Appellant: C M Mitchell; Paterson Bell

Respondent: Fairley QC AD; Crown Agent

25 October 2013

[1] This is an application for leave to appeal to the Supreme Court of the United Kingdom which is made following the refusal by this court, for the reasons given in its opinion of 17 July 2013
[1], of the applicant's appeal against his conviction of a charge of assault and attempted robbery. In support of the application, the solicitors for the applicant lodged an opinion by his counsel, Ms Mitchell, and oral submissions in development of that opinion were made by her on 24 September 2013.

[2] Counsel naturally acknowledged that an appeal to the Supreme Court of the United Kingdom was competent only in respect of a "compatibility issue". She also noted that this court should itself grant leave only if the issue raised an arguable point of law of general public importance.

[3] When requested by this court to specify the compatibility issue which arose in the appeal, counsel framed it as being:

"Whether the court, as a public authority in terms of the Human Rights Act 1998, acted compatibly with the applicant's right under article 6 of the European Convention on Human Rights to a fair trial when the court held that section 266(4)(c) of the Criminal Procedure (Scotland) Act 1995 did not confer a discretion on the court in respect of the admission of evidence [of a relevant previous conviction] once the 'gatekeeper' test [of having given evidence against the co‑accused] was satisfied?"

[4] Put briefly, counsel went on to explain that the issue in question was essentially concerned with the absence of an overriding discretionary power in the trial court to refuse to allow evidence to be led of a previous conviction, which - while relevant as going to the credit of the accused as a witness against his co‑accused - was so prejudicial to the accused by virtue of its also suggesting propensity to commit crime that its prejudicial value outweighed its probative value. Counsel submitted that there was thus an absence of adequate procedural protection against possible unfairness. Juries were likely to have difficulty in grasping and applying directions that regard might be had to a previous conviction inferring dishonesty only for the purpose of testing the credibility of the testimony given by the accused. The court had recognised that, in some circumstances, it was unrealistic to expect a jury to perform a complicated intellectual exercise - Brand v HM Advocate [2011] HCJAC 74; 2012 SCCR 45. Counsel observed that, in the present case, the absence of a discretion might not be held by the Supreme Court to have resulted in a miscarriage of justice given the interests of the co‑accused and the views of this court and the trial judge, but whether there should be a procedural requirement of a discretion of the nature for which she contended was a matter of general importance. Judicial disquiet about section 266(4)(c) of the Criminal Procedure (Scotland) Act 1995 had been expressed; but suggestions to the legislature that the terms of the statute might be worthy of some reconsideration had not yet been taken up.

[5] For its part the Crown opposed the application. In a succinct submission the Advocate depute pointed out that the applicant was unable to point to any decision of the European Court of Human Rights, the European Human Rights Commission, or any national decision, which held that reference in a trial to an accused's previous criminal offending rendered the trial unfair in terms of that article of the Convention. In deciding whether there was any incompatibility with a requirement of article 6, what was material was the international standard established by the Convention as interpreted by the European Court of Human Rights in its decisions. The advocate depute made reference to DS v HM Advocate [2007] UKPC D1; 2007 SC(PC) 1; 2007 SCCR 222; 2007 SLT 1026 and in particular to the opinions of Baroness Hale and Lord Brown.

[6] As both parties recognised, in considering this application for leave to appeal to the Supreme Court of the United Kingdom we are, of course, concerned in the first place with whether there is raised in the proceedings in the appeal an issue which can rightly be described as a compatibility issue. It was not in dispute (at least in the circumstances of the present case) that, to constitute a compatibility issue there had to be in question in the appeal whether a right conferred by the Convention - in casu article 6 - had arguably been infringed.

[7] It is, in our view, clear that the placing before a trial tribunal of evidence of the previous convictions of an accused has never been seen by the European Human Rights Commission, or the European Court of Human Rights as rendering the proceedings unfair. The Advocate depute referred us to the decisions of the European Human Rights Commission in X v Denmark (application number 2518/65; 14 December 1965); and X v Austria (application number 2676/65; 3 April 1967) both of which had been tendered in the earlier appeal and which made plain (as counsel in the appeal accepted) that making reference in trial proceedings to the previous criminal history of the accused did not offend against the requisite international standard for a fair trial.

[8] In DS v HM Advocate it was noted that allowing evidence to be led of an accused's previous convictions was not considered to be objectionable by reference to the international concept of a fair trial. In her opinion in that case Baroness Hale said:

"89 First, the question before us is whether an enactment of the Scottish Parliament is, or is not, the law. It is a strong thing for any court to declare an enactment of a democratic legislature invalid. The only possible basis upon which we could do so in this case is that it is incompatible with the Convention rights: see Scotland Act 1998, section 29(2)(d). The Convention rights are those set out in the articles of the European Convention on Human Rights and its Protocols which are listed in section 1(1) of the Human Rights Act 1998. That Act turns the listed rights into rights in our domestic law but the substance of those rights is derived from the Convention.

