Judicial politics in the Judicial Committee

Three decisions have now been pronounced by the Judicial Committee of the Privy Council acting under its Scotland Act jurisdiction to decide on devolution issues. These are, chronologically:

• Montgomery and Coulter v Her Majesty’s Advocate and the Advocate General for Scotland, 1 an appeal by the two accused in the second Surjit Singh Chhokar trial against a decision by the High Court to refuse their claim that the extent of their pre-trial publicity was such as to deprive them of the possibility of a fair trial;
• Hoekstra and others v Her Majesty’s Advocate (No. 4) 2 an application by the accused for special leave to appeal to the Privy Council against the decision of the High Court 3 chaired by the Lord Justice General to refuse their application to set aside as ultra vires that Court’s earlier decision 4 to order the quashing of the interlocutors of a differently constituted High Court, chaired by Lord McCluskey, 5 on the grounds that these had been pronounced by a court which, by reason of Lord McCluskey’s trenchantly expressed public views on the wisdom of the incorporation of the European Convention, could not be said to have been properly constituted by three impartial judges; and
• Brown v Stott, 6 an appeal by the Crown against the decision of the High Court 7 to uphold the accused’s claim that the proposal by the Crown to lead and rely in court upon evidence of the admission which she was compelled to make to the police under Section 172(2)(a) of the Road Traffic Act 1988 contravened her Convention right against self-incrimination.

All of the appeals concerned aspects of the fair trial provision of the Convention, Article 6. The accused’s appeal in Montgomery v Coulter was unsuccessful, it being held by the Judicial Committee that the High Court was correct in its assessment of the effect of the pre-trial publicity in this case as not being such to  prejudice the possibility of the accuseds’ receiving a fair trial. The applicants for special leave in Hoekstra (No. 4) were also unsuccessful, with the Judicial Committee again agreeing with the High Court that the accused’s application raised no devolution issues properly so called and therefore there was no avenue of appeal to the Judicial Committee available under the Scotland Act. And in Brown v Stott the Crown appeal against the decision of the High Court was successful, it being held that any right against self-incrimination in the Convention was not an absolute one, but was instead a right which could lawfully be limited provided that such limitations were proportionate and not such as to compromise an accused’s right to a fair trial overall. In the context of road traffic prosecutions, the Judicial Committee held that considerations of the public interest could justify the Crown leading in evidence the accused’s self-incriminating statement, notwithstanding that it was required of her by the police under threat of prosecution.

The specific decisions of the Judicial Committee on the merits of each of these cases are of interest and all raise important issues of law and legal interpretation which deserve full consideration on another occasion. More generally, however, the three decisions, and the manner in which they appear to have been reached, highlight some fundamental aspects of the new constitution of the United Kingdom which the Human Rights Act and the Devolution Statues, in particular the Scotland Act, have created. It is on these general constitutional aspects that I will concentrate in the present article.

The definition of a ‘devolution issue’

In Montgomery and Coulter v Her Majesty’s Advocate and the Advocate General for Scotland the Judicial Committee was composed in the traditional manner one now expects of Scottish appeals to the House of Lords, namely by two Scottish judges (Lord Hope and Lord Clyde) together with three non-Scots (Lord Slynn of Hadley, Lord Nicholls of Birkenhead and Lord Hoffmann). A clear division of opinion arose among these judges as to whether or not a decision of the Lord Advocate to initiate criminal proceedings on indictment against the accused could properly be said to raise a devolution issue at all. The non-Scots judges, led by Lord Hoffman, clearly tended to the view that the matter of respect for and enforcement of an individual’s Article 6 rights to a fair trial was not a matter for a prosecutor but lay wholly with the court before which the trial was to be conducted.  Accordingly one could not take Article 6 fair trial point against the prosecutor before the trial has actually started.  The Scottish judges, by contrast, emphasised the peculiar role and history of the Lord Advocate, noting his status as “master of the instance” in criminal trial and insisting that the approach which the Scotland Act had taken was to make the right of the accused to receive a fair trial a responsibility of the Lord Advocate as well as of the court. In what appears to be an implicit rebuke to Lord Hoffman, Lord Hope noted that this was the first time in which an appeal on a matter of Scots criminal law and procedure had ever come before a court situated outside Scotland, and stressed the need for all the judges of that court to think themselves into the history and modes of understanding of Scots criminal lawyers, rather than simply for the judges to assume that the Scottish criminal system mirrored English and the English derived systems.

