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Remits to a larger court

In the High Court these days, remitting an appeal to a larger bench is clearly becoming something of a habit, for another two cases are in the pipeline: Gallagher v HM Advocate [2010] HCJAC 22 (20 January 2010) and Martin v HM Advocate [2010] HCJAC 17 (2 February 2010).

Gallagher puts in issue the interpretation of s 266(4)(c) of the Criminal Procedure (Scotland) Act 1995. If one accused has given “evidence against” a co-accused in the course of the same proceedings, that opens him up to cross examination by the latter as to his criminal record. But just what is meant by the phrase “evidence against”? In McCourtney v HM Advocate 1977 JC 68 it was held that the test is whether the evidence supported the Crown case against the co-accused in a material respect or was evidence which undermined the defence of that co-accused; and that if such evidence was given, the trial judge has no discretion to refuse such cross examination.

But whether this is correct has been in doubt for many years; indeed McCourtney was based on Murdoch v Taylor [1965] AC 574, in which (although unanimous as to the result) the judges had great difficulty with the equivalent English legislation. They were not alone, for doubts were expressed in Sandlan v HM Advocate 1983 JC 22, while the lack of discretion surfaced in Barnes v HM Advocate 2001 JC 61. The appeal court has an opportunity to resolve these points: it is a case of murder where, after the appellant had given evidence in chief in support of an alibi, his co-accused (whose defence was incrimination of the appellant) was allowed to cross examine the latter on his previous convictions. So did the appellant’s alibi evidence open the door?

Hopefully, Martin will answer the question whether any discount should be applied to any element of a sentence which is related to public protection. The difficulty arises because of the approach taken in such a case by a bench of two judges in the sentence appeal of Jackson v HM Advocate 2008 SCCR 733. There, in assessing the discount, the sentencing judge had left out of account the period of the sentence referable to public protection and had applied the discount only to the remainder of the sentence, all seemingly in accordance with Du Plooy v HM Advocate 2003 SCCR 640 at para [19]. However, on appeal in Jackson it was held that the appropriate way to proceed was to apply the discount to the whole sentence, but at a lower rate than would normally have been appropriate in respect of a plea at the earliest possible stage. Jackson was a two-judge appeal, but Du Plooy (a three-judge appeal) was clearly in issue there and in the instant case. In Martin the sentencing judge had applied a lower rate of discount to the whole sentence, so the appeals were sent to five judges so that they could be heard along with the already-remitted case of Ross v PF Aberdeen [2009] HCJAC 82 which raised the same fundamental principle.

Finality once more

The reader will not be surprised to learn that the issue of finality of High Court interlocutors has already been to five judges, although not by way of a remit, but rather by direct petition. In Beck, Petitioner [2010] HCJAC 8 (29 January 2010), four out of five petitions to the nobile officium were held to be incompetent, the fifth being adjourned so that the petitioner (Luke Mitchell) could obtain legal advice; two further petitions “under the Human Rights Act 1998” were also dismissed as incompetent. All of them raised the question whether the 1998 Act could provide a remedy to persons whose appeals under the normal statutory provisions had been finally determined, but who nonetheless were aggrieved (in various ways) at the alleged unfairness of the appeal proceedings.

The principal argument was that if the High Court sitting in its appellate capacity made a decision which was ex facie final, but did so in a way which was incompatible with a Convention right, it was unlawful and could be set aside by reference to the nobile officium; this was firmly rejected, following analysis of s 7 of the 1998 Act which deals with remedies. Nor were the two free-standing petitions covered by s 9(1), which restricts the mode by which a judicial act could be challenged.

Robbery and violence

Although a charge of robbery may be relevantly formulated without reference to the violence used, most charges of robbery these days begin with an averment that the accused did “assault AB”, then go on to specify the kinds of violence used and conclude with the words “and you did rob him” of the article(s) in question. This wording clearly gives fair notice and was the exactly the sort of charge which went to the jury in Morrison v HM Advocate [2010] HCJAC 16 (12 February 2010). But what makes the case interesting is that the jury deleted not just the averment of assault, but all the specification as well, convicting the appellant simply of robbing his victim of some money and a mobile phone. This led to an appeal on the basis that the appellant should have been convicted only of theft.

