 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
Scottish High Court of Justiciary Decisons |
||
|
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Logan & Anor v. Procurator Fiscal [2008] ScotHC HCJAC_61 (02 July 2008) URL: https://www.bailii.org/scot/cases/ScotHC/2008/HCJAC_61.html Cite as: [2008] HCJAC 61, [2008] ScotHC HCJAC_61, 2008 SCCR 815, 2008 GWD 35-535, 2008 SLT 1049, 2009 SCL 83 |
||
[New search] [Help]
|
APPEAL
COURT, HIGH COURT OF JUSTICIARY |
|
Lord Nimmo Smith
Lord Eassie
Lord Wheatley
|
[2008] HCJAC 61Appeal Nos: XJ576/08 and
XJ519/08 OPINION OF THE COURT delivered by LORD NIMMO SMITH in BILLS OF SUSPENSION for ROBERT LOGAN Complainer; against PROCURATOR FISCAL, HAMILTON Respondent: and JAMES WILLIAM BEATTIE Complainer against PROCURATOR
FISCAL, JEDBURGH Respondent _______ |
Act: Taylor, solicitor-advocate, Gilfedder & McInnes, Edinburgh
Alt: Mure, AD; Crown Agent
Alt: Advocate General:
Introduction
[1] The complainer
Robert Logan ("
[2] The
complainer James William Beattie ("Beattie") pled guilty at
[3] The question
for our consideration is whether the imposition of each of these sentences was
competent. In order to answer this
question, it is necessary to set out the relevant statutory provisions.
The relevant statutory
provisions
The Road Traffic Offenders Act 1988
[4] As already
noted, it is an offence to drive while disqualified, contrary to section
103(1)(b) of RTA 1988. The Road Traffic
Offenders Act 1988 ("RTOA 1988") provides by section 9:
"An offence against a provision of the Traffic Acts specified in column
1 of Part I of Schedule 2 to this Act or regulations made under such a
provision (the general nature of which offence is indicated in column 2) shall
be punishable as shown against the offence in column 3 (that is, on summary
conviction or on indictment or in either one way or the other)."
Section 33
provides:
"(1) Where a person is convicted of an offence against a provision of the Traffic Acts specified in column 1 of Part I of Schedule 2 to this Act or regulations made under any such provision, the maximum punishment by way of fine or imprisonment which may be imposed on him is that shown in column 4 against the offence and (where appropriate) the circumstances or mode of trial there specified.
(2) Any reference in
column 4 of that Part to a period of years or months is to be construed as a
reference to a term of imprisonment of that duration."
Part I of Schedule 2 stipulates the mode of prosecution in
The Criminal Proceedings etc.
(Reform) (
[5] Section 43 of the Criminal Proceedings
etc. (Reform) (Scotland) Act 2007) ("the 2007 Act") increased to 12 months the maximum sentence of
imprisonment which may be imposed by the sheriff, sitting as a court of summary
jurisdiction, for a common law offence.
It did so by amending section 5(2) of the Criminal Procedure (
"The sheriff shall, without prejudice to any other or wider powers conferred by statute, have power on convicting any person of a common law offence-
...
(d) to
impose imprisonment, for any period not exceeding 12 months."
[6] Section 45 of
the 2007 Act provides:
"(1) The maximum term of imprisonment to which a
person is liable on summary conviction of a relevant offence is, by virtue of
this subsection, 12 months.
(2) Accordingly, the specification of a
maximum period of imprisonment in every relevant penalty provision is, in
relation to any relevant offence to which it applies, to be read subject to
subsection (1).
(3) Without prejudice to subsections (1) and
(2), the Scottish Ministers may by order amend the specification of a maximum
term of imprisonment in a relevant penalty provision so as to specify, in
relation to the relevant offence to which it applies, that the maximum term of
imprisonment to which a person is liable on summary conviction is 12 months.
(4) The specification of a maximum period of
imprisonment in a relevant power is, in relation to any offence to which it
applies, to be read as a period of 12 months.