The matter at stake was one of the highest constitutional importance. If Lord Hoffman’s view were to prevail and questions regarding the proper protection of Article 6 did not raise devolution issues (since they concerned only the acts of the courts rather than the devolved Lord Advocate) then two consequences followed: firstly, it would appear that all of the Scottish jurisprudence on the Lord Advocate’s duties under Article 6 8 which had developed since the coming into force of the Scotland Act and prior to the implementation of the Human Rights Act had been decided on the wrong basis; secondly, and perhaps more importantly, there would effectively be no role for the Judicial Committee in deciding on the proper interpretation and application of Convention fair trial rights within the context of Scottish criminal procedure. There would be no space for the Judicial Committee to carry out its envisaged function of ensuring a uniform UK wide interpretation for Convention rights in matters of both criminal and civil law. The result of this could well be the development of a peculiarly Scottish Convention rights jurisprudence in criminal matters since there remains no appeal from the High Court to the House of Lords on “pure” human rights challenges which might be brought in the criminal courts under the Human Rights Act.

In Hoekstra (No. 4) the three judge screening committee of the Privy Council, composed Lord Slynn, Lord Hope and Lord Clyde, had little difficult in rejecting the application for special leave, with Lord Hope noting that the Judicial Committee was not a constitutional court of general jurisdiction and could only hear appeals from Scotland which raised a devolution issue as defined under the Scotland Act. In all other issues every interlocutor of the High Court of Justiciary is final and conclusive and is not subject to review by any court whatsoever. Thus, where it was alleged that the judges of the High Court had acted unlawfully, this did not give rise to an issue which the Judicial Committee could adjudicate on, since such an allegation although raising a constitutional point did not raise a Scotland Act point. The limits within which the powers of the High Court of Justiciary may be exercised were said to be for determination by that court and had nothing to do with the functions of the Scottish Ministers, the First Minister or the Lord Advocate.

The composition of the Judicial Committee in Brown v Stott is of particular interest in the context of the split in approach between the Scots and non-Scots judges which was revealed in Montgomery and Coulter. Again the two Scottish Law Lords, Lord Hope and Lord Clyde, were included on the Committee, but they were joined by a third Scottish judge, Lord Kirkwood, who was eligible to sit on the Judicial Committee by virtue of the recent appointment of Inner House judges to the rank of Privy Councillor. Thus, for the first time, Scottish judges made up a majority of the Judicial Committee, being joined in Brown and Stott by Lord Bingham and Lord Steyn. This time, the Committee were unanimous in deciding that the proposed acts of the Lord Advocate properly raised a devolution issue under reference to Article 6 fair trial rights. The disputed analysis of this issue Lords Hope and Clyde in Montgomery and Coulter would seem to have prevailed over the approach of Lord Hoffman and the doubts expressed by Lord Slynn and Lord Nicholls.  Had this analysis of what constitutes a devolution question not been followed, and the Hoffmann approach preferred, the likely result would have been that Lord Rodger’s finding, backed by an impressive citation and detailed critique of many Commonwealth and US authorities, as to the central and (almost) absolute nature of the right against enforced self-incrimination implicit in Article 6 of the Convention would have prevailed in the context of the Scots criminal law and procedure. By contrast, it seems likely that the House of Lords in any criminal appeal in England would have followed the approach favoured by the pressure group JUSTICE (who were permitted to intervene in the Judicial Committee proceedings in Brown v Stott) and allowed the right to be limited in a proportionate manner for legitimate reasons. One suspects that it was precisely the possibility of such a major disparity of approach between the two jurisdiction which drove Lord Hope’s insistence (in the face of Lord Hoffmann’s scepticism) as to the fair trial responsibilities of the Lord Advocate.

