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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> ANNIE GOURLAY OR DICKSON v. HER MAJESTY'S ADVOCATE [2001] ScotHC 28 (10th May, 2001)
URL: http://www.bailii.org/scot/cases/ScotHC/2001/28.html
Cite as: [2001] ScotHC 28, 2001 JC 203, 2001 SCCR 397, 2001 GWD 16-595, 2001 SLT 674
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ANNIE GOURLAY OR DICKSON v. HER MAJESTY'S ADVOCATE [2001] ScotHC 28 (10th May, 2001)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Cameron of Lochbroom Lord Milligan Lord Hamilton Lord Macfadyen Lord Weir
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Appeal No: C609/99 OPINION OF LORD CAMERON OF LOCHBROOM in NOTE OF APPEAL by ANNIE MULVEY HARKINS GOURLAY or DICKSON Appellant; against HER MAJESTY'S ADVOCATE Respondent:
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Appellant: Gebbie; Bovey & Bovey
Respondent: A. Smith, Q.C., A.D.; Crown Agent
10 May 2001
[1] After trial in the High Court in Glasgow the appellant was unanimously found guilty of a charge that on 17 December 1997 at Flat 7, 38 Ayr Street, Glasgow and in a motor car registered number M887 EGG then parked at the parking area at Ayr Street, Glasgow, she was concerned in the supplying of cocaine, a class A drug, in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971.
[2] At the trial evidence was given first of all by surveillance officers. It appeared that the appellant had been cohabiting with Mr. Dickson, whom she has subsequently married. At the material time Dickson was being detained for drug dealing offences. On the day in question, the appellant's brother, Harkins, was observed to drive his car into the parking area behind the appellant's home and to stop it close to a car belonging to Dickson. The appellant was then seen to come downstairs from her house carrying what was a travel bag on wheels. This was then given by her to Harkins, who placed the bag in the boot of Dickson's car. Harkins thereafter drove off in his own car.
[3] The next chapter of evidence came from customs officers. They spoke to going to the appellant's house with a writ of assistance shortly after the incident observed by the surveillance officers. They asked about the car. The appellant was reluctant to reply. They asked her where the keys of the car were, and after they told her that if she did not give them the keys they had power to break into and search the car, the appellant handed over the keys which had been on a window sill. The officers and the appellant went down to the car. The boot was opened and the bag which the appellant had carried downstairs was found there. It was opened and a large quantity of drugs was revealed. The officers asked the appellant "What's this?" but she said nothing. She was then cautioned.
[4] The final chapter of evidence comprised statements made by the appellant. The first of these was in the form of a tape-recorded interview (Crown production 19) which took place in Baird Street Police Office on 17 December 1997 involving the appellant and two customs officers. At the outset of the interview the appellant was cautioned. She was told that she was going to be asked questions about the trafficking of controlled drugs, that she was not bound to answer but that if she did, her answers would be tape-recorded and might be noted and used in evidence. The appellant indicated that she understood this. During this interview the appellant indicated at various points throughout it that she wished to have a lawyer present. She was advised that she had the right to intimation to a lawyer. She intimated that she did not wish to say more until a lawyer was present. She was further advised that while questions would be asked of her, she was perfectly within her rights in choosing not to answer them. Throughout most of the interview the appellant declined to say anything. At most she conceded that only she and Dickson had keys to the flat, that there was only one set of keys to the car and that only she and Dickson had access to it. There was also a suggestion in evidence that she had apparently not shown any surprise when told that there was amphetamine in the case. The second of the statements was given in the course of judicial examination, the transcript of which was read over to the jury on defence motion. Otherwise no evidence was led for the defence. This transcript contained the material for the defence case to which reference was made in the trial judge's charge. This was to the effect that the appellant had had nothing to do with the bags and that all that she had done was to come down to the car park to give her brother some tools or a tool.
[5] The appellant has appealed against conviction on a number of grounds. These can conveniently be considered under three distinct heads. The first relates to the raising of a devolution issue during the course of the trial. The second is directed to the sufficiency of the evidence led for the Crown at the trial. The third is related to the directions given to the jury by the trial judge. I consider each head and the grounds of appeal relating to it separately.
Devolution issue
[6] On the third day of the trial, 23 August 1999, and during the course of examination in chief of one of the customs officers who had been present at the tape-recorded interview with the appellant in Baird Street Police Office relative to that interview, defence counsel, Mr. Gebbie, objected to evidence being led about the interview on the grounds that it was conducted without there being a solicitor present to represent the accused despite her desire to have a solicitor present and because her request to have representation by a solicitor was refused. Counsel submitted that this was contrary to the rights of an accused under the European Convention on Human Rights and that in the circumstances the objection should be treated as a devolution issue. This latter submission was countered by the advocate depute on the basis that, if it was a devolution issue (which was not conceded), it came too late under reference to the terms of chapter 40 of the Act of Adjournal (Criminal Procedure Rules) 1996 as amended by the Act of Adjournal (Devolution Issues Rules) 1999. In reply Mr. Gebbie maintained, amongst other things, that the Act of Adjournal was ultra vires the High Court of Justiciary. In these circumstances, the trial judge decided to hold over the objection to the vires of the Act of Adjournal (Devolution Issues Rules) 1999 for consideration by three judges of the High Court, including the trial judge, on 24 August 1999. On that date submissions were heard by the court. On 25 August 1999 Lord Osborne intimated the decision of the court on the issue of the vires of the Act of Adjournal and delivered the determination that the Act of Adjournal was intra vires of its makers and was to be treated as valid. He further intimated that the court's reasons would be issued later in writing. The opinion of the court was issued on 10 September 1999 and is now reported as H.M. Advocate v. Dickson 2000 JC 93. The opinion sets out the full arguments addressed to the court by Mr. Gebbie for the appellant and by the advocate depute. Following the court's determination, Mr. Gebbie then invited the court to allow a devolution issue to be raised late on cause shown. Having heard submissions for the defence and for the Crown, the trial judge refused the motion. Mr. Gebbie then moved the trial judge to exclude the evidence of the interview on the ground that it was so unfair that it should not be allowed to be heard by the jury. Having heard the advocate depute in reply, the trial judge repelled the objection and thereafter the evidence relating to the terms of the tape-recorded interview was given by the witness.
[7] The grounds of appeal in relation to this chapter can be divided into three parts. The first part relates to the competence of the High Court of Justiciary to determine an issue which amounted to a challenge to the vires of an Act of Adjournal. This is raised in the first three grounds of appeal which are in the following terms:
"1. That during the trial there was a miscarriage of justice in that the
appellant sought to challenge the vires of the Act of Adjournal (Devolution Issues Rules) 1999, which legislation was promulgated by the High Court of Justiciary and the appellant was denied a fair and public hearing by an independent and impartial tribunal, in that the appellant had to make said challenge before the High Court of Justiciary itself; contrary to Article 6.1 of the European Convention on Human Rights.
2. That the trial Court failed to refer the above matter as a devolution
issue to the Judicial Committee of the Privy Council in terms of Schedule 6 of the Scotland Act 1998 and that this was contrary to the right to a fair hearing guaranteed under the said Article 6.1 of the European Convention on Human Rights and was a miscarriage of justice.
3. That the trial Court failed to refer the above matter as a devolution
issue to a Court of two or more judges of the High Court of Justiciary so that it might consider referring the matter to the Judicial Committee of the Privy Council in terms of Schedule 6 of the Scotland Act 1998 and that this was contrary to the right to a fair hearing guaranteed under the said Article 6.1 of the European Convention on Human Rights and was a miscarriage of justice."