(5) Without prejudice to subsection (4), the
Scottish Ministers may by order amend a relevant power so as to increase to 12
months the maximum term of imprisonment specified in the power.
(6) In this section, a "relevant offence" is
an offence under a relevant enactment or instrument which is--
(a) triable either on indictment or summary
complaint, and
(b) punishable on summary conviction with a
maximum term of imprisonment of less than 12 months.
(7) In this section--
a "relevant
enactment" is an Act passed before this Act,
a "relevant instrument"
is any subordinate legislation made before the passing of this Act,
a "relevant penalty
provision" is a provision of a relevant enactment or instrument which specifies
the penalties to which a person is liable on summary conviction of a relevant
offence,
a "relevant power" is a
provision of a relevant enactment which confers a power (however expressed) for
subordinate legislation to make a person, as regards an offence that is triable
either on indictment or summary complaint, liable on summary conviction to a
maximum term of imprisonment of less than 12 months.
(8) For the purposes of subsection (7),
reference to the passing of an Act is to be construed, in the case of an Act of
the Scottish Parliament (including this Act), as reference to the passing by
the Parliament of the Bill for the Act."
[7] It
is by virtue of these provisions that the sheriff in each of these cases
proceeded on the basis that his sentencing powers for a contravention of section 103 (1)(b) of RTA 1988, where
prosecuted on summary complaint, had been increased from six months' to twelve
months' imprisonment.
The
[8] Section 29 of
the Scotland Act 1998 ("the
"(1)
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.
(2)
A provision is outside that
competence so far as any of the following paragraphs apply-
...
(b) it
relates to reserved matters,
(c) it
is in breach of the restrictions in Schedule 4,
...
(3)
For the purposes of this
section, the question whether a provision of an Act of the Scottish Parliament
relates to a reserved matter is to be determined, subject to subsection (4), by
reference to the purpose of the provision, having regard (among other things)
to its effect in all the circumstances
(4)
A provision which--
(a)
would otherwise not relate to
reserved matters, but
(b) makes
modifications of Scots private law, or Scots criminal law, as it applies to
reserved matters,
is to be treated as relating to
reserved matters unless the purpose of the provision is to make the law in
question apply consistently to reserved matters and otherwise."
Section 126(5) provides as follows:
"References in this Act to Scots
criminal law include criminal offences, jurisdiction, evidence, procedure and
penalties and the treatment of offenders."
[9] Schedule 4 to
the Scotland Act provides inter alia
as follows:-
"2.--(1) An Act of the Scottish Parliament cannot
modify, or confer power by subordinate legislation to modify, the law on
reserved matters.
(2) In this paragraph, "the law on reserved
matters" means-
(a) any enactment the subject-matter of which
is a reserved matter and which is comprised in an Act of Parliament or
subordinate legislation under an Act of Parliament, and
(b) any rule of law which is not contained in
an enactment and the subject-matter of which is a reserved matter,
and in this sub-paragraph "Act of
Parliament" does not include this Act.
(3) Sub-paragraph (1) applies in relation to a
rule of Scots private law or Scots criminal law (whether or not contained in an
enactment) only to the extent that the rule in question is special to a
reserved matter...
3.--(1) Paragraph 2 does not apply to
modifications which--
(a) are incidental to, or consequential on,
provision made (whether by virtue of the Act in question or another enactment)
which does not relate to reserved matters, and
(b) do not have a greater effect on reserved
matters than is necessary to give effect to the purpose of the provision.
(2) In determining for the purposes of
sub-paragraph 1(b) what is necessary to give effect to the purpose of a
provision, any power to make laws other than the power of the Parliament is to
be disregarded."
