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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> DP, Reference by The Parole Board for Scotland of Devolution Issue [2013] ScotCS CSIH_26 (05 April 2013)
URL: http://www.bailii.org/scot/cases/ScotCS/2013/2013CSIH26.html
Cite as: [2013] ScotCS CSIH_26, 2013 GWD 12-255, 2013 SC 462, [2013] CSIH 26, 2013 SLT 708

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Clarke

Lord Brodie


[2013] CSIH
26

XA121/12

OPINION OF THE COURT

delivered by Lord Brodie

in the reference

by

THE PAROLE BOARD FOR SCOTLAND

of the devolution issue raised

by

DP

Minuter:

_______________

Act: Gebbie; Drummond Miller LLP (Minuter)

Alt: Sheldon; Scottish Government Legal Directorate

5 April 2013

Introduction

The reference


[1] This is a reference of a devolution issue, directly to the Inner House of the Court of Session, purportedly made in terms of paragraph 8 of Schedule 6 to the Scotland Act 1998. The reference was made by the Parole Board for Scotland. The devolution issue was raised before the Board by way of minute by a serving prisoner whose case it is due to consider. It is the minuter's contention that his right to the presumption of innocence, as guaranteed by article 6 (2) of the European Convention on Human Rights, would be contravened by the Board considering certain material which refers to alleged offences in respect of which he has been acquitted.

The minuter

[2] The minuter is currently serving an extended sentence comprising a custodial period of 10 years with an extension period of 8 years. The sentence was imposed on 31 January 2000. It will expire on 7 October 2017. As a prisoner made subject to an extended sentence, the minuter's early release from custody on licence is subject to the provisions of section 26A of the Prisoners and Criminal Proceedings (Scotland) Act 1993.


[3] The minuter's conviction was in respect of two charges, one of assault with intent to rape, the other of rape. On that occasion pleas of not guilty to five other charges which had appeared on the same indictment were accepted by the Crown (these being three charges of breach of the peace, a charge of assault with intent to rape, and a charge of assault). The minuter was accordingly acquitted of these five charges.


[4] The minuter has previously been released on licence but he was recalled to custody on revocation of his licence by the Scottish Ministers, in terms of section 17 of the 1993 Act, on 23 May 2008. The provisions of section 3A of the 1993 Act apply to his re-release. In terms of section 3A (2), a prisoner to whom section 3A applies may require the Scottish Ministers to refer his case to the Parole Board, initially at any time following his recall and thereafter annually during the currency of the recall.

The Parole Board for Scotland

[5] The Parole Board for Scotland is constituted by section 20 of and Schedule 2 to the 1993 Act. It has the functions conferred on it by, or by virtue of, the 1993 Act.


[6] Section 20 (2) of the 1993 Act provides that it is the duty of the Board to advise the Scottish Ministers with respect to any matter referred to it by them which is connected with the early release or recall of prisoners, but on repeal of section 20 (3) of the 1993 Act by section 28 (4) of the Criminal Justice (Scotland) Act 2003, the Scottish Ministers lost their former power
not to accept the Board's recommendations in certain circumstances. As a result, the Board's powers in respect of the release of prisoners it considers to present an acceptable risk are mandatory in effect: where it recommends release on parole, the Scottish Ministers must grant such release.


[7] In the case of a prisoner to whom section 3A of the 1993 Act applies, such as the minuter, whose case is referred by the Scottish Ministers, the question for the Board is whether the need to protect the public from serious harm still necessitates his imprisonment. If it is satisfied that "it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined (but not otherwise), [the Board shall] direct that he should be released": section 3A (4). In the event of the Board giving such a direction the Scottish Ministers shall release the prisoner on licence: section 3A (5).


[8] Scottish Ministers may by rules make provision with respect to the proceedings of the Board. These rules include the Parole Board (Scotland) Rules 2001 SSI 2001/315, as amended by the Parole Board (Scotland) Amendment Rules 2011 SSI 2011/133 and the Parole Board (Scotland) Amendment Rules 2012 SSI 2012/167. Making a distinction not found in the primary legislation, the 2001 Rules provide for "non-tribunal cases", to which Part III of the Rules applies, and "tribunal cases", to which Part IV of the Rules (rules 17 to 28) applies.


