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HIGH COURT OF JUSTICIARY
[2007] HCJ08
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OPINION OF
LADY SMITH
in the cause
D.L.
Appellant;
against
HER MAJESTY'S
ADVOCATE
Respondent:
ญญญญญญญญญญญญญญญญญ________________
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Appellant: McKenzie, Advocate
Respondents: Dr A. Brown, Advocate-depute
Introduction
[1] An
issue arose in this case in the context of the accused's bail appeal. It is a short point and is that he wished to
be present at the hearing of his appeal against the refusal of bail. He had not been brought to the court from
prison, where he had been remanded pending trial. He was represented by a solicitor and
counsel. The issue that arises is
whether he was entitled to be present at the hearing.
Background
[2] The accused has been
charged with having murdered his wife.
He was refused bail by the Sheriff at Paisley on 9 August 2007. He appealed against that refusal and by
letter dated 14 August 2007,
his agents wrote to the court, under reference to the forthcoming bail appeal
hearing in the following terms:
"Our client
would wish to be brought through for the above so that we can consult with
Counsel. We enclose a copy of our letter
to the Prison of even date."
[3] The
letter to the prison was in the following terms:
"We enclose a
copy of our letter of even date to Justiciary and perhaps you could note that ...
is to be taken through to Edinburgh
for his Bail Hearing."
[4] The
accused was not ordered up for the hearing which first took place on 15 August 2007, the Crown's
position being that he was not entitled to be present. The hearing was continued to 24 August 2007. Again, the accused was not brought.
The Hearing on 24 August 2007
[5] Miss McKenzie
appeared on behalf of the accused. She
moved for a continuation which I did not consider it appropriate to grant. The grounds for that motion and its refusal
are not pertinent to the issue with which this opinion is concerned.
[6] Miss McKenzie
submitted that the hearing of the accused's bail appeal should not proceed in
his absence. He had a right to be
present. She advanced two grounds in
support of that submission. The first
was that the accused had instructed that he wanted to be present. It was not just a matter of wishing to
consult, as was suggested by his agents' letter. He wished to be present at the hearing. He was studying for a law degree and
considered that it would assist his case if he was present. The second was that there had been occasions
in the past when the court had allowed accused persons to be present at the
hearing of bail appeals.
[7] The
Advocate-Depute, for the Crown, opposed the motion. The accused did not have a right to be
present. The two relevant sources of law
were article 6(1) of the convention and s.32(4) of the Criminal Procedure(Scotland)
Act 1995 ("the 1995 Act). Neither had the effect of conferring such
a right on the accused. He also referred
to the case of X v Federal Republic of Germany DR 1 (1974) 82.
Relevant Law
[8] Section 32
of the 1995 Act makes provision for bail appeals and s.32(4), in
particular, provides:
"An appeal under
this section shall be disposed of by the High Court or any Lord Commissioner of
Justiciary in court or in chambers after such inquiry and hearing of parties as
shall seem just."
[9] Article 6(1)
of the European Convention on Human Rights, insofar as relevant for
consideration in connection with this issue, provides:
"1. In the determination of his civil
rights and obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
[10] Article 5 of the convention, again insofar as relevant in
connection with this issue, provides:
"1. Everyone has the right to
liberty and security of person. No one
shall be deprived of liberty save in the following cases and in accordance with
a procedure prescribed by law:
...
(c) the lawful ... detention of
a person effected for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence or fleeing
after having done so ...
...
3. Everyone who is ...
detained in accordance with the provisions of paragraph 1(c) of this
Article shall be brought promptly before a judge or other officer authorized by
law to exercise judicial power ...
...
4. Everyone who is deprived
of his liberty by ... detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful."
[11] In the case of X v Federal Republic of Germany an
applicant charged with murder complained that he was refused permission to
appear in person before the Court of Appeal when decisions were taken
confirming his detention on remand pending trial and that that refusal was a
contravention of his article 6 rights.
