Dickson v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 10 May 2001 |
| Docket Number | No 23 |
| Date | 10 May 2001 |
| Court | High Court of Justiciary |
JC
Lord Cameron of Lochbroom, Lord Milligan, Lord Hamilton, Lord Macfadyen and Lord Weir
Justiciary—Solemn Procedure—Devolution Issue—Appellant seeking to raise devolution issue in course of trial when objecting to admissibility of transcript of interview with customs officers at which request for solicitor refused—Requirement that notice of devolution issue be given within seven days of service of the indictment except on cause shown—Whether High Court entitled to decide challenges to Acts of Adjournal—Whether requirement breached right to a fair trial—Whether requirement ultra vires the High Court—Whether reasons required to be given contemporaneously with determination of matters arising in course of trial—Whether admission of interview breached right to a fair trial—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 305 (1)—Act of Adjournal (Criminal Procedure Rules) 1996 (1996 SI No 513), r 40.2 and 40.5—Act of Adjournal (Devolution Issues Rules) 1999 (1999 SI No 1346)1
Section 305 of the Criminal Procedure (Scotland) Act 1995 enactsinter alia that: “(1) The High Court may by Act of Adjournal—(a) regulate the practice and procedure in relation to criminal procedure; (b) make such rules and regulations as may be necessary or expedient to carry out the purposes and accomplish the objects of any enactment (including an enactment in this Act) in so far as it relates to criminal procedure…”
Rule 40.2 of the Act of Adjournal (Criminal Procedure Rules) 1996 as amended by the Act of Adjournal (Devolution Issues Rules) 1999 (“the Act of Adjournal”) provides inter alia:“(1) Where a party to proceedings on indictment proposes to raise a devolution issue he shall, not later than 7 days after the date of service of the indictment, give written notice of his intention to do so in Form 40.2A to the clerk of the court in which the trial is to take place; and a copy of the notice shall, at the same time, be served on the other parties to the proceedings and on the relevant authority.”
Rule 40.5 provides: “(1) No party to criminal proceedings shall raise a devolution issue in those proceedings except [as] in accordance with Rule 40.2…unless the court, on cause shown, otherwise determines.”
The appellant was tried on an indictment libelling three contraventions of sec 4(3)(b) of the Misuse of Drugs Act 1971. In the course of the trial objection was taken to the admissibility of a transcript of an interview which had taken place between the appellant and customs officers while the appellant was detained in terms of sec 24 of the Criminal Law (Consolidation) (Scotland) Act 1995. At that stage the appellant sought to raise a devolution issue to the effect that the Crown's leading evidence of the interview was an act incompatible with her rights under art 6 of the European Convention on Human Rights. During the interview the appellant had repeatedly requested to have a solicitor present, but this was refused. The Crown argued that the appellant was precluded from raising a devolution issue because timeous notice of the issue had not been given in terms of r 40.2(1) of the Act of Adjournal (Criminal Procedure Rules) 1996. A question then arose as to whether the time limits imposed by r 40.2(1) and 40.5(1) wereultra vires the High Court of Justiciary when they promulgated the amendment, in respect that they were not authorised by sec 305(1) of the Criminal Procedure (Scotland) Act 1995 and were both unreasonable and disproportionate restrictions on the appellant's rights. A court comprising the trial judge and two consulted judges was convened to hear these submissions. The day after
the hearing, the three judges indicated that their decision was that the Act of Adjournal was intra vires its makers and was valid, and that reasons would be given later. On continuation of the trial following receipt of that decision, the appellant moved the trial judge to allow a devolution issue to be raised late on cause shown. That motion was refused. Thereafter the appellant moved the trial judge to exclude the evidence of the interview on the grounds that it was so unfair that it should not be heard by the jury. That motion was also repelled, and evidence of the interview was led. The appellant was convicted on a charge of being concerned in the supply of drugs. The appellant appealed to the High Court of Justiciary. The appellant argued: that art 6 of the European Convention on Human Rights precluded the High Court from hearing a human rights challenge to an Act of Adjournal; that the restrictions in the Act of Adjournal on the raising of devolution issues were legislative matters outwith the viresof the court; that the trial court should have referred the matter to the judicial Committee of the Privy Council; that the appellant had been entitled to be given reasons for the trial court's rejection of the appellant's challenge to that court's independence and