The second part is directed to the decision of the court in respect to the vires of the Act of Adjournal. These were stated as follows:
"4. That the trial Court ruled against the appellant in respect of the vires of
the said Act of Adjournal without reasons being given for said decision until after the trial of the appellant was over. This prejudiced her position at trial, violated her rights under Article 6.1 of the European Convention on Human Rights and was a miscarriage of justice.
5. That the trial Court ruled against the appellant in respect of the vires of
the said Act of Adjournal without reasons ever being given for said decision, in respect of the submissions relating to the High Court not being an 'independent and impartial tribunal' in terms of Article 6.1 of the European Convention on Human Rights and that this in itself constitutes a violation of said Article 6.1 of the European Convention on Human Rights and a miscarriage of justice.
6. That the trial Court erred in law in holding that the said Act of
Adjournal was intra vires of its makers and hence it is to be treated as valid, which decision was a miscarriage of justice."
The third part relates to the decisions of the trial judge to refuse to allow the devolution issue to be raised and thereafter to hold that the evidence was admissible and should be heard, all as set out in the following grounds of appeal:
"7. That there was a miscarriage of justice in that, the learned trial judge
erred in law in holding that the listing of a transcript of an interview of the appellant in the list of productions was a proposed function of the Lord Advocate videlicet, leading evidence and that accordingly the interview could not be challenged as a devolution issue, in relation to the appellant being refused access to a solicitor despite her repeated requests for one, as the matter had not been raised within seven days of the service of the indictment.
8. That there was a miscarriage of justice in that the learned trial judge
erred in law in holding that the attempted leading of evidence of the said interview was neither a devolution issue nor cause shown in respect of the matter being raised outwith the seven day period aforesaid.
9. That there was a miscarriage of justice in that the learned trial judge
did not exclude the evidence of the said interview from the consideration of the jury as being contrary to Article 6 of the European Convention on Human Rights."
Before I consider these grounds of appeal, it is convenient to set out the various statutory provisions to which reference was made in the submissions before this court.
[8] I begin with the powers of the court with regard to the promulgation of Acts of Adjournal. These are to be found, in the first place, in Section 305 of the Criminal Procedure (Scotland) Act 1995 which provides amongst other things:
"305.-(1) The High Court may by Act of Adjournal -
(a) regulate the practice and procedure in relation to criminal procedure;
(b) make such rules and regulations as may be necessary or expedient to
carry out the purposes and accomplish the objects of any enactment (including an enactment in this Act) in so far as it relates to criminal procedure;".
Schedule 6 of the Scotland Act 1998 headed "Devolution Issues" provides by paragraph 37, which is headed "Procedure of courts and tribunals", as follows:
"37. Any power to make provision for regulating the procedure before any court or tribunal shall include power to make provision for the purposes of this Schedule including, in particular, provision -
(a) for prescribing the stage in the proceedings at which a devolution issue
is to be raised or referred,
(b) for the sisting or staying of proceedings for the purpose of any
proceedings under this Schedule, and
(c) for determining the manner in which and the time within which any
intimation or notice is to be given."
The Act of Adjournal (Devolution Issues Rules) 1999 was made on 4 May 1999 and came into force on 6 May 1999. It bears to be made by the Lord Justice General, the Lord Justice Clerk and the Lords Commissioners of Justiciary, "under and by virtue of the powers conferred on them by section 305 of the Criminal Procedure (Scotland) Act 1995, paragraph 37 of Schedule 5 to the Scotland Act 1998...and of all other powers enabling them in that behalf". The Act of Adjournal amended the Act of Adjournal (Criminal Procedure Rules) 1996 by introducing a new chapter 40 entitled "Devolution Issues". In chapter 40 "devolution issue" means, amongst other things, a devolution issue within the meaning of Schedule 6 to the Scotland Act 1998 and "relevant authority" means the Advocate General and, in the case of a devolution issue within the meaning of Schedule 6, the Lord Advocate. For the purposes of the chapter it is provided by Rule 40.1(2)(a) that a trial shall be taken to commence, in proceedings on indictment, when the oath is administered to the jury. Rule 40.2 is concerned with raising devolution issues where proceedings are on indictment. In particular, paragraphs (1),(3) and (5) provide:
"(1) Where a party to proceedings on indictment proposes to raise a devolution issue he shall, not later than 7 days after the date of service of the indictment, give written notice of his intention to do so in Form 40.2A to the clerk of the court in which the trial is to take place; and a copy of the notice shall, at the same time, be served on the other parties to the proceedings and on the relevant authority.
...
(3) Where a relevant authority wishes to become a party to the proceedings as mentioned in paragraph 6 of Schedule 6 or, as the case may be, paragraph 24 of Schedule 10 or paragraph 14(2) of Schedule 8, he shall, not later than 7 days after receipt of the notice served under paragraph (1), give notice in Form 40.2B to the clerk of the court in which the trial is to take place; and a copy of such notice shall be served on the Lord Advocate and every other party to the proceedings.
...
(5) This Rule is without prejudice to any right of or requirement upon any party to the proceedings to raise any matter or objection or to make any submission or application under section 72 of the Act of 1995."
Rules 40.5 (time for raising devolution issue) and 40.6 (specification of devolution issue) provide as follows:
"40.5.-(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.
(2) Where the court determines that a devolution issue may be raised as mentioned in paragraph (1), it shall make such orders as to the procedure to be followed as appear to it to be appropriate and, in particular, it shall make such orders -
(a) as are necessary to ensure that intimation of the devolution issue is
given in writing to the relevant authority for the purposes of paragraph 5 of Schedule 6 or, as the case may be, paragraph 23 of Schedule 10 or paragraph 14(1) of Schedule 8; and
(b) as to the time in which any step is to be taken by any party in the
proceedings.
40.6 The notice given under paragraph (1) of Rule 40.2 or 40.3 or paragraph (2) of Rule 40.4 shall specify the facts and circumstances and contentions of law on the basis of which it is alleged that a devolution issue arises in the proceedings in sufficient detail to enable the court to determine, for the purposes of paragraph 2 of Schedule 6 or, as the case may be, of Schedule 10 or Schedule 8, whether a devolution issue arises in the proceedings."
Rule 40.7(3) provides:
"(3) Where the court determines that a devolution issue may be raised during a trial, the court shall not refer the devolution issue to the High Court but shall determine the issue itself."
Rule 40.8 makes provision for orders pending determination of a devolution issue and provides, amongst other things, that the High Court of Justiciary
"...may make such orders as it considers just and equitable in the circumstances pending the determination of the devolution issue, including-
(a) postponing any diet, including a trial diet, fixed in the case;
(b) making such order as it considers appropriate in relation to bail;
(c) subject to paragraph (2), extending the period within which any step
requires to be taken or event to have occurred."
Rule 40.9 provides for reference of a devolution issue to the Judicial Committee in the circumstances set out in the Rule. These circumstances are, in part, derived from paragraph 11 of Schedule 6 to the Scotland Act 1998 which states:
"11. Any court consisting of two or more judges of the High Court of Justiciary may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 9) to the Judicial Committee."
It is also to be noted that provision is made by paragraph 13 of Schedule 6 for an appeal to the Judicial Committee against a determination of a devolution issue by a court of two or more judges of the High Court of Justiciary (whether in the ordinary course of proceedings or on a reference under paragraph 9).
[9] So far as Schedule 6 is concerned, paragraphs 1 and 2 set out the meaning of devolution issue. In particular, paragraph 1(b) and (d) provides:
"(b) a question whether any function (being a function which any person
has purported, or is proposing, to exercise) is a function of the Scottish Ministers, the First Minister or the Lord Advocate,
...
(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,"
Provision is made by paragraph 33 of Schedule 6 enabling the Lord Advocate to require any court to refer to the Judicial Committee any devolution issue which has arisen in proceedings before it to which he is a party.
