Scottish Human Rights Law Group

Almost as soon as its new devolution jurisdiction was conferred on the Privy Council the judges in Scotland, in their enthusiasm to establish Convention right review, gave a very broad definition to “devolution issues” so as to encompass anything done by the prosecution in the course of any (summary or solemn) criminal trial in Scotland. [1] The Scottish judges also insisted that the fair trial rights set out in Article 6 ECHR imposed in Scotland duties directly upon the Lord Advocate and all those acting on his behalf in prosecuting offences. [2]

There was some initial opposition to this analysis – notably from Lord Hoffmann[3] – in the first devolution cases to come before the Privy Council, but the more expansive approach to the Privy Council’s devolution jurisdiction advocated primarily by Lord Hope soon prevailed.[4] The overall result was, in the words of Lord Bingham, “anomalous” and “surprising and unexpected”[5] in that the Privy Council, when exercising its devolution jurisdiction, became a court – in which Scottish judges became a significant and at times dominant bloc [6] – dealing exclusively with cases coming from Scotland.

The Privy Council in its devolution guise became, in effect, a second Scottish court of appeal, rather than a UK constitutional court, and dealt primarily with questions concerning the proper interpretation of Convention rights in ordinary criminal trials, rather than with broader constitutional issues.[7] The only devolved administration which was brought before the Privy Council in the first nine years of its devolution jurisdiction was the Scottish Ministers (included among their number being the Lord Advocate).   And every case – bar one [8] – which came before the Privy Council in that period exercising its jurisdiction under the devolution statutes were criminal cases concerned either with the actions of procurators fiscal in summary trials [9] or with the actions advocates depute in solemn procedure. [10] All of these criminal cases concerned aspects of Article 6 and its impact upon Scottish criminal procedure.

It should also be noted while Article 6 does not guarantee of itself any right of appeal against a specific criminal or civil determination if any appeal has been provided for in national law then its procedures should confirm to the requirements of Article 6. [11] But it is a prerequisite for the Privy Council to be able to exercise its devolution jurisdiction, whether in civil [12] or in a criminal case, [13] that there be a determination not simply of a civil right or criminal charge but of a “devolution issue”.   In exercising its devolution jurisdiction the Privy Council is not a court of general appeal against decisions of the (civil or criminal) courts in Scotland.    The court of general appeal from decisions of the Inner House in Scotland remains the House of Lords while there is no general right of appeal against decisions of the High Court of Justiciary whether exercising its original or appellate criminal jurisdiction.   Latterly, indeed, the High Court of Justiciary in Scotland began to re-emphasise the limited and narrow statutory appellate jurisdiction which the Privy Council may exercise in matters of Scots criminal law – effectively reminding itself and the Judicial Committee that it is limited to giving to all other UK courts (including the House of Lords) an authoritative interpretation of the meaning of Convention rights within the United Kingdom – leaving the effect of this interpretation to be worked out by the courts with full jurisdiction to consider and decided upon these matters.  In particular, the judges of the High Court of Justiciary emphasised that the member of the Board of the Judicial Committee had no jurisdiction and were therefore not competent to decide upon general matters of criminal law or procedure in Scotland, [14] for example on such issues as the Crown duty of disclosure in criminal trials. [15]

Author:  Aidan O’Neill QC

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[1] See, for example the decisions of the High Court of Justiciary in Brown v. Stott 2000 JC 328 and Starrs and another v Ruxton (Procurator Fiscal, Linlithgow), 2000 JC 208

[2] See, for example, Montgomery v. HM Advocate, 2001 SC (PC) 1 per Lord Hope at pages 19G:

“But the approach which that Act has taken is that the right of the accused to receive a fair trial is a responsibility of the Lord Advocate as well as of the court.”

[3] See, for example, Montgomery v. HM Advocate, 2001 PC 1 per Lord Hoffmann at 7B-C:

“[A devolution issue] arises only if the prospective infringement of their rights is an act of the Lord Advocate.  It is therefore necessary to identify the persons upon whom Article 6.1 imposes a correlative obligation.  Whom does it oblige to act in such a way as to ensure a fair and public hearing ?  If, as a matter of construction of the Article, no obligation is imposed upon the Lord Advocate, then no complaint of an infringement of this particular Convention right can give rise to a devolution issue.”

