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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Robbie The Pict v. Procurator Fiscal, Fort William [2007] ScotHC HCJAC_10 (02 February 2007)
URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJAC_10.html
Cite as: 2007 JC 101, [2007] HCJAC 10, 2007 GWD 6-88, [2007] ScotHC HCJAC_10, 2007 SCCR 114

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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 Encyclopaedia of Road Traffic Law and Practice. Section 20(1) provides inter alia that evidence (which in Scotland shall be sufficient evidence) of a fact relevant to proceedings for an offence to which that section applies (which by sub-section (2) includes an offence under section 89(1) of the 1984 Act) may be given by the production of a record produced by a prescribed device. Sub-section (4) provides that a record produced or measurement made by a prescribed device shall not be admissible as evidence of a fact relevant to proceedings for an offence to which the section relates unless inter alia the device is of a type approved by the Secretary of State. By sub-section (9) the expression "prescribed device" is defined as meaning a device of a description specified in an order made by the Secretary of State, which by sub-section (10) is to be a statutory instrument. It is this provision which has given the minuter the impression that the MuniQuip K-GP cannot be described as a prescribed device unless it has been the subject of a specific provision in a statutory instrument. The minuter, however, appears to us to have overlooked two matters. In the first place, the MuniQuip K-GP was approved by the Secretary of State under section 20 of the 1988 Act as originally enacted, in terms of which no more was required than that the device be of a type approved by the Secretary of State. While section 20 as originally enacted was replaced by the substituted provisions referred to above, the Road Traffic Act 1991 (Commencement No.4 and Transitional Provisions) Order 1992 (S.I. 1992/1286) provided that the radar speed measuring devices approved by the Home Secretary under section 20 as originally enacted had continuing effect as if given for the purposes of the substituted section 20(4), so nothing more was required. Secondly, and in any event, for a device to be a prescribed device in terms of the substituted section 20, it requires to be of a type approved by the Secretary of State. By the Road Traffic Offenders (Prescribed Devices) Order 1992 (S.I. 1992/1209) it is provided that a device designed or adapted for measuring by radar the speed of motor vehicles is a prescribed device for the purposes of section 20 of the 1988 Act (as substituted by section 23 of the 1991 Act). This would, if need be, apply to the MuniQuip K-GP. The minuter appears to us to fail to recognise the distinction between a type of device and a specific model of a device of that type.

 

Comment

[12] For obvious reasons, we do not purport to express a concluded view on the foregoing matters. However, the above considerations appear to support the provisional view that neither ground of defence is likely to be arguable. If, however, the minuter still sees fit to advance them, it will be for the District Court to reach a decision on them in light of the submissions presented to them.

 

The devolution issue
[13]
The European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") provides by article 6(1) inter alia:

"In the determination of...any criminal charge against him, everyone is entitled to a fair and public hearing...by an independent and impartial tribunal established by law."

In his letter of 31 July 2003 the minuter expressed his first "preliminary plea to competency" in these terms:

"A plea of personal bar against the Crown on the basis of the Crown's relationship with the Clerk of the Court being an institutionalised violation of anyone's human right to a fair hearing from an independent and impartial tribunal in a 'District Court'."

In the devolution minute, the minuter has elaborated on this by averring that:

"[T]he Crown, in the person of the Procurator Fiscal at Fort William, has opted to prosecute the author of this Minute in the District Court at Fort William. The District Court operates under the aegis and authority of the Highland Council using legally unqualified magistrates who are guided in matters of law by a qualified Clerk to the Court whose salary is paid by Highland Council. The 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. ... Consequently it is arguable that the independence and impartiality of Highland Council's local District Court thus operated has been compromised in the objective perception of the Scottish public at large. This arrangement would therefore appear to radically violate the terms of Article 6(1) of [the Convention], specifically the right of a person to an independent and impartial tribunal in the determination of all matters civil or criminal."

 

 

The District Courts (Scotland) Act 1975
[14]
It was clear, and he accepted, that in preparing his minute and his submissions before us the minuter had not considered the provisions of the District Courts (Scotland) Act 1975 (as amended)("the 1975 Act"). A convenient summary of the provisions of the 1975 Act which are relevant for present purposes may be found in the Opinion of Lord Hope of Craighead in Clark v Kelly 2003 S.C. (P.C.) 77, 2003 S.C.C.R. 194 at para.49, in these terms:

"Section 9 of the 1975 Act, as amended by section 8 of the Bail, Judicial Appointments etc (Scotland) Act 2000, provides for the appointment of all persons to serve as justices of the peace for any local authority area. They are appointed by the Scottish Ministers on behalf of and in the name of Her Majesty. They can only be removed from office by order of a tribunal constituted under section 9A of the 1975 Act, which was inserted by section 9 of the 2000 Act, and then only if the Tribunal finds that the justice is unfit for office, by reason of inability, neglect of duty or misbehaviour. Their independence from the prosecutor is assured, as all prosecutions in the District Court proceed at the instance of the procurator fiscal who acts under the authority of the Lord Advocate: section 6(3) of the Criminal Procedure (Scotland) Act 1995. The Lord Advocate has no part to play in their removal or appointment. Their independence from the local authority too is provided for by section 12 of the 1975 Act, as substituted by section 10 of the 2000 Act, which provides that the office of a justice shall not be held by a member of a local authority."

