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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> ANDREW STEVENS v. HER MAJESTY'S ADVOCATE [2001] ScotHC 119 (09 November 2001)
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Cite as: [2001] ScotHC 119
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ANDREW STEVENS v. HER MAJESTY'S ADVOCATE [2001] ScotHC 119 (9th November, 2001)

HIGH COURT OF JUSTICIARY

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LADY PATON

in the cause

ANDREW STEVENS

Minuter

against

HER MAJESTY'S ADVOCATE

Respondent:

________________

 

 

Minuter: Ogg, Q.C., Wheatley & Co.

Respondent: McCreadie, Advocate Depute

9 November 2001

Introduction

[1] The Minuter, Andrew Stevens (date of birth 20 August 1975) was charged on a summary complaint as follows:

"On 25 May 2001 at A907 Stirling Alloa road you... being a person to whom section 58 of the aftermentioned Act applies did have or recently have in your possession tools or other objects, namely two short lengths of hosepipe, a petrol can, screwdrivers, pliers, stanley knife, torch and gloves from the possession of which it may reasonably be inferred that you intended to commit theft or had committed theft and were unable to demonstrate that your possession of said tools or objects was not for the purposes of committing theft; contrary to the Civic Government (Scotland) Act 1982 section 58(1) and (4)".

[2] Section 58 of the Civic Government (Scotland ) Act 1982 (c.45) provides inter alia:

"(1) Any person who, being a person to whom this section applies -

    1. has or has recently had in his possession any tool or other object from the possession of which it may reasonably be inferred that he intended to commit theft or has committed theft; and
    2. is unable to demonstrate satisfactorily that his possession of such tool or other object is or was not for the purposes of committing theft

shall be guilty of an offence ...

(4) This section applies to a person who has two or more convictions for theft which are not, for the purposes of the Rehabilitation of Offenders Act 1974, spent convictions.".

[3] The Minuter appeared at Stirling Sheriff Court on 28 May 2001. He pled not guilty. The court adjourned the case to 22 June 2001 for trial, and assigned 13 June 2001 as an intermediate diet. Bail was refused, and the Minuter was detained in custody.

[4] At the intermediate diet on 13 June 2001, the Minuter presented a minute seeking a declaration of incompatibility in terms of section 4 of the Human Rights Act 1998 (c.42). The Minuter's argument was that the requirement in section 58 of the Civic Government (Scotland) Act 1982 (that the accused demonstrate that the possession of the tools or objects were not for the purposes of committing theft) infringed the Minuter's right to silence and also inverted the onus of proof, contrary to Article 6(2) of the European Convention on Human Rights. In view of the terms of section 4(5)(d) of the Human Rights Act 1998, the Minuter requested that the issue of incompatibility be remitted to the High Court of Justiciary.

[5] There appeared to be no specific rules or procedure providing a mechanism for a remit to the High Court. Unlike devolution issues arising in the sheriff court, which were subject to the procedure set out in Chapter 40 of the Act of Adjournal (Criminal Procedure Rules) 1996, it was not clear whether or in what way the minute should be remitted to the High Court. In all the circumstances, the sheriff refused the minute as incompetent. Leave to appeal was refused. A further intermediate diet was set for 20 June 2001. Bail was granted.

[6] On 15 June 2001, the Minuter lodged with the Justiciary Office of the High Court of Justiciary a new minute, a "Minute in Application", seeking a declaration of incompatibility in respect of section 58 of the Civic Government (Scotland) Act 1982. The minute came before me in the course of miscellaneous criminal business on Friday 13 July 2001. I took the view that any discussion in court concerning the minute fell within the terms of paragraph 41.3 of the Act of Adjournal (Criminal Procedure Rules) 1996. In the absence of any rule or practice note specifying the persons to whom notice should be given (see Renton & Brown, Criminal Procedure, paragraph B1.78/3, April 2001 release), I ordered intimation to be made to the Lord Justice General and to the Advocate General in form 41.3-A. I ordered answers, including any pleas to the competency or pleas of forum non conveniens, to be lodged within 21 days of intimation. I also ordered notes of argument to be lodged within 21 days after the last date for lodging answers.

