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Cite as: 2006 SLT 705, 2005 SCCR 655, [2005] HCJAC 90, [2005] ScotHC HCJAC_90, 2006 JC 47, 2005 GWD 26-504

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Her Majesty's Advocate v. DS [2005] ScotHC HCJAC_90 (03 August 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Hamilton

Lord Nimmo Smith

[2005HCJAC90]

Appeal No: XC138/05

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

THE REFERENCE OF A DEVOLUTION ISSUE

under paragraph 9 of Schedule 6 to the Scotland Act 1998

HER MAJESTY'S ADVOCATE

Appellant;

against

Respondent:

_______

Appellant: Bell, Q.C.; Crown Agent

Respondent: Bovey, Q.C., Simpson; Gilfedder McInnes (McCuckser, McElroy & Co., Johnstone)

3 August 2005

The reference

[1] The panel was indicted for trial in the sheriff court at Paisley on a charge of indecent assault and a charge of contravening section 27(7) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). He has a "relevant previous conviction" for the purposes of section 275A of the 1995 Act, as amended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (the 2002 Act), namely a conviction of a contravention of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. Following a postponement of the original trial diet the panel lodged a devolution minute in which he maintained that sections 274, 275 and 275A of the 1995 Act, as amended by the 2002 Act, were incompatible with his right to a fair trial in accordance with article 6 of the European Convention on Human Rights. After a further postponement of the trial a hearing on the devolution minute took place before the sheriff on 30 November 2004. In advance of the hearing the panel lodged an application under section 275, stating that it was without prejudice to his right to argue the devolution minute. The sheriff was not asked to determine the application and did not do so. On 3 December the sheriff decided that the issue raised in the devolution minute should be referred to this court for determination. The panel was given time to lodge a draft reference, and the Crown time thereafter to lodge adjustments. On 30 December the defence lodged a "reference" for this purpose. On 4 February 2005 the sheriff referred " the devolution issue" to this court for determination.

[2] A number of matters may be noted in regard to the "reference". First, it is clear that a reference under paragraph 9 of Schedule 6 to the Scotland Act 1998 (the Scotland Act) is a document issued by the referring court, as in Clark v Kelly 2000 S.C.C.R 821, although parties may be required or invited to assist the court by preparing and adjusting a draft reference (Act of Adjournal (Criminal Procedure) Rules 1996, rule 40.7. See also H.M. Advocate v. Touati 2001 SCCR 392 at para. [6]. The "reference", on the other hand, sets out the panel's contentions and certain questions on which the panel purportedly seeks a determination by this court. It is not surprising that the procurator fiscal indicated in his letter to the sheriff clerk dated 1 February 2005 that the Crown did not consider that they could offer adjustments to a document in that form. However, when the "reference" is read with the interlocutor dated 4 February, the intention of the sheriff is plain enough. Accordingly we are prepared to entertain the "reference" as adequate to constitute a reference for the purpose of paragraph 9 of Schedule 6 to the Scotland Act.

[3] Secondly, despite the fact that the "reference" was sought by the panel, during the course of his submissions on his behalf Mr Bovey raised the question whether, having regard to the matters to which the application under section 275 was directed, the panel might not be a "victim" for the purposes of article 34 of the European Convention on Human Rights, as is required by section 100(1) of the Scotland Act. This is a matter with which we will deal later in this opinion.

[4] Thirdly, it is to be noted that at the end of the "reference" it is stated that

"the panel seeks a determination that-

the provisions read cumulatively are incompatible with the panel's right to a fair trial and are accordingly not law;

esto sections 274 and 275 are not incompatible with the panel's right to a fair trial, section 275A is incompatible with the panel's right to a fair trial and is accordingly not law".

While this sets out two contentions, Mr Bovey made it clear that in substance there was a single issue, namely whether, when read in conjunction with sections 274 and 275, section 275A is incompatible with the panel's right to a fair trial and is accordingly not law.

The legislation
[5] The 2002 Act substituted new provisions in place of sections 274 and 275 of the 1995 Act, and inserted the new sections 275A and 275B.

