James Beattie+robert Logan V. Pf Jedburgh+pf Hamilton
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lord Nimmo Smith,Lord Wheatley |
| Neutral Citation | [2008] HCJAC61 |
| Court | High Court of Justiciary |
| Docket Number | XJ576/08 |
| Date | 02 July 2008 |
| Published date | 21 October 2008 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Nimmo Smith Lord Eassie Lord Wheatley |
[2008] HCJAC61 Appeal Nos: XJ576/08 and XJ519/08 OPINION OF THE COURT delivered by LORD NIMMO SMITH in 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.
[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,
(c) it is in breach of the restrictions in Schedule 4,
...
(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]...
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