[9] In relation to tribunal cases, rule 18 (1) of the 2001 Rules provides that three members of the Board who are appointed by the chairman of the Board to form a tribunal, may deal with any case in whole. The chairman of a tribunal must be a person who holds or who has held judicial office or who is a solicitor or advocate of not less than 10 years standing. The prisoner and the Scottish Ministers are parties to a tribunal case. There shall be an oral hearing of the prisoner's case in a tribunal case unless both parties and the tribunal otherwise agree: rule 20. Each party may be represented at the hearing by any person whom he has authorised for that purpose: rule 22. Witnesses may be led to give evidence. Rule 24 confers power to the chairman to cite witnesses to attend to give evidence or produce documents by applying section 210 (4) and (5) of the Local Government (Scotland) Act 1973 as if the hearing was a local inquiry.

The devolution issue


[10] T
he minuter avers that the Board will consider his position (in relation to re-release on licence as provided for by section 3A of the 1993 Act) on 9 March 2013. As a reference under section 3A (2) the minuter's case is a tribunal case: rule 17 (1). The question for the tribunal, acting for the Board, will be whether or not it is necessary for the protection of the public from serious harm that the minuter should remain in custody. Determining that question will require the tribunal to make an assessment, on the basis of the information available to it, of the risk that the minuter presents to the public.


[11] The 2001 Rules require the Scottish Ministers to provide the Board, and therefore in a tribunal case, the tribunal, with information. Rule 5 (1) provides:

"...not later than 2 weeks after the date of the reference of the case to the Board, the Scottish Ministers shall send to the Board and to the person concerned a dossier containing any information in writing or documents which they consider relevant to the case including, wherever practicable, the information and documents specified in the Schedule to these Rules."

The information and documents specified in the Schedule to the Rules are as follows:

"1. A note of the full name and the date of birth of the prisoner.

2. A note of the place in which the prisoner is detained and other places in which the prisoner has been detained.

3. A note of the prisoner's current sentence or sentences and an indication of the circumstances of the offence or offences for which that sentence or those sentences were imposed.

4. A record of any other offences of which a court has found the prisoner guilty together with a note of the sentence or other disposal ordered on such findings.

5. In a Part IV case-

(a) a copy of the judgement of the High Court in any appeal by the prisoner against his current sentence or the conviction on which that sentence was imposed; and

(b) a copy of any dossier sent to the Board under rule 5 of these Rules, rule 5 of the 1993 Rules, or rule 5 of the 1995 Rules, in connection with any previous referral of the prisoner's case to the Board which occurred on or after 4th August 1995.

6. A copy of any report on the prisoner made while he was subject to a transfer direction under section 71 of the Mental Health Act 1984.

7. Up to date reports by those involved in supervising, caring for, or counselling the prisoner on the prisoner's circumstances (including home background) and behaviour and on his or her suitability for release or, as the case may be, re-release on licence."


[12] A tribunal hearing of the minuter's case was fixed for 9 March 2012. In terms of their obligation under rule 5 (1) of the 2001 Rules the Scottish Ministers sent a dossier to the Board prior to that hearing date. The dossier was copied to the minuter.


[13] Prior to the tribunal having convened for the hearing fixed for 9 March 2012, the minuter lodged with the Board a devolution issue minute intimating the minuter's intention to raise as a devolution issue his objection to the tribunal considering any material which includes references to "alleged criminal conduct on his part in respect of which he has not been convicted, and in particular of which he has been acquitted." In the minute the minuter identifies pages RRG 36, 50, 76 et seq (a Forensic Psychological Assessment extending from page RRG 76 to RRG 188), 141, 144 and 146 in the dossier sent by the Scottish Ministers as containing information about alleged offences of which the minuter has been acquitted. He contends that for the Board to consider the challenged material would be "incompatible with the presumption of innocence enshrined in article 6 (2) ECHR". He further contends that, having regard to section 57 (2) of the Scotland Act 1998, the Scottish Ministers do not have power to send to the Board a Scottish Ministers' dossier containing information on allegations of criminal conduct in respect of which
the minuter was not convicted.

Referring the devolution issue


[14] On the lodging of the devolution issue minute, the hearing fixed for 9 March 2012 was adjourned and the Board resolved to hear submissions at a hearing of parties before a legally qualified member of the Board sitting alone. In a note dated 21 May 2012, the legally qualified member records that at that hearing two concessions were made on behalf of the Scottish Ministers: first, that it was competent to lodge a devolution issue minute in proceedings of the Board; and second, that a tribunal constituted under rule 18 (1) of the 2001 Rules was "a tribunal from which there is no appeal" in terms of
paragraph 8 of Schedule 6 to the 1998 Act. The legally qualified member further records that he heard submissions as to whether sending a dossier to the Board as required by rule 5 (1) of the 2001 Rules was an "exercise of a function by a member of the Scottish Executive", in terms of paragraph 1 (c) of Schedule 6 to the 1998 Act, and that he determined that it was. Having come to the view that the contentions of the minuter in the devolution issue minute were not frivolous or vexatious and therefore that paragraph 2 of Schedule 6 did not apply, the legally qualified member concluded that he was obliged to refer the devolution issue to the Inner House of the Court of Session, which is what he did. The matter therefore comes to be before this court.

