J.Q. v. Procurator Fiscal, Paisley [2017] HCJAC 9

Bill of Suspension:- On 12 August 2016 the appellant was issued with a fixed penalty notice for a breach of the peace committed in Johnstone. It was the appellant’s position that he intended to reject the notice and request a court hearing to establish his innocence. The appellant provided the notice to his father who forgot to do anything with it and the notice was not returned within the 28 days provided for. On 17 September 2016, the appellant received a “Notice of Registration of Fine ” from the Clerk at Paisley District Court stating that a fine of £60 had been registered against him in the court because he had failed to pay the fixed penalty of £40. The Notice required him to pay the fine by 15 October 2016, which failing the Fines Enforcement Officer might obtain an enforcement order against him. Whilst the Notice process does not involve any criminal conviction, the notice and fine are recorded and may appear in circumstances involving “Enhanced Disclosure”. Here it was contended on behalf of the appellant that the statutory provisions of sections 129, 130 and 131 of the Antisocial Behaviour etc. (Scotland) Act 2004 are incompatible with Article 6 of the European Convention because they reverse the onus of proof after the 28 day period whereby the appellant is presumed guilty of the offence. In addition it was contended that the absence of a means of challenge is also incompatible and the appellant sought suspension of the registration of the fine and a plea of oppression was taken in relation to the operation of the system. On behalf of the Crown it was submitted that the proceedings complained of were not criminal but administrative and a Bill of Suspension was an incompetent way to review. Here the court considered that a Bill of Suspension was not a competent mode of proceeding as the act of registering the sum due as if it were a fine is not something capable of being suspended by the High Court since it involved no judicial act of a criminal court. The court considered that the appropriate course would be for the appellant to challenge the compatibility of the relevant provisions of the 2004 Act by Articles 6 and 13 of the European Convention by way of a petition for judicial review in the Court of Session by calling the Scottish Ministers and Police Scotland as parties and seeking reduction of the Fixed Penalty Notice accordingly.