[10] I turn now to the submissions for the appellant under each of the parts or heads of argument raised in these grounds of appeal.
Independent and impartial tribunal
[11] Mr Gebbie's submission on this matter, which was made under reference to Article 6(1) of the European Convention of Human Rights, began and ended on the simple proposition that since an Act of Adjournal was an act of the whole Lords Commissioners of Justiciary, the High Court of Justiciary was precluded from hearing and determining the correctness or otherwise of a challenge to an Act of Adjournal or any provision within it on the ground that it was incompatible with the European Convention on Human Rights. In doing so, he founded upon the judgment of this court in Hoekstra v. H.M. Advocate (No. 2) 2000 JC 391. On that ground alone, he said, it would have been appropriate for the court below to have referred the devolution issue raised by the appellant to the Judicial Committee. For, as soon as the advocate depute at the trial sought to invoke the provisions of the Act of Adjournal in order to prevent the appellant from raising the objection to the admission of the evidence of the transcript, he was acting in a manner which was incompatible with the Convention. The court could then, in terms of paragraph 11 of the Schedule, have referred the issue to the Judicial Committee.
[12] In answer to these submissions, the Crown made reference to Hauschildt v. Denmark 1989 EHRR 266, where the European Court held that the existence of impartiality for the purposes of Article 6(1) must be determined according to both a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and an objective test, that is ascertaining whether the judge offered guarantees sufficient to rule out any legitimate doubt as to his impartiality. As to the subjective test, the personal impartiality of a judge had to be presumed until there was proof to the contrary. No such proof was offered in the present case as regards any member of the court. The objective test looked for ascertainable facts which might raise doubts as to the impartiality of the judge. The mere fact that a trial judge or an appeal judge, in a system like the Danish, had also made pre-trial decisions in the case, including those concerning detention on remand, could not in itself justify fears as to impartiality. Reference was also made to Hoekstra v. H.M. Advocate 2000 SCCR 1121 and in particular what was there said by Lord Hope of Craighead as to the judicial functions of the High Court of Justiciary at p. 1126.
[13] In my opinion, the mere fact that the challenge to the Act of Adjournal requires that this court determine whether or not its provisions may be incompatible with the Convention does not, of itself, make this court any less "an independent and impartial tribunal established according to law". I observe, in the first place, that it was not suggested before us that decision of the court below was in any sense flawed by bias or that it was less than fair in any way. Moreover, as was pointed out by the Lord Justice General in Hoekstra (No. 2) at p. 401E, criticism of particular legislative provisions or particular decisions is often to be found in judges' opinions if they consider that to be justified. In a system such as that which exists in this jurisdiction, the court and its individual members are expected, when performing a judicial duty, to bring to the discharge of that duty an unbiased and impartial mind. I refer in particular to what was said by Lord Hope of Craighead in Ex parte Pinochet, in a passage quoted by the Lord Justice General in Hoekstra (No. 2). I would add that the question of whether a reference of a devolution issue should be made, without any prior determination of the issue by the court, is, in terms of both Schedule 6 to the Scotland Act 1998 and the Rules in the Act of Adjournal, so far as they affect the procedures on indictment, a matter which, subject to Rule 40.7(3), is one for the discretion of the court. Likewise it is a matter for the discretion of the Lord Advocate whether he should require a court to refer a devolution issue to the Judicial Committee. I would therefore reject the first submission for the appellant.
Vires
[14] The principal submission on this head was to the effect that, since the Scotland Act 1998 constituted what Mr. Gebbie termed a constitutional settlement whereby criminal justice became a devolved matter, the Scottish Parliament was charged with responsibility for ensuring that the system and its procedures were compatible with the Convention conform to the provisions of section 57 of that Act. If, he said, the Scottish Parliament had enacted provisions akin to those of Rule 40.5 and 40.6, these would have been struck down by reason of their incompatibility with the rights given to an accused in terms of Article 6(1) since they served to restrict the right to complain that the Lord Advocate was acting or proposing to act in a manner incompatible with the Convention. Such matters could arise during a trial. These Rules were no more and no less than legislative acts involving policy making which was a matter to do with the Scottish Parliament alone. That being so, what was raised in the present case was a question as to what were the functions of the Scottish Ministers. That was a devolution issue in terms of paragraph 1(b) of Schedule 6.
[15] Further, and in event, what the Act of Adjournal purported to do was incompatible with Article 6(1) for the foregoing reasons. Reference was made to the opinion of the Commission expressed in Reinhardt v. France 1998 28 EHRR 59 at paragraph 123 to the effect that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. He reminded the court that the High Court of Justiciary is now a public authority in terms of and for the purposes of section 6 of the Human Rights Act 1998, though he accepted that at the time of the making of the Act of Adjournal that section was not in force and hence it was not applicable.
[16] For the Crown it was submitted that there was nothing in the submissions for the appellant to suggest that the judgment of the lower court was flawed. The true issue and only issue arose from the act of tendering evidence on the part of the Crown at the trial. That was an act or proposed act of the Lord Advocate. But it did not become a devolution issue simply because the appellant, as a detainee, did not have access to a solicitor before or at the time of the tape-recorded interview. Nor did it become one merely because one party to the proceedings contended that it was one. Reference was made to paragraph 2 of Schedule 6. The attack upon a proposed act of the Lord Advocate on the ground that it was incompatible with the Convention could be made in advance of a trial, as was pointed out in HM Advocate v. Robb 2000 JC 127, a decision which was approved by Lord Hope of Craighead and Lord Clyde in Montgomery & Coulter v. HM Advocate 2000 SCCR 1044. The Convention did not require that in all cases the person who is detained should be afforded the opportunity to have his solicitor present (Paton v. Ritchie 2000 SCCR 151). The scheme set out in the provisions of the Act of Adjournal had been considered in some detail in Montgomery & Coulter. There was no suggestion made in that case that the Act of Adjournal was ultra vires. Reference was made in particular to what was said by Lord Hope of Craighead at p. 1099.
[17] In my opinion, the submissions for the Crown are to be preferred. At the outset I draw attention to a passage in Montgomery & Coulter, not cited to us in argument, where at page 1090 Lord Hope of Craighead was dealing with the matters of practice and procedure in Scots law and said:
"In my opinion the same deference in matters of practice and procedure should be paid by the Board to the High Court of Justiciary when it is exercising its jurisdiction under Part II of Schedule 6 to the Scotland Act 1998. The High Court has power under section 305 of the Criminal Procedure (Scotland) Act 1995 to regulate the practice and procedure in relation to criminal procedure in the Scottish courts. It was in exercise of that power that the Act of Adjournal (Criminal Procedure Rules) 1996 and the Act of Adjournal (Devolution Issues Rules) 1999 were made: see H.M. Advocate v. Dickson. A Criminal Courts Rules Council was established by section 304 of the 1995 Act with the function of keeping under general review the practices and procedures of the courts exercising criminal jurisdiction in Scotland and considering and commenting upon draft acts of adjournal. The stage in the proceedings at which a devolution issue is to be raised or referred is a matter for regulation by the High Court of Justiciary in the exercise of its powers under section 305 of the 1995 Act: see paragraph 37 of Schedule 6 to the Scotland Act 1998."
I note also that in Montgomery & Coulter in the passage cited by the advocate depute, Lord Hope of Craighead said this:
"It should also be recognised that the method which has been selected by the Scotland Act and in chapter 40 of the Act of Adjournal for ensuring that the Convention rights of the accused are protected, which enables the matter to be tested before the case goes to trial by examining the acts of the prosecutor, has clear advantages. These have been designed to preserve the efficient running of the criminal justice system in Scotland, despite the heavy demands that have been made upon it by the devolution system."
