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Of course, the statutory response may, intentionally or inadvertently, have been wider than to deal with the prior statutory effect which was thought to be undesirable. Ratio |
But all the indications are the other way. Ratio |
The limitation on the bringing of proceedings provided for by section 100(3B) is for practical purposes identical to that provided by section 7(5) of the Human Rights Act 1998. Ratio |
That subsection applies, and applies only, to proceedings brought under section 7(1)(a). Ratio |
Such proceedings are civil proceedings (R v Kansal (No 2) [2002] 2 AC 69, per Lord Hope of Craighead at paras 58-63). Ratio |
This is to be contrasted with section 7(1)(b) which allows for reliance on the Convention right or rights concerned in any legal proceedings a term defined comprehensively by section 7(6). Ratio |
Such reliance can accordingly be had in criminal as well as in civil proceedings. Ratio |
It is difficult to suppose that the Scottish Parliament would have, in effect, adopted the exact language used for civil proceedings in the Human Rights Act if it had intended to provide for criminal as well as for civil proceedings. Ratio |
Further, it is difficult to conceive why the Scottish Parliament should think it appropriate to provide for criminal appeals a limitation period such as that made by section 100(3A) and (3B). STA |
The Criminal Procedure (Scotland) Act 1995 makes its own provision for the timeous taking of appellate steps. STA |
Section 106 allows a person convicted on indictment, with leave granted in accordance with section 107, to appeal in accordance with that Part of the Act to the High Court against various things, including conviction and sentence. STA |
Section 109(1) prescribes that, where a person desires to appeal against any of the things referred to in section 106(1), he shall within two weeks of the final determination of the proceedings, lodge with the Clerk of Justiciary written intimation of intention to appeal . STA |
Section 110(1)(a) provides that, in the case of an appeal against conviction, the convicted person may, subject to section 111(2), within eight weeks of lodging intimation of intention to appeal lodge a written note of appeal . STA |
A shorter (four weeks) period is allowed for appeals other than appeals against conviction (section 110(1)(b)). STA |
Section 111(2) provides: Any period mentioned in section 109(1) or 110(1)(a) of this Act may be extended at any time by the High Court in respect of any convicted person . STA |
Thus, as regards proceedings on indictment, the 1995 Act provides its own (much shorter) temporal restrictions on bringing appeals with a similar power in the court to extend the period on equitable grounds. Ratio |
As regards summary proceedings, section 175 allows a convicted person to appeal with leave to the High Court. STA |
The more usual mode of appeal is by stated case (section 176), for which again a short timetable is prescribed. STA |
Section 181(1) empowers the High Court to direct that such further time as it may think proper be afforded to the applicant to comply with the requirements as to time. STA |
The statute recognises other common law modes of appeal (by, for example, bill of suspension). STA |
At common law there was no time limit for the bringing of a suspension but acquiescence in the judgment complained of might be inferred from undue delay (Renton and Brown Criminal Procedure, para 33-09). STA |
A statutory time limit (three weeks) for bringing a bill of suspension was introduced by section 6(1) of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. STA |
It is difficult to suppose that, in inserting section 100(3)(A) and (3B) into the Scotland Act in 2007, the Scottish Parliament had in mind common law remedies in summary matters. STA |
Accordingly, there are persuasive reasons, in my view, for concluding that subsections (3A) and (3B) of section 100 (as amended) were designed to apply only to civil proceedings. Ratio |
Although not spelt out in the legislation, that restriction is consistent with the statutory language used. Ratio |
Against that background the expression any proceedings brought by virtue of this Act against [the Lord Advocate] is to be construed. Ratio |
It is conceded, inevitably, that criminal proceedings at first instance are not within the ambit of section 100(3A). Ratio |
While Part VII of the 1995 Act (headed Solemn Proceedings) is dealt with distinctly from Part VIII (headed Appeals from Solemn Proceedings), it involves, in my view, some artificiality of language to construe any proceedings brought as apt to include an appeal taken against conviction or sentence. Ratio |
In effect, there are single proceedings initiated by service of the indictment or complaint, the appeal by a convicted person being a step taken within these single proceedings. Ratio |
I am not persuaded that the terms of section 106(3) (By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice) assist in determining whether an appeal is proceedings (distinct from the prosecution) brought by the convicted person. Ratio |
More importantly, in my view, the expression any proceedings brought in subsection (3A) appears to pick up the language to bring any proceedings in subsection (1)(a), which in turn reflects the language of section 7(1)(a) of the Human Rights Act a provision concerned with civil proceedings (supra). Ratio |
In any event, if there is ambiguity about the interpretation of subsection (3A), the considerations referred to earlier would, in my view, conclusively point to a criminal appeal not being within the scope of this provision. Ratio |
There remains for consideration by virtue of this Act. Ratio |
Some elaboration of that phrase is provided by section 126(11) which tells us that by virtue of includes by and under. Ratio |
In Somerville an issue was whether the obiter observations by Lord Hope and by Lord Rodger in R v HM Advocate 2003 SC (PC) 21 as to the effect of the Scotland Act (and in particular section 100(1) of it) were well founded. Ratio |
