Scottish High Court of Justiciary Decisons

Her Majesty's Advocate v. P.H. [2002] ScotHC 124 (19 September 2002)

HIGH COURT OF JUSTICIARY OPINION OF LORD MacLEAN in causa HER MAJESTY'S ADVOCATE against P.H. ___________

 

 

Act: J Carroll, Solicitor Advocate

Alt: Batchelor, Q.C., A.D.

 

1. P.H. has been indicted at the instance of Her Majesty's Advocate on a number of charges which include a charge of rape. These have been set down for trial at the sitting of the High Court of Justiciary in Glasgow commencing on 12 September 2002. On his behalf there has been lodged a Minute of Notice lodged under section 98 and Schedule 6 of the Scotland Act 1998. It purports to raise a Devolution Issue. The Minuter acknowledges that it is out of time but the Crown have waived any objection on that ground. So I proceeded to hear submissions by Mr Carroll for the Minuter and the Advocate Depute (Batchelor, Q.C.) for the Crown.
2. The averments in the Minute in support of the Devolution Issue which it is sought to raise, are concentrated upon the Lord Advocate's Reference (No.1 of 2001) which is reported in 2002 SCCR 435. It is said that in this reference the Lord Advocate and the court acted as legislatures because, between the two, the law relating to rape in Scotland was changed. Neither the court nor the Lord Advocate was empowered to act in this way. If a change in the law was to be brought about, that could only be done by the Scottish Ministers and the Scottish Parliament acting in accordance with the provisions of the Scotland Act 1998. In any event, as a consequence of the submissions made by the Lord Advocate, the court redefined the law with retrospective effect and acted in violation of the Minuter's Convention rights, and in particular those enshrined in Article 7(1) of the European Convention on Human Rights. It should be noted here that the Minuter is alleged to have committed the offence of rape on 10 April 2002. The court gave its decision in the Lord Advocate's Reference (No.1 of 2001) on 22 March 2002.
3. In terms of section 123 of the Criminal Procedure (Scotland) Act 1995 the Lord Advocate may refer to the High Court of Justiciary for their opinion a point of law which has arisen in relation to a charge upon which a person tried on indictment has been acquitted or convicted. The argument which the Lord Advocate deploys before the court in relation to that point of law seems to me to be neither here nor there. It is the decision of the court, reached after considering the competing submissions, that determines the point of law. In any particular reference the court may or may not be persuaded by the Lord Advocate's submissions. I am absolutely clear that what the Minuter is complaining against is the court's majority decision in response to the point of law raised by the Lord Advocate's Reference. That decision does not, even remotely, fall within the definition of a Devolution Issue in Schedule 6 of the Scotland Act 1998. I therefore dismiss the Minute.
4. Having reached that conclusion I may, I think, be permitted to be brief about the Minuter's other submissions. Mr Carroll maintained that the majority of the court had innovated upon and changed the law relating to rape in Scotland. In support of that submission Mr Carroll drew extensively upon the opinions of the minority judges, Lords Marnoch and McCluskey. The objection to that is that these two judges represent a minority view. I have to follow and accept the majority view. That view is that, while the court reviewed the law of rape, it merely corrected it, having concluded that the opinion of the majority of the court in HMA v William Fraser (1847) Ark 280 should be preferred to that of the majority of the court in HMA v Charles Sweenie (1858) 3 Irv. 109. The Lord Justice General (Cullen) said at p.452D:

"For the reasons given in the earlier part of this opinion I consider that the decision in Sweenie was not correctly decided at the time when it was decided and should be overruled, and the general rule relating to the law of rape is correctly stated by reference to the woman's lack of consent. I should add that I do not consider that there is any impediment to this court overruling Sweenie."

Lady Cosgrove said at p.461C:

"It has been said that ours is a live system of law. Our law should be like a living tree, not only growing but shedding dead wood as it does so. The opportunity has now presented itself and I am of the view that the law should be revisited and the flawed approach, imported in Sweenie, departed from in the manner suggested by your Lordship in the chair:"

Lord Nimmo Smith at p.461E said:

"Ours is however a live system of law (Stallard v HM Advocate, per the Lord Justice General (Emslie) p.254), and it lies within the powers of this court, as custodians of the common law, to review it, and to correct the way in which it is stated, when it is necessary to do so in order to take account of developments in the law and to meet the needs of the community. This latter consideration appears to me to be of particular importance in a case such as the present. There have been profound changes in the position of women as members of society, and in attitudes to sexual conduct since Baron Hume wrote. So it appears to me to be necessary to examine with particular care the way in which the crime of rape has been defined from time to time."

5. In any event, Convention jurisprudence recognises that

"the progressive development of the criminal law through traditional law making is a well entrenched, necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen."

(See SW v UK 21 EHRR 363 at 399; and Kokkinakis v Greece 1993 17 E.H.R.R. 397 at 423). It has often been said that "ignorance of the law will not excuse unlawful conduct". (See, for example, Millar v Dickson 2000 S.L.T. 988 per Lord Hope of Craighead at p.997). The conduct alleged in charge 1 of the indictment is certainly unlawful, and the Minuter cannot in my opinion plead ignorance in relation to it.

6. Finally I should say that the averments in paragraph 3(v) of the Minute I find fanciful and remote. The court, after all, went out of its way in the Lord Advocate's Reference (No.1 of 2001) to say that nothing in the opinions should be treated as critical of the decision which was taken in relation to the accused by the trial judge who reached his decision on all the evidence in the case. And the notion that the Minuter's acquittal on a charge of rape ten years ago will now be viewed with suspicion - and I ask by whom? - is at best far fetched.
7. Having read the judgment out in court Mr Carroll moved me to grant leave to appeal, believing, mistakenly, that this was a preliminary diet in terms of section 73 of the Criminal Procedure (Scotland) Act 1995. The Minute of course was not lodged in terms of section 72 of the 1995 Act. It is provided for in terms of Schedule 6 of the Scotland Act 1998 and the rules which are laid out in the relevant Act of Adjournal. Since I reached the clear view that no Devolution Issue was disclosed by the Minute, there was nothing for me to remit to a larger court of the High Court of Justiciary, even had I been minded to do so. And so I refused Mr Carroll's motion for leave to appeal.