Xy V. The Scottish Ministers+the Lord Advocate+the Secretary Of State For Scotland

JurisdictionScotland
JudgeLord Nimmo Smith,Lord President,Lord Eassie
Neutral Citation[2007] CSIH 45
CourtCourt of Session
Published date06 June 2007
Docket NumberP694/07
Date27 April 2007

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President Lord Nimmo Smith Lord Eassie [2007] CSIH 45

P694/07

OPINION OF THE COURT

delivered by LORD PRESIDENT

in

Reclaiming Motion

by

XY

Reclaimer;

against

THE SCOTTISH MINISTERS, THE LORD ADVOCATE AND THE SECRETARY OF STATE FOR SCOTLAND

Respondents:

_______

Act: O'Neill, Q.C., Barne; Balfour & Manson (Taylor & Kelly, Coatbridge)

Alt: Cullen, Q.C., Mure; Solicitor for the Scottish Ministers.

The Advocate General: Moynihan, Q.C.; Solicitor to the Advocate General for Scotland

27 April 2007

The circumstances

[1] The reclaimer was in July 1997 convicted of being concerned in the supplying of Class A drugs, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. He was sentenced to imprisonment for four years. Following a recommendation by the Parole Board for Scotland he was released from custody on licence in June 1999. In January 2003 he pled guilty to a further contravention of section 4(3)(b) of the 1971 Act, namely, being concerned in the supplying of cocaine, another Class A drug. For this offence he was sentenced in February 2003 to six and a half years imprisonment. As a long-term prisoner he was eligible for consideration by the Parole Board for Scotland for release on licence at the halfway point of his sentence. Following a recommendation by the Board, to which the Scottish Ministers were obliged to give effect, the reclaimer was released on licence with effect from a date in May 2006, under section 1(3) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. The licence contained several conditions with which the reclaimer was required to comply. One such condition required that he "be of good behaviour and shall keep the peace". In February 2007 the reclaimer appeared at a sheriff court on a petition which specified two charges against him, namely, further contraventions of section 4(3)(b) of the 1971 Act, involving cocaine and diamorphine. The dates of the alleged contraventions included the period between May 2006 and February 2007 when the petitioner was on licence in the community. It had been estimated by the Scottish Crime and Drug Enforcement Agency in respect of these charges that the reclaimer had been concerned in the supplying of Class A drugs with a "street" value of more than £2 million. The reclaimer denies these charges.

[2] On 27 February 2007 the Scottish Ministers served on the reclaimer a decision revoking his licence and recalling him to prison. Since then the reclaimer has been detained as a convicted prisoner in pursuance of that recall. The decision to revoke the licence and to recall the reclaimer to prison was taken at the instance of the Scottish Ministers purportedly in pursuance of their power under section 17(1)(b)(ii) of the 1993 Act to take such action where revocation and recall are, in their opinion, "expedient in the public interest and it is not practicable to await [a recommendation by the Parole Board to do so]". The reasons given by the Scottish Ministers in the relative revocation of licence were:

"Breach of Condition 6 of your release licence which requires you 'to be of good behaviour and keep the peace'. You have been charged with offences contrary to section 4(1) of the Misuse of Drugs Act. It is alleged that you have been concerned in the supply of Diamorphine and Cocaine, both Class A drugs. These charges relate to offences allegedly committed over a period that included the time when you have been on licence in the community.

Scottish Ministers consider that this behaviour, when viewed in the context of your offending behaviour, indicates that you present an unacceptable risk to the safety of the public and that it is expedient in the public interest that your licence should be revoked and you should be recalled to custody."

