Scottish Sheriff Court Decisions

PROCURATOR FICAL (GLASGOW) v. JOHN MORRISON [2001] ScotSC 4 (31st January, 2001)

NOTE:

Two summary complaints called before me on 10 May 2000 in which the accused was charged with various offences under the Road Traffic Act 1988. In each of the complaints the accused had lodged a minute in which he gave notice that he intended to raise a devolution issue within the meaning of schedule 6 of the Scotland Act 1998. There was insufficient time on 10 May 2000 to conclude the hearing. Regrettably the earliest date compatible with the diaries of Mr Franchi for the accused, Mrs McCruden  for the Crown and myself, was 28 June 2000.

On 28 June 2000 the Crown intimated that they were deserting one of the two complaints and that left only the complaint in which the accused faced a charge of driving whilst disqualified in terms of section 103(1)(b) of the 1988 Road Traffic Act. The date of the alleged offence was 3 December 1998 with service of the complaint being effected on 18 January 2000. The complaint bore a certificate signed by the Procurator Fiscal in terms of section 6 of the Road Traffic Offenders Act 1988, to the effect that evidence sufficient in the opinion of the prosecutor to warrant proceedings in respect of the offence came to the attention of the prosecutor on 23 November 1999. I was told that were it not for the certificate the prosecution would have been time-barred. Consistent with normal practice, there was no statement available to the accused which would enable him to understand how it came to be that sufficient evidence only came to the attention of the Procurator Fiscal to warrant the raising of proceedings nearly one year after the alleged offence.

Mr Franchi for the accused referred me first to section 57(2) of the Scotland Act 1998 as the now well known authority for the proposition that a member of the Scottish Executive has no power to act in a manner incompatible with any of the rights set out in the European Convention On Human Rights. I was then taken to section 44 of the Scotland Act 1998, where the Lord Advocate is said to be a member of the Scottish Executive. The procurator fiscal depute was accepted as the Lord Advocate's representative. I was then taken to Article 6 of the Convention and reminded that it makes provision for an accused to have a right to a fair and public hearing within a reasonable time.

It was submitted that the Road Traffic Act 1988 requires summary proceedings to be commenced within six months of the alleged offence. Section 6 of the Road Traffic Offenders Act 1988 gave to the Crown some leeway in that for an offence to which section 6 applied, and there was no dispute that a contravention of section 103(1)(b) was such an offence, the proceedings might be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the prosecutor's knowledge. My attention was then drawn to the terms of section 6(3) to the effect that such a certificate was to be "conclusive evidence" of the date when evidence sufficient to warrant proceedings came to the prosecutor's attention. Thus, the accused must accept what is contained within the certificate. The use of section 6 was incompatible with the terms of Article 6. If that was accepted then the Procurator Fiscal had no power to grant the certificate and thus to bring these proceedings as to do so was incompatible with a Convention right. section 57(2) of the Scotland Act 1998 was cited as the statutory authority.

Mr Franchi then referred me to the case of Brown v Stott 2000 SCCR 314 to vouch the proposition that one must look at the whole proceedings in their context and come to a view as to whether it could be said that the accused would receive a fair hearing.

By way of analogy Mr Franchi then referred me to the case of Burn, Petitioner 2000 SCCR 384. In this case the court had been invited to find that the decision in Normand v B 1995 SLT 162 was no longer good law in that standing the introduction of the Convention by way of the Scotland Act 1998, the Crown required to provide sufficient general information to the court when opposing a bail application at a time when the Crown did not feel able to move that the accused be fully committed and wished a continuation for further enquiry. I was particularly referred to p 391. The court accepted the invitation and held that "the Crown must provide sufficient general information relating to the particular case to allow the sheriff to consider the merits of the motion that the accused should be committed to prison and detained there for further examination". By virtue of the decision of the court in Burn it was submitted that the Crown were not now entitled to hide behind the terms of a certificate granted in terms of Section 6(1) of the Road Traffic Offenders Act 1988. There required to be a transparency which was absent in this case. Accordingly, I was invited to find that the issuing of the certificate which commenced these proceedings was an act incompatible with the accused's rights under the Convention and I should so find.

In reply, the Crown submitted that any certificate granted in terms of Section 6 was capable of challenge on two bases. These were, (one), if the certificate was incompetent due to an inaccuracy on its face and (two) if fraud could be shown. On being asked how the accused might know that there was fraud absent any statement explaining how the evidence came to the prosecutor, I was referred to the single judge decision in the case of Her Majesty The Queen v Hasan Cocelli a decision of the General Division of the Ontario Court of Justice. If I understand the print-out from Lexis which was handed up to me, the citation would appear to be 15 OTC 85. Using this case as an authority, I was told that both the court and the accused had to accept that the Crown would exercise its discretion properly and the accused should not be entitled to see the Fiscal's reasoning nor, indeed, to put a policeman in the witness box.