In saying this Lord Hope had already taken note of the provisions of Rule 40.2 and 40.5 where, at p. 1097, after pointing out the stages at which it was permissible for a court to ask whether the issue that the accused wished to raise was truly a devolution issue, he said:
"At the first stage the importance of that question will lie in the fact that, if the issue is a devolution issue, chapter 40 of the Act of Adjournal will apply to it. If the procedure laid down by rule 40.2 had not been followed, rule 40.5 will apply and the party will not be permitted to raise the issue except on cause shown."
As Lord Hope of Craighead had previously pointed out, the provisions of section 305 of the Criminal Procedure (Scotland) Act 1995 were supplemented by the provisions of paragraph 37 of Schedule 6 to the Scotland Act 1998. I find nothing in the submissions for the appellant to explain these later provisions other than that they were predicated upon the proposition that it was for the courts to make provision for the necessary procedure "for the purposes of the Schedule", including the stage in the proceedings at which a devolution issue is to be raised. I observe that the terms of Rule 40.5 do not prevent an accused from raising a devolution issue at the trial, but only require that cause be shown to the satisfaction of the court for raising it at that stage in the proceedings. These seem to me to be both practical and effective steps for the preservation of an accused's Convention rights within our criminal procedure. I would agree with the court below, and for the reasons given by them, that the imposition of "the time-table" for the raising of devolution issues prescribed in Rule 40.2 and 40.5, cannot be said to narrow or destroy the Convention rights of any accused person. I would therefore reject the submissions for the appellant on this head also.
Lack of reasons
[18] Mr. Gebbie complained that the court below had not addressed a question which, he said, had been placed before it, namely, that concerned with whether the court was an independent and impartial tribunal in reference to the challenge to the vires of the Act of Adjournal. In doing so, he made reference to the decision of the European Court in Hiro Balani v. Spain 1994 EHHR 566. The appellant had been entitled to a "motivated judgment" of the court below and not simply to a determination. It was unfair to be left without any understanding of the reasons for that determination and hence to be without ground for determining whether there was room for an appeal at that stage.
[19] I find nothing in the opinion of the court below to suggest that they were addressed on the matter of the competency of the court to adjudicate on the challenge. The submissions of Mr. Gebbie are fairly fully recorded and none appear to approach anything of the nature now suggested. Indeed the gravamen of the submissions was that the Lords Commissioners had, at the date when the Act of Adjournal was made, no authority to make it because, at that date, neither Schedule 6 nor paragraph 37 of the Schedule to the Scotland Act 1998 were then in force. But, in any event, I do not consider that there is any warrant to be found in the case of Hiro Balani for the submission. Reasons were given by the court below and this court has heard full submissions for the appellant on the matters raised in the grounds of appeal. In Hiro Balani it was the failure of the Supreme Court of Spain to deal with all three of the submissions of the applicant on appeal, in quashing the decision of the lower court which had been determined in favour of the applicant, that gave rise to the decision. I only observe that the European Court indicated that the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, could only be determined in the light of the circumstances of the case and that it could not be understood as requiring a detailed answer to every argument. In the light of the circumstances which gave rise to the convening of the court of three judges and the single issue which they were called upon to decide, namely, the question as to the vires of the Act of Adjournal, I consider that it was sufficient at the time of giving their determination for the court to indicate that their opinion was that the Act of Adjournal under consideration was valid and intra vires its makers. They did so in terms which left it open to the appellant thereafter to apply to the trial judge to determine the objection to the admissibility of evidence on that premise. The appellant had notice that in order to persuade the judge to receive the devolution issue, it would be necessary to show cause. It cannot tenably be suggested that the subsequent conduct of the trial by the defence was or could have been affected by present ignorance of the full reasons for the decision on vires. I do not consider that in giving their determination in the manner they did, while indicating that they would give their reasons later, the court below prejudiced the appellant or the course of the trial.
[20] For all the above reasons, I would reject the submissions of the appellant directed to this head also. In my opinion, the court below did not err in law in holding that the Act of Adjournal was intra vires its makers and to be treated as valid. Neither did that decision nor the absence of immediately available reasons for it in any sense constitute a miscarriage of justice.
Miscarriage of Justice
[21] This head is encompassed in grounds of appeal 7, 8 and 9. Mr. Gebbie submitted that the trial judge had misdirected himself in regard to the issue which was left to him to determine once it had been decided that the Act of Adjournal was intra vires its makers and valid. He claimed that by reason of being a member of the court which made that decision, the trial judge had clearly already made up his mind on the matter. He made reference to the case of Reinhardt v. France already cited. In the case of HM Advocate v. Robb the court had expressed the view that the leading of evidence at a criminal trial was an exercise or purported exercise of the Lord Advocate's function as head of the prosecution system in Scotland. It was not therefore too late to seek to raise an objection to the leading of such evidence as a devolution issue at the trial itself. Reference was made also to Stott v. Brown 2001 SCCR 62. In any event, Mr. Gebbie argued that the trial judge appeared to have decided the matter on the basis that the evidence should not be excluded unless it was manifestly unfair. However this court was now bound by the provisions of section 6 of the Human Rights Act 1998. Looking to the terms of the interview, Mr. Gebbie maintained that the leading of the evidence had been manifestly unfair in that the appellant had, during the course of the interview, repeatedly asked for the benefit of a solicitor to be present. It had been used as evidence of demeanour. He accepted that in that regard its use did not make it a breach of a Convention right. Rather, he founded upon the absence of access to a lawyer either prior to or during the interview. In support of his submissions, he founded upon the European Court cases of Murray v. United Kingdom 1996 22 EHHR 29 and Averill v. United Kingdom (application no. 36408/97 decision 6 June 2000).
[22] Even if he were wrong in that regard, nevertheless it was appropriate to look at the issue of fairness to the appellant by reference to the whole proceedings at the trial. Mr. Gebbie maintained that the introduction of the interview seen in that context had been unfair. The interview had gone to the jury when it should not have gone there. The jury had not had the opportunity to consider the fairness or otherwise of the interview. It was the function of the jury to determine that issue properly directed and not for the court on appeal to carry out that appraisal. Reference was made to Rowe and Davis v. United Kingdom 2000 EHHR 1 and Condron v. United Kingdom (application no 35718/97 decision 2 May 2000). Where a trial judge had decided to admit evidence, even on the basis of a trial within a trial, and evidence of the circumstances subsequently led before the jury came out in a form which would mean that the statement should be excluded, it might be necessary to desert the diet pro loco et tempore (see Thompson v. Crowe 2000 JC 173).
[23] The advocate depute submitted that looking to the guidance given in Montgomery & Coulter as to what might constitute cause shown, it could not reasonably be said that the trial judge was not entitled to have regard to the terms of rule 40.5 in determining whether to exercise his discretion to allow a notice, even where duly intimated, which sought to introduce a devolution issue. The real question was whether there was truly a devolution issue in the first place. The mere tendering of evidence to which objection was taken did not make the matter a devolution issue (see HM Advocate v. Robb and Paton v. Ritchie). The mere absence of a solicitor while a detained person was being interviewed by authorised persons, such as the police or customs officers, did not constitute a contravention of the Convention (see Paton v. Ritchie). The European Court had been careful to stress that the admissibility or otherwise of evidence was a matter for the national courts in the first instance and that generally the question of fairness of the trial fell to be addressed at the conclusion of the trial and viewing the proceedings as a whole. Reference was made to Asch v. Austria 1991 15 EHHR 597, Doorson v. Netherlands 1996 22 EHHR 330 and Schenk v. Switzerland 1988 13 EHHR 242. The Court in Mialhe v. France 1996 23 EHHR 491 had been at pains to make clear that it was not for the Court to substitute its view for that of the national courts which are primarily competent to determine the admissibility of evidence. The Court must nevertheless satisfy itself that the proceedings as a whole were fair, having regard to any possible irregularities before the case was brought before the trial and appeal courts and checking that those courts had been able to remedy them if there were any. At the trial the Crown were entitled to lead evidence with a view to anticipating that the accused might give evidence. In that event it would be open to cross-examine the accused by reference to any statements which had been properly and fairly obtained. In the present case, there had been a caution given at the beginning of the interview and, as the transcript made clear, the interviewing officers accepted that the appellant was perfectly entitled to remain silent. There was no suggestion that any adverse inference fell to be taken by the jury from the fact of the appellant's silence. In that respect, the present case was to be distinguished from the cases of Murray and Averill.
