Logan v Harrower
| Jurisdiction | Scotland |
| Judgment Date | 02 July 2008 |
| Neutral Citation | [2008] HCJAC 61 |
| Docket Number | No 1 |
| Date | 02 July 2008 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Nimmo Smith, Lord Eassie, Lord Wheatley
Justiciary - Devolution issue - Competency of Scottish Parliament - Whether increase in maximum sentence on summary conviction of road traffic offence within competence of Scottish Parliament - Road Traffic Offenders Act 1988 (cap 53), sch 2, Pt 1 - Criminal Proceedings etc (Reform) (Scotland) Act 2007 (asp 6), sec 45 - Scotland Act 1998 (cap 46), sec 29
Justiciary - Sentencing - Driving while disqualified - Whether increase in maximum sentence on summary conviction within competence of Scottish Parliament - Road Traffic Offenders Act 1988 (cap 53), sch 2, Pt 1 - Criminal Proceedings etc (Reform) (Scotland) Act 2007 (asp 6), sec 45 - Scotland Act 1998 (cap 46), sec 29
Part 1 of sch 2 to the Road Traffic Offenders Act 1988 (cap 53) stipulates that the maximum punishment for an offence of driving while disqualified (contrary to sec 103(1)(b)) proceeding under a summary prosecution is "6 months imprisonment or the statutory maximum or both".
Section 43 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (asp 6) increased to 12 months the maximum sentence of imprisonment which may be imposed by a sheriff, sitting as a court of summary jurisdiction, for a common law offence. Section 45 provides that the maximum penalty on summary conviction of a statutory offence triable either way and punishable by less than 12 months' imprisonment, should be increased to 12 months.
Section 29 of the Scotland Act 1998 (cap 46) provides that 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. A provision is outside that competence if, inter alia, it relates to reserved matters.
The complainers both appeared on a summary complaint and pled guilty to, inter alia, offences of driving while disqualified. The complainer Logan was sentenced to nine months' imprisonment in respect of this offence and the complainer Beattie to concurrent sentences of eight months' imprisonment.
Both complainers sought, by way of a bill of suspension to challenge the competency of the sentence of imprisonment by the sheriff. They argued that the sentence was incompetent because it exceeded the statutory limit of six months' imprisonment provided by the Road Traffic Offenders Act 1988 for an offence of driving while disqualified, brought on a summary complaint. It was argued that sec 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 had no application. Road transport and specifically both the Road Traffic Act 1988 (cap 52) and the Road Traffic Offenders Act 1988 were reserved matters in terms of the Scotland Act 1998. It had not been 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 was ultra vires.
The Crown argued that the purpose and effect of the provision in sec 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 had been 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 case load. The provision did not increase the maximum sentence on conviction for the offence itself, it only increased the sentencing powers of the sheriff. The purpose of the provision had been to make the relevant Scots criminal law apply consistently to both common law and statutory offences. Given that purpose, the provision did not fall to be treated as relating to the reserved matters. The modifications did not have a greater effect upon reserved matters than had been necessary to give effect to the purpose of the provision in sec 45.
The Advocate General adopted the Crown's submissions.
Held that: (1) the purpose of the provision had been 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 (para 24); (2) the modifications had been merely incidental to, or consequential on, the more general aspect of the provision (para 24); (3) the modifications had had no greater effect upon reserved matters than had been necessary to give effect to the purpose of the provision in sec 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (para 24); and bills of suspension refused.
James William Beattie was charged in the sheriffdom of Lothian and Borders at Jedburgh at the instance of ARG Fraser, procurator fiscal there, on a summary complaint charged with, inter alia, two offences of driving while disqualified. The appellant appeared before a sheriff (TAK Drummond QC) on 17 April 2008 and pled guilty. He was sentenced, inter alia, to eight months' imprisonment in respect of the offences of driving while disqualified.
The appellants thereafter appealed by way of a bill of suspension against the length of the custodial sentences imposed to their Lordships in the High Court of Justiciary.
Textbooks etc. referred to:
Explanatory Notes to the Criminal Proceedings etc (Reform) (Scotland) Bill (SP Bill 55-EN, 2006) (TSO, Norwich, 2006), paras 249, 256, 259
McInnes, J, Summary Justice Review Committee: Report to Ministers (Scottish Executive, Edinburgh, 2004)
Policy Memorandum to the Criminal Proceedings etc (Reform) (Scotland) Bill (SP Bill 55-PM, 2006) (TSO, Norwich, 2006), paras 206-209
Summary Justice Review Committee, Smarter Justice, Safer Communities: Summary Justice Reform - Next Steps (Scottish Executive, Edinburgh, 2005)
The cause called before the High Court of Justiciary, comprising Lord Nimmo Smith, Lord Eassie and Lord Wheatley, for a hearing on 2 July 2008.
Eo die the opinion of the Court was delivered by Lord Nimmo Smith-
Opinion of the Court-
[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 sec 103(1)(b) of the Road Traffic Act 1988 (cap 52) ('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 sec 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.
[4] As already noted, it is an offence to drive while disqualified, contrary to sec 103(1)(b) of RTA 1988. The Road Traffic Offenders Act 1988 (cap 53) ('RTOA 1988') provides by sec 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...
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