HM Advocate v DS
| Jurisdiction | Scotland |
| Judgment Date | 03 August 2005 |
| Neutral Citation | [2005] HCJAC 90,2005 SCCR 655 |
| Docket Number | No 10 |
| Date | 03 August 2005 |
| Court | High Court of Justiciary |
High Court of Justiciary
Lord Justice-General (Cullen of Whitekirk), Lord Hamilton, Lord Nimmo Smith
Human Rights - Justiciary - Solemn procedure - Devolution issue - Whether statutory restrictions on right to question complainer regarding character and sexual behaviour when charged with certain sexual offences incompatible with right to fair trial - Human Rights Act 1998 (cap 42), sch 1, Pt I, Art 6 - Criminal Procedure (Scotland) Act 1995 (cap 46), secs 274, 275, 275A
The Human Rights Act 1998 provides for the Convention right to fair trial as contained in Art 6.
Section 274 of the Criminal Procedure (Scotland) Act 1995 (cap 46) (as amended) places restrictions in the case of certain sexual offences on the admission or allowance of questions designed to elicit evidence in relation to the complainer showing or tending to show that the complainer was not of good character; had engaged in sexual behaviour not the subject-matter of the charge or engaged in non-sexual behaviour which might found the inference that the complainer was likely to have consented to the acts or was not a credible or reliable witness.
Section 275 enables the court on application made by either party to admit such evidence or allow such questioning if satisfied that it would relate only to a specific occurrence or occurrences or facts demonstrating the complainer's character or any condition or predisposition to which the complainer has been subject and which are relevant to determining the accused's guilt and the probative value of the evidence is significant and likely to outweigh any risk of prejudice to the proper administration of justice.
Section 275A provides that where such an application by the accused has been allowed the prosecutor shall forthwith place before the jury any previous relevant extract conviction in relation to certain sexual offences and previously served on the accused where no objection is made. Objection may be made on the basis that there was not a substantial sexual element present in the offence's commission; that disclosure would be contrary to the interests of justice; that the conviction does not apply to the accused or that it is otherwise inadmissible. Nonetheless the court may in certain circumstances allow disclosure of the conviction and where the objection is based on disclosure being contrary to the interests of justice it is presumed unless the contrary is shown that the disclosure is in the interests of justice.
Section 275B provides that the sec 275 application is not to be considered by the court unless made not less than 14 clear days before the trial diet except on special cause shown.
The appellant was indicted for trial in the sheriff court on a charge of indecent assault and a statutory contravention. He had relevant previous convictions for the purposes of sec 275A of the 1995 Act. A devolution minute was lodged by the appellant maintaining that secs 274, 275 and 275A of the 1995 Act read cumulatively were incompatible with his right to a fair trial under Art 6 of the European Convention on Human Rights and Fundamental Freedoms. The sheriff referred the devolution minute to the High Court of Justiciary for determination.
Counsel for the appellant argued that where an accused had a relevant previous conviction, this put pressure on the defence not to make an application under sec 275 or where such an application had been made and granted, not to put the questions or lead the evidence allowed, so constraining the way in which the defence was conducted. Risk of disclosure of the previous conviction would hang over the accused until such time as a decision on disclosure was made, thus rendering the trial process unfair. Section 275 did not have a legitimate object nor was it proportionate to any aim it might have.
Held that the evidence or questioning to be pursued was at the initiative of the defence as being in the interests of the accused and that the granting of any application by the court being directed towards parity of treatment of accused and complainer was thus legitimate and proportionate; and the provisions read cumulatively were Art 6 compatible (paras 23-26).
DS was charged in the sheriffdom of North Strathclyde at the instance of the Right Honourable Colin David Boyd QC, Her Majesty's Advocate, on indictment with indecent assault and a contravention of sec 27(7) of the Criminal Procedure (Scotland) Act 1995.
The appellant having lodged a devolution minute, following a hearing on 30 November 2004, the sheriff referred the matter to the High Court of Justiciary.
Cases referred to:
A v Scottish MinistersUNKSCELRWLR [2001] UKPC D5; 2002 SC (PC) 63; 2001 SLT 1331; [2003] 2 AC 602; [2002] 3 WLR 1460
AB v Slovakia App No 41784/98, 4 June 2003, unreported
Advocate (HM) v TouatiUNK 2001 SLT 1195; 2001 SCCR 392
Clark v KellySCUNK 2001 JC 16; 2000 SLT 1038; 2000 SCCR 821
Darrach v The QueenUNK [2000] 2 SCR 443; 11 BHRC 157
Dombo Beheer BV v NetherlandsHRC (1993) 18 EHRR 213
Golder v UKHRC (1975) 1 EHRR 524
Leggate v HM AdvocateSCUNK 1988 JC 127; 1988 SLT 665; 1998 SCCR 391
M(M) v HM AdvocateUNK 2004 SCCR 658
R v A (No 2)UNKELRWLRUNK [2001] UKHL 25; [2002] 1 AC 45; [2001] 2 WLR 1546; [2001] 3 All ER 1
R v Seaboyer (1991) 83 DLR (4th) 193
Riepan v AustriaUNK [2001] Crim LR 230
X v Austria App No 2742/66, 30 May 1967, unreported
At advising, on 3 August 2005, the opinion of the Court was delivered by the Lord Justice-General (Cullen of Whitekirk)-
Opinion of the Court-
[1] The pannel was indicted for trial in the sheriff court at Paisley on a charge of indecent assault and a charge of contravening sec 27(7) of the Criminal Procedure (Scotland) Act 1995 (cap 46) ('the 1995 Act'). He has a 'relevant previous conviction' for the purposes of sec 275A of the 1995 Act, as amended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9) ('the 2002 Act'), namely a conviction of a contravention of sec 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 (cap 39). Following a postponement of the original trial diet the pannel lodged a devolution minute in which he maintained that secs 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 Art 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 pannel lodged an application under sec 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 pannel 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 para 9 of sch 6 to the Scotland Act 1998 (cap 46) ('the Scotland Act') is a document issued by the referring court, as in Clark v KellyUNK,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 (SI 1996/513 (S 47), r 40.7. (See also HM Advocate v Touati, para 6). The 'reference', on the other hand, sets out the pannel's contentions and certain questions on which the pannel 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 para 9 of sch 6 to the Scotland Act.
[3] Secondly, despite the...
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