[24] It is appropriate to note that in the Minute of Proceedings, in respect to Mr. Gebbie's submission that a devolution issue be allowed to be raised late on cause shown, the trial judge's determination is recorded as follows:
"The court, having heard the Advocate Depute's reply, found that - if the leading of evidence is a function of the Lord Advocate, the listing of the transcript of the tape recorded interview with the accused as Production No. 19 on the indictment, is a proposed exercise of that function by the Lord Advocate (as a member of the Scottish Executive) and is thus a Devolution Issue. He intimated that service of an indictment containing a list of productions gives notice to the accused of the proposed exercise of that function and the accused should accordingly have raised that matter as a Devolution Issue at an appropriate time prior to the trial diet as prescribed by the Act of Adjournal (Devolution Issue Rules) 1999. The court further observed that the whole scheme of the said Act of Adjournal was designed to avoid delay during trials to decide such issues.
Mr Gebbie then made a submission outwith the presence of the jury that the evidence being led by the Crown from Crown Witness No. 6 - Susan Cleaver - relating to the transcript of the tape recorded interview of the accused was so unfair that it should not be allowed to be heard by the jury and referred the court to the case of Murray v United Kingdom - 1996 E.H.R.R. Vol.22 p.29. The court having heard the Advocate Depute's submissions in reply having referred the court to the case of Dorson v Netherlands - 1996 E.H.R.R. Vol.22 p.330 - repelled the objection and allowed the line of questioning of said witness to continue."
It is convenient also to have regard to what is said by the trial judge in his report.
"Ground 7
I took the view that listing the production on the indictment was a 'proposed' exercise of a function in terms of Schedule 6 to the Scotland Act 1998, and so raised a devolution issue. I took the further view that the purpose of the Act of Adjournal (Devolution Issues Rules) 1999 was to ensure that so far as possible such issues were decided before trial, if only in order to avoid the logistic difficulties that would arise if it were necessary to adjourn a jury trial to give the Advocate General time to consider her position. It seems, in light of what was said in later cases, and in particular the as yet unreported cases of Paton v Ritchie" (now reported at 2000 JC 271) " and McKenna v H.M. Advocate" (now reported at 2000 JC 291) " that I was wrong in holding that intimation of the devolution issue should have been made at a preliminary diet. I would say only (a) that this was a case in which it could have been decided ab ante whether the mere absence of a solicitor rendered the interview inadmissible under the Convention; (b) that it was clear that the decision would have been that it did not; and (c) that in any event there was nothing significant in the interview which helped the Crown. Accordingly, I would respectfully submit that my error did not lead to a miscarriage of justice.
Ground 8
The only 'cause' which Mr Gebbie proffered was that there had been no act by the Crown raising a devolution issue until the production was put to the witness. Having already decided against him on that point, I had no basis for exercising any discretion in his favour. At best for the appellant the issue could have been raised before the start of the actual trial when, I was given to understand, the defence were aware of the Crown's intention to lead the evidence. Accordingly, I held that no cause had been shown for allowing it to be raised at the point at which Mr Gebbie sought to raise it. I may add, in view of the wording of this ground, that I did regard the issue as a devolution issue, since at common law it was quite clear that the absence of a solicitor did not in itself render the interview inadmissible. That is why I applied my understanding of the Act of Adjournal to hold that it was raised out of time."
In my opinion, while it may be said that the trial judge has accepted that he misdirected himself as to the approach which he took to the issue of whether there was a devolution issue arising, it has not been shown that, in the end of the day, any miscarriage of justice resulted from the decision to allow the evidence to be admitted. In the first place, I note that in Stott v. Brown at p. 92, Lord Hope of Craighead stated that it was not merely enough to assert that a devolution issue had arisen. Sufficient detail must be given in support of the proposition to show that there is a point of substance that needs to be addressed. In the present case the devolution issue was said to arise on the broad proposition that the appellant having asked for a solicitor to be present, and none having been forthcoming, the interview was unfair per se. I accept that Lord Hope goes on to note that the common law rights of the accused have been reinforced by the right under article 6(1) of the Convention to a fair trial and that it is now necessary to re-examine and revise these principles. He said, at p. 93:
"The scheme of the article involves the application of different tests at each stage of the inquiry from those applied by the common law. It requires a more structured approach be taken when the overriding test of fairness is applied to the facts. But it is important to recognise nevertheless that the rule of law lies at the heart of the Convention."
Immediately before this passage he had described the rule of law as follows:
"The rule of law requires that every person be protected from invasion by the authorities of his rights and liberties. But the preservation of law and order, on which the rule of law also depends, requires that these protections should not be framed in such a way as to make it impractical to bring those who are accused of crime to justice. The benefits of the rule of law must be extended to the public at large and to victims of crime also."
In Paton v. Ritchie this Court pointed out that neither Scots law nor the Convention require that in all cases the person who is detained should be afforded the opportunity to have his solicitor present. In the present case there is no suggestion that the absence of a solicitor had a decisive effect upon the preparation of the appellant's defence. Indeed she was able to state at judicial examination the nature of her defence and that material was available as evidence for the jury. I note that in his charge the trial judge was careful to give the jury precise and impeccable directions about whether the questioning by the customs officers was properly and fairly conducted. In particular he reminded the jury that no one was obliged to tell such officers anything and no inferences could be drawn from the fact that a person exercised their right not to answer. That indeed was the substance of the caution administered by the officers to the appellant at the outset of the interview. He directed the jury that if they found any of what the appellant said or did, in so far as any of it might be incriminating, was said or done because the officers had acted unfairly, the jury would be obliged to disregard that evidence. He directed them that officers, such as police or customs officers, were not allowed to question people in an unfair manner, whether by bullying them, tricking them or doing anything else which the jury might consider unfair. If they acted in that way then anything said by the appellant was not admissible in evidence and it was for the Crown to satisfy the jury that the evidence was obtained fairly. The present case was far away from the situation that existed in the cases of Murray and Averill, in each of which the issue revolved around the Prevention of Terrorism legislation and the inference that could be drawn from the silence of a suspect. Likewise the European cases of Condron and Rowe and Davis do not appear to me to be in point. Here the jury were left with full directions to determine the matter of the fairness of the interview to which objection was taken before trial judge. There is no substance, in my view, in the criticisms which Mr. Gebbie raises as regards the manner in which it was conducted so far at a reading of the transcript itself is concerned, which would be all that was available to the trial judge at the time of the initial objection. Before this court Mr. Gebbie did not suggest that there was any evidence given by the relevant witnesses which came as the kind of new evidence to which the court in Thomson v. Crowe referred as giving rise the requirement to desert the diet.
