No compelling grounds for retrospective legislatio

Legislation to plug the loophole on intermediate diets could itself be open to challenge, writes David Leighton

The 8th of March saw royal assent being granted to the Criminal Procedure (Amendment) Act 20021. It is a statute that has been passed through the Scottish Parliament with considerable haste after the Court of Criminal Appeal decision in Reynolds v Procurator Fiscal, Linlithgow. But does it put to rest the decision in Reynolds?

Reynolds Case

For those not entirely familiar with the facts of that case, Mr Reynolds appeared on complaint, pled not guilty and was liberated pending further procedure. Intermediate diet and trial diet were fixed. Mr Reynolds failed to appear at the intermediate diet. As was usual, a warrant for his apprehension was granted, but the trial was not explicitly discharged. The trial date came and went. Subsequently, Mr Reynolds was arrested in pursuance of the warrant, appeared in court and maintained his not guilty plea, intermediate diet and trial diet were fixed. At the intermediate diet, a plea was taken to the competency of the complaint.

The defence position was that the instance had fallen when the case had not been called on the first trial date, a duly assigned diet in the case. The crown’s position was that, by implication, the grant of the warrant discharged the diet. The sheriff agreed with the crown, though granted the defence leave to appeal. The defence appeal was successful. Failure to discharge the trial diet explicitly when granting a warrant at the intermediate diet meant that when the case did not call on the trial date the instance fell.

The decision in Reynolds meant that ongoing prosecutions for individuals who had failed to appear at an intermediate diet were in jeopardy. But the real sting in the tail of the Reynolds case is acknowledged within the 8th paragraph of the court’s judgment, when considering whether the trial date was a pre-emptory diet, the court states:

In Hull v HM Advocate 1945 J.C. 83 the Lord Justice-Clerk (Cooper) stated (at page 86) as follows:

“It is a cardinal rule of our criminal procedure that a criminal diet is, and must be made, peremptory, and that, if the diet is not called or duly adjourned or continued on the date in the citation, the instance falls (Hume, vol. ii, 263, 264; Alison, vol. ii, 343, 344; Macdonald, (4th ed), 471). The rule has again and again been rigorously enforced, its non-observance being treated as involving a fundamental nullity requiring that any conviction which has followed should be quashed.”

Complaints not called are null, not incompetent. There is no need to advance any sort of preliminary plea. Clearly this would have a dramatic effect on a large number of convictions, opening them to challenge by bill of suspension or, for sentences already served, by application to the Scottish Criminal Cases Review Commission seeking a referral of the case to the appeal court.

The Legislation

Section 1 of the Criminal Procedure (Amendment) Act provides that there be inserted in the Criminal Procedure Act 1995 at the end of section 150:

• “(3A) The grant, under subsection (3) above, at an intermediate diet of a warrant to apprehend the accused has the effect of discharging the trial diet as respects that accused.
• (3B) Subsection (3A) above is subject to any order to different effect made by the court when granting the warrant.”

The section provides, importantly, that this amendment shall be regarded as having always had effect.

The section makes similar provision in respect of s338(1) of the 1975 Act, though only back-dates the amendment to the coming into force of section 15 of the Criminal Justice (Scotland) Act 1980, the section that introduced the present system of intermediate diets.

Section 2 provides for section 1 to take effect the day after royal assent. As stated, royal assent was received on 8th March 2002.

The point to note is that this legislation is retrospective. Although there have been very similar pieces of retrospective legislation before – the Criminal Procedure (Intermediate Diets) (Scotland) Act 1998 being a notable example – these were passed by the Westminster Parliament, not the Scottish Parliament. Acts of the Scottish Parliament, of course, are subject to being struck down under the Scotland Act if they are incompatible with Convention rights.

Retrospective effect

In the latter part of last year, the Privy Council made a decision on the first act of the Scottish Parliament, a retrospective piece of legislation. In that case, A v The Scottish Ministers (PC) 2001 SLT 1331, the Privy Council accepted that retrospective legislation by the Scottish Parliament was not necessarily incompatible with human rights.

So if the Privy Council accepts retrospective legislation and the Scottish Parliament has passed an act to reverse the decision in Reynolds has the Reynolds case been consigned to history almost as soon as it was decided?

Although in A v The Scottish Ministers there was authority from the Privy Council to the effect that retrospective legislation was not beyond the competence of the Scottish Parliament that was a very different case to Reynolds. A v The Scottish Ministers dealt with the Mental Health (Public Safety and Appeals) (Scotland) Act 19992, which was brought into effect to deal with the repercussions of the high-profile Ruddle case.

The two principal judgments in A v The Scottish Ministers (PC) 2001 SLT 1331 are delivered by Lord Clyde and by Lord Hope. Both of them cite with approval and without caveat the cases of National & Provincial Building Society v United Kingdom 1997 (25) EHRR 127 and Zielinski v France (1999) 31 EHRR 19. These cases are both markedly against any imposition of retrospective legislation. Retrospective legislation must be treated with “the greatest possible degree of circumspection” – National & Provincial Building Society v UK p181 para 112. And, in a passage quoted by Lord Hope from Zielinski v France para 57: “The court reaffirms that while in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights under existing laws, the principle of the rule of law and the notion of fair trial enshrined in article 6 preclude any interference by the legislature – other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute”.

A v The Scottish Ministers concerned a very limited number of individuals who in the words of Lord Clyde at 1346 D: “had committed crimes of the most serious kind, including in particular homicide, and had a history of mental disorder which might be held to be untreatable. As the law stood these persons would be entitled to be discharged into the society of others giving rise to a potentially serious danger for those who came in contact with them.” And in the words of Lord Hope at 1340 F: “The purpose of the 1999 Act was to protect the public … from lethal attacks by mentally disordered persons with a prior history of committing homicide whose mental disorder was regarded as untreatable”. In the circumstances of this case, the court was willing to rule that the retrospective legislation was not incompatible with the convention.

Compelling Grounds?

So are there compelling grounds of the general interest that require the Criminal Procedure (Scotland) Act to be retrospective? If anyone challenges the legislation then the Judicial Committee of the Privy Council will probably decide the question, on appeal from the Court of Criminal Appeal.

Some possible arguments in favour of compelling grounds include:

1. that there are a large number of cases involved and striking at the act is likely to increase the workload of the court system considerably, and
2. that individuals manifestly guilty of offences would be acquitted.

Some possible arguments against compelling grounds include:

1. the cases involved, by their very nature, cannot be that serious – they were all raised as summary complaints,
2. most sentences for these convictions have already been served, and
3. the crown would be able to re-raise proceedings against any individual who successfully appealed, so long as the action was not time-barred.

As I have said, ultimately any challenge is likely to go all the way to the Judicial Committee of the Privy Council, meaning a considerable period of time before a decision. A period of time in which all manner of things might occur, but, at the moment, it is difficult to see any compelling grounds for the legislation being retrospective.

The full text of the Reynolds case is available at http://www.scotcourts.gov.uk
The full texts of the European cases are available at http://www.echr.coe.int/
David Leighton presently works for the Scottish Executive. He was formerly employed in private practice in Edinburgh
1 2002 asp 4
2 1999 asp 1