APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Carloway Lord Kingarth	[2012] HCJAC 108 Appeal No: XJ1263/11 OPINION OF LADY PATON in APPEAL UNDER SECTION 174 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by A M I Appellant; against PROCURATOR FISCAL, GLASGOW Respondent: _______

Appellant: Shead, M.C. MacKenzie; John Pryde & Co, Edinburgh

Respondent: Wade, AD; Crown Agent

7 September 2012

Introduction

[1] The appellant has been charged on a summary complaint with an offence under section 127(1)(b) of the Communications Act 2003. He is alleged to have sent naked images of his two 10-year-old daughters to two adult complainers ND (date of birth 8.8.80) and VD (date of birth 6.10.75) by means of the Internet, Facebook, webcam and other electronic methods. On 17 June 2010, the procurator fiscal submitted vulnerable witness applications in respect of the complainers. As noted by the sheriff in paragraph [4] of his report:

"The application[s] stated that the complainers were each likely to be vulnerable witnesses as defined by section 271(1)(b) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") because each of the complainers was fearful of the accused, deeply affected by the incident referred to in the charge and suffered from post traumatic stress disorder and chronic fatigue. As a result, it was said, there was a significant risk that the quality of each of the complainer's evidence would be diminished by reason of fear and distress in connection with the giving of evidence at the trial."

[2] Each application was supported by a letter from a general practitioner. Each application was intimated to the appellant's solicitor. The special measures sought in each case were the use of CCTV and the presence of a support person.

[3] On 22 June 2010 the sheriff (Sheriff Beckett) considered the applications in chambers without the appearance of parties, as he was entitled to do in terms of section 271C of the 1995 Act (as amended by the Vulnerable Witnesses (Scotland) Act 2004). He granted the applications.

[4] The appellant lodged a Devolution Minute and an amended Devolution Minute, contending that he had been denied the opportunity to make representations to the sheriff on the question whether or not the applications should be granted. He referred to information and photographs which, it was said, would demonstrate that the adult complainers were not vulnerable. He averred that such information might have caused the sheriff to reach a different view. In particular, paragraphs viii) to x) of the Minute stated:

" ... viii) Although vulnerable witness status may, in certain circumstances, be necessary, any application must be properly tested in a public adversarial process before it is granted.

ix) As the complainers have been given vulnerable witness status there is a risk that this will have a detrimental effect on the way in which the Minuter's case is presented to the Court.

x) Further, this also places the complainers' evidence in a different category from other potential witnesses, including the Minuter. There is a risk that this differential in treatment will have a detrimental effect on the way in which the evidence is received by the Court ..."

[5] On 16 September 2011, the Devolution Minute came before a different sheriff (Sheriff O'Carroll). Both the appellant and the Crown sought a reference to the High Court in terms of paragraph 9 of Schedule 6 to the Scotland Act 1998. Having heard argument on 16 September, and 3 and 25 October 2011, the sheriff made avizandum. On 5 December 2011 the sheriff decided not to make a reference, and refused the Devolution Minute. He offered to hear parties' submissions on the question of special measures.

[6] The appellant appealed. In his Note of Appeal he referred inter alia to the information and photographs which, it was said, would demonstrate that the complainers were not vulnerable.

The European Convention on Human Rights (ECHR)

[7] The ECHR provides inter alia:

"Article 6

Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...

3. Everyone charged with a criminal offence has the following minimum rights:...

d to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;...

Article 8

Right to respect for private and family life

1. Everyone has the right to respect for his private life and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others."

The relevant domestic legislation

[8] The following excerpts from the 1995 Act are taken as at 22 June 2010, being the date when the original sheriff granted the vulnerable witness applications. Thus no account is taken of the Criminal Justice and Licensing (Scotland) Act 2010, which came into force on 28 March 2011. In any event, the amendments made by that Act have no bearing on the issues arising in this case.

[9] Section 271 of the 1995 Act provides:

"Vulnerable witnesses: main definitions

271.-(1) For the purposes of this Act, a person who is giving or is to give evidence at, or for the purposes of, a trial is a vulnerable witness if - ...

(b) where the person is not a child witness, there is a significant risk that the quality of the evidence to be given by the person will be diminished by reason of -

(i) mental disorder ... or

(ii) fear or distress in connection with giving evidence at the trial.