[25] I am doubtful if it can really be said that the trial judge erred in his approach to determining whether he should accept that the assertion made by defence counsel as a devolution issue. He was fully entitled to take into account that it was raised at a very late stage and no adequate reason was given as to why it could not have been raised prior to the commencement of the trial. But be that as it may, I am quite clear that in the way that the matter came to be focused at the conclusion of the trial, including the directions given to the jury as to the acceptance or rejection of the evidence, having regard to the fact that the defence had full opportunity to cross-examine the officers as to the fairness or unfairness of the interview, it is impossible to say that the appellant was denied a fair trial and hence that in any way her Convention right to a fair trial was contravened. As was observed in Paton v. Ritchie, the question whether a fair trial can be achieved depends not simply upon what happened during the preliminary investigation but on the whole proceedings. This approach is fully in accord with the European cases cited to this court and in particular the cases cited by the advocate depute.
[26] For all these reasons I would reject the submissions made by Mr. Gebbie on the foregoing grounds directed to miscarriage of justice.
[27] Ground of appeal 10 is in the following terms:
"10. That there was a miscarriage of justice in that the learned trial judge
did not direct the jury on the provisions of the European Convention on Human Rights and their relevance to questions of fairness in relation to the failure to caution the appellant as soon as she became suspect and in relation to the said interview."
In my opinion, there is no need for a trial judge to direct the jury on the provisions of the Convention. Indeed, it would be unhelpful to do so since they express generalities which have to be applied by reference to the particular circumstances of the case or of the trial itself. Counsel could not point to anything in the trial judge's charge which did not fully address the underlying principle of fairness in relation to the tape-recorded interview.
Insufficiency of Evidence
[28] Mr. Gebbie briefly maintained an argument that the trial judge had erred in repelling a submission made under section 97 of the Criminal Procedure (Scotland) Act 1995.
[29] In his report the trial judge sets out the basis of the submission, as it was presented to him, as follows:
"There was a submission to the effect that in the absence of any evidence as to the weight of the bag, the Crown had not led sufficient evidence to enable the jury to infer that the appellant knew that there was something in it. I repelled this submission on the ground that the jury had seen the case being lifted by various witnesses and, more importantly, were aware of the quantity of drugs involved. The forensic science report referred to about 500 grams of cocaine, about 3,500 grams of amphetamine, and over 12,500 amphetamine tablets, as well as small quantities of byprenorphine. I took the view that there was sufficient evidence to entitle them to hold that if the appellant carried the bag as described by the surveillance officers, she knew that it was not empty."
[30] I have earlier rehearsed the remaining evidence given for the Crown. There was ample within it such as to amount to a sufficiency of evidence in law to establish the guilt of the appellant.
Misdirection
[31] The next two grounds of appeal are in the following form:
"12. That the learned trial judge misdirected the jury in respect that the
directions in his charge at page 11C to F, at page 12F to page 13E and at page 14D to E are insufficient to explain what would amount to 'knowing that one was involved in supplying something' and that this misdirection constitutes a miscarriage of justice.
13. That the learned trial judge misdirected the jury in respect that the
directions in this charge at page 19B to 21B are inconsistent with the Crown having to establish that the appellant knew she was involved in supplying something and that this misdirection constitutes a miscarriage of justice."
Mr. Gebbie argued faintly that the terms of the charge constituted a misdirection as to the constituents of the crime with which the appellant was charged, namely a charge of being concerned in the supplying of a controlled drug. In my opinion, if there was any doubt about the matter, in an earlier passage of the trial judge's charge, and I am far from satisfied that there was any such doubt, the final direction given to the jury in response to a question from the foreman is impeccable. In this passage, the trial judge was asked for clarification of the point of the wording of charge 1, in relation to being concerned in supply of some of the drugs. The foreman went on to ask:
"...if that person was seen as a carrier of the bag, that they didn't know what was in that bag, which then turned out to be drugs, is that seen as someone who is concerned in the supply of drugs?
TEMPORARY JUDGE GORDON: Yes, if the person knows that there's something in the bag and, knows that she is taking part in an operation which involves supplying whatever it is that's in the bag, to someone else. She doesn't have to know what is in the bag or, at least, the Crown does not have to prove that she knew what was in...that what was in the bag was drugs. Perhaps I should try to explain it.
It's quite true that normally speaking, before the Crown can prove a case, they have to prove that a person did something wrong and, that the person knew she was doing something wrong but, there are some situations, there are some cases in which Parliament decides, for one reason or another, perhaps because they think it's too difficult to provide that, they decide, for one reason or another, that the Crown did not have to prove that the person knew precisely what she was doing. And, in so far as drugs are concerned, dealing, being concerned in supplying of drugs, is one of those offences in which Parliament has decided that all that the Crown need to prove is that the person knew that she was concerned in the supplying of something. They then leave it open to that person, if she wishes, to come along and lead evidence that although she knew she was supplying something, she thought it was something other than drugs and, in that situation the person can establish or, make it look probable that she didn't know and, be acquitted but, that is not what is being said in this case. This is not one of those cases in which the Accused says, 'Yes I was involved in supplying something but I thought it was money, pictures, whatever.' And even in that case, such a case, of course, all that the Crown has to prove is that she knew she was involved in supplying something, and the she can come along and offer evidence to show that she was doing so, if you like, innocently. But, the way that this case is being presented to you, what the Accused is saying is, 'I had nothing to do with these bags at all. All I did was come down to the car park to give my brother some tools or, a tool.'
So that in this case if the Crown prove to your satisfaction that she knew there was something in the bag and, that what she was doing was helping in the operation of supplying that something to someone else then, that is all that they have to prove for conviction."
In my opinion, that constituted a full and proper direction on the matter. It is clearly put and the jury are reminded of the appellant's defence. I consider that there is no warrant for the criticisms of the trial judge's charge read as a whole. I therefore reject the appellant's submissions on these grounds of appeal and would hold that they are not made out.
[32] The final ground of appeal 14 was in the following terms:
14. That said grounds of appeal, as well as constituting individual miscarriages of justice and violations of Article 6 of the European Convention on Human Rights, collectively amount to a miscarriage of justice and a violation of the appellant's rights under Article 6.1 of the European Convention on Human Rights."
It follows from what I have set out above that, in my opinion, there is no warrant for suggesting that there has been either a miscarriage of justice in any regard or that there has been a violation of any of the appellant's rights under Article 6.1 of the Convention.
Conclusion
[33] I have had the advantage of reading the opinions of Lord Hamilton, Lord Macfadyen and Lord Weir. I agree with these opinions in full. In the whole matter, I would move your Lordships to refuse the appeal.
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Cameron of Lochbroom Lord Milligan Lord Hamilton Lord Macfadyen Lord Weir
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Appeal No: C609/99 OPINION OF LORD MILLIGAN in NOTE OF APPEAL by ANNIE MULVEY HARKINS GOURLAY or DICKSON Appellant; against HER MAJESTY'S ADVOCATE Respondent:
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Appellant: Gebbie; Bovey & Bovey
Respondent: A. Smith, Q.C., A.D.; Crown Agent
10 May 2001
[1] I agree wholly with the Opinion of your Lordship in the chair, including approval therein of what is said by Lord Hamilton and Lord Macfadyen. In my opinion, for the reasons given by your Lordships, none of the grounds of appeal in this case has any merit. On the matter of instant provision of full reasons for a decision in the course of a trial, I agree that it would not be in the best interests of justice for there to be any general requirement for this. A court may consider that full reasons should be supplied forthwith on the particular ground that this is, or at least may be, reasonably necessary to the prosecution and/or defence in conduct of the trial thereafter. If the court unilaterally does not envisage this to be so and proposes not to give full reasons forthwith, it is open to the prosecution and/or defence to move the court to supply reasoning necessary for proper conduct of the trial thereafter either immediately or, indeed, at any stage of the trial when such need becomes apparent. What is clear about the present case is that there was no prejudice to be envisaged, or actually resulting, from not supplying full reasons at the time.
