JORDAN, PETITION OF JORDAN QUEEN FOR JUDICIAL REVIEW [2019] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> JORDAN, PETITION OF JORDAN QUEEN FOR JUDICIAL REVIEW [2019] ScotCS CSOH_10 (31 January 2019) URL: http://www.bailii.org/scot/cases/ScotCS/2019/[2019]_CSOH_10.html Cite as: 2019 SCCR 90, [2019] CSOH 10, [2019] ScotCS CSOH_10, 2019 GWD 4-56

[1] The petitioner seeks declarator that Part 11, et separatim section 131 of the Antisocial

Behaviour etc (Scotland) 2004 (“the 2004 Act”) is not law by virtue of section 29(1) and (2)(b)

of the Scotland Act 1998 in respect that it is incompatible with the petitioner’s rights under

articles 6 and 13 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms (“ECHR”). Answers were lodged on behalf of the Lord Advocate

(the first respondent) and the Chief Constable, Police Scotland (the third respondent). There

was no appearance on behalf of the third respondent at the substantive hearing. The

petitioner and the first respondent lodged Statements of Issues in broadly comparable terms

for use at the substantive hearing. These statements were supplemented by Notes of

[2] The legislation challenged in the petition is part 11 of the 2004 Act, comprising

sections 128 – 134 of that provision. Section 128 defines the meaning of a “fixed penalty

offence” for the purpose of part 11 of the 2004 Act, and further defines the offences to which

“(1) A constable who has reason to believe that a person aged 16 or over has

committed a fixed penalty offence in a prescribed area may give the person a

‘fixed penalty notice’ means a notice offering the opportunity, by

paying a fixed penalty in accordance with this Part, to discharge any

liability to be convicted of the offence to which the notice relates; and

‘prescribed area’ means an area prescribed by the Scottish Ministers

Section 130 stipulates the levels of fixed penalty notices and makes provision for the form of

such notice. Section 131 makes provision for the effect of fixed penalty notices as follows:

“(1) This section applies if a fixed penalty notice is given to a person (‘A’) under

(2) Subject to subsection (3), proceedings may not be brought against A.

(3) If A asks to be tried for the alleged offence, proceedings may be brought

(b) before the end of the period of 28 days beginning with the day on

(5) If, by the end of the period mentioned in paragraph (b) of subsection (4)—

(a) the fixed penalty has not been paid in accordance with this Part; and

then A is liable to pay to the clerk of the justice of the peace court specified in

the fixed penalty notice a sum equal to one and a half times the amount of the

(6) A sum for which A is liable by virtue of subsection (5) shall be treated as if it

were a fine imposed by the justice of the peace court specified in the fixed

[3] The legislative history of the Act of 2004 was set forth in paragraphs 9 – 17 of the

petition which were substantially admitted by the third respondent. It was a matter of

admission that the petitioner contended that provisions in part 11 of the act of 2004 were

[4] The factual circumstances which caused the petitioner to present the present petition

are set forth in paragraphs 18 – 21 of the petition. It is admitted that on 12 August 2016 the

petitioner was issued with a fixed penalty notice in the sum of £40.00. Beyond that the facts

relied upon by the petitioner are said to be not known and not admitted by the first

respondent. Given that the facts averred by the petitioner are essentially personal to him

and therefore not within the knowledge of the first respondent this form of pleading is

understandable. In the context of a petition for judicial review I can however have regard to

these facts. In that regard it is to be noted that for the purposes of the substantive hearing

the petitioner submitted an affidavit in which, on oath, he provides factual information to

supplement the averments set forth in paragraphs 18 – 21 of the petition. On the basis of

this material it is plain that the petitioner disputes the facts underlying the fixed penalty

notice with which he was served on 12 August 2016. He maintains that he did nothing

wrong. He further explains that he was initially unwilling to tell his parents about the fixed

penalty notice intending simply to pay the sum in the hope that his parents did not find out

about it. Approximately two weeks after the issuing of the notice his father did find out

about the notice and, after discussion between father and son, the petitioner’s father

informed him that he would “deal with the matter”. His father in fact failed to do anything

and on 18 September 2016 in accordance with the afore quoted statutory provisions the

petitioner received a letter from the clerk of the Justice of the Peace Court at Paisley

informing him that the fixed penalty notice had been registered as a fine. Thereafter the

petitioner consulted with a solicitor. That solicitor contacted the clerk of court by letter

dated 4 November 2016 but was advised that the matter could not be reopened.