(2) In determining whether a person is a vulnerable witness by virtue of subsection (1)(b) above, the court shall take into account-

(a) the nature and circumstances of the alleged offence to which the proceedings relate,

(b) the nature of the evidence which the person is likely to give,

(c) the relationship (if any) between the person and the accused,

(d) the person's age and maturity,

(e) any behaviour towards the person on the part of-

(i) the accused,

(ii) members of the family or associates of the accused,

(iii) any other person who is likely to be an accused or a witness in the proceedings, and

(f) such other matters, including -

(i) the social and cultural background and ethnic origins of the person,

(ii) the person's sexual orientation,

(iii) the domestic and employment circumstances of the person,

(iv) any religious beliefs or political opinions of the person, and

(v) any physical disability or other physical impairment which the person has,

as appear to the court to be relevant...

(4) In subsection (1)(b) above, the references to the quality of evidence is to its quality in terms of completeness, coherence and accuracy ..."

[10] Section 271C of the 1995 Act provides:

"Vulnerable witnesses other than child witnesses

271C.-(1) This section applies where a party citing or intending to cite a person (other than a child witness) to give evidence at, or for the purposes of, a trial (such a person being referred to in this section as 'the witness') considers -

(i) that the witness is likely to be a vulnerable witness, and

(ii) that a special measure or combination of special measures ought to be used for the purpose of taking the witness's evidence.

(2) Where this section applies, the party citing or intending to cite the witness shall, by the required time, make an application (referred to as a 'vulnerable witness application') to the court for an order authorising the use of one or more of the special measures for the purpose of taking the witness's evidence...

(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.

(6) On making an order under subsection (5A)(c) above, the court may postpone the trial diet.

(6A) Subsection (7) below applies to-

(a) a preliminary hearing or first diet so far as the court is, by virtue of an order under subsection (5A)(a) or (b) above disposing of a vulnerable witness application at the hearing or diet, and

(b) a diet appointed under subsection (5A)(c) above.

(7) At a hearing or diet to which this subsection applies, the court may -

(a) after giving the parties an opportunity to be heard, and

(b) if satisfied that the witness in respect of whom the application is made is a vulnerable witness,

make an order authorising the use of such special measure or measures as the court considers to be the most appropriate for the purpose of taking the witness's evidence.

(8) In deciding whether to make an order under subsection (5)(a) or (7) above, the court shall-

(a) have regard to-

(i) the possible effect on the witness if required to give evidence without the benefit of any special measure, and

(ii) whether it is likely that the witness would be better able to give evidence with the benefit of a special measure, and

(b) take into account the matters specified in subsection (2)(a) to (f) of section 271 of this Act.

(9) A hearing or diet to which subsection (7) above applies may-

(a) on the application of the party citing or intending to cite the witness in respect of whom the diet is to be held, or

(b) of the court's own motion

be held in chambers.

(10) A diet appointed under subsection (5A)(c) above in any case may be conjoined with any other diet to be held before the trial diet in the case.

(11) A party making a vulnerable witness application shall, at the same time, intimate the application to the other parties to the proceedings."

[11] Section 271D of the 1995 Act provides:

"Review of arrangements for vulnerable witnesses

271D.-(1) In any case in which a person who is giving or is to give evidence at or for the purposes of the trial (referred to in this section as the 'witness') is or appears to the court to be a vulnerable witness, the court may at any stage in the proceedings (whether before or after the commencement of the trial or before or after the witness has begun to give evidence) -

(a) on the application of the party citing or intending to cite the witness, or

(b) of its own motion,

review the current arrangements for taking the witness's evidence and, after giving the parties an opportunity to be heard, make an order under subsection (2) below.

(2) The order which may be made under this subsection is -

(a) where the current arrangements for taking the witness's evidence include the use of a special measure or combination of special measures authorised by an order under section 271A or 271C of this Act or under this subsection (referred to as the 'earlier order'), an order varying or revoking the earlier order, or

(b) where the current arrangements for taking the witness's evidence do not include any special measure, an order authorising the use of such special measure or measures as the court considers most appropriate for the purpose of taking the witness's evidence.

(3) An order under subsection (2)(a) above varying an earlier order may -

(a) add to or substitute for any special measure authorised by the earlier order such other special measure as the court considers most appropriate for the purpose of taking the witness's evidence, or

(b) where the earlier order authorises the use of a combination of special measures for that purpose, delete any of the special measures so authorised.

(4) The court may make an order under subsection (2)(a) above revoking an earlier order only if satisfied -

(a) where the witness has expressed a wish to give or, as the case may be, continue to give evidence without the benefit of any special measure, that it is appropriate for the witness so to give evidence, or

(b) in any case, that -

(i) the use, or continued use, of the special measure or measures authorised by the earlier order for the purpose of taking the witness's evidence 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.

(5) Subsection (8) of section 271C of this Act applies to the making of an order under subsection (2)(b) of this section as it applies to the making of an order under subsection (5)(a) or (7) of that section but as if the references to the witness were to the witness within the meaning of this section.

