Fixed penalties and fair trials

In Queen, Petitioner [2019] CSOH 10, a petition for judicial review seeking declarator that the Antisocial Behaviour etc (Scotland) Act 2004, part 11 was not law by virtue of s 29 of the Scotland Act 1998, in respect that it was incompatible with the petitioner’s rights under ECHR articles 6 and 13, was refused.

The petitioner then received a letter from the clerk of the justice of the peace court informing him that the notice had been registered as a fine. He consulted a solicitor who sought to have the matter reviewed, but was advised that the matter could not be reopened. Subsequently the petitioner lodged a bill of suspension in the High Court of Justiciary, which was refused.

Grounds of challenge

Part 11 of the 2004 Act provides for the issue of a fixed penalty notice by the police in certain areas, offering a recipient the opportunity of paying a fixed penalty in discharge of any liability they have to be convicted of the offence to which the notice relates. Section 131 provides that where the person to whom the notice has been issued asks to be tried for the offence, they must give notice of their request within 28 days of receipt of the penalty notice. If, within that period, the penalty has not been paid and such notice has not been given, they are liable to pay to the court a sum equal to one and a half times the amount of the fixed penalty, which sum is to be treated as a fine imposed by the court.

It was the petitioner’s submission on seeking judicial review that part 11 operated in contravention of the right to a fair trial provided for in article 6 ECHR and was therefore not law in terms of s 29(1) of the Scotland Act.

He also argued that part 11 violated his right to an effective remedy under article 13, as there was no possibility of review of the fixed penalty notice after the 28-day period expired.

A right protected

Lord Brailsford refused the petition. The court found in fact that the petitioner had delegated the responsibility of either paying or challenging the notice to his father. The petitioner’s situation was therefore the result of a deliberate course of action undertaken by him and it could not have a bearing on the compatibility with article 6 of the statutory provision challenged (opinion, para 16).

The court further held (para 17) that part 11 was compliant with article 6. The statutory provisions expressly provided that the recipient of a notice might ask to be tried for the alleged offence, such requests requiring to be made before the expiry of 28 days from the date the notice was given. As such, part 11 did not deprive the recipient of the right to a fair trial but rather entitled and guaranteed such a right, subject only to requiring the right to be exercised within a stipulated period. The imposition of such a period was reasonable and administratively necessary.

On the contention that there was a breach of article 13, the court held (para 19) that no free standing right arose from this article. Moreover, the circumstances did not disclose any contravention of article 13 where the statutory framework constituted an effected remedy available to the petitioner.

Comment

In light of Lord Brailsford’s opinion, it is clear that so far as the court is concerned, when a person embarks on a deliberate course of action, it is unlikely that they will be able to argue successfully that their right to a fair trial has been breached.

This case also serves as a timely reminder that, as with many things ECHR, reasonableness and administrative necessity are key considerations that have to be taken into account. Further, it emphasises that there is a broad spectrum of fact sensitive information that a decision maker must have cognisance of when considering whether there has been a breach of ECHR rights.