Complainer: MacSporran, A.D.; Crown Agent

First Respondent: Clancy, Q.C., Jackson; McSporran McCormick, Glasgow

Second Respondent: Anthony, Q.C., Mitchell; Francis Gill & Co., Edinburgh

3 April 2012

Introduction

[1] These bills of advocation came before the court for a preliminary hearing to determine their competency. The two respondents are elderly retired ladies who have been charged on an indictment containing several charges of physical abuse towards children. The offences alleged on the indictment occurred over a period from 21 September 1970 to 1 July 1972 and involve six complainers. The locus of the alleged offences is an Approved School. The dates of the various charges are the respective dates of admission and discharge from the Approved School of the various complainers.

[2] On 26 and 27 May and 6 June 2011 the sheriff, at Paisley, heard a debate in relation to devolution minutes lodged on behalf of both respondents. On 26 July 2011, in a written determination, the sheriff sustained the first part of the devolution minutes by holding that

"... as a consequence of the passage of time, the loss of records and the death of potential witnesses the risk of prejudice to both Accused is so grave that it would be impossible to direct a jury in such a way that that prejudice could be avoided. I have therefore decided to sustain the first leg of the Devolution Minutes in relation to the arguments advanced in terms of Article 6 of the European Convention on Human Rights that the Accused would not have a fair trial."

By virtue of section 74(1) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") the Crown could have appealed against the sheriff's determination within a period of seven days of its being made. The Crown did not do so. On 24 September 2011 the Crown, however, lodged bills of advocation in both cases. While section 191A of the 1995 Act provides that in proceedings on summary prosecution, bills of advocation must be lodged within three weeks of the date of the conviction, acquittal or, as the case may be, other decision to which the bill relates, no such time limit is provided by statute where the proceedings, as here, are brought on indictment. The pleas-in-law in support of the bills are in identical terms, namely:

"The learned sheriff's decision to allow the devolution minutes, being unjust, erroneous and contrary to law should be recalled and the indictment remitted to the sheriff with a direction to set new diets and extend the time bar if necessary or to otherwise proceed as accords."

In their answers both respondents have a preliminary plea to the effect that "This Bill of Advocation being incompetently before this court for the reasons stated at answer 9 above, their Lordships should dismiss the Bill".

[3] At a procedural hearing on 15 December 2011, the court appointed a hearing to be held on the question of competency raised in the respondent's answers. In the event, as will be seen, that hearing, to which this opinion relates, by agreement of all parties, dealt not only with the issue of competency but also a subsidiary argument, advanced on behalf of the respondents, that the Crown, by its actings or omissions was now barred from bringing the Bills. The first-named respondent lodged a written case and answer. Its terms were adopted on behalf of the second respondent. The submissions made by senior counsel for the first-named respondent, Mr Clancy, Q.C., were adopted also on behalf of the second-named respondent.

Competency of the Bill - the effect of section 74 and section 131 of the 1995 Act

[4] The first argument advanced on behalf of the respondents was that, by virtue of the provisions of section 74(1) of the 1995 Act the Crown had one route, and one route only, to challenge the decision of a court at first instance, made at a first diet, or a preliminary hearing, and that was by way of appeal in terms of the section. Section 74(1) was introduced by the Criminal Justice Act 1980 as an amendment to the Criminal Procedure (Scotland) Act 1975. Before 1980 there had been no statutory procedure available for the Crown to appeal against a decision to uphold a plea in bar of trial or a decision to dismiss a complaint or indictment on grounds of relevancy or competency. The respondents' submission was that when Parliament enacted that provision it did so with the intention and effect of replacing bills of advocation as the competent way of seeking review of any decision which could now competently be appealed against, with leave, under the statutory procedure. That submission was made notwithstanding the provisions of section 131(1) of the 1995 Act, which is to the following effect:

"Without prejudice to section 74 of this Act, the prosecutor's right to bring a decision under review of the High Court by way of bill of advocation in accordance with existing law and practice shall extend to the review of a decision of any court of solemn jurisdiction".

It was contended, on behalf of the respondents, that the purpose of that provision was simply to permit advocation against decisions of a High Court judge. It did not, however, have the effect of preserving review by way of bill of advocation, or recognising the continuing competency of such a procedure, where a statutory right of appeal was now available under section 74(1). There was no good reason in principle or practice, it was submitted, why there should be two alternative avenues of approach available to the Crown. That submission was made, it appeared, on an understanding that the accused would not be able to employ the alternative of proceeding by way of bill of advocation and was confined to the statutory appeal route, an understanding that played a predominant role in a later argument based on Article 6 of the European Convention on Human Rights and the requirements for what is sometimes described as equality of arms under the provisions of that article. The wording in section 131(1) "by way of bill of advocation in accordance with existing law and practice" appearing in section 131(1) was, it was submitted, referring to the law as it existed after the passing of section 74(1), it was not to be read as recognising the maintenance of any right to proceed by way of bill of advocation when a section 74 appeal was available.