(6) In this section, 'current arrangements' means the arrangements in place at the time the review under this section is begun."

[12] The Scotland Act 1998, in section 29, provides:

"Legislative competence

(1)              An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

(2)              A provision is outside that competence so far as any of the following paragraphs apply -

... (d) it is incompatible with any of the Convention rights or with Community law ..."

Submissions

Submissions for the appellant

[13] The domestic legislation was criticised in two respects. (i) The legislation provided no opportunity for the accused's lawyers to make representations at the outset on the question whether or not special measures should be granted. Also, once the sheriff had made a decision, there was no right of review. As a result, the legislation was incompatible with Article 6 of the ECHR, and was "not law" in terms of section 29 of the Scotland Act 1998. The vulnerable witnesses orders were therefore invalid. (ii) The Lord Advocate would be acting incompatibly with the ECHR by continuing a prosecution which included special measures granted in terms of flawed legislation. The Lord Advocate therefore had no power to lead the witnesses under the conditions specified in the order. To attempt to do so would be a breach of section 57(2) of the Scotland Act 1998.

[14] Counsel explained that although intimation of the vulnerable witness applications had been made to the appellant's solicitor, it was widely understood by defence practitioners that the legislation, properly construed, did not give the appellant an opportunity to make representations at that stage. Frequently there was very little time between the intimation of the application and the sheriff's decision. The position was different in England, where defence counsel could oppose the application at the outset: section 2(5) of the Magistrates' Courts (Special Measures Directions) Rules 2002; section 2 of the Crown Court (Special Measures Directions and Directions Prohibiting Cross-examination) Rules 2004; and Part 29.1 of the Criminal Procedure Rules 2005. The appellant's criticism focused on the lack of opportunity to make representations, and not on whether such representations were to be made in court or in chambers. The appellant would have wished to make submissions about the odd way in which the applications were framed, and the unsatisfactory content of the general practitioner's letters. As it happened, there was also a positive dimension in that there was material (photographs and other items) which challenged the veracity of the complainers' alleged vulnerability.

[15] The problem was not resolved by the statutory provisions for review contained in section 271D. Those provisions extended only to the party citing or intending to cite the witness, and to the court itself, but not to anyone else such as the appellant. Furthermore, the review provisions did not amount to an appeal. It was questionable whether there was any right of appeal prior to trial. Nor did the provisions allow for a hearing de novo. Of course, if the sheriff opted to have a hearing at which both parties could make submissions in terms of section 271C(5)(b) and (5A), the accused could if necessary appeal against any decision made at that hearing. But there was no appeal from an order made by the sheriff in chambers without having heard parties. In any event, a right of appeal would not address the problem, as the appellant would have to demonstrate an error of law by the first court, rather than invite the appeal court to "begin again". Moreover the appellant would be at a disadvantage in that he would not have had the input of the first instance hearing. Thus there was an apparently deliberate imbalance in the legislative structure, an inequality of arms and an inability to comment on evidence adduced in an adversarial process with a view to influencing the court's decision. Reference was made to Hampson v HM Advocate 2003 SCCR 13; Kuopila v Finland (2001) 33 EHRR 25 at paragraph 31; Krcmar v Czech Republic (2001) 31 EHRR 41 at pages 962-3. The procedural unfairness was sufficient for counsel's argument: it was not necessary to demonstrate unfairness in a substantive sense. The way in which the witnesses' evidence would be given would be a breach of Article 6(1) and (3).

[16] As for any suggestion of reading down the legislation, it was not possible to construe the legislation against the grain: Lord Rodger in Ghaidan v Godin-Mendoza [2004] 2 AC 557; [2004] 3 WLR 113; DS v HM Advocate 2007 SC (PC) 1; 2007 SCCR 222, at paragraphs [15] to [24]; and Cameron v PF Livingston, 8 and 14 February 2012 (Lord Eassie). Counsel submitted that deploying section 3 of the Human Rights Act 1998 would be going against the grain, and any reading down suggested by the Crown was plainly not what was intended by the legislation. There had been a deliberate decision to limit both the opportunity for the defence to make representations and the defence right to a review. While European jurisprudence did not insist upon an eye-to-eye confrontation in an open courtroom, that was the natural starting-point, and any departure from that position required justification: cf the observations of Lord Rodger at paragraphs 4 to 8 of R (D) v Camberwell Green Youth Court [2005] 1 WLR 393.

[17] If this court were to conclude that the legislation could not be read down and were minded to declare it "not law", it would be necessary in terms of section 102(4) of the Scotland Act 1998 to intimate the case to the Advocate General and to fix a hearing: cf Cameron v PF Livingston, cit sup.