90 As Lord Bingham of Cornhill has pointed out on more than one occasion, the fact that the Convention is an international treaty has various consequences. One is that the process of implying rights into the Convention which are not expressly there should 'be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept' (Stott v Brown
[2], at pp 79-80).

91 Another is that the role of the national courts in developing those rights is limited, in the way that Lord Bingham explained in a famous passage in R (Ullah) v Special Adjudicator
[3] at p 350, para 20, which should never be forgotten by anyone seeking to mount a compatibility challenge to a statutory provision:

'[T]he Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court ... . It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.'

92 This means that we can only rely on the Convention rights as interpreted in Strasbourg as a basis for invalidating the act of a democratic legislature, for it is only incompatibility with those rights which gives us a ground for doing so. The legislature can get ahead of Strasbourg if it wishes and so can the courts in developing the common law. But it is not for us to challenge the legislature unless satisfied that the Convention rights, as internationally agreed and interpreted in Strasbourg, require us to do so.

93 We were referred to nothing in the Convention jurisprudence which begins to suggest that Strasbourg would find a trial in which these provisions were invoked to be a violation of the right to a fair trial guaranteed by article 6. The rules of procedure and evidence vary so widely between the states party to the Convention that the Strasbourg court is usually content to leave these matters to the national authorities, provided always that the fundamental requirements of a fair trial are observed.

94 There is nothing intrinsically unfair in a court hearing evidence of an accused person's character and conduct, provided that it is relevant to something which the court has to decide. Our historic reluctance to trust the jury with this information arises from the fear that they may give it more weight than it deserves or regard it as proving that which it does not prove. The answer to that does not have to be to withhold it from them; they can be given clear and careful directions about how to use it."

[9] In his opinion Lord Brown said:

"102 This, submits the appellant, is necessarily unfair and inappropriate. Even assuming that the court rules on the section 275A issue in time for the accused to have the opportunity not after all to adduce or elicit the evidence about the complainer for which permission has been granted under section 275 (and the opportunity, therefore, to keep his criminal record from the jury), this, he submits, is not a choice which the legislation should, or properly could, require him to make. Rather, having won the initial ruling that the evidence is required to enable him to defend himself properly, he submits that no inhibition should thereafter be put in his path; he should not be subjected to the pressure of having to choose between two evils: either forgoing the opportunity to advance his defence properly or allowing the jury to learn of his previous convictions of which otherwise they would have remained in ignorance.

The argument considered

103 Plausible and beguiling though at first blush this argument may appear, it is to my mind founded upon a central fallacy. The long and the short of it is that the accused has no fundamental right to keep his past convictions from the jury. There is nothing intrinsically unfair or inappropriate in putting these into evidence and, indeed, in doing so not merely on the limited basis that they go only to the accused's credibility (the fiction which to my mind disfigured the administration of criminal justice in England and Wales for far too long, now at last ended by the Criminal Justice Act 2003--see particularly sections 101(1)(d) and 103(1)(a)) but on the wider ground that they bear also on the accused's propensity to commit offences of the kind with which he is charged."

[10] In these circumstances we consider that the Advocate depute is well-founded in his submission that the applicant has not demonstrated the fundamental requirement for leave, namely an arguable contention that there is an infringement of a right recognised by the Convention, as interpreted by the European Court of Human Rights, as essential to the concept of a fair trial. As we endeavoured to explain in paragraph 28 of our earlier opinion we were, and are, unable to see any unfairness in the circumstances of the present case which invokes article 6 of the Convention.

[11] Since the test for the presence of a compatibility issue is thus not satisfied, appeal to the Supreme Court of the United Kingdom is precluded. But, on the hypothesis that the conclusion thus reached were unsound, we would add that, as already indicated, counsel for the applicant appeared to recognise that even if she were well-founded in the submission that in principle there ought to be a procedure allowing a discretion of the nature for which she contended, it did not follow that in the circumstances of this case such a discretion would fall to be exercised favourably to the applicant. In that connexion, we refer to paragraph [29] of our earlier opinion. Thus a favourable answer to the issue of principle which counsel for the applicant sought to focus in the proposed compatibility issue -assuming, contrary to the conclusion which we have expressed, that it did constitute a compatibility issue - would not necessarily be determinative of the applicant's appeal. In light of that, and other more general considerations, we would in such an event have been minded to defer to the justices of the Supreme Court of the United Kingdom whether it was appropriate to grant leave to appeal to that court.

[12] Accordingly this application for leave to appeal is refused.