[15] It can be seen from this summary that there is no possible justification for the averment in the minute that "the District Court operates under the aegis and authority of the Highland Council", and indeed the minuter did not seek to develop this averment in his submissions. At the hearing before us the focus was mainly on the role of the clerk of the District Court. Section 7(1) of the 1975 Act provides:

"It shall be the duty of each local authority to appoint and employ, whether on a full-time or part-time basis, an officer to act as clerk of the district court for their area, who shall also act as legal assessor in that court, and any person so appointed shall be an advocate or a solicitor."

The role of the clerk came under scrutiny in Clark v Kelly, in which the Judicial Committee of the Privy Council had to consider inter alia an argument that he was in law part of the tribunal for the purposes of article 6(1) of the Convention and that, as he lacked the security of tenure which was necessary to ensure his independence, the District Court could not be said to be an independent tribunal within the meaning of the article. It was held by the Committee inter alia that the clerk must be regarded as part of the court for the purposes of article 6(1) of the Convention, having regard to his essential role in the ordinary functioning of the court; in assessing the independence and impartiality of the tribunal, its structure had to be looked at as a whole, and that taking account of the professional obligations of the clerk as a lawyer, the restriction of the clerk's role to provision of legal advice, and the availability of appeal against disputed legal conclusions, the structure of the District Court did not breach the requirements for independence and impartiality under article 6(1). The Committee further held that any advice given by the clerk to the justice in private should be regarded as provisional until the substance of the advice had been repeated in open court and an opportunity given to parties to comment on it; that the clerk should then state in open court whether the advice was confirmed or varied, and if it varied in what respect, before the justice decided to act on it; and that if these steps were taken the giving of advice by the clerk to the justice would be compatible with the Convention rights of an accused person. We shall return to the question whether the decision in Clark v Kelly, which is binding on us, can be distinguished in the circumstances of the present case.

 

Apparent bias
[16]
The minuter was at pains to make clear that he did not suggest that there was actual bias on the part of the clerk of the District Court. He did, however, submit that in the circumstances of the case there was a risk of apparent bias. In Findlay v UK (1997) 24 EHRR 221 the European Court said, at para.73, under reference to article 6(1) of the Convention:

"The court recalls that in order to establish whether a tribunal can be considered as 'independent', regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.

As to the question of 'impartiality', there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect."

The second aspect relates to what is otherwise called apparent bias. Lord Bingham of Cornhill said in Davidson v Scottish Ministers (No.2) 2005 1 SC (HL) 7 at para.17, that it is difficult, if not impossible, to lay down any hard-edged rules to distinguish a case where apparent bias may be found from one where it may not. As Lord Hope of Craighead said in Kearney v HM Advocate 2006 SC (PC) 1 at para.22:

"Much will turn on the facts of the particular case. The court must first ascertain all the circumstances which may have a bearing on the suggestion that the judge was biased. It must then ask itself whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased (Porter v Magill [2002] 2 AC 357, paras.102, 103; Lawal v Northern Spirit Ltd [2003] UKHL 35, [2003] ICR 856, para.14)."

Reference may also be made to Helow v Advocate General for Scotland [2007] CSIH5. It is necessary therefore to consider with some care the circumstances founded on by the minuter to see whether they would lead a fair-minded and informed observer to conclude that there is a real possibility that the clerk of the District Court may be biased and as a result that the District Court itself may be biased.

 

The Northern Safety Camera Partnership
[17] The minuter founds on the duty under section 7(1) of the 1975 Act of each local authority, in the present case the Highland Council, to appoint and employ an officer to act as clerk of the District Court for their area. He points to the ground of defence already mentioned, relating to the validity of the 30mph speed limit in Roybridge, which, according to him, means that the Highland Council have an interest in seeking to uphold its validity. Then he introduces new matter (which was not referred to in the minute but which the Advocate Depute did not suggest that we should not take into account). The minuter presented us with material derived from the website of the Northern Safety Camera Partnership,www.nscp.co.uk ("the NSCP")`. It can be seen from the website that there are eight such partnerships operating in Scotland and many more in England and Wales. A safety camera partnership is described in these terms:

"This is a Road Safety initiative launched by the Government, which aims to reduce the number of road accident casualties by promoting safer driving within the legal speed limits. This aim will be achieved through the use of safety cameras in areas where there is a demonstrable level of collisions and speeding. The Northern Safety Camera Partnership will operate in the Highland Area."

The NSCP is said to have been launched in July 2004. Its principal aim is stated to be:

"[T]o reduce road deaths and casualties on Highland roads by encouraging and educating all road users to drive within permitted speed limits... through the use of safety cameras situated in areas where there is a history of collisions and excessive speed."