Submissions

Competency


[15] At the outset of the hearing, the court was concerned to understand parties' positions on the competency of the reference depending as it did on the Board being a "tribunal" for the purposes of Schedule 6, that is "any tribunal in which legal proceedings may be brought": 1998 Act section 126 (1). Mr Gebbie confirmed his position as being that the reference was competent and that the devolution issue was properly before the court. Like the Parole Board in England, the Board was an independent and impartial tribunal for the purposes of article 6 (1)
of the European Convention on Human Rights: cf R (West) v Parole Board [2005] 1 WLR 350 at para 26. The Board had statutory obligations in respect of a prisoner's "case". This pointed to proceedings before the Board being "legal proceedings". Mr Sheldon, on behalf of the Scottish Ministers, repeated the concession that would appear to have been made before the legally qualified member of the Board. The 1993 Act had been amended and the 2001 Rules had been made, with a view to securing compliance with article 5 of the European Convention. Admittedly, the proceedings which might be conducted before a tribunal constituted in terms of rule 18 (1) of the 2001 Rules might not be "legal proceedings"; they might be better described as quasi-judicial in nature. Nevertheless, they bore the hallmarks of legal proceedings. The procedure provided for in rules 19 to 28 had the character of the procedure which would be followed before a judicial tribunal. The Scottish Ministers would be concerned if the Board were not to be considered a "tribunal" for present purposes. A decision to that effect would have consequences for other bodies designated as tribunals. The Scottish Ministers accordingly adopted the position that the reference was competent.

The minuter's substantive submissions


[16] Parties had been ordained to lodge full written notes of argument and a joint list of authorities. Mr Gebbie supplemented these by lodging skeleton submissions, which he adopted, adding a succinct oral submission. His argument may be summarised as follows.


[17] The Scottish Ministers have no power to do any act which is incompatible with a right guaranteed by the European Convention on Human Rights: 1998 Act section 57(2). The issue in the present case therefore was whether the impugned material which was contained in the Scottish Ministers' dossier and which referred to the charges of which the minuter had been acquitted was lawfully before the Board. Mr Gebbie founded on the presumption of innocence, as enshrined in article 6 (2) of the European Convention, as developed in the jurisprudence of the European Court of Human Rights. He cited Rushiti v Austria (2001) 33 EHRR 56, Allenet de Ribemont v France (15175/89),
Sekanina v Austria (1994) 17 EHRR 221, O v Norway (29327/95), Y v Norway (2005) 41 EHRR 7 and Geerings v Netherlands (2008) 46 EHRR 49. He noted that these authorities had been considered and applied by the Inner House in Scottish Ministers v Doig 2009 SC 474. As was demonstrated by the authorities, the Convention must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory. The purpose of the presumption of innocence was to protect the accused against any judicial decision or other statement by state officials amounting to an assessment of guilt before the accused has been found guilty. It might be infringed not only by a judge or court but also by other public authorities. The protection of article 6 (2) extended beyond the date when the individual had been acquitted in particular criminal proceedings, and therefore might be infringed if, in later proceedings which were sufficiently linked (by law and practice) so that they could be regarded as a consequence and a concomitant of the earlier criminal proceedings, doubt was cast on the soundness of the earlier acquittal. Given such a link, even the voicing of suspicions was incompatible with the article 6 (2) right. In the present case, by sending the impugned material, the Scottish Ministers were saying that the minuter had actually committed the crimes of which he had been acquitted. This was in a context where the minuter's denial of having done so was relied on as a factor for refusing to release him on license. Article 6 (2) was engaged because the act of the Scottish Ministers in sending the dossier was effectively repeating the previous charges. Separatim article 6 (2) was engaged because the matters complained of were a consequence and, to some extent, the concomitant of the earlier indictment proceedings.


[18] Mr Gebbie accepted that the consideration of the minuter's case by the Board was with a view to assessing the risk presented by the minuter with a view to the protection of the public. It was an administrative decision which was non-punitive in its objective. However, in Mr Gebbie's submission, everything turned on the fact of acquittal; because the minuter had been acquitted of the five charges, "the slate had been wiped clean". A case where a decision had been made to prosecute one offence but not to prosecute another offence would be materially different. The making available of information from the file in the unprosecuted case would not offend against article 6 (2). However, the Crown (and for these purposes the Scottish Ministers were to be regarded as being in the same position as the Lord Advocate) could not have it both ways. The Ministers could not, on the one hand, accept a plea of not guilty and then, on the other, put forward material indicating guilt. There was no relevant distinction as between a not guilty verdict returned by a jury and a finding of not guilty by reason of a plea having been accepted by the Crown. Mr Gebbie explained that he did not assert that the exclusion of the impugned material would necessarily alter the outcome of the Board's consideration of the minuter's case but, be that as it may, as a matter of law, that the material "just should not be there".


