Scottish High Court of Justiciary Decisons

HIGH COURT OF JUSTICIARY

[2015] HCJAC 111

HCA/2015/002743/XC &

HCA/2015/002744/XC

 

Lady Paton

Lady Dorrian

Lord Drummond Young

OPINION OF THE COURT

delivered by LADY DORRIAN

in

reference to the High Court of Justiciary

in terms of rule 40.10 of the Act of Adjournal

in causa

HER MAJESTY’S ADVOCATE

against

ROSS PORCH

Act:  Jackson, QC, C. M. Mitchell;  Virgil M Crawford

Complainer:  Johnston, Sol Adv;  Martin Johnston & Socha, Kirkcaldy

Alt:  McSporran, Sol Adv, AD;  Crown Agent

24 November 2015

Background
[1]        This is a reference to the High Court of Justiciary under section 288ZB of the Criminal Procedure (Scotland) Act 1995 which arises in the context of the prosecution of one Ross Porch.  On 2 February 2015 he appeared from custody on a complaint of assaulting his pregnant girlfriend by repeatedly pushing her, throwing a set of ladders at her, sitting on top of her, holding her down and spitting on her, all to her injury, and whilst he was subject to two bail orders.  The assault is said to have taken place at the address of the complainer in Tullibody, Alloa,.  The complaint contained a second charge of damaging property at that address contrary to section 8(1) of the Criminal Justice and Licensing (Scotland) Act 2010.  The accused, having pled not guilty, was admitted to bail on standard conditions, and with the additional conditions, which he accepted, that he should not enter the street in Tullibody, where the complainer lived, nor should he approach, contact or attempt to approach or contact the complainer.

[2]        On 14 April 2015 the accused again appeared on summary complaint, which this time contained three charges.  The first charge was that on 5 April 2015, in the aforesaid street in Tullibody, he had with him a knife, without reasonable excuse.  The second charge was that he there behaved in a threatening and abusive manner by shouting and brandishing a knife, contrary to section 38 of the 2010 Act.  The third charge alleged a breach of the conditions of bail imposed on 2 February 2015.  The accused pled not guilty to charges 1 and 2, but tendered a plea of guilty to charge 3, which plea was not accepted.  At that stage he was refused bail.  Bail was granted on 18 May, when a trial diet was adjourned.  The conditions upon which bail was granted were again the standard conditions plus the two special conditions referred to above.  The conditions were again accepted, and must impliedly have been accepted by the accused on 8 June when the case, and bail, was continued in his presence.  Thereafter, on about 18 June 2015, in respect of both cases, an application for variation of the bail conditions was lodged, seeking to remove the bail condition preventing contact with the complainer.  On 23 June 2015 the sheriff refused to vary the conditions.  In his report, the sheriff noted that the view of the complainer was only one matter which had to be considered.  The allegations of carrying a knife in a public place, on bail, and whilst breaching section 38 of the 2010 Act, as well as breaching special conditions of bail previously imposed, were very serious ones.  Having regard to these various factors, the prior record of the accused, and the fact that a relatively early trial diet had been set, the sheriff did not consider that it was in the public interest to remove the conditions.  The previous convictions of the accused consist of the following:

• September 2014, breach of section 38 involving a scaffolding pole, and assault to injury using a pool cue
• December 2014, assault to severe injury
• February 2015, breach of a community payback order

The accused appealed against the sheriff’s review decision, and in the course of the appeal presented a compatibility minute, averring, in short, that the complainer did not wish the accused to be subject to the special conditions, and that the acts of the Lord Advocate in seeking them, and then objecting to their removal, and of the court in imposing them, and then refusing to recall them, were in breach of the article 8 rights of the accused and of the complainer.

[3]        After continuation to allow the Crown to consider the compatibility minute and for discussion regarding further procedure, the case came before the bail judge on 10 July.  Having heard from counsel for the accused and the advocate depute, the bail judge considered it appropriate to make a reference of the compatibility minute to the High Court of Justiciary in terms of section 288ZB:

“..in light of the proposition advanced on behalf of the [accused] which is that given the particular facts and circumstances of the situation pertaining to both bail appeals there is no basis on which a refusal to grant variation of the special conditions currently in place would not result in a breach of the Article 8 rights of both the [accused] and the complainer.”