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Cameron of Lochbroom Lord Milligan Lord Hamilton Lord Macfadyen Lord Weir
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Appeal No: C609/99 OPINION OF LORD HAMILTON in NOTE OF APPEAL by ANNIE MULVEY HARKINS GOURLAY or DICKSON Appellant; against HER MAJESTY'S ADVOCATE Respondent:
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Appellant: Gebbie; Bovey & Bovey
Respondent: A. Smith, Q.C., A.D.; Crown Agent
10 May 2001
[1] I agree with your Lordship in the chair that the appeal should be refused and that, subject only to what follows, for the reasons given by your Lordship. I also agree with the observations made by Lord Macfadyen.
[2] The trial in this case took place very shortly after the Scotland Act 1998 had been brought into force. The Human Rights Act 1998 was not then in force. It also occurred before any judicial guidance was available as to the meaning of a "devolution issue". The matter which has given rise in this case to a series of further issues first arose when, in the course of the trial, counsel for the accused objected to the leading of evidence by the Crown in respect of the content of an interview of the accused by Customs and Excise officers under tape recorded conditions. As recorded in the Minute of Proceedings counsel submitted that the circumstances in which the interview was conducted were "contrary to the accused's rights under the E.C.H.R. and he further submitted to the court that this objection should be treated by the court as a Devolution Issue". The advocate depute appears (again from the Minute of Proceedings) to have disputed that the matter was a devolution issue but to have submitted that, if it was, then it should not, having regard to Rule 40 of the Act of Adjournal (Criminal Procedure Rules) 1996 as inserted by the Act of Adjournal (Devolution Issue Rules) 1999, be entertained by the court at that stage. Counsel for the accused countered by challenging the vires of the 1999 Act of Adjournal.
[3] It is plain that counsel for the accused, in seeking to secure the exclusion of evidence of the content of the interview, wished to rely on the Convention and on the jurisprudence of the Court of Human Rights. At the time of the trial the only avenue by which he could, at least technically, rely on those sources was by categorising the matter he raised as being a devolution issue. By the time of the hearing of this appeal the Human Rights Act 1998 had come into force and, as counsel pointed out, this court, as a public authority, was obliged, in disposing of the appeal, to act compatibly with the appellant's Convention rights. Accordingly, for the purposes of disposal of this appeal, the procedural question whether the matter raised at trial was or was not a devolution issue may be unimportant, since looking at the substance of the matter I entirely agree with your Lordship in the chair that there is no merit in the contention that the appellant's Convention right to a fair trial was infringed.
[4] In these circumstances it is unnecessary, in my view, to enter upon the question to which the trial judge refers in his report in respect of the appellant's seventh ground of appeal, namely, whether in light of subsequent authorities (such as Paton v. Ritchie 2000 SCCR 151 and McKenna v. H.M. Advocate 2000 S.C.C.R. 159) he was wrong in holding that the matter was a devolution issue, intimation of which should have been made at a preliminary diet. Nor, in the absence of a fuller argument on the matter, would I regard it as appropriate to express a firm view as to whether a devolution issue truly arose in this case. The topic has recently been discussed in Stott v. Brown 2001 SCCR 62 by Lord Hope of Craighead with whose views the other members of the Judicial Committee agreed, Lord Clyde making certain additional observations. In the context of discussing a Minute lodged in that case before trial Lord Hope said at pages 91E-92B:
"It is sufficient to satisfy the test laid down in Schedule 6 that a devolution issue has 'arisen' for there to be a question as to whether or not a purported or proposed exercise of a function by a member of the Scottish Executive is incompatible with a Convention right. There is no need at this stage to inquire as to whether some other person or some other public authority, such as the court, also has a responsibility for giving effect to the same Convention right. The fact that that other person or other public authority has the last word or has the power to intervene in such a way as to preserve or give effect to the Convention rights may enable the question as to incompatibility to be answered in the negative. It may be possible to reach that answer as a matter of relevancy or, without further inquiry, on agreed facts. But that is not to say that a devolution issue has not arisen. On the contrary, it is to answer the question that has been raised".
[5] I am prepared, without deciding the matter, to assume that in the present case a devolution issue was raised at the trial giving rise to a need either to determine it or to determine other issues consequential on it having been raised. Where, however, an objection is taken at trial to the admissibility of evidence on the ground that its admission would or might involve an infringement of an accused's rights under Article 6, it may be that that issue can now be resolved, at least in some circumstances, by the trial court, in furtherance of its obligations under the Human Rights Act 1998, determining whether or not admission by it of such evidence would or might involve infringement. However, it is unnecessary to decide that matter in this case.
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Cameron of Lochbroom Lord Milligan Lord Hamilton Lord Macfadyen Lord Weir
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Appeal No: C609/99 OPINION OF LORD MACFADYEN in NOTE OF APPEAL by ANNIE MULVEY HARKINS GOURLAY or DICKSON Appellant; against HER MAJESTY'S ADVOCATE Respondent:
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Appellant: Gebbie; Bovey & Bovey
Respondent: A. Smith, Q.C., A.D.; Crown Agent
10 May 2001
Introduction
[1] The circumstances which have given rise to this appeal, the grounds of appeal advanced on behalf of the appellant and the legislative provisions to which it is necessary to have regard have all been set out by your Lordship in the Chair, and it is unnecessary for me to repeat them. I agree that the appeal should be refused for the reasons given by your Lordship in the Chair. I would add only a few observations of my own on certain of the issues raised in the appeal.
Impartial Tribunal
[2] It was submitted on the appellant's behalf that, in contravention of her rights under Article 6(1) of the European Convention on Human Rights, she had been denied a fair hearing before an independent and impartial tribunal. In the course of her trial, an issue was raised as to the validity of the Act of Adjournal (Devolution Issue Rules) 1999. That issue was determined by a court comprising the trial judge and two consulted judges. The Act of Adjournal, however, was a legislative act of the High Court of Justiciary. That being so, it was submitted, the decision that it was valid could not be said to have been taken by an impartial tribunal. The argument advanced did not involve any suggestion that any member of the court was, in the subjective sense, partial. Nor did the argument turn to any extent on the way in which the issue was addressed by the trial judge and the consulted judges. The submission was simply that no court comprising Lords Commissioners of Justiciary could be regarded objectively as an impartial tribunal for the purpose of adjudicating upon the validity of a legislative act of the High Court of Justiciary.
[3] In my opinion that submission is unsound. It is commonplace for courts, particularly supreme courts, to be given power to make rules to regulate their own procedure. It seems to me to be implicit in legislation conferring such rule-making power that, if the validity of the procedural rules is challenged before the court, the court will have jurisdiction to adjudicate on that challenge. Such adjudication in my view involves no objective appearance of lack of impartiality. A court has no such vested interest in the validity of its own rules as would render it, or make it appear to be, incapable of determining impartially whether a particular provision of those rules is or is not valid. A recent example of the Court of Session exercising such a jurisdiction, and holding an Act of Sederunt to be ultra vires, is to be found in Taylor v Marshalls Food Group 1998 SC 841.
[4] The appellant's position is not, in my view, strengthened by the submission that the trial court should have procured that the question of the validity of the Act of Adjournal came before the Judicial Committee of the Privy Council. In my opinion the power of a court of two or more judges of the High Court, under paragraph 11 of Schedule 6 to the Scotland Act 1998, to refer a devolution issue to the Judicial Committee is a discretionary power relating to matters that could be decided by such a court itself, and not a device for obtaining from the Judicial Committee a decision on an issue which the referring court could not determine.
