill.  None of this is to say that, for the purposes of Article 6 of the European Convention, the procedure would not be classified as criminal.  Applying the criteria in Engel v Netherlands (No. 1) (1976) 1 EHRR 647 (at para 81), it may be that the nature of the offence, as described in the 2004 Act, may prompt such a classification notwithstanding the domestic one and the limited nature of the penalty.  Ozturk v Germany (1984) 6 EHRR 409 may be seen as an example of this (cf S v Miller 2001 SC 977, LP (Rodger) at para [20]; R (McCann) v Manchester Crown Court [2003] 1 AC 787).  However, classification of the proceedings in this way does not alter the appropriate domestic procedure for review.