 

He thereafter continued the matter to allow a reference to be drafted.  When the matter came before a different bail judge, that judge considered that the matter should be intimated to the legal representatives of the complainer.  The case was again continued for discussion, and on 5 August the reference as adjusted was approved by a third bail judge.  The reference states that the parties to the reference are the accused, the Crown and the complainer.

[4]        The statement of facts narrates that in neither of the original bail hearings did the Crown or the court seek the views of the complainer in person, although the Crown was aware of her views at the outset, and these were taken into account at the time of both requesting the special conditions of bail and opposing their removal.  During the review hearing, the sheriff was advised that the complainer was within the court building and able to confirm her views, but her views were provided to the Crown and the court by the legal agent for the accused.  Notwithstanding the views of the complainer, the Crown opposed the removal of the said conditions in each case and the sheriff refused each application.

[5]        In the proceedings on appeal, it was contended that:

“(a) the crown in requesting the additional conditions and subsequently opposing an application for removal of same, and

 

(b) the court, in imposing the said conditions and thereafter in refusing to remove the same were acting in a way incompatible with both the [accused’s] and the complainer’s right to private and family life in terms of Article 8 of the European Convention on Human Rights.

 

[6]        Article 8 provides:

“Article 8

 

Respect to private and family life

 

1          Everyone has the right to respect for his private and family life, his home and his correspondence.

 

2          There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

 

[7]        The nature of the article 8 right which was said to exist was not explained at any stage.  The nature of the relationship between the complainer and the accused was not explained.  It was stated that the complainer was pregnant with the accused’s child, and that she had two other children, but the circumstances in general surrounding her relationship with the accused were not explained.  For example, it was not apparent until the production of the bail review report at a second hearing that they did not cohabit, or that the accused was not the father of her other two children.  We are not suggesting that no relationship relevant to article 8 exists, but whether the issue under consideration amounts to a family life or relates to private life, was ultimately unclear.

[8]        The issues referred to the High Court of Justiciary are identified in the reference as follows:

“(a)      Is the [accused’s] Article 8 right engaged in relation to determining whether a bail condition preventing contact or communication with the complainer should be imposed when bail is granted and, thereafter, in determining whether it should be removed?

 

(b)        Is the complainer’s Article 8 right engaged in relation to determining whether a bail condition upon the [accused] preventing contact or communication with the complainer should be imposed when bail is granted and, thereafter, in determining whether it should be removed?

 

(c)        Esto the complainer’s Article 8 right is engaged in this process, does the complainer have a right to be heard and to make effective representation to the court in relation to the determination of her Article 8 right?

 

(d)       Esto the complainer’s Article 8 right is engaged in this process, does she have a right to access the court to review its determination?

 

(e)        Esto the complainer does have a right to be heard and to make effective representation to the court, does she have the right to legal representation, with such representation being funded by the state if necessary?”

 

Although the terms of the reference identified three parties to it, it was clear that when the original bail judge made the reference it was on the understanding that there would be two parties involved, the Crown and the accused.  That is apparent from the terms of the interlocutor of 10 July.  A subsequent hearing was intimated to the complainer, but the basis upon which that was done is not made clear, nor is the basis upon which the third bail judge allowed the reference to be finalised in terms which indicate three parties to it, notwithstanding the interlocutor of 10 July.  Accordingly, this court was addressed at the outset on the competency of the complainer being represented in the reference.  Having heard submissions, we concluded that it would be appropriate to hear the solicitor advocate for the complainer, subject to all questions of competency, not least because the issue of competency was intricately related to the subject matter of the reference.

 

Submissions for the accused
[9]        Senior counsel for the accused had no objection to the complainer being represented in the reference, or elsewhere.

[10]      He submitted that the article 8 rights of the complainer were “plainly engaged” in the circumstances.  There may be many occasions where it would be appropriate to impose bail conditions such as these.  Moreover, he recognised that it would not be appropriate for the wishes of the complainer alone to be determinative.  A complainer may genuinely have been the victim of domestic abuse but may nevertheless wish to reconcile with the accused for other reasons – family pressure, for example.  A balancing exercise must be carried out.  In the present case, the Crown appeared to have adopted a blanket policy of seeking to impose conditions such as these in cases of domestic abuse, and to resist review of the conditions in all such cases.  It was understandable that the Crown were anxious to deal with domestic abuse and should be applauded for so doing, but a blanket policy should not be applied.  At first, counsel submitted that it would not be inappropriate to impose these conditions in all such cases at the outset, but that the problem arose at the review stage, where he understood that despite a complainer’s wishes to the contrary, the Crown would routinely oppose removal of the conditions.  However, he later submitted that in fact there would be cases in which it would be inappropriate to impose the conditions even at the outset, there being situations where to keep the accused from the family home may make matters worse, where the situation has stabilised or where the level of offence would never merit a custodial sentence.

