REFERRAL UNDER PARA 9 OF SCHEDULE 6 OF THE SCOTLAND ACT 1998 PROCURATOR FISCAL, KINGUSSIE v. RICHARD EUGENE PETER SPENCER
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Osborne Lord Philip Lord McEwan | [2005HCJAC108] Appeal No: XJ1610/04 OPINION OF THE COURT delivered by LORD OSBORNE in referral of devolution issue to the High Court of Justiciary under paragraph 9 of Schedule 6 to the Scotland Act 1998 by The Highland District Court at Kingussie in the cause PROCURATOR FISCAL, Kingussie District Court against RICHARD EUGENE PETER SPENCER Accused: _______ |
Procurator Fiscal: McCallum, A.D.; Crown Agent
Accused: Party
12 October 2005
The background
[1]The accused in this case has had served upon him a summary complaint, dated 17 December 2003, containing a single charge in the following terms:
"(1)on 17 August 2003 on the A9 Perth to Inverness road near Dalwhinnie, Inverness-shire being a length of single carriageway road, you Richard Eugene Peter Spencer did drive a motor vehicle, namely a motor car registered number SY03 NFN at a speed exceeding 60mph, namely 85mph; CONTRARY to the 70mph, 60mph and 50mph (Temporary Speed Limit) Order 1977 paragraph 3(b); the 70mph, 60mph and 50mph (Temporary Speed Limit) (Continuation) Order 1978 and the Road Traffic Regulation Act 1984 sections 88 and 89."
[2]On 17 December 2003 this complaint called in Highland District Court at Kingussie, when the accused pled not guilty by written intimation. The court adjourned the diet for trial until 2 June 2004 and ordained the accused to appear. It fixed an intermediate diet for 5 May 2004 and ordained the accused to appear. On 5 May 2004, the accused appeared at the intermediate diet, when he withdrew his not guilty plea. The court continued the case for a debate until 30 June 2004. On that latter date the case was continued again for that purpose until 25 August 2004, when the case was continued yet again for the same purpose until 22 September 2004. On 22 September 2004, the accused appeared on his own behalf, when he pled not guilty. It was intimated to the court that the accused had served a Devolution Minute, in terms of Rule 40.3 of the Act of Adjournal (Criminal Procedure Rules) 1996, cause having been shown for its lateness, in terms of Rule 40.5(1) of the Act of Adjournal referred to. Thereupon, the court adjourned the case to a notional trial diet on 17 November 2004 but referred the determination of the devolution issue to this court in terms of Rule 40.7 of the Act of Adjournal and paragraph 9 of schedule 6 to the Scotland Act 1998.
[3]In the accused's devolution issue Minute, he raises a question concerning the adequacy of the specification of the charge in the summary complaint served upon him. He founds upon the terms of Article 6.3 of the European Convention on Human Rights and Fundamental Freedoms, hereafter referred to as "the Convention", which is in the following terms:
"Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; ...".
In paragraph 2(1) of the devolution issue Minute, the accused avers:
"...Everyone charged with a criminal offence has, inter alia, a right to have adequate time and facilities for the preparation of his defence. 'His defence'
must extend not merely to a 'not guilty' plea, putting the prosecutor to proving his case with admissible evidence, but even to 'pleading guilty by post', which latter has many advantages for the court, police, prosecutor and accused. Our procedure of serving a citation unaccompanied by any scintilla of evidence, or even summary of the case, denies an accused person the possibility of timeously entering a reasoned and provident plea, accompanied by relevant material in mitigation of punishment. In the alternative, it will be argued that this procedure contravenes ECHR Art 6(3)(a) in as much as the accused is not informed promptly, ..., and in detail, of the nature and cause of the accusation against him.
