Procurator Fical (glasgow) V. John Morrison

PROCURATOR FISCAL, GLASGOW v JOHN MORRISON

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)...