Boyd v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 27 September 2000 |
| Date | 27 September 2000 |
| Docket Number | No 6 |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lord Philip and Lord Reed
Justiciary—Human rights—Indictments containing aggravations to the effect that the offences were committed while on bail—Whether accused liable to be denied fair hearing before an impartial tribunal—European Convention on Human Rights, art 6—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 27(4)1
Section 27(4) of the Criminal Procedure (Scotland) Act 1995 provides that the court is not to have regard to the fact that an offence was committed while the accused was on bail unless that fact is libelled on the indictment.
Each of the appellants was charged on an indictment which specified a charge then went on to contain an aggravation to the effect that the offences were committed while they were on bail. The appellants argued that the libelling of the bail aggravations breached art 6(1) of the European Convention on Human Rights, which gives an accused a right to a hearing by “an independent and impartial tribunal”and art 6(2) which provides that everyone charged with a criminal offence is presumed innocent until proved guilty; the jury could infer that the appellants had been charged with other offences and this might colour their approach. In any event, standing the form of the charges, they cold not be seen to be impartial.
Held (1) that in the light of the experience of the courts in relation to indictments which referred to a breach of bail order, there was nothing to suggest that a jury, when properly directed, was incapable of deciding the issues on the basis of the evidence before them just because they may have been able to work out from the indictment that the accused had been previously charged with some other offence (p 56E); (2) that the court preferred to decide issues of this kind by reference to experience within the Scots system or within other systems where jury trial operated, but in any event, the court's approach was supported by the decision in X v Austria(Application No 2742/66) (p 56G–H); and appeals refused.
John Boyd was charged on an indictment at the instance of the Right Honourable the Lord Hardie, Her Majesty's Advocate, the libel of which set forth an assault and that the assault took place while on bail. At the preliminary diet on 23 and 30 May 2000 the presiding judge (Lord Carloway) found that the libelling of the bail aggravation did not amount to a breach of art 6 of the Convention. Boyd appealed to the High Court of Justiciary.
James Douglas Erasmuson and Graeme William Moffat were indicted at the instance of the Right Honourable Colin David Boyd, QC, Her Majesty's Advocate on an indictment which libelled opening lockfast motor cars and stealing therefrom, and narrated that the offence was committed while on bail. At the first diet on 8 August 2000, the sheriff (Stephen) found that the libelling of the bail aggravation did not amount to a breach of art 6 of the Convention. Moffat and Erasmuson appealed to the High Court of Justiciary.
Cases referred to:
Aitchison v TudhopeSC 1981 JC 65
Cox and Griffiths, Petitioners 1998 JC 267
Leggate v HM AdvocateSC 1988 JC 127
X v Austria Application No 2742/66
Textbook referred to:
Alison, Principles and Practice of the Criminal Law of Scotland, Vol 1, pp 197–198, 296–307; Vol 2, pp 305–306.
All three causes called before the High Court of Justiciary, comprising the Lord Justice-General (Rodger), Lord Philip and Lord Reed for a hearing on 27 September 2000.
Eo die, the opinion of the court was delivered by the Lord Justice-General (Rodger).
Opinion of the Court—[1] We have before us three cases, all raising the same point relating to the form...
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