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Lord Marnoch Lord Hamilton Lord Weir
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XC593/04
OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LORD MARNOCH in NOTE OF APPEAL AGAINST CONVICTION by JAMES ORD Appellant against HER MAJESTY'S ADVOCATE Respondent _____________ |
Appellant: Sudjic, Solicitor-Advocate
Respondent: Bain, A.D.
26 January 2005
[1] In this case the accused, who is 81 years of age, is indicted on three charges of using lewd and libidinous practices during various periods of which the most recent is the period between 15 December 1976 and 28 August 1978. [2] At a preliminary diet, under reference to two separate Minutes, it was argued on the accused's behalf that the Crown was precluded from insisting in these charges, first, by the operation of the vicennial prescription which, it was submitted, formed part of Scots criminal law and, second, by virtue of Article 6.1 of the European Convention on Human Rights. [3] The Temporary Judge had no difficulty in repelling both of these submissions and, in our opinion, he was entirely correct in so doing. Having read his opinion, we also endorse his reasoning, the details of which it is unnecessary to repeat. What is not so clear is the basis for his decision to grant leave to appeal his decision to this Court in relation to both Minutes, under Section 74 of the Criminal Procedure (Scotland) Act 1995. [4] Being content to adopt the reasoning of the Temporary Judge, there is little that this Court need add. In summary, however, so far as the vicennial prescription is concerned, Mr Sudjic submitted that it had been incompetent for a majority of the Court of twelve judges in Sugden v HMA 1934 JC 103 to overrule the full bench of six judges in HMA v McGregor (1773) M 11,146. He referred in that connection to the opinion of Lord McCluskey in Lord Advocate's Reference (No. 1 of 2001), 2002 SCCR 435 at pps. 475-6. In our opinion, however, this question simply does not arise since the majority in Sugden did no more than explain the earlier decision as having been based on bar or oppression rather than on prescription. Whether or not we are bound by these views, we respectfully agree with them; and, in that connection, we note that the decision has stood unchallenged for upwards of 70 years. In any event, we are certainly not persuaded that the views of the minority are such that an even larger court should be convened to reconsider Sugden, as was pressed on us by Mr Sudjic. [5] As regards Article 6.1, the plain fact of the matter is that Mr Sudjic was unable to cite any authority whatever in support of his proposition that, in appropriate circumstances, its provisions could be read as covering the period of time from the alleged commission of the offence rather than from the date of "charge". He sought to explain this dearth of authority by reference to the existence in other jurisdictions of statutory prescriptive periods. In our opinion, however, that is both an insufficient and an incorrect explanation. Instead, we respectfully adopt as the correct view of Article 6.1 the following passage which occurs in the opinion of Lord Rodger of Earlsferry in Dyer v Watson 2002 SC (PC) 89 at p. 127:"As its terms make clear, art 6.1 comes into play only where the person has been charged. Therefore it does not trench upon the principle adopted by the legal systems of the United Kingdom that, except where statute provides otherwise, criminal liability is not subject to prescription or limitation. In recent years, for instance, adults have frequently come forward to complain of sexual and other abuse committed many years before when they were children, and the perpetrators have been successfully prosecuted. The purpose of the reasonable time requirement brought into our domestic law by the incorporation of art 6 is not to require contracting states to have a system of prescription or limitation of liability in civil or criminal cases and so to introduce a cut-off point after which such man or woman can never be prosecuted. Provided always that the accused can get a fair trial, decisions on these delicate matters are left to the legal systems and legislatures of the individual states. The scope of the right in art 6.1 of the Convention is more limited. In criminal cases the guarantee is confined to the length of the proceedings after the person has been charged, the aim being to prevent him being left for too long in a state of uncertainty about his fate."
The result is that in Scotland any problem of delay prior to charge is dealt with either in the context of a preliminary plea alleging oppression or, failing that, by the trial judge giving appropriate directions to the jury.
[6] The appeals are refused.
CGA