Robbie The Pict V. Procurator Fiscal, Fort William
| Jurisdiction | Scotland |
| Judge | Sheriff Principal C.G.B. Nicholson,Lord Nimmo Smith,Lord Wheatley |
| Judgment Date | 02 February 2007 |
| Neutral Citation | [2007] HCJAC 10 |
| Published date | 02 February 2007 |
| Docket Number | No 15 |
| Court | High Court of Justiciary |
| Date | 02 February 2007 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Nimmo Smith Lord Wheatley CGB Nicholson, CBE, QC | [2007] HCJAC 10 Appeal No.XJ736/05 OPINION OF THE COURT delivered by LORD NIMMO SMITH in REFERRAL TO THE HIGH COURT OF JUSTICIARY UNDER PARAGRAPH 9 OF SCHEDULE 6 TO THE SCOTLAND ACT 1998 by HIGHLAND DISTRICT COURT AT FORT WILLIAM in ROBBIE THE PICT Minuter against PROCURATOR FISCAL, FORT WILLIAM Respondent _______ |
Act: Party
Alt: K Stewart, A.D.; Crown Agent
2 February 2007
Introduction
[1] The minuter was charged at the instance of the Procurator Fiscal at Fort William, in a complaint dated 6 August 2003, in the following terms:
"[O]n 04 April 2003 on the A86 at Roy Bridge being a restricted road in terms of Section 82 of the Road Traffic Regulation Act 1984 as amended by Section 126 and Schedule 7 of the Roads (Scotland) Act 1984, you ... did drive a motor vehicle, namely motor car registered number 78D778, at a speed exceeding thirty miles per hour, namely at a speed of 43 miles per hour; CONTRARY to the Road Traffic Regulation Act 1984, Sections 81 and 89 ["the 1984 Act"]."
The complaint first called in the Highland District Court at Fort William ("the District Court") on 6 August 2003. On that date the minuter intimated what purported to be pleas to the competency of the complaint, and the matter was continued without plea to 3 September 2003. After debate the justices held that amongst the issues raised by the minuter were issues that fell to be dealt with as devolution issues under the Scotland Act 1998. The justices continued the case without plea, to allow the minuter to lodge the necessary devolution minute. The minuter lodged a Bill of Suspension against that ruling. That Bill of Suspension was ultimately refused by this court on 7 December 2004 (Robbie the Pict v Procurator Fiscal, Fort William, Appeal No.XJ1748/03, unreported).
[2] On 22 December 2004 the clerk of the District Court received a devolution minute from the minuter, which was dated 20 December 2004. On 5 January 2005, the minute called in court. The justices held that the minute was in proper form and had been intimated as required by the Act of Adjournal (Devolution Issues Rules) 1999. They held that the issues specified in the minute raised a devolution issue. They referred the minute to this court for determination, under paragraph 9 of schedule 6 to the Scotland Act 1998 and paragraph 40.7 of the said Act of Adjournal.
[3] The minute first called before the High Court of Justiciary on 1 July 2005. On that occasion the minuter intimated that he wished to argue two preliminary points of law contained in a paper apart, which had not previously been notified either to the court or to the Crown. On the motion of the minuter the reference was continued to a further hearing to enable the Crown to consider these preliminary points, which in due course were debated on 15 November 2005. On 15 February 2006 the court repelled the two preliminary points advanced by the minuter and continued the reference to a date to be afterwards fixed for argument (Wylie v Robbie the Pict 2006 SCCR 221). After sundry postponements for a variety of reasons, the reference came before us for a hearing on 11 January 2007.
The underlying issues
[4] Although it is not for us to make a final decision at this stage on the issues which may arise if and when a trial eventually takes place, it is necessary for an understanding of the devolution minute that we say something about them. In particular, as will be seen, the minuter alleges apparent bias on the part of the clerk of the District Court, so it is necessary to consider what, if any, the real issues of law will be on which the clerk will require to give advice to the justices in the course of a trial. As we understood his submissions, the appellant does not dispute that on 4 April 2003 he was driving a motor car on the A86 at Roybridge; that there are signs in place indicating that the road at that point is subject to a speed limit of 30mph; and that police using a hand held radar speed measuring device measured his speed at 43mph. He told us that it was not his intention to drive at this speed, and that he did so because he was following other cars in a line of traffic. Most drivers in such a situation would, if prosecuted, plead guilty and make what they could of a plea in mitigation. Not so the minuter, who, resourceful as ever, alleges that there are serious defects in the underlying basis of the prosecution.