[6] As substituted by the 2002 Act, section 274 places restrictions on the admission of, or the allowance of questions designed to elicit, evidence relating to the complainer in the case of certain sexual offences. In terms of subsection (1) such evidence is

"evidence which shows or tends to show that the complainer -

is not of good character (whether in relation to sexual matters or

otherwise);

has, at any time, engaged in sexual behaviour not forming part of the

subject matter of the charge;

has, at any time (other than shortly before, at the same time as or

shortly after the acts which form part of the subject matter of the charge), engaged in such behaviour, not being sexual behaviour, as might found the inference that the complainer-

is likely to have consented to those acts; or
is not a credible or reliable witness; or

has, at any time, been subject to any such condition or predisposition

as might found the inference referred to in sub-paragraph (c) above".

[7] The substituted section 275(1) enables the court, on application made to it by either party, to admit such evidence or to allow such questioning if satisfied that-

"(a) the evidence or questioning will relate only to a specific occurrence or

occurrences of sexual or other behaviour or to specific facts demonstrating-

the complainer's character; or
any condition or predisposition to which the complainer is or has been subject;

(b) that occurrence or those occurrences of behaviour or facts are relevant

to establishing whether the accused is guilty of the offence with which he is charged; and

significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited".

In M(M)v H M Advocate 2004 S.C.C.R.658 it was held that sections 274 and 275, as substituted by the 2002 Act, were not incompatible with the appellant's right to a fair trial, and hence were not outwith the competence of the Scottish Parliament. Leave to appeal was refused by the court and, on 17 November 2004, by the Judicial Committee of the Privy Council. In delivering the decision of the Judicial Committee Lord Hope of Craighead observed that the proper course was for the issue of compatibility to be raised, if a conviction followed and the issue remained relevant, as a ground of appeal, when account could be taken of what happened at the trial.

[8] Section 275A provides:

"(1) Where, under section 275 of this Act, a court on the application of the accused allows such questioning or admits such evidence as is referred to in section 274 (1) of this Act, the prosecutor shall forthwith place before the presiding judge any previous relevant conviction of the accused.

(2) Any conviction placed before the judge under subsection (1) above shall, unless the accused objects, be-

in proceedings on indictment, laid before the jury;
in summary proceedings, taken into consideration by the judge.

(3) An extract of such a conviction may not be laid before the jury or taken into consideration by the judge unless such an extract was appended to the notice, served on the accused under section 69 (2) or, as the case may be, 166 (2) of this Act, which specified that conviction.

(4) An objection under subsection (2) above may be made only on one or more of the following grounds-

where the conviction bears to be a relevant conviction by virtue

only of paragraph (b) of subsection (10) below, that there was not a substantial sexual element present in the commission of the offence for which the accused has been convicted;

that the disclosure or, as the case may be, the taking into

consideration of the conviction would be contrary to the interests of justice;

in proceedings on indictment, that the conviction does not

apply to the accused or is otherwise inadmissible;

in summary proceedings, that the accused does not admit the

conviction.

(5) Where-

an objection is made on one or more of the grounds mentioned in paragraphs (b) to (d) of subsection (4) above; and
an extract of the conviction in respect of which the objection is made was not appended to the notice, served on the accused under section 69 (2) or, as the case may be, 166 (2) above, which specified that conviction,

the prosecutor may, notwithstanding subsection (3) above, place such an extract conviction before the judge.

(6) In summary proceedings, the judge may, notwithstanding subsection (2)(b) above, take into consideration any extract placed before him under subsection (5) above for the purposes only of considering the objection in respect of which the extract is disclosed.

(7) In entertaining an objection on the ground mentioned in paragraph (b) of subsection (4) above, the court shall, unless the contrary is shown, presume that the disclosure, or, as the case may be, the taking into consideration, of a conviction is in the interests of justice.

(8) An objection on the ground mentioned in paragraph (c) of subsection (4) above shall not be entertained unless the accused has, under subsection (2) of section 69 of this Act, given intimation of the objection in accordance with subsection (3) of that section.