Subsequently the petitioner lodged a Bill of Suspension in the High Court of Justiciary. By

[5] Against the foregoing background the petitioner’s submission was that part 11 of the

2004 Act operates in contravention of the right of fair trial provided for in article 6 of ECHR

and is therefore not law in terms of section 29(1) of the Scotland Act 1998. There were

subsidiary arguments that esto part 11 of the 2004 Act is law the petitioner did not waive his

[6] The submission in support of the proposition that part 11 of the 2004 Act was not law

by reason of failure to provide the right to a fair trial proceeded on the proposition that the

Act provided, in terms of section 133, for revocation of a fixed penalty notice by a constable

in two circumstances (section 133(2)). The Act made no provision for revocation in

circumstances where, for whatever reason, a person issued with a fixed penalty notice failed

to give notice of their wish to stand trial within 28 days. It was submitted that the absence of

any revocation provision other than those stipulated in section 133(2) of the Act of 2004

[7] This argument was developed by submitting that notwithstanding the provisions of

the 2004 Act the finding that the person issued with the fixed penalty notice constitutes a

conviction, or at least a finding, that the person so issued committed the offence. As such it

constitutes a criminal charge. Such charge it was submitted was not determined in

accordance with article 6 and, moreover, part 11 of the Act precludes the possibility of a

review by a court satisfying the requirements of article 6. Finally, on this part of the

argument, it was submitted that the charge in the fixed penalty notice issued against the

[8] The second, and separate, argument advanced on behalf of the petitioner was that in

the event that part 11 of the 2004 Act is law the petitioner did not waive his right to be tried

by an independent and impartial tribunal. This argument was based upon the information

provided to the petitioner in the fixed penalty notice failing to provide the petitioner with

information as to the allegation made against him. He was not provided with the nomen

juris of the alleged offence. Having regard to that consideration it was submitted that he

[9] A separate argument was advanced by the petitioner to the effect that part 11 of the

2004 Act violated his right to an effective remedy under article 13 of ECHR. Submissions in

support of this proposition were limited and confined, as I understood it, to stating that the

absence of possibility of review of the fixed penalty notice after the expiry of the 28 day

[10] In response the first respondent submitted that a fixed penalty notice is “a notice

offering the opportunity… to discharge any liability to be convicted of the offence to which

the notice relates” (2004 Act section 129(2)). Unless a person receiving a fixed penalty notice

asks to be tried for the alleged offence before the expiry of 28 days from the day the fixed

penalty notice is given “…proceedings may not be brought” against the recipient of the

notice (2004 Act section 131(2)). A consequence of this framework is that the petition is fact

dependant. On the basis of the petitioner’s own averments he understood that he was

entitled to reject the fixed penalty notice and elect to proceed to trial and, further, it was his

intention to do so. He had entrusted, or delegated, the practicalities of that course to his

father. Through inadvertence on his father’s behalf the necessary steps were not taken to

challenge the fixed penalty notice within the statutory timeframe stipulated by the 2004 Act.

Inadvertence or error in relation to compliance with the statutory formalities can, it was

submitted, have no bearing on the question of part 11 of the 2004 Act’s compatibility with

[11] The first respondent accepted that the issue to the petitioner of a fixed penalty notice

under part 11 of the 2004 Act constituted a charge with a criminal offence for the purposes of

article 6 of ECHR. That charge however ceased to exist at the point at which it became

impossible by operation of section 131(2) of the Act for proceedings to be brought against

the petitioner, that is at the end of the 28 day period following the giving of the notice

during which the petitioner had not asked to be tried. In support of that proposition

reliance was placed upon S v Miller (No 1) 2001 SC 977 at paragraph 23 and R v Durham

[12] Separately it was submitted that the system of penalties established by part 11 of the

2004 Act was compatible with article 6 of ECHR. A method exists whereby the recipient of a

fixed penalty notice such as the petitioner has a right to insist that the charge be determined

by a tribunal that complies with the requirements of article 6. In support of that submission

reliance was made upon McDonald v HM Advocate [2007] HCJAC 75 at paragraph 20;