The organisations participating in the partnership are Northern Constabulary, the Highland Council, Scottish Ambulance Service, Highlands and Islands Fire and Rescue Service, Scottish Executive and the Crown Office and Procurator Fiscal Service.

[18] The minuter asserted that he did not seek to undermine any effort to improve safety on the roads. Although his speed at the time of the commission of the alleged offence was detected by means of a radar device, he advanced criticisms of the use of safety cameras. First, he said that the public perception was that they were used simply as a means of generating revenue. We have no reason to think that this is so; and on its website NSCP expressly states:

"None of the Partners are allowed to make any profit from their participation in the scheme; they are only allowed to recover their legitimate expenses."

Any excess is transferred to the Treasury. It may then be put to a variety of uses, including expenditure on other aspects of road safety. Secondly, the minuter was critical of the siting of two cameras on the A9, near Blair Atholl and Bankfoot. When it was pointed out to him that each of these cameras was situated at a suitable distance before a road junction on a single carriageway stretch of the A9, so as to deter drivers from approaching these junctions at more than 60mph, the minuter was unable to advance further argument to support his criticism. This left, thirdly, as the major criticism, that:

"NSCP appears to be a system of public-private prosecution... [T]his arrangement is unlawful when it involves the Crown Office and Procurator Fiscal Service as prosecutors, Northern Constabulary as the source of the initial report and personnel giving prosecution evidence and the Highland Council as suppliers of the mechanism of prosecution..."

In principle, we can see nothing wrong with an arrangement whereby the various public bodies who are members of NSCP join together to promote road safety by means designed to deter drivers from driving too fast and thereby committing offences. Their participation in NSCP does, however, create a specific relationship between the Procurator Fiscal and the Highland Council, which gives added point to the minuter's submissions about apparent bias on the part of the clerk of the District Court, which is a matter to which we now return.

 

Does the Highland Council's membership of NSCP give rise to apparent bias on the part of the clerk of the District Court and, if so, the District Court itself?

[19] The minuter submitted that the Highland Council had an interest in the prosecution, because the validity of the 30mph speed limit in Roybridge was to be put in question and because of its membership of NSCP. (But see our comments above about each of these points.) This, he said, gave rise to a conflict of interest on the part of the clerk, who was an employee of the Highland Council. He was the only source of legal advice to the members of the court, and his advice might be influenced by the policy of his employers. There was an unholy alliance of parties who had joined up in court. The clerk's advice might be compromised by policy considerations. The case of Clark v Kelly was not relevant in the circumstances of the present case.

[20] The Advocate Depute submitted that Clark v Kelly could not be distinguished. He submitted that the fact that the clerk was in the employment of the local authority did not have any practical consequence for the trial. The clerk's duty was to provide guidance on points of law, not on the facts. He was either an advocate or a solicitor, and bound by the Code of Conduct of his profession. The justices were bound by their judicial oath. They were free to accept or reject the clerk's advice. An appeal was available against whatever decision they took.

[21] In our opinion the present case cannot be distinguished from Clark v Kelly. It can simply be regarded as an example of Clark v Kelly in practice. The clerk of the District Court, in his capacity as such, is not an employee of the local authority. He is employed by the local authority to perform the statutory functions set out in section 7(1) of the 1975 Act. The local authority are under an obligation to pay his salary, but that does not make them his "paymasters", as the minuter put it. In addition to the considerations derived from Clark v Kelly, upon which the Advocate Depute founded, there is the consideration that section 7(1) of the 1975 Act defines the clerk's responsibilities. The minuter laid repeated emphasis on the perception that an uninformed member of the public might have. But the test is whether the fair-minded and informed observer who is aware of the relevant facts, who as "a reasonable member of the public is neither complacent nor unduly sensitive or suspicious", and who gives due weight to the justices' judicial oath, would conclude that there is a real possibility that the District Court will be biased: see Helow v Advocate General for Scotland at paras 34 to 35 and authorities referred to therein. Such an observer must be taken to be aware of the statutory functions of the clerk and of the relationship between the clerk and the court as discussed in Clark v Kelly. If the practice outlined in that case is followed, the minuter will have the opportunity of making submissions about both fact and law during the course of the trial. He will be told what advice the clerk has given to the justices, and will have an opportunity of making further submissions about it. If he takes the view that the advice is wrong, but the justices accept it, and he is convicted, he can bring an appeal to this court. The clerk must be taken to be aware of all of this. We can see no reason for thinking that he has any incentive other than to perform his statutory and professional duty to give impartial legal advice to the justices. There are enough safeguards in place to prevent him from doing otherwise, either consciously or unconsciously. The clerk cannot possibly be described, as the minuter sought to describe him, as "part of the mechanism of prosecution", involving an "unholy alliance" of agencies which have "ganged up".

[22] For these reasons we reject the submissions of the minuter.

 

Result
[23]
We shall accordingly refuse the devolution minute and remit the case back to the District Court to proceed as accords.


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