Grounds of defence at trial
[5] In the event of a trial taking place, we understand that the minuter would advance two grounds of defence, the first relating to the validity of the30mph speed limit on the A86 road in Roybridge, and the second relating to the approval of the radar device by means of which his speed was detected. The minuter has placed extensive material before us relating to both these grounds. In view of this, we think it appropriate to make the following comments, most of which are based on our own research and not on submissions made to us.
(1) The validity of the 30mph speed limit in Roy Bridge
[6] In a letter dated 31 July 2003 the minuter purported to tender preliminary pleas to competency, the second of which, so far as material, was:
"[A] plea to the competency of the charge itself on the basis that the A86 is a trunk road, not a restricted road, and any restriction would be required to be imposed by lawful order of the Secretary of State."
In the letter he accepted that there was an argument that this plea might arguably be either a plea to competency or "a plea of 'no case to answer' mid-trial". In the devolution minute before us it is averred that:
"[T]he matter at hand concerns an alleged breach of a speed restriction in Roy Bridge ostensibly set by Highland Regional Council, the statutory predecessor to the Highland Council. ... [The second preliminary plea] challenges the legitimacy of the speed restriction itself, it being erected on a trunk road but not by the Secretary of State as required by law."
[7] Among the papers before us is a copy of the Highland Regional Council (A86, Roybridge)(Restricted Road) Order 1991, made by the Highland Regional Council as the then roads authority in exercise of the powers conferred on them by inter alia sections 82 and 84 of the Roads (Scotland) Act 1984 ("the Roads Act"), directing that the length of road at Roybridge on route 86, near Fort William, Lochaber specified in the Schedule to the Order was to be a restricted road for the purposes of section 81 of the 1984 Act. The Order came into operation on 21 April 1992. The A86 was not then a trunk road. Sections 12A to 12F of the Roads Act were inserted by section 38 of the Local Government etc. (Scotland) Act 1994. By the Roads (Transitional Powers) (Scotland) Order 1995 (S.I. 1995/1476) the Secretary of State, in exercise of the powers conferred on him by sections 12A, 12B, 12C and 143(1) of the Roads Act, having considered it necessary or expedient as a result of, or in connection with, the establishment of new local government areas on 1 April 1996, directed inter alia that as from that date various existing roads which were not trunk roads should become trunk roads. Among these was the A86 between Spean Bridge and a point near Kingussie. Section 112(10) of and paragraph 1 of Schedule 6 to the Roads Act provide inter alia that all orders made, with respect to a road which becomes a trunk road, by the former roads authority shall, if they were in force immediately before the road became a trunk road, have effect with respect to the trunk road as if made by the Secretary of State. Accordingly, the 30 mph speed limit in Roybridge appears to us to have been validly made when the A86 was not a trunk road and to have been continued in force after it became a trunk road.
[8] We would add that the Highland Council are statutory successors to the Highland Regional Council, whose role in the creation of the speed limit is as set out above. But, following the general transfer of functions to the Scottish Ministers by section 53 of the Scotland Act 1998, they and not the Highland Council are the parties with the most obvious direct interest to maintain the validity of speed limits on the A86 trunk road.
(2) Approval of the radar device
[9] As we understand it, the minuter's speed was detected by a model of hand held radar speed measuring device called the MuniQuip K-GP. In his written submissions which he presented to us at the hearing (in which the minuter wrongly described the device as a Muni-Quip KP), it is alleged that he
"can find no evidence that the specific type of apparatus employed to measure vehicle speed, has been approved by an order of the Secretary of State, specifically describing the device in question, and been placed before both Houses of Parliament while published for sale as a Statutory Instrument. Accordingly these orders may not in fact exist."
It is apparent from the extensive material which follows this statement that the minuter is under the impression that for a device to be approved the specific model must be the subject of a provision in a statutory instrument.
[10] Section 20 of the Road Traffic Offenders Act 1988 ("the 1988 Act"), as originally enacted, provided:
"On the prosecution of a person for any speeding offence, evidence of the measurement of any speed by a device designed or adapted for measuring by radar the speed of motor vehicles shall not be admissible unless the device is of a type approved by the Secretary of State."
The MuniQuip K-GP was approved by the Home Secretary under this provision on 12 October 1989, with an effective date for use of 8 November 1989.
[11] New provisions were substituted in place of section 20 of the 1988 Act as originally enacted by section 23 of the Road Traffic Act 1991, with further amendments by later statutory provisions. The version currently in force may be found in the ...
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