ANDERSON v. THE UNITED KINGDOM
Inadmissible
The applicant is Scottish and a British national, born in 1938 and living in Scotland. A. The applicant lives on the Isle of Skye an island situated on the north-west coast of Scotland. This island was linked to the mainland by ferry until 1995 when a bridge was built. The bridge is controlled by a private company and provides the only year round access and is subject to a toll. Refusal to pay the toll is a criminal offence. The applicant was charged in the Sheriff Court at Dingwall on a summary complaint containing five charges. The court was 130 miles away from the applicant’s home although there is a court at Portree on the island of Skye. The first offence was committed on 17 October 1995. Each charge involved a contravention of section 38(1) of the New Roads and Street Works Act 1991 (“the 1991 Act”). The charges were that on the Skye Bridge crossing near the toll-booth, the applicant, being liable to pay a toll by virtue of the Invergarry-Kyle of Lockalsh Trunk Road (A87) Extension (Skye Bridge Crossing) Toll Order 1992, without reasonable excuse refused to pay the toll. There were about 150 other people charged at the same time as the applicant, but most people have had the charges against them dropped. The applicant did get legal aid in the form of emergency cover in the Sheriff Court. When the applicant appeared in answer to the complaint, pleas as to competency and relevancy were put forward on 1 March 1996 but rejected by the Sheriff on 8 March 1996, and he adjourned the diet for trial, which took place on 11 April 1996. The applicant complained that on each occasion he had a reasonable excuse why he should not pay the toll. The sheriff found that the applicant’s arguments did not amount to an objective reason or reasonable excuse of any kind. All of the applicant’s reasons were subjective. The sheriff found the applicant guilty of all five charges; he imposed fines on each of the charges and ordered recovery of the fines by civil diligence. In this case the Concession Agreement was entered into by the Secretary of State and Skye Bridge Tolls Limited on 16 December 1991. In that agreement the Secretary of State assigned the right under and in terms of the Toll Order to charge and collect tolls during the concession period, which was stated to commence on the date of issue of the Permit to Use for the crossing. On the same date those parties signed a Development Agreement which provided that on the completion of the crossing the developer would be granted the right to collect and retain tolls and operate and maintain the crossing. The agreement also provided that, following an inspection of the bridge on completion, the Secretary of State, if satisfied all was in order, would issue a Permit to Use. The Invergarry-Kyle of Lockalsh Trunk Road (A87) Extension (Skye Bridge Crossing) Toll Order 1992 (“the Toll Order”) was made on 23 June 1992 and came into force on 26 June 1992. The Permit to Use was signed on 16 October 1995. The applicant appealed against both conviction and sentence but subsequently only proceeded with the former appeal. On the day before the hearing the applicant was informed that he was to be granted legal aid. The first ground of appeal was that the proceedings were incompetent since Skye Bridge Tolls Limited (who subsequently changed their name to Skye Bridge Limited) had no proper assignation of the right to collect tolls. In the Concession Agreement the Secretary of State had purported to assign the right to charge and collect tolls to Skye Bridge Tolls Limited as the Concessionaire but that purported assignation was void as the Secretary of State did not have the power to grant an assignation at that time (it was prior to the existence of the Toll Order). On 12 November 1996 the Edinburgh Appeal Court found that there was nothing in the 1991 Act to prohibit an assignation of this type being made before execution of the Toll Order and rejected this ground of appeal. They felt it was clear from section 27(7) of the 1991 Act that it was envisaged that the contract with the developer would pre-date the Toll Order. The Court found that in effect the terms of the Concession Agreement were that there would be no transfer of the Secretary of State’s right to charge tolls until the Toll Order was made. Further at common law it was possible to grant an assignation of a right in anticipation of it coming into existence. The second ground of appeal was that the copies of the Concession Agreement and Development Agreement provided were incomplete and this was unfair to the applicant. The Appeal Court The third ground of appeal was that it had not been established that the collection of the tolls was made by a person duly authorised by the concessionaire (the Skye Bridge Tolls