HM Advocate v Robb
| Jurisdiction | Scotland |
| Judgment Date | 20 September 1999 |
| Docket Number | No 19 |
| Date | 20 September 1999 |
| Court | High Court of Justiciary |
JC
Lord Penrose
Procedure—Solemn procedure—Devolution issue—Pannel indicted for assault—Crown proposing to lead evidence of incriminating statement made by pannel to police during detention—Pannel repeatedly requesting attendance of solicitor during detention but police refusing request—Whether tendering transcript of pannel's statement in evidence an “act” of Lord Advocate—Whether tendering transcript in evidence incompatible with pannel's right to a fair trial—Whether devolution issue—Human Rights Act 1998 (cap 42), sec 1(1)(a)1—Scotland Act 1998 (cap 46), secs 57(2) and 126(1) and sched 62—European Convention on Human Rights, art 6(3)3
Section 57(2) of the Scotland Act 1998 enacts that: “A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law.” By virtue of sec 44(1)(c) the Lord Advocate is a member of the Scottish Executive.
The pannel was indicted for trial on a charge of assault. Part of the Crown evidence against him was a transcript of a police interview which took place when the pannel was detained in terms of sec 14(1) of the Criminal Procedure (Scotland) Act 1995. During the interview the pannel repeatedly asked that he be allowed to consult a solicitor but his requests were refused. The pannel served on the Lord Advocate and the Advocate-General a minute in which he sought to raise a devolution issue in terms of which he invited the court to hold that the act on the part of the Lord Advocate of tendering in evidence the transcript of his statement would necessarily render his trial unfair and would therefore constitute a violation of art 6(3)(c) of the European Convention on Human Rights and Fundamental Freedoms. The Crown opposed the application arguing that the minute did not raise a devolution issue in terms of para 1 of sched 6 to the Scotland Act 1998 and that the proposed use of the transcript was neither an “act” of the Lord Advocate nor incompatible with art 6(3)(c).
Held (1) that the word “act” in sec 57(2) was apt to encompass all actions taken or avoided in the course of the prosecution of offences and accordingly included the tendering of the transcript in evidence; (2) that the leading of evidence at a criminal trial was an exercise or purported exercise of the Lord Advocate's function as head of the prosecution system in Scotland and as such gave rise to a devolution issue in terms of para 1 of sched 6; but (3) that since
it was only when the court had determined the admissibility of evidence tendered by the Lord Advocate and when, if appropriate, the trial judge had directed the jury on the use of the evidence that any question of the fairness of the trial could be considered, the pannel was not entitled to an order declaring that his Convention rights would be breached by the leading of the evidence; and no orderpronounced.HM Advocate v McCann and Sommerville, 19 July 1999 (unreported) disapproved.
Murray v United KingdomHRC (1996) 22 EHRR 29distinguished.
Bryan Robb was charged along with Ian Hunter, on an indictment at the instance of the Right Honourable The Lord Hardie, QC Her Majesty's Advocate, the libel of which set forth a charge of assault alleged to have been committed on 13 September 1998.
The pannel, prior to the trial diet, served a minute in terms of ch 40 of the Act of Adjournal (Criminal Procedure Rules) 1996, as amended, giving notice of his intention to raise a devolution issue within the meaning of para 1 of sched 6 to the Scotland Act 1998.
Cases referred to:
Advocate (HM) v LittleUNK 1999 SCCR 625
Advocate (HM) v McCann and Sommerville 19 July 1999 (unreported)
Advocate (HM) v Scottish Media Newspapers LtdUNK 1999 SCCR 599
Eckle v GermanyHRC (1983) 5 EHRR 1
Murray v United KingdomHRC (1996) 22 EHRR 29
The minute called before Lord Penrose in the High Court of Justiciary at Edinburgh on 15 September 1999.
At advising, on 20 September 1999—
LORD PENROSE—Bryan Robb and Ian Hunter were indicted for trial at a sitting of the High Court at Edinburgh, commencing on 23 August 1999, on a charge of assault. Prior to the trial diet, Bryan Robb lodged a minute in terms of ch 40 of the Act of Adjournal (Devolution Issues Rules) 1999 (SI 1999 No 1346) giving notice that he intended to raise a devolution issue within the meaning of para 1 of sched 6 to the Scotland Act 1998. The diet of trial was discharged and a diet was fixed for the hearing of argument on the minute.
The offence was alleged to have occurred on 13 September 1998 in Ratcliffe Terrace in Edinburgh. It was generally agreed that the Crown would lead two eye witnesses whose identification of the accused was likely to be weak. The other main source of evidence against Mr Robb was in the form of admissions made by him during a tape recorded interview by police officers on 18 September 1998. Mr Robb's mother, Kirsten Robb, and a social worker, Elizabeth Ann Beattie, were present throughout the interview. At the beginning of the interview, Mr Robb discussed his position for some time, and answered questions put to...
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David Shields Montgomery (Appellant) HM Advocate and Another (Respondents) Andrew Alexander Marshall Coulter (Appellant) HM Advocate and Another (Respondents)
...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. 14As already noted, in the events which have happened the point does not matter in the present case. In particular, the point......
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R V. Her Majesty's Advocate And The Advocate General For Scotland
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McGowan (Procurator Fiscal)
...has no power to move the court to grant any remedy which would be incompatible with the European Convention on Human Rights: see also HM Advocate v Robb 2000 JC 127, 131, per Lord Penrose. This is in sharp contrast to the position under the Human Rights Act 1998, section 8(1) of which provi......
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The European Convention and the Independence of the Judiciary ‐ The Scottish Experience
...Shields Montgomery and another 2000 JC 111, HCJ per the LordJustice General, Lord Rodger, at 117.2 See Her Majesty’s Advocate vBryan Robb, 2000 JC 127, HCJ per Lord Penrose at 130:Section 6(6) of the Human Rights Act 1998 defines ‘act’ as including a failure to act, subject tocertain except......