Submissions for the Crown

[18] The Advocate depute submitted that the starting point for the Crown was paragraph 30 of the sheriff's report, which was in the following terms:

"The Minuter avers in the Minute that there are a significant number of photographs tending to suggest that the witnesses are far from being vulnerable. The Minute also avers that this information may have caused the sheriff to reach a different view from the view that he reached. However I should note that notwithstanding these averments, during the course of the argument made before me, counsel for the Minuter was at pains to emphasise that no attack was made on the correctness of the decision made by the sheriff in granting the two applications. He did not attempt to argue that the sheriff ought not to have granted the applications or that if there [had] been an opportunity for a hearing before the sheriff made his decision, the result might have been different. Neither did counsel seek to argue that the effect of the special measures granted by the sheriff would be that, at the trial itself, the Minuter would not be able to receive a fair trial. Consistent with that position, counsel for the Minuter did not seek any opportunity to have the correctness of the sheriff's decisions reviewed prior to the trial diet, and told me that he had no instructions to do so ..."

[19] As noted in that paragraph, counsel could not identify any unfairness about vulnerable witness applications in general, or the applications granted in this case, or any unfairness about the future trial of the appellant. Having been offered an opportunity to review the special measures in the light of certain alleged photographs, counsel for the appellant declined, on the basis that he had no instructions. In all the circumstances, it was difficult to identify any unfairness in the case, and the Crown's position was that there was no unfairness. Thus the challenge to the legislation was made in an academic vacuum.

[20] In terms of section 271D(4)(b)(i) and (ii), the sheriff had the power to review those measures. An express balancing exercise (of the risk of prejudice to the fairness of the hearing against the risk of prejudice to the interests of the witness) was to be carried out. There was a balancing of an individual's rights under Article 8 of the ECHR (the complainer's privacy) with those under Article 6 (a fair trial). Privacy rights were important to protect juveniles and children, and the private lives of parties. Thus Article 6 did not necessarily require a public hearing in all situations: a chambers hearing was possible. Another perceived problem was the delay which could occur if a special measures application was challenged as a matter of course in every case. The provisions in section 271C and D had been directed towards standard, run-of-the mill applications which were unlikely to be opposed.

[21] In any event, the appellant was wrong to suggest that there was no right of review, when such a right existed in the legislation and had in fact been offered by the sheriff. While accepting that there was no formal provision for parties to have a hearing at the outset, nevertheless there were many ways in which opposition could be brought to the attention of the court: for example, informally to the clerk of court; formally to the clerk of court; by the Schedule 2 form indicating readiness (or otherwise) for trial; by a plea in bar of trial; by submission at a preliminary hearing or a first diet; and by devolution minute. The trial judge could not ignore such opposition. The cases of Kuopila and Krcmar were different, as they involved situations where information or evidence was not communicated to parties: but in this case the appellant had received full information about the basis upon which the applications were made. Having received that information, there were ways of bringing matters to the court's attention.

[22] The sheriff had not required to read down the statute, but had simply applied it as it stood, taking the view that it was convention-compliant (paragraph 104 of the sheriff's report). The Advocate depute endorsed that approach, submitting that it was the clear intention of Parliament not to deprive the appellant of a hearing on the question of vulnerable witness special measures. However the Crown's esto position was that the statute could, if necessary, be read down, for example by inserting in sub-paragraph (5) of section 271C after the words "consider the application" the words "and any representations which might be made by the accused". Such a reading down would not go against the grain of the legislation. Another method of reading down (if required) would be to insert the words "or of any other party" after the words "party citing or intending to cite the witness" in section 271D(1)(a). Again that would not go against the grain of the legislation. An accused was entitled to have a fair trial in terms of Article 6 of the ECHR. If adverse material were brought to the court's attention, the judge would be bound to reconsider matters on the basis of fairness.

[23] At worst for the Crown, if the legislation were considered ultra vires and incapable of being read down, then the Crown could not lead the evidence of the two witnesses with the assistance of the special measures. The witnesses would have to give their evidence in open court in the usual way. Alternatively, resort could be had to the common law (cf Hampson v HM Advocate 2003 SCCR 13; 2003 SLT 94).

[24] In summary, the Crown maintained that the provisions relating to special measures were Article 6 compliant because:

(i) There were powers of review.

(ii) The decision of innocence or guilt was still available in respect of the appellant.

(iii) The provisions achieved the balancing exercise referred to in Strasbourg jurisprudence, which accepted that the court owed a duty to the witness as well as to the accused.

Esto the court took a different view, the provisions could be read down.

