Scottish High Court of Justiciary Decisons

Act: Wade AD; Crown Agent

Alt: Shead; G Sweeney & Co, Glasgow

15 June 2012

[1] The respondent was indicted to a first diet, at Glasgow Sheriff Court on 19 January 2012, on a charge libelling that, on 14 June 2011 in Tullis Street, Glasgow, being a public place, he had with him a lock knife; contrary to the Criminal Law (Consolidation)(Scotland) Act 1995, section 49(1)). A further charge of possession of cocaine has been withdrawn. The respondent had originally appeared on petition on 15 June 2011, when he was represented by his present agent. He appeared again on 23 June 2011, when the same agent was in attendance. The respondent was then fully committed and remanded in custody.

[2] On 7 September 2011, the agent attended at HM Prison, Addiewell, with a view to consulting with the respondent. This prison is operated by a private company, namely Sodexo Limited. The agent presented his Law Society of Scotland identification card, which contains his photograph and is updated annually. Such a card is accepted as proof of identification at most penal establishments. Nevertheless, the agent was informed that he would require to provide a fingerprint in order to enter the prison. He was advised that the print could, if he so requested, be destroyed after his exit or retained for identification purposes on subsequent visits. The agent refused to provide a fingerprint. He did so on the basis that he considered that this request amounted to a breach of his (the agent's) right to a "private life" enshrined in Article 8 of the European Convention. The agent was denied entry.

[3] On 14 October 2011, the respondent sought bail on the basis of this denial, but that application was refused. On 1 November 2011, the respondent lodged a devolution minute. This founded upon Article 6 of the European Convention and, in particular, the right to "have adequate time and facilities for the preparation of his defence" in Article 6(3)(b). It maintained that, by continuing to prosecute the respondent, the appellant was acting in a manner incompatible with the respondent's Article 6 rights. The minute craved the sheriff to hold that: (a) the fingerprint requirement was "unlawful", "impedes the delivery of practical and effective legal assistance" and is thus a breach of Articles 6, 8 and 14 (discrimination); and (b) the respondent had been denied a fair trial by being deprived of adequate facilities in his "preparation for trial". The minute asked the sheriff to "dismiss the Indictment", which had presumably, by that time, been served.

[4] The devolution minute was formally "received" at the first diet on 19 January 2012, when the respondent and the same agent were both present. This diet was adjourned until 31 January, when the respondent and agent were again present. A trial diet was fixed for 12 March, but the first diet was adjourned once more until 23 February, when the respondent was present but represented by a different agent. It was adjourned on that date due to the original agent not being available. A further first diet was set down for 29 February. The respondent and his agent were both present, but the diet was again adjourned, this time until 7 March. A legal debate appears to have taken place over three days from 7 to 9 March, during which the respondent and his agent were both present at the sheriff court.

[5] On 9 March 2012, the sheriff "upheld, in part, Crave (a)" of the devolution minute:

"only in so far as held that the requirement for the legal representative of the minuter to submit himself to biometric fingerprinting when visiting the minuter in custody at HMP Addiewell on 7^th September 2011 impede the delivery of practical and effective legal assistance to the minuter and was in the circumstances, a breach of the Minuter's rights under Article 6" (sic).

The sheriff refused that part of the crave relating to "dismissing" the indictment on the basis of a breach of Article 6. He confined his findings to the date of the visit and declined to hold that the respondent had been, or would be, denied a fair trial. As the sheriff observed, given the lapse of time since that date, "many steps might have been taken to ensure that [the respondent] was able to give adequate instructions for his defence".

[6] The case called for trial on 21 March, but that diet was adjourned until 10 April, with yet a further first diet being fixed for 3 April. Agent and client were again present on these diets. The trial had still not taken place by 25 April 2012, when the respondent was granted bail. A new trial diet has been set for July. Meantime, the appellant lodged this Bill of Advocation.

[7] The Bill complains that the sheriff erred in dealing with the devolution minute in the manner in which he did. The sheriff had not found that the actings of the appellant in continuing to prosecute the respondent were ultra vires because they amounted to a breach of the respondent's Article 6 right to a fair trial. That being so, the minute ought to have been refused simpliciter. Although the appellant was content with the sheriff's decision to allow the trial to proceed, he was reasonably apprehensive that the terms of the sheriff's decision would be founded upon as an objection to further proceedings in due course.

[8] The respondent contended that the Bill was academic if the trial was going to proceed in any event. However, it was argued that the sheriff's interlocutor should stand because it was "logically impeccable". The sheriff had pronounced a declarator that the actings of the prison authorities were unlawful. The prison authorities were no longer insisting upon the requirement in relation to the respondent's agent. But at the time of the debate before the sheriff, there had been a real issue with the respondent not having been able to consult with his agent in prison.

[9] Devolution issues do not exist in isolation. They require to be raised in connection with some remedy available in the process. If the respondent was complaining, as he appeared to be, that he was being deprived of a fair trial by reason of not being able to consult with his agent in prison, that complaint could have been made the basis of a plea in bar of trial. It would seem that this is what the respondent was attempting to present, since his devolution minute craved the court to "dismiss the Indictment". That was presumably an attempt to persuade the court to sustain a plea in bar and thereby terminate the proceedings.

[10] If that is the correct analysis, there was only one question for the sheriff to answer when he heard the debate on the plea in March 2012. That was whether the respondent would inevitably have an unfair trial because he had not been able to see his agent on one occasion at the prison in September 2011. The sheriff effectively answered this question correctly in the negative. He would have been bound to do so, given that there was no evidence that, by the time he heard the debate, the respondent had not been able to consult fully with his agent. This was, after all, a very simple charge of having a lock knife in a public place at a particular time and in a particular place. Whatever may have happened at the prison in September, by the time of the debate, the respondent had been in the sheriff court at least five times and his agent could quite easily have consulted with him there. No doubt he did. Both were present throughout the three days of legal debate.

[11] It was not for the sheriff, in a criminal process, to attempt to answer questions, whether hypothetical or otherwise, by making isolated declarators relating to the infringement of a person's human rights at a particular time or place. If either the respondent or his agent wished to maintain that his human rights had been infringed by the prison authorities, it was a matter for him to decide whether to raise civil proceedings in that regard and to seek an appropriate declarator, interdict and possibly damages. Such remedies are not available in a criminal process (see Newland, Petnr 1994 JC 122), where the court is confined, in relation to this type of argument, to deciding whether an accused's trial will inevitably be fair or not (see Transco v HM Advocate (No 2) 2004 SCCR 553). If it cannot answer that question in the affirmative, having regard to the circumstances pertaining at the date of the decision, it requires to repel the plea in bar and allow the trial to proceed. If, therefore, as at the date of the debate before the sheriff, the respondent had already been allowed sufficient consulting facilities, there was no basis for asking the court to halt the trial process. In that situation, the plea should never have been insisted upon.

[12] The court will therefore pass the Bill and recall the interlocutor of 9 March 2012 in so far as it purports to uphold part of the respondent's devolution minute by stating that the requirement on the respondent's agent to submit to biometric fingerprinting, when visiting his client at Addiewell prison on 7 September 2011, impeded the delivery of practical and effective legal assistance to the respondent and was, in the circumstances, a breach of the respondent's rights under Article 6 of the European Convention. The court will repel the plea in bar of trial in so far as such a plea can be said to exist within the minute.