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That was not so in Judes case, as his appeal had been brought under the 1995 Act: 2011 SLT 722, paras 37-38. Ratio |
Lord Rodgers observations in paras 105-106 of Cadder were of course obiter. Ratio |
They must nevertheless be treated with respect. Ratio |
He was, after all, a master of the art of statutory construction. Ratio |
As he declared in one of his unpublished lectures, for him the subject of attention in these matters always was the text of the statute. Ratio |
His hope was that, by immersing himself in the text and the scheme of the legislation, he would be able to see what the experts who had devoted months and months to preparing and adjusting the text saw and, more importantly, what they meant and how it should be applied. Ratio |
His dissenting judgment in Martin v Most [2010] UKSC 10, 2010 SC (UKSC) 40 provides ample evidence of his concern for accuracy and for attention to the detail of the language used by the draftsmen and women when carrying out this exercise. Ratio |
He brought to the question as to the meaning and effect of section 100(3B) his deep familiarity with the provisions of the Human Rights Act 1998 which he had developed since he first engaged with the subject in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546... |
As Lord Hamilton points out (see para 40, below), he referred to the Somerville case in para 105 of his judgment in Cadder when he was describing the context in which the amendments to section 100 were made. Ratio |
The challenge to the accuracy of his conclusion that section 100(3B) applies to proceedings brought by way of an appeal under the 1995 Act raises two questions. Ratio |
The first is whether, as the Lord Justice Clerk indicated in para 38 of his opinion, that section is rendered inapplicable simply because criminal appeals are brought under the 1995 Act and not under the Scotland Act. Ratio |
The second is whether the wording of the amended section 100 of the Scotland Act itself shows that it has no application to any criminal proceedings, even at the stage of an appeal. Ratio |
I do not think that it is difficult to see why it did not occur to Lord Rodger that the fact criminal appeals are brought under the 1995 Act of itself meant that these appeals lay outside the scope of section 100(3B) of the Scotland Act. Ratio |
He would have concentrated on the wording of the Scotland Act, as I would too. Ratio |
Section 100(3B) refers to proceedings brought by virtue of this Act against the Scottish Ministers or a member of the Scottish Executive. Ratio |
As I said in Somerville, 2008 SC (HL) 45, para 10, anybody who wishes to bring proceedings against a member of the Scottish Executive on the ground that an act or a failure to act is incompatible with the Convention rights, or to rely on the Convention rights in any proceedings, needs to know whether he must do this un... |
This is so whether the proceedings in question are civil or criminal, as issues about Convention rights may arise irrespective of the nature of the jurisdiction that the court or tribunal is being called upon to exercise. Ratio |
A criminal appeal in which it is said that the leading and relying on evidence by the Lord Advocate was contrary to the appellants Convention rights, and that in terms of section 57(2) of the Scotland Act he had no power to lead that evidence, falls plainly into the category of a proceeding that is by virtue of the Sco... |
It is the Scotland Act which provides the basis for the appeal. Ratio |
The fact that the procedure under which the complaint is made is provided by the 1995 Act is neither here nor there so far as this point is concerned. Ratio |
So I think that the key to the soundness or otherwise of Lord Rodgers reasoning lies in the answer that is to be given to the second question. Ratio |
Section 100(3A) of the Scotland Act refers to any proceedings brought on or after 2 November 2009 by virtue of that Act. Ratio |
In para 106 of his judgment Lord Rodger said that the proceedings in Cadder were proceedings brought on the ground that it was incompatible with articles 6(1) and (3)(c) for the Lord Advocate to lead evidence of answers elicited by the police questioning. Ratio |
In my opinion it would not be a misuse of language to use the word brought in relation to proceedings which take the form of an appeal under section 106 of the 1995 Act. Ratio |
After all, section 106(3) of that Act states that by an appeal under subsection (1) of that section a person may bring under review of the High Court any alleged miscarriage of justice in the proceedings in which he was convicted. Ratio |
The word bring is not used in section 175 which provides for appeals in summary proceedings, but the idea that the appellant is bringing appeals under that procedure is not unreasonable. Ratio |
The wording of section 106(3) also suggests that it would not be a misuse of language to say that the appeal was a separate proceeding from the proceedings in which the appellant was convicted. Ratio |
But that is not an end to the problems that have to be solved in order to understand what is meant by the word proceedings in section 100(3A). Ratio |
One must go back to the opening subsection, which Lord Rodger did not mention in para 106 of his judgment in Cadder. Ratio |
It makes the same distinction as that which is to be found in section 7(1) of the Human Rights Act 1998 between (a) bringing proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights and (b) relying on any of the Convention rights in any such proceedings. Ratio |