Reply for the appellant

[25] Counsel made reference to some of the parliamentary debates leading to the legislation, and in particular to proceedings on 4 March 2004. There had been a sharp division of opinion. Those seeking to have the legislation enacted in its present form argued that, if given the opportunity, lawyers would challenge special measures on every occasion, and that allowing defence representations at the outset would cause delay. Counsel submitted that neither assertion was well-founded.

[26] While it was accepted that legislation could be read down, even to the extent of inserting words, counsel contended that the reading down proposed by the Advocate depute would be against the grain of the legislation and against the intention of Parliament.

[27] As for paragraph 30 of the sheriff's report, inquiries had been made. Obviously the matter was now one of recollection only. Regrettably the counsel appearing in the sheriff court did not recollect emphasising that no attack was made on the correctness of the sheriff's decision to grant the applications. Nor did he recollect omitting to argue that the sheriff ought not to have granted the applications or that if there had been an opportunity for a hearing, the result might have been different.

[28] In any event the focus of the appellant's argument was that the legislation was ultra vires. As the granting of the applications represented a breach of the convention, a breach of the appellant's procedural rights, the Lord Advocate had no power to continue with the prosecution. It was accordingly not relevant whether or not the appellant might have a substantively fair trial. A fundamental right had been breached and there was no need to examine the merits of the matter. The argument that the appeal was academic would have disappeared had the sheriff made a reference as requested. But in any event there was no question of the issue being academic. As was set out at the beginning of paragraph 30 of the sheriff's report, there were a significant number of photographs tending to suggest that the witnesses were far from vulnerable. That information might have caused the sheriff to reach a different view. The case was a paradigm example of inequality of arms because of the unusual information tending to counter the averments about vulnerability made by the Crown.

[29] The court was invited to conclude that the legislation was incompatible with the ECHR in respect of procedural rights, and to decline to construe it by reading down in a way which cut against the grain of the legislation. However if the court were ultimately against the appellant, that might be beneficial to him, as it could be argued at a later stage that the Lord Advocate had acted incompatibly with the convention.

Discussion

The accused's interest in objecting to a special measure

[30] The Vulnerable Witnesses (Scotland) Act 2004 was enacted with the intention of enabling a witness to give evidence despite vulnerability by reason of age, illness, disability, intimidation or other cause. The statute makes provision for special measures, such as the giving of evidence by means of closed circuit television (CCTV), or with screens, and/or with a support person; the taking of evidence on commission; using a witness's written statement in place of evidence-in-chief; and other such measures. Where a witness is an adult, he or she must satisfy a high test in order to qualify for such special measures, namely that:

" ... there is a significant risk that the quality of the evidence to be given by the person will be diminished by reason of -

(i) mental disorder ... or

(ii) fear or distress in connection with giving evidence at the trial ..."

(Section 271(1)(b) of the 1995 Act).

[31] In terms of the statute, the only ground upon which an accused person is entitled to object to such a special measure is that "its use would give rise to a significant risk of prejudice to the fairness of the trial, or otherwise to the interests of justice". That approach is, in my view, Article 6-compliant. In this context, it should be noted that the right to a fair trial does not give the accused an absolute right to insist upon a witness giving evidence in the court room in the accused's presence: see Lord Rodger of Earlsferry at paragraphs 7 to 11 of R (D) v Camberwell Green Youth Court [2005] 1 WLR 393.

The procedure whereby an accused may object to a special measure

[32] I accept that the practice prior to the coming into effect of the 2004 Act on 1 April 2005 was that a party seeking special measures presented an application in court, and other parties had an opportunity to oppose that application. As Lord Justice General Cullen observed at paragraph [10] of Hampson v HM Advocate 2003 SCCR 13, 2003 SLT 94:

"It should not be assumed that the court will lightly alter the normal procedure in regard to the taking of the evidence of a witness. There requires to be sufficient [cause] to warrant this exceptional course. A departure from the normal procedure for the taking of evidence may involve some disadvantage to the accused. In doing justice between the parties, the court is required to strike a balance between, on the one hand, the rights of the accused, including the right to a fair trial, and, on the other, the rights of the witness."

[33] The 2004 Act has changed the procedure for the policy reasons referred to in the parliamentary debates. The question for this court is whether the altered procedure complies with the ECHR.

[34] In my view, it does. The 1995 Act, as amended by the 2004 Act, gives the appellant an opportunity to make representations that the fairness of the trial or the interests of justice are at significant risk of prejudice. That opportunity is not necessarily given at the very first stage of the special measures procedure, but I do not consider that to be essential for compliance with the ECHR provided that there is an opportunity for such representations to be made and decided upon prior to the witness giving evidence. The 1995 Act provides such an opportunity in the following way.