[11]      In the present case, the court had to balance the serious events alleged against the complainer’s wish for him to return when she had two young children and was pregnant by the accused with a third.

[12]      In summary, counsel did not suggest that the legislation was incompatible, either in requiring standard conditions, or allowing special conditions to be imposed.  Moreover, where a complainer indicated that she did not want the condition imposed there was nevertheless no incompatibility in saying that was only one factor, and could not be determinative, either at the outset of a bail application or at any review stage.  However, the adoption of a blanket policy as referred to above, amounted to an incompatible act, there being no good reason to overcome the wishes of the complainer.

[13]      When pressed to identify exactly the nature of the incompatibility contended for, counsel said that it was:

“for the crown to insist on special conditions, in circumstances where the Article 8 interests of the complainer were not outweighed by countervailing factors, and there was no good reason to seek the imposition of the conditions.”

 

It was argued that if the court were to acknowledge the article 8 rights of the complainer as a relevant factor, but to impose the conditions without carrying out any balancing exercise, it would constitute a breach of a complainer’s rights.

[14]      The written submissions asserted that article 8 gave rise to both negative and positive obligations, and that a positive obligation arose in the circumstances of this case.  Pressed to identify the nature of the obligation, and the precise circumstances which created it, counsel submitted that the court had a positive obligation to protect someone’s article 8 rights, and to ensure that there was no infringement of those rights.

 

Submissions for the complainer
[15]      The solicitor advocate for the complainer submitted that the bail judge, in making the reference, had concluded that there was no basis upon which a refusal would not result in a breach of the article 8 rights of both the accused and the complainer.  (In fact that is not the case – as will be seen below, the bail judge did not decide any aspect of the matter:  he merely referred it under section 288ZB on the basis that this was the tenor of the argument advanced for the accused).  The hearing of 29 July was intimated to the complainer’s representatives, and the solicitor advocate representing her had appeared on two occasions to consider the terms of the draft reference, which was approved on 5 August.  From this background, it had been assumed that the court thought it appropriate to give the complainer an opportunity to be represented and to address any unlawful act on the part of the Crown in failing to take into account her position.  Her argument was that the Crown had failed properly to take account of or to represent her interests.  In a situation such as this, it was inadequate protection of the complainer’s rights for her position to be put before the court either by the Crown, who have a different interest, or the representatives of the accused, who has an interest in conflict, since the Crown intend to cite her to give evidence which they consider will be incriminating of the accused.  Reference was made to R (TB) v Combined Court at Stafford [2006] EWHC 1654 (Admin).  In that case, a complainer whose medical records were being sought was allowed to make representations on the issue.  In circumstances such as the present, there should be a mechanism in place formally to allow the complainer’s views independently to be represented to the decision maker.

[16]      In terms of rule 40.12.1 the court may make such order as it considers just and equitable pending determination of a compatibility issue.  That would enable the complainer to be represented during the hearing of a reference thereon.  In any event, having been included as a party she could not now be excluded for want of competence.  In terms of the Human Rights Act 1998, section 7, parties were entitled to bring proceedings or rely on convention rights in any legal proceedings if he were or would be victim of an unlawful act.  When the Crown sought imposition of these conditions, the complainer became the victim of an unlawful act and entitled to rely upon her convention rights in these proceedings.

[17]      The complainer’s argument was not that the legislation was incompatible:  the incompatibility arose from the way in which the Crown operated the legislation.  It was understood that the Crown sought conditions of this kind as a matter of course in domestic abuse cases, adopting a blanket policy of maintaining opposition to their removal.