(2)Prompt and in Detail
In the instant case, the accused had no contact with the police at the time of the alleged offence, and was only made aware that there was a potential charge, by the receipt, several days later, of a notice of intended prosecution, intimating an inappropriate (sic.) speeding offence at a specific time but with the locus indicated only vaguely as 'near Dalwhinnie' and a statement that the evidence was 'videographic', a word not to be found in the accused's Shorter Oxford English Dictionary. Having received a citation for trial (on a plea of guilty only on 17 December 2004 (sic.)) the accused wrote on 8 December 2003 to the Procurator Fiscal seeking to know where, whether by National Grid Reference, or even A9 Lay-by Number, the alleged offence was committed, and by what means the speed was measured. The Procurator Fiscal Depute's answer was neither prompt, being dated 28 January 2004 nor was it detailed, giving as to locus no more than that this was 'approximately one and a half miles south of the A9 turn-off to Dalwhinnie', that is to say, some three miles away from Dalwhinnie, and failing to identify the equipment used. For the avoidance of doubt the accused asserts that there is no marked and identifiable fixed speed camera positioned on either side of the A9 trunk road, between the Dalwhinnie turn-off and the county march in the Pass of Drumochter. The accused wrote again to the Procurator Fiscal on 26 March 2004, well before a pleading diet fixed for 5 May 2004, indicating that he found the earlier letter to give insufficient information, asking to be informed of the names and contact details of the witnesses, presumably police officers. There has been no answer sent to this letter at all, but at the 5th May 2004 diet, the Procurator Fiscal Depute handed the accused a computer printed list of one single police witness, which appears to have been printed on 26 January 2004, and accordingly was probably already available to have been furnished with the letter of 28 January 2004."
[4]In their report to this court the justices of the District Court narrate the circumstances in which the devolution issue had arisen. They explain that:
"...However, the minute of the Hearing of 23 September 2004 confirms that whilst we accepted a devolution issue had been raised we believed that the devolution issue would have significance beyond the particular facts of this case. In consequence, we decided to refer the matter to the High Court of Justiciary in terms of Rule 40.7 of the Act of Adjournal (Devolution Issue Rules) 1999. The reasons for referral were:
(i)The allegation that the Crown had not been 'prompt' by Mr Spencer in with (sic.) notifying him of the details of the offence (in terms compliant with Article 6 of the European Convention on Human Rights). Mr Spencer was alleging that the procedure used by the Crown under the terms of the Criminal Procedure (Scotland) Act 1995 for raising proceedings was open to question.
(ii)The allegation of a failure to comply with Article 6 in respect of Mr Spencer not having been given adequate notice of the detail of the case against him, again, Mr Spencer was bringing into question procedure used by parties in terms of the Criminal Procedure (Scotland) Act 1995."
Submissions for the accused
[5]When this case came before us, the accused, appearing on his own behalf, explained the background to the case, which we have already narrated. He emphasised that when he received the complaint relating to the alleged offence, it contained no indication of any evidence upon which the Procurator Fiscal might rely nor any indication of the witnesses who might be led for the Crown. The only specification of the locus was "near Dalwhinnie". The position of the accused was that, while it was possible that he might have exceeded the speed limit of 60mph, it was highly improbable that he would have driven at 85mph, having regard to the mechanical capability of the vehicle involved.
[6]The accused, having written to the Procurator Fiscal by letter dated 8 December 2003, received a reply from him, dated 28 January 2004, which furnished certain further details. That letter was put before the court. In it, the Procurator Fiscal writes:
"Your letter requested more information on the exact place you were seen by police. I am advised that the camera site was approximately one and a half miles south of the A9 turn-off to Dalwhinnie. A brief description of how the speed was measured is as follows:
A video camera films the car driving over three sensors placed in the road. The sensors are a known distance apart. As the car passes over the sensors a clock measures the time the car has taken to pass between the sensors. Since the distance between them is known, a speed calculation is made by equipment contained in a data box. Two speed calculations are made for the distance between the first and second sensors and between the second and third sensors, and they must agree. The data box, which calculates the speed, is calibrated annually by the manufacturer."