[3] The reclaimer challenges the decision of the Scottish Ministers, maintaining that it was ultra vires by virtue of section 57(2) of the Scotland Act 1998. He seeks production and reduction of it and "an order for [his] liberation from custody ... under and in terms of section 47(1) of the Court of Session Act 1988". The basis of that challenge is an allegation that to revoke the reclaimer's licence and to recall him to prison was in contravention of his rights under Article 3 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms. That Article provides:

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

[4] In Hirst v United Kingdom (No.2) (2006) 42 EHRR 41 the European Court of Human Rights, having noticed that it had previously established that Article 3 of the First Protocol guaranteed individual rights, including the right to vote and to stand for election, held that an automatic and indiscriminate blanket restriction on voting, applying to all convicted prisoners, irrespective of the length of their sentences and irrespective of the nature or gravity of their offences and their individual circumstances, must be seen as falling outside any acceptable margin of appreciation. It accordingly held, regard being had to the terms of section 3(1) of the Representation of the People Act 1983 (as amended) that, in respect of the applicant (a British citizen serving a term of imprisonment in England), there had been a violation of Article 3 of the First Protocol. In Smith v Scott 2007 S.L.T. 137 the Registration Appeal Court gave effect as a matter of domestic law to Hirst v United Kingdom (No.2). It held, having regard to section 3(1) and to the decision in Hirst, that no election in the United Kingdom to any legislature would be compatible with the Convention; the Scottish Parliament was, it held, such a legislature. The court made a declaration that the terms of section 3(1) of the Representation of the People Act 1983 were incompatible with the appellant's rights under Article 3 of the First Protocol.

[5] By virtue of section 2(2) of the Scotland Act 1998 an ordinary general election falls to be held on the first Thursday in May of the fourth calendar year following that in which the previous ordinary general election was held. In this year that Thursday fell on 3 May 2007. The reclaimer appears in the Register of Electors for a constituency in Glasgow. Section 3(1) of the Representation of the People Act 1983 (as amended) provides that:

"a convicted person during the time when he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting in any parliamentary or local government election."

The reclaimer is a person to whom that provision applied at the date of the hearing of this reclaiming motion.

[6] Section 57 of the Scotland Act 1998 provides:

"...

(2) A member of the Scottish Executive has no power ... to do any ... act, so far as the ... act is incompatible with any of the Convention rights...

(3) Subsection (2) does not apply to an act of the Lord Advocate -

(a) in prosecuting any offence, or

(b) in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland,

which, because of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section."

Subsections (1) and (2) of section 6 of the Human Rights Act 1998 are in these terms:

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if-

(a) as the result of one or more provisions of primary legislation, the

authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary

legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

[7] The reclaimer's petition for judicial review of the Scottish Ministers' decision came before the Lord Ordinary (Lord Malcolm) on 3 April 2007. Argument was heard over that and the succeeding day when the Lord Ordinary refused the petition. The reclaiming motion was heard before us on 24 and 25 April. At the conclusion of the discussion we adjourned until 27 April to consider our decision. On that date we refused the reclaiming motion and adhered to the Lord Ordinary's interlocutor, intimating that we would subsequently give our reasons in writing for that decision. That we now do.

Submissions of counsel

[8] Mr O'Neill for the reclaimer submitted that, standing the declarator of incompatibility made in Smith v Scott and the fact that the Scottish Ministers had no defence such as that provided to public bodies by section 6(2) of the Human Rights Act 1998, their decision was ultra vires under section 57(2) of the Scotland Act 1998 and fell to be reduced accordingly. The Lord Ordinary had taken an unduly narrow view of what was, under section 57(2), "incompatible" with Convention rights. He had also erroneously rejected the "but for" test of causal relationship between the act complained of and the Convention right relied on. But for the Scottish Ministers' decision to revoke the reclaimer's licence and recall him to prison his Convention right under Article 3 of the First Protocol would not have been violated. As to remedy, reduction of the Scottish Ministers' decision and the consequential order for his liberation were inevitable. The Lord Ordinary had been wrong to accept the proposition that, if the reclaimer was correct, serious questions would arise as to the power of a court to impose a discretionary sentence of imprisonment - notwithstanding the concession to that effect made by counsel then appearing for the reclaimer. The prosecutor in moving for sentence and the court in passing such sentence were, it was submitted, protected by section 57(3) of...

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