I v Dunn

JurisdictionScotland
Judgment Date07 September 2012
Neutral Citation2012 SCCR 673,[2012] HCJAC 108
Date07 September 2012
Docket NumberNo 11
CourtHigh Court of Justiciary

Appeal Court, High Court of Justiciary

Lady Paton, Lord Carloway, Lord Kingarth

No 11
AMI
and
Dunn

Justiciary - Devolution issue - Vulnerable witness applications - Vulnerable witnesses other than child witnesses - Applications considered in chambers without appearance of parties - Applications granted - Whether provisions allow representations by accused or right of review - Whether compatible with Art 6 right to fair trial - Whether secs 271C and 271D could be read in Convention compliant way - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 70A - Scotland Act 1998 (cap 46), sec 29 - European Convention on Human Rights and Fundamental Freedoms, Art 6(1)

Justiciary - Procedure - Vulnerable witness applications - Vulnerable witnesses other than child witnesses - Applications considered in chambers without appearance of parties - Applications granted - Whether provisions allow representations by accused or right of review - Criminal Procedure (Scotland) Act 1995 (cap 46), secs 271C, 271D

Sections 271 et seq of the Criminal Procedure (Scotland) Act 1995 (cap 46) ('the 1995 Act') (as amended) as fully set out in the opinion of Lady Paton, make provision for special measures for vulnerable witnesses including, inter alia, taking evidence by CCTV link and the presence of a support person with the witness. Section 271C provides for an application for special measures to be made by the party seeking to call vulnerable witnesses other than child witnesses. Section 271C(5) and (5A) provides, "(5) The court shall, not later than 7 days after a vulnerable witness application is made to it, consider the application in the absence of the parties and- (a) make an order authorising the use of the special measure or measures specified in the application if satisfied on the basis of the application that- (i) the witness in respect of whom the application is made is a vulnerable witness, (ii) the special measure or measures specified in the application are the most appropriate for the purpose of taking the witness's evidence, and (iii) it is appropriate to do so after having complied with the duty in subsection (8) below, or (b) if not satisfied as mentioned in paragraph (a) above, make an order under subsection 5A below. (5A) That order is an order- (a) in the case of proceedings in the High Court where the preliminary hearing is yet to be held, appointing the vulnerable witness application to be disposed of at that hearing, (b) in the case of proceedings on indictment in the sheriff court where the first diet is yet to be held, appointing the vulnerable witness application to be disposed of at that diet, or (c) in any other case, appointing a diet to be held before the trial diet and requiring the parties to attend the diet." Section 271D makes provisions for review by the party calling the witness, or by the court, of arrangements for vulnerable witnesses which may include varying, revoking or adding special measures. In terms of sec 271D(4)(b), an order may be revoked where, "(i) the use, or continued use, of the measures authorised … would give rise to a significant risk of prejudice to the fairness of the trial or otherwise to the interests of justice, and (ii) that risk significantly outweighs any risk of prejudice to the interests of the witness if the order is made."

Section 29 of the Scotland Act 1998 (cap 46) provides, inter alia, that an Act of the Scottish Parliament is not law in so far as any of its provisions are incompatible with any of the Convention rights.

Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms provides, inter alia, for the right to a fair trial.

The appellant was charged on summary complaint in the sheriff court at Glasgow. The respondent made vulnerable witness applications in respect of two adult complainers, which sought the use of CCTV and a support person. The applications were intimated to the appellant's solicitor. The applications were considered by the sheriff in chambers without the appearance of parties in terms of sec 271C, and were granted. The appellant subsequently lodged a devolution minute in which he contended that he had been denied the opportunity to make representations on the applications. The devolution minute came before a different sheriff who heard argument. Both parties sought a reference to the High Court of Justiciary. The sheriff declined to make a reference and refused the devolution minute. Against that decision, the appellant appealed to the High Court of Justiciary. Before the court, it was argued for the appellant that: (1) the legislation provided no opportunity for the accused's lawyers to make representations at the outset; (2) there was no right of review of the sheriff's decision; (3) the provisions were incompatible with Art 6 of the Convention and were therefore "not law" in terms of sec 29 of the Scotland Act; (4) the Lord Advocate had no power to lead witnesses under the conditions specified in the order, which was invalid, and that to continue with the prosecution which included special measures granted under flawed legislation would be incompatible with the Convention. In response, it was argued for the crown that: (1) there had been no unfairness in the process by which the applications were granted, nor any unfairness about the future trial of the appellant and the challenge to the legislation was therefore made in an "academic vacuum"; (2) the power of review in sec 271D(4) involved a balancing of the risk of prejudice to the fairness of the trial against the risk of prejudice to the interests of the witnesses, which reflected the balance between Arts 6 and 8 of the Convention; (3) it had not been necessary for the sheriff to read down the statute, having taken the view that it was convention compliant and the court should do the same; (4) esto, the statute could, if necessary, be read down.

