Article 6 of ECHR ‘not engaged’ in dispute over £40 fixed penalty notice

Jordan Queen was issued the penalty by a police officer in 2016 when he was 16 years old. After refusing to pay it, it became treated as a £60 fine issued by the Justice of the Peace Court. He then sought judicial review of the relevant part of the 2004 Act.

The appeal was heard by the Lord President, Lord Carloway, sitting with Lord Malcolm and Lord Turnbull.

Right to fair trial

The petitioner was issued with the original fixed penalty notice in August 2016. Around two weeks after receiving the notice, during which time he did not pay the penalty, his father found out about it. The petitioner explained to his father that he had done nothing wrong. The father believed him and took the notice, saying he would deal with it for him. He then placed the notice in his toolbox and forgot about it.

As a result of this, the notice escalated to a £60 fine in September 2016. After correspondence between the petitioner’s solicitor, the Central Ticket Office and the clerk of the court, the petitioner was informed that it was not possible to extend the 28 day period following the issue of the notice within which a court hearing required to be requested, and that he was required to attend a Fines Enquiry hearing at the JP court. The petitioner asserted that he wished for an opportunity to establish his innocence, as he believed he had done nothing wrong.

The petitioner therefore brought judicial review proceedings to the Outer House, submitting that the provisions of the 2004 Act were incompatible with articles 6 and 13 of the ECHR, granting a right to a fair trial and a right to an effective remedy against an infringement of his rights under the ECHR. The Lord Ordinary who heard the petition was satisfied that the relevant part of the 2004 Act was complaint with the provisions of the ECHR, as the only qualification imposed on the right was a time limit in which it could be exercised.

In his reclaiming motion, the petitioner submitted that Article 6 remained engaged in the Fines Enquiry Court proceedings, under which the JP court proceeded on the basis that he had committed the offence, denying him the presumption of innocence. Furthermore, he could be subject to further penalty at these proceedings.

The essential complaint advanced on the petitioner’s behalf was that the inability of someone in his position to demand a right to a hearing after the expiry of the 28 day period meant that he was denied the right to a review before a court exercising all of the component features of article 6. The only power available to be exercised was one that permitted a constable to revoke a fixed penalty notice if satisfied that the offence to which the notice relates was not committed or that the notice ought not to have been issued to the person named as the person to whom it was issued. He argued that this was not the equivalent of a review before an article 6 compliant court.

As a further analogy, the petitioner gave the hypothetical example of a person who fell into a coma after being issued a fixed penalty notice, and woke up after the expiration of the 28 day period. That person would have no method of challenging the imposition of the penalty. This was rejected as “artificial” by counsel for the respondents.

Enforcement function

The opinion of the court was delivered by Lord Turnbull. Addressing the argument that article 6 remained engaged in the JP court proceedings, he said that submission was not well-founded, explaining: “The public prosecutor’s ability to bring criminal proceedings against the petitioner in respect of the offence was barred from the moment the notice was given to him. The petitioner’s right to request a trial expired 28 days after receipt of the notice. The criminal charge ceased to exist for any purpose from that point onwards.”

He continued: “It is not correct to say that there would be a public pronouncement of the petitioner’s guilt before a Fines Enquiry Court. In the scheme of the 2004 Act that court is performing an enforcement function. It makes no pronouncement on guilt or innocence.”

Regarding the petitioner’s concerns about recorded criminal convictions, he said: “It is also incorrect to assert that the giving of a fixed penalty notice would be recorded against the petitioner as a criminal conviction and that he would have a criminal record in consequence of receiving the notice. The concern which he expresses in his affidavit of 9 March 2018 is misplaced. For the purposes of the Rehabilitation of Offenders Act 1974 the giving of a fixed penalty notice is treated as an alternative to prosecution. The notice becomes spent at the time it is given.”

He continued: “His concern about enhanced disclosure is also misplaced and we find it hard to understand why this concern should have been repeated in the present proceedings. On 21 February 2018, the petitioner was sent a letter from Police Scotland in which it was confirmed that the information about his fixed penalty notice would be removed from the record kept on 12 August 2018 and would thereafter be incapable of being disclosed to Disclosure Scotland.”

Regarding the interests of justice, he said: “The petitioner’s argument fails to give proper weight to the fact that the 2004 Act provides for the imposition of a penalty by an administrative authority and provides for a review of that decision before an article 6 compliant court. The petitioner has never contended that the requirement to engage this review within the 28 day period imposes an obligation which interferes with or denies him his article 6 rights. His argument is that there requires to be a separate procedure, which in itself requires to be article 6 compliant, available after the expiry of the 28 day period to those who deliberately, negligently or otherwise fail to comply with the statutory time period. In our opinion there is no substance in this argument.”

He concluded: “The petitioner’s article 6 rights are not re-engaged after the point has been reached where there can be no prosecution. The penalty is fully determined at the expiry of the 28 day time period and the further procedure available under the Criminal Procedure (Scotland) Act 1995 is concerned only with enforcement. That enforcement procedure is sufficiently flexible to be able to take account of the interests of justice.”

For these reasons, the appeal was refused.