Conclusion

Section 103 of the Scotland Act provides that decisions of the Judicial Committee of the Privy Council in proceedings under the Act will be binding on all other courts and legal proceedings, apart from later cases brought before the Judicial Committee. It would appear that the purpose of this provision was to ensure uniformity of approach across the United Kingdom on matters of Convention rights, among others. This provision alters the general rule that the House of Lords in its judicial capacity is not bound by decisions of the Judicial Committee of the Privy Council.9 It is a provision the significance of which has apparently been little understood, because in effect it means that on questions of the effect and scope of Convention rights (which have been duly raised under the Devolution Statutes) the House of Lords has been superseded as the final court of appeal in the United Kingdom.  This will come as a great shock to many English lawyers, who are currently engaged in litigation over Convention rights issues since the coming into force of the Human Rights Act in England at the beginning of October 2000.  The English court final court of appeal in civil and criminal matters, the House of Lords, has itself been placed at level lower in the judicial hierarchy by another court, the Judicial Committee, which a developing constitutional convention seems to indicate will be a court composed substantially, and at times by a majority of Scots lawyers, deciding cases brought primarily from Scotland.

The somewhat surprising (and surely unintended) result of this is an effective Scottish take-over of English law when matters of Convention rights are raised and the exclusion of the majority of English lawyers and English judges effectively to reach final and binding decisions on Convention points. Thus, while at the time of writing in December 2000, the English Court of Appeal 10 was considering the compatibility of property confiscation orders in drug trafficking cases, the final decision on this matter will be taken not on any appeal by the parties to the House of Lords, but by the decision of the Judicial Committee in the Scottish case of McIntosh 11 currently pending before it. Similarly, in a series of conjoined judicial review application the English High Court was at the time of writing considering the applicability of Article 6 to the Call-In  Procedure to the Secretary of State in planning matters. But again, the final decision on this point cannot be made by the judges in this case whether at first instance or on appeal to the Court of Appeal or the House of Lords. Instead all of these English judges will have to defer on the Convention point issue to a decision of the Judicial Committee should Lord MacFadyen’s decision in County Properties v Scottish Ministers 12 be taken to the Privy Council.

One cannot but feel that this kind of ad hoc constitutional structure will not prove to be an inherently stable one, particularly given that there are at least stateable arguments (which might be taken should the decision in Brown v Stott now be taken to the European Court of Human Rights in Strasbourg) to the effect that the Judicial Committee of the Privy Council does not itself conform to the requirements of the Convention, in particular Article 6(1), as regards having the appearance of being “an independent and impartial tribunal established by law” The question must arise as to whether the Judicial Committee of the Privy Council, whose members qua Privy Councillors are appointed solely at the pleasure of the Crown without formal grant or letters patents and who may be removed or dismissed from the Privy Council at the pleasure of the monarch (albeit on advice from the Prime Minister) simply by striking their names from the Privy Council book, themselves satisfy the Article 6(1) requirements as understood by the European Court of Human Rights of the appearance of an independent and impartial tribunal established by law: see, among others, the decisions of the European Court of Human Rights in McGonnell v United Kingdom 13 and Wille v Liechtenstein. 14

Ultimately, it is suggested, the logic of the on-going constitutional change will require the setting up of a properly established constitutional court for the United Kingdom, with properly identified, tenured and independent judges, perhaps along the lines of the US Supreme Court. The genie of constitutional reform is out of the bottle and has acquired its own dynamic. It would appear we have not completed the task of writing the constitution