In Part I, posted yesterday, I discussed the historical and constitutional background to these four appeals.  This Part deals with the particular issues raised in each of the appeals.

  In Allison v HM Advocate, 2009 SLT 550 the criminal appeal court refused leave to appeal to the Privy Council (now the UK Supreme Court) against their refusal of the appellant’s appeal against conviction. It appeared that at no time prior to their decision, or thereafter, had any notice of intention to raise a devolution issue been raised in terms of paragraph 40.2 of Schedule 2 to the Act of Adjournal (Criminal Procedure Rules) 1996.  In seeking leave to appeal to the Privy Council/UKSC counsel for the appellant contended that the non-existence of any document formulating a devolution issue for the determination of the court was of no importance (having regard to the Privy Council decision in McDonald v HM Advocate [2008] UKPC 16 and that, in any event, since during the course of the appeal hearing the criminal appeal court had ruled that the fact that a deceased witness had criminal cases outstanding against him was of no significance in the preparation of the accused’s defence, the appeal court had determined a devolution issue in the respect that this was inconsistent with the Crown duties of disclosure as determined by the Judicial Committee of the Privy Council in Holland v HM Advocate, 2005 SC (PC) 3.

In refusing the application as incompetent the criminal appeal court observed that the failure to follow the mandatory statutory requirements of paragraph 5  of Schedule 6 Scotland Act 1998 , meant that the Advocate General for Scotland (representing the interests of the UK Government) had been deprived of the possibility of entering the appeal proceedings before them and that there was therefore no actual determination of a devolution issue for the purposes of paragraph 13 which could competently been appealed against. 

Notwithstanding the views of the criminal appeal court that no appeal was competent, the Privy Council/UKSC itself subsequently then gave special leave to the appellant to take the appeal to London. The appeal then calls for a decision on exactly what procedural requirements have to be followed before the devolution jurisdiction can be invoked.  In the case of Mills v H M Advocate (No. 2) 2001 SLT 1359 Lord Rodger, as Lord Justice General, said that if a devolution issue was raised then the procedural requirements require to be adhered to and he gave reasons for this (see the discussion at paragraphs [16] – [20]) which concludes:

“For the present purpose, however, it is enough to say that we accept the Advocate General’s simple argument that if, as here, an issue which falls within the scope of the definition of ‘devolution issue’ in paragraph 1 of Schedule 6 to the Scotland Act, arises, then there must be intimation in accordance with Schedule 6.”  

The decision of the Privy Council in McDonald v HM Advocate [2008] UKPC 16 seems to say that the lower court cannot get round the devolution jurisdiction being invoked simply by refusing the devolution minute or refusing leave for it to be received or not offering a determination expressly upon it.  Allison seeks to go one stage further and say that if in substance the determination of the lower court is upon a devolution issue then the absence of a formal minute to that effect is of no moment.  That was also the position adopted by the appellant before the criminal appeal court in Fraser v. HM Advocate (No. 2) [2009] HCJAC 27 (in respect of which an application for special leave to the UKSC is pending).

 The UKSC decision in Allison should authoritatively determine what requires to be done before an appeal can be taken to the UK Supreme Court.  However, it is understood that in Allison the Crown are not now intending to take any point regarding whether the UK Supreme Court properly has jurisdiction to hear the appeal.  Whether the Advocate General may make submissions on this is not known. Apart from the determination of this important procedural issue it is not clear that the appeal will raise any separate question from the appeal in McInnes v. HM Advocate discussed below.

McInnes (Appellant) v Her Majesty’s Advocate (Respondent):  In almost 300 years of the Union with England, Scottish criminal law and procedure was developed in splendid isolation by the High Court of Justiciary, with little substantive input (or interference) from the (Westminster) legislature.  Even after devolution, the High Court of Justiciary still claims “an inherent power to punish any act which is obviously of a criminal nature” (Hume on Crimes (3rd edn.), i, 12; Macdonald Criminal Law (5th edn.), p. 193; Sugden v HM Advocate 1934 JC 103 and Grant v Allen, 1987 JC 71). The court sees it as part of its role to take a proactive approach in defining and developing the criminal law to match contemporary expectation of the national (and arguably, at least, also the international) community.  Thus in Webster v Dominick, 2005 JC 65  a court of five judges decided to abolish the previously judicially created crime of “shameless indecency” and replace it with a crime of different scope which they termed “public indecency”. As one Scottish judge has stated (Lord Advocate’s Reference (No.1 of 2001), 2002 SLT 466 per Lord Nimmo Smith at 481 para 2 of his judgement):

“Ours is, however, a ‘live system of law’ (Stallard v HM Advocate, 1989 SLT 469  per the Lord Justice General (Emslie) at 473) and it lies within the powers of this court, as custodians of the common law, to review it, and to correct the way in which it is stated, when it is necessary to do so in order to take account of developments in the law and to meet the needs of the community.”

