Kevin Ruddy and Others v Procurator Fiscal, Perth and Another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill,Lord Carswell,Lord Brown of Eaton-under-Heywood,Lord Hope of Craighead,Lord Rodger of Earlsferry |
| Judgment Date | 06 February 2006 |
| Neutral Citation | [2006] UKPC D2 |
| Date | 06 February 2006 |
| Court | Privy Council |
| Docket Number | Appeals DRA Nos 2,3 and 4 of 2005 |
[2006] UKPC D2
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Carswell
Lord Brown of Eaton-under-Heywood
I have had the benefit of reading in draft the opinion of Lord Rodger of Earlsferry. I am in full agreement with it, and for the reasons which he gives I would make the order which he proposes.
My noble and learned friend Lord Rodger of Earlsferry has described the background to this case. I adopt that description with gratitude and, very largely for the reasons that he gives, I too would dismiss these appeals. I add these observations of my own in view of the general interest of the case and its importance.
I doubt whether it was envisaged when the Scotland Act 1998 Act was enacted that your Lordships' Board would engage in a detailed review of the practice and procedures of the High Court of Justiciary of the kind which it has been necessary for us to conduct in this case in order to answer the question whether the appellants are barred from seeking a suspension of the convictions and sentences on the ground that the prosecutor's act which led to the orders being pronounced against them was incompatible with their Convention rights. But it became obvious as soon as the first of the devolution issue cases reached the Judicial Committee that it would be necessary for the Board to decide questions which were ancillary to the determination of the devolution issue.
In Montgomery v H M Advocate, 2001 SC (PC) 1, having determined the devolution issue against the appellants, the Board ordered that publication of the proceedings in the appeal should be postponed until the conclusion of the trial: see p 31F. In Dyer v Watson, 2002 SC (PC) 89, the question whether the appropriate remedy was to uphold the pleas in bar of trial was intimately bound up with the devolution issue, and an argument that it was incompetent for the Board to deal with it was rejected on this ground: see p 122, para 109. In Mills v H M Advocate, 2003 SC (PC) 1, as in this case, the only question was what the consequences were of an accepted breach of the appellant's article 6(1) Convention right: see p 12, para 33. It was not suggested that the Board should not hear the appeal. In R v H M Advocate, 2003 SC (PC) 21 the question as to the appropriate remedy was directly raised by the question whether the appellants were entitled to have the charges against them dismissed on the ground of unreasonable delay.
It can now be taken to be well settled, for the reasons that I gave in Mills, at para 34, that it is open to the Judicial Committee to determine under paragraph 13 of Schedule 6 to the Scotland Act not only the devolution issue itself but also questions which are preliminary to and consequential upon the determination of that issue. In some cases these questions will raise no special features of Scots law or practice. In others, of which this case is a clear example, the reverse will be true. In such cases a thorough understanding of the Scottish system of criminal law will be essential: see my discussion of this point in Montgomery v H M Advocate, 2001 SC (PC) 1, 12-13. The Board has had the advantage in this case of being able to draw not only upon Lord Rodger's long experience both as a Law Officer and as Lord Justice General but also upon the depth and quality of his legal scholarship.
The benefits of our being able to conduct this exercise under his guidance are plain to see. But the case also underlines the importance of maintaining a strong presence of judges skilled in Scots criminal law when the Judicial Committee's jurisdiction is transferred to the Supreme Court under section 40(4) and Part 2 of Schedule 9 to the Constitutional Reform Act 2005. Venturing into the areas of law that Lord Rodger has revealed to us is not an exercise for the uninitiated. It will be important too for the members of that court to appreciate that the devolution jurisdiction that is being transferred to it by the 2005 Act is a jurisdiction which is confined to dealing with devolution issues and with questions that are preliminary or ancillary to their determination. The jurisdiction of the High Court of Justiciary as the court of last resort in all criminal matters in Scotland is, and must be seen to be, otherwise unaffected.
