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These four cases are all appeals from decisions of the High Court of Justiciary sitting as the Criminal Appeal Court (the “Scottish criminal appeals court”).  The appeals would formerly have been heard by the Judicial Committee of the Privy Council, exercising its devolution jurisdiction conferred under the Scotland Act 1998. This appellate jurisdiction has been transferred from the Privy Council to the UK Supreme Court by the Constitutional Reform Act 2005.  The very existence of the possibility of appeal to London from decisions of the Scottish criminal appeal court has become something of a thorny constitutional issue of late, at least in Scotland.  Clear tensions have been exposed between the judges of the criminal appeal court and the (Scottish judges) of the UK Supreme Court on this issue. Aspects of some of these four appeals highlight these tensions.  But a little history is needed to explain how these difficulties have arisen.

The House of Lords never exercised any appellate jurisdiction in criminal law matters from Scotland (Mackintosh v Lord Advocate (1876) 2 App Cas 41, HL(Sc))   As Lord Bingham noted in his evidence to the Parliamentary 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.”

The possibility of such an appeal in criminal matters arose only from 31 May 1999 when the Scottish Law Officers became devolved officers and subject to Convention rights controls under the Scotland Act.    The judges in Scotland, in their first flush of enthusiasm for Convention rights review of government action, immediately 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 (See, for example the decisions of the High Court of Justiciary in Starrs v Ruxton 2000 JC 208 and Brown v. Stott  2000 JC 328. 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 (See, for example, Montgomery v. HM Advocate, 2001 SC (PC) 1 (per Lord Hope at pages 19G)  “[T]he approach which the Scotland 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.”).   There was some initial opposition to this analysis in the Privy Council – notably from Lord Hoffmann in Montgomery v. HM Advocate, 2001 SC (PC) 1 at 7B-C who observed that 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.”

But the more expansive approach to the Privy Council’s devolution jurisdiction (which unlike Scottish civil appeals to the House of Lords could be invoked only with leave of the lower court in Scotland or, on refusal, with the special leave of the Board) soon prevailed (Brown v. Stott, 2001 SC (PC) 43, though Lord Bingham remarked in his evidence of 26 March 2001 to the Joint Committee on Human Rights, that:

“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.”

Indeed, the Privy Council devolution jurisdiction in the ten years of its existence was prayed in aid only in relation to appeals from Scotland, and these almost exclusively concerned issues of Scots criminal law and procedure, albeit dressed up in the language of Convention rights (primarily the fair trial rights set out in Article 6(1) of the European Convention on Human Rights). Although the appeals from the Scottish criminal appeal court to the Privy Council were relatively few in number, they have had a significant impact in opening up the traditionally insular (and almost wholly judge-made) world of Scottish criminal law and procedure to a degree of external scrutiny which appears not now to be welcomed by the judges in Edinburgh.   In the November 2008 report by Andrew Le Sueur of the School of Law Queen Mary, University of London on a series of six seminars about the UK Supreme Court, one senior Scottish appeal court judge attending them is reported to have observed as follows

“[S]ection 57 of the Scotland Act 1998 …. prevents a Scottish minister from taking any steps that are contrary to Convention rights. This Section has been seized upon by the Scottish Bar to obtain a route of appeal in criminal cases to the Privy Council. This is a result that was never expected and never intended. The origin lies in the fact that in Scotland there is only one ground of appeal in criminal cases: miscarriage of justice. The argument runs like this: since Article 6 ECHR requires that everyone should have a fair trial, then if there has been a miscarriage of justice, it stands to reason that there has not been a fair trial, and there can be an appeal to the Privy Council. Exactly where the boundaries lie has not yet been fully clarified in the case law.   At ground level, this is causing endless trouble by prolonging criminal trials in Scotland. In a period of six years, the average length of a contested criminal trial has increased by one complete day. It is also causing huge delays in the criminal appeals system. The problem must sooner or later be resolved. …. There has been considerable academic criticism of the jurisdiction. There is a question as to whether it was intended to be a transitional arrangement because in 1998 (when devolution started) the Human Rights Act had not been brought into force. There is a question whether it really is necessary now that human rights are better understood and all the main human rights issues in relation to criminal trials have at least been canvassed if not fully resolved.”

