APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway CGB Nicholson CBE QC Sheriff Principal Lockhart	[2009] HCJAC 29 Appeal No: XJ95/08 OPINION OF THE COURT delivered by LORD CARLOWAY in the Bill of Suspension by CHARLOTTE LISTON SUTHERLAND Complainer; against HER MAJESTY'S ADVOCATE, Respondent: _______

Act: party

Alt: Ferguson QC, AD; The Crown Agent

27 March 2009

[1] Four Fixed Penalty Notices were issued in respect of the failure of a vehicle, with a registered number R101 EJS, to display a current Excise License, contrary to the Vehicle Excise and Registration Act 1994, section 33(1). The first of these was dated 14 February 2006 and records the vehicle as being southbound on the A90 at Cannachmore. The remaining three were dated 25 February, 8 March and 9 October 2006 with the locus as Cranhill Place, Newtonhill. The penalties, which would have amounted to £60 each, were not paid. In accordance with the procedure set out in section 63 (et seq.) of the Road Traffic Offenders Act 1988, statutory notices were then served upon the owner (registered keeper) of the vehicle. That service was upon the complainer at the address of 6 Cranhill Place, Newtonhill, Stonehaven. There was no response to these notices. In particular, there was no request for a hearing. Continuing to follow the procedure in the 1988 Act, the Chief Constable of Grampian Police applied to the Clerk of the District Court at Stonehaven to register fines of £90 in respect of each fixed penalty offence. This was done but no payment was forthcoming. The complainer was therefore cited to appear before the District Court on 1 October 2007 for means enquiry under section 398 of the Criminal Procedure (Scotland) Act 1975 (sic). In advance of that date, the complainer lodged with the District Court what purported to be a Minute raising Devolution Issues. This Minute had not given the Lord Advocate and the Advocate General the requisite notice and the Court therefore adjourned the diet until 30 October 2007. At that diet the complainer appeared and the Lord Advocate was represented by a solicitor, having lodged Answers to the Minute.

[2] The Minute protested that the complainer's right to a fair trial under article 6 of the European Convention on Human Rights and Fundamental Freedoms had been infringed. The reasons presented for this were first that the justices of the District Court were "lay" persons, not properly qualified to make legal determinations. The Acts of Parliament setting up the District Courts (the District Courts (Scotland) Act 1975 and the Bail, Judicial Appointments etc (Scotland) Act 2000) were incompatible with article 6. The respondent replied, in terms of her answers, that there could be no Devolution Issue, since there had been no act of the Scottish Ministers or Parliament. In any event the Minute did not set out a relevant case for a contravention of article 6. There was no basis for the suggestion that the use of lay judges amounted to a contravention of article 6, the use of such judges having a long established place in many European legal systems. Given the terms of Clark v Kelly 2003 SC (PC) 77, it must be assumed that the activities of lay justices were compatible with the Convention. Finally, it was said that the District Court could not declare a statute to be incompatible with the Convention.

[3] The Justice of the Peace accepted the respondent's submissions and dismissed the Minute, in a reasoned manner, on the basis of incompetency and irrelevancy. He then attempted unsuccessfully to enquire into the complainer's means before allowing her a further twenty eight days to make payment and granting a warrant for civil diligence to recover the total fines of £360 in the event of non payment. It is in respect of the warrant that the complainer has presented her Bill of Suspension.

[4] The Bill avers that the complainer is the victim of unlawful acts on the part of the District Court and the respondent. It is said that her rights under the Convention have been violated and that there has been a miscarriage of justice. The complainer's application for an order for service of the Bill was initially refused on 14 January 2008, on the basis that it was irrelevant, standing the decision of the Court in McDonald v HM Advocate [2007] HCJAC 36. The complainer successfully appealed, although no reasons appear to have been given. In support of her position in that appeal and at the final hearing on the Bill, the complainer lodged "Grounds of Appeal". These stated, in summary, that the complainer had "received no notices or any written communication from the police, the procurator fiscal or the district court regarding alleged offences". Under reference to a number of sections of the Scotland Act 1998 and the Human Rights Act 1998, the complainer maintained her challenge to the jurisdiction of the District Court. She also claimed that the respondent's intervention to oppose her Minute had itself breached her article 6 rights. She introduced an argument that Chief Constable had also done so. There was a further complaint about the compatibility of new legislation contained in the Criminal Proceedings etc. (Reform) (Scotland) Act 2007.

[5] The Court is unable to find any fault in the reasoning of the Justice of the Peace in dismissing the Minute as incompetent and irrelevant. There appears to be no act of the Scottish Ministers or Scottish Parliament under challenge. The respondent played no part in the process of registering the fines or in the means enquiry. The Acts authorising the fixed penalty procedure are contained in United Kingdom legislation. There was simply no competent Devolution Issue set out in the Minute. The compatibility of the legislation with the Convention has already been determined in McDonald v HM Advocate (supra). There it was made clear that the statutory provisions did not infringe the Convention, since the owner or driver of the vehicle to which the fixed penalty notice was attached could opt for criminal proceedings and hence a hearing (para [20]). The compatibility of lay justice with the convention has also been determined; this time by the Privy Council in Clark v Kelly (supra). Again, there is no basis for arguing any article 6 infringement. The complainer appears now to be raising issues about whether she was properly served with the fixed penalty and subsequent notices, but these are not matters raised in the Bill. That Bill has no sound legal foundation and the Court accordingly refuses to pass it.