The court held that those proceedings were not concerned with the
determination of the applicant's civil rights or obligations nor were they
proceedings for the determination of a criminal charge against him. It followed that the proceedings fell outwith
the scope of Article 6.
[12] Article 5 provides a set of procedural rights for
detainees and also requires to be considered.
Although not cited to me at the hearing today, I should add that I
consider that what is said in paragraph 51 of the judgment in Sanchez-Reisse v Switzerland 1987 9 EHRR 71 referred to in the more recent case of Kampanis v Greece 1996
21 EHRR 43, appears to be relevant to the issue raised:
"In the Court's
opinion, Article 5(4) required in the present case that
Mr Sanchez-Reisse be provided in some way or another, with the benefit of
an adversarial procedure.
Giving him the possibility of submitting
written comments on the Office's opinion would have constituted an appropriate
means, but there is nothing to show that he was offered such a
possibility. ...
The applicant's reply did not,
however, necessarily have to be in writing: the result required by
Article 5(4) could also have been attained if he had appeared in person
before the Federal Court.
The possibility for a detainee 'to
be heard either in person or, where necessary, through some form of
representation' features in certain instances among the "fundamental guarantees
of procedure applied in matters of deprivation of liberty". Despite the differences in wording between
paragraph 3 (right to be brought before a judge or other officer) and
paragraph 4 ( right to take proceedings) of Article 5, the Court's
previous decisions relating to these two paragraphs have hitherto tended to
acknowledge the need for a hearing before the judicial authority."
[13] Thus, the court in Sanchez-Reisse
did not regard the presence of the accused in person as being required to meet the
requirements of Article 5(4) albeit that that would be one way of doing
so. It is apparent both from that
decision and the decision in Kampanis
that it is not the only way and that the key consideration is whether or not
the accused has been afforded a proper adversarial procedure in a hearing
before a judicial authority. That that
is the key consideration is also apparent from cases such as Toth v Austria (1991) EHRR 551 and Lamy v Belgium (1989) 11 EHRR 529.
Discussion and Decision
[14] I determined that the accused did not have the right contended
for by Miss McKenzie.
[15] Dealing firstly with the reference to accused persons having
been present at bail appeals in the past, it seems to me that there are two
separate sets of circumstances in which that might arise. The first is where the accused is
unrepresented and wishes to appeal against a refusal of bail. It is self evident that in those
circumstances he will normally be entitled to appear at the hearing. I say "normally" since I do not rule out the
possibility that, in a particular case, his interests may be sufficiently
protected and a proper adversarial process achieved by receiving his
submissions in written form. The second
is where the court, using the powers conferred by s.32(4) considers that
justice requires that the accused be present.
[16] In the present case, the accused was represented by counsel
who, in turn, had been instructed by a solicitor acting on his behalf. She had instructions to appear for him. She was, as it transpired, in a position to
address the merits of the application, notwithstanding an initial indication
that she could not do so. It seemed in
fact that that indication was attributable to two further psychiatric reports
that have been instructed not yet being available rather than being
attributable to her not having familiarity with or instructions in respect of,
the matters relied on by the Crown in support of its opposition to bail. In short, she was in a position to put his
case and to do so in the light of all arguments raised against it. The accused was thus able to be afforded the
benefit of a proper and full adversarial procedure.
[17] It was in these circumstances that I refused the motion to continue the appeal
until the accused was present. I did so
on three grounds:
1. I was satisfied that the
accused's article 6 rights were not being breached since the hearing did
not have the potential for determining any of his civil rights or obligations
or the criminal charge outstanding against him;
2. I was satisfied that the
requirements of Article 5(4) were met in respect that he was able to be
afforded a proper adversarial procedure through his legal representatives; and
3. I did not consider that
justice required him to be present in circumstances where he was able to be
afforded the procedure above referred to through representation the adequacy of
which I had no reason to doubt.