(9) In entertaining an objection on the ground mentioned in paragraph (d) of subsection (4) above, the court shall require the prosecutor to withdraw the conviction or adduce evidence in proof thereof.

(10) For the purposes of this section a "relevant conviction" is, subject to subsection (11) below -

a conviction for an offence to which section 288C of this Act applies by virtue of subsection (2) thereof; or
where a substantial sexual element was present in the commission of any other offence in respect of which the accused has previously been convicted, a conviction for that offence,

which is specified in a notice served on the accused under section 69 (2) or, as the case may be, 166 (2) of this Act.

A conviction for an offence other than an offence to which section 288C of this Act applies by virtue of subsection (2) thereof is not a relevant conviction for the purposes of this section unless an extract of that conviction containing information which indicates that a sexual element was present in the commission of the offence was appended to the notice, served on the accused under section 69 (2) or, as the case may be, 166 (2) of this Act, which specified that conviction.".

As regards section 288Cof the 1995 Act, it is sufficient for present purposes to

note that subsection (2) sets out a list of a number of sexual offences including indecent assault and a contravention of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995.

[9] The legislation sets out to some extent the stages at which various steps should be taken. Section 275B provides that an application for the purposes of section 275 (1), unless on special cause shown, is not to be considered by the court unless it is made not less than 14 clear days before the trial diet. There is no provision, on the other hand, as to the stage at which the application is to be considered and determined. As we have noted, subsection (1) of section 275A provides that if the application is allowed, the prosecutor is "forthwith" to place any previous relevant conviction before the presiding judge. The accused then has the opportunity to state any objection on one or more of the grounds set out in subsection (4). The prosecutor would no doubt be heard as well. If the accused does not object, or if his objection is unsuccessful, the conviction is to be laid before the jury in proceedings on indictment. The section does not state at what stage this is to happen. However, it appeared to us to be right that this should not happen unless and until the accused leads the evidence, or puts the questions, which had been allowed on his application.

[10] Section 275A represents an exception to the general rule, currently set out in section 101(1) of the 1995 Act, that the previous convictions of the accused are not to be laid before the jury or referred to in their presence before the verdict is returned. Section 274A is not, however, the first statutory provision which enables a previous conviction of an accused to be put before a jury prior to that stage. Subsection (4) of section 266 of the 1995 Act permits an accused in certain circumstances to be questioned as to whether he has been convicted of any other offence than that with which he is then charged, or is of bad character. These circumstances include, in sub-paragraph (b), where "the accused or his counsel or solicitor has asked questions of the witnesses for the prosecution with a view to establishing the accused's good character or impugning the character of the complainer, or the accused has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of the witnesses for the prosecution or of the complainer". Under subsection (5) the prosecutor is entitled to ask such a question only if on his application the court permits him to do so. These provisions are ultimately derived from section 1 (f)(ii) of the Criminal Evidence Act 1898. In Leggate v H.M. Advocate 1988 J.C.127 the court observed at page 143 that such a provision is to be regarded as spelling out the conditions which fall to be applied when an accused gives evidence and that in determining whether to allow cross-examination of an accused on his convictions or character, the trial judge requires to exercise a discretion, the fundamental consideration being a fair trial.

[11] Section 270 of the 1995 Act has a more recent origin, being derived from section 24 of the Criminal Justice (Scotland) Act 1995. The circumstances to which it applies are similar to section 266(4) (b) to the extent that they relate to the raising of questions of character. Once again the prosecutor's entitlement to disclose the accused's previous convictions is subject to the court permitting him to do so. Subsection (2) of section 270 states that where the section applies the court may, without prejudice to section 268 (which is concerned with the leading of additional evidence), on the application of the prosecutor, permit the prosecutor to lead evidence that the accused has, inter alia, been convicted of offences other than that for which he is being tried, or is of bad character. Subsection (1) provides that the section applies where evidence is led by the defence, or the defence asks questions of a witness for the prosecution, with a view to establishing the accused's good character or impugning the character of the prosecutor, or of any witness for the prosecution or of the complainer; or the nature or conduct of the defence is such as to tend to establish the accused's good character or to involve imputations on the character of the prosecutor, of any witness for the prosecution or of the complainer. There is no previous decision in regard to the giving of permission under section 270. However, we are in no doubt that, as in the case of section 266, the fundamental consideration would be a fair trial.