[35] At the initial stage, the application together with the supporting documentation is intimated to the other party (usually the accused, although on some occasions the Crown). He is accordingly given full information about the grounds upon which the application is based, and the information which will be placed before the judge: contrast with the circumstances in Kuopila and Krcmar, cit sup. The application is placed before a judge in chambers, to be considered by that judge alone without hearing submissions from any party. The judge may grant the application, or he may order a hearing. If the latter occurs, the accused may make representations at the hearing. If, on the other hand, the judge grants the application without a hearing, the accused will not have been able to make representations at that stage. The question of a right to make representations at some later stage then arises.

[36] I agree with counsel for the appellant that the 2004 Act made a noticeable change in procedure, with a shift of emphasis towards the efficient processing of standard non-contentious applications for special measures. However in my opinion, on a proper construction of the 1995 Act as amended by the 2004 Act, it is open to an accused person such as the appellant either (a) to oppose the application prior to any grant in chambers; or (b) to seek a review of any such grant.

[37] (a) Opposing the application prior to any grant in chambers: The opposing party (in the present case, the appellant) receives intimation of the vulnerable witness application and the supporting documents. He therefore has as much information as the judge and the applicant. In my view he is entitled at that stage to oppose the application on the ground that its grant would give rise to a significant risk of prejudice to the fairness of the trial or otherwise to the interests of justice. He would require to give reasons for his opposition. Despite the lack of any provision in the 1995 Act, and despite the general understanding which has developed amongst defence agents, I consider that such opposition may be brought to the attention of the court by lodging in court (and intimating to the other party) a letter of opposition, or a more formal Minute of Opposition to Arrangements for Vulnerable Witnesses (cf the Minute for Review of Arrangements for Vulnerable Witnesses, Form 22.4 of the Act of Adjournal (Criminal Procedure) Rules 1996), or some similar document. Standing the requirements of Article 6 of the ECHR, and the fact that in certain circumstances an accused person may be at some disadvantage if a witness does not give evidence from the witness box in the normal way (see Lord Justice General Cullen in Hampson, cit sup, paragraph [10], and R (D) v Camberwell Green Youth Court, cit sup, Lord Rodger at paragraphs [6] and [7], Lady Hale at paragraph [46]), the judge would require to consider the nature of the opposition before making any decision on special measures and could, if he deemed it appropriate, appoint parties to be heard at an oral hearing.

[38] On the above approach, the policy-driven shift in emphasis towards speedy "chambers" decisions may be maintained in the majority of standard, unopposed applications, while accommodating opposition and even oral argument in the more exceptional case where the defence consider that special measures might give rise to a significant risk of prejudice to the fairness of the trial or otherwise to the interests of justice.

[39] (b) Review of a decision to grant special measures: section 271D: It is again perhaps a reflection of the policy-driven shift in emphasis that section 271D(1) gives the court and the "party citing or intending to cite the witness" the express right to seek review of a grant of special measures, but does not give such a right to the other party - in most cases, the accused. Nevertheless the accused has the right to a fair trial in terms of Article 6 of the ECHR. If, in terms of section 271D(4)(b) -

" ... (i) the use, or continued use, of the special measure or measures authorised by the earlier order for the purpose of taking the witness's evidence 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 ..."

that is a matter which the accused person is entitled to bring to the court's attention, and the judge is obliged, in my view, in terms of both section 271D(4) and Article 6, to take into account. I consider therefore that even although section 271D(1) makes no mention of any party other than "the party citing or intending to cite the witness", another party such as the accused is entitled to bring to the court's attention a concern that the special measures granted will have the result specified in section 271D(4)(b)(i) and (ii). Having regard to its obligations in terms of Article 6 of the ECHR, the court would require to take these concerns into account and, if it deemed it appropriate, appoint an oral hearing. The hearing might be a preliminary hearing or first diet, or might be a special hearing fixed by the court for review of the special measures: section 271D(1). I do not consider that the party opposing the special measures would be at a disadvantage by not having been involved at the initial stage. He was not excluded from any information put before the court by the Crown at the outset, as he received intimation of the application and attachments which resulted in the special measures being granted. Nor is he required by the 1995 Act to demonstrate a change of circumstances or an error of law. At the review hearing, any information and material may be put before the judge by any party (the accused, co-accused, or the Crown) and full submissions could be made. If it is demonstrated that the special measure(s) would "give rise to a significant risk of prejudice to the fairness of the trial or otherwise to the interests of justice", and that the risk "significantly outweighs any risk of prejudice to the interests of the witness if the order is made", the judge may revoke the order and (depending on the circumstances and the submissions) may - or may not - substitute a different special measure: section 271D(4)(b).

[40] Thus it is my view that, on a proper construction of the 1995 Act as amended by the 2004 Act, the provisions of the statutory scheme comply with the requirements of Articles 6 and 8 of the ECHR.

