APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Nimmo Smith
Lord Philip
C.G.B. Nicholson, CBE, QC
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[2006]
HCJAC 77
Appeal
No: XJ1043/05
OPINION OF THE COURT
delivered by LORD NIMMO
SMITH
in
NOTE OF APPEAL AGAINST SENTENCE
by
ALEXANDER MELVILLE
Appellant;
against
PROCURATOR FISCAL,
Edinburgh
Respondent:
_______
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Act: Shead; BCKM
Alt: K. Stewart, A.D.; Crown Agent
26 October 2006
[1] This appeal
arises from the provisions of sections 31A and 31C of the Vehicle Excise and
Registration Act 1994 (the 1994 Act).
Sections 31A to 31C were inserted into the 1994 Act by the Finance Act
2002, Schedule 5, and brought into force by the Finance Act 2003, Section 19
(Appointed Day Etc.) Order 2003 (S.I. 2003/3086) with effect
from 19 December 2003.
These sections created offences in respect of the person in whose name a
vehicle is registered where that vehicle is unlicensed. Section 31A provides, inter alia:
"(1) If a vehicle registered under this Act is unlicensed, the
person in whose name the vehicle is registered is guilty of an offence.
(2) For
the purposes of this section a vehicle is unlicensed if no vehicle licence or
trade licence is in force for or in respect of the vehicle."
Section 31C provides, inter
alia:
"(1) A
person guilty of an offence under section 31A(1) is
liable on summary conviction to -
(a) an excise penalty of -
(i) level 3 on the standard scale, or
(ii) five times the amount of vehicle excise duty chargeable in
respect of the vehicle concerned,
whichever is the greater; ... ".
The standard scale is the scale set out in section 225(1) of
the Criminal Procedure (Scotland) Act 1995 (the 1995 Act): see the Interpretation Act 1978, Schedule 1,
amended by the Criminal Justice Act 1988, Schedule 15, para. 58. By section 225(2) of the 1995 Act, level 3 on
the standard scale is £1,000.
[2] The records
maintained by the Driver and Vehicle Licensing Agency (DVLA) showed that the
appellant was the registered keeper of a motor car with the registration mark
D560 MYS and had been since 1 September 2002.
The last vehicle excise licence for the vehicle expired on 29
February 2004. On 16 July 2004 the DVLA, who had previously written
to him, wrote to the appellant stating that he did not appear to have
re-licensed the vehicle, or told the DVLA that it was not being used or kept on
a public road. They stated that this was
an offence, contrary to section 31A of the 1994 Act, and it was now their
intention to take court action. The
letter stated that the appellant might prevent court action by paying an out of
court settlement of £132, but if payment was not received by 2
August 2004,
court action would be taken. In the
event of prosecution for a contravention of section 31A, the minimum penalty would
be £1,000. The appellant did not pay the
sum specified as an out of court settlement, and accordingly the Secretary of
State approved the initiation of proceedings by the procurator fiscal against
the appellant. The appellant was
thereafter charged on summary complaint in the District Court of Edinburgh with
a contravention of section 31A(1) of the 1994
Act. After sundry procedure, the
appellant pled guilty. On 7
June 2005
the justice admonished the appellant and imposed an excise penalty of £1,000.
[3] In his report
to us, the justice outlines the plea in mitigation on the appellant's
behalf. The appellant's solicitor told
the justice that the appellant was 46 years old and had been the victim of an
attempted murder and assault to disfigurement which had resulted in brain
damage. He had various mental health
difficulties and abused both alcohol and other substances. The solicitor produced a copy letter from the
Medical Centre attended by the appellant outlining his "distressing medical
history". She said that the appellant
was in receipt of invalidity and mobility benefits amounting to £110 per week
and that he had outgoings of £80 per week, leaving him only £30 each week. He had no previous convictions of any
sort. He was the registered keeper of
the vehicle in question. Prior to the
expiry of the licence he had given the vehicle to a friend to enable him to use
it for parts. He accepted that he had
not informed the DVLA that he was no longer the registered keeper, and
therefore accepted that he had committed an offence under section 31A(1) of the
1994 Act. On the matter of penalty, the
justice reports that the procurator fiscal depute informed him that the charge
to which the appellant had pled guilty incurred a mandatory penalty of
£1,000. The solicitor for the appellant
made a submission to the same effect.
The justice took legal advice from the depute clerk of court and legal
assessor and was advised that in terms of section 31C(1)
of the 1994 Act he had no alternative but to impose an excise penalty of level
3.
