High Court refuses to hear human rights challenge to fixed penalty notice legislation

The appellant claimed that the fixed penalty legislation breached his human rights because it presumed guilt and failed to provide an appeal route, but the High Court of Justiciary Appeal Court ruled that a Bill of Suspension was “not a competent mode of review” and that the correct way to challenge the provisions was by way of judicial review in the Court of Session.

Section 129 of the Antisocial Behaviour (Scotland) Act 2004 provides that a constable who believes that a person has committed a “fixed penalty offence” may give that person an opportunity to avoid conviction by paying a penalty.

The Lord Justice General, Lord Carloway, sitting with Lord Malcolm and Lord Turnbull, heard that the 16-year-old appellant “JQ” was issued with a fixed penalty notice for a breach of the peace committed at an address in Johnstone.

Section 130 of the 2004 Act provides that the notice must specify the offence, the penalty and the clerk of the Justice of the Peace Court to which it may be paid, as well as the fact that the alleged offender has the right to be tried for the offence and how that right is to be exercised.

In terms of section 131, if the alleged offender asks to be tried, proceedings may be brought against him, but such a request “shall” be made by that person giving notice within 28 days, otherwise proceedings cannot be taken against the person.

If, within the 28 days, the penalty is not paid and no notice from him asking to be tried is made, then the person is liable to pay one-and-half times the sum.

The appellant claimed that he gave the notice to his father, who had agreed to “deal with the matter” but then “forgot” about it.

The statutory consequences then followed and on 17 September 2016 the appellant received a “Notice of Registration of Fine” from the clerk at Paisley Justice of the Peace Court stating that a “fine” of £60 had been registered against him because he had failed to pay the fixed penalty of £40.

The notice required him to pay the “fine” by 15 October 2016, which failing the fines enforcement officer might obtain an enforcement order against him.

The process does not involve any criminal conviction, but the notice and “fine” are recorded and although they will not appear in any list of previous convictions, they may appear in circumstances involving “Enhanced Disclosure”.

It was contended that the statutory provisions were “incompatible” with Article 6 of the European Convention on Human Rights because they “reverse the onus of proof after the 28 day period whereby the is presumed guilty of the offence”.

The absence of a provision for challenge was also incompatible with Article 13, it was argued, as the “failure to provide an appeal procedure” deprives the of an “effective remedy”.

On this basis the appellant, having no other remedy, sought suspension of the registration of the fine.

But the Crown contended that the proceedings complained of were not criminal but “administrative” and that the played no part in them, adding that a Bill of Suspension was therefore an “incompetent mode of review”.

Delivering the opinion of the court, the Lord Justice General said: “The High Court’s powers at common law are those of ‘reviewing, in the widest sense of the word, the proceedings of all the inferior courts in Scotland in criminal matters’. Suspension is appropriate to review ‘an illegal or irregular warrant, conviction or judgment of an inferior court’.

“In modern practice, criminal proceedings are those instituted by the public prosecutor by indictment or complaint. They involve ‘not the constitution and enforcement of a mere debt, but conviction as for an offence and sentence in modum poenae’ involving the party being brought before the court, with the determination ‘being in the form of conviction, and not of decree’.

“On this basis, a Bill of Suspension is not a competent mode of proceeding; nor is a petition to the nobile officium of the High Court. The act of registering the sum due as if it were a fine is not something capable of being suspended by the High Court since it involves no judicial act of a criminal court. Suspending registration would simply leave the whole matter in limbo, since the fixed penalty notice would remain in existence.”

The judges observed that the challenge which the appellant sought to make was to the compatibility of the relevant provisions of the 2004 Act with Articles 6 and 13 of the European Convention.

The opinion stated: “If that is his aim, he may do so in the Court of Session by way of a petition for judicial review calling the Scottish Ministers, and possibly Police Scotland, as parties and seeking reduction of the Fixed Penalty Notice accordingly. In these circumstances it is neither necessary nor appropriate for the court to address the substantive issues raised in the Bill.”

However, Lord Carloway added that none of this was to say that the procedure would not be classified as criminal for the purposes of Article 6 ECHR.

Applying the criteria in Engel v Netherlands (No. 1) (1976), he said, “it may be that the nature of the offence, as described in the 2004 Act, may prompt such a classification notwithstanding the domestic one and the limited nature of the penalty…However, classification of the proceedings in this way does not alter the appropriate domestic procedure for review.”