[18]      In the case of Gorrie v PF Haddington [2014] HCJAC 10, an argument had been advanced that in imprisoning the accused, the court had failed to give weight to the article 8 rights of the accused’s minor son, whose interests held a primacy of importance.  The court noted that current sentencing practice required the court to take account of the effect of sentencing on other family members, including children, but where such a matter was advanced as a mitigatory feature, it remained for the offender to advance any argument predicated upon such a feature, being the person best placed to advise the court thereanaent.  It was submitted that Gorrie could be distinguished, because in the present case the accused was an inappropriate person to supply the information.  The views of the complainer as to the bail conditions came uniquely from her and she should be represented in order for those views to be furnished.

[19]      The complainer was only the complainer on one of the complaints, so there was no reason for the condition to be maintained in relation to the other one.

[20]      The article 8 rights of the complainer were engaged by the process of adding in the additional condition of bail, yet that was done without her position being independently explained, and in circumstances where she was not represented.  The result was the imposition of a condition which breached her entitlement to respect for her family life.  The actions of the Crown and the court thus constituted acts incompatible with the ECHR.  Without a mechanism to enable the complainer’s views to be presented independently the Crown use of section 24 was not convention compatible.  Such an approach accorded with the terms of the Victims and Witnesses (Scotland) Act 2014, section 1 of which provided that in carrying out his functions:

“insofar as those functions relate to a person who is or appears to be a victim or witness in relation to a criminal investigation or criminal proceedings”,

 

the Lord Advocate must have regard to the principle that:

“in so far as it would be appropriate to do so, a victim or witness should be able to participate effectively in the investigation and proceedings”.

 

[21]      The absence of a formal mechanism for the complainer to be heard or to place her views independently before the court constituted a breach of her rights.  There was a positive obligation on the court to find out the position of the complainer.

 

Submissions for the Crown
[22]      The advocate depute submitted that the complainer had no standing in these proceedings, and that neither the statute nor the Act of Adjournal made provision for anyone other than the accused, the Crown and, in certain circumstances, the Advocate General being a party.  The genesis of this hearing lay in the interlocutor of 10 July when the bail judge decided to make the reference.  Procedure thereafter was not relevant to the question whether the complainer could competently appear in these proceedings.  At the time of the reference the parties were the Crown and Ross Porch:  it was neither possible nor competent to read the terms of the reference in any other way.  Even if rule 40.12 could apply as suggested for the complainer, its application depended on an order of the court having been pronounced and there had been none.  The rule could not apply by silence or acquiescence.  There was no mechanism by which a witness, whether a complainer or not, could become a party to criminal proceedings or have a say in any procedural aspect of the case, including a bail order.

[23]      The assertion that there was an incompatibility was hard to square with the concession that the legislation was compatible.  It was clear from the authorities that a compatibility issue did not arise in isolation, but required to be associated with some remedy in the process.  An individual may have interests or rights capable of being breached in the criminal process but that did not necessarily give rise to a compatibility issue, or entitle them to be heard in the criminal process.  An incompetence had crept in at an early stage but not when the reference was made at which point there were only two parties.

[24]      The logical result of the submission was that all family members who might be affected would be entitled to be represented at every stage when bail was considered.  It was not fanciful to suggest that the argument could be extended to neighbours, whose own article 8 rights might be affected by the potential consequences of the return of an accused to the family home.

[25]      The advocate depute suggested that it was in any event rather difficult to discern the nature of the incompatibility being complained of.  It was disputed that the Crown adopted an unthinking blanket policy.  There was in place a system of legislation and domestic law, acknowledged to be compatible, which included several safeguards to protect not only the rights of an accused but of witnesses.  It was difficult to say that any incompatibility came from the acts of the Crown when the final decision was one for the sheriff, who made his decision on the basis of representations from the Crown who had informed themselves of the attitude of the complainer, and advised the sheriff accordingly.  It was by no means conclusive what the result should be in such circumstances, since the attitude of the complainer was merely one of several factors to take into account.  The domestic law provided amply and on an on‑going basis for review and reconsideration of information relating to bail.  The arguments advanced for the complainer would apply equally to a complainer who wanted to maintain special conditions to prevent an accused being in contact or residing at her address.  There may be some household members who wanted special conditions to be imposed, and others who objected.  It was not explained why giving voice independently to a complainer should make any difference to the decision in this case or in general.  The court was furnished with all the information it required to make a decision.  This included that the allegation was of a domestic nature, that the complainer was 8½ months pregnant at the time of the alleged assault, that the accused had two recent convictions for assault to injury or severe injury, and that the complainer was a reluctant witness who wanted the condition removed.  The public interest in the proper prosecution of domestic matters was also a consideration.  The decision was a discretionary one for the sheriff.  (C McL v HMA [2013] HCJAC 46).

