David Shields Montgomery (Appellant) HM Advocate and Another (Respondents) Andrew Alexander Marshall Coulter (Appellant) HM Advocate and Another (Respondents)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Slynn of Hadley,Lord Nicholls of Birkenhead,Lord Hoffmann,Lord Hope of Craighead,Lord Clyde |
| Judgment Date | 19 October 2000 |
| Judgment citation (vLex) | [2000] UKPC J0720-1 |
| Court | Privy Council |
| Docket Number | DRA Nos. 1 and 2 of 2000,No 1 |
| Date | 19 October 2000 |
[2000] UKPC J0720-1
Present at the hearing:-
Lord Slynn of Hadley
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Hope of Craighead
Lord Clyde
Privy Council
The High Court of Justiciary was asked to say that there cannot now be a fair trial of the two appellants for the murder of Surjit Singh Chhokar on 4th November 1998 because of the publicity which the alleged facts and the case have already received. It is said that to go ahead would be a breach of the appellants' right under article 6(1) of the European Convention of Human Rights and Fundamental Freedoms. The High Court of Justiciary refused that application.
The facts are set out in the opinion of my noble and learned friend Lord Hope of Craighead which I have had the advantage of reading in draft.
The question was treated before the High Court of Justiciary as a devolution issue within the meaning of paragraph 1 of Schedule 6 to the Scotland Act 1998 and the provisions of Chapter 40 of the Act of Adjournal (Criminal Procedure Rules) 1996 [ S.I. 1996 No. 513 (s.47)] and the Act of Adjournal (Devolution Issues Rules) 1999 [ S.I. 1999 No. 1346 (s.101)].
That Court gave leave to appeal to the Judicial Committee of the Privy Council on the basis that it was a devolution issue and indeed it is only on that basis that Your Lordships have jurisdiction to deal with the matter. The question in the appeal is said in the statement of facts and issues to be this:-
"Whether the acts of the Lord Advocate in the proceedings and in indicting the appellant on 2 July 1999, and in continuing with proceeding against him, are ultra vires of his powers under section 57(2) of the Scotland Act 1998, being incompatible with the rights to a fair trial accorded him under article 6 of the Convention."
The answer to that question essentially depends on whether in all the circumstances a fair trial is possible.
All parties before the Board prepared to argue the case on the assumption that it was a devolution issue and indeed all argued that it was. Questions were, however, raised at the hearing as to whether it was in truth a devolution issue. If it had been necessary finally to decide this issue it would have been no less necessary to have the matter argued in full with an amicus to assist with the arguments contrary to the assumption of the parties and to the opinion of the High Court of Justiciary.
To have adjourned the matter to decide the issue would have resulted in the trial being deferred perhaps for a very substantial period.
Since the matter has not been argued I prefer to express no concluded view on the question of principle or on the difficult issues which arise in connection with it. There is obviously great force in the considerations put forward by my noble and learned friend Lord Hope of Craighead that this is a devolution issue however strong the counter arguments as to the scope of article 6. I am not at the end of the day satisfied that the question before the Committee is not a devolution issue so that the Board is driven to refuse jurisdiction. I am therefore content to answer the question in this case on the basis of the leave given that this was a devolution issue. It is therefore appropriate to answer the question whether, contrary to the view of the High Court of Justiciary it should now be said that the risk that there cannot be a fair trial is a serious one so that the trial should not go ahead.
Despite the forceful arguments on behalf of the appellants and the responsibilities imposed on the trial judge in the light of what has happened I am in agreement with the conclusion of Lord Hope of Craighead in Part B of his judgment and I too would dismiss the appeal.
I agree these appeals should be dismissed, for the reasons given by Lord Hope of Craighead in part B of his judgment. I add some observations only on the "devolution issue" point which has given rise to a measure of disagreement between your Lordships. Although raised at the hearing of the appeals, the issue was not argued. Nor, as matters have turned out, is the resolution of this point essential to the outcome of the appeals. So it is appropriate to explain my doubts rather than express a concluded, or even a provisional, view.
The appellants founded their claim on statements made by the media following the acquittal of Ronnie Coulter in March 1999. Their contention is that a fair trial is not now possible. In all courts the parties have proceeded on the common footing that if a fair trial is still possible, the appellants' claim against the Lord Advocate must fail, but if a fair trial is no longer possible, the claim against the Lord Advocate must succeed. The devolution issue point raises the question whether the latter limb is necessarily correct. The point is one of interpretation of the Scotland Act 1998, read in conjunction with article 6(1) of the Convention and the powers and duties of the Lord Advocate in connection with criminal prosecutions.
The initiation and continuation of this prosecution were acts done by the Lord Advocate as a member of the Scottish Executive. So much is clear. Moreover, I have no difficulty in envisaging there might be circumstances where the initiation or continuation of a prosecution by the Lord Advocate, or the manner in which he conducted a prosecution, would amount to an act of his incompatible with article 6 of the Convention. Where that is so, the act would be ultra vires. It would be, in law, beyond his powers: section 57(2) of the Scotland Act.
