MARTIN ROBERTSON v K FRAME (Procurator Fiscal, Aberdeen)
| Jurisdiction | UK Non-devolved |
| Judgment Date | 06 February 2006 |
| Neutral Citation | 2006 SCCR 151,[2005] UKPC D2 |
| Date | 06 February 2006 |
| Docket Number | No 2 |
| Court | Privy Council |
Judicial Committee of the Privy Council
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood
Justiciary - Human rights - Devolution issue - Summary procedure - Acquiescence - Temporary sheriffs - Not independent and impartial tribunal - Complainers delaying in presenting bills of suspension against conviction and sentence - Whether plea of acquiescence available to the Crown - Whether acquiescence - Scotland Act 1998 (cap 46), sec 57(2) - European Convention on Human Rights and Fundamental Freedoms, Art 6(1)
Martin Robertson was convicted of assault in a trial before a temporary sheriff on 10 August 1999, and admonished on 30 September 1999. Seamus O'Dalaigh pled guilty to a contravention of the Road Traffic Act 1988 before a temporary sheriff on 12 October 1999, and on that date was fined and disqualified from holding or obtaining a driving licence for 15 months. He appealed against his sentence and on 20 January 2000 the appeal court reduced the period of disqualification to 12 months. On 11 October 2000 he paid the fine in full. Kevin Ruddy pled guilty to contraventions of the Road Traffic Act 1988 before a permanent sheriff on 8 September 1999, and on 20 October 1999 a temporary sheriff made a probation order subject to the performance of 80 hours' community service and disqualified him from driving for three years. He performed some of the community service, but proceedings were taken against him for breach of the condition of his probation order. In the course of those proceedings in November 2001 he argued that the probation order had been imposed by a temporary sheriff and was therefore invalid. The complainers lodged bills of suspension in the High Court of Justiciary on 26 October 2001, 5 December 2001 and 11 February 2002 respectively, praying the court to suspend the convictions and sentences imposed by the temporary sheriffs. Since the complainer Ruddy's bill did not seek interim suspension, a further bill was lodged on 4 March 2002.
The bills called before the High Court of Justiciary, comprising Lady Cosgrove, Lord Kingarth and Temporary Judge Nicholson QC, for a hearing, on 11 September 2003. At advising, on 12 September 2003, the court referred the cases to a court of five judges on the grounds that the court might require to consider whether the decision in Lochridge v Miller 2002 SLT 906 should be reviewed.
The bills called before the High Court of Justiciary, comprising the Lord Justice-General (Cullen of Whitekirk), Lord Hamilton, Lord Macfadyen, Lady Cosgrove and Lord Philip, for a hearing on 21 and 22 September 2004. At advising, on 18 January 2005, the court refused the bills (2005 1 JC 210). The court granted leave to appeal to the Judicial Committee of the Privy Council.
The complainer Robertson was convicted of assault in a trial before a temporary sheriff on 10 August 1999, and admonished on 30 September 1999. The complainer O'Dalaigh pled guilty to a contravention of the Road Traffic Act 1988 (cap 52) before a temporary sheriff on 12 October 1999, and on that date was fined and disqualified from holding or obtaining a driving licence for 15 months. He appealed against his sentence and on 20 January 2000 the appeal court reduced the period of disqualification to 12 months. On 11 October 2000 he paid the fine in full. The complainer Ruddy pled guilty to contraventions of the Road Traffic Act 1988 before a permanent sheriff on 8 September 1999, and on 20 October 1999 a temporary sheriff made a probation order subject to the performance of 80 hours' community service and disqualified him from driving for three years. He performed some of the community service, but proceedings were taken against him for breach of the condition of his probation order. In the course of those proceedings in November 2001 he argued that the probation order had been imposed by a temporary sheriff and was therefore invalid. On 11 November 1999 the court held that a conviction or sentence pronounced by a temporary sheriff was invalid (Starrs v RuxtonSC2000 JC 208). The complainers lodged bills of suspension on 26 October 2001, 5 December 2001 and 11 February 2002 respectively, challenging their convictions and sentences on the grounds that it was incompetent for the respondents to proceed with prosecutions before temporary sheriffs. The respondents maintained that, by reason of their delay in challenging their convictions and sentences, the complainers should be regarded as having acquiesced in them. The complainers argued that the defect in their cases was properly regarded as a fundamental nullity, and that they could never be barred by acquiescence from suspending a conviction or sentence which was fundamentally null. A court of five judges in the High Court of Justiciary refused the bills, but granted leave to appeal to the Judicial Committee of the Privy Council.
Held that: (1) if suspension is to work in the interests of both the complainer and the public, it should be sought promptly and therefore when someone delays and acquiesces, the court is generally justified in refusing to pass his bill of suspension (paras 1, 2, 8, 41, 53, 60); (2) a person who acquiesces in his conviction and sentence, even though he knows that they are open to challenge, thereby loses his right to have the High Court of Justiciary redress the wrong by suspending the conviction and sentence, and without that redress, the conviction and sentence stand, even though there has been an infringement of the convicted person's Art 6(1) rights (paras 1, 2, 17, 43-46, 53, 56, 57, 60); (3) if suspension is to be permitted despite the complainer's acquiescence, the defect must be sufficiently serious to overcome the policy of the law in favour of upholding convictions and sentences which the complainer has accepted and which have been treated as valid for a considerable period, and since waiver could be effective in this context, there was no compelling policy reason for precluding the equivalent plea of acquiescence, where knowledge of the defect was only acquired after the decision had been made (paras 1, 2, 15, 16, 50, 51, 53, 58, 60); (4) the complainers waited for around two years before challenging their convictions and sentences, and during that time none of them took any public step which suggested that they were disputing the legality of their conviction or sentence and indeed the complainers O'Dalaigh and Ruddy took steps which indicated that they accepted that their convictions and sentences were lawful, and they had acquiesced in their convictions and sentences (paras 1, 2, 17, 52, 53, 60); and appeals dismissed.
