Cameron v Cottam (No 2)
| Jurisdiction | Scotland |
| Judgment Date | 14 February 2012 |
| Neutral Citation | [2012] HCJAC 31 |
| Date | 14 February 2012 |
| Docket Number | No 3 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Eassie, Lord Brailsford, Lord Osborne
Constitutional law - Scottish Parliament - Provisions of Act of Scottish Parliament declared to be not law - Whether retrospective effect - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 24(5) - Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), sec 58 - Scotland Act 1998 (cap 46), sec 29(1), (2) - European Convention on Human Rights and Fundamental Freedoms, Art 5
Section 58 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) seeks to amend certain provisions in the Criminal Procedure (Scotland) Act 1995 (cap 46) relating to bail and provides, "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conditions)- (a) in paragraph (b) of subsection (4), sub-paragraph (ii) and the word 'and' immediately preceding it are repealed, and (b) in subsection (5), after paragraph (ca) insert- '(cb) whenever reasonably instructed by a constable to do so- (i) participates in an identification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;'."
Section 29 of the Scotland Act 1998 (cap 46) provides, inter alia, "(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. (2) A provision is outside that competence so far as any of the following paragraphs apply- … (d) it is incompatible with any of the Convention rights or with Community law". Section 102 provides that where a court decides that a provision of an Act of the Scottish Parliament is not within the legislative competence of the Parliament it may make an order limiting any retrospective effect of the decision.
On 8 February 2012 the court held in terms of sec 102 of the Scotland Act, that sec 58 of the 2010 Act was incompatible with Art 5 of the European Convention of Human Rights and Fundamental Freedoms and not law. The court continued the matter for submissions on whether its decision should be treated as an ex tunc or an ex nunc ruling.
The Crown argued in terms of sec 102 of the Scotland Act that retroactive effect should be confined to (1) any case which had not proceeded to trial or in which the trial was still in progress and (2) any appeal brought timeously and not yet concluded.
Held that the retroactive effect of the declarator that sec 58 of the 2010 Act was not law was limited to (i) any case (in which...
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