[4] See Aidan O’Neill “Judicial Politics and the Judicial Committee: the devolution jurisprudence of the Privy Council”[2001] 64 Modern Law Review 603-618

[5] Lord Bingham of Cornhill, evidence to the Joint Committee on Human Rights, 26 March 2001:

“When Scotland was united with England and Wales in 1707 it was clearly implicit in the Act of Union that there was no criminal appeal from Scotland to London …. There was originally a doubt as to whether there was even a civil appeal from Edinburgh to London, but it was very quickly established that there was and indeed extensive use of it was made to such an extent that there was very little time to hear English appeals! But what is important is that the Scots criminal system has always been self-contained and has had no English input at all. One of the anomalous, and to me surprising and unexpected, results of devolution is that for the first time one does have judges, Scots prominently among them but nonetheless judges, sitting in London ruling on questions relating to Scots criminal trials.”

[6] See further Aidan O’Neill “Judging Democracy: Scotland’s Constitution and Human Rights” in (2004) Edinburgh Law Review 177-205.   It may be noted, for example, that Lord Hope of Craighead has appeared in and given a lengthy judgment in every case to date in which the Privy Council has been called upon to exercise its devolution jurisdiction.

[7] See Aidan O’Neill “Constitutional Reform and the UK Supreme Court: a view from Scotland” (2004) 9 Judicial Review 216-236

[8] A. v. The Scottish Ministers, 2002 SC (PC) 63 – decision of Lord Slynn of Hadley, Lord Hope of Craighead, Lord Clyde, Lord Hutton, Lord Scott of Foscote, 24 July 2001 (Article 5(1)(e) ECHR and the detention of persons of unsound mind)

[9] The JCPC decisions concerning trials conducted by and in the name of procurators fiscal are:

(i)                   Brown v. Stott, 2001 SC (PC) 43 – decision of Lord Bingham of Cornhill, Lord Clyde, Lord Hope of Craighead, Lord Kirkwood and Lord Steyn, 5 December 2000  (Article 6 ECHR and the privilege against self-incrimination, reversing the decision of the High Court of Justiciary);

(ii)                 McLean v. Buchanan, 2002 SC (PC) 1 – decision of Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Clyde, Lord Hobhouse of Woodborough and Lord Millett, 24 May 2001 (Article 6 ECHR, legal aid and the equality of arms between prosecutors and criminal defence lawyers, affirming the decision of the High Court of Justiciary).

(iii)                Millar v. Dickson, 2002 SC (PC) 30 – decision of Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Clyde, Lord Scott of Foscote, 24 July 2001 (Article 6 ECHR and possible waiver of the right to an independent and impartial tribunal, reversing the decision of the High Court of Justiciary)

(iv)               Dyer v Watson, 2002 SC (PC) 89 – decision of Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Hutton, Lord Millett and Lord Rodger of Earlsferry, 29 January 2002 (Article 6 ECHR and the factors indicating unreasonable delay, affirming the decision of the High Court of Justiciary)

(v)                 Clark v. Kelly, 2003 SC (PC) 77 – decision of Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton, and Lord Rodger of Earlsferry, 11 February 2003 (Article 6 ECHR and the independence and impartiality of the District Court, affirming the decision of the High Court of Justiciary)

(vi)               Robertson v. Higson, 2006 SC (PC) 22, decision of Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Carswell and Lord Brown of Eaton-under-Heywood, 6 February 2006 (whether the concept of acquiescence could be prayed in aid to prevent challenges to the validity of convictions and sentences pronounced by temporary sheriff who had insufficient structural independence from the Executive to be Article 6(1) compliant, affirming the decision of the High Court of Justiciary)

(vii)             Spiers v. Ruddy [2008] 2 WLR 608, decision of Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Hutton, Lord Rodger of Earlsferry, Lord Mance and Lord Neuburger of Abbotsbury, 12 December 2007 (departing from R. v. H.M Advocate, 2003 SC (PC) 21 in holding that the right to a trial within a reasonable time did not entail a right not to be tried after an unreasonable time)

[10] The JCPC cases dealing with solemn procedure are:

(i)                   Montgomery v. H.M. Advocate, 2001 SC (PC) 1 – decision of Lord Slynn, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Clyde, Lord Hope of Craighead, 19 October 2000 (Article 6 ECHR and pre-trial publicity, affirming the decision of the High Court of Justiciary);

(ii)                 McIntosh v. HM Advocate, 2001 SC (PC) 89 – decision of Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Clyde and Lord Hutton, 5 February 2001 (Article 6 ECHR, drug confiscation orders and the presumption of innocence, reversing the decision of the High Court of Justiciary);