[19] In a brief second speech Mr Gebbie confirmed that he was not inviting the court to look at specific items in the dossier; his objection was a general one, directed against any material referring to the five charges in respect of which the minuter had been acquitted. He took two points on the terms of the 2001 Rules. First, the obligation on the Scottish Ministers imposed by rule 5 (1) was to send information "which they consider to be relevant to the case", therefore the Ministers had a discretion as to what to send and what to withhold. Second, in terms of rule 8 (a) the matters which the Board may take into account in considering the case of a person included "the nature and circumstances of any offence of which that person has been convicted or found guilty." Application of the rule expressio unius est exclusio alterius, might be thought to exclude consideration of offences of which the minuter has been acquitted.

The Scottish Ministers' substantive submissions


[20] On behalf of the Scottish Ministers, Mr Sheldon began by submitting that there was no act of the Scottish Ministers which was or could be incompatible with the minuter's Convention rights. The circumstances did not give rise to a devolution issue and therefore there could be no devolution reference. Article 6 (2) was not
engaged but, even if it were engaged, it would not be breached by the sending of a Scottish Ministers' dossier with the impugned material. The Ministers were obliged to forward all relevant material to the Board: 2001 Rules, rule 5(1). They could not redact or excise material. The Ministers' position was not analogous to that of the Lord Advocate in criminal proceedings, who could decide whether to bring criminal proceedings and make decisions as to what evidence to adduce. The assessment of the relevance and significance of the material in the dossier was a matter for the Board. The Board was entitled to give as much or as little weight to the material contained in the dossier as it thought fit: R (McGetrick) v Parole Board and another [2012] 1 WLR 2488 at para 26. Accordingly, the Board might decide to give no weight to the allegations underlying the charges of which the minuter was acquitted. It followed that there could be no act of the Ministers caught by section 57(2) of the 1998 Act. If there was any violation of the minuter's Convention rights, this would be occasioned by the Board's decision which would be susceptible to judicial review as an act of a public authority: Human Rights Act 1998, section 6. As the Board is not concerned with the imposition of punishment, its decision as to whether a prisoner ought to be released does not involve the determination of a criminal charge: R (West) v Parole Board supra, paras 40 and 56. There was no link or at least no sufficient link in law or in practice between the minuter's conviction and sentence on the one hand and the preparation by the Scottish Ministers of the dossier and the determination of risk by the Board on the other, such as to engage article 6 (2) in relation to the presumption of innocence. The voicing of suspicions of guilt was only prohibited in proceedings that were the "consequence or concomitant" of an acquittal: Ringvold v Norway (34964/97) at paras 36 to 41. Any decision by the Board on the question of continuing risk to the public is neither the consequence nor the concomitant of the minuter's acquittal on particular charges. The Board's deliberations are the consequence not of the minuter's acquittal but of his conviction. The cases cited by the minuter: Rushiti v Austria, Allenet de Ribemont v France and Sekanina v Austria, were simply not in point, even if they are to be regarded as correctly decided, a matter put in issue by the Supreme Court in Serious Organised Crime Agency v Gale [2011] 1 WLR 2760 at paras 32, 60 and 117.


[21] In any event, the Board's function is not to make findings as to past criminal conduct, but to assess the risk of future offending. The Board will not make any finding that the minuter was guilty of the five other charges having regard to the criminal standard of proof. It is highly unlikely that the Board will make any assertion to the effect that the minuter was in fact guilty of any of the five offences of which he has been acquitted. The Board will not make any public pronouncement. At most the Parole Board might have regard to the state of suspicion as to the allegations underlying the five other charges. That would not amount to a breach of the minuter's Convention rights. What, on the basis of the Strasbourg decisions founded on by the minuter, was struck at was a statement that, on a criminal standard of proof, an individual ought to have been convicted. Statements or findings merely casting doubt on an acquittal are insufficient to amount to breach of article 6 (2): Sikic v Croatia (9143/08) at paras 52 to 56, Garycki v Poland (14348/02) at paras 67 and 71, Panteleyenko v Ukraine (1190/02) at paras 67 to 70, Del Latte v Netherlands (2005) 41 EHRR 176 at paras 30 and 31, Serious Organised Crime Agency v Gale supra at paras 134 to 135, Serious Organised Crime Agency v Hymans and O'Docherty [2011] EWHC 3332 at paras 17 to 18.