Reading down the domestic legislation

[41] If I am wrong in the approach adopted in paragraphs [34] to [40] above, I consider that the domestic legislation could be read down in terms of section 3 of the Human Rights Act 1998 in order to comply with the ECHR: cf Lord Hope at paragraph [24] of DS v HM Advocate 2007 SC (PC) 1, 2007 SCCR 222. As Lord Rodger of Earlsferry explained in Ghaidan v Godin-Mendoza [2004] AC 557; [2004] 3 WLR 113, at paragraph [121]:

"...cases such as Pickstone v Freemans plc [1989] AC 66 and Litster v Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546 suggest that, in terms of section 3(I) of the 1998 Act, it is possible for the courts to supply by implication words that are appropriate to ensure that legislation is read in a way which is compatible with Convention rights. When the court spells out the words that are to be implied, it may look as if it is "amending" the legislation, but that is not the case. If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention rights to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute."

[42] While it was Parliament's intention to enable vulnerable witnesses to give their evidence, it was not Parliament's intention to jeopardise the fairness of a trial or the interests of justice, or to deny an accused person the opportunity to explain to the judge why that might occur in the event of a special measure being granted. Accordingly, if necessary, I would have read section 271D(1) as follows:

"(a) ... on the application of the party citing or intending to cite the witness, or of any other party, [italicised words inserted] or

(b) of its own motion"

[43] The insertion of the words "or of any other party" does not, in my opinion, go against the grain of the legislation.

Appellant's interest in this case

[44] During the appeal, counsel for the appellant did not specify any way in which the operation of the special measures granted (namely CCTV and a support person) would give rise to a significant risk of prejudice to the fairness of the hearing, or otherwise to the interests of justice. The sheriff recorded matters in paragraph 30 of his report as noted in paragraph [18] above.

[45] However as indicated in paragraph [27] above, this court was advised that inquiries had been made of the counsel who appeared before the sheriff, and that the result of those inquiries was that paragraph 30 of the sheriff's report did not accurately reflect what had occurred in court. In my view, it is unfortunate that this matter was not focused earlier in the appeal procedure, as it might have been possible to have the benefit of a supplementary report from the sheriff. There is of course no transcript of what was said in court on the occasion in question, and accordingly the matter has become one of ex parte comment only.

[46] Be that as it may, what is significant in my view is that no positive explanation has been offered, either in the sheriff court or in the appeal court, why the special measures granted by the sheriff might give rise to a significant risk of prejudice to the fairness of the trial, or otherwise to the interests of justice, and why any such risk would significantly outweigh any risk of prejudice to the interests of the witness if the special measures were not used. There is therefore a question whether such lack of specification affects the appellant's interest in pursuing the current appeal. Ultimately however I have not pursued the question of the appellant's interest (or lack of it), but have reached the conclusion that the appeal must fail for the reasons given in paragraphs [30] to [43] above.

Decision

[47] For these reasons I propose that the appeal should be refused, and that the case be remitted to the sheriff court to proceed as accords.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Carloway Lord Kingarth	[2012] HCJAC 108 Appeal No: XJ1263/11 OPINION of LORD CARLOWAY APPEAL UNDER SECTION 174 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by A M I Appellant; against PROCURATOR FISCAL, GLASGOW Respondent: _______

Act: Shead, MC Mackenzie ; John Pryde & Co (for Gerard Sweeney, Glasgow)

Alt: Wade AD; the Crown Agent

7 September 2012

[48] I agree that this appeal should be refused for the reasons which have been given by your Ladyship.

[49] I have only one thing to add in the context of your Ladyship's observations at paragraph [46] of the Opinion. The amended devolution issue minute, which was lodged in the sheriff court on 12 December 2011 contends ("Contentions in Law" para XII) that the appellant "has been denied a fair trial" by virtue of the sheriff's decision of 22 June 2010 to grant the "special measures" application in respect of the two complainers without having heard from the appellant. The basis for this in the minute ("Facts and Circumstances" paras ix and x) is that the special measures will have a "detrimental effect" on the way in which: (a) the appellant's case is presented; and (b) the evidence is received. The minute concludes ("Contentions in Law" para XVIII) that for the Lord Advocate to continue with the indictment (sic) would amount to a breach of the appellant's Convention rights.