In some cases in Scotland the court has refused to receive, consider or make any formal determination or finding on devolution issues which have otherwise duly been raised before them.  In C v Miller, 2004 SC 318  the First Division observed (at paragraph 10-11)

“10.   It appears to us to be quite inappropriate for an appeal to the Judicial Committee [of the Privy Council] to be authorised in a situation in which this court, for the reasons which it has given, has in fact not made a decision on the merits of the issue raised.

11   It was represented to us that a decision by this court to decline to entertain a devolution issue was itself unlawful and that the Judicial Committee ought to be given the opportunity so to decide. In our opinion that contention is unarguable.”

And in McDonald (John) v HM Advocate, 2008 SLT 144 the Criminal Appeal Court stated (at para 67):

“[W]e are not persuaded that the circumstances justify a jurisdiction being invoked which might render competent an appeal to the Privy Council. Essentially the issue is a procedural one, namely, whether the court should exercise its power to make an order for recovery and, if so, on what terms. That is properly a matter for this court exclusively. In these circumstances the devolution minutes ought not to be received.”

 

But if the intent behind such a refusal by the Edinburgh judges to rule on the devolution issues before them was to block the possibility of an appeal to London, it has been ineffective.  In McDonald (John) v HM Advocate, 2008 SLT 993, JCPC Lord Hope ruled as follows (at paragraph 16):

“The importance of preserving the avenue of seeking special leave to appeal from the Judicial Committee in such a case is indicated by the judges’ comment in para 67 of their opinion that they were not persuaded that the circumstances justified a jurisdiction being invoked which might render competent an appeal to the Privy Council. The Extra Division in C v Miller 2004 SC 318, para 11, made a similar comment when they rejected the appellant’s submission that the Judicial Committee ought to be given the opportunity to decide whether to entertain the devolution issue which that court had refused to entertain.

I am not to be taken as indicating that these decisions were taken simply to prevent the issue being determined by the Judicial Committee. If they had been, they would have amounted to an abuse of the system which the Judicial Committee must be able to correct. But the decisions were undoubtedly based upon a misconception. It is for the Judicial Committee, not for the lower court, to decide whether special leave to appeal should be given. It is also for the Judicial Committee to decide whether it has jurisdiction to entertain an application for special leave.”

 And Lord Rodger, concurring, noted (at paragraph 49):

“[R]eceiving or not receiving a devolution minute is a procedural step which cannot affect the jurisdiction of the Board to hear an appeal, with special leave, in a case where the appeal court has in substance determined the devolution issue in question. That jurisdiction, which is conferred by Parliament, not the appeal court, cannot be removed by any procedural decision of the appeal court. For these reasons, I am satisfied that the Board has jurisdiction to entertain the appeal.”

But this Edinburgh-London dispute still rumbles on. In a document dated 10 October 2008, the judges of the Court of Session, made a collective submission to the Calman Commission which was established by the Scottish Parliament to consider the future of devolution in Scotland.  In paragraphs 6 to 12 of this submission the Court of Session judges identify what they describe as a “serious difference in approach as between the court and the Judicial Committee [of the Privy Council]” in determining devolution issues and associated matters. On the Court of Session judges’ account (at paragraph 7):

“The perception is that the explanation for this state of affairs lies in the different responsibilities of the courts in Scotland and the Judicial Committee. The courts in Scotland must apply the common and statutory law of Scotland, as well as respecting the requirements of section 6 of the Human Rights Act 1998. The Judicial Committee, on the other hand, in the context under discussion, is concerned only with the narrower issue of the compliance or otherwise of an act, or contemplated act, of the Lord Advocate with Convention rights”

This submission echoes observations earlier made by Lord Osborne sitting in the criminal appeal court in Fraser (Nat Gordon) v. HM Advocate [2008] SCCR 407 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.”

