Martin v Her Majesty’s Advocate (Scotland)

Facts

The appellant was prosecuted summarily in the sheriff court for driving while disqualified, an offence under the Road Traffic Act 1988 for which the Road Traffic Offenders Act 1988 set a maximum penalty on summary conviction of six months' imprisonment. Section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007, an Act of the Scottish Parliament, raised to twelve months the maximum sentence a sheriff could impose on summary conviction for such offences. The appellant argued that s 45, so far as it applied to road traffic offences, was outside the competence of the Scottish Parliament under s 29 of the Scotland Act 1998.

History

The challenge was raised as a devolution issue in the Scottish criminal courts, and the appeal reached the Supreme Court from the High Court of Justiciary.

Issue

Whether s 45, as it applied to a road traffic offence, related to a reserved matter (road transport) within s 29(2)(b) and Schedule 5 of the Scotland Act 1998, judged by reference to its purpose under s 29(3); and whether it modified the law on reserved matters contrary to Schedule 4.

Held

Appeal dismissed by a majority; s 45 was within the legislative competence of the Scottish Parliament.

Ratio

• Whether a provision of an Act of the Scottish Parliament relates to a reserved matter is determined by its purpose, having regard to its effect in all the circumstances; a provision whose purpose is to reform the general sentencing powers of the Scottish summary courts relates to the devolved matters of criminal procedure and the courts, not to the reserved matter of road transport, even though it alters the penalty available for reserved road traffic offences.

The judgments

Key reasoning

• Section 29(3) of the Scotland Act 1998 directs that the question whether a provision relates to a reserved matter is to be determined by reference to its purpose, having regard to its effect in all the circumstances.
• The purpose of s 45 was identified from its context in a wider reform of summary justice in Scotland: it concerned the distribution of business between the summary and solemn courts, which is a devolved matter.
• The fact that the reform altered the penalty for an offence created by reserved legislation did not mean that it related to that reserved subject matter, since the alteration was a consequence of the general change rather than its object.
• The minority considered that the provision changed the penalty fixed by reserved road traffic legislation and so modified the law on a reserved matter in a way Schedule 4 did not permit.

Where it fits in the module

On the list for the devolution statutes, the case shows how the courts police the boundary between devolved and reserved competence, and how much latitude the purpose test gives a devolved legislature whose general reforms incidentally affect reserved areas. The close division in the court illustrates the competing pulls of a generous reading that allows devolved legislatures to legislate coherently and a stricter reading that protects the reservations made by Westminster.

Criticisms

• A purpose test focused on the provision's general object allows a devolved legislature to change the substance of reserved law, here the penalty for a reserved offence, so long as it does so as part of a broader reform, which risks hollowing out the reservations.
• The split decision shows that the interaction between the relates to test in Schedule 5 and the restriction on modifying reserved law in Schedule 4 was unclear, creating uncertainty for drafters.
• In favour of the majority, a narrower approach would prevent the Scottish Parliament from reforming its own court system coherently, since almost every procedural reform touches offences created by reserved legislation.