I was also referred to the case of H v The Director Of Public Prosecutions and The Commissioner Of The Garda Siochana 1994 IR 589. I was particularly referred to the final paragraph at the foot of p 600 where it was said that since no prima facie case of mal fides had been made out against either of the respondents, i.e. the prosecutor and the police, the prosecutor could not be called upon to explain his decision not to initiate criminal proceedings in the particular case.

I was told that in both the Canadian and Irish cases the individual's rights were contained in a Bill of Rights, although it was acknowledged that the terms of the respective Bills were not set out in either of the cases, and not otherwise available to the Court.

I was then referred to the case of Salabiaku v France 13 EHRR 379. This case was said to be an authority for the proposition that Article 6(2) required states to confine any presumptions of fact or of law within reasonable limits, which would take into account the importance of what was at stake and at the same time maintain the rights of the defence. It was a balancing exercise. The balance had been struck in this case.

The Crown's second submission was that if the certificate issued in terms of section 6(1) of the Road Traffic Offenders Act 1988 was unchallengeable, it was still not incompatible with Article 6. Throughout the proceedings the Crown would have the burden of proving the facts and there was no evidential burden on the accused. Accordingly, the certificate would not result in a trial which would be unfair. The court should consider the proceedings as a whole and all that we were talking about was a procedural device to extend the time limit. It was still incumbent on the Crown to prove the offence which might be that harder given the passage of time.

The third submission made by the Crown was to the effect that if I came to the view that the issuing of a certificate without any accompanying statement of facts was a contravention of Article 6 then section 57(3) of the Scotland Act came into play. Section 57(3) of the Scotland Act 1998 in turn refers to the terms of section 6 of the Human Rights Act 1998. It was submitted that these provisions taken together, protected the prosecuting authority which sought to prosecute a statutory offence, which was itself contrary to Convention rights. It was submitted that Brown v Stott had been used out of context by Mr Franchi. It was perfectly competent for a policeman to ask the registered owner of a vehicle the appropriate question and there was still an obligation upon the registered owner to answer the question. The effect of the decision was that the Crown had no power to lead the answer in evidence. In this case the Crown did have powers. They were contained in section 6 of the Road Traffic Offenders Act 1988. Burn was a case involving a different Article and different tests applied. The accused's liberty was at stake. But even then the Court, at p 391E, had to put a limit upon the information to which the accused was entitled in that it would not extend to operational details. If the defence submission was correct the Crown would need to disclose operational details in any accompanying statement. It was submitted that section 6(2)(b) of the Human Rights Act 1998 properly understood meant that if there were two ways in which effect could be given to the primary legislation, one of which was compatible with the Convention rights and the other not, then the Crown must choose the former. Thus, the terms of section 172 of the Road Traffic Act 1988 were rendered compatible by restricting the use to which the answer to the question could be put.

The fourth submission on behalf of the Crown was that even if I was against the Crown in their submissions to date, I must still be satisfied that there was unfairness to the accused. The authority for this was said to be found in Montgomery and Coulter v HMA (Appeal Court, High Court of Justiciary, unreported, 16 November 1999). I was referred in particular to the fifth page of the Opinion of the Lord-Justice General.

In reply Mr Franchi dealt with what an accused could do if a statement which accompanied a certificate as he had suggested, was, in the opinion of the accused, insufficient to warrant the conclusion that information had come to the attention of the prosecutor to warrant the prosecution less than six months earlier. His response was that a hearing might be fixed to test the competency and relevancy of what was stated in the certificate in much the same way as one tests whether the Crown have delayed unreasonably in executing an initiating warrant which they had obtained on a summary complaint.

Insofar as the Crown's submission that the defence needed to establish that there was an element of unfairness in the prosecution, he submitted that the issue was quite straightforward. There was prejudice by virtue of the case having got off the ground. Absent the certificate, the proceedings would be time-barred. Therefore, there was prejudice.

In dealing with the Crown's third submission in relation to the application of section 57(3) of the Scotland Act 1998, he submitted that the point had been dealt with in Brown v Stott at pp 320 and 321. He considered that the terms of the statute could be given effect in a manner compatible with Convention rights. All that was required was a statement accompanying the certificate.

According to my notes, the hearing before me on 28 June proceeded on the basis that the Road Traffic Act 1988 required the Crown to bring any proceedings for an alleged contravention of section 103(1)(b) within six months of the commission of the offence. I have not been able to find such a provision in the Act. I then considered the terms of section 136(1)(a) of the Criminal Procedure (Scotland) Act 1995 to see if that provision imposed a six month time limit on the Crown. I came to the view that this section did not impose any time limit by virtue of the fact that sub-section 2 of section 136 of the Criminal Procedure (Scotland) Act 1995 provides that the section applies to any offence triable only summarily. A contravention of section 103(1)(b) of the Road Traffic Act 1988 can be tried either summarily or on indictment.