As a particular example of the “serious difference in approach” between themselves and the Judicial Committee of the Privy Council, the Court of Session judges cite to the Calman Commission what they consider to be divergent approaches taken on the issue to when and whether a conviction can be disturbed on appeal upon the basis of fresh evidence.   They highlight, in particular, the developing case law of the Privy Council on the duties of the Crown to disclose material evidence in a manner compatible with the accused’s fair trial rights set out Article 6 ECHR (See, for example: Holland v Her Majesty’s Advocate, 2005 SC (PC) 3; Sinclair v Her Majesty’s Advocate, 2005 SC.(PC) 28  and McDonald (John) v HM Advocate, 2008 SLT 993, JCPC.

The Court of Session judges complain that:

“[W]here the Judicial Committee conclude that there has been a denial of a fair trial under Article 6(1) of the Convention, they consider that they are empowered to quash the associated conviction themselves”.

But it would appear that the Privy Council (and now the UK Supreme Court) was given this power by the Order in Council, the Judicial Committee (Powers in Devolution Cases) Order 1999, SI 1999/1320.   In determining appeals before it the Judicial Committee – and now the UK Supreme Court – exercises the same powers that were available to the High Court of Justiciary including, therefore, the power to quash a conviction in terms of section 118 of Criminal Procedure (Scotland) Act 1995.   But the gravamen of the complaint of the Edinburgh judges appears to be that the Privy Council has, they say, exercised this power to quash convictions without having proper regard: either to the established case law of the High Court of Justiciary when sitting as a final court of appeal in non-devolution issue cases in relation to when fresh evidence might be admitted or relied on; or to the statutory test as to what constitutes a “miscarriage of justice”.    The Court of Session judges conclude as follows:

“[W]e would argue that there are therefore two jurisdictions, the exercise of either of which  may result in the quashing of a conviction, in which different criteria may be applied, in particular, in relation to evidence not heard at a trial, yet one of those jurisdictions, that of the Judicial Committee, can be invoked only if certain procedural steps have been timeously taken, which they may not have been, for wholly arbitrary reasons. If the question is asked whether this is a satisfactory situation, one is driven to conclude that it is not. Accordingly, in summary, the present statutory arrangements, described above are not operating in a satisfactory manner.”

Meanwhile in refusing the application for leave to appeal to the UK Supreme Court in Fraser (Nat Gordon) v HM Advocate  (No. 2), 2009 SLT 441, HCJ (AC)  the Scottish criminal appeal court has said this (at para 13):

“[W]e have come to the conclusion that the appellant’s application for leave to appeal to the Privy Council should be refused as incompetent. The identification of the devolution issue which, it seems, must now be deemed to have been determined, in our opinion necessarily depends upon the content of the devolution issue minute tendered and rejected on 13 November 2007. That is a necessary consequence of the observations of Lord Hope of Craighead at p 997 (p 963) para 16 of his opinion in McDonald v HM Advocate.     It follows from that that, in any appeal for which leave might be granted by us, the appellant would seek to canvass exactly the same issues as were canvassed in the course of his appeal under s 106 of the 1995 Act, but this time before the Judicial Committee of the Privy Council.

What decision they might or might not reach in any such appeal can only be a matter of conjecture at this stage. However, what is clear is that the allowance of leave for such an appeal as this would authorise a procedure under which the Judicial Committee, in the circumstances of this case, would, quite simply, review the merits of the decision reached by this court on 6 May 2008. Whatever was contemplated by Parliament in enacting paras 1(c) and 13 of Sch 6 to the Scotland Act 1998, we do not think that it was intended to achieve such a result as that. Had it been the intention of Parliament to introduce, for the first time, a right of appeal to the Privy Council against the merits of decisions by the High Court of Justiciary determining appeals to it under s 106 of the 1995 Act, we are of the opinion that it would have made that intention clear. That has not been done.”

It is against that background that the four Scottish criminal appeals which have been set down for a hearing on 8 December and the subsequent 3 days must be understood.  These will be considered in Part 2 of this Case Preview, to be posted tomorrow.