Queen v Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Judgment Date | 22 April 2020 |
| Neutral Citation | [2020] CSIH 15 |
| Court | Court of Session (Inner House) |
| Docket Number | No 23 |
| Date | 22 April 2020 |
[2020] CSIH 15
First Division
Lord Brailsford
Adolf v Austria (A/49) [1982] ECHR 2; (1982) 4 EHRR 313
Gradinger v Austria (A/328-C) [1995] ECHR 36
Janosevic v Sweden (34619/97) [2002] ECHR 618 (2004) 38 EHRR 22
McDonald v HM Advocate [2007] HCJAC 36
Malige v France (27812/95) [1998] ECHR 91; (1999) 28 EHRR 578; [1998] HRCD 897
Öztürk v Germany (A/73) [1984] ECHR 1; (1984) 6 EHRR 409
R v Durham Constabulary, ex p R [2005] UKHL 21; [2005] 1 WLR 1184; [2005] 2 All ER 369; [2005] HRLR 18; [2005] UKHRR 584; [2005] Po LR 8; [2006] Crim LR 87; (2005) 155 NLJ 467; 149 SJLB 360; The Times, 18 March 2005
S v Miller 2001 SC 977; 2001 SLT 531; [2001] UKHRR 514
Schmautzer v Austria (A/328-A) [1995] ECHR 40; (1996) 21 EHRR 511
Scottish Executive, Antisocial Behaviour etc (Scotland) Bill: Policy memorandum (SP Bill 12–PM) (TSO, Edinburgh, October 2003), paras 2, 167, 173 (Online: www.parliament.scot/S2_Bills/Antisocial%20Behaviour%20(Scotland)%20Bill/b12s2-introd-pm.pdf (30 June 2020))
Constitutional law — Act of Scottish Parliament — Antisocial Behaviour etc (Scotland) Act 2004 (asp 8) — Fixed penalty notice procedure — Whether Pt 11 of 2004 Act within the legislative competence of the Scottish Parliament — Whether Pt 11 of 2004 Act unlawful
Administrative law — Judicial review — Fixed penalty notice procedure — Whether issue of fixed penalty notice constituted criminal charge — Whether procedure contrary to presumption of innocence — Whether procedure incompatible with right to fair trial — Antisocial Behaviour etc (Scotland) Act 2004 (asp 8), Pt 11 — European Convention on Human Rights and Fundamental Freedoms, Art 6
Jordan Queen brought a petition for judicial review seeking declarator that Pt 11 of the Antisocial Behaviour etc (Scotland) Act 2004 was not law. The petition called for a substantive hearing before the Lord Ordinary (Brailsford). At advising, on 30 January 2019, the Lord Ordinary refused the petition ([2019] CSOH 10; 2019 SCCR 90). The petitioner reclaimed.
The European Convention on Human Rights and Fundamental Freedoms (‘ECHR’), Art 6, provides, inter alia, “(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. … (2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The Antisocial Behaviour etc (Scotland) Act 2004 (asp 8) (‘the 2004 Act’), sec 129(1), allows a constable to give a fixed penalty notice to a person aged 16 years or over for certain offences. Section 131 provides, inter alia, “(1) This section applies if a fixed penalty notice is given to a person (‘A’) under section 129. (2) Subject to subsection (3), proceedings may not be brought against A. (3) If A asks to be tried for the alleged offence, proceedings may be brought against A. (4) Such a request shall be made by a notice given by A– … (b) before the end of the period of 28 days beginning with the day on which the notice is given. (5) If, by the end of the period mentioned in paragraph (b) of subsection (4)– (a) the fixed penalty has not been paid … and (b) A has not made a request in accordance with that subsection, then A is liable to pay to the clerk of the justice of the peace court specified in the fixed penalty notice a sum equal to one and a half times the amount of the fixed penalty. (6) A sum for which A is liable by virtue of subsection (5) shall be treated as if it were a fine imposed by the justice of the peace court specified in the fixed penalty notice.”
The Scotland Act 1998 (cap 46), sec 29(1), 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.” Section 29(2)(d) provides that a provision is outside that competence if it is incompatible with any of the Convention rights.
The petitioner was issued with a fixed penalty notice by a police constable in terms of sec 129 of the 2004 Act. He failed to pay within 28 days and, by virtue of sec 131(5), then became liable to pay the sum of £60, with the sum to be treated as if it were a fine imposed by the justice of the peace court to whom the fine was to be paid. The petitioner brought a petition for judicial review, seeking declarator that Pt 11 of the 2004 Act, which related to fixed penalties, was incompatible with his rights under, inter alia, Art 6 ECHR and was, therefore, not law. The Lord Ordinary refused the petition and held that the framework of Pt 11 of the 2004 Act was compliant with the provisions of Art 6 ECHR. The petitioner reclaimed.
The petitioner argued that the issue of a fixed penalty notice created a charge of a criminal offence against him and, thus, engaged Art 6 ECHR, which would remain engaged in the proceedings before the justice of the peace court.
The respondent argued that the entitlement to be tried rendered Pt 11 of the 2004 Act compatible with Art 6 ECHR and that the criminal charge ceased to exist 28 days after the issue of the fixed penalty notice, from which point Art 6 had no application.
Held that: (1) while the issue of a fixed penalty notice constituted a criminal charge for the purposes of Art 6 ECHR, the Crown's ability to bring criminal proceedings on the charge was barred from the moment the penalty notice was issued, unless the recipient of the notice requested trial for the alleged offence within the 28-day period; the right to request a trial expired 28 days after receipt of the notice, and the criminal charge ceased to exist for any purpose from that point onwards, with any proceedings thereafter being concerned with enforcement rather than the determination of a criminal charge (paras 22–25); (2) the fixed penalty notice scheme provided for by the 2004 Act included the entitlement of the recipient of a notice to challenge the decision made against him by the police officer issuing the notice and to do so before a court offering the guarantees of Art 6 ECHR and, thus, the presumption of innocence remained in place (para 29); (3) the Art 6 rights of a recipient of a fixed penalty notice were not re-engaged after the point had been reached where there could be no prosecution and the penalty was fully determined at the expiry of the 28-day period; any further procedure was concerned only with enforcement, with such procedure being sufficiently flexible to take account of the interests of justice (para 34); and reclaiming motion refused.
Öztürk v Germany (1984) 6 EHRR 409 considered and S v Miller2001 SC 977 and R v Durham Constabulary, ex p R[2005] 1 WLR 1184applied.
The cause called before the First Division, comprising the Lord...
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