As with so many other areas of Scots criminal law, the area of the Crown’s duties of disclosure to the defence in criminal trial has not, to date, been the subject of specific legislation in Scotland.  In the light of the increased case law on this subject, a consultation process on the issue of disclosure and the Crown has been initiated and a report has been produced by the retired Scottish judge, Lord Coulsfield. The Scottish Parliament has now decided to intervene in this issue. The Criminal Justice and Licensing (Scotland) Bill which is currently before the Scottish Parliament contains provisions on this subject. But thus far, the issue of the extent of the Crown’s duty of disclosure has been determined from individual decisions of the criminal courts.  It is perhaps the fact that it has been the Judicial Committee of the Privy Council which has taken the lead (usurping the role of the High Court of Justiciary?) in re-fashioning the Crown’s duties in this area rather than the High Court of Justiciary which has contributed to the seeming tension between the Edinburgh and London courts. In Her Majesty’s Advocate v Murtagh, 2009 SLT 1060, JCPC Lord Rodger observed as follows:

“44. This is the latest episode in the long-running saga of disclosure in solemn criminal cases in Scotland. Once a topic with little case law, in the last few years disclosure has become one of the most litigated. The pace of change is reflected in the appearance of two new editions of the Crown Office Disclosure Manual already this year. A third will surely follow before too long. On this occasion the matter has been brought before the Board on a reference by the Advocate General, the details of which have been explained by Lord Hope of Craighead.

 45. Part of the motivation behind the reference was the Advocate General’s concern that, as a result of the decisions of the Board in Holland v HM Advocate [2005] UKPC DRA 1; 2005 SC (PC) 3 and McDonald v HM Advocate [2008] UKPC 46; 2008 SCCR 954, the disclosure regime in Scotland might appear to have got out of alignment with the position under statute in England and Wales.

 46. It is, however, no part of the Board’s functions to keep English and Scottish criminal procedures in alignment. There have long been substantial differences between them – the most notable being the size of juries and the range of available verdicts. In general, such differences cause no particular difficulty. If they do, the solution lies with the legislature. See, for example, Burns v HM Advocate [2008] UKPC 63; 2009 SLT 2, para 19. By contrast, part of the Board’s statutory jurisdiction is to determine whether a failure by the Lord Advocate to act is incompatible with any of the Convention rights: Scotland Act 1998, Schedule 6, para 1(e). More particularly, on the present reference, the question for the Board is whether a failure by the Lord Advocate to disclose certain previous convictions of witnesses on the Crown list is incompatible with the accused’s article 6(1) Convention rights. If it is not incompatible, then the Board has no locus to interfere with the Lord Advocate’s conduct of the prosecution, whatever the position as to disclosure may be south of the border; equally, if it is incompatible, the Board must say so and put the matter right, irrespective of the position in England. Of course, consideration of the position in England and in other jurisdictions may help inform the debate as to what article 6(1) requires.”

The decision of the criminal appeal court in McInnes v HM Advocate again concerns the Crown’s duty of disclosure of evidence to the defence. McInnes was granted leave by the High Court on the question of the proper test for breach of the fair trial guarantee where the Crown has breached its duty of disclosure.  The Lord Justice General (Lord Hamilton) describes the point of law in McInnes v HM Advocate 2009 JC 6 at para 20 in this way:

“The critical issue, in our view, is whether the principle of equality of arms is breached (see Sinclair v HM Advocate [2005] UKPC D2; 2005 SC (PC) 28, per Lord Hope at para.[34] and Lord Rodger at para.[49]). It will be so breached if access to the statement in question would have been of material assistance to the defence (as it plainly would have been in Sinclair v HM Advocate [2005] UKPC D2; 2005 SC (PC) 28), so that denial of access prejudiced that defence (para.[35]). It might also be breached if, having regard to the realities of the trial and viewing the matter realistically, the denial of access might have prejudiced the defence.  Whether there has been or may have been such prejudice will be a matter for assessment by the appeal court in the circumstances of each case. Such an assessment will not always be a straightforward or easy task. But it will not be an unfamiliar one. This appeal court regularly has to assess whether procedural failures at trial have resulted in a miscarriage of justice.

It is not, however, in our view, entitled in effect to avoid that task by adopting a test which depends simply on whether the denial of access ‘might not possibly have effected’ the outcome. Such a test was adopted in Hogg v Clark 1959 JC 7 (per Lord Justice General Clyde at page 10) where there was wrongful exclusion by the court of admissible evidence (based upon prior authority also concerned with the wrongful exclusion of evidence in summary proceedings). Lord Sorn in Hogg v Clark 1959 JC 7 (at pages 11-12) took a less absolute approach, concerning himself with whether the exclusion of the evidence had prejudiced or might have prejudiced the defence.