[10] Section 30(1)
of and Schedule 5 to the Scotland Act define reserved matters. The Schedule provides by Part II for specific
reservations, under various heads. Under
Head E--Transport, section E1, "Road transport", includes the subject-matter of
inter alia (d) RTA 1988 and RTOA
1988. By paragraph 5(1) of Part III of
the Schedule, references in the Schedule to the subject-matter of any enactment
are to be read as references to the subject-matter of that enactment as it had
effect on the principal appointed day (i.e. 1 July 1999) or, if it ceased to
have effect at any time within the period ending with that day and beginning
with the day on which the Scotland Act was passed, as it had effect immediately
before that time.
Extra-statutory materials
[11] The provisions of the 2007 Act quoted
above had their origin in recommendations made in a report to the Scottish
Ministers in 2004 by the Summary Justice Review Committee, chaired by Sheriff
Principal McInnes. As can be seen from a
subsequent document entitled "Smarter Justice, Safer Communities: Summary
Justice Reform--Next Steps", published by the Scottish Executive, these
recommendations were accepted, with modifications, and were reflected in the
Bill which followed. The policy
underlying the relevant clauses of the Bill may be discovered from the
following extracts from the Policy Memorandum and Explanatory Notes which
accompanied it.
[12] The Policy
Memorandum stated:
"CHANGES
TO THE SENTENCING POWERS OF THE SUMMARY COURTS
Policy Objectives
206 The
Executive believes that professional sheriffs should be able to deal with a
wider range of cases under summary procedure than they are currently entitled
to, including some that would attract a higher penalty. An increase in the maximum sentence that can
be imposed in summary cases will allow more cases to be dealt with under
summary procedure. The most serious
matters will, however, continue to be dealt with under solemn procedure in the
sheriff courts and the High Court.
Key Information
207 The
ordinary sentencing power of the sheriff, in common law cases, when sitting as
a court of summary jurisdiction is currently limited to three months
imprisonment or detention. Where the
accused is convicted of a second or subsequent offence inferring dishonest
appropriation of property (or an attempt thereat) or a second subsequent
offence inferring personal violence the court may sentence the accused to a
custodial sentence not exceeding six months.
The maximum fine which may be imposed for a common law offence and certain
statutory offences, "the prescribed sum" is currently set at £5000.
208 The
Bill provides that the sentencing power of the sheriff when sitting summarily
is increased to a maximum custodial sentence of twelve months, irrespective of
whether the offence is a first or second/subsequent conviction. The Bill also increases the prescribed sum to
£10,000. The maximum amount of
compensation that a sheriff can grant in respect of a summary offence will also
be increased to £10,000.
209 Statutory
offences which are triable 'either way', that is summarily or on indictment,
and which have a maximum sentence on summary conviction of less than 12 months
imprisonment, will have that maximum increased to 12 months. The maximum penalty available in respect of
such offences when tried on indictment will remain unchanged. The Bill also makes provision to increase the
maximum custodial penalty available to the court in respect of 3 categories
of statutory offence which are triable summarily only, where the current
maximum period of imprisonment is less than 12 months imprisonment. These are:
·
section
6 of the Emergency Workers (
·
the
Police (
·
s37(4)(b)
of the Antisocial Behaviour (Scotland) Act 2004 (entering premises in
contravention of a closure order - at present, 3 month maximum for a first
offence, 9 months for a second or subsequent offence).
The maximum penalty on summary
conviction in respect of these offences will be increased to 12 months
imprisonment to reflect the new common law maximum. Other than the provisions mentioned above the
maximum sentences for statutory offences that are triable only summarily are
unchanged."
[13] The
Explanatory Notes stated:
"PART 3 - PENALTIES
Sentencing Powers
Section 43: Common law offences
249. This
section amends section 5(2)(d) of the 1995 Act by increasing the maximum
sentence of imprisonment which can be imposed by a sheriff for a common law
offence in a summary case from 3 months to 12 months. At present, section 5 (3) of the 1995 Act
provides that the maximum sentence of imprisonment for a second or subsequent
offence involving violence or dishonesty is 6 months. This provision is repealed meaning that, in
future, all common law offences will be punishable with a maximum custodial
sentence of 12 months on summary conviction.
