Martin v Her Majesty’s Advocate (Scotland)

An Act of the Scottish Parliament relates to a reserved matter under section 29 of the Scotland Act 1998 according to the provision’s purpose, having regard to its effect in all the circumstances. A general reform of Scots criminal law may apply consistently to reserved and devolved matters without relating to a reserved matter.

Where such legislation modifies existing law, the court must identify the rule actually modified. A rule governing the procedural route and sentencing jurisdiction of Scottish courts is not special to a reserved matter merely because it appears in legislation whose subject matter is reserved. The Scottish Parliament may therefore apply a general reform of summary procedure to offences within reserved legislation, provided that the offence and its overall maximum penalty remain unchanged.

The Scottish Parliament enacted section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007, increasing to 12 months the maximum imprisonment which a sheriff sitting summarily could impose for certain either-way statutory offences. The appellants received sentences exceeding six months for driving while disqualified under reserved road traffic legislation.

Each appellant presented a Bill of Suspension to the High Court of Justiciary. The appeal court followed Logan v Harrower [2008] HCJAC 61, refused the Bills and granted leave to appeal. The central issue was whether section 45 was outside the Scottish Parliament’s legislative competence under section 29 and Schedule 4 to the Scotland Act 1998.

1. Disposition. By a majority of three to two, the appeals were dismissed. Lord Hope, Lord Walker and Lord Brown held that section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 was within the Scottish Parliament’s legislative competence. The cases were remitted to the appeal court for any further orders required.

2. Purpose and reserved matters. The whole court agreed that section 45 did not relate to a reserved matter for section 29(2)(b) of the Scotland Act 1998. Its purpose was to reform summary justice by reallocating cases from solemn to summary procedure and reducing pressure on the higher courts. Increasing sheriffs’ summary sentencing powers was the means of achieving that devolved purpose, rather than an attempt to increase the ordinary level of punishment for road traffic offending.

3. Consistent application of Scots criminal law. Lord Hope held that the reform had to extend across statutory offences relating to both reserved and devolved matters. Otherwise prosecutors and sheriffs would face a fragmented and confusing jurisdictional scheme. Its purpose was therefore to make Scots criminal law concerning summary sentencing powers apply consistently to reserved matters and otherwise. Section 29(4) did not deem the provision to relate to reserved matters.

4. Rule special to a reserved matter. Lord Hope, with Lord Walker and Lord Brown agreeing in the result, identified the modified rule as one governing criminal procedure and the sheriff’s summary jurisdiction. Parliament’s rule that the overall maximum sentence for driving while disqualified was 12 months remained untouched. Section 45 changed only the procedural route by which that maximum could be imposed. That rule applied generally within the Scottish criminal justice system and was not special to road transport. Schedule 4, paragraph 2(1), therefore did not prohibit its modification.

5. Incidental or consequential modifications. Lord Hope, Lord Walker, Lord Rodger and Lord Kerr considered that paragraph 3 of Schedule 4 would not save section 45 if paragraph 2 applied. Altering the procedure under which a sentence exceeding six months could be imposed was an important substantive part of the reform, rather than an incidental or consequential modification. The court accordingly disagreed with that part of the reasoning in Logan v Harrower, while endorsing its conclusion.

6. Dissent. Lord Rodger and Lord Kerr would have allowed the appeals. They regarded the six-month maximum on summary conviction as a rule specifically enacted for a reserved road traffic offence and therefore special to a reserved matter. In their view section 45 could not modify it without provision under section 104 of the Scotland Act 1998.

1. United Kingdom Supreme Court: By a majority of three to two, dismissed both devolution appeals and remitted the cases to the appeal court for any further orders required: [2010] UKSC 10.
2. High Court of Justiciary, Appeal Court: Following Logan v Harrower [2008] HCJAC 61, refused the appellants’ Bills of Suspension and devolution minutes. It subsequently granted leave to appeal. No citation for the decisions in the appellants’ own proceedings is stated.
3. Sheriff courts: The appellants pleaded guilty to driving while disqualified and received summary sentences exceeding six months. They challenged those sentences as founded upon legislation allegedly outside the Scottish Parliament’s competence.