[7] By letter dated 8 August 2001 addressed to the Deputy Principal Clerk of Justiciary, the Advocate General advised that she did not wish to be joined as a party to the proceedings. The Lord Justice General made no formal response.

[8] The Crown lodged Answers, including pleas-in-law in the following terms:

    1. This application being incompetent and without foundation in Scots law or procedure should be dismissed.
    2. Esto the application is competent, it is incompetent to proceed before a single Lord Ordinary and should instead be heard and determined by the Court of Appeal.
    3. Esto this application is competent, it is without merit and should be dismissed.

[9] On 11 September 2001 I heard argument in relation to the competency of the application. It was agreed that, if the application survived the attack on competency, the merits of the application should be argued on another day.

Relevant provisions of the convention and relevant statutes

[10] Article 6 of the European Convention on Human Rights concerns the right to a fair trial. The Article does not expressly refer to a right to remain silent: however as the European Court pointed out in Saunders v. United Kingdom (1996) 23 E.H.R.R. 242, at paragraph 68:

"... although not specifically mentioned in Article 6 of the convention, the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 ...".

[11] Subsections(2) and (3) of section 57 of the Scotland Act 1998 (c.46) came into effect on 6 and 20 May 1999 respectively (S.I. 1998 No.3178) and provide:

"(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the convention rights or with community law.

(3) Subsection (2) does not apply to an act of the Lord Advocate -
    1. in prosecuting any offence, or
    2. 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."

[12] Schedule 6 to the Scotland Act 1998, which also came into effect on 6 May 1999, provides inter alia:

"1. In this Schedule "devolution issue" means -

... (d) a question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the convention rights or with community law ...".

[13] The Human Rights Act 1998 came into force on 2 October 2000 (S.I. 2000 No.1851). The Act provides inter alia:

"4. (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a convention right.

(2) If the court is satisfied that the provision is incompatible with a convention right, it may make a declaration of that incompatibility ...
    1. In this section "court" means -

      2. ... (d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session; ...

    2. A declaration under this section ("a declaration of incompatibility") -
      1. does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
      2. is not binding on the parties to the proceedings in which it is made ...

6. (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 -
      1. as a result of one or more provisions of primary legislation, the authority could not have acted differently; or
      2. 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 ...

10.(1) This section applies if -
    1. a provision of legislation has been declared under section 4 to be incompatible with a convention right ...

(2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility ...".

Submissions relating to the competency of the minute

[14] At the outset, the Advocate Depute stated that the Crown did not contend that the minute was incompetent because a sheriff had already considered a minute relating to incompatibility, had refused it as incompetent, and had refused leave to appeal. The Crown accepted that in terms of section 4(5)(d) of the Human Rights Act 1998, a declaration of incompatibility could be made only by "the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session". The Crown also accepted that section 4, properly construed, could not be read as restricting any challenge based on incompatibility to proceedings initiated in the High Court of Justiciary, for to do so might result in questionable legislation remaining unchallenged simply because proceedings were initiated in the lower courts.

[15] The Advocate Depute submitted that the primary legislation, namely sections 4 and 10 of the Human Rights Act 1998, did not define the persons who could raise the issue of incompatibility. Nor did the primary legislation lay down a procedure whereby a challenge of incompatibility could be made. There appeared to be no secondary legislation setting out the procedures to be followed when making a challenge to compatibility in a summary case. The preliminary diet procedure provided for by section 72 of the Criminal Procedure (Scotland) Act 1995 related to High Court trials, and did not extend to summary complaints. Section 71 of the 1995 Act was not relevant. Nor, prima facie, did a challenge to compatibility constitute an objection to competency or relevancy within section 144(4) of the 1995 Act. The sheriff was therefore quite correct in concluding that there appeared to be no mechanism for referring the matter to the High Court of Justiciary. By contrast, there were clear procedural rules relating to the referral of devolution issues raised in the lower courts to the High Court of Justiciary. Chapter 40 of the Act of Adjournal (Criminal Procedure Rules) 1996 provided procedure governing devolution issues raised in summary proceedings. For example, Rule 40.7, issued to provide a mechanism for the procedure envisaged in paragraph 9 of Schedule 6 to the Scotland Act 1998, permitted a sheriff court or a district court to refer a devolution issue to the High Court of Justiciary.