[12] From the proceedings before the Scottish Parliament in regard to the 2002 Act, to which we were referred, it is apparent that in the past courts had been slow to allow under section 270 the disclosure of an accused's previous conviction. Thus section 275A, and in particular subsection (7), were seen as requiring the court to consider whether there was a good reason why it should not be disclosed.

Submissions for the panel

[13] Mr Bovey maintained that sections 274 and 275 tended to encourage applications under section 275 where the accused did not have a relevant previous conviction. In particular section 275B put pressure on the defence to make an early application. In M(M) v H.M. Advocate the court had rejected the argument that this was incompatible with a fair trial. Mr Bovey did not dispute the soundness of that decision. However, in passing he maintained that the Lord Justice Clerk had been in error in para [43] of his opinion where he relied on subsection (9) of section 275 as authority for the extension of a grant already made under that section

[14] Where, on the other hand, the accused had a relevant previous conviction, the risk of its disclosure created, he said, a pressure on the defence not to make an application under section 275, or, where such an application had been made and granted, not to put the questions or lead the evidence which had been allowed, so constraining the way in which the defence was conducted. Given that before such an application was granted the court required to be satisfied, in terms of section 275(1) (b), that the occurrence or occurrences of behaviour or facts were relevant to establishing whether the accused was guilty of the offence with which he was charged, it followed that such pressure was inconsistent with the right of the accused to a fair trial. The risk of disclosure of the previous conviction would hang over the accused until such time as a decision on disclosure was made. Actual prejudice to the accused did not require to be demonstrated. In the matter of a fair trial a hindrance could be as bad as a prohibition (Golder v United Kingdom (1975) 1 E.H.R.R.524 at paragraph 26; and Riepan v Austria (2001) Application No. 35115/97). Sections 274 and 275 had already created a disadvantage for the defence. It was not maintained that the court had come to the wrong conclusion in M(M) v H.M. Advocate. However, section 275A further tilted the balance against the accused and rendered the trial process unfair.

[15] The fact that, where objection is taken by the accused, the court had to decide, in terms of section 275A (4)(b), whether the disclosure would be "contrary to the interests of justice" did not make this pressure legitimate. Because of the risk of failure the defence could not rely on the court deciding against disclosure. There was uncertainty as to what that expression covered. There was no statutory guidance. Moreover, in terms of section 275A(7) there was a presumption that the disclosure was in the interests of justice. This meant that there was a lack of a level playing field which was an aspect of fair trial (cf Dombo Beheer B.V. v The Netherlands (1993) 18 E.H.R.R. 213 at paragraph 33; and A.B. v Slovakia (2003) Application No. 41784/98, at paragraph 55). The outcome of an objection on that ground could not be confidently predicted. Different judges might reasonably take different views in regard to the same question. It would be difficult to succeed in an appeal on the ground that the presiding judge had wrongly rejected the accused's objection. It would also be difficult to succeed in an appeal on the ground that the appellant's legal representative had failed to make an application or to pursue an application which had been granted.

[16] Mr Bovey also questioned whether section 275A had a legitimate object. It appeared to lack any intelligible aim apart from discouraging the accused from exercising rights which were necessary to his defence or prejudicing him for doing so. It did not appear to depend on the accused giving evidence. Mr Bovey maintained that section 275A, which had not formed part of the Bill from the outset, was not based on adequate research and was not supported by a clear justification. The pressure which he criticised was systemic in the sense that it applied to all cases.

