Procurator Fiscal, Alloa Against Ross Porch
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lady Dorrian,Lord Drummond Young |
| Judgment Date | 24 November 2015 |
| Neutral Citation | [2015] HCJAC 111 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2015 |
| Published date | 24 November 2015 |
| Date | 24 November 2015 |
HIGH COURT OF JUSTICIARY
[2015] HCJAC 111
HCA/2015/002743/XC &
HCA/2015/002744/XC
Lady Paton
Lady Dorrian
Lord Drummond Young
OPINION OF THE COURT
delivered by LADY DORRIAN
in
reference to the High Court of Justiciary
in terms of rule 40.10 of the Act of Adjournal
in causa
PROCURATOR FISCAL, ALLOA
against
ROSS PORCH
Act: Jackson, QC, C. M. Mitchell; Virgil M Crawford
Complainer: Johnston, Sol Adv; Martin Johnston & Socha, Kirkcaldy
Alt: McSporran, Sol Adv, AD; Crown Agent
24 November 2015
Background
[1] This is a reference to the High Court of Justiciary under section 288ZB of the Criminal Procedure (Scotland) Act 1995 which arises in the context of the prosecution of one Ross Porch. On 2 February 2015 he appeared from custody on a complaint of assaulting his pregnant girlfriend by repeatedly pushing her, throwing a set of ladders at her, sitting on top of her, holding her down and spitting on her, all to her injury, and whilst he was subject to two bail orders. The assault is said to have taken place at the address of the complainer in Tullibody, Alloa,. The complaint contained a second charge of damaging property at that address contrary to section 8(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The accused, having pled not guilty, was admitted to bail on standard conditions, and with the additional conditions, which he accepted, that he should not enter the street in Tullibody, where the complainer lived, nor should he approach, contact or attempt to approach or contact the complainer.
[2] On 14 April 2015 the accused again appeared on summary complaint, which this time contained three charges. The first charge was that on 5 April 2015, in the aforesaid street in Tullibody, he had with him a knife, without reasonable excuse. The second charge was that he there behaved in a threatening and abusive manner by shouting and brandishing a knife, contrary to section 38 of the 2010 Act. The third charge alleged a breach of the conditions of bail imposed on 2 February 2015. The accused pled not guilty to charges 1 and 2, but tendered a plea of guilty to charge 3, which plea was not accepted. At that stage he was refused bail. Bail was granted on 18 May, when a trial diet was adjourned. The conditions upon which bail was granted were again the standard conditions plus the two special conditions referred to above. The conditions were again accepted, and must impliedly have been accepted by the accused on 8 June when the case, and bail, was continued in his presence. Thereafter, on about 18 June 2015, in respect of both cases, an application for variation of the bail conditions was lodged, seeking to remove the bail condition preventing contact with the complainer. On 23 June 2015 the sheriff refused to vary the conditions. In his report, the sheriff noted that the view of the complainer was only one matter which had to be considered. The allegations of carrying a knife in a public place, on bail, and whilst breaching section 38 of the 2010 Act, as well as breaching special conditions of bail previously imposed, were very serious ones. Having regard to these various factors, the prior record of the accused, and the fact that a relatively early trial diet had been set, the sheriff did not consider that it was in the public interest to remove the conditions. The previous convictions of the accused consist of the following:
- September 2014, breach of section 38 involving a scaffolding pole, and assault to injury using a pool cue
- December 2014, assault to severe injury
- February 2015, breach of a community payback order
The accused appealed against the sheriff’s review decision, and in the course of the appeal presented a compatibility minute, averring, in short, that the complainer did not wish the accused to be subject to the special conditions, and that the acts of the Lord Advocate in seeking them, and then objecting to their removal, and of the court in imposing them, and then refusing to recall them, were in breach of the article 8 rights of the accused and of the complainer.
[3] After continuation to allow the Crown to consider the compatibility minute and for discussion regarding further procedure, the case came before the bail judge on 10 July. Having heard from counsel for the accused and the advocate depute, the bail judge considered it appropriate to make a reference of the compatibility minute to the High Court of Justiciary in terms of section 288ZB:
“..in light of the proposition advanced on behalf of the [accused] which is that given the particular facts and circumstances of the situation pertaining to both bail appeals there is no basis on which a refusal to grant variation of the special conditions currently in place would not result in a breach of the Article 8 rights of both the [accused] and the complainer.”
He thereafter continued the matter to allow a reference to be drafted. When the matter came before a different bail judge, that judge considered that the matter should be intimated to the legal representatives of the complainer. The case was again continued for discussion, and on 5 August the reference as adjusted was approved by a third bail judge. The reference states that the parties to the reference are the accused, the Crown and the complainer.
[4] The statement of facts narrates that in neither of the original bail hearings did the Crown or the court seek the views of the complainer in person, although the Crown was aware of her views at the outset, and these were taken into account at the time of both requesting the special conditions of bail and opposing their removal. During the review hearing, the sheriff was advised that the complainer was within the court building and able to confirm her views, but her views were provided to the Crown and the court by the legal agent for the accused. Notwithstanding the views of the complainer, the Crown opposed the removal of the said conditions in each case and the sheriff refused each application.
[5] In the proceedings on appeal, it was contended that:
“(a) the crown in requesting the additional conditions and subsequently opposing an application for removal of same, and
(b) the court, in imposing the said conditions and thereafter in refusing to remove the same were acting in a way incompatible with both the [accused’s] and the complainer’s right to private and family life in terms of Article 8 of the European Convention on Human Rights.
[6] Article 8 provides:
“Article 8
Respect to private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
[7] The nature of the article 8 right which was said to exist was not explained at any stage. The nature of the relationship between the complainer and the accused was not explained. It was stated that the complainer was pregnant with the accused’s child, and that she had two other children, but the circumstances in general surrounding her relationship with the accused were not explained. For example, it was not apparent until the production of the bail review report at a second hearing that they did not cohabit, or that the accused was not the father of her other two children. We are not suggesting that no relationship relevant to article 8 exists, but whether the issue under consideration amounts to a family life or relates to private life, was ultimately unclear.
[8] The issues referred to the High Court of Justiciary are identified in the reference as follows:
“(a) Is the [accused’s] Article 8 right engaged in relation to determining whether a bail condition preventing contact or communication with the complainer should be imposed when bail is granted and, thereafter, in determining whether it should be removed?
(b) Is the complainer’s Article 8 right engaged in relation to determining whether a bail condition upon the [accused] preventing contact or communication with the complainer should be imposed when bail is granted and, thereafter, in determining whether it should be removed?
(c) Esto the complainer’s Article 8 right is engaged in this process, does the complainer have a right to be heard and to make effective representation to the court in relation to the determination of her Article 8 right?
(d) Esto the complainer’s Article 8 right is engaged in this process, does she have a right to access the court to review its determination?
(e) Esto the complainer does have a right to be heard and to make effective representation to the court, does she have the right to legal representation, with such representation being funded by the state if necessary?”
Although the terms of the reference identified three parties to it, it was clear that when the original bail judge made the reference it was on the understanding that there would be two parties involved, the Crown and the accused. That is apparent from the terms of the interlocutor of 10 July. A subsequent hearing was intimated to the complainer, but the basis upon which that was done is not made clear, nor is the basis upon which the third bail judge allowed the reference to be finalised in terms which indicate three parties to it, notwithstanding the interlocutor of 10 July. Accordingly, this court was addressed at the outset on the competency of the complainer being represented in the reference. Having heard submissions, we concluded that it would be appropriate to hear the solicitor advocate for the complainer, subject to all questions of competency, not least because the issue of competency was intricately related to the...
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