[16] Against that background, the Advocate Depute submitted that the challenge which the Minuter wished to make was in fact a devolution issue. The relevant devolution issue procedure should have been adopted. In particular, a devolution minute should have been lodged before any plea was tendered, in terms of Rule 40.3 of the Act of Adjournal. The Minuter's challenge was a devolution issue as the Lord Advocate sought to prosecute the Minuter on the basis of legislation which (it was claimed) infringed the European Convention on Human Rights. In so doing the Lord Advocate was performing an "act ... incompatible with ...the convention rights ..." in terms of section 57(2) of the Scotland Act 1998: cf. dicta of Lord Hope of Craighead in Stott v. Brown, 2001 S.C.L.R. 62. In two recent criminal appeal cases, Mills v. HMA, and Cochrane v. HMA, heard by the High Court of Justiciary sitting as an appeal court in July 2001, the Advocate General had argued that any human rights issue falling within the definition in section 57 of the 1998 Act must be presented as a devolution issue. If the Advocate General's argument were correct, it was mandatory for someone such as the Minuter to raise the issue by way of a devolution minute.

[17] In response, senior counsel for the Minuter argued that the matter was not a devolution issue. What was criticised was a piece of legislation, not the act of a member of the executive. It was accepted that, if the executive or the Lord Advocate failed to take appropriate steps after a court had declared legislation incompatible, that might be an "act" within section 57(2) resulting in a devolution issue: see paragraph 1(e) of Schedule 6 to the Scotland Act 1998. Where however the Lord Advocate was acting in accordance with legislation which had not yet been declared to be incompatible, it could not be said that his act was incompatible with convention rights. Stott v. Brown was not in point. That case concerned events which occurred before the Human Rights Act 1998 had been fully brought into effect in Scotland. There had been no option at that time but to argue the point as a devolution issue. Moreover Stott v. Brown concerned the act of the procurator fiscal in leading evidence in court, establishing that the accused, Miss Brown, had made a certain reply to police officers. In the present case, the Minuter had not made a reply or comment to police officers. The question in issue therefore was not any act of the procurator fiscal, but rather whether section 58 of the 1982 Act would force the Minuter to give evidence in his trial, when he might otherwise have wished to exercise his right to remain silent. The present case was based squarely upon the Human Rights Act, and not any act of the Lord Advocate. The Minuter was entitled in terms of section 4 of the Human Rights Act to have the compatibility of section 58 of the 1982 Act tested. His entitlement in terms of section 4 was perhaps more clearly seen if one envisaged a case in which the Lord Advocate and the prosecution service were never involved. For example, if the police arrested and detained the Minuter in terms of section 58 of the 1982 Act, but ultimately the Minuter was not charged. In such circumstances, the Minuter would be entitled to seek a declaration of incompatibility in terms of section 4 of the Human Rights Act, even although he was unable to raise the matter as a devolution issue in terms of section 57 of the Scotland Act, there being no involvement of the executive. The Minuter was not obliged to raise the matter as a devolution issue. He was entitled to raise the matter in terms of section 4 of the Human Rights Act. The fact that no specific procedures had been laid down by either primary or secondary legislation did not render the course adopted by the Minuter incompetent.