In R Lord Rodger had said at para 123: Section 100 has a counterpart in section 7 of the Human Rights Act, subsection (1) of which is expressed slightly more fully: (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings ag... |
Especially in the light of that provision, I would infer from section 100(1) of the Scotland Act that the Act itself enables a person, who claims that an act or proposed act of a member of the Scottish Executive is incompatible with his Convention rights, to bring proceedings in a court or tribunal or to rely on his Co... |
Convention rights and the remedies for vindicating them belong in the sphere of public rather than private law. Ratio |
What particular form the remedy or reliance will take depends on the court or tribunal, and on the jurisdiction, in which the matter arises. Ratio |
In an appropriate court the person affected can seek damages under the Scotland Act in respect of an incompatible act. . Ratio |
The majority in Somerville in effect approved that approach namely, that section 100 was, by inference, an enabling provision which, among other things, allowed a victim of an infringement of section 57(2) to rely on the Convention right or rights concerned in any legal proceedings, including criminal proceedings. Rati... |
Thus, while the procedural vehicle by which a person convicted in solemn proceedings brings his conviction or sentence under review is by an appeal under section 106 of the 1995 Act, it is the Scotland Act which enables him in that appeal to rely upon the alleged infringement of that right or those rights. Ratio |
Both statutes have thus a part to play. Ratio |
While I think it is a nice question, I have come with hesitation to the view that it can meaningfully be said that an appeal which relies upon an alleged infringement of a Convention right is one brought by virtue of the Scotland Act. Ratio |
I would accordingly not support the High Courts reasoning in this respect. Ratio |
As Lord Hope has pointed out (in para 5 of his judgment), the advocate depute has confined her challenge to the outcome of the appeals in Jude, Hodgson and Birnie to the claim that Birnie had waived his right to a lawyer when he made an unsolicited statement following his police interview, having declined the opportuni... |
It is not now argued that Jude or Hodgson waived their right to a lawyer. Ratio |
It is, of course, suggested that the Appeal Court was wrong in each of the cases in concluding that an effective waiver of their rights under article 6 of ECHR could only be made after they had received legal advice. Ratio |
A further discrete ground was advanced on behalf of the Lord Advocate in the case of Jude to the effect that section 100(3B) of the Scotland Act 1998, as amended by section 1 of the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, precluded a challenge to the Lord Advocates leading evidence of the stateme... |
I agree with all that Lord Hope and Lord Hamilton have had to say on that subject and do not propose to expatiate further on it. Ratio |
As I stated in my judgment in the reference (McGowan, Procurator Fiscal v B) I agree with Lord Hope that there is no absolute rule to be derived from the case-law of the European Court of Human Rights (ECtHR) that an effective waiver of the right to legal assistance can only take place after the person purporting to wa... |
I believe that generally this will be the most effective way of ensuring that there has been an effective waiver but Strasbourg jurisprudence has not yet developed to the point where that is an essential prerequisite. Ratio |
That fact alone would not have deterred me from concluding that this was necessary if I had felt that the article 6 rights of the respondents could not otherwise be secured see my judgment in Ambrose v Harris (Procurator Fiscal, Oban) [2011] UKSC 43, 2011 SLT 1005. Ratio |
But I am not persuaded that the only possible means of ensuring that there has been an effective waiver is by having the suspect who waives the right receive legal advice on that course before he does so. Ratio |
I have explained in my judgment in McGowan why I consider that such safeguards as are currently available in Scottish law to protect the interests of a suspect are not efficacious to ensure that a decision not to have legal assistance constitutes an effective waiver. Ratio |
In particular, I have pointed out that it is an indispensable prerequisite that there must be some means of ascertaining the reason that a decision not to avail of this fundamental right has been taken. Ratio |
Birnies case strikingly illustrates the elementary need for some inquiry to be made of a suspect as to why he has decided not to have the advice of a solicitor before interview unless the reasons for that are otherwise clearly obvious. Ratio |
Although he was no stranger to the criminal law, Birnie was only eighteen years old when he was interviewed by police. Ratio |
Following interview he was on the verge of tears. Ratio |
When he was told that he was going to be kept in custody he broke down and made what has been said to be an unsolicited admission. Ratio |
It is difficult to imagine that this admission and Birnies breaking down were unrelated to his being told that he was going to be detained over the weekend. Ratio |
At 12.35 pm, some twelve minutes after he had made the admission, he was asked whether he wished to have a solicitor contacted on his behalf. Ratio |
He nominated a firm of solicitors to contact but a message was not left with that firm until some two hours later. Ratio |
He also wanted his mother to be informed of his arrest but that proved impossible. Ratio |
The fact that he wanted both his solicitors and his mother to be informed that he was in detention is at least relevant to his state of mind at that time and his ability to cope without legal assistance during any further questioning. Ratio |