[7]Commenting on the contents of this letter, the accused asserted that he had not seen any police operations on the date in question at the locus mentioned and knew nothing of the equipment that might have been in use. However, he did not doubt that a speed check had been undertaken. The accused stated that he had received a copy of a list of witnesses containing a single name of P.C. Kenneth Sutherland. He had tried to contact this police officer on a number of occasions, without success.
[8]Turning to the provisions of the European Convention, Article 6.3(a) required that an accused person should be "informed promptly... and in detail, of the nature and cause of the accusation against him". The position of the accused was that that had not been done in this case. The system of summary prosecution operated in Scotland was not in compliance with that Article, if for no other reason, because there was no obligation upon the prosecutor to furnish a list of witnesses. Furthermore, in the particular circumstances of this case, information had not been provided to enable the accused to identify with precision the locus at which the offence was said to have been committed. The device used to obtain evidence should have been identified, so that its reliability could be investigated on behalf of the accused. The accused emphasised the presence of the adverb "promptly" in Article 6.3(a); that was important because of the significance that the courts now attached to an early plea of guilty, should that be appropriate.
[9]The accused drew attention to a list of authorities which he had submitted to the court, for the most part containing references to decisions by the European Court of Human Rights, or the Commission. He reviewed these cases but stated that none of them appeared to be particularly apt in the context of this case.
Submissions on behalf of the Procurator Fiscal
[10]The Advocate depute began by drawing attention to the requirements, as regards summary complaints, of section 138(2) of and schedule 5 to the Criminal Procedure (Scotland) Act 1995. These requirements were satisfied by the terms of the complaint served upon the accused. Furthermore, there had been issued to the accused on 18 August 2003, the day after the alleged offence, a notice of intended prosecution in accordance with section 1 of the Road Traffic Offenders Act 1988. That document furnished the particulars of the alleged offence set forth in the subsequent complaint, as well as the precise time at which it was said to have occurred. A more prompt intimation of the allegation would have been impossible.
[11]The Advocate Depute next drew our attention to a number of authorities, commencing with Eckle v Federal Republic of Germany [1982] 5 E.H.R.R. 1, para.73, although he recognised that that authority was principally concerned with the requirements of Article 6.1 of the Convention. In Attorney General's Reference (No.2 of 2001) [2004] 1 Cr. App. R. 25, the House of Lords had been concerned with the starting point of the period of a reasonable time specified in Article 6.1 of the Convention. It was indicated at paras. 26 and 27 that, as a general rule, the relevant period would be given at the earliest time at which a person was officially alerted to the likelihood of criminal proceedings against him. In the present case, that had been done in the notice of intended prosecution.
[12]Turning to the issue of what detail was required by the terms of Article 6.3(a) of the Convention, the Advocate Depute relied upon X v Belgium (1977) 9 Dr. 169, a decision on admissibility by the Commission. At p.173, it was made clear that, as regards the "nature and cause of the accusation against him" referred to in Article 6.3(a), the "cause of the accusation" was "the material facts alleged against him which are the basis of the accusation" and the "nature of the accusation" was "the legal qualification of those material facts". The Commission went on to say:
"The information referred to in this provision should contain the material enabling the accused to prepare his defence... without however necessarily mentioning the evidence on which the charge is based."
Further guidance on this matter could be got from Brozicek v Italy [1989] 12 E.H.R.R. 371. At para.42 the court considered that an individual would have received information "in detail, of the nature and cause of the accusation against him", if the information "sufficiently listed the offences of which he was accused, stated the place and the date thereof, referred to the relevant articles of the criminal code and mentioned the name of the victim." Finally, that position was affirmed in Steel & Others v United Kingdom [1998] 28 E.H.R.R. 603, at para.78 of the Commission's opinion and para.87 of the court's judgment.