[4] At the outset
of the hearing of the appeal, the advocate depute referred to provisions of the
1995 Act to which the attention of the justice had not been directed. Section 199(1) provides inter alia that, subject to subsection (3) (which is not relevant
for present purposes), where a person is convicted of the contravention of an
enactment and the penalty which may be imposed involves (b) the imposition of a
fine, subsection (2) shall apply.
Subsection (2) provides, inter
alia, that where it applies, the court, in addition to any other power
conferred by statute, shall have power (d) to reduce the amount of the
fine. By section 307(1) the expression
"fine" is defined as including "(a) any pecuniary penalty, (but not a pecuniary
forfeiture or pecuniary compensation); and (b) an instalment of a fine". Reference may also be made to the requirement
under section 211(7) of the 1995 Act, to take into account the means of the offender
so far as known, in determining the amount of any fine to be imposed in a
particular case. The advocate depute
submitted that there was no provision of the 1994 Act or of the Customs and
Excise Management Act 1979 relating to excise penalties which constituted a
specific or express barrier to treating an excise penalty as a fine within the
meaning of the 1995 Act. Accordingly,
there was a statutory power to mitigate the rigours of section 31C of the 1994
Act. The advocate depute informed us
that, contrary to what the procurator fiscal depute submitted to the justice,
this represented the considered position of the Crown. Counsel for the appellant, unsurprisingly,
did not take issue with the advocate depute's submission, stating that there
was great attraction in this approach.
He drew our attention, however, to Wilkinson's
Road Traffic Offences, 22nd edition, para. 12.151, from which it appears
that by reason of the restricted definition of "fine" in section 85(4) of the
Magistrates' Courts Act 1980, the situation in England and Wales may be different from that in Scotland.
On the meaning of the word "liable" in section 31C(1),
counsel referred to the definition in the Oxford English Dictionary, "bound or
obliged by law or equity or in accordance with a rule or convention".
[5] Having
considered the submissions of counsel and reviewed the statutory provisions to
which reference has been made, we agree with the advocate depute that the
concession now made for the Crown is properly made. The expression "excise penalty" is not
defined in the 1994 Act, but it clearly has a lengthy statutory history: see, for example, the discussion in McMillan v Grant 1924 J.C. 13, which was brought to our attention after the
hearing of the appeal. We have no reason
to think that an excise penalty is not a penalty within the meaning of the
definition of "fine" in the 1995 Act (itself derived from earlier statutory
provisions), from which it follows that, notwithstanding the terms of section 31C(1) of the 1994 Act, a court in Scotland has power under
section 199 of the 1995 Act to reduce the amount of the excise penalty. We have no doubt that had the justice been
advised that he had such power, he would have exercised it in this case. In his report he states:
"I had a great deal of sympathy with
the predicament which the appellant was in, particularly as the vehicle in
question had been sold for spare parts and was not being driven. However, in the light of the legal advice
which I had received I advised the appellant that unfortunately my hands were
tied in terms of the legislation and I had no discretion in the matter and that
I was obliged to impose an excise penalty of £1,000."
[6] It is not, however, open to us forthwith to allow the appeal by
quashing the excise penalty of £1,000 and substituting one for a lesser amount. In addition to the usual note of appeal, the
appellant has lodged a devolution issue, which has had the incidental effect of
greatly protracting the procedure in this court. In the devolution minute it is alleged that,
having regard to the interpretation of section 31C of the 1994 Act on which
parties proceeded before the justice, for the Lord Advocate, through the
procurator fiscal depute, to have raised a prosecution in the circumstances of
the present case and to have moved for sentence were acts which were
incompatible with the appellant's rights under Article 6 of the European
Convention on Human Rights, because the appellant's right to a fair hearing had
not been secured; and were the Lord
Advocate to seek to maintain the sentence before this court that would be an
act which was incompatible with Article 6(1).
We have not yet heard counsel's submissions on the Minute, and given the
position now adopted by the advocate depute on behalf of the Crown it may be
that those representing the appellant will decide that the Minute serves no
further use and should be withdrawn. In
view of this, the hearing of the appeal against sentence is continued to a date
to be afterwards fixed.
[7] We would add
that, given the considered position of the Crown as narrated above, it is to be
hoped that suitable guidance will be given to prosecutors in Scotland, and that the DVLA will reconsider
the terms in which they inform persons in Scotland, such as the appellant, of the
penalties to which they may be liable.
