Grant Alistair Cameron V. Procurator Fiscal, Livingston
| Jurisdiction | Scotland |
| Judge | Lord Brailsford,Lord Osborne,Lord Eassie |
| Judgment Date | 08 February 2012 |
| Neutral Citation | [2012] HCJAC 19 |
| Court | High Court of Justiciary |
| Published date | 08 February 2012 |
| Date | 08 February 2012 |
| Docket Number | XJ479/11 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Eassie Lord Brailsford Lord Osborne | [2012] HCJAC 19 Appeal No: XJ479/11 OPINION OF THE COURT delivered by LORD EASSIE in APPEAL by GRANT ALISTAIR CAMERON Appellant; against PROCURATOR FISCAL, LIVINGSTON Respondent: _______ |
Appellant: C Shead; McKenzie; Adams Whyte, Livingston
Respondent: I McSporran, Solicitor Advocate, A.D.; Crown Agent
8 February 2012
[1] This appeal under section 174 of the Criminal Procedure (Scotland) Act 1995 - "the 1995 Act" - raises the question whether an amendment to section 24(4) and (5) of the 1995 Act which was enacted by the Scottish Parliament in section 58 of the Criminal Justice and Licensing (Scotland) Act 2010 - "the 2010 Act" - is compatible with the provisions of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms - "ECHR".
[2] Section 24 of the 1995 Act is concerned with the granting of bail and bail conditions. Prior to amendment by section 58 of the 2010 Act, subsection (4) of section 24 read:
"s24(4) In granting bail the court or, as the case may be, the Lord Advocate shall impose on the accused-
(a) the standard conditions; and
(b) such further conditions as the court or, as the case may be, the Lord Advocate considers necessary to secure-
(i) that the standard conditions are observed; and
(ii) that the accused makes himself available for the purpose of participating in an identification parade or other identification procedure or of enabling any print, impression or sample to be taken from him."
The standard conditions to which reference is made in that subsection were set out in section 24(5). The terms of the amending section in the 2010 Act, namely section 58, are:-
"s58 Bail condition for identification procedures etc.
In section 24 of the 1995 Act (bail and bail conditions)-
(a) in paragraph (b) of subsection (4), sub-paragraph (ii) and the word 'and' immediately preceding it are repealed, and
(b) in subsection (5), after paragraph (ca) insert-
'(cb) whenever reasonably instructed by a constable to do so-
(i) participates in an identification parade or other identification procedure; and
(ii) allows any print, impression or sample to be taken from the accused;'."
Accordingly, as amended by section 58 of the 2010 Act, sections 24 (4) and 24(5) of the 1995 Act now read (with the text inserted in subsection (5) being emphasised) as follows :-
"s24(4) In granting bail the court or, as the case may be, the Lord Advocate shall impose on the accused-
(a) the standard conditions; and
(b) such further conditions as the court or, as the case may be, the Lord Advocate considers necessary to secure-
(i) that the standard conditions are observed
(5) The standard conditions referred to in subsection (4) above are conditions that the accused-
(a) appears at the appointed time at every diet relating to the offence with which he is charged of which he is given due notice or at which he is required by this Act to appear;
(b) does not commit an offence while on bail;
(c) does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person;
(ca) does not behave in a manner which causes, or is likely to cause, alarm or distress to witnesses;
(cb) whenever reasonably instructed by a constable to do so-
(i) participates in an identification parade or other identification procedure; and
(ii) allows any print, impression or sample to be taken from the accused;
(d) makes himself available for the purpose of enabling enquiries or a report to be made to assist the court in dealing with him for the offence with which he is charged ; and
(e) where the (or an) offence in respect of which he is admitted to bail is one to which section 288C of this Act applies, does not seek to obtain, otherwise than by way of a solicitor, any precognition of or statement by the complainer in relation to the subject matter of the offence."
[3] The change in the legislation may thus be seen as making the attachment of a condition requiring participation in an identification parade or procedure, or requiring the accused to submit to the taking of any print, impression or sample from his body, no longer a matter in which the judge hearing the bail application has any measure of discretion. Instead, any discretion as to whether an accused in custody and seeking bail should be required, if granted bail, to participate in an identification procedure or to submit to the taking of prints, impressions or samples is given to a police constable, the court being bound to give that power to the police, if the accused is not to be detained in custody.
[4] The provisions contained in section 267B of the 1995 Act must also be noted. That section enables the prosecutor in any proceedings, at any time after the proceedings have been commenced, to apply to the court for an order requiring the accused person to participate in an identification parade or other identification procedure. Section 267B(3) provides that, if the accused is present, the court shall allow the accused to make representations in relation to the prosecutor's application; and where the accused is not present, the Court may, if it considers it appropriate to do so, fix a hearing for the purpose of allowing the accused to make such representations. Failure to comply with an order made under section 267B without reasonable excuse is an offence - see section 267B(8).
[5] The circumstances in which this appeal is brought may be shortly stated. The appellant was charged in the Justice of the Peace Court at Livingston on a summary complaint alleging:
"(001) on 16 February 2011 at Job Centre Pluis (sic), Whitburn Road, Bathgate, West Lothian you GRANT ALISTAIR CAMERON did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout, swear, attempt to slam a door against a member of staff there and kick furniture which was knocked across the office there;
CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010".
The appellant having failed to appear at the first calling of the complaint on 15 March 2011, a warrant for his arrest was granted. The appellant was arrested pursuant to that warrant and appeared from custody before the justice of the peace on 29 March 2011. His solicitor moved the court that the accused be ordained to appear, but the procurator fiscal depute insisted on any liberty pending trial being subject to bail, with, of course, the standard conditions as amended by the 2010 Act. In opposing the prosecutor's insistence on bail, rather than an order ordaining the appellant to appear, the solicitor for the appellant challenged the validity of the inclusion in the amended standard conditions of the condition relating to participation in identification procedure and the provision of prints, samples and the like; and as respects that contention he lodged a devolution issue minute. The appellant was granted bail, but a diet was fixed for 7 April 2011 when the question of the compatibility of the amendment to the standard conditions with the ECHR was debated. The justice of the peace rejected the submission that the imposition of the amended standard conditions was a breach of the appellant's rights under the Convention; but she granted leave to appeal; and this appeal is from that decision.
[6] While before the justice of the peace reference was made in argument also to Article 6 ECHR, the argument before us was concerned only with Article 5. The terms of that Article, so far as relevant, are:-
"Article 5 - Right to liberty and security'
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
[...]
c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
[...]
3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial".
[7] The contention advanced by counsel for the appellant was, in summary, that the conditions upon which bail might be granted was a matter which engaged Article 5 ECHR. A useful analysis of the decisions of the European Court of Human Rights - "ECtHR" - on Article 5, and the granting of bail, was to be found in the report prepared by the Law Commission in England and Wales - "Bail and the Human Rights Act 1998" (Law Com No.269). The basic principle was that pre-trial detention of an accused was only compatible with the right to release stipulated by Article 5 where either (a) it was necessary to avoid a real risk that if at liberty the accused might (i) fail to attend the trial or (ii) interfere with witnesses or obstruct the course of justice, or (iii) commit an offence while on bail or (iv) be at risk of harm from which he would not otherwise be protected; or (b) that a disturbance to public order would result. (cf. Law Com No.269, paragraph 2.29). Where those risks might be adequately addressed by the imposition of bail conditions, detention pending trial could no longer be said...
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