The Validity of the Act of Adjournal
[5] In my opinion the Act of Adjournal was clearly within the powers conferred on the High Court by section 305 of the Criminal Procedure (Scotland) Act 1995, as extended by paragraph 37 of Schedule 6 to the Scotland Act. Mr Gebbie, for the appellant, submitted that the provisions of the Act of Adjournal were incompatible with Article 6(1) of the Convention because the imposition of a timetable for raising a devolution issue restricted the appellant's Convention rights. He relied on the observation in paragraph 123 of the Commission's Opinion in Reinhardt v France (1998) 28 EHRR 59 that:
"the Convention is intended to guarantee not rights that are theoretical and illusory but rights that are practical and effective".
It does not seem to me, however, that it can be said that regulation of the procedure for vindication a Convention right, by the imposition of a timetable and other procedural requirements, is ipso facto incompatible with, or detracts from, the Convention right in question, or that such requirements necessarily render the right "theoretical and illusory" rather than "practical and effective". On the contrary, it seems to me that in principle the aim of making the rights practical and effective is promoted rather than obstructed by the provision of clear procedural rules. Moreover, the relevant provisions of Rules 40.2(1) and 40.5(1) lay down no absolute rule. The seven day time limit contained in the former rule may be overcome by showing cause under the latter. The submission that those rules are incompatible with the appellant's rights under Article 6 has, in my opinion, no merit. The rules in question seem to me clearly to come within the broad category contemplated in section 305, and more particularly to make provisions of the sort specifically contemplated in paragraph 37. I therefore agree that the Act of Adjournal was intra vires.
Reasons for Decision
[6] Mr Gebbie argued that the failure of the trial judge and the consulted judges to state the reasons for their decision that the Act of Adjournal was intra vires at the time when that decision was intimated constituted a contravention of the appellant's rights under Article 6(1). In support of that submission he relied upon Hiro Balani v Spain (1994) 19 EHRR 566, in which the European Court of Human Rights reiterated (in paragraph 27) that Article 6(1) obliges the courts to give reasons for their judgments. It is to be noted, however, that the Court also made the points (i) that that was not to be understood as requiring a detailed answer to every argument, and (ii) that the question whether the court has failed to fulfil the obligation to state reasons can only be determined in light of the circumstances of the case. In the present case, the trial court did give reasons for its decision on the question of the validity of the Act of Adjournal, albeit not until after the conclusion of the trial. Mr Gebbie's complaint was that the duty to give reasons required to be fulfilled when the decision was intimated, and that the giving of reasons could not be postponed until a date after the conclusion of the trial. The authority on which Mr Gebbie relied does not carry him that far, although in my opinion there may well be cases in which Article 6(1) might be held to require that reasons be given contemporaneously with the intimation of the decision. That might be so, for example, in the case of a decision in the course of a trial, if an understanding of the reasons for the decision was necessary in order to enable counsel to decide how to conduct the remainder of the trial. On the other hand, it would plainly be inconvenient for the purposes of the orderly and expeditious conduct of criminal proceedings to have an absolute rule that any incidental decision in the course of a trial required to be accompanied by a full statement of reasons. In the circumstances of the present case it seems to me to be clear that it was sufficient for the appellant's purposes at the time to know that the Act of Adjournal had been held to be intra vires. I am therefore of opinion that the postponement of the issuing of the court's reasons for that decision until after the conclusion of the trial involved no contravention of the appellant's rights under Article 6(1).
The Presence of a Solicitor
[7] The substance of Mr Gebbie's objection which gave rise to the procedural issues which I have discussed so far was that it was unfair to admit evidence of what the appellant said in the course of an interview conducted by police officers in face of her repeated requests that a solicitor should be present. Neither the common law nor the Convention gives a suspect a right to have a solicitor present during interview (Paton v Ritchie 2000 JC 271 at 276D). Mr Gebbie's submission was, however, that such a right was implicit in the appellant's right to a fair trial under Article 6(1) of the Convention where she had requested the presence of a solicitor. In support of that contention he sought to rely upon Murray v United Kingdom (1996) 22 EHRR 29 and Averill v United Kingdom (Application No. 36408/97, Judgment of 6 June 2000). Those cases concerned persons charged with contraventions of anti-terrorist legislation in force in Northern Ireland. The European Court of Human Rights held that denial of access to a lawyer was in the circumstances a contravention of the applicants' rights under Article 6(1). The ratio of the Court's decision is to be found in paragraph 66 of the judgment in Murray:
"The Court is of the opinion that the scheme contained in the Order is such that it is of paramount importance for the right of the defence that an accused has access to a lawyer at the initial stages of the police interrogation. It observes in this context that, under the Order, at the beginning of police interrogation, an accused is confronted with a fundamental dilemma relating to his defence. If he chooses to remain silent, adverse inferences may be drawn against him in accordance with the provisions of the Order. On the other hand, if the accused opts to break his silence during the course of his interrogation, he runs the risk of prejudicing his defence without necessarily removing the possibility of inferences being drawn against him.
Under such conditions the concept of fairness enshrined in Article 6 requires that the accused has the benefit of the assistance of a lawyer already at the initial stages of police interrogation."
(See also Averill, paragraph 59.) Those cases are in my opinion clearly distinguishable from the appellant's case. She did not face the dilemma faced by the applicants in those cases. She had been cautioned that she need not answer questions. She clearly understood that caution. She declined, for the most part, to answer the questions put to her. The fact that she so declined did not prejudice her defence. In those circumstances, the cases relied upon afford no support, in my view, for the submission that it was contrary to the appellant's Article 6 rights, or otherwise unfair to her, to admit the evidence of the interview simply because it was conducted in face of her requests for a solicitor to be present. In my opinion the trial judge followed the correct course by admitting the evidence of the interview and giving the jury the directions that he did in relation to the fairness of the conduct of the interview.
Conclusion
[8] On the other matters discussed in the course of the appeal there is nothing that I wish to add to what has been said by your Lordship in the Chair. For the reasons which I have given and those given by your Lordship, I agree that the appeal should be refused.
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Cameron of Lochbroom Lord Milligan Lord Hamilton Lord Macfadyen Lord Weir
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Appeal No: C609/99 OPINION OF LORD WEIR in NOTE OF APPEAL by ANNIE MULVEY HARKINS GOURLAY or DICKSON Appellant; against HER MAJESTY'S ADVOCATE Respondent:
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Appellant: Gebbie; Bovey & Bovey
Respondent: A. Smith, Q.C., A.D.; Crown Agent
10 May 2001
[1] The only ground of appeal which at first sight appeared to have some substance was concerned with the failure in the course of the trial of the trial judge and the consulted judges to state their reasons for holding that the Act of Adjournal was intra vires. In such experience as I have had of the invaluable procedure whereby the trial judge, where an important point of law arises, may consult with other judges, the practice has been to deliver reasons in open court when a ruling has to be made. I regard this as in general a desirable practice and there may be situations in which a failure to give reasons at the time could constitute a breach of Article 6(1). Such might be the case if, as Lord Macfadyen says in his Opinion, an understanding of the reasons for the decision was necessary in order to enable counsel to decide how to conduct the remainder of the trial. But I do not consider this to be an absolute requirement. In the present case, the decision was that the Act of Adjournal was intra vires and that was a sufficient intimation as to how matters stood. It was not argued that the conduct of the case thereafter was prejudiced by the postponement of the giving of reasons. Indeed, having regard to the general importance of the ruling, it was desirable that care should be taken, as it was, in the formulation of the reasons and the decision to defer giving reasons, until a later date was well justified.
[2] Apart from the foregoing observations, I am content to express my entire agreement with the reasons given by your Lordship in the Chair for holding that the appeal should be refused.
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