Where I have more difficulty is in seeing that, in the present type of case, if a fair trial is not possible the Lord Advocate is to be regarded as having acted incompatibly with article 6 in initiating and continuing the prosecution. A claim by the accused that media publicity has foreclosed a fair trial seems to be, on its face, an example par excellence of a claim calling for adjudication by the court. If the prosecutor, in the person of the Lord Advocate, honestly considers a fair trial is possible, he ought not to be at risk of being held to have acted beyond his powers if he initiates a prosecution and then unsuccessfully resists a claim by the accused that media publicity has rendered a fair trial impossible. One might expect that, although the Lord Advocate has power to decline to start a prosecution, and power to discontinue a prosecution he has started, the fundamental protection for the accused in this type of case lies in the court, not on the shoulders of the prosecution. If the court considers a fair trial is not possible, the normal procedure in Scotland, as I understand it, is that the proceedings will be stopped in the trial court at a preliminary diet. But that is not to say that the Lord Advocate acted improperly in bringing the prosecution, which seems to be the conclusion inherent in the view that, because a fair trial is not possible, the Lord Advocate himself acted beyond his powers and incompatibly with the Convention. There may be a non sequitur here. The position has some similarity to the tendering of inadmissible evidence by the prosecution, a point considered by Lord Penrose in H.M. Advocate v. Robb 2000 J.C. 127.
As already noted, in the events which have happened the point does not matter in the present case. In particular, the point does not raise a jurisdictional issue in the present case. The appellants pleaded their case in terms which raised a devolution issue within the meaning of paragraph 1 of Schedule 6 to the Scotland Act. The courts, including this Board on appeal from the High Court of Justiciary, have jurisdiction to decide this issue. One way the pleaded case could be decided, if the facts justified such a conclusion, was for the court to dismiss the claim on the footing that a fair trial was still possible. That is what has happened. The decision that a fair trial is still possible destroys one of the essential elements of the pleaded case. This is a proper decision, within the scope of the court's jurisdiction to decide devolution issues.
Furthermore, the point may never need to be decided. In future the point may be bereft of practical importance, except perhaps in the context of rights of appeal, now that section 6 of the Human Rights Act 1998 has been brought into force and the courts are obliged to give effect to Convention rights, including article 6.
I have had the advantage of reading in draft the judgment of my noble and learned friend Lord Hope of Craighead and for the reasons which he gives in Part B, I agreed that these appeals should be dismissed. I also agree, or at any rate do not disagree, with a great deal of what he says in Part A. For the most part it deals with matters of Scottish criminal procedure of which I have no experience and on which I would hesitate long before expressing any opinion. But, as he foreshadows, I do have considerable doubt as to whether these appeals raise a devolution issue within the meaning of section 57(2) of the Scotland Act 1998. My reasons for holding this view can be quite shortly stated.
The issue as pleaded is whether the acts of the Lord Advocate in indicting the appellants and continuing the proceedings against them are ultra vires his powers under section 57(2), which prohibits acts inconsistent with rights conferred by the Convention. The issue therefore divides into two questions: first, are the matters of which complaint is made acts of the Lord Advocate and secondly, are those acts incompatible with a...
To continue reading
Request your trial
-
R v Abdulla Ahmed Ali and Others
...we have referred. 105 We have also taken into account the fact that, unlike the decisions in Abu Hamza and Montgomery v HM & Another [2003] 1 AC 641, this was not a case concerned with pre-trial publicity but with publicity following a conviction. The fact that it was a trial following a co......
- HM Advocate v K
-
RB (Algeria) v Secretary of State for the Home Department
...a flagrant denial of justice if he is deported to Jordan. As my noble and learned friend Lord Hoffmann said in Montgomery v H M Advocate [2003] 1 AC 641, 649 "…an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of article 6(1) lies......
-
R (Mahfouz) v General Medical Council
...There is no absolute rule that knowledge of such material is fatal to the fairness of the proceedings. In Montgomery v H.M. Advocate [2003] 1 AC 641, the question was the effect of pre-trial publicity on the minds of a jury dealing with a charge of murder. Lord Hope expressed the common law......
-
Admissibility in Criminal Proceedings of Third Party and Real Evidence Obtained by Methods Prohibited by UNCAT
...against self-incrimination whichis implied in Article 6 § 3(c).95 Khan v United Kingdom (2001) 31 EHRR 1016; Montgomery v HM Advocate [2003] 1 AC 641 at[449]96 P G v United Kingdom, Application No. 10822/84, 7 May 1987, para. 76 (italics added). Seealso A v Secretary of State (No. 2) [2004]......
-
Subject Index
...01Miranda v Arizona, 284 US 436 (1966)... 226Mitchell v MNR [2001] 1 SCR 911 ................ 96Montgomery v HM Advocate and Another[2003] 1 AC 641, PC .......................... 58, 129Mudgway v New Zealand InsuranceCompany Ltd [1988] 2 NZLR 283 ......... 201Murray v United Kingdom (1996) ......
-
Trials in absentia and the cuts to criminal legal aid
...and Gijsels vBelgium (1997) 25 EHRR 1 at [35].75. Dombo Beheer vThe Netherlands (1993) 18 EHRR 213 at [33].76. Montgomery vHM Advocate [2001] 2 WLR 779 at 809D–E, PC (Lord Hope).77. (1968) 1 EHRR 91.78. RvAbrahams (1895) 21 VLR 343.79. Ibid. at 346 (Williams J).80. E. Cape, ‘The Rise (and F......
-
When the exception is the rule: Rationalising the medical exception in Scots law
...peers elsewhere” – see Coen & Jones 2018: 189.241 See the discussion in Langford & Behn 2018: 561–562.242 See Montgomery v HM Advocate 2003 1 AC 641 at 674 (per Lord Hope).243 See Riddell 1924–1925: 93–97, for Atkin’s response to a paper read by Lord Riddell.244 Williams 1958: 102.245 See L......