Martin v Most

The court considered whether section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007, which raised the maximum term of imprisonment available on summary conviction for certain statutory either-way offences to 12 months, was within the legislative competence of the Scottish Parliament under the Scotland Act 1998. The majority applied the statutory purpose test in section 29 and its qualifying provision in subsection (4) and concluded that the purpose of section 45 was to reform summary justice by increasing the sentencing powers of sheriffs sitting summarily and to make those powers apply consistently to reserved and devolved matters.

Having identified the rule of Scots criminal law being modified as principally a procedural rule governing summary jurisdiction rather than a substantive, penalty rule unique to the Road Traffic legislation, the majority held that section 45 was not a modification of the law on reserved matters for the purposes of Schedule 4 paragraph 2(3). The majority therefore concluded that section 45 was within the Scottish Parliament’s legislative competence and dismissed the appeals.

The minority disagreed, finding that insofar as section 45 purported to alter penalty provisions in the Road Traffic Offenders Act 1988 (a reserved enactment) it attempted to modify a rule that was special to a reserved matter and so was outside competence; the minority would have allowed the appeals.

This appeal arose from summary convictions in Scotland for driving while disqualified (section 103(1)(b) Road Traffic Act 1988). Both appellants were sentenced on summary complaints to terms exceeding six months after the Criminal Proceedings etc (Reform) (Scotland) Act 2007 came into force. They presented Bills of Suspension to the High Court of Justiciary, arguing that section 45 of the 2007 Act, which effectively raised the maximum custodial period available on summary conviction for many either-way statutory offences to 12 months, was outside the Scottish Parliament’s legislative competence under the Scotland Act 1998.

Procedural history: the appeal court (referencing Logan v Harrower [2008] HCJAC 61, 2008 SLT 1049) refused the Bills. Leave to appeal to the Supreme Court was granted (leave dates recorded in the judgment). The Supreme Court heard argument and judgment was given on 3 March 2010.

Issues for determination:

• Whether section 45 of the 2007 Act "relates to" reserved matters under section 29(2)(b) of the Scotland Act 1998, having regard to the statutory test of purpose in section 29(3) and the deeming provision in section 29(4).
• Whether, independently, section 45 contravened the restrictions in Schedule 4 (in particular paragraph 2 and its qualification in paragraph 3) by modifying the law on reserved matters, or modifying a rule of Scots criminal law that is "special to a reserved matter".

Court’s reasoning (concise): the majority (Lord Hope, Lord Walker and Lord Brown) concluded that the primary purpose of section 45 was to reform summary justice by increasing sheriffs’ summary sentencing powers and thereby reduce pressure on higher courts; that purpose did not "relate to" reserved matters for the purposes of section 29(2)(b). The majority further identified the rule being modified as a procedural rule governing summary jurisdiction and not a rule special to the Road Traffic Acts; on that basis Schedule 4 did not bar the modification. The majority therefore held section 45 within competence and dismissed the appeals, remitting for further orders as necessary.

Dissenting view: Lord Rodger (with Lord Kerr) concluded that section 45, insofar as it purported to change the maximum custodial penalty in Part I of Schedule 2 to the Road Traffic Offenders Act 1988, sought to modify a rule that was special to a reserved matter and so was beyond the Scottish Parliament’s competence; on that basis he would have allowed the appeals and quashed the sentences.

Logan v Harrower was a leading authority considered by the courts and discussed in the judgment. The Supreme Court majority endorsed the appeal court’s result in that case but developed and explained the statutory reasoning by reference to the purpose test and the construction of Schedule 4.

Appeals dismissed. The majority held that section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 was within the legislative competence of the Scottish Parliament because its purpose was to reform the summary justice system by increasing sheriffs’ summary sentencing powers and to make those powers apply consistently to reserved and non-reserved matters; the modification was directed to procedural jurisdiction rather than to a rule of penalty "special" to the Road Traffic Acts. The cases were remitted to the appeal court for any necessary further orders. A minority would have allowed the appeals on the view that section 45 impermissibly modified rules special to a reserved matter and so lay outside competence.

Appeals from Bills of Suspension presented to the High Court of Justiciary (appeal court) following summary convictions and sentences imposed after the Criminal Proceedings etc (Reform) (Scotland) Act 2007 came into force. The appeal court refused the Bills, following its decision in Logan v Harrower [2008] HCJAC 61, 2008 SLT 1049. Leave to appeal to the Supreme Court was granted (leave dates recorded in the judgment: 30 January and 24 February 2009). The Supreme Court heard argument on 8–10 December 2009 and delivered judgment on 3 March 2010.