HM Advocate v PH 2002 SCCR 927

January 31, 2009 | No Comments

It was objected that the re-definition in the law of rape and consent which resulted from the decision of the High Court in Lord Advocate’s Reference (No.1 of 2001) [1] violated the prohibition under Article 7 against retrospective criminal legislation, as well as constituting a more general constitutional violation of the principle of separation of powers since it was for the Scottish Parliament to make substantive changes in the law, not for the judges as encouraged by the Lord Advocate, a member of the executive.   In dismissing this challenge the court held that the court in Lord Advocate’s Reference (No.1 of 2001) had merely having reviewed the law of rape and clarified it by judicial interpretation, which was said not to be prohibited by either the constitutional settlement set out in the Scotland Act 1998 Sch. 6 or by Article 7(1) of the Convention

 [1] Lord Advocate’s Reference (No.1 of 2001), 2002 SLT 466

Art. 07 No Punishment without Law

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Formed in May 2009, the Scottish Human Rights Law Group is a non-affiliated, independent, professional network for those engaged in legal practice and study, in academia and politics, in campaigning and in the provision of advice. It exists to raise awareness and knowledge of human rights law in Scotland, and to provide a forum for discussion of matters of interest across the field. The group organises seminars and roundtable discussions on human rights and is accredited for the purposes of CPD.