Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. ANNIE MULVEY HARKINS GOURLAY or DICKSON [1999] ScotHC 218 (10th September, 1999)

In this case, the panel faces an indictment containing three charges all brought under section 4(3)(b) of the Misuse of Drugs Act 1971. The indictment was brought to trial before Temporary Judge Sheriff Gordon at a sitting of the High Court of Justiciary in Glasgow. During the course of the Crown case, the Advocate Depute sought to introduce into evidence a document, Crown Production 19, which is a transcript of an interview conducted by customs officers under and in terms of section 24 of the Criminal Law (Consolidation)(Scotland) Act 1995, the panel having been detained in terms of that enactment. At that juncture, counsel for the panel objected to the use of this transcript upon the ground that it would be incompatible with the rights of the panel under the European Convention on Human Rights and, in particular, with the right to a fair trial enshrined in Article 6 thereof. We understand that the objection was founded upon the circumstance that, throughout the interview conducted under section 24 of the Criminal Law (Consolidation)(Scotland) Act 1995, the panel did not enjoy the services of a solicitor.

During the course of the discussion of the foregoing objection before the trial judge, the Advocate Depute sought to rely on certain provisions of the Act of Adjournal (Devolution Issues Rules) 1999, (S.I. 1999 No. 1346) which was made on 4 May 1999 and came into force on 6 May 1999. In particular, the Advocate Depute sought to rely on the terms of Rule 40.2.(1) of that Act of Adjournal, which provides as follows:

The position of the Advocate Depute was that, although he did not concede that the objection taken on behalf of the panel raised a "Devolution Issue", within the meaning of paragraph 1 of Part I of Schedule 6 to the Scotland Act 1998, if it did raise such an issue, then, since written notice had not been timeously given in terms of Rule 40.2.(1) of the Act of Adjournal (Devolution Issues Rules) 1999, it was not open to counsel for the panel to raise the matter at that stage of the proceedings. In response to that contention, counsel for the panel proceeded to argue that the Act of Adjournal (Devolution Issues Rules) 1999, was ultra vires and therefore could not be relied upon by the Advocate Depute. That position having been adopted by counsel for the panel, the trial judge decided that the issue of whether the Act of Adjournal was ultra vires was of such importance that it ought to be decided by a court of three judges, constituted by himself and two consulted judges. Such a court was then convened.

Having explained the foregoing background to this matter, at the hearing before us, counsel for the panel drew our attention in detail to the terms of the Act of Adjournal under consideration. He pointed out that it purported to be enacted under and by virtue of the powers conferred upon the Lords Commissioners of Justiciary by section 305 of the Criminal Procedure (Scotland) 1995, paragraph 37 of Schedule 6 to the Scotland Act 1998 and certain other statutory provisions, with which the court did not require to be concerned. Counsel for the panel stated that the Scotland Act 1998 had devolved upon the Scottish Parliament responsibility for criminal law and procedure. He said that the Parliament of the United Kingdom had decreed that, where matters were devolved, those matters "brought with them" Convention rights derived from the European Convention on Human Rights. We understood him, in that connection, to be referring to the provisions of section 29(2)(d) and section 57(2) of the Scotland Act 1998. Against that background, the Act of Adjournal under consideration sought to "narrow" the Convention rights of the panel. That was the consequence of the notification requirement of Rule 40.2.(1) and of Rule 40.5.(1), which provides:

The time limit provided for in Rule 40.2.(1) amounted to a restriction upon the Convention rights of the panel. Furthermore, the provisions of Rule 40.6 were objectionable also. That Rule provides:

In other words, Rule 40.6 imposed a requirement of specification upon a person seeking to raise a "Devolution Issue", in a manner which was "biased in favour of the State". There was no counterpart to that provision imposing any obligation on the State, the Lord Advocate, or the Advocate General. Further difficulties were created for such a person by paragraph 5 of Schedule 6 to the Scotland Act 1998, which provides that:

It was not made clear in that provision by whom intimation was to be made. In all these circumstances, counsel for the panel submitted that the Act of Adjournal under consideration was ultra vires.