Furthermore, the circumstances in which the accused's previous conviction might be disclosed were not limited to those in which he sought to raise matters of character. It appeared to be intended that the accused's previous conviction could be treated as similar fact evidence. Such evidence was equally relevant in all cases, and was not rationally triggered by the exercise of defence trial rights. There was no express safeguard such as its relevance to the issues in the case or consideration of the impact of the information on the jury. In any event the disclosure of the accused's conviction was disproportionate to any legitimate aim. It was more widely expressed than the legislation considered by the House of Lords in R v A (No.2) [2002] 1AC 45, or the Supreme Court of Canada in Darrach v The Queen [2000] 2 S.C.R.443.

[17] Sections 274-275A should be differentiated from sections 266 and 270 of

the 1995 Act. The latter two sections addressed legitimate aims and did so in a proportionate way. They were narrower in scope, being concerned with the reliance of the defence on matters of character. The prosecutor could disclose the accused's previous conviction only if he chose to apply for, and obtained, permission from the presiding judge to do so.

[18] Mr Bovey said that these submissions were predicated on the footing that the panel was or would be a "victim". In A v Scottish Ministers 2002 S.C.(P.C.) 63 Lord Hope of Craighead pointed out at paragraph [8] that this was the first question to be addressed when a court was asked to determine whether an enactment of the Scottish Parliament was outside its legislative competence. Mr Bovey said that it would not matter if there were some accused for whom the application of section 275A would not be incompatible with their right to a fair trial. The application which had been lodged in the sheriff court in the present case could be said to relate to subsection (1)(c)(i) and (ii), and possibly (b) of section 274. However, it was arguable that the matters which it sought to raise did not fall within section 274 at all. If so, the application was unnecessary and the disclosure of the accused's conviction would not arise. Mr Bovey placed reliance on the remarks of the Lord Justice Clerk at paragraph [27] of his opinion in M(M) v H.M. Advocate, where he expressed the opinion that a prior course of cohabitation by the complainer with the accused would not constitute, for the purpose of section 274 (1) (b), engaging "in sexual behaviour not forming part of the subject matter of the charge". Evidence of the influence of a third party on the complainer, with which part of the contents of the application in the present case was concerned, would not fall within section 274.

Discussion and decision
[19] We are satisfied, on the assumption that Mr Bovey's submissions as the incompatibility of section 275A with the right to fair trial are well-founded, that the panel should be regarded as a "victim". The panel requested the sheriff to make a reference to this court on the basis that the panel had a relevant previous conviction and that for the purposes of his defence he intended to make the application lodged in court. On the other hand the sheriff was not asked either to grant the application or to refuse it as unnecessary. The question whether the application is unnecessary may not admit of a simple answer. For his part the Advocate depute indicated that he did not accept the soundness of the remarks made by the Lord Justice Clerk on which Mr Bovey placed reliance (see para. [18] above). In these circumstances, let alone the fact that the process for a reference has been fully embarked upon, it appears to us to be inappropriate for the panel now to seek to raise the question whether the application, and hence the reference, was unnecessary. Quite apart from these considerations we are of the view that the panel has raised a devolution issue which is of some general importance for other cases. It is in the public interest that it should be addressed. We now turn to the merits of the submissions presented by Mr Bovey.

[20] As we have noted, he maintained that the existence of section 275A, taken in conjunction with sections 274 and 275, was such as to create, in a case such as the present where the accused has a relevant previous conviction, a pressure which was incompatible with the fair trial of the accused. However, as the Advocate depute pointed out, that so-called pressure is not essentially different from the position in a case where section 266 or section 270 applies. In each of these cases the legal representative of the accused has to decide whether to pursue a line of evidence or questioning when there is a risk that this may lead to the disclosure of the accused's previous conviction. It is true that, in the case of sections 266 and 270, the defence's ability to pursue that line is unfettered, whereas, in the case of sections 274 and 275, it is subject to the permission of the court. But in each case the evidence or questioning is pursued at the initiative of the defence as being in the interests of the accused. For these reasons we do not consider that the sections with which we are concerned create, in any real sense, a pressure which is not present in the case of sections 266 or 270.

