Judge rejects human rights challenge to Scots law ‘fixed penalty notice’ scheme 



Lord Brailsford
Lord Brailsford

A teenager who claimed that Scottish legislation on “fixed penalty notices” breached European human rights law on the basis that there was no means of challenging the charge if an individual failed to ask to be tried for the alleged offence within the statutory 28-day time limit has had his case dismissed.

A judge in the Court of Session rejected the argument that Part 11 of the Antisocial Behaviour etc (Scotland) Act 2004 was “incompatible with the right to a fair trial” under article 6 of the European Convention on Human Rights, after ruling that the legislation “entitles and guarantees” the right to a trial.

Fixed penalty notice

Lord Brailsford heard that the petitioner Jordan Queen, 18, was issued with a fixed penalty notice for £40 on 12 August 2016, but maintained that he did nothing wrong. 

He was initially unwilling to tell his parents about the fixed penalty notice, intending simply to pay the sum in the hope that they did not find out about it.

But about two weeks after the issuing of the notice his father did find out about the notice and said he would “deal with the matter”. 

However, his father in fact failed to do anything and on 18 September 2016, in accordance with section 131 of the 2004 Act, 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, who contacted the clerk of court by letter dated 4 November 2016, only to be advised that the matter could not be reopened. 

Subsequently, the petitioner lodged a Bill of Suspension in the High Court of Justiciary, but the Bill was refused in February 2017.

‘Not law’

The petitioner then lodged a petition for judicial review against the Lord Advocate, seeking declarator that Part 11, or separately section131 of the 2004 Act, was “not law” because it was “incompatible” with his rights under article 6 and article 13 of the ECHR, which provides the right to an “effective remedy“.

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 legislation provided, in terms of section 133, for revocation of a fixed penalty notice by a police constable in two circumstances. 

But 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, and thus it was argued that the absence of any revocation provision other than those stipulated in section 133(2) of the Act of 2004 rendered part 11 of the legislation incompatible with article 6.

It was further argued that a fixed penalty notice constituted a criminal charge, which “violates the presumption of innocence”.

The second, and separate, argument advanced on behalf of the petitioner was that in the event that part 11 of the 2004 Act was law, the fixed penalty notice failed to provide the petitioner with information as to the allegation made against him, and therefore he could not have been said to have “waived his right” to be tried by an independent and impartial tribunal. 

A further separate argument was to the effect that 11 of the 2004 Act violated his right to an “effective remedy” under article 13 of ECHR, on the basis that the absence of possibility of review of the fixed penalty notice after the expiry of the 28-day period “pointed to a contravention of this article”.

‘Legislation ECHR compliant’

The court accepted that the petitioner had intended to challenge the fixed penalty notice and that he had effectively delegated to his father the responsibility of either paying the fine or intimating his intention to have the matter resolved by a trial, and that as a result of “forgetfulness” his father took neither of those steps and allowed the statutory 28-day period to elapse, but that had no bearing on the issue of compatibility.

Refusing the petition, the judge held that the statutory framework set out in part 11 of the Act was “compliant” with the provisions of article 6 ECHR.

In his written opinion, Lord Brailsford said: “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 the decision whether or not to elect for trial must be made.”

He continued: “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.”

‘Effective remedy’

In relation to the submission based on article 13 ECHR, the judge agreed with the argument by counsel for the Lord Advocate that article 13 had not been incorporated into domestic law and was not one of the “convention rights” defined by section 1, schedule 1 of the Human Rights Act 1998. 

“In these circumstances, Lord Brailsford added, “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.

“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 remedy available to the petitioner.”

© Scottish Legal News Ltd 2019



Other judgments by Lord Brailsford