In elaborating this submission, attention was focused on the terms of section 305(1) of the Criminal Procedure (Scotland) Act 1995, under which the Act of Adjournal under consideration purported to be made. Counsel for the panel submitted that paragraphs (a), (b), (c) and (d) of section 305(1) were cumulative and not alternative provisions. Any exercise of the power conferred under section 305(1) had therefore to satisfy the tests laid down by all of those paragraphs. The terms of the Act of Adjournal under consideration did not satisfy those tests.

Reverting to the terms of Rule 40.2.(1) of the Act of Adjournal, counsel for the panel submitted that the limitation on the opportunity to intimate an intention to raise a "Devolution Issue" to a period of seven days after the date of service of the indictment amounted to a contravention of Article 6(3)(b) of the Convention, which provides that:

Counsel for the panel said that he recognised that paragraph 37 of Schedule 6 to the Scotland Act 1998, which was also relied upon as an authorisation for the making of the Act of Adjournal under consideration, was legislation enacted by the Parliament of the United Kingdom. He also recognised that it provides that:

Nevertheless, the subject matter of that paragraph related to devolved matters. Counsel for the panel went on to submit that the terms of paragraph 1(b) of Schedule 6 to the Scotland Act 1998 were of importance in the present context. It provides that:

Counsel for the panel also said that it was of significance to recognise the chronology of relevant events. Schedule 6 of the Scotland Act 1998 derived its authority from section 98 of that Act. Section 98 of the Act came into force on 6 May 1999, by virtue of the Scotland Act 1998 (Commencement) Order. (S.I. 1998, No. 3178). Thus that Schedule and paragraph 37 thereof was not in force on 4 May 1999, the date on which the Lords Commissioners of Justiciary had purported to make the Act of Adjournal under consideration. That circumstance undermined the authority claimed for the making of the Act of Adjournal.

Reverting to the terms of section 305(1) of the Criminal Procedure (Scotland) Act 1995, paragraph (b) thereof referred to "such rules and regulations as may be necessary or expedient" to carry out certain purposes and accomplish certain objects. As we understood him, counsel for the panel argued that the enactment of the Act of Adjournal under consideration was not "necessary or expedient" to carry out those purposes and accomplish those objects. No Act of Adjournal ought to have been made until the Scottish Parliament had authorised that course, the subject matter thereof being within the devolved matters.

Finally, counsel for the panel submitted that it would have been impossible for the panel to obtemper the provisions of Rule 40.2.(1) of the Act of Adjournal because, within the seven days after the date of service of the indictment in this case, no steps had been taken by the Lord Advocate as prosecutor to make use of the transcript as evidence. The transcript only became evidence or, in any event, its use as evidence only became objectionable when an attempt was made during the course of the trial to introduce it into the evidence. For all of these reasons the court should hold that the Act of Adjournal under consideration was ultra vires.

The Advocate Depute, on behalf of the Crown, moved the court to repel the objection, or, in any event, to hold that the Act of Adjournal under consideration was intra vires. He submitted that nothing said on behalf of the panel had any foundation. He submitted that the terms of section 305(1) of the Criminal Procedure (Scotland) Act 1995 themselves authorised the making of the Act of Adjournal. That section had been enacted by the Parliament of the United Kingdom and was in force at all material times. Paragraphs (a), (b), (c) and (d) of section 305(1) were plainly alternative provisions. An Act of Adjournal did not require to meet the tests provided by all of those paragraphs, but only by one of them. In the present case, the Act of Adjournal concerned was authorised by paragraph (a) and paragraph (b). It had not been demonstrated by counsel for the panel, under reference to paragraph (b), that the making of the Act of Adjournal concerned was not "necessary or expedient" to the carrying out of the purposes and accomplishing the objects of paragraph 37 of Schedule 6 to the Scotland Act 1998. Plainly the Lords Commissioners of Justiciary had "power to make provision for regulating the procedure before any court", derived from section 305 of the Criminal Procedure (Scotland) Act 1995. Paragraph 37 elaborated that power by making express provision for that power to include the power "for prescribing the stage in the proceedings at which a Devolution Issue is to be raised or referred," and "for determining the manner in which and the time within which any intimation or notice is to be given." In relation to the issue raised concerning the time at which Schedule 6 of the Scotland Act 1998 came into force, it was submitted that the reference to that paragraph in the preamble to the Act of Sederunt might be unnecessary. In any event, it might be that the reference in section 305(1)(b) to "any enactment" was not necessarily a reference to an enactment actually in force at the time of the exercise of the power. It was conceivable that the power conferred by section 305(1)(b) could be exercised in relation to an enactment made, but not yet brought into force. Indeed, if that was not Parliament's intention, there could be a lacuna between the coming into force of some particular enactment and the making of an appropriate associated Act of Adjournal in relation to that enactment.

