Fixed penalty regime is ECHR compliant: Inner House
The fixed penalty regime under part 11 of the Antisocial Behaviour etc (Scotland) Act 2004 is compatible with the right a fair trial under the European Convention on Human Rights, the Inner House of the Court of Session has ruled.
Lord President Carloway, Lord Malcolm and Lord Turnbull gave the decision in refusing an appeal by Jordan Queen, who claimed in a petition for judicial review that his inability to challenge a fixed penalty issued under the Act after 28 days had passed was incompatible with his rights under articles 6 and 13 of the Convention.
The petitioner had been issued by a constable with a £40 fixed penalty notice in August 2016. He stated that he was initially scared to tell his parents, but his father found the notice two weeks later and after speaking to the petitioner said he would deal with it for him. However he forgot to do so within the 28 day period allowed in the Act for requesting a trial of the alleged offence, and the penalty was then converted into one of £60, which fell to be treated as a fine imposed in the JP court.
At first instance the Lord Ordinary held that part 11 of the 2004 Act was compliant with ECHR article 6, as the petitioner was entitled to ask to be tried and was guaranteed a right to a fair trial before an independent and impartial tribunal. The only qualification was that the right had to be exercised within a stipulated time period. A separate argument based on article 13 was also rejected.
Before the Inner House the petitioner argued that he had been charged with a criminal offence and the payment was punitive in nature. He might be subject to further penalty or imprisonment through enforcement proceedings. The JP court would proceed on the basis that he had committed the offence, and there would be a public pronouncement of guilt at each hearing to which he was cited. He was therefore denied the presumption of innocence. His inability to demand a right to a hearing after the expiry of 28 days meant that he was denied the right to a review before a court satisfying article 6.
Lord Turnbull, delivering the opinion of the court, said it was correct that the giving of a fixed penalty notice constituted a criminal charge for the purposes of article 6. However it was not correct to say that the petitioner remained subject to proceedings in the JP court that might result in a penalty. "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."
A fines enquiry court would make no pronouncement on guilt or innocence, and it was incorrect to suggest that the petitioner might become liable to imprisonment in respect of an unpaid penalty: legislation required the court in that case to impose a community payback order. The petitioner would not acquire a criminal record, and in terms of the Rehabilitation of Offenders Act 1974 the notice became spent at the time it was given.
He added: "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."