Martin v HM Advocate; Miller v HM Advocate
| Jurisdiction | Scotland |
| Judge | LORD RODGER,LORD BROWN,LORD KERR,LORD WALKER,LORD HOPE |
| Judgment Date | 03 March 2010 |
| Neutral Citation | [2010] UKSC 10 |
| Date | 2010 |
| Court | Supreme Court (Scotland) |
[2010] UKSC 10
Lord Hope, Deputy President
Lord Rodger
Lord Walker
Lord Brown
Lord Kerr
THE SUPREME COURT
Hilary Term
Appellant (Martin)
Christopher Shead
Almira Delibegovic-Broome
Claire Mitchell
(Instructed by Beaumont & Co)
Respondent
W James Wolffe QC
James Mure QC
(Instructed by Crown Office and Procurator Fiscal Service)
2nd Respondent & Intervener
The Baron Davidson of Glen Clova QC
Mark Lindsay
(Instructed by Office of the Solicitor to the Advocate General for Scotland)
Appellant (Miller)
Andrew Brown
Andrew Devlin
(Instructed by Patterson Bell Solicitors)
Respondent
W James Wolffe QC
James Mure QC
(Instructed by Crown Office and Procurator Fiscal Service)
2nd Respondent & Intervener
The Baron Davidson of Glen Clova QC
Mark Lindsay
(Instructed by Office of the Solicitor to the Advocate General for Scotland)
The Scottish Parliament was established by section 1 of the Scotland Act 1998. It was opened on 1 July 1999. Section 29(1) of the Act provides:
"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."
This provision lies at the heart of the scheme of devolution to which the Act gives effect. Section 29 has to be read together with Schedule 4 which protects certain enactments from modification, and then with section 30 and Schedule 5 which defines reserved matters. These are matters reserved to the UK Parliament, and which are therefore excluded from the legislative competence of the Scottish Parliament. The area of competence that is identified by this group of provisions forms the basis for a series of sections that are designed to ensure that the Scottish Parliament confines itself to the defined areas of competence: section 31 (scrutiny of Bills before introduction), section 32 (the responsibility of the Presiding Officer), section 33 (reference of Bills to the Judicial Committee – now the UK Supreme Court – for scrutiny), section 35 (the power of the Secretary of State to intervene in certain cases) and sections 98 to 103 and Schedule 6 (post-enactment adjudication of issues about legislative competence by the courts).
The White Paper, Scotland's Parliament, Cm 3658 (1997), para 4.3, contrasted this scheme of devolution with that which had been laid down by the Scotland Act 1978, which was repealed because less than 40 per cent of the persons entitled to vote in the referendum which was required by section 85 of that Act voted in favour of it. Under that Act legislative competence was to be transferred to the Scottish Assembly in specifically defined particular groups, further defined by reference to a long list of existing statutes. That scheme, which would have required frequent updating by the UK Parliament, was seen to be incompatible with the aim that the White Paper expressed of ensuring maximum clarity and stability. While the scheme in the 1998 Act may not strike one as a model of clarity, it does appear so far to have achieved the aim of stability.
Of course, harmony between the governments at Westminster and Holyrood until the May 2007 elections to the Scottish Parliament contributed to this process, as did frequent use of legislative consent motions (also known as Sewel motions, named after Lord Sewel, Parliamentary Under-Secretary of State for Scotland during the passage of the Scotland Act 1998) passed by the Scottish Parliament agreeing that the UK Parliament might pass legislation on a devolved issue extending to Scotland. But it is a remarkable fact that the myriad of devolution issues that have come before the courts for determination since May 1999 have been devoted almost exclusively to the exercise of functions in criminal cases by the Lord Advocate. Logan v Harrower [2008] HCJAC 61, 2008 SLT 1049 was the first case that brought the extent of the legislative competence of the Scottish Parliament under judicial scrutiny on grounds other than compliance with Convention rights. As in the case of the appeals that are now before this court, it arose of out of a prosecution for contraventions of section 103(1)(b) of the Road Traffic Act 1988. There was no appeal against the appeal court's determination to the Judicial Committee.
The question whether an Act of the Scottish Parliament is within the legislative competence of the Parliament is a devolution issue: Schedule 6, para 1(a). So it is for the courts to decide whether an Act which is challenged is within or outside competence. But the judicial function in this regard has been carefully structured. It is not for the judges to say whether legislation on any particular issue is better made by the Scottish Parliament at Holyrood or by the UK Parliament at Westminster. How that issue is to be determined has already been addressed by the legislators. It must be decided according to particular rules that the Scotland Act 1998 has laid down. But those rules, just like any other rules, have to be interpreted. That is the court's function. It is for the court to say what the rules mean and how, in a case such as this, they must be applied in order to resolve the issue whether the measure in question was within competence.
These proceedings
Section 33 of and Part I of Schedule 2 to the Road Traffic Offenders Act 1988 provide that the offence of driving while disqualified under section 103(1)(b) of the Road Traffic Act 1988 may be prosecuted in Scotland either summarily or on indictment. As originally enacted, the maximum punishment for that offence if prosecuted summarily in Scotland was six months or the statutory maximum fine or both. If it was prosecuted on indictment in Scotland the maximum sentence was twelve months or a fine or both. By section 45 of the Criminal Proceedings etc (Reform) ( Scotland) Act 2007, the provisions of which I shall examine in more detail later, the Scottish Parliament increased to twelve months the maximum sentence that might be imposed for this offence under the 1998 Act by the sheriff sitting summarily. That section came into force on 10 December 2007: the Criminal Proceedings etc (Reform) ( Scotland) Act 2007 (Commencement No 2 and Transitional Provisions and Savings) Order 2007 ( SSI 2007/479).