It was part of the submission of counsel for the panel that, in some way, the Act of Adjournal under consideration "took away a Convention right". That was an unsound proposition. It was plain from the Act of Adjournal that no Convention right was being taken away. All that was being done was that the manner of the exercise of a Convention right was being regulated in the interests of the orderly and expeditious administration of criminal justice. It was necessary to distinguish between procedure and substantive rights, which counsel for the panel had failed to do. What was contemplated in paragraph 37 of Schedule 6 to the Scotland Act 1998 and in the Act of Adjournal was the introduction of time-tabling for the ventilation of "Devolution Issues". It was plain that counsel for the panel had adopted an erroneous approach to the matter of Convention rights, as appeared from Doorson v The Netherlands (1996) 22 EHRR 330, at p.357, para.67. There the European Court of Human Rights reiterated that the admissibility of evidence was primarily a matter for regulation by national law and as a general rule it was for the national courts to assess the evidence before them. The court's task under the Convention was not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair. It was necessary therefore to look at the whole matter in the round. Procedure was essentially a matter for this court and could not be attacked upon the basis of Convention rights, unless it was so strict as to have a material impact upon the substance of those rights. The seven day notice period provided for by Rule 40.2.(1) of the Act of Sederunt was not of that character. If, for any reason, a party to criminal proceedings could not raise a "Devolution Issue" in conformity with Rule 40.2.(1) within the prescribed period, then they could seek to do so under Rule 40.5.(1) "on cause shown". It had to be assumed that the court would act reasonably in relation to that provision.

In any event, the Act of Adjournal under consideration was made by the Lords Commissioners of Justiciary. They were not part of the Scottish Executive, as defined in section 44 of the Scotland Act 1998. Accordingly, the provisions of section 57(2) of that Act had no application to them. No argument had been advanced on behalf of the panel that the European Convention on Human Rights was a relevant consideration which a decision maker, such as the Lords Commissioners of Justiciary should have taken into account on the basis of Wednesbury principles.

The Advocate Depute submitted that there was no substance in the point made by counsel for the panel relating to the status of the Crown list of productions annexed to the indictment. There was no reality in a supposed distinction between a list of productions and an attempt to introduce a document so listed in evidence. The panel could readily have concluded that, if a document, such as the transcript concerned, was listed as a Crown Production, then it would be used in evidence. If there was some objection to that course, then that situation could have been appreciated upon service of the indictment. There ought to have been no difficulty in giving notice of an intention to raise a "Devolution Issue" in relation thereto, in conformity with Rule 40.2.(1) of the Act of Adjournal. If a contrary view were taken, the consequence would be that criminal trials on indictment would be likely to be constantly disrupted by arguments relating to "cause shown", under Rule 40.5.(1) of the Act of Adjournal and by intimations to the Advocate General. In relation to the suggestion that the necessity of showing cause for a late raising of a "Devolution Issue" was a denial of a Convention right, it was submitted that that was not so; the provisions of Rule 40.5.(1) were simply part of the orderly regulation of criminal procedure.

Counsel for the panel, in reply, said that there were difficulties for a panel in relation to operating the provisions of Rule 40.2.(1), because, while Crown productions would be listed in the indictment served, the panel might not necessarily have access to the productions themselves. The rights conferred by section 68(2) of the Criminal Procedure (Scotland) Act 1995 were unclear in extent. In the case of Reinhart v France (1998) 28 E.H.R.R. 59, at para.123 of the Commission's ruling, it had been emphasised that the Convention conferred "practical and effective rights", not illusory ones. In relation to the position of the Lords Commissioners of Justiciary, as decision makers, it was necessary for them to have in mind convention rights in the making of an Act of Adjournal, as a relevant consideration.

