Her Majesty's Advocate V. D S
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Hamilton,Lord Nimmo Smith |
| Court | High Court of Justiciary |
| Date | 03 August 2005 |
| Docket Number | XC138/05 |
| Published date | 03 August 2005 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Hamilton Lord Nimmo Smith
| Appeal No: XC138/05 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in THE REFERENCE OF A DEVOLUTION ISSUE under paragraph 9 of Schedule 6 to the Scotland Act 1998 by THE SHERIFF OF NORTH STRATHCLYDE AT PAISLEY in the case of HER MAJESTY'S ADVOCATE against DS _______ |
Appellant: Bell, Q.C.; Crown Agent
Respondent: Bovey, Q.C., Simpson; Gilfedder McInnes (McCuckser, McElroy & Co., Johnstone)
3 August 2005
The reference
[1]The panel was indicted for trial in the sheriff court at Paisley on a charge of indecent assault and a charge of contravening section 27(7) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). He has a "relevant previous conviction" for the purposes of section 275A of the 1995 Act, as amended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (the 2002 Act), namely a conviction of a contravention of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. Following a postponement of the original trial diet the panel lodged a devolution minute in which he maintained that sections 274, 275 and 275A of the 1995 Act, as amended by the 2002 Act, were incompatible with his right to a fair trial in accordance with article 6 of the European Convention on Human Rights. After a further postponement of the trial a hearing on the devolution minute took place before the sheriff on 30 November 2004. In advance of the hearing the panel lodged an application under section 275, stating that it was without prejudice to his right to argue the devolution minute. The sheriff was not asked to determine the application and did not do so. On 3 December the sheriff decided that the issue raised in the devolution minute should be referred to this court for determination. The panel was given time to lodge a draft reference, and the Crown time thereafter to lodge adjustments. On 30 December the defence lodged a "reference" for this purpose. On 4 February 2005 the sheriff referred " the devolution issue" to this court for determination.
[2]A number of matters may be noted in regard to the "reference". First, it is clear that a reference under paragraph 9 of Schedule 6 to the Scotland Act 1998 (the Scotland Act) is a document issued by the referring court, as in Clark v Kelly 2000 S.C.C.R 821, although parties may be required or invited to assist the court by preparing and adjusting a draft reference (Act of Adjournal (Criminal Procedure) Rules 1996, rule 40.7. See also H.M. Advocate v. Touati 2001 SCCR 392 at para. [6]. The "reference", on the other hand, sets out the panel's contentions and certain questions on which the panel purportedly seeks a determination by this court. It is not surprising that the procurator fiscal indicated in his letter to the sheriff clerk dated 1 February 2005 that the Crown did not consider that they could offer adjustments to a document in that form. However, when the "reference" is read with the interlocutor dated 4 February, the intention of the sheriff is plain enough. Accordingly we are prepared to entertain the "reference" as adequate to constitute a reference for the purpose of paragraph 9 of Schedule 6 to the Scotland Act.
[3]Secondly, despite the fact that the "reference" was sought by the panel, during the course of his submissions on his behalf Mr Bovey raised the question whether, having regard to the matters to which the application under section 275 was directed, the panel might not be a "victim" for the purposes of article 34 of the European Convention on Human Rights, as is required by section 100(1) of the Scotland Act. This is a matter with which we will deal later in this opinion.
[4]Thirdly, it is to be noted that at the end of the "reference" it is stated that
"the panel seeks a determination that-
- the provisions read cumulatively are incompatible with the panel's right to a fair trial and are accordingly not law;
- esto sections 274 and 275 are not incompatible with the panel's right to a fair trial, section 275A is incompatible with the panel's right to a fair trial and is accordingly not law".
While this sets out two contentions, Mr Bovey made it clear that in substance there was a single issue, namely whether, when read in conjunction with sections 274 and 275, section 275A is incompatible with the panel's right to a fair trial and is accordingly not law.
The legislation
[5]The 2002 Act substituted new provisions in place of sections 274 and 275 of the 1995 Act, and inserted the new sections 275A and 275B.