[26]      Almost all offenders would have a private or family life, with the interests of others capable of being affected, but the central question was one of proportionality.  The effect on a third party such as a complainer, of a condition of bail, was relevant only as a factor relating to the circumstances of the accused.  (Gorrie, supra) The special conditions of bail pertained only to the accused and the prosecution against him, it was not competent in that prosecution to assert a breach of the rights of a third party.  The remedy of removal of the conditions was one which could be afforded only to an accused person.  A compatibility minute did not arise in isolation and had to be related to some procedural process for which a remedy is available.  (HMA v Collins [2014] HCJAC 11; Sabiu v Procurator Fiscal, Fort William [2013] HCJAC 160)  The criminal justice system did not allow victims or relatives of victims to be direct participants in criminal proceedings. (SCCRC v Swire and Mosey [2015] HCJAC 76)  If the complainer wished to assert that her rights were infringed that was a separate matter to be dealt with in civil proceedings or by challenging the compatibility of the relevant sections of the 1995 Act under section 7 of the Human Rights Act 1998.  (HMA v Collins, supra; Kidd v Procurator Fiscal, Edinburgh [2012] HCJAC 163)  It could not be said that the decision here amounted to a disproportionate interference with the complainer’s rights.

[27]      It was well known that domestic violence was a crime which often went on unreported and often for some time before a complaint was made and that a resumption of relations pending prosecution could give rise to an increased risk which was not present in other cases.  Care had to be adopted to ensure that as far as practicable those risks were minimised.  The particular vulnerability of victims of domestic violence and the need for active state involvement in their protection has been emphasised in a number of international instruments.  Member states have been urged to regard all forms of violence within the family as criminal and to put in place the interim measures necessary to protect victims, including prohibiting the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas and to penalise all breaches of the measures imposed upon the perpetrator.  Reference was made to Bevacqua and S v Bulgaria (71127/01) and Recommendation of the Council of Europe, Rec (2002) 5 of 30 April 2002 on the Protection of Women Against Violence.  Special conditions of the kind under consideration in the present case were often necessary in cases of domestic abuse to ensure that undue pressure was not placed upon the complainer in relation to on-going proceedings, victims of domestic violence being in a particularly vulnerable position.  The special conditions were consistent with the state’s obligations to protect victims of domestic abuse and were necessary and proportionate for the prevention of disorder or crime and for the protection of the rights and freedoms of others.

 

Discussion
[28]      It will be apparent from  the narrative of submissions given above that the argument that the acts of the court gave rise to a compatibility issue was not insisted in by senior counsel for the accused.  His formulation of the alleged incompatibility related solely to the actings of the Crown.  Although he maintained that it would be a breach of the complainer’s rights were the Court to fail to take account of her views at all, or to carry out the appropriate balancing act, it was not suggested that this had occurred in the present case.  Indeed, it is apparent that the sheriff carried out an appropriate balancing exercise, and the statement of facts clearly states that the complainer’s views were taken into account both at the original hearing and subsequently when their removal was sought.  Accordingly, no question of incompatibility arose on the arguments advanced for the accused.  The ultimate decision on bail is one for the court, carrying out the careful exercise of balancing all the relevant factors, in which neither the attitude of the Crown nor the views of a complainer will be determinative.  Given that the ultimate decision is one for the court, which may or may not be persuaded by the representations from the Crown, it is difficult to see how the attitude of the Crown or the arguments advanced on their behalf could give rise to an incompatibility issue.  The conditions were imposed not because of any Crown policy, but because the court considered them to be necessary and appropriate.  As far as any rights or interests of the complainer are concerned, the accused has no locus to assert these, in these proceedings or elsewhere.  On the arguments for the accused, therefore, we are satisfied that no compatibility issue arises.

[29]      For the complainer, it was again not disputed that the legislation was compatible.  The argument was that the way in which the Crown approached the matter, by use of a blanket policy created an incompatibility.  This argument falls to be discarded for the reasons just given. In any event, as noted below, there was no such policy.