Lochridge v Miller 2002 SLT 906 approved.
Cases referred to:
Advocate (HM) v Fraser (1852) 1 Irv 1
Aitkenhead v CuthbertSC 1962 JC 12; 1962 SLT 18; 1961 SLT (Notes) 77
Armia Ltd v Daejan Developments LtdSC 1979 SC (HL) 56; 1979 SLT 147
Cassidy v Friel 1995 SLT 391
Duncan v Ramsay (1853) 1 Irv 208
Dyer v WatsonUNKSCUNKELRWLRUNK [2002] UKPC D1; 2002 SC (PC) 89; 2002 SLT 229; 2002 SCCR 220; [2004] 1 AC 379; [2002] 3 WLR 1488; [2002] 4 All ER 1
Gilchrist v Anderson and WalkerUNK (1838) 1 D 32
Gillies v Jeffrey (1839) 2 Swinton 454
Hull v HM AdvocateSC 1945 JC 83; 1945 SLT 202
Law and Nicol v HM Advocate 1973 SLT (Notes) 14
Lochridge v MillerUNK 2002 SLT 906; 2002 SCCR 628
Low v Rankine 1917 JC 39; 1917 1 SLT 292
McFadyen v AnnanSCUNK 1992 JC 53; 1992 SLT 163; 1992 SCCR 186
Maclellan v Miller (1832) 11 S 187
Millar v DicksonUNKSCUNKWLRUNK [2001] UKPC D4; 2002 SC (PC) 30; 2001 SLT 988; 2001 SCCR 741; [2002] 1 WLR 1615; [2002] 3 All ER 1041
Mills v HM AdvocateUNKSCUNKELRWLR [2002] UKPC D2; 2003 SC (PC) 1; 2002 SLT 939; 2002 SCCR 860; [2004] 1 AC 441; [2002] 3 WLR 1597
Montgomery v HM AdvocateUNKSCUNKELRWLR [2002] UKPC D2; 2001 SC (PC) 1; 2001 SLT 37; 2002 SCCR 1044; [2003] 1 AC 641; [2001] 2 WLR 779
Normand v RooneySCUNK 1992 JC 93; 1992 SLT 275; 1992 SCCR 336
Philip v Earl of Rosslyn (1833) 5 Scottish Jurist 433
R v HM AdvocateUNKSCUNKELRWLR [2002] UKPC D3; 2003 SC (PC) 21; 2003 SLT 4; 2003 SCCR 19; [2004] 1 AC 462; [2003] 2 WLR 317
Robertson v HigsonUNK [2005] HCJAC 2; 2005 1 JC 210; 2005 SLT 131; 2005 SCCR 134
Russell v Colquhoun (1845) 2 Broun 572
Shields v DonnellySCUNK 2000 JC 46; 2000 SLT 147; 1999 SCCR 890
Skinner v Adamson (1842) 1 Broun 67
Smith v East Elloe Rural District CouncilELRWLRUNK [1956] AC 736; [1956] 2 WLR 888; [1956] 1 All ER 855
Smith v Forbes and Low (1848) Arkley 508
Starrs v RuxtonSCUNK 2000 JC 208; 2000 SLT 42; 1999 SCCR 1052
Storie v FrielUNK 1995 SLT 390; 1993 SCCR 955
Watson v Scott (1897) 25 R (J) 53; 2 Adam 501; 35 SLR 436; 5 SLT 302
Textbooks etc. referred to:
Alison, AJ, Principles and Practice of the Criminal Law of Scotland (Edinburgh, 1833), p 31
Erskine, J, An Institute of the Law of Scotland (Edinburgh, 1773), para 4.3.8
Gloag, WM, Law of Contract: A Treatise on the Principles of Contract Law in Scotland (2nd ed, W Green, Edinburgh, 1929), p 281
Hume, D, Commentaries of the Law of Scotland respecting Crimes (Edinburgh, 1797), vol 2, p 515
McBryde, WW, The Law of Contract in Scotland (W Green/Scottish Universities Law Institute, Edinburgh, 1987 & 2001), para 23.13
Trotter, T, Summary Criminal Jurisdiction according to the Law of Scotland (William Hodge & Co, Edinburgh, 1936), p 66
Wade, HWR, and Forsyth, CF, Administrative Law (9th ed, Oxford University Press, Oxford, 2004), pp 300-307
The cause called before their Lordships in the Judicial Committee of the Privy Council, comprising Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Carswell and Lord Brown of Eaton-under-Heywood, for a hearing on 30 November and 1 December 2005.
The court dismissed the appeals for reasons delivered on 6 February 2006-
Lord Bingham of Cornhill- [1] I have had the benefit of reading in draft the opinion of Lord Rodger...
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