Whether a devolution issue

[18] As Lord Hope of Craighead and Lord Clyde observed in Stott v. Brown, 2001 SCCR 62 at pp.90-92 and 99-100, the question whether or not an issue falls within the definition "devolution issue" must be determined by reference to Part I of Schedule 6 to the Scotland Act 1998. Paragraph 1(d) of Schedule 6 (quoted above) is relevant in the present case. The Lord Advocate is a member of the Scottish Executive. It was the Lord Advocate and those acting on his behalf who brought the prosecution under section 58 of the Civic Government (Scotland) Act 1982.

[19] In my view, the bringing of such a prosecution is an act of the Lord Advocate within section 57(2) and also an exercise of a function within paragraph 1(d) of Schedule 6 to the Scotland Act 1998, just as much as the leading of evidence in a trial is an act or an exercise of a function: cf. dicta of Lords Hope and Clyde, cit. sup., and of Lord Coulsfield at paragraph [10] of Mills and Cochrane v. HMA, July 13, 2001 (written judgement made available in early October 2001). In the circumstances of the present case, it appears to me that the challenge to section 58 of the Civic Government (Scotland) Act 1982 (as being allegedly incompatible with convention rights) impliedly includes a challenge that the Lord Advocate, by starting and continuing a prosecution founded upon section 58, acted or exercised a function in a way incompatible with convention rights. Thus the present challenge is in my view both a human rights question in terms of section 4 of the Human Rights Act 1998, and also (because of the involvement of the Lord Advocate, a member of the Scottish Executive) a devolution issue.

[20] In all the circumstances I am satisfied that paragraph 1(d) of Schedule 6 to the Scotland Act 1998 is applicable and that the issue raised in the current Minute in Application is a devolution issue.

Procedural consequences of classification as a devolution issue

[21] Chapter 40 of the Act of Adjournal (Criminal Procedure Rules) 1996 applies to devolution issues. Rule 40.3 provides inter alia:

"Raising devolution issues: summary proceedings
    1. Where a party to summary proceedings proposes to raise a devolution issue he shall, before the accused ... is called upon to plead, give notice of his intention to raise the devolution issue in Form 40.3A to the clerk of court; and a copy of the notice shall, at the same time, be served on other parties to the proceedings and on the relevant authority ...
    1. Where notice is given under paragraph (1) the court, unless it determines that no devolution issue arises in the proceedings, shall adjourn the case under section 145 of the Act of 1995...".

[22] As indicated above, the written judgement of the Court of Appeal in Mills v HMA and Cochrane v HMA became available in early October 2001. That judgement confirmed that, where a devolution issue arises, Chapter 40 of the Act of Adjournal (Criminal Procedure Rules) 1996 automatically applies. The coming into force of the Human Rights Act 1998 on 2 October 2000 did not affect the automatic application of Chapter 40. As was pointed out at paragraph [19] of Mills and Cochrane:

"If the effect of the provisions [of the Scotland Act 1998] is that appeals are open to the Privy Council on matters involving questions of Scots criminal law, that, in our view, must simply be accepted. It does not provide any reason to reject the argument based on the plain terms of the legislation."

Indeed it is arguable that it is appropriate that appeals are open to the Privy Council when declarations of incompatibility are sought in relation to primary legislation enacted by Parliament at Westminster.

[23] In the present case, the Minuter has not complied with Chapter 40. He has not lodged a devolution minute. His Minute in Application is in my view incompetent.

[24] A question may arise as to whether the court's dispensing power in Rule 40.5 should be exercised, bearing in mind that some uncertainty existed amongst practitioners as to the correct procedure to be adopted during the period following the coming into force of the Human Rights Act 1998 on 2 October 2000, and prior to the judgement in Mills and Cochrane becoming available in early October 2001: see, for example, an article "Relationship between the Scotland Act and the Human Rights Act" by Iain Jamieson, 2001 S.L.T. (News) 431; paragraph [16] of Stott v Brown, cit. sup.; Renton & Brown, Criminal Procedure, Vol.2, paragraph B1.78/3 (April 2001 release) commentary on Chapter 40 of the Act of Adjournal (Criminal Procedure Rules) 1966.