Section 100(1)(a) of the Scotland Act does not reproduce exactly the wording of section 7(1)(a) of the Human Rights Act, as it does not refer to the appropriate court or tribunal which section 7(2) explains as meaning such court or tribunal as may be determined in accordance with rules. Ratio |
The words in any such proceedings do not reproduce exactly the wording of section 7(1)(b) of the Human Rights Act either, as the equivalent phrase in that Act is in any legal proceedings. Ratio |
But I think that they have the same effect. Ratio |
I read the word such in subsection (1)(b) as referring back to the words in a court or tribunal in subsection (1)(a). Ratio |
The distinction between subsections (1)(a) and (1)(b) of section 7 of the Human Rights Act is maintained by section 7(5) of that Act, which provides expressly that proceedings under subsection (1)(a) must be brought before the end of the period to which it refers. Ratio |
It does not impose any time bar on proceedings of the kind referred to in section 7(1)(b). Ratio |
The question then comes to be whether the reference in section 100(3A) of the Scotland Act to any proceedings brought must be taken to refer to proceedings of the former kind only, and not to proceedings of the kind referred to in section 100(1)(b). Ratio |
It seems to me, although it does not of course say so expressly, that the wording of section 100(3A) shows that it has that effect and that the time bar in section 100(3B) does not apply to proceedings of the kind referred to in section 100(1)(b). Ratio |
The point is that proceedings of the kind referred to in subsection (1)(b) are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights. Ratio |
In the case of the proceedings referred to in subsection (1)(a), the person to whom the time bar is applied is the person who has brought those proceedings before the court or tribunal in order to obtain a remedy. Ratio |
It is the civil courts that have jurisdiction in cases of that kind, as the rules to which I referred in R v Kansal (No 2) [2002] 2 AC 69, para 63 make clear in the case of the Human Rights Act. Ratio |
The absence of a time bar on the bringing of proceedings of the kind referred to in section 100(1)(a) of the Scotland Act was the problem that was addressed in Somerville, where it was held that the limitations which section 7(5) of the Human Rights Act imposed on remedies sought under that Act did not apply where the ... |
The question then is, into which category do appeals that are brought under the 1995 Act fall for the purposes of the Scotland Act? By whom are these proceedings brought? Ratio |
The Lord Justice Clerk said an appeal is part of the prosecution process brought against the appellant by a member of the Scottish Executive: para 38. Ratio |
There is no doubt that this is a correct description of the proceedings up to and including the trial in which the appellant was convicted. Ratio |
The Advocate Depute, Mr Brodie QC, conceded that this was so, and I think that he was right to make this concession. Ratio |
But that is not an end of the matter. Ratio |
The Lord Advocate is the master of the instance. Ratio |
The proceedings are brought in his name. Ratio |
He remains in control of them even after they have been brought into court, and this is so even after the verdict has been returned: Hume, Commentaries on the Law of Scotland Respecting Crimes, (1844), vol II at p 134; Montgomery v HM Advocate 2001 SC (HL) 1, pp18-19. Ratio |
The focus of attention changes when there is an appeal, but the proceedings remain throughout under the ultimate control of the Lord Advocate. Ratio |
The purpose of those proceedings is to secure the conviction and punishment of those who are guilty of committing acts of the kind that the law regards as criminal. Ratio |
That is their only purpose, and it remains their purpose from the start to the very end. Ratio |
The conclusion that an appeal against conviction or sentence, like any other proceeding in any of the criminal courts in Scotland, is still part of the prosecution process that has been brought in the public interest by the Lord Advocate seems to me to be inescapable. Ratio |
It is only fair to Lord Rodger to point out that he mentioned section 100(3B) because he was concerned, as I was too, to try to minimise the effect of the decision in Cadder: see para 60, where to assist this process I invoked the principle of legal certainty. Ratio |
But I am persuaded that the advice which he was offering in paras 105-106 of his judgment was mistaken. Ratio |
I agree with the Appeal Court that the time bar in section 100(3B) of the Scotland Act has no bearing on Judes appeal. Ratio |
I am fortified in this view by the fact the 1995 Act contains in sections 109 and 110 its own system of time limits for the bringing of solemn appeals, as it does in section 176 for an application by stated case. Ratio |
It would be very odd to find, in a case where the High Court had already granted an extension under section 111(2) of the period referred to in section 110(1)(a) of the 1995 Act or under section 181(1) of that Act in an appeal by stated case, that it was open to the Crown to invoke another time limit under another sect... |
It is not easy to identify the precise scope or ambit of the mischief which the amendment that section 100(3B) introduced into the Scotland Act was intended to remedy: see Bennion on Statutory Interpretation, 5th ed (2008), p 929, where the importance of achieving precision on this point is emphasised. Ratio |
The fact that the amendment was enacted in response to the decision in Somerville does not exclude the possibility that the time bar was intended to have a wider application than the facts of that case, by themselves, might suggest. Ratio |