impartiality, and not simply a determination; that the evidence of the interview was manifestly unfair and that the appellant's objection to it should have been upheld; that the jury had not had a chance to consider the fairness of the interview; that the trial judge should have directed the jury on the provisions of the European Convention on Human Rights; that the directions of the trial judge were insufficient to explain what would constitute “knowing that one was involved in supplying something”; and that the directions of the trial judge were inconsistent with the Crown having to establish that the appellant knew that she was involved in supplying something. The Crown argued that impartiality of the court had to be decided ba subjective and objective test, and that there was no evidence offered of partiality under either test; that the Act of Adjournal was not ultra vires; that the tendering of evidence by the Crown at trial was an act or a proposed act by the Lord Advocate, and that an attack on such a proposed act could be made prior to trial; that the admissibility of evidence was a matter for the national courts; that the tendering of evidence to which objection had been taken did not make a matter a devolution issue; that the absence of a solicitor while a detained person was being interviewed did not constitute a contravention of the European Convention on Human Rights; and that in the whole circumstances of the case the appellant had received a fair trial.Held (1) that art 6 of the European Convention on Human Rights did not preclude the High Court from hearing a challenge to an Act of Adjournal, (pp 211G, 223D, 221G–I) and that the trial court did not require to refer the point to the judicial Committee of the Privy Council, such questions being for the discretion of the trial court (pp 212A, 223F); (2) that the rules in the Act of Adjournal which impose a timetable for the raising of devolution issues were not restrictive of rights under art 6 of the European Convention on Human Rights (pp 213H, 223G–H); (3) that the requirement under art 6 of the European Convention on Human Rights for a court to state reasons depended upon the circumstances of the case, and did not require a detailed answer to every argument; and, a question of the vires of the trial court having been raised during the trial and considered by three judges, it was sufficient that the judges indicate at the time of giving their determination that the Act of Adjournal was valid and intra vires; and that where the subsequent conduct of the defence could not have been affected by ignorance of the full reasons, failure to give such reasons until later did not prejudice the appellant or the course of the trial, and did not constitute a miscarriage of justice (pp 214C–I, 221A–C, 224C–H, 225H–226C); (4) that the trial court did not err in law in holding that the Act of Adjournal wasintra vires its makers and to be treated as valid, and that decision did not constitute a miscarriage of justice (pp 213A–I, 223G–H); (5) that, although the trial judge might have erred in ruling that an objection to the admissibility of interview evidence should have been raised as a devolution issue before the commencement of the trial and in admitting that evidence, nevertheless the admission of this evidence did not lead to a miscarriage of justice, there being no suggestion that the absence of a solicitor had a decisive effect upon the preparation of the appellant's defence (pp 216D–218F, 224I–225F); (6) that regardless of the correctness of the decision to admit the interview evidence, the jury had received full directions to determine the fairness of the interview, and that the defence had had an opportunity to cross-examine the crown witnesses as to the fairness or unfairness of the interview, and consequently it was impossible to say that the appellant was denied a fair trial (p 218G); (7) that there was no need for the trial judge to direct the jury on the provisions of the European Convention on Human Rights, and that it would be unhelpful to do so as they express generalities which have to be applied by reference to the particular circumstances of the case (pp 218I–219B); (8) that the jury received full and proper directions explaining what would amount to “knowing that one was involved in supplying something” (pp 219F–220H); and appeal refused.
Observed per Lord Milligan that where a court makes a determination in the course of a trial and does not propose to give full reasons forthwith, it is open to the prosecution and/or the defence to move the court to supply reasoning necessary for proper conduct of the trial thereafter either immediately or at any stage of the trial when such need becomes apparent (p 221A–C)
Observed per Lord Hamilton that where an objection is taken at trial to the admissibility of evidence on the ground that its admission would or might involve an infringement of an accused's rights under art 6 of the European Convention on Human Rights, that issue...
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