[13] In relation to the article 13 submission counsel for the first respondent pointed out

that the article was not incorporated into domestic law and did not constitute a “convention

right” (section 1, schedule 1, Human Rights Act 1998). Article 13 did not therefore confer

[14] Having regard to the submissions the first respondent submitted that the provisions

of part 11 of the 2004 Act were ECHR compliant and that the prayer of the petition should be

[15] I am satisfied that the present petition requires to be considered having regard to the

relevant facts insofar as these are known to the court. In that regard I have already observed

that the petitioner’s narrative of the factual background was not denied by the first

respondent. Moreover the facts in the petition were supplemented by an affidavit. That

document sworn under oath contains material which in the context of the petition for

[16] I have already narrated the factual circumstances. These are, in my view, clear. It is

plain that the petitioner intended to challenge the basis of the fixed penalty notice. It is

equally plain that when the fixed penalty notice came to the attention of his father the

petitioner permitted that person to “deal with the matter”, that is effectively delegated to his

father responsibility for either paying the fixed penalty notice, which had been the

petitioner’s original intention, or in the alternative have the matter resolved by way of a

trial. As a result of forgetfulness the petitioner’s father took neither of those courses and did

nothing thereby allowing the 28 statutory day period to elapse. The situation in which the

petitioner found himself is, on these facts, the result of a deliberate course undertaken by

himself, albeit that course may not have resulted in the outcome he desired. It cannot have a

bearing on the compatibility of the statutory provision challenged with article 6 of ECHR.

[17] Going further, I am satisfied that the framework set forth on part 11 of the Act is

compliant with the provisions of article 6 of ECHR. The statutory provisions expressly

provide that the recipient of a fixed penalty notice may ask to be tried for the alleged offence

(2004 Act section 131(3)). The Act further stipulates that such a request must be made by

notice before the end of the period of 28 days from the date notice is given (2004 Act

section 131(4)). The Act does not therefore, in my view, deprive the recipient of a fixed

penalty notice of a right to fair trial. On the contrary the provision entitles and guarantees

the recipient of a fixed penalty notice a right to trial subject only to a provision that the right

to elect for trial must be exercised within a stipulated time period. There was no submission

that the imposition of a time restriction in which an election to proceed to trial must be

exercised rendered a statutory provision non-compliant with article 6 of ECHR. In my view

that is not surprising. In circumstances where the legislature determined to offer a person

charged with a criminal offence the right to proceed to trial or, in the alternative, accept a

penalty which expressly discharges liability to be convicted of the offence it is, again in my

view, both reasonable and administratively necessary to provide a time period within which

[18] My construction is further strengthened by consideration of the terms of

section 129(2) of the Act of 2004 providing that a fixed penalty notice once paid discharges

any liability to be convicted of the offence to which the notice relates. In relation to that

provision I am bound by the authority of S v Miller (supra) the ratio of which was that where

a procurator fiscal decided not to proceed with a charge against a person “… there is no

longer any possibility of proceedings resulting in a penalty, any subsequent proceedings

under the 1995 Act are not criminal for the purposes of article 6” (paragraph 23). In my view

section 129(2) of the Act of 2004 is of the same effect and therefore the same conclusion as

[19] The petitioner’s submission based upon article 13 of ECHR can be dealt with briefly.

I agree with the proposition advanced by counsel for the first respondent that article 13 of

ECHR has not been incorporated into domestic law and is not one of the “convention rights”

defined by section 1, schedule 1 of the Human Rights Act 1998. In these circumstances it is

my opinion that no free standing right arises from article 13. That conclusion would be

determinative, I am however satisfied that the factual circumstances of the present case fail

to disclose any contravention of article 13. As already discussed part 11 of the 2004 Act is

clear and provides a readily understandable and operable framework. A person, such as the

petitioner, served with a fixed penalty notice is given a clear choice of either proceeding to

trial and thereby no doubt challenging the basis of the criminal offence in the fixed penalty

notice or, in the alternative, accepting the notice which thereby discharges any liability to be

convicted of the offence. In my opinion that statutory framework constitutes an effective

[20] Having regard to my foregoing conclusions I will refuse the prayer of the petition.

Scottish Court of Session Decisions