[21] The central questions which arise in this reference are whether section 275A, considered in conjunction with sections 274 and 275, has a legitimate aim, and, if so, whether the means which it provides for achieving that aim are disproportionate.

[22] It is clear that the main purpose of the group of sections which includes section 275A is to restrict the cross-examination of complainers in sexual offence cases. The justification for such restriction was discussed by McLachlin J in R v Seaboyer (1991) 83 DLR (4th) 193 at page 258, and by Lord Slynn of Hadley in R v A (No. 2) at paragraphs 1-4. McLachlin J pointed out the dangers inherent in the "twin myths", namely the idea that because the complainer had had sexual relations with the accused or others (i) it was more likely that she had consented on the occasion libelled, and (ii) her credibility was undermined. Both were "of little probative value and calculated to mislead the jury". As the Lord Justice Clerk pointed out in M(M) at paragraph [29], the protection of a complainer from unfair and intrusive attacks on her sexual history or character and the exclusion of evidence tendered in the pursuit of the " twin myths" have been recognised as legitimate aims for the protection of the complainer's rights to privacy under article 8. The existence of the risk of disclosure of a relevant previous conviction may play a part in achieving the legitimate aim of discouraging an accused from making such attacks. As the Advocate depute pointed out, in the past the disclosure of an accused's previous convictions has not been held to constitute a violation of his rights under Article 6 (see, for example, the decision of the European Commission in X v Austria, Application No. 2742/66).

[23] Where the court, on the application of the accused, decides in accordance with section 275 that certain questioning should be allowed or evidence admitted, the general aim of section 275A is, in our view, directed towards parity of treatment, as between the complainer and the accused, in much the same way as in the cases of sections 266 and 270. Our attention was drawn to a statement made by the Minister for Justice to the Scottish Parliament at the third reading of the Bill when he emphasised that a previous conviction disclosed under this or the earlier legislation could not supply corroboration for the Crown case. That is clearly correct.

[24] We recognise that section 275A applies not only where the accused seeks to raise matters of character but also where he is concerned with the previous behaviour of the complainer, whether sexual or non-sexual. However, section 275A(4)(b) entitles the accused to object to the disclosure of his previous conviction on the ground that it "would be contrary to the interests of justice". That is a matter for the presiding judge to determine according to the circumstances of the particular case. We have no doubt that it cannot be determined without consideration of the accused's right to a fair trial. It is unnecessary, unwise and impracticable for this court to attempt to give an exhaustive list of the various ways in which considerations of fairness might lead the presiding judge to decide that a previous conviction should not be disclosed. However, one obvious example is where the significance of disclosure would be out of proportion to the significance of the evidence or questioning which the accused seeks to elicit or pursue. Thus if the accused's representative sought to bring out some specific, but relatively limited, point of credibility as bearing on the complainer's account of his behaviour, the presiding judge might well conclude that it was not in accordance with justice that a previous conviction for a serious offence should be disclosed to the jury. Another example would be where the previous conviction could not be regarded as relevant to any parity of treatment of the complainer and the accused. On other hand, it might be a different matter if, for example, a previous conviction bore on the credibility of an account given by the accused from the witness box or in the course of being interviewed by the police.

[25] There is, of course, a presumption set out in subsection (7) of section 275A. However, that subsection appears to us to do no more than require that there has to be some reason why the previous conviction should not be disclosed. Given that there is some reason, it is a matter for the presiding judge to address the considerations for and against disclosure and decide which is the stronger. Thus we would interpret the subsection as similar in effect to an evidential burden of proof. We reject the argument that the subsection means that there is not a level playing field. If there were apparent substance in that argument, we would interpret the subsection, in accordance with the canon of construction which is required by section 101 of the Scotland Act, as having the limited significance which we have set out above.

[26] For these reasons we are of opinion that section 275A, read in conjunction with section 274 and 275, is not incompatible with the right of an accused such as the panel to a fair trial. If the panel is convicted, any question as to the effect of any decision taken under section 275A on the fairness of his trial should be considered in the light of what happens between now and the conclusion of the trial.