Birnie told police that he wanted to make a statement some time before 1.45 pm notably, some 43 minutes before the solicitors whom he had been asked to be informed of his arrest were given that information. Ratio |
Before he made his further statement at 1.45 pm he was asked whether he wished to consult his solicitor before making it and he replied that he did not, and when asked whether he wished to have a solicitor present while he was making it, again said that he did not. Ratio |
In the circumstances the second inquiry might seem otiose but it was the product of a pro forma procedure. Ratio |
Some such procedure is, of course, required to ensure that a consistent practice is followed but, because of the routine way in which it must be applied, it is hardly the most efficient way to examine whether a suspect has fully understood the importance of the right which is being relinquished. Ratio |
Lord Hope has observed that Birnie expressly declined both offers of legal assistance. Ratio |
This is true but it seems to me inescapable that his decision to do so could not in any circumstance be regarded as an effective waiver of his right to legal counsel and I believe that it is inconceivable that any court could be satisfied of that to the requisite standard. Ratio |
Birnie was not asked why he did not want to speak to a lawyer, notwithstanding that he had nominated a firm of solicitors something over an hour before. Ratio |
He was not told that he could speak to a solicitor by telephone. Ratio |
No inquiry was made as to whether the decision to make a statement at that time was related to the intention of police to detain him over the weekend. Ratio |
That this was, at the very least, a distinct possibility must have been obvious to the police officers who interviewed him. Ratio |
Quite apart from the fact that the unsolicited statement was made shortly after he had been interviewed without having been informed of his right to legal assistance and leaving aside the possible impact that this might have on the admissibility of his later statement, the circumstances in which his unsolicited stateme... |
For these reasons I would hold that it is unnecessary to remit Birnies case to the Appeal Court. Ratio |
I am of the view that, on the available evidence, the only possible conclusion is that it has not been established that Birnies decision not to consult a solicitor was an effective waiver of his right to legal consultation. Ratio |
For these reasons I consider that it has not been - and on the available evidence cannot be - established that Birnies decision not to consult a solicitor constituted an effective waiver of his right to legal consultation. Ratio |
On that account, I would dismiss the appeal in his case. Ratio |
I would dismiss the appeals in Jude and Hodgson for the reasons given by Lord Hope. Ratio |
In para 29 of his judgment Lord Hope has fastened on my statement (at para 53 above) that it is an indispensable prerequisite that there must be some means of ascertaining the reason that an accused did not wish to avail himself of the right to legal assistance and has characterised this as an absolute or incontroverti... |
I had not intended to propound any new principle, much less an inflexible rule. Ratio |
In saying that a means must exist for understanding why someone has declined to exercise his right to legal assistance before finding that there has been an effective waiver, I was merely reflecting what I understand to be the unmistakable effect of current Strasbourg jurisprudence. Ratio |
I was not constructing some unheralded, disquieting rule. Ratio |
This can be demonstrated by a few simple propositions: (i) For a waiver to the right to legal assistance to be effective, there must be a knowing and intelligent decision to waive the right. Ratio |
I do not understand the majority in this case to suggest otherwise; (ii) In a case where the effectiveness of the waiver is in dispute, it is for the prosecution to prove that it is effective. Ratio |
Again I do not believe that this is controversial; (iii) It is well recognised that reasons other than those which would qualify as sufficient to support the conclusion that a knowing and intelligent decision has been made will frequently motivate a suspect to decline the right to legal assistance; (iv) In order for th... |
The requirement that a means exist of obtaining that insight does not involve the creation of some startling new rule. Ratio |
It merely follows the flight of the arrow of logic to its obvious destination. Ratio |
In these circumstances, I respectfully question whether the passage from the paper by the President of ECtHR, Sir Nicolas Bratza, quoted by Lord Hope has any relevance to the current debate. Ratio |
Sir Nicolas had made the entirely unexceptionable statement that the Strasbourg court has been careful to refrain from imposing specific requirements on the State. Ratio |
Quite so but that does not impinge on the conclusion that I have reached about the effect of the case-law of the European Court of Human Rights. Ratio |
I have merely indicated where I believe the jurisprudence of that court in this area leads. Ratio |
It was not my intention to descend to a level of detail in laying down an incontrovertible rule. Ratio |
Indeed, I have made it clear that an inquiry into the reasons for a purported waiver is required only when those reasons are not obvious from the circumstances in which it was made. Ratio |
A person infringes a patent for a particular product if he makes, disposes of, offers to dispose of, uses or imports the product or keeps it see section 60(1)(a) of the Patents Act 1977 (the 1977 Act). Ratio |
The principal issue on this appeal concerns the meaning of the word makes. Ratio |
The other aspect of this appeal raises a number of issues arising out of section 68 of the 1977 Act. Ratio |
The background facts and the patent in suit FAC |
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