(iii)                HM Advocate v K, 2002 SC (PC) 89 – decision of Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Hutton, Lord Millett and Lord Rodger of Earlsferry, 29 January 2002 (Article 6 ECHR and the factors indicating unreasonable delay, affirming the decision of the High Court of Justiciary)

(iv)               Mills v. HM Advocate (No. 2) 2003 SC (PC) 1 – decision of Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Scott of Foscote, Lord Mackay of Clashfern, 22 July 2002 (Article 6 ECHR unreasonable delay between conviction and hearing of appeal and the remedy of a reduction in sentence, affirming the decision of the High Court of Justiciary)

(v)                R. v. H.M Advocate, 2003 SC (PC) 21  – decision of Lord Steyn, Lord Hope of Craighead, Lord Clyde, Lord Rodger, Lord Walker of Gestingthorpe, 28 November 2002 (Article 6 ECHR unreasonable delay in bringing charges and remedies under the Scotland Act, reversing decision of the High Court of Justiciary);

(vi)               Flynn and others v. HM Advocate, 2004 SC (PC) 1 – decision of Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Carswell, 18 March 2004 (Articles 5 and 6 ECHR tariffs for mandatory lifers, over-turning the decision of the High Court of Justiciary)

(vii)              Holland v. HM Advocate, 2005 SC (PC) 3, decision of Lord Bingham, Lord Hope of Craighead, Lord Clyde, Lord Rodger, Baroness Hale, Lord Carswell, 11 May 2005 (Article 6(1) fairness and procedure identification of accused by in the dock of the court, over-turning the decision of the High Court of Justiciary)

(viii)            Sinclair v. HM Advocate, 2005 SC (PC) 28, decision of Lord Bingham, Lord Hope of Craighead, Lord Clyde, Lord Rodger, Baroness Hale, Lord Carswell, 11 May 2005 (Article 6(1) fairness and disclosure to the defence of relevant information in the hands of the Crown, over-turning the decision of the High Court of Justiciary)

(ix)                Kearney v. HM Advocate, 2006 SC (PC) 1, decision of Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood, 6 February 2006 (whether temporary judges had the requisite independence from the Executive to be Article 6(1) compliant, affirming the decision of the High Court of Justiciary)

(x)                  DS v. HM Advocate, 2007 SC(PC) 1, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood 22 May 2007 on whether section 10 of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (“the 2002 Act”) which inserted section 275A into the Criminal Procedure (Scotland) Act 1995 is compatible with the appellant’s right to a fair trial under article 6 of the European Convention on Human Rights

[11] Raza v Scottish Criminal Cases Review Commission, 2007 SCCR 403

[12] See for example C v Miller (Application for Leave to Appeal), 2004 SC 318

[13] See for example Murphy (Michael John) v HM Advocate, 2008 SLT 404

[14] See for example Fraser (Nat Gordon) v. HM Advocate [2008] HCJAC 26 per Lord Osborne at paragraphs 219-220

219 … [T]he relationship between the concepts of a miscarriage of justice, recognised in section 106(3) of the Criminal Procedure (Scotland) Act 1995 and an unfair trial in terms of Article 6(1) of the Convention is not straightforward. Plainly they are not co-extensive. An unfair trial may not result in a miscarriage of justice. That would be so where, for example, that trial concluded with an acquittal, since the concept of miscarriage of justice comes into play only following a conviction on indictment, as provided in section 106(1) of the 1995 Act. Furthermore, a trial may be completely fair yet result in a conviction which must be regarded as a miscarriage of justice, as for example where the provisions of section 106(3)(a) operate.

220          What importance, if any, it may be asked, attaches to these considerations in the present context. The answer, in my view, is that it is potentially confusing and therefore unhelpful, in criminal appeals under section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995 to seek to rely on dicta pronounced in appeals under paragraph 13 of Schedule 6 to the Scotland Act 1998, since the issues which this court must determine in the former type of appeal, which I have described in some detail, are inevitably quite different from those issues which the Judicial Committee require to determine in the latter.”

[15] McDonald (John) v HM Advocate, 2008 SLT 144.    At the time of writing this decision of the criminal appeals court was under appeal to the Judicial Committee of the Privy Council.

Art. 06 Right to a Fair Trial, Civil Procedure, Commentaries, Criminal Law and Criminal Procedure