[6]As substituted by the 2002 Act, section 274 places restrictions on the admission of, or the allowance of questions designed to elicit, evidence relating to the complainer in the case of certain sexual offences. In terms of subsection (1) such evidence is
"evidence which shows or tends to show that the complainer -
- is not of good character (whether in relation to sexual matters or
- has, at any time, engaged in sexual behaviour not forming part of the
- has, at any time (other than shortly before, at the same time as or
otherwise);
subject matter of the charge;
shortly after the acts which form part of the subject matter of the charge), engaged in such behaviour, not being sexual behaviour, as might found the inference that the complainer-
- is likely to have consented to those acts; or
- is not a credible or reliable witness; or
- has, at any time, been subject to any such condition or predisposition
as might found the inference referred to in sub-paragraph (c) above".
[7]The substituted section 275(1) enables the court, on application made to it by either party, to admit such evidence or to allow such questioning if satisfied that-
"(a)the evidence or questioning will relate only to a specific occurrence or
occurrences of sexual or other behaviour or to specific facts demonstrating-
- the complainer's character; or
- any condition or predisposition to which the complainer is or has been subject;
(b)that occurrence or those occurrences of behaviour or facts are relevant
to establishing whether the accused is guilty of the offence with which he is charged; and
(c)the probative value of the evidence sought to be admitted or elicited is
significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited".
In M(M)v H M Advocate 2004 S.C.C.R.658 it was held that sections 274 and 275, as substituted by the 2002 Act, were not incompatible with the appellant's right to a fair trial, and hence were not outwith the competence of the Scottish Parliament. Leave to appeal was refused by the court and, on 17 November 2004, by the Judicial Committee of the Privy Council. In delivering the decision of the Judicial Committee Lord Hope of Craighead observed that the proper course was for the issue of compatibility to be raised, if a conviction followed and the issue remained relevant, as a ground of appeal, when account could be taken of what happened at the trial.
[8]Section 275A provides:
"(1)Where, under section 275 of this Act, a court on the application of the accused allows such questioning or admits such evidence as is referred to in section 274 (1) of this Act, the prosecutor shall forthwith place before the presiding judge any previous relevant conviction of the accused.
(2)Any conviction placed before the judge under subsection (1) above shall, unless the accused objects, be-
- in proceedings on indictment, laid before the jury;
- in summary proceedings, taken into consideration by the judge.
(3)An extract of such a conviction may not be laid before the jury or taken into consideration by the judge unless such an extract was appended to the notice, served on the accused under section 69 (2) or, as the case may be, 166 (2) of this Act, which specified that conviction.
(4)An objection under subsection (2) above may be made only on one or more of the following grounds-
- where the conviction bears to be a relevant conviction by virtue
- that the disclosure or, as the case may be, the taking into
- in proceedings on indictment, that the conviction does not
- in summary proceedings, that the accused does not admit the
only of paragraph (b) of subsection (10) below, that there was not a substantial sexual element present in the commission of the offence for which the accused has been convicted;
consideration of the conviction would be contrary to the interests of justice;
apply to the accused or is otherwise inadmissible;
conviction.
(5)Where-
- an objection is made on one or more of the grounds mentioned in paragraphs (b) to (d) of subsection (4) above; and
- an extract of the conviction in respect of which the objection is made was not appended to the notice, served on the accused under section 69 (2) or, as the case may be, 166 (2) above, which specified that conviction,
the prosecutor may, notwithstanding subsection (3) above, place such an extract conviction before the judge.
(6)In summary proceedings, the judge may, notwithstanding subsection (2)(b) above, take into consideration any extract placed before him under subsection (5) above for the purposes only of considering the objection in respect of which the extract is disclosed.
(7)In entertaining an objection on the ground mentioned in paragraph (b) of subsection (4) above, the court shall, unless the contrary is shown, presume that the disclosure, or, as the case may be, the taking into consideration, of a conviction is in the interests of justice.
(8)An objection on the ground mentioned in paragraph (c) of subsection (4) above shall not be entertained unless the accused has, under subsection (2) of section 69 of this Act, given intimation of the objection in accordance with subsection (3) of that section.
(9)In entertaining an objection on the ground mentioned in paragraph (d) of subsection (4) above, the court shall require the prosecutor to withdraw...
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