In the light of the foregoing arguments, we have reached the conclusion that the Act of Adjournal (Devolution Issues Rules) 1999 was made intra vires of the Lords Commissioners of Justiciary. In the preamble to the Act of Adjournal, it is narrated that it was made under and by virtue of the powers conferred by section 305 of the Criminal Procedure (Scotland) Act 1995, an Act of the Parliament of the United Kingdom, paragraph 37 of Schedule 6 to the Scotland Act 1998, and certain other powers. Accordingly, in order to see whether it has been lawfully made, it is necessary to examine the scope of those statutory enactments. In section 305(1), it is provided that the High Court may by Act of Adjournal do certain things set forth in paragraphs (a) to (d). It is, in our opinion, beyond argument that the powers conferred in those separate paragraphs are alternative bases for the lawful making of Acts of Adjournal. It is quite obvious from the terms of those separate paragraphs that that is so, since they deal with separate and, to some extent, mutually exclusive areas of competence. For example, looking at the terms of paragraphs (c) and (d), it is plain that their subject matter, related as it is to certain financial matters, comprises completely different areas of activity from the subject matter of paragraphs (a) and (b), which are concerned with criminal procedure in one way or another.

In these circumstances, in our opinion, it is necessary to examine the provisions of paragraphs (a) and (b) separately, with a view to deciding whether their provisions authorise the making of the Act of Adjournal under consideration. Looking at the terms of paragraph (a) and looking at the subject matter of that Act of Adjournal, we conclude that authority to make it is available in that paragraph, which enables the High Court to "regulate the practice and procedure in relation to criminal procedure". In our opinion, that is what has been done in the Act of Adjournal concerned.

Turning to the terms of paragraph (b) of section 305(1), we note that it confers authority to "make such rules and regulations as may be necessary or expedient to carry out the purposes and accomplish the objects of any enactment... in so far as it relates to criminal procedure." In considering the significance of that paragraph in the present context, the question arises of what "enactment" might be involved in the making of the Act of Adjournal concerned. In our view, looking at the preamble to it, the "enactment" is the relevant part of Schedule 6 to the Scotland Act 1998. Paragraph 37 of that Schedule clearly elaborates inter alia the general powers conferred on the High Court of Justiciary by the provisions of section 305(1) of the Criminal Procedure (Scotland) Act 1995 in relation to criminal procedure expressly with reference to the time-tabling and handling of "Devolution Issues". It was argued that the provisions of Schedule 6 and, in particular, paragraph 37, could not be prayed in aid in support of the validity of the Act of Adjournal, because those provisions did not come into force until 6 May 1999, whereas the Act of Adjournal was made on 4 May 1999, the date on which the issue of vires had to be tested. With that submission we do not agree. It appears to us that the terms of section 305(1)(b) can properly be read as a reference to "any enactment....in so far as it relates to criminal procedure", albeit that that enactment may not be in force at the time of the purported exercise of the power. When the Act of Adjournal under consideration was made, Schedule 6 had been enacted and was therefore an "enactment". Although it was not then in force, it was brought into force on the same date as the Act of Adjournal, namely 6 May 1999. If any other view were to be taken, the result would be that a lacuna would inevitably exist during the period from the moment when Schedule 6 came into force until the moment when subsequently an Act of Adjournal relating to its subject matter could be made and brought into force. For these reasons, we consider that the Act of Adjournal was authorised by the terms of section 305(1).