Turning to the question whether the appellants are barred by acquiescence from challenging the convictions and sentences, I would suggest that the first point that needs to be made, as we examine how the concept of acquiescence operates in the field of the criminal law, is that the context in which the issue falls to be considered is different from that where the issue arises in the context of private law. As McBryde, The Law of Contract in Scotland, para 23.13, explains, there is only one principle in operation where waiver (which implies action) or acquiescence (which implies inaction) is relied upon in private law. It is whether it is reasonable for one party to a contract to rely on the inference to be drawn from the other party's conduct. Gloag on Contract, 2 nd ed, 281 acknowledges that it is difficult to formulate any definite rules in view of the vague nature of these concepts. But, on his analysis, the party who alleges waiver or acquiescence must in some way have altered his position in reliance of the words or conduct of the other party. Lord Keith of Kinkel put the matter more generally when he said in Armia Ltd v Daejan Developments Ltd, 1979 SC (HL) 56, 72 that the question whether a right has been waived or a party is barred by acquiescence from asserting that an obligation has not been fulfilled is a question of fact to be determined objectively upon a consideration of all the relevant evidence. But on his approach too the answer to the question in the context of private law depends on the inferences that one party is entitled to draw from the other party's words or conduct.
The context in which the principles of waiver and acquiescence are relied upon in criminal proceedings is different. Although the same words are used, the issue is not the same. Criminal prosecutions are conducted in the public interest. The factors that have guided judges as to how the principles should be applied in criminal cases are appropriate to that context. As the Lord Advocate pointed out in his submissions to the Board in this case, these factors are heavily influenced by considerations of public policy. The considerations operate at large, embracing the need to protect the accused against injustice on the one hand and the need to uphold public confidence in the rule of law on the other. Public policy demands that the accused must be afforded a remedy against injustice. But it also requires the court to balance the rights of the accused against the public interest. That is why, in Watson v Scott (1897) 25 R (J) 53, 54, Lord Justice-Clerk Macdonald said that the question whether a suspension can be brought after delay is always a question of circumstances and discretion. It is question of where the balance is to be struck, bearing in mind that the public interest lies in the finality of criminal proceedings. The longer the accused delays in raising his objection when he has become aware of it, the stronger is the public interest in the argument that the objection has been acquiesced in.
The way the law has developed since the early days favours a broad approach both to the question as to the circumstances in which the remedy of suspension is available and the circumstances in which the proceedings complained of have been acquiesced in. Hume, Commentaries of the Law of Scotland respecting Crimes, vol 2, p 515 acknowledged that it did not prevent the suspension of a sentence that it had already in part been carried into execution. As he explained, "It may still be set aside as to its remainder." But his discussion of the topic does not suggest that the part that had been carried out could be suspended as well as the part that had not been. Today no one doubts that the remedy of suspension is available generally, without regard to whether or not the sentence has been carried out. The fact that the remedy now extends to the sentence as a whole, and to the conviction as well if there are grounds for objecting to it also, has opened up questions which Hume did not have to deal with both as to the scope of the remedy and the effect of delay in seeking it.
Mr Davidson QC for the appellants submitted that the question whether the sentence or conviction had been acquiesced in was to be determined in the first instance by considering the nature of the defect in the proceedings that was complained of. He referred to observations in Millar v Dickson, 2002 SC (PC) 30, 54, para 67, and in R v H M Advocate, 2003 SC (HL) 21, 72-73, para 155 that the prosecutor had no power to conduct proceedings which were incompatible with the appellants' article 6(1) Convention rights. He maintained that what the temporary sheriffs did in these cases had to be seen in that light. He said that where the defect amounted to a fundamental nullity it was incurable, and that it was incapable for that reason of being acquiesced in. In his submission, as the prosecutors had no power to conduct proceedings before them, the temporary sheriffs had no jurisdiction to conduct the proceedings either. So what they did in each of these cases was a fundamental nullity.
The clearest example that Mr Davidson gave of the kind of defect that makes the quashing of a conviction inevitable was that which the court raised ex...
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