[13]The Advocate depute submitted that these requirements had been met in the notice of intended prosecution and also in the terms of the summary complaint. Both of these documents gave the details necessary to comply with Article 6.3(a). Furthermore, the accused had been given further information in the Procurator Fiscal's letter of 28 January 2004. Had the accused, for any reason not been satisfied with the information which he had been given, he could have approached or instructed a solicitor to approach the Procurator Fiscal for further details and sought to have the case continued without plea for investigation under section 145(1) of the 1995 Act. In the whole circumstances, there had been no breach of the provisions of Article 6.3(a) of the Convention. The court should deal with both of the matters referred to by the justices in their referral by declaring that there had been no breach of that Article.
Reply by the accused
[14]The accused contended that the notice of intended prosecution was "an English document", which sat ill in the context of the system of Scottish summary prosecutions. It might be seen as starting the period of a "reasonable time" within the meaning of Article 6.1 of the Convention, but was not pertinent for the purposes of Article 6.3(a). Reference was made to Buchanan v McLean 2001 S.C.C.R. 475 and Sinclair v Her Majesty's Advocate 2005 S.C.C.R. 446. The Procurator Fiscal had not sent the police statement of the witness relied upon in this prosecution to the accused.
The Decision
[15]Article 6.3 of the Convention requires that
"Everyone charged with a criminal offence has the following minimum rights:
(a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;...".
That part of Article 6 was elucidated in X v Belgium, Brozicek v Italy and Steel & Others v The United Kingdom. In X v Belgium, the Commission stated:
"As the Commission has already found, it is clear from this provision (Article 6.3(a)) that as part of the right to a fair trial guaranteed by Article 6 as a whole the accused is entitled to be informed of the cause of the accusation, i.e. the material facts against him which are at the basis of the accusation, and the nature of the accusation, i.e. the legal qualification of these material facts (Commission's decision on application No.524/59/Offner v /Austria, Collection 5, p.14). The information referred to in this provision should contain the material enabling the accused to prepare his defence (decision on application No.4080/69 v /Austria, Collection 38, p.4) without however necessarily mentioning the evidence on which the charge is based."
In Brozicek v Italy, at para.42, it was said to be sufficient if the judicial notification "listed the offences of which he was accused, stated the place and date thereof, referred to the relevant articles of the criminal code and mentioned the name of the victim". That position was affirmed in Steel & Others v The United Kingdom, at para.78.
[16]In the light of that elucidation of the requirements of Article 6.3(a), we have come to the clear conclusion that the complaint served upon the accused complied with the requirements of Article 6.3(a). It contained a specification of the material facts alleged against him, that is to say that he drove a motor vehicle at 85mph on the A9 Perth to Inverness road near Dalwhinnie and that such an action was in breach of the statutory provisions narrated in the charge. In the case of the offence with which the accused was charged, there was, of course, no victim. Accordingly, there was no question of any need to specify the identity of a victim.
[17]Before us there was some discussion concerning the effect of Buchanan v McLean and Sinclair v Her Majesty's Advocate. The latter case, in particular, is concerned with the requirement of disclosure of police statements of witnesses. It appears to us that that requirement has no bearing upon the issues before the court at this time. No doubt if the complaint against the accused goes to trial, prior to the trial, it would be appropriate for the police statement of P.C. Kenneth Sutherland to be disclosed to the accused, unless there is some cogent reason why it should not be, or for facilities to be provided to enable the officer to be precognosced. However, that is a matter which, in our opinion, bears upon the fairness of any trial which might take place in this case, as opposed to the requirement that an accused should be informed in detail of the nature and cause of the accusation against him. Thus, the fact that, at this time, the police statement mentioned has not been disclosed to the accused, in our opinion, is of no significance.
[18]In all of these circumstances, in relation to the reasons for referral specified by the justices, our decision is that there has been no breach of Article 6.3(a) of the Convention. We shall remit the case to the justices to proceed as accords.