[30]      The Crown’s policy on these matters was explained to us in a letter dated 11 September 2015.  When the case is first reported, the police provide information as to the complainer’s views on special conditions of bail.  If that has been omitted for some reason, it will usually be checked prior to the first calling of the case.  The system is under review to ensure that the information is provided at the time of reporting.  When there is a bail review, the police should interview the complainer at home to obtain a full and proper assessment of her situation and views, which are then communicated to the court.  It will be rarely that the Crown do not seek special conditions in cases such as these, but the decision whether to seek them, or oppose their removal, is done on a case by case basis.  In this case, an inquiry was not made for the hearing on 23 June but the information had been obtained previously and had been given to the court, and following the original request for a bail review (which had first been made in May, prior to the adjournment of the trial), in accordance with local practice, a bail review was carried out by a “bail officer” employed by the social services department of Clackmannanshire Council, who submitted a report for the court’s consideration.  A lengthy interview was conducted with the complainer who explained that she and the accused had never lived together, and did not intend to do so until after the conclusion of proceedings and on her anticipated move to a new address.

[31]      The bail officer reported as follows:

“(the complainer) presents as a vulnerable young woman who is 20 yrs old and although she wishes the special bail conditions to be removed, it was clear throughout the interview that she is in denial about the alleged offence which resulted in (the accused) appearing from custody and I believe she could be at risk if these conditions are removed at this stage. ……(the accused’s) supervising social worker shares my view regarding the removal of the special bail conditions and my consultation with (the childcare social worker) resulted in her also expressing some concern about any change to the special bail conditions.”

 

The conclusion of the report was that:

“I do not believe that any change should be made to the special bail conditions which were put in place principally to provide a level of protection for (the complainer) as I consider that she is at risk.”

 

The system thus provides for the gathering of detailed information as to the views of a complainer in a case such as this.  In addition, experience shows that it is not infrequently that the court is presented with a letter from the complainer, in which she has made her views known to the Crown or the defence.

[32]      It was further argued for the complainer that the absence of a mechanism to allow her views to be placed “independently” before the court, or to allow her to be represented independently during the bail proceedings, “created an incompatibility.”  We agree with the advocate depute that this assertion is hard to reconcile with the concession that the legislation, which makes no provision for the complainer to be heard, is compatible. It was no part of the argument that the imposition of special conditions in circumstances such as the present   would not be justifiable in terms of article 8(2). The sole point was that to impose them without giving the complainer a right of audience would somehow itself be in breach of article 8.

[33]      In any event, we do not agree that the absence of any formal mechanism to place the views of a complainer before the court creates any incompatibility with her convention rights.  The complainer’s views may be a relevant factor in the bail decision which requires to be taken regarding the accused, but the complainer does not thereby obtain any entitlement to seek to vindicate in the criminal process any rights or interest which she may have.  A compatibility issue does not arise simply because the article 8 rights of another may be affected by a decision taken in a criminal process not relating to that person.  The consequence of this argument is that every complainer, indeed every family member who might be affected by the bail decision, would be entitled to independent representation at every stage of the bail process, and that would be so whether or not he or she contested the imposition of the conditions, which would impose an impossible or disproportionate burden on the system.

[34]      The fact that the proceedings were intimated to the complainer does not make her a party.  It is clear from the interlocutor of 10 July, and the relevant legislation, that the only parties anticipated, or indeed competent, under a reference are the Crown, the defence, and in certain circumstances the Advocate General.  The solicitor advocate for the complainer was unable to rely on any statutory provision to support her argument that the complainer was competently a party to the reference.  Her attempt to rely on rule 40.12.1 cannot succeed since that rule operates only once a reference has been made and the parties determined.  Its purpose is largely to preserve the status quo pending resolution of any compatibility issue arising, and as the Crown have pointed out, its operation requires an order of the court in any case.  The legislation clearly anticipates that the parties will be those who are entitled to be parties according to our criminal law and procedure.  That does not include the complainer.  As the Lord Justice Clerk noted in SCCRC v Swire (paragraph 20):

“The Scottish criminal justice system does not, at present, allow victims or relatives of victims to be direct participants in criminal proceedings.”

 

[35]      As has already been pointed out, a compatibility minute does not arise in isolation, and must be associated with a remedy available in the proceedings in which it arises.  A distinction requires to be made between a person who is entitled to participate in a court process for the purpose of obtaining an order or determination in their favour, and an individual who is not so entitled.  This distinction explains the cases of Stafford and K relied upon by the complainer.  In the latter case the individual concerned was a party to the proceedings in terms of the legislation, but was being prevented from discharging that role effectively.  The situation is quite different here, where the individual concerned is not, and cannot be a party to the proceedings in which the order is made.