But the concluding words of section 100(3B) show that the draftsman was aware that stricter time limits might be found in legislation relating to the procedure in question and that it was not the intention that it should override those other time limits or decisions made under a dispensing power to extend them. Ratio |
So I think that one can be reasonably confident that the view which I have arrived at by studying the language of these provisions is not contrary to what Parliament had in mind when it introduced this amendment. Ratio |
Birnies unsolicited statement Ratio |
According to the agreed statement of facts and issues, two issues arise in Birnies appeal. Ratio |
The first is whether he was offered rights of access to a solicitor prior to and during the taking of his unsolicited statement after his police interview. Ratio |
The second is whether, if he was offered them, he expressly waived those rights. Ratio |
But an examination of the facts shows that this formulation of the issues does not accurately focus the real point which is at issue on this branch of the case. Ratio |
This is because Birnie was offered access to a solicitor before he made his unsolicited statement and he did decline the offer expressly. Ratio |
It is best focused by the additional ground of appeal that was advanced in his case in the High Court of Justiciary: see para 2, above. Ratio |
The question that it poses is whether reliance by the Crown upon the admissions that he made in his unsolicited statement deprived him of the fair trial to which he was entitled under article 6(1) of the Convention. Ratio |
Reference was also made in that ground of appeal to his right to a fair trial at common law. Ratio |
That, of course, does not raise an issue which can be considered by this court, as it is not a devolution issue. Ratio |
But there is, in practice, no difference between these two bases for invoking the right to a fair trial. Ratio |
Birnie went to trial in the Sheriff Court at Aberdeen on 7 December 2009 charged with abduction and assault with intent to rape, a breach of the peace and a contravention of section 127(1)(a) of the Communications Act 2003 by sending sexually explicit messages to a female complainer. FAC |
He pled guilty to the statutory offence during the trial, and his plea of not guilty to the charge of breach of the peace was accepted at that stage. FAC |
The Crown led evidence at his trial of answers he gave to the police while he was being questioned as a detainee under section 14 of the 1995 Act without access to a solicitor. FAC |
It also led evidence of an unsolicited statement which he made to the police following that interview. FAC |
The jury found him guilty of the first charge under deletion of various averments including that of intent to rape. FAC |
The facts which provide the background to the argument in Birnies case are as follows. FAC |
He was interviewed under caution in a police station on Friday 14 August 2009 between 1034 and 1220 hrs with a break between 1118 and 1206 hrs. FAC |
At the time of his interview he was 18 years of age. FAC |
He had been on probation since 2008 in respect of a charge of breach of the peace with a sexual aggravation, and he was a registered sex offender. FAC |
He had been convicted on two occasions of a breach of the notification requirements of sections 83 and 94 of the Sexual Offences (Scotland) Act 2003. FAC |
He had also previously been interviewed by the police as a suspect. FAC |
As already mentioned in para 1, above, he was not told that he had a right of access to legal advice prior to or during his police interview as it was not the practice at that time for this to be offered to persons detained under section 14 of the 1995 Act. FAC |
Birnie made no admissions during the first stage of his interview apart from being at the locus with the female complainer [AR] referred to in the abduction charge and kissing her. FAC |
He said that this was consensual. FAC |
He was asked during his interview what expression he would use to describe touching his girl friends private parts, to which he replied with a question: fit like poking her? When asked to explain what he meant by this, he said that it meant putting his fingers in her vagina. FAC |
After they had completed their questioning about the abduction the interviewing officers charged Birnie with abducting the complainer [AR], with indecent assault and with two charges of breach of the peace, and they arrested him. FAC |
He was then cautioned and interviewed in relation to another female complainer, to whom he admitted sending a series of text and email messages. FAC |
After further questioning he was charged with sending indecent messages to that complainer. FAC |
Following the interview Birnie was, according to an entry in a police notebook, on the verge of tears. FAC |
At 1223 hrs he asked what was happening to him. FAC |
He was told that he was to be kept in custody over the weekend to appear in Aberdeen Sheriff Court on Monday 17 August 2009. FAC |
On being advised of this he burst into tears and said spontaneously I poked her. FAC |
He was asked by one of the interviewing officers whether he was referring to the complainer [AR], to which he replied Yes. FAC |
He was told to say nothing further but that other officers would attend later to speak to him if he wished to make any further comments. FAC |
At 1235 hrs he was asked if he wished a solicitor informed of his arrest and was told that a duty solicitor could be contacted on his behalf. FAC |
He gave the name of a solicitor. FAC |
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