[25] The dispensing power in Rule 40.5 is in the following terms:

"(1) No party to criminal proceedings shall raise a devolution issue in those proceedings except as in accordance with Rule 40.2, 40.3 or 40.4, unless the court, on cause shown, otherwise determines ..."

[26] In the present case, an accused in a summary trial seeks to have primary legislation declared incompatible with Article 6 of the convention. A significant feature of such a procedure is that, even if a declaration of incompatibility were to be pronounced by the High Court of Justiciary, the accused's trial and its outcome would be unaffected: see section 4(6) of the Human Rights Act 1998, quoted above.

[27] Reed and Miller, Human Rights Act Service, comment upon the effect of section 4(6) as follows:

"As subsection (6) makes clear, [a declaration of incompatibility] is not of immediate legal effect: it does not render legislation invalid and is not even "binding on the parties to the proceedings in which it is made" ... a declaration of incompatibility is not truly directed at the particular litigants (indeed, it is not binding on them). The declaration of incompatibility is a unique order which engages, above all, the public interest, especially by paving the way for a remedial order to be made. In rare cases it may be in the public interest for incompatible legislation to be kept in force. The decision to do this will almost invariably be best left to government and Parliament, which are not obliged to act on a declaration of incompatibility ...".

[28] Lester and Pannick, Human Rights Law and Practice, note at paragraphs 2.4.4 and 2.4.5:

"The power [to make a declaration of incompatibility] is ... confined [to specified higher courts] because of the constitutional importance of such a declaration, and also because the government did not believe that trials should be upset, or potentially upset, by declarations of incompatibility ... A declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given. Nor is it binding on the parties to the proceedings in which it is made."

[29] A declaration of incompatibility is therefore a rather unusual procedure in that, although the issue of incompatibility may be raised by a particular individual in criminal proceedings relating to him personally, his challenge cannot constitute a plea in bar of trial, and any ultimate declaration of incompatibility is of no effect in his trial. The individual's trial is expected to proceed in the normal way to its ultimate conclusion.

[30] Against that background, I am not persuaded that cause has been shown such that the dispensing power in Rule 40.5 should be exercised in this case. I accordingly sustain the first plea-in-law for the respondent, and dismiss the Minute in Application as incompetent.

Submissions relating to necessity for bench of at least three judges

[31] While the above is sufficient for disposal of the Minute in Application, it may be appropriate that I express views (obiter) on further submissions made by the Advocate Depute, to the effect that, esto the Minute in Application was competently before the court, a declaration of incompatibility was such a grave and weighty matter that it should be determined not by a single Lord Commissioner of Justiciary, but by a bench of at least three judges. Reference was made to an article in the Stair Encyclopaedia, Vol.6, para.866; the Criminal Procedure (Scotland) Act 1995, sections 1(4) and (5); 103; and 118; and Express Newspapers plc, 1999 S.C.C.R. 262, particularly dicta at pp.270B, where the Lord Justice General (Lord Rodger of Earlsferry) observed:

"... we accept that, in cases not covered by the 1995 Act provisions, it must be for the court to determine the appropriate quorum for the hearing of classes of business."

[32] The Advocate Depute submitted that, as there was no provision in the 1995 Act expressly covering declarations of incompatibility, the court should determine the appropriate quorum for such a class of business as three or more judges. Nevertheless, the Advocate Depute conceded that there was nothing in the wording of section 4 of the Human Rights Act 1998 to suggest that a single judge was insufficient. He drew attention to the relevant Parliamentary debate on 18 November 1997 in Hansard, cols.550-551, and very fairly accepted that the debate appeared to support the defence contention that a declaration of incompatibility could be made by a single judge sitting otherwise than as a trial court in the High Court of Justiciary. The Advocate Depute also pointed out that if an issue of incompatibility of legislation were to arise at a preliminary diet in a High Court case in terms of section 72 of the Criminal Procedure (Scotland) Act 1995, a single judge could deal with the question. But it was the Crown's contention, with particular reference to Express Newspapers plc, cit. sup., that the issue of incompatibility of legislation was so weighty that this court should take the view that the matter should properly be referred to at least three judges. It was pointed out that the procedural path for any appeal against a decision on compatibility was not clear. In contrast with devolution minutes, where there was an appeal to the Privy Council and indeed a means of referring the matter directly to the Privy Council at the outset, it was not clear what would constitute the correct appeal procedure for the present application.