I then considered if section 6 of the Road Traffic Offenders Act 1988 imposed such a time limit. Section 6, to my mind, is not the easiest of sections to interpret in this context. The difficulty is that the section was drafted at a time when section 331 of the Criminal Procedure (Scotland) Act 1975 was in force. Section 331 was different from section 136 of the 1995 Criminal Procedure (Scotland) Act, its statutory successor, in that section 331 of the 1975 Criminal Procedure (Scotland) Act applied to all summary prosecutions and not just to those triable only summarily. If section 6 of the Road Traffic Offenders Act 1988 had been intended to impose a time limit I would have expected Parliament to have embraced a terminology similar to that used in section 136(1) of the Criminal Procedure (Scotland) Act 1995. One there finds the provision that "proceedings...shall be commenced- (a) within six months after the contravention occurred..." (my emphasis).

The form of words used in section 6 of the Road Traffic Offenders Act 1988 is similar to that adopted in section 25(5) the Misuse of Drugs Act 1971 in that both sections indicate the circumstances in which proceedings may be brought or commenced. Section 25(5) is in the following terms:-

"Notwithstanding anything in section 23 of the Summary Jurisdiction (Scotland) Act 1954 (limitation of time for proceedings in statutory offences) summary proceedings in Scotland for an offence under this Act may be commenced at any time within twelve months from the time when the offence was committed..." (my emphasis).

Thus section 25(5) of the Misuse of Drugs Act 1971 extended the time for bringing summary proceedings for offences under the Act from the six month period imposed by the Summary Jurisdiction (Scotland) Act 1954 to twelve months. Its terms provide to the prosecutor a leeway from the otherwise strict provisions of the 1954 Act.

Section 6(1) of the Road Traffic Offenders Act 1988 provides:-

"...summary proceedings... may be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge."(my emphasis).

As in the Misuse of Drugs Act 1971, one finds that Parliament, in the Road Traffic Offenders Act 1988, adopted the permissive expression "may". In my opinion this was intended to, and did, provide to the prosecutor a leeway from the otherwise unqualified six month time limit imposed by section 331 of the Criminal Procedure Act 1975 which was the statutory successor to the Summary Jurisdiction (Scotland) Act 1954. Although not specifically provided, the intent was that, like section 25(5) the Misuse of Drugs Act 1971, the section was to be read as if it had been prefaced with the words "Notwithstanding anything in section 331 of the Criminal Procedure (Scotland) Act 1975 ... summary proceedings ... may be brought within a period of six months from the date etc." Therefore, like section 25(5) of the Misuse of Drugs Act 1971, the effect of section 6(1) of the Road Traffic Offenders Act 1988 is to provide the Crown with some latitude from the otherwise strict time limits for bringing summary prosecutions. Neither section imposes the time limits. The imposition is achieved by other statutory provisions. Since section 331 of the Criminal Procedure (Scotland) Act 1975 is no longer in force and, for reasons previously explained, its successor, section 136 of the Criminal Procedure (Scotland) Act 1995, does not apply to summary prosecutions for offences under section 103(1)(b) of the Road Traffic Act 1988, there is no other statutory provision to impose the time limit for such offences.

In my opinion therefore the only time restriction upon the prosecutor when bringing proceedings for a contravention of section 103(1)(b) of the Road Traffic Act 1988 is what is provided by the common law i.e. mora. The certificate on the face of the complaint against the accused is not therefore required. Whether it breaches the terms of the European Convention of Human Rights is therefore irrelevant. Accordingly the challenge by the accused fails.

If the foregoing analysis is incorrect and one should read "shall" for "may" in section 6(1) of the Road Traffic Offenders Act 1988 it follows that the only means by which the Crown can bring a prosecution for a contravention of section 103(1)(b) of the Road Traffic Act 1988 is by certifying that evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the knowledge of the prosecutor within the six month period prior to the commencement of the proceedings. If the proceedings are initiated within six months of the commission of the offence then no certificate will ordinarily be necessary as it will be axiomatic that the information warranting the proceedings had come to the knowledge of the prosecutor within the six month period. If the proceedings are commenced more than six months after the date of the offence a certificate in terms of the section must be provided. However, on this analysis, there must always be a certificate either impliedly or expressly granted in terms of the section.