[50] When the matter was debated before the sheriff, the appellant did not seek to attack the merits of the original decision. In particular, it was not said that the sheriff would have made a different decision had the appellant made the representations, which he said he could have made. The appellant did not seek to argue that the effect of the sheriff's decision to grant special measures would be that the appellant would inevitably not receive a fair trial (see Sheriff's report pp 14 and 42). Although counsel at the appeal attempted to distance himself from these concessions, they are clearly and carefully noted by the sheriff. In the absence of any positive submissions, even at the appeal hearing, which might have explained in what way the decision to allow the special measures was wrong, the court ought to proceed on the basis that there is no challenge to the merits of that decision. Furthermore, and in any event, the sheriff offered to review the merits of the special measures, but the appellant specifically declined this opportunity; no doubt on the basis that a review would be futile.

[51] Since the appellant did not contend that he would inevitably be deprived of his right to a fair trial, the actions of the Lord Advocate in proceeding with the prosecution cannot be regarded as ultra vires since there has not been, and there may never be, a breach of the appellant's Convention rights. In these circumstances, there is no substance left in the minute. It is devoid of practical content. The issue becomes, as the advocate depute put it: "a challenge to the legislation in an academic vacuum". Accordingly, since the court ought not to be entertaining such challenges to legislation within the confines of a summary criminal process, I would have been inclined to refuse this appeal on that basis alone. However, as the court heard argument on the validity of the legislation, I am content to proceed as your Ladyship proposes.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Carloway Lord Kingarth	[2012] HCJAC INFO Appeal No: XJ1263/11 OPINION OF LORD KINGARTH in APPEAL UNDER SECTION 174 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by A M I Appellant; against PROCURATOR FISCAL, GLASGOW Respondent: _______

Appellant: Shead, McKenzie; John Pryde & Co, Edinburgh

Respondent: Wade, AD; Crown Agent

7 September 2012

[52] I have had the advantage of reading the Opinion of your Ladyship in the Chair in draft. Although I too agree that the appeal should be refused, I regret that I cannot support all of the reasoning which has led your Ladyship to that conclusion.

[53] In particular I am not persuaded that, applying the ordinary canons of statutory construction, it is open to an accused, where the Crown have applied for special measures in respect of a witness, either (a) to oppose the application before an order is made under section 271C(5)(a) or (b) to seek review of any such order under section 271D(1).

[54] As to the former, although the application requires to be intimated to other parties to the proceedings (section 271C(11)), not only is there no express provision allowing for representation by such parties (save where the court is not satisfied as to the matters referred to in section 271C(5)(a) and a hearing is fixed under subsection (5A)), but the requirement that a decision be made by the court "not later than 7 days after" the application means that there is nothing (where the court is appropriately satisfied) to prevent an order being made immediately upon receipt of the application. This is consistent not only with the apparent desire for speed referred to by your Ladyship, but also with the apparent wish of the promoters of the Bill (as disclosed in the Parliamentary materials to which we were referred) to prevent any general opportunity to make representations at this early stage. By contrast it is not consistent with any right, certainly any effective right, at the instance of an accused to make such representations. And I did not understand the Advocate depute to argue that this section of the Act could, applying the ordinary canons of construction, be construed as affording any such right.

[55] As to the latter, the right to make an application for review is expressly restricted to "the party citing or intending to cite the witness" (section 271D(1)(a)). Although it could be argued that it would nevertheless be open to an accused (where the Crown have applied for special measures in respect of a witness) to invite the court to review its decision "of its own motion" under section 271D(1)(b) (an argument which found some favour with the sheriff, albeit only when seeking to "read down" the provision), it is not, I consider, possible as a matter of language to draw any real distinction between such an invitation and an application; which latter is open only, in terms of the express provisions of the section, to the party citing or intending to cite the witness. There would thus be nothing, on the face of it, to oblige the court to consider any such application.

[56] I have, however, no real difficulty in agreeing with your Ladyship in the Chair that in that event the provisions of section 271D(1)(a) could and should, for the reasons given, be read down in the way suggested (i.e. by the addition of "or any other party"), thereby providing an accused in an appropriate case with the opportunity (to the effect earlier discussed by your Ladyship) to make representations seeking inter alia the revoking of any relevant order. Although an order for special measures would ordinarily only be revoked if the court was persuaded inter alia of a significant risk of prejudice to the fairness of the trial or otherwise to the interests of justice, there is nothing in that, in my opinion, inconsistent with an accused's Convention rights. As stressed in R (D) v Camberwell Green Youth Court, Article 6 does not guarantee a right to face to face confrontation with a witness. Further, although the Parliamentary materials to which we were directed suggest a clear determination by the promoters of the Bill to prevent the opportunity for representations to be made in every case at an early stage (which would militate against the reading down of section 271C(1) proposed by the Advocate depute), there is nothing in these materials to suggest, at any rate clearly, any intention that if in a particular (and perhaps unusual) case an accused was able to argue that the fairness of the trial would be prejudiced by the adoption of special measures he should not be able to do so.