Discussion

[5] We reject the foregoing submissions. The combined effect of section 74(1) and section 131(1) is, in our opinion, perfectly clear. Section 74(1) was designed to provide a new statutory right of appeal in respect of the matters it covers. It did not expressly, or impliedly, alter the existing law and practice, whatever it might be, in relation to review of court decisions by way of bill of advocation. Section 131(1) was designed to extend the scope of advocation, whatever the existing law and practice in relation thereto might be, to its use, according to that existing law and practice, by the prosecutor to seek the review of a decision of any court of solemn jurisdiction, the previous position having been that a bill could not be used to seek review of a decision of the High Court for that purpose.

[6] Since the enactment of the statutory provisions just discussed, there have been a number of cases where parties have been allowed to seek review of court decisions by way of bill of advocation even though the matter could have been made subject to a statutory appeal, brought timeously, under section 74(1) of the 1975 Act. One such example is Shepherd v HM Advocate 1997 SCCR 246. In that case, the Crown sought leave to appeal at a preliminary diet in accordance with section 74 of the 1995 Act. A note of appeal, however, was not lodged within the required time limit and the Crown proceeded by way of bill of advocation. The court proceeded on the basis that it was competent to proceed by way of bill of advocation in such circumstances; see page 249, paras D-E; see also Mackenzie v Tractor Shovel Tawse Ltd 1992 SCCR 71. Again, in HM Advocate v Sorrie 1996 SCCR 778 the court expressly endorsed the competency of the Crown proceeding by way of bill of advocation, even though a right of appeal had existed. The court, in holding this to be the position, said that because of the very short time which was available for the taking of an appeal under the statute, then "in view of the fact that the Crown has particular responsibilities, it is not surprising that the statute has preserved the right to deal with these matters listed by way of bill of advocation" (page 784B).

The compatibility of the bills with Article 6 of ECHR

[7] The respondents put forward an alternative argument based on Article 6 of the European Convention on Human Rights and, in particular, as has been observed, the requirement of equality of arms as between the prosecution and defence which, is, in some situations, said to arise as an aspect of what is necessary to ensure that an accused person obtains a fair trial under Article 6. The argument was that since the remedy of advocation would not have been available to the respondents, in the event that they had failed to persuade the sheriff of the soundness of the devolution minutes, and that they would have, in such a situation, been confined to appealing under section 74, the availability of this additional means of reviewing the decision of the sheriff to the Crown alone, without any specific time limit being placed upon it, breached the principle of equality of arms.

Discussion

[8] The procedure of advocation as a remedy, in our system of criminal procedure, has had a chequered history, coming in and out of fashion from time to time. Its exact scope has also been the subject of some controversy. In McLean v Levitt 1969 JC 16 it was described as a procedure which was "out of date" per Lord Justice General Clyde at page 18. The Thomson Committee in its third report on Criminal Appeals in Scotland (Cmnd 7005) at para 15.02 stated:

"Advocation is not available as a form of appeal from the High Court. In modern practice it is used only by the prosecution, and only in solemn proceedings in the sheriff court and all summary proceedings".

The view that it is a remedy only available to the Crown is still reiterated in certain places; see, e.g. Stair Memorial Encyclopaedia Criminal Procedure Reissue, vol. 6, para 490. While advocation was not originally a process of review but involved the removal of the cause at its commencement or, during its course in the inferior court, on account of some objection to the jurisdiction of the inferior judge, or on account of partiality or incapacity on his part, or because of the intricacy of the case, in order that it might be proceeded with before the superior court, all as observed in Renton & Brown at para 33-20, those purposes long ago fell into disuse. It was developed over time to become a process of review and as Renton & Brown state:

"... it was the remedy available (to both the prosecutor and the accused) for errors committed by the inferior judge in the course of and during the dependence of the trial or criminal process and before final judgment or sentence (Alison, ii, 26 Moncrieff, The Law of Review in Criminal Cases (1877), pp 163-164)".

A consideration of the authorities over the last thirty years, or so, reveals that whatever was the view of Lord Justice General Clyde in the case of McLeod v Levitt (supra) the vigour of advocation, as a remedy, has been revitalised in more recent years. Moreover, that review reveals cases where proceeding by way of bill of advocation by an accused, as opposed to the Crown, has been considered competent in appropriate cases. In Durant v Lockhart 1985 SCCR 72 Lord Jauncey, in giving the judgment of the court at page 74, said:

"Advocation, which is fairly rarely used in modern practice, is a process for the correction of irregularities in the preliminary stages of a case (McLeod v Levitt, 1969 JC 16). We were informed that it is in practice now only used by the Crown but the researches of counsel on both sides of the bar were unable to refer us to any recent authority or statutory provision that stated that a bill of advocation was no longer available to an accused person. In McLeod v Levitt which concerned a bill of advocation presented by a prosecutor, there was no suggestion in the general observations on the nature of such a bill by the Lord Justice General and Lord Cameron that it could only be used by a prosecutor. Renton & Brown's Criminal Procedure, 5^th edition, para 16-169 states that the right to use the procedure is not limited to appeals by the prosecutor and section 453A of the Criminal Procedure (Scotland) Act 1975, which deals with appeals by way of bills of suspension against conviction, and advocation against acquittal, preserves in subsection (3) any rule of law relating to such bills which is not inconsistent with the provisions of the section. Accordingly we conclude that there may be circumstances where procedure by way of advocation is still open to an accused."