[36]      The complainer was unable to identify any authority to suggest that the Scottish practice that victims do not directly participate in criminal proceedings was other than convention‑compatible.  It should be remembered that the fact that a victim has no right to participate directly in the criminal process does not mean that there is no method by which information from the victim, or views of a complainer on a matter such as bail conditions, may be conveyed to the court.  As already noted, it is commonplace for information about a complainer’s views relating to bail conditions to be placed before the court, and the Crown has developed a policy designed to achieve that.  The pressures which can exist in relation to victims of crime, particularly in relation to domestic abuse, are recognised by the Sentencing Guidelines Council for England and Wales in their guidelines entitled “Overarching principles: Domestic Violence”, paragraphs 4.1 to 4.4 of which were quoted by the ECtHR in Wilson v UK (2014) 58 E.H.R.R. SE10 and read as follows:

“As a matter of general principle, a sentence imposed for an offence of violence should be determined by the seriousness of the offence, not by the expressed wishes of the victim.

 

There are a number of reasons why it may be particularly important that this principle is observed in a case of domestic violence:

 

• It is undesirable that a victim should feel a responsibility for the sentence imposed;

   

• There is a risk that a plea for mercy made by a victim will be induced by threats made by, or by a fear of, the offender;

   

• The risk of such threats will be increased if it is generally believed that the severity of the sentence may be affected by the wishes of the victim”

 

In a sentencing context, it has been observed that ensuring that the court is kept properly informed of the suffering of a victim does not involve requiring that the victim plays a positive part in the sentencing process.  In R v Nunn [1996] 2 Cr App R(S) 136 (referred to in Wilson), the court observed:

“We mean no disrespect to the mother and sister of the deceased, but the opinions of the victim, or the surviving members of the family, about the appropriate level of sentence do not provide any sound basis for reassessing a sentence. If the victim feels utterly merciful towards the criminal, and some do, the crime has still been committed and must be punished as it deserves. If the victim is obsessed with vengeance, which can in reality only be assuaged by a very long sentence, as also happens, the punishment cannot be made longer by the court than would otherwise be appropriate. Otherwise cases with identical features would be dealt with in widely differing ways leading to improper and unfair disparity, and even in this particular case, as the short judgment has already indicated, the views of the members of the family of the deceased are not absolutely identical. If carried to its logical conclusion the process would end up by imposing unfair pressures on the victims of crime or the survivors of a crime resulting in death, to play a part in the sentencing process which many of them would find painful and distasteful. This is very far removed from the court being kept properly informed of the anguish and suffering inflicted on the victims by the crime.”

 

This echoes the approach of the Lord Justice Clerk in Gorrie (supra).

[37]      The currently applicable bail provisions are to be found in the Criminal Procedure (Scotland) Act 1995.  They provide that, save in certain solemn cases, bail is to be granted unless there is a good reason for refusing to do so in the public interest (section 23B).  The grounds upon which it may be determined that there is a good reason for refusing bail include the grounds, relevant here, that there is a substantial risk that the individual may commit another offence, interfere with witnesses or otherwise obstruct the course of justice (section 23C(1)(b) and (c)).  In assessing any of those grounds the court is required to have regard to all relevant considerations, including whether the person was already on bail, and any previous convictions (section 23C(2)).  Whenever the court grants or refuses bail, it must state its reasons.  (section 24(2A)).  In granting bail, the court requires to impose certain “standard” conditions.  These are specified in section 24(5) and include a condition that the accused does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.  It is worth noting that it was not suggested that the imposition of such conditions would be anything other than convention compliant, being conditions designed to prevent interference with the course of justice.

[38]      Apart from the standard conditions, the court requires to impose such further conditions as the court considers necessary to secure that the standard conditions are observed.  Frequently no additional conditions will be required.  In cases of assault where the accused and complainer are known to each other, it may be the case that additional conditions are imposed requiring the accused to refrain from contact with the witness, or to avoid a certain locus.  In some cases these conditions may be an unnecessary precaution, but they are usually accepted without demur, and there is seldom any debate as to the extent to which they are necessary to secure the observation of the standard conditions.