[33] Finally, it was submitted that, even if it were competent for a single judge to decide the question of compatibility, it was open to that single judge to invite one or more judges to assist in the hearing of argument and the determination of the issue: section 1(5) of the Criminal Procedure (Scotland) Act 1995. Considerations such as those outlined in Express Newspapers plc might be relevant in making the decision whether or not to invite additional judges to assist.

[34] Senior counsel for the Minuter responded by contending that it was for a single Lord Commissioner of Justiciary to hear argument on the merits and to decide the question of compatibility. There was nothing in section 4 of the Human Rights Act 1998 to suggest that there should be more than one judge. Section 307 of the Criminal Procedure (Scotland) Act 1995 defined "High Court" and "Court of Justiciary" as meaning "High Court of Justiciary and shall include any court held by the Lords Commissioners of Justiciary, or any of them [italics added]." The Hansard debate wholly supported the Minuter's position. The exchange between Lord Mackay of Drumadoon and the Lord Chancellor made it clear that Parliament intended that a single Lord Commissioner of Justiciary could determine the question of incompatibility in a criminal case, just as a single Lord Ordinary could determine such a question in a civil case in the Court of Session. The crucial restriction was that a Lord Commissioner of Justiciary sitting as a trial court could not deal with such a question: but Lords Commissioners of Justiciary often sat as single judges dealing with criminal matters yet not sitting as a "trial court": for example, in the context of bails, recovery of documents, and other matters. Senior counsel understood that the Lord Justice General had in fact allocated the present Minute in Application to a single judge, and not to a larger bench.

[35] In relation to the suggestion that a single judge could and should invite other judges to form a larger bench, senior counsel reiterated that one judge should deal with the question of incompatibility of legislation in criminal cases, just as one judge could determine such a matter in civil cases.

[36] I agree with senior counsel for the Minuter that there is nothing in section 4 of the Human Rights Act 1998 or section 307 of the Criminal Procedure (Scotland) Act 1995 to suggest that a bench of more than one judge must be convened in order to determine whether legislation is compatible with convention rights. In my view, section 4 of the 1998 Act, properly construed, envisages questions of compatibility of legislation being determined by a Lord Commissioner of Justiciary sitting alone. The relevant parliamentary debate, as recorded in Hansard, tends to support such an approach. There are no Acts of Adjournal suggesting otherwise.

[37] In my view therefore, had the application for a declaration of incompatibility been competently before the High Court of Justiciary, it could have been heard by a Lord Commissioner of Justiciary sitting alone.

[38] In relation to the court's power to invite additional judges to hear the matter, section 1(5) of the Criminal Procedure (Scotland) Act 1995 provides:

"(5) Without prejudice to subsection (4) above ["Any Lord Commissioner of Justiciary may preside alone at the trial of an accused before the High Court"], in any trial of difficulty or importance it shall be competent for two or more judges in the High Court to preside for the whole or any part of the trial."

I consider that the power so defined relates to the High Court of Justiciary sitting as a trial court, which is of course the very capacity in which the High Court of Justiciary cannot hear or determine disputes relating to the compatibility of legislation with convention rights. Accordingly, had the Minute in Application been competently before the High Court of Justiciary, I do not consider that the power contained in section 1(5) would have been available.

Conclusion

[39] For the reasons given above, I shall sustain the first plea-in-law for the respondent, and dismiss the Minute in Application.

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