The sentencing powers of the district court are unaffected.
...
Section 45: other statutory offences
256 This
section brings the maximum summary prison sentences for certain statutory
offences into line with a new maximum sentence for common law offences set out
in section 43 of the Act.
257 Subsection
(1), read with subsections (6), (7) and (8) set out the new maximum, and define
the penalty provisions that will be altered.
Offences which will be affected are those which can be tried under
either solemn or summary procedure (sometimes referred to as "triable either
way") and attract maximum prison sentences of less than 12 months on summary
conviction. The new maximum summary
penalty for such offences will be 12 months.
258 The
effect of subsection (2) is that the statutes which create the affected
offences are to be read subject to the amended sentencing limit.
259 Subsection
(3) allows the Scottish Ministers to amend the maximum period of imprisonment
specified in the statutory offences to which subsections (1) and (2)
apply. This means that, in due course,
textual amendment of the relevant statutes can take place, avoiding ongoing
reliance on the general amendment.
Subsection (4) provides that the maximum period of imprisonment provided
for in a relevant power is to be read as a period of 12 months. Subsection (5) allows the Scottish Ministers
to amend certain provisions in enactments that contain powers to create
offences. Where an enactment provides
for the creation of offences punishable on both solemn and summary conviction,
the maximum summary penalty may, by order, be increased to 12 months."
[14] In February
2006, the Minister for Justice and the Presiding Officer of the Scottish
Parliament issued statements confirming their respective opinions that the provisions
of the Bill would be within the legislative competence of the Scottish
Parliament.
The Bills of Suspension
[15] Each of the
complainers has now sought, by way of bill of suspension, to challenge the
competency of the sentence of imprisonment imposed by the sheriff in each case. It is submitted that the sentence is
incompetent because it exceeds the statutory limit of six months' imprisonment
provided by RTOA 1988 for a contravention of section 103(1)(b) of RTA 1988
where the prosecution is brought on summary complaint. It is submitted that section 45 of the 2007
Act has no application to RTA 1988 or RTOA 1988. Road transport and specifically both RTA 1988
and RTOA 1988 are reserved matters in terms of the Scotland Act. Accordingly, it is submitted, it is not
within the legislative competence of the Scottish Parliament to intromit with
the sentencing powers laid down in those statutes, and any purported attempt to
do so is ultra vires.
[16] Since the
issues raised in both bills of suspension are the same, and moreover since both
complainers were represented by Mr Taylor, we decided to conjoin them and to
dispose of them together.
The devolution minutes
[17] After the
bills of suspension had been lodged in this court, devolution minutes for both
complainers were also lodged. Reference
is made in each of them to section 29 (1) of the Scotland Act 1998 in support
of the proposition that section 45 of the 2007 Act intromits with reserved
matters and is therefore outwith the legislative competence of the Scottish
Parliament.
[18] The devolution
minutes were intimated to the Advocate General.
Although the devolution issues were not raised before the sheriff in
accordance with Rule 40.3 of the Act of Adjournal (Criminal Procedure Rules)
1996, having heard submissions from Mr Taylor, and in the absence of opposition
from the Crown or the Advocate General, we decided in the circumstances of the
case to allow the devolution issues to be raised in the present proceedings in
terms of Rule 40.5 (1).