Sean Martin was charged on summary complaint at Oban with a co-accused named Rodney Cuthill. The complaint contained fourteen charges, of which charges 1, 2, 8 and 9 were directed against Martin. In charges 1 and 8 it was alleged that he drove a motor vehicle on a road while disqualified, contrary to section 103(1)(b) of the Road Traffic Act 1988, and that he committed those offences while on bail. On 14 December 2007 he pled guilty to charges 1 and 8 and to the other two charges. On 17 December 2007 he was sentenced to 12 months imprisonment on charges 1 and 8, of which four months was attributed to the fact that he committed the offences while on bail. On 12 March 2008 he presented a Bill of Suspension to the High Court of Justiciary in which he sought suspension of the sentence of imprisonment on the ground that the relevant provisions of the Criminal Proceedings etc (Reform) ( Scotland) Act 2007 were beyond the legislative competence of the Scottish Parliament. On 28 March 2008 he was granted interim liberation pending the determination of his Bill of Suspension.
Ross Miller was charged on summary complaint at Stirling. The complaint contained three charges. In charge 1 it was alleged that he drove a motor vehicle on a road while disqualified, contrary to section 103(1)(b) of the Road Traffic Act 1988. On 24 April 2008 he pled guilty to charge 1 and to one of the other charges and was remanded in custody. On 14 May 2008 he was sentenced to seven months imprisonment on charge 1, back-dated to 24 April 2008. On 20 June 2008 he presented a Bill of Suspension to the High Court of Justiciary in which he sought suspension of the sentence of imprisonment on the same grounds as Martin. He applied for interim liberation, but on 3 July 2008 he withdrew that application. Unlike Martin, he has now served his sentence.
The two Bills of Suspension came before the appeal court for a hearing on 6 January 2009. Devolution minutes identifying the devolution issue in these proceedings had also been lodged. The court saw no reason for distinguishing these cases from its previous decision in Logan v Harrower, in which it held that the increase in the sentencing power of the sheriff sitting summarily by section 45 of the Criminal Proceedings etc (Reform) ( Scotland) Act 2007 was within the legislative competence of the Scottish Parliament. As nothing had been said to suggest that that decision was wrong, it refused to pass the Bills. It also refused the devolution minutes. On 30 January and 24 February 2009 respectively it granted the appellants leave to appeal to this court.
As this narrative shows, the only reasoned decision on this issue by the appeal court is to be found in Logan v Harrower. In para 24 of that case, Lord Nimmo Smith, delivering the opinion of the court, said:
"We agree with the advocate depute that, in the present case, the purpose of the provision is 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. As provided by para 3 in part I of Schedule 4 to the Scotland Act, the modifications made by section 45 of the 2007 Act to the reading of Part I of Schedule 2 to the Road Traffic Offenders Act 1988 are merely incidental to, or consequential on, the more general aspect of the provision, which relates generally to the powers of the sheriff in relation to statutory offences, whatever their origin; and the modifications do not have a greater effect upon...
To continue reading
Request your trial
-
Attorney General v National Assembly for Wales Commission
...least in relation to that sort of question. 50 Assistance on the point may be gleaned from what was said in this court in Martin v Most [2010] UKSC 10; [2010] SC (UKSC) 40, about paragraph 3(1)(a) of Schedule 4 to the Scotland Act 1998, which permits the Scottish Parliament to "modify the l......
-
AGRICULTURAL SECTOR (WALES) BILL - Reference by Attorney General for England and Wales
...General for England and Wales [2012] UKSC 53; [2013] 1 AC 792, paras 78–81, following on from the guidance given in Martin v Most [2010] UKSC 10; 2010 SC (UKSC) 40, paras 44–53 and Imperial Tobacco v Lord Advocate [2012] UKSC 61; 2013 SC (UKSC) 153 paras 6 Those principles can be summari......
-
Salvesen v Riddell
... ... Salvesen and Riddell and Another, Lord Advocate Intervening (Scotland) [2013] UKSC 22 ... Lord ... on the business of the firm, as it has been dissolved: J Bennett Miller, The Law of Partnership in Scotland (2 nd ed), p 460. So when the ... In Martin v Most 2010 SC (UKSC) 40 , para 43 I said that, had I been in favour of ... ...
-
Imperial Tobacco Ltd v The Lord Advocate
...made modifications to Scots criminal law as it applied to reserved matters: Logan v Spiers [2008] HCJAC 61, 2010 JC 1; Martin v Most [2010] UKSC 10, 2010 SC (UKSC) 40. In those cases too the challenges were rejected. In AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, 2012 SC (UKS......
-
The Courts and Devolution in the UK
...[2001] UKPC D5, DS v. LordAdvocate [2007] UKPC 36, Whaley v. Lord Advocate [2007] UKHL 53, and Martin andMiller v. Lord Advocate [2010] UKSC 10 (discussed in more detail below)—haveinvolved the UK’s highest courts considering whether devolved legislation waswithin the powers of the legislat......
-
Intergovernmental Relations in the UK: Co-Operation, Competition and Constitutional Change
...that is the boundarybetween devolved and reserved legislation, was about reserved road traffic law anddevolved criminal justice ([2010], UKSC 10). But even there, there was no disputebetween the governments. Whether this will continue, especially in relation toconstitutional issues, remain......