Issue 40 February 2008 - 2007 Update

2008 is shaping up to be fairly significant in terms of changes to the Scottish justice system. We have some major legislation (Criminal Proceedings etc. (Reform) (Scotland) Act 2007) finally coming into force in its entirety in (and out of) the summary criminal courts. We also have some major cases, both in terms of notoriety and legal significance, to be heard or decided by the Court of Criminal Appeal.

 

HUMAN RIGHTS, DEVOLUTION ISSUES, LONDON AND NATIONALISM

 

The likely impact in relation to human rights is uncertain, although 2007 ended with a degree of judicial impatience when it comes to Devolution Issues and ECHR generally.

 

ROBERTSON AND GOUGH v HMA

http://www.scotcourts.gov.uk/opinions/2007HCJAC63.html

(This is the five judge case relating to contempt of court. Mr Gough is more often referred to as the Naked Rambler).

 

Lord Justice Clerk

Article 6 and the common law of Scotland [64} Counsel for the petitioner and the complainer has based his submissions on Article 6. He has made only passing reference to the common law. It seems at times that contemporary practitioners believe that the Convention introduced the principle of fair trial into Scottish Criminal procedure. Scottish minimal procedure is founded on that principle. It is the duty of this court constantly to reassess what fairness requires and to re-examine the presuppositions on which existing rules and practices are based Where it is recognised that an accepted aspect if procedure is unfair, this court puts the matter right. In this way Scots law has extended its protection to accused persons in relation to such matters as pre-trial publicity, police questioning, and detention of witnesses in open court. In its consideration of the procedure for dealing with contempt of court, the court’s appreciation of fairness has developed stage by stage from the robust approach of a century ago. In this case, it is open to us to develop our procedure further. [65} In some respects the incorporation if the Convention has enhanced the fairness of our system directly for example by enabling the court to consider questions of unfairness in the operation of specific legislative provisions that previously it had to take as it found More generally, it provides a fresh focus for reconsideration of domestic issues, as any Convention of its status must, and in that way influences our thinking in the development of the common law. It is not disputed that Article 6 applies in each if these cases and that it requires the court to show both subjective and objective impartiality but that requirement has long been recognised as an essential feature of the right to a fair trial at common law. In my view the fair trial issues raised in these particular cases can be satisfactorily resolved at common law.

  

Lord Johnston

[109} On the more general question if interaction between Article 6 of the European Convention on Human Rights and the issue of dealing with contempt, I too would wish to emphasise that I cannot consider Article 6, especially in relation to a fair trial adds anything to or detracts in any way from the long-established rules in Scotland in relation to the issue of fair trial. Such has been enshrined in our law for centuries and while Article 6 may have  re-emphasised the issue of bias, for example, or partiality and also highlighted the question of timescales in the conduct of criminal proceedings, the fundamental issue of fairness has always been there to be determined and will continue to be determined, in my view by the general rules of the Scots common law. Continued references in this context to Article 6 to my mind are both meaningless and superfluous.

 

Many cases have involved Devolution Issues being attached but not properly understood or argued. Unless cases are pled better and with greater consistency, we can expect similarly unimpressed judges this year. And even then we may continue to feel a backlash against outside interference, whether European or from London. Even the judicial Committee of the Privy Council has turned back the clock in relation to ECHR implications specific to Scotland. Previously, the position in Scotland was arguably much stronger than even in England because of the construction of s.57(2) of the Scotland Act and its application to cases involving a breach of the "reasonable time" requirement of Art.6. Indeed, it is probable that the majority of Devolution Issues since 1999 have related to delay, certainly in relation to those which have been successful.  

However, at the end of 2007 the JCPC issued its decision in the following case:

SPIERS v RUDDY

http://www.privy-council.org.uk/ output/Page535.asp

 

Lord Rodger of Earlesferry

The basic difference of opinion between the majority and the minority in both R v HM Advocate 2003 SC (PC) 21 and Attorney General's Reference (No 2 of 2001) [2004} 2 AC 72 was over the nature of the accused's Article 6(1) Convention right to a fair and public hearing for the determination if the criminal charge against him "within a reasonable time". In particular; if the Crown delayed so that more than a reasonable time was allowed to go by, did this mean that-as I held-the prosecutor was, irretrievably, in continuing breach of the Article, even if he then took steps to proceed to trial as expeditiously as possible? Or-as the seven-man majority held in Attorney General's Reference-did any violation of the right cease when the prosecutor took steps to expedite the trial? At the time of the two decisions, the case law of the European Court cast little light on the problem. Since then, the position has become clearer. Admittedly; as Mr Coppel pointed out, the European Court cases concern the nature of the appropriate remedy, rather than the nature of the violation of Article 6(1). Nevertheless, they do point in favour of the view adopted by the majority in the Attorney General's Reference. In other words, if the prosecutor speeds up, he is no longer delaying the proceedings and so is no longer violating Article 6(1). In particular, in Kudla v Poland (2000) 35 EHRR 198, a case of delay in criminal proceedings, the European Court said, at p 237, para 158, that a remedy will be "effective" for purposes of Article 6(1) if it prevents the alleged violation "or its continuation". The Court went on to indicate, in para 159, that none of the remedies open to the applicant under Polish law "could have expedited determination of the charges" against him. This approach has been adopted in subsequent cases. It shows that expediting proceedings can indeed prevent the "continuation" of any violation. That is inconsistent with the view that the prosecutor is, inevitably, in continuing breach of Article 6(1) once he has delayed unduly, so that the situation can only get worse. Since the prosecutor is not in continuing breach in such circumstances, section 57(2) if the Scotland Act 1998 has no application. 