[39]      Cases of domestic violence raise delicate issues in this regard.  The issue of violence against women, and in particular domestic violence, has been recognised as a particular problem in our society.  Following a pilot in Glasgow in 2004, specialist domestic abuse courts now exist in Edinburgh and Glasgow.

[40]      The solicitor advocate for the complainer accepted that one of the main problems in domestic violence cases related to victim retraction due to the close and often intimate relationship between the accused and victim.  It was also accepted that the reason why special conditions such as these were often added in domestic abuse cases was that the intimate and particular nature of the relationship created an increased risk that the standard conditions may not be obtempered, standing the relationship and the vulnerable position of victims of domestic violence.  In many cases, the complainer will be anxious not to have contact with the accused in any way, and may be vulnerable to pressure or influence from the accused were such contact to take place.  The imposition of special conditions of the kind which were imposed in the present case may be considered necessary in an attempt to ensure the observance of the standard conditions that the accused should not interfere with witnesses, obstruct the course of justice or commit further offences against the complainer.  In circumstances where the complainer has indicated that she does not wish conditions imposed, or where she would rather they were removed, the court has to consider the situation in the context of the obligations in relation to the protection of victims of domestic violence.  Victims of domestic violence are of a particular vulnerability and the need for active state involvement in their protection has been emphasised in a number of international instruments, for example those referred to in Opuz v Turkey [2010] 50 EHRR 28.  The steps which should be taken may include ensuring that the public prosecutor can continue a case even in the face of a retraction by the alleged victim (see Wilson v UK paragraph 49).  In the case of Criminal Proceedings v Gueye and others [2012] 1 WLR 2672, to which this court drew counsel’s attention, the European Court of Human Rights considered that the duty to enable victims properly to take part in criminal proceedings did not preclude a mandatory injunction in domestic violence cases preventing the accused from being in contact with the complainer for a specified period of time, even when the complainer sought a reconciliation.

[41]      In all the circumstances we do not consider that there is merit in the submissions for either the accused or the complainer.  There is no basis for considering, under either domestic law or European jurisprudence, that it is necessary to grant a right of audience to a complainer in the circumstances of a case such as the present.  We shall accordingly answer the questions in the reference (set out in paragraph [8] above) as follows:

(a)        We proceed on the basis that the accused has article 8 rights which are sufficiently engaged, but in our view they have not been infringed. For the reasons given above, we consider that the procedures which exist in relation to bail applications of this kind are convention compliant.

(b)        We proceed on the basis that the complainer also has article 8 rights which are sufficiently engaged, but in our view they have not been infringed.  For the reasons given above, we consider that the procedures which exist in relation to bail applications of this kind are convention compliant.

(c)        For the reasons given in this opinion, we consider that the complainer has no right to be represented in court or to address the court in the circumstances desiderated.  That does not mean that there is no mechanism for drawing her views to the attention of the court.

(d)       No, for the reasons given in this opinion.

(e)        No, for the reasons given in this opinion.

[42]      A further matter of procedure arises.  In making this reference, the bail judge appears to have heard no significant debate, and does not appear to have considered determining the matter himself, deciding simply to refer the matter “in light of the proposition advanced”.  The legislation provides that a court, other than a court consisting of two or more judges of the High Court, may, instead of determining a compatibility issue, refer in terms of section 288ZB, but in doing so the court must:

“give its reasons for making the reference and cause those reasons to be recorded in the record or minute of proceedings”.

 

We accept that in a case such as this, the bail judge may be placed in a position of some difficulty, as the time allotted for bail appeals cannot usually accommodate a debate of any length or complexity.  In such circumstances if may be preferable to continue the case to a further hearing so that a full debate may take place.  As the court observed in the case of O’Leary, Minuter [2014] HCJAC 45 (paragraph 26):

“Finally, it is somewhat unusual for a judge of the High Court to refer a case to a bench of three without at least providing his own analysis of the problem and proposing a solution. The removal of a case from first instance proceedings to appellate level is of course competent, where a compatibility issue is raised (1995 Act s 288ZB). However, other than in quite exceptional cases, the court expects judges at the level of the High Court to be able to address a compatibility issue properly raised and to determine it within the first instance process, leaving the normal appellate courses open in the event that either party wishes to challenge the actual decision reached.”