Limited). The Court rejected this saying that it was reasonable to infer that the men in the toll booths had authority to collect tolls, and that by driving into the lane which was not appropriate for the toll barrier the applicant was seeking to by-pass the toll barrier and was thus refusing to pay the toll. In the circumstances the toll collectors were acting with ostensible authority and must be presumed to have been duly authorised. In any event on four occasions the bridge manager himself and on one occasion the bridge supervisor personally asked the applicant to pay and he refused. During 1996 and 1997 the applicant was called to Dingwall court at least 14 times and went to the appeal court once. He was charged with non-payment on each occasion he refused to pay the fine during this period. On 4 December 1996 the applicant failed to appear at one of the intermediate hearing diets because he never received notification of the hearing. He was as a result arrested and held overnight in the cells. Subsequent to this in 1998 the Government enacted retrospective legislation to prevent the use of multiple intermediate diets to continue a case. He was in fact detained overnight in police cells three times and in prison for 11 days. The appeal was therefore dismissed. On his arrest the applicant was driven 70 miles to the police station at speed and suffered pain from an old back injury and on one occasion on arrival sought pain killers from the police doctor. He had to give up his property, and was placed in a cell with a thin mattress and non-flushable toilet. He was given water and no other drink on the day of arrest. The next morning he ate his breakfast standing by the open toilet and was only allowed to wash in a sink under guard. On 14 January 1998 the applicant wrote to the Secretary of State for Scotland seeking a review of his case because in other identical cases the prosecution submitted in evidence sections of the documents deemed to be irrelevant in his case. The Secretary of State replied on 5 August 1998 having investigated the allegations made. He concluded that the applicant was mistaken in that the documents produced by the Crown in the other cases were exactly the same as in the applicant’s case. Any additional material had been introduced by the defendants. There was nothing to suggest a miscarriage of justice. On 16 and 19 February 1998 the applicant was charged and on 25 March 1998 the applicant was found guilty of a road traffic offence following his stopping at the toll barrier and refusing to pay the toll. The police charged him with obstruction as they had been told not to charge anyone under the Toll Order any longer. The applicant was legally represented and submitted a writ of suspension and appeal. On 15 April 1998 the applicant also wrote to a Member of Parliament complaining about the number of people imprisoned for refusing to pay tolls, the number of intermediate diets which were fixed against him, and the lack of legal aid. The Lord Advocate replied confirming that the applicant was remanded in custody because of his repeated failure to appear in court. He was not sentenced to imprisonment as punishment on conviction for an offence. The law in respect of intermediate diets was amended in 1998. In respect of the lack of legal aid it was pointed out that he was convicted after trial on four separate occasions and his first two appeals went to a full hearing. At one of those the applicant was represented by counsel. On 11 March 1999 the applicant did not attend court in Dingwall because he refused to pay the toll on the Skye Bridge. On 18 March 1999 the applicant wrote to the Secretary of Scotland complaining about this event. There was a further trial on this charge on 1 April 1999 relating to another charge of obstruction. B. Relevant domestic law and practice A summary of the relevant provisions of section 27, 28 and 38 New Roads and Street Works Act 1991 is as follows: Section 27 (1) and (2) This empowers the Secretary of State to make a toll order relating to a special road to be provided by the Secretary of State (such as the Skye Bridge). The power is exercisable by statutory instrument and there is no requirement for Parliamentary approval. (5) This provides that the toll order and the special road scheme are to proceed in tandem. (7) This envisages that the Secretary of State (where he is the roads authority) may enter a contract for the design or construction of a road which both parties intend will be subject to a toll order. Section 28 (1) This states that the toll order may authorise the Secretary of State to assign his right to charge and collect tolls. Section 38 It is an offence, without reasonable excuse, to refuse, fail to pay or evade a toll which a person is liable to pay by virtue of a toll order.