Moir (Mitchell John) v HM Advocate
| Jurisdiction | UK Non-devolved |
| Judgment Date | 17 November 2004 |
| Docket Number | No 1 |
| Date | 17 November 2004 |
| Court | Privy Council |
Judicial Committee of the Privy Council
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry
Justiciary - Procedure - Fair trial - Whether matter should be decided before or after trial
The petitioner was charged with rape and sexual assault. He raised a devolution issue on the ground that the provisions of secs 274 and 275 of the Criminal Procedure (Scotland) Act 1995 (cap 46), as amended, were inconsistent with his right to a fair trial in terms of Art 6 of the European Convention on Human Rights and Fundamental Freedoms and were accordingly invalid. The single judge refused the devolution minute. The petitioner's appeal to the High Court of Justiciary was refused. The petitioner presented a petition for special leave to appeal to the Privy Council.
Held the proper course was for the Crown to be allowed to proceed to trial and for the issue of compatibility to be raised, if a conviction followed and the issue remained relevant, as a ground of appeal (para 4); and petition dismissed.
Mitchell John David Moir was charged on indictment at the instance of the Right Honourable Colin David Boyd QC with rape and sexual assault. The petitioner presented a devolution minute on the ground that the provisions of secs 274 and 275 of the Criminal Procedure (Scotland) Act 1995, as amended, were inconsistent with his right to a fair trial in terms of Art 6 of the European Convention on Human Rights and Fundamental Freedoms and were accordingly invalid. A hearing in respect of the minute took place before a single judge of the High Court (Lord Macfadyen). On 20 June 2003, the single judge refused the devolution minute. The petitioner appealed to the High Court of Justiciary.
The appeal was heard before the High Court of Justiciary comprising the Lord Justice-Clerk (Gill), Lord Osborne and Lord Johnston. At advising, on 11 October 2004, the court refused the appeal: 2005 JC 102.
On 18 October 2004 the petitioner's motion for leave to appeal to the Judicial Committee of the Privy Council was refused. The petitioner presented a petition for special leave to appeal to the Judicial Committee.
Cases referred to:
R v A (No 2)WLRUNK [2002] 1AC 45; [2001] 2 WLR 1546; [2001] 3 All ER 1
The petition was considered on paper, on 11 November 2004, by the Judicial Committee of the Privy Council, comprising Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Rodger of Earlsferry. Reasons for the decision...
To continue reading
Request your trial
-
HM Advocate v Murtagh
...and his representatives became bound to respect the accused's Convention rights. By 2002, as I explained in Holland v HM Advocate 2005 SC (PC) 1, 22, para 66, the Crown had modified their stance on the disclosure of the convictions of Crown witnesses. They still did not acknowledge that the......
-
Neilly v R
...of an identification parade and the weaknesses of a dock identification were summarised in Holland v HM Advocate [2005] UKPC D1, 2005 SC (PC) 1, 17, para 47: "…identification parades offer safeguards which are not available when the witness is asked to identify the accused in the dock at h......
-
Jahvid Absolam v R
...in principle and dangers of a dock identification: Aurelio Pop v The Queen [2003] UKPC 40; Holland v H M Advocate [2005] UKPC D1, 2005 SC (PC) 1; Pipersburgh and Another v The Queen [2008] UKPC 11; Tido v The Queen [2012] 1 WLR 115; and Neilly v The Queen [2012] UKPC 12. Where there ha......
-
Jason Lawrence v The Queen
...in principle and dangers of a dock identification: Aurelio Pop v The Queen [2003] UKPC 40; Holland v H M Advocate [2005] UKPC D1, 2005 SC (PC) 1; Pipersburgh and Another v The Queen [2008] UKPC 11; Tido v The Queen [2012] 1 WLR 115; and Neilly v The Queen [2012] UKPC 12. Where there ha......