Submissions of Counsel
Submissions for the Complainers
[19] In developing
the averments in the bills of suspension and the devolution minutes, Mr Taylor
submitted that road transport was a reserved matter. By increasing the sentencing power of the
sheriff under RTOA 1988 for the offence of driving while disqualified, section
45 of the 2007 Act made modifications to Scots criminal law as it applied to
this reserved matter. It accordingly
fell to be treated as relating to this reserved matter, as provided by section
29(4) of the Scotland Act. The proviso
in the subsection did not apply to a provision which sought to amend a statute
relating to a reserved matter. Its
purpose was to preserve the integrity of
Submissions for the Lord Advocate
[20] The Advocate
depute submitted that the purpose and effect of the provision in section 45 of
the 2007 Act is to increase generally the criminal sentencing powers of a court
of summary jurisdiction, the sheriff court, and so to enable such courts to
deal with a wider range of cases in terms of severity and caseload. The provision does not increase the maximum
sentence on conviction for the offence itself, which remains triable on indictment
or by summary complaint; it only increases the sentencing power of the
sheriff. The provision does not relate
to the reserved matter set out in Head E1(d) in Part II of Schedule 5 to the
Scotland Act. To the extent that the
provision merely makes modifications of Scots criminal law (e.g. the penalties
which may be imposed by sheriffs on conviction following a summary complaint)
as it relates to reserved matters, and would not otherwise relate to reserved
matters, section 29(4) of the Scotland Act provides that the provision is to be
treated as relating to reserved matters "unless the purpose of the provision is
to make the law in question apply consistently to reserved matters and
otherwise". In the present case, the
purpose of the provision is to make the relevant Scots criminal law (namely the
law with regard to penalties, procedure and jurisdiction in relation to the
sheriff) apply consistently to both common law offences (section 43 of the 2007
Act, amending section 5 of the Criminal Procedure (Scotland) Act 1995) and also
to statutory offences (whether contained in Acts of the Scottish Parliament or
in Acts of the Westminster Parliament: see section 45 of the 2007 Act). Given that purpose, the provision does not
fall to be treated as relating to the reserved matters set out in Head E1(d). In terms of paragraph 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 RTOA 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
reserved matters than is necessary to give effect to the purpose of the provision
in section 45.
Submissions for the Advocate General
[21] Miss Carmichael adopted the Advocate
depute's submissions. She added that
S.I. 2007 No. 3480 was made as part of the scheme provided by the 2007 Act for
the replacement of district courts with justice of the peace courts, and
consequential removal of the existing limitations on the powers of the district
court when dealing with road traffic offences.
Discussion
[22] In our opinion
the Advocate depute's submissions are clearly to be preferred. As can be seen from the foregoing summary,
the discussion centred on the provisions of section 29(4) of the Scotland
Act. Contrary to the averments in the
bills of suspension and the devolution minutes, to the effect that section 45
of the 2007 Act relates to reserved matters, Mr Taylor did not invite us so to
find.
[23] It was common
ground between the parties that the penalties provided by RTOA 1988 for a
contravention of section 103 (1)(b) of RTA 1988 are part of Scots criminal law,
having regard to the inclusive definition contained in section 126(5) of the
Scotland Act. It was also common ground
that, since the subject-matter of the 1988 Acts is a reserved matter, as
provided by Schedule 5 to the Scotland Act, one of the effects of section 45 of
the 2007 Act is to make modifications to this part of Scots criminal law, as it
applies to this reserved matter. Section
45 is accordingly to be treated as relating to this reserved matter, as
provided by section 29(4) of the Scotland Act, unless the proviso to the
subsection applies, i.e. unless the purpose of the provision is to make the law
in question apply consistently to reserved matters and otherwise.
[24] While we were
not fully addressed on the extent to which recourse may legitimately be had to
extra-statutory materials as an aid to the construction of a statutory
provision such as section 45, in order to discover whether its purpose is such
as to bring it within the proviso to section 29(4), it appears to us to be
legitimate to have regard to the passages in the Policy Memorandum and
Explanatory Notes, quoted above, which contain express statements about its
purpose. From these it may be taken, as the Advocate depute submitted, that the
purpose and of the provision in section 45 of the 2007 Act is to increase
generally the criminal sentencing powers of the sheriff, sitting as a court of
summary jurisdiction, and that the provision, construed in this light, fulfils
this purpose. 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 paragraph 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 RTOA 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
reserved matters than is necessary to give effect to the purpose of the
provision in section 45. For the reasons
given by Miss Carmichael, S.I. 2007 No. 3480 does not assist the complainers.
Disposal
[25] For these
reasons, we shall refuse to pass both bills.