The Judicial Committee of the Privy Council Decisions

 


Moir v. Her Majesty's Advocate (Devolution) [2004] UKPC D2 (11 November 2004)

Reasons for Decision 17th November 2004

ADVANCE COPY

Devolution Petition No. 4 of 2004

Mitchell John David Moir Petitioner

v.

Her Majesty's Advocate Respondent

FROM

THE HIGH COURT OF JUSTICIARY

SCOTLAND

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REASONS FOR DECISION UPON A PETITION FOR SPECIAL

LEAVE TO APPEAL OF THE LORDS OF THE JUDICIAL COMMITTEE

OF THE PRIVY COUNCIL, OF THE 11th November 2004,

Delivered the 17th November 2004

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Rodger of Earlsferry

[Delivered by Lord Hope of Craighead]

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1. This is a petition for special leave to appeal from a decision of the High Court of Justiciary under paragraph 11 of Schedule 6 to the Scotland Act 1998. The petitioner is awaiting trial on an indictment in which a number of sexual offences have been libelled against him, including rape. He seeks to raise before his trial as a devolution issue the question whether sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995, as amended by sections 7 and 8 of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002, are incompatible with his right to a fair trial under article 6(1) of the European Convention on Human Rights and Fundamental Freedoms.
2. On 20 June 2003 the judge, Lord Macfadyen, refused the petitioner's devolution minute when it came before him in the High Court. The petitioner appealed against that decision under section 74 of the 1995 Act. On 11 October 2004 the Appeal Court (the Lord Justice Clerk (Gill) and Lords Osborne and Johnston) refused the appeal. On 18 October 2004 the petitioner's motion for leave to appeal to the Judicial Committee was also refused.
3. The Lord Justice Clerk, with whose opinion Lord Osborne agreed, described the nature of the discussion that had taken place on the arguments which were presented to the court as "somewhat abstract". He observed that it might be that in the course of practical experience problems that were difficult to foresee at present might come into sharper focus: para 53. In the penultimate paragraph of his opinion, para 7, Lord Johnston said:

"The issue of whether or not a fair trial is prejudiced by the legislation is better decided after a trial than before it. Whatever, therefore, may be the impact of the legislation in terms of the Convention, it will always be open to an accused person on being convicted to argue an appeal that the line that he was forced to take, or not as the case may be, in relation to section 275 was prejudicial to his defence."

4. Their Lordships agree that the issue that the petitioner seeks to raise in this case, in relation to this legislation, is best left to be considered after trial. The legislation is complex, and the problems which it seeks to address will vary in their significance from case to case. Its effect is difficult to assess at this early stage in its operation without the benefit of seeing how it has worked out in practice. There may be cases, as in R v A (No 2) [2002] 1 AC 45, where the issue as to whether legislation for the protection of the complainer is compatible with the accused's Convention rights is sufficiently clear for it to be capable of being dealt with as a matter of principle before trial. Their Lordships are not satisfied that this is such a case. The proper course is for the Crown to be allowed to proceed to trial and for the issue of compatibility to be raised, if a conviction follows and the issue remains relevant, as a ground of appeal. Account can then be taken of what happened at the trial.
5. For these reasons their Lordships have decided to dismiss the petition.