Although counsel for the panel did not initially make the submission, at a later stage in the discussion before us, with some encouragement from the bench, it was tentatively argued that the Lords Commissioners of Justiciary, in making the Act of Adjournal concerned, ought to have had in contemplation the Convention right enshrined in Article 6, as a relevant matter according to Wednesbury principles. While the Lords Commissioners of Justiciary, in our opinion, have no obligation to act consistently with the Convention by virtue of anything contained in the Scotland Act 1998, we do consider that Article 6 Convention rights may properly be seen as a relevant matter to be taken into account by them in the making of the Act of Adjournal concerned. One of the objectives of the Scotland Act is to ensure that the Scottish Executive, including the Lord Advocate, does not do any act which is incompatible with the Convention rights, and so engage the responsibility of the United Kingdom under international law. That is apparent from section 57(2) in particular (subject to the exception provided in section 57(3)). The Act of Adjournal regulates the procedure to be followed in criminal proceedings when an issue arises as to whether the Scottish Executive (including the Lord Advocate) has so acted. If the Convention rights were to be disregarded in the framing of the Act of Adjournal, the consequence might be that breaches of the Convention by the Scottish Executive affecting criminal proceedings could not be raised in those proceedings, for reasons which were themselves indefensible under the Convention. That is a possibility which, in our opinion, a reasonable person making the Act of Adjournal would, prima facie at least, wish to avoid. We also note that, at the time when the Act of Adjournal was made, the Human Rights Act 1998 had been enacted, although not brought into force. Because of the terms of section 22(4) and 7(1)(b) of the Human Rights Act 1998, the provisions of that Act would be potentially applicable to any proceedings brought by or at the instigation of a public authority, whenever the act complained of took place. Accordingly, if the Act of Adjournal was not framed in conformity with the Convention, the disconformity would be known, from the outset, to be something which would be capable of being founded upon in the event that those provisions of the Human Rights Act were to be brought into force.

In these circumstances, it is appropriate next to consider whether, as submitted by counsel for the panel, it is evident from the terms of the Act of Adjournal under consideration that Article 6 Convention rights were ignored in its making, with which it is incompatible. The conclusion which we have reached on that issue is that there is no indication that that is so. We cannot agree with counsel for the panel that, in some way, the imposition of the time-table for the raising of "Devolution Issues" in Rule 40.2.(1) and 40.5.(1) narrows or destroys the Convention rights of any accused person. Following the approach desiderated in Doorson v The Netherlands, the question must be whether the proceedings as a whole are fair in any particular case. It seems to us quite fair and legitimate that, for the purposes of securing the expeditious and orderly administration of criminal justice, in which there is plainly a public interest, a time-table such as that specified should be imposed, provided that means are made available whereby any unavoidable difficulties encountered in adhering to that time-table can be obviated. In our opinion, the provisions of the Act of Adjournal under consideration achieve that end. We see no basis for concluding that the period of seven days after the service of an indictment specified in Rule 40.2.(1) would render Article 6 Convention rights illusory, or be likely to create insuperable difficulties for an accused person. Upon the service of the indictment, the accused person will have notice of the evidence, in the form of documentary material and witnesses, which, it ought to be assumed, is being relied upon by the prosecutor. If any difficulty should arise in reaching a conclusion as to whether a "Devolution Issue" should be raised in relation to the use of that evidence, Rule 40.2.(1) does not create an absolute barrier to the taking of that course at a later stage. Rule 40.5.(1) specifically empowers the court to allow the raising of a "Devolution Issue" in any proceedings at a later stage on cause shown. Provided that the court acts fairly in considering cause shown, which we think can be assumed, we contemplate no problem for an accused person. We do not see the provisions of the Act of Adjournal as being in any way disproportionate or unreasonable in relation to the need to achieve criminal proceedings which, as a whole, are fair, but which are also conducted in an expeditious and orderly manner. We consider that the provisions of the Act of Adjournal, as regards the desiderated time-table for the raising of a "Devolution Issue", do not differ in principle from other time-tables which form part of our criminal procedure, in relation, for example, to the holding of preliminary diets in terms of section 72 of the Criminal Procedure (Scotland) Act 1995 and the lodging of special defences, et cetera, in terms of section 78 of that Act. In relation to those matters also, the statute authorises the exercise of flexibility in relation to time-tabling, in order to avoid unfairness or injustice.

In the whole circumstances, we conclude that the trial judge's further consideration of the objection taken by counsel for the panel should proceed upon the premise that the Act of Adjournal under consideration is valid and intra vires of its makers.