Lord Justice General Clyde’s test was adopted (in the context of the non-disclosure of outstanding charges) by Lord Rodger in Holland v HM Advocate [2005] UKPC D1; 2005 1 SC (PC) 3 at para.[82] – though it is not apparent that what was the appropriate test was a matter of argument before the Judicial Committee and Lord Rodger’s test is not repeated in Sinclair v HM Advocate [2005] UKPC D2; 2005 SC (PC) 28  (which was concerned with undisclosed statements). In the latter case Lord Rodger was in a position to conclude that the appellant’s solicitor advocate ‘would have been in a position to cross-examine Ms Ritchie effectively and the appellant’s trial as a whole would have been fair’ (para.[50]).

Lord Rodger’s test has been used (or abused) in argument in this jurisdiction to suggest that the threshold for reversing the verdict of a jury in non-disclosure and analogous cases is low. This may be a misreading of Lord Rodger’s words. In the context of determining whether there has been a miscarriage of justice (or, we venture to think, an unfair trial) a robust test is required. The test of a real risk of prejudice to the defence was, rightly in our view, adopted in Kelly v HM Advocate [2005] HCJAC 126; 2006 SCCR 9 at para.[33].”

The McInnes appeal may therefore give the UK Supreme Court an opportunity to reply to some of the criticisms currently being directed to its decisions and interpretation by the judges in Scotland both as to the extent of its jurisdiction in Scottish criminal cases and on the specific issue of the Crown’s duties of disclosure.  The appeal may also allow the defence to answer the Lord Justice-General’s assertion that “Lord Rodger’s test has been … abused in argument in this jurisdiction” in founding on the Crown’s failure to disclose material to it.

Martin (Appellant) v Her Majesty’s Advocate (Respondent); Miller (Appellant) v Her Majesty’s Advocate (Respondent)Section 29 of the Scotland Act 1998 (“SA”) provides that an Act of the Scottish Parliament (“ASP”) will be “not law” so far as any provision of the ASP contravenes the various limits on the legislative competence of the Scottish Parliament which are laid down under the Scotland Act.

Certain statutes of the Westminster Parliament (specified in paragraph 1 of Schedule 4 SA) are given specific protection against any amendment by the Scottish Parliament (See section 29(2)(c) SA).   More importantly, the Scottish Parliament may not pass an ASP which contains provisions which “relate to” matters specified in Schedule 5 SA as being reserved to the Westminster Parliament (see sections 29(2)(b) SA and paragraph 2(1) of Schedule 4 SA).  Paragraph 3 of Schedule 4 SA provides that the prohibition against the Scottish Parliament modifying the law on reserved matters does not apply to modifications which are “incidental to, or consequential upon” the making of provisions in devolved areas.  And the Scottish Parliament is empowered to pass what might be termed ‘harmonisation measures’ – namely provisions which make incidental and proportionate modifications of Scots private law, or to Scots criminal law, as it applies to reserved as these apply to reserved matters, provided that the purpose of these amendments is to ensure consistency in the application of law as between reserved and non-reserved matters (see sections 29(2)(b) and 29(4) SA). Finally, section 29(3) SA provides that the question whether a provision of an ASP relates to a reserved matter is to be determined “by reference to the purpose of the provision, having regard (among other things) to its effects in all the circumstances”.

The “purpose” test contained in section 29(3) SA was introduced at committee stage in the House of Lords.  It was intended by the Westminster Parliament to reflect the “respection doctrine” which had been developed by the courts in dealing with cases arising from Commonwealth constitutions and with cases brought under the Government of Ireland Act 1920. The authors of the annotations cite a dictum of Lord Atkin in Gallagher v Lynn [1937] AC 863 at 870 (which was itself quoted by Lord Sewel when introducing the provision in the House of Lords):

“It is well established that you are to look at the ‘true nature and character of the legislation’ … the ‘pith and substance of the legislation’. If, on the view of the statute as a whole, you find the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorised field.”