The sine qua non of the competency of advocation is that there should have been a decision of the lower court to advocate; see Roselli v Vannet 1997 SCCR 655. Examples of bills of advocation being brought by the accused, and being treated as being competent, in the last twenty years or so, include Mikailitchenko v Normand 1993 SCCR 56, Erkurt v Higson 2004 JC 23, Cairns v Miller 1997 SLT 1233 and Ettinger v McFadyen 2000 JC 583. Having regard to the circumstances of the present case, it is of some interest to note that in Simpson v Thompson 2007 SCCR 503 a bill was brought by an accused person alleging that a sheriff's decision to grant an adjournment had interfered with his right to a trial within a reasonable time in terms of Article 6 of the ECHR.

[9] In Renton & Brown it is stated at para 33-24 that "It is incompetent, alike in solemn and in summary procedure, for an accused person to appeal by bill of advocation against the decision of a court repelling a preliminary objection to relevancy, and presumably, competency". (Reference is made by the authors to Aldred v Strathern 1929 JC 93.) As regards, however, preliminary questions as to whether an accused will be able to obtain a fair trial and other devolution issues, there is now authority for the proposition that procedure by way of bill of advocation by an accused person is an appropriate procedure. That is to be found in the case of Starrs v Ruxton 2000 JC 208 where the court, without adverse comment as to the procedure passed bills of advocation which had been brought to review a sheriff's decision in relation to devolution minutes attacking the jurisdiction of temporary sheriffs as being contrary to ECHR. A bill of advocation at the instance of an accused person is also, in appropriate circumstances, available from a decision made in proceedings on indictment including such proceedings in the Sheriff Court (see, for example, Gordon v HM Advocate 2006 JC 87.

[10] Accordingly, although it may perhaps be argued that our law in relation to the scope and nature of advocation is not without its uncertainties, being based more on pragmatism than principle, it cannot be said that it would clearly be incompetent for an accused person to challenge by bill of advocation a decision on a devolution issue made by an inferior court.

[11] We should add that even if the position had been that it was clear that review by advocation in relation to a decision, like that of the sheriff in the present case, was available only to the Crown, and not to the accused, we would, nevertheless, not have considered that that in itself established a breach of any requirement under Article 6 as to equality of arms. Allegations of such infringements cannot be made simply in the abstract. They must be related to the actual circumstances of the actual case and those alleging them must be in a position to show how it is in the particular case that there will be (where the matter is raised as a preliminary matter) or that there has been an actual infringement of the equality of arms principle as opposed to a theoretical one. The existence of one procedural route of review available to one side does not, ex hypothesi, necessarily mean that any actual trial which will take place, or has taken place, will be or has been in breach of Article 6. "Equality of arms cannot mean that both prosecution and defence must be subject to identical rules" - M (M) v HM Advocate 2004 SCCR 658 and para [46] per Lord Justice Clerk Gill.

Acquiescence

[12] We can deal with the issue of bar, or acquiescence, raised by the respondents very briefly.

[13] The respondents contended that, having failed to take an appeal timeously under section 74 of the 1995 Act, and having waited the time it did to bring its bills of advocation, the Crown had somehow acquiesced in the decision of the sheriff and were now barred from seeking its review. Senior counsel for the respondents had to accept, however, that, on inquiry being made by the respondents' agents, on more than one occasion, before the bills were lodged, as to what the Crown's position was regarding the sheriff's decision, they were told that the matter was to be taken further. We were, furthermore, advised by the advocate-depute that whatever delay may have occurred, while matters remained in the procurator fiscal's office, once they were referred to the Crown Office a decision was immediately taken to seek review of the sheriff's decision. We were satisfied that the respondents had been unable, in the circumstances, to place before us material which could be said to amount to acquiescence by the Crown, so as to prevent it now seeking to have the decision of the sheriff reviewed. There were no assurances or undertakings of any kind pointed to by the respondents, which could amount to indicating acquiescence on the part of the Crown, and the mere lapse of time between the expiry of the date for bringing an appeal under section 74, and the actual bringing of the bills of advocation, where there is no time limit for the bringing of a bill, in such circumstances, cannot, in our view, be said to have amounted to acquiescence on the part of the Crown.

[14] For the foregoing reasons we shall repel the respondents' pleas as to competency and delete the averments in answer 9.1 of their answers starting "Explained and averred" and ending in "the 1995 Act". We will continue the bills for a hearing on their substantive merits.