Held that: (1) on a proper construction of the 1995 Act, as amended, the provisions of the statutory scheme were compliant with Arts 6 and 8 of the Convention (para 40); (2) the opportunity to make representations at the very first stage of the special measures procedure was not essential for compliance with Art 6 provided there was an opportunity to make such representations prior to the witness giving evidence (para 34); (3) it was open to an accused person to either (a) oppose the application prior to it being considered in chambers; or (b) to seek a review (para 36); (4) notwithstanding the lack of any provision in the 1995 Act, opposition could be brought to the court's attention by lodging and intimating a letter of opposition or formal minute of opposition (para 37); (5) even though sec 271D(1) made no mention of any party other than "the party citing or intending to cite the witness" another party such as the accused was entitled to bring to the court's attention a concern that the special measures would "give rise to a significant risk of prejudice to the fairness of the trial or otherwise to the interests of justice" per sec 271D(4) (para 39); (6) in any event, the legislation could be read down in order to comply with the Convention (paras 41-43); and appeal refused and case remitted to the sheriff to proceed as accords.

Observed (per Lord Carloway) that since the appellant did not contend that he would inevitably have been deprived of his right to a fair trial, the actions of the Lord Advocate in proceeding with the prosecution could not be regarded as ultra vires since there had not been, and may never be, a breach of the appellant's Convention rights and in those circumstances, the devolution minute was devoid of practical content, and the appeal could have been refused on that basis alone (para 51).

Dissenting (per Lord Kingarth) that: (1) applying the ordinary cannons of statutory construction, it was not open to an accused either (a) to oppose the application before an order was made under sec 271C(5)(a) or (b); or (b) to seek a review under sec 271D(1) (para 53); (2) not only was there no express provision allowing for representation by the accused (save where a hearing required to be fixed under sec 271C(5A)), the procedural arrangements were consistent with the apparent desire for speed but also with the apparent wishes of the promoters of the bill to prevent any general opportunity to make representations; and by contrast not consistent with any right to make effective representations (para 54); (3) the right to make an application for review was expressly restricted to "the party citing or intending to cite the witness" (para 55); (4) nevertheless the provisions could and should be read down in the way suggested (para 56).

AMI was charged on summary complaint in the sheriffdom of Glasgow and Strathkelvin in Glasgow at the instance of John Dunn, Procurator fiscal there, the libel of which set forth a contravention of sec 127(1)(b) of the Communications Act 2003 (cap 21) by sending indecent images of two children. The respondent lodged vulnerable witness applications, which were considered and granted by the sheriff (JWP Beckett) on 22 June 2010. The appellant lodged a devolution minute, which was heard on 16 September and 3 and 25 October 2011, by the sheriff (D O'Carroll). On 5 December 2011 the sheriff declined to make a reference to the High Court of Justiciary and refused the devolution minute. Against that decision, the appellant appealed to the High Court of Justiciary.

Cases referred to:

Cameron v Cottam (No 2) [2012] HCJAC 31; 2012 GWD 8-146

DS v HM AdvocateUNKSCUNK [2007] UKPC D1; 2007 SC (PC) 1; 2007 SLT 1026; 2007 SCCR 222; [2007] HRLR 28; 24 BHRC 412

Ghaidan v Godin-Mendoza sub nom Ghaidan v MendozaUNKELRWLRUNKFLRUNKUNKUNK [2004] UKHL 30; [2004] 2 AC 557; [2004] 3 WLR 113; [2004] 3 All ER 411; [2004] 2 FLR 600; [2004] 2 FCR 481; [2004] HRLR 31; [2004] UKHRR 827; 16 BHRC 671; [2004] HLR 46; [2005] 1 P & CR 18; [2005] L & TR 3; [2004] 2 EGLR 132; [2004] Fam Law 641

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1 cases
  • A.m.i. V. Procurator Fiscal, Glasgow
    • United Kingdom
    • High Court of Justiciary
    • 21 Enero 2014
    ...(VWA) on 22 June 2010. If that circumstance has an air of familiarity, it is because this matter has already been litigated in AMI v Dunn 2013 JC 82. Initial Sheriff Court Proceedings [2] At the risk of unnecessary repetition, the applicant has been charged on a summary complaint at Glasgow......

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