This would seem to indicate that a degree of trespass into the field of reserved matters might not be held to invalidate a provision of an ASP provided that the “pith and substance” of the ASP (to be identified by reference to its purpose and effects in all the circumstances) concerns a devolved matter. It is clear that, in introducing the “purpose” test into the Scotland Act, the government intended to prevent a literal or mechanistic approach being taken to the question whether a provision of an ASP “relates to” reserved matters. As Lord Sewel noted in promoting the Scotland Bill on behalf of the Government before the House of Lords (Hansard, HL Vol 592, cols 819 – 820 on 21 July 1998)

“In the absence of such a provision [as section 29(3) SA], it is possible that the courts would apply a literal approach and hold that a provision ‘relates’ to a reserved matter merely if it affects it. If the courts were to adopt this approach, this would severely fetter the Scottish parliament’s ability to legislate about subjects which are, in terms of the White Paper, to be devolved. For example, the White Paper intended that pollution control should be devolved. However, an Act of the Scottish Parliament containing provisions about water pollution from coal mines or dust from open-cast coal mining would affect the reserved matter of coal-mining. If the courts were to apply a literal approach, they could hold that these provisions related to the reserved matter and would therefore be beyond the legislative competence of the Scottish Parliament. This would make a nonsense of the devolution of pollution control. The same point applies, for example, to planning or local government or even the courts and the administration of justice. Amendment No. 153 is designed to solve this problem by providing expressly that any question as to whether a provision in an Act of the Scottish Parliament ‘relates to’ a reserved matter is to be determined by reference to its purpose. The courts can determine that a provision is for a permitted purpose, even if, as an ancillary matter, it affects reserved matters. In ascertaining the purpose of the provision, the courts are required to have regard, among other things, to its effect in all the circumstances. In my example of pollution control, the courts would take into account that the pollution control provision had an effect upon the reserved matter of coal mining but may nevertheless consider that its purpose was about pollution control and not about coal mining. In the vast majority of cases the ancillary effects of such provisions upon reserved matters are likely to be minor but in some cases they could be significant.”

In Logan v Harrower, 2008 SLT 1049 the accused sought to challenge their respective sentences which had been imposed upon them upon their conviction of the statutory offence of driving while disqualified contrary to section 103(1)(b) of the Road Traffic Act 1988 on the basis that the ASP provisions under which they were sentenced unlawfully modified the law relating to road transport. Paragraph E1 of Schedule 5 to the Scotland Act specifies as being among reserved matters “Road transport”. More particularly, at sub-paragraph (e) of E1 the subject matters of both the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988 are said to be reserved to Westminster. In England and Wales this statutory offence of driving while disqualified could only be punished by a maximum of six months’ imprisonment, at least where the prosecution was brought there on summary complaint.   In Scotland, however, Section 43 and 45 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 had increased to 12 months the maximum sentence of imprisonment which could be imposed by the sheriff, sitting as a court of summary jurisdiction in respect of both common law and statutory offences.  It was argued that if and insofar as the Scottish legislation was read as allowing for an increase to twelve months in the maximum penalty which could be imposed in Scotland on summary prosecution in respect of this UK offence then the Scottish legislation was ultra vires as trespassing into areas reserved to the UK Parliament.  In rejecting this legal challenge to the sentences imposed in excess of six months the criminal appeal court observed as follows (at paragraph 24):

“[T]he purpose of the provision in section 45 of the 2007 Act is to increase generally the criminal sentencing powers of the sheriff, sitting as a court of summary jurisdiction, and that the provision, construed in this light, fulfils this purpose.  …. [I]n the present case, the purpose of the provision is to make Scots criminal law with regard to penalties, procedure and jurisdiction in the sheriff court apply consistently to both common law offences and statutory offences.

As provided by paragraph 3 in Part I of Schedule 4 to the Scotland Act, the modifications made by section 45 of the 2007 Act to the reading of Part I of Schedule 2 to RTOA 1988 are merely incidental to, or consequential on, the more general aspect of the provision, which relates generally to the powers of the sheriff in relation to statutory offences, whatever their origin; and the modifications do not have a greater effect upon reserved matters than is necessary to give effect to the purpose of the provision in section 45.”

The cases of Martin v HM Advocate and Miller v HM Advocate are essentially, appeals against the decision in Logan v. Harrower. In each case the sentence was appealed to the High Court and the High Court refused the appeal shortly and without issuing an opinion on the basis that there was no relevant distinction from Logan v. Harrower.

The appeals by the two accused in Martin and Miller will give the UK Supreme Court its first opportunity of considering a properly “constitutional” case under the devolution settlement, that it is to say one which directly concerns the extent powers of the Scottish Parliament in relation to matters which are otherwise reserved to Westminster.  The approach which the courts might take towards the resolution of such demarcation disputes is discussed by in M. Walters and P. Craig, “The courts, devolution and judicial review” [1999] Public Law 224. It contains a useful digest as at 1999 of the case law arising under the British North America Act 1867, the Commonwealth of Australia Constitution Act 1900, the South Africa Act 1909 and the Government of Ireland Act 1920. It will be of interest whether this older case law relative to the relationship between the Westminster Parliament and Dominion legislatures will be revived and applied within the context of the current devolutionary settlement within the United Kingdom.