It seems to me that if one looks at section 6 of the Road Traffic Offenders Act 1988 it does lack the degree of transparency and openness consistent with the Convention. Before me the Crown did not really contest the principle. They concentrated on the operational difficulties which would arise if they required to justify the facts certified. I do not see any significant problem for the Crown in providing an explanation as to why, for example, a summary prosecution is commencing some two years and eleven months after the commission of the offence. Furnishing the requisite information for and attending at a hearing similar to that to decide if an initiating warrant has been executed within a reasonable time would not be an intolerable burden on the Crown. There would be no question of the prosecutor or the police having to go into the witness box to give evidence nor the need to give operational details to any greater extent than is the case when examining the issue of undue delay in the execution of a warrant.

On the other hand I can well see that prejudice might arise if a prosecution is not commenced until just before the expiry of the three year period provided as a long stop by section 6(2) of the Road Traffic Offenders Act 1988. There are usually only two issues in a trial for the offence of driving whilst disqualified i.e. at the relevant time (a) was the accused disqualified and (b) was the accused driving. Delay is unlikely to impact adversely in relation to (a) but could well do so in relation to (b). All witnesses, both prosecution and defence, will need to cast their minds back to events of some antiquity. Identification evidence will be that less reliable. Defence witnesses may prove difficult, if not impossible, to trace. Accordingly it seems to me that prejudice, and therefore unfairness, could readily arise. I do not consider that it is an adequate response for the Crown to say that the accused is protected because the evidential burden is always with the Crown. Thus consistent with the concept of a fair trial within a reasonable time the court should have some discretion in relation to the assertion by the Crown that information has only come to their knowledge, perhaps in some cases, nearly three years after the incident giving rise to the summary prosecution. I must therefore conclude that, on an ordinary construction, the terms of the section are incompatible with article 6 of the Convention.

Following the template set out in section 6 of the Human Rights Act 1998 one must next consider if it is possible to read and give effect to the provisions in any other way which would be compatible with the Convention. Mr Franchi's proposal was that there should be a statement accompanying the certificate explaining how the information had only come to the attention of the prosecutor within the six month period. There could then be a hearing if the accused wished to challenge the terms of the certificate. Now section 6 of the Road Traffic Offenders Act 1988 makes no provision for there being a statement accompanying such a certificate. In fact section 6(3) of the Road Traffic Offenders Act 1988 provides that the certificate will be conclusive evidence of the fact so certified. That militates against an explanatory statement having any purpose. The Court cannot go behind the certificate.

In the Crown's submission two alternative positions in relation to section 6 were advanced. One was that the certificate was not open to challenge under any circumstance. The other was that the certificate could be challenged but on limited grounds only. These grounds were a) where it is plain that there has been fraud and b) where the certificate was wrong on its face. In R v Haringey Magistrates Court Crown Counsel put forward these exceptions as "possible." The point, however, was not decided in the case since neither of these two grounds were advanced. I can see that if the certificate can be said to be wrong by an examination of its terms it might be said to be void ab initio. One wouldn't then require to go behind the certificate to challenge it. Precisely what was meant by "fraud" is not discussed in the report of the case and was not explored before me. I have doubts if the existence of fraud would circumvent the conclusivity provided by section 6(3).

In any event it seems to me that by providing that the certificate is conclusive an explanatory statement would be quite redundant. The statement could only have value if at a hearing the Court had a discretion to go behind the certificate. The hearing on the statement proposed by the accused would be pointless. This falls to be contrasted with a hearing in which a prosecution is challenged due to unreasonable delay in executing an initiating warrant or a hearing of a bail application when, at the petition stage of solemn proceedings, the Crown wish the accused to be remanded in custody pending the Crown making further enquiries. In these cases the Court has a discretion to exercise. Thus the terms of section 6(1) cannot be read or given effect in a way which is compatible with the Convention rights

For the foregoing reasons I have come to the view that on this alternative interpretation of section 6 of the Road Traffic Offenders Act 1988 its terms are incompatible with article 6 of the Convention and that the legislation cannot be read or given effect in a way which is compatible with the Convention rights. This view is of course academic because on my preferred analysis of the statutory provisions no certificate is required. Furthermore I was not invited, nor is it competent for me, to determine compatibility

Section 6(1) and (2) of the Human Rights Act 1998 provides:

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if-

1. as the result of one or more provisions of primary legislation, the

authority could not have acted differently; or

2. in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce these provisions."

Section 57(3) of the Scotland Act 1998 provides that section 57(2) does not apply to an act of the Lord Advocate or his representative if because of subsection (2) of section 6 of the Human Rights Act 1998 the act of the Lord Advocate is not unlawful. Thus, in my opinion, section 57(2) of the Scotland Act 1998 does not apply to the acting of the Lord Advocate's representative.

Accordingly on this analysis also, the challenge by the accused fails.