 I wonder whether, in Scotland, the impact of the JCPC will diminish from the Sinclair and Holland cases in 2005 where Scottish convictions were quashed for the first time by a court sitting outside Scotland. With some dexterity on the part of the JCPC and even alacrity on the part of our own Appeal Court we may now be in almost exactly the same position as before the Scotland Act came into force. It is now increasingly unclear what the courts make of the constitutional protections of the Scotland Act when it comes to ECHR and the criminal courts. Indeed it appears that the safeguards may be seen as hindsight checks following conviction rather than meaningful preventative rights.

  

PF GLASGOW v VON and HUME

http://www.scotcourts.gov.uk/opinions/2008HCJAC9.html

(This case related to disclosure).

 

Lord Johnston

We have considerable sympathy with the argument that the actions of the Crown were such that the whole case became contaminated by the alleged breach of Article 6 but in fact we consider that at the time of the Crown's conduct through the Procurator Fiscal’s Office, Article 6 had not in fact been breached to a determinative factor. It is important that it should be appreciated in the view of this Court that Article 6 in its main content is concerned with a fair trial and such cannot be determined as an issue except in the most exceptional and blatant cases, of which this is not one, until after a trial has taken place. It follows that if the respondents in this case had gone to trial against the background of the Crown's attitude, which we have discussed, with no further action on its behalf, there can be no doubt that if the respondent had been convicted that it would have had an almost unanswerable position in relation to breach of Article 6. However, while what happens during the course of a process leading to a trial may ultimately  be relevant to the determination of Article 6 after the trial equally if it is capable of being cured, we consider thereafter the only issue at the intermediate stage is whether there has been oppression at common law since the time to determine the issue of Article 6 has not yet been reached In this respect, it seems to us the test in relation to oppression at common law and breach of Article 6 after trial raises precisely the same issues, namely have the accused persons been prejudiced by the action of the prosecuting authority.

 

Perhaps the reversion to former ways is an indication of how fair our system was already. Indeed there are many aspects of our law of which we should be proud. We should, however, be wary of complacency. There are many who think that the Scotland Act allowed ECHR considerations to help our courts blow away a number of obstructive cobwebs. On occasion our judges used it to do justice even more enthusiastically. In particular, it was used as a significant tool for enforcing Crown accountability. It helped us to move further away from the idea of sole reliance on the Crown as arbiters of almost everything. As the approach in Von is precisely the same approach as the European Court itself, following exhaustion of domestic remedies, it would be a matter of regret if our courts are not prepared to continue the use of ECHR to drive up standards and bolster protection at earlier stages of a prosecution.

 

DISCLOSURE

One area which was touched by the ECHR, even before 1999, is disclosure. The law relating to disclosure has been in something of a state of flux since the Privy Council decisions in Holland and Sinclair in 2005. Lord Coulsfield has since reported and legislation is expected, as well as changes in procedure. Issues relating to disclosure have been ventilated in the Nat Fraser appeal (heard at the end of last year-the decision of the Appeal Court is expected soon). Disclosure is likely to feature heavily in the appeal of Abdelbaset Ali Mohmed AI Megrahi. At a procedural hearing on December 20, 2007 the Crown refused to hand over a document, seen by the Scottish Criminal Cases Review Commission, which was the basis for one of the grounds of referral by the Commission to the Appeal Court. The Court will have to consider issues relating to Public Interest Immunity and may have to improvise procedures, in the absence of any established method of dealing with such evidence in Scotland.

 

SUMMARY CRIMINAL JUSTICE

Trials in absence will be possible in summary cases in the same way as they have been available in the High Court since 2004. So far none has taken place in the High Court. They are much more likely in the summary courts. These measures, in relation to summary and solemn, were among the most controversial aspects of recent reforms. They have the potential to trigger human rights challenges by those wrongly convicted in absence. Aspects of legal aid changes in the summary criminal system may have to be tested, in the same way that fixed fees were challenged in the Appeal Court and Privy Council. The summary justice changes are designed to remove from the courts many of the cases currently dealt with by formal prosecution. One area of concern is that the direct measures used as alternatives are "opt-out" rather than the normal "opt-in" of previous such measures. We will have to see if our courts are troubled by people trying to re-open their cases because of this.

 

REFORM

The "failed" Angus Sinclair (Worlds End) case saw the Justice Secretary ask the Scottish Law Commission to look at:

Judicial rulings that can bring a solemn case to an end without the verdict of a jury, and rights of appeal against such;

The principle of double jeopardy, and whether there should be exceptions to it;

Admissibility of evidence of bad character or of previous convictions, and of similar fact evidence;

The Moorov doctrine.

 

It is unclear why the Moorov doctrine was included, as it did not feature in the trial. In relation to Crown appeals there can be little objection other than on practical grounds of making the necessary arrangements within days of the Judge's decision that there is no case to answer. In relation to the double jeopardy and previous convictions it is to be hoped that we retain the traditional Scottish approach.

 

Lord Gill will have a busy year, between his involvement in the Stockline Inquiry and steering the major Civil Justice review. This has implications for justice generally, but also for our criminal courts and the prosecution of serious crime.

 

CONCLUSION

It is better to start each new year on a positive note. To that end I see 2008 as an opportunity for our justice system. How it is viewed for a long time, both here and elsewhere, may well depend on how it deals with some robust challenges.