Although at first glance this might be thought a surprising decision, the true nature of the crime of robbery remains as it was described by Hume (i, 104): “forcible theft… committed by invasion of the person”. Indeed, there is 20th century case law confirming that it is enough if the degree of force used can reasonably be described as violence: O’Neill v HM Advocate 1934 JC 98 at 101. The court reviewed the various authorities, including Cromar v HM Advocate 1987 SCCR 635, Flynn v HM Advocate 1995 SCCR 590, and Mackay v HM Advocate 1997 SCCR 743, before considering the evidence in the case. This disclosed a scuffle which was used for the purposes of appropriating the victim’s property and also resistance on the part of the victim. This led the court to conclude that (a) violence was used by the appellant to obtain control of the complainer’s property; and (b) whether that violence did or did not amount to an assault was never an issue in the case, because the Crown, in its averments of assault, did not libel those particular actions as such. So the conviction for robbery was upheld.

Devolution issues and the UK Supreme Court

The final jurisdiction over devolution issues now rests with the UK Supreme Court, and its first three opinions thereunder have recently come to hand. The constitutional significance of the first two (Allison v HM Advocate [2010] UKSC 6 and McInnes v HM Advocate [2010] UKSC 7, 10 February 2010, both of which concern disclosure) was discussed by Aidan O’Neill QC in last month’s issue of the Journal, but here I simply highlight each case.

Allison makes it abundantly clear that information about outstanding charges against a Crown witness (as well as relevant previous convictions) is within the category of disclosable material, although whether non-disclosure has led to an unfair trial is another matter. By contrast, McInnes deals with non-disclosure of police statements of Crown witnesses and the proper test to be applied where it is said that such non-disclosure has led to a breach of the article 6(1) right. The Supreme Court was careful to distinguish the formulation of the test from how the test must be applied: the former is a devolution issue, while the latter is not. Was the material disclosable at all, applying HM Advocate v Murtagh [2009] UKPC 36? If so, the failure to disclose is a breach of article 6. But did that lead to an unfair trial? Not necessarily; only if the appeal court (and not the Supreme Court) thought there was real possibility of a different outcome if the withheld material had been disclosed, then the jury’s verdict could not stand.

But it is the decision in Martin and Miller v HM Advocate [2010] UKSC 10, 3 March 2010 which is the most controversial. In a landmark ruling, the Supreme Court decided by three votes to two that s 45 of the of the Criminal Proceedings etc (Reform) (Scotland) Act 2007, which inter alia increased the summary custodial sentencing powers of the sheriff from a maximum of six months’ imprisonment to 12 months in cases of driving while disqualified, was within the legislative competence of the Scottish Parliament. What exercised the judges so much were two questions of statutory interpretation: does s 45 “relate to reserved matters”, and does it modify a rule of Scots criminal law that is “special to a reserved matter” – questions posed by s 29(2)(b) and (c) of the Scotland Act 1998, taken along with paras 2 and 3 of part 1 of sched 4.

Thus it was necessary to identify the “purpose” of s 45 and whether it was to make the law apply “consistently”. All the judges agreed that s 45 was not outside legislative competence by reason of “relating” to a reserved matter, but they divided on whether it was “special” to that reserved matter and thus whether Holyrood had power to modify it. The two Scottish members of the bench took opposite views: Lord Hope formed part of the majority, holding (along with Lords Walker and Brown) that what Holyrood had done by enacting s 45 was to modify a rule of procedure rather than a rule as to the maximum sentence; the rule in question was not “special” to a reserved matter.

This was a conclusion with which Lord Rodger, supported by Lord Kerr, vigorously disagreed, pointing out inter alia that the statutory language in s 33 of the Road Traffic Offenders Act 1988 as it related to maximum periods of imprisonment could not bear the interpretation that only summary cases escaped the prohibition on modification in the 1998 Act.

So what does the phrase “special to a reserved matter” actually mean? As Lord Rodger observed (at para 149), this was always going to be a difficult matter for judges, lawyers and law students; but now “they must also try and work out what the Supreme Court means by these words. It is a new and intriguing mystery”. Indeed.

• Charles Stoddart is a criminal law author and a former sheriff