Discussion


[22] Parties were invited to address the court on the competency of the Parole Board for Scotland referring a devolution issue to the Inner House by virtue of schedule 6 to the Scotland Act 1998 on the view that whether the Parole Board (albeit acting through a self-appointed "tribunal") is a tribunal in terms of section 126 of the 1998 Act is not entirely self-evident. However, the Scottish Ministers declined to take any point on competency and the minuter urged the court to accept the reference. In the absence of any argument that it should not do so the court, while entertaining some residual doubts, decided to hear parties.


[23] What is said to give rise to a devolution issue is the sending by the Scottish Ministers to the Parole Board of a dossier which contains material referring to the fact that the minuter was charged with five offences of which he was acquitted on his pleas of not guilty being accepted by the Crown. The minuter submits that so doing contravenes his Convention rights; "once an acquittal has become final ... the voicing of any suspicions of guilt ... is incompatible with the presumption of innocence": Rushiti v Austria supra, para 31.


[24] There is nothing in the text of the Convention which made it inevitable that a reference, by an agent of the state, to an individual's guilt of a specific criminal offence (in the absence of a pending criminal charge) might amount to a contravention of that individual's human rights. That such a statement voicing suspicion of guilt when guilt has not been determined by a competent court might amount to a human rights violation depends upon a series (or perhaps more than one series) of decisions of chambers of the European Court of Human Rights which, on the facts of the respective cases, are each understandable but which, when taken together, yield no very readily discernible coherent common principle. The provision in the Convention upon which these decisions are based is article 6 (2).


[25] Article 6 (2) of the Convention provides: "
Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." The text of the paragraph and in particular its introductory words: "Everyone charged with a criminal offence", might suggest that the right it guarantees is specific to the context of a criminal trial. Indeed , as Lord Kingarth observed when delivering the opinion of the court in Scottish Ministers v Doig supra at para 24, it is perhaps not immediately obvious as a matter of language that article 6(2) could ever be said to apply to proceedings in which a person is not charged with a criminal offence. However, as was accepted by parties in Doig and explained by Lord Kingarth under reference to the decisions in Sekanina v Austria, Rushiti v Austria, O v Norway, Y v Norway, and Geerings v Netherlands, the European Court of Human Rights has found the protection guaranteed by article 6 (2) to extend beyond the immediate situation of a criminal trial to other situations where the state is seen to be undercutting the presumption of innocence which should survive until a competent court has made a finding of guilt.


[26] The article 6 (2) right is conferred on everyone "charged with a criminal offence" but, as appears from Y v Norway supra at para 39:

"The Court reiterates that the concept of a 'criminal charge' in Article 6 is an autonomous one. According to its established case-law there are three criteria to be taken into account when deciding whether a person was 'charged with a criminal offence' for the purposes of Article 6, namely the classification of the proceedings under national law, their essential nature and the type and severity of the penalty that the applicant risked incurring ... Moreover, the scope of Article 6 2 is not limited to criminal proceedings that are pending (see Allenet de Ribemont v France ...). In certain instances, the Court has also found the provision applicable to judicial decisions taken after the discontinuation of such proceedings ... or following an acquittal (see the above-mentioned Sekanina, Rushiti and Lamanna judgments). Those judgments concerned proceedings related to such matters as an accused's obligation to bear court costs and prosecution expenses, a claim for reimbursement of his (or his heirs') necessary costs, or compensation for detention on remand, and which were found to constitute a consequence and the concomitant of the criminal proceedings."

Thus, the first matter for inquiry is whether the proceedings in which a person's presumed innocence is said to be impugned are such as to have made that person subject to a "criminal charge" as that concept falls to be understood in the light of the jurisprudence of the Court. As is stated in the passage quoted above, a person may be found to be protected by article 6 (2) before criminal proceedings have been commenced, as in the case of Allenet de Ribemont who was said by the Minister of the Interior and senior police officials during a press conference to have been the instigator of a murder before any sort of formal charge was laid against him. Equally, for the purposes of article 6 (2), proceedings subsequent to an acquittal may nevertheless be held to be essentially a part of the criminal trial with the result that the accused is still entitled to the benefit of the presumption of innocence, as in cases where, in answer to a claim for compensation for time spent on remand in jurisdictions where this is provided for by the national law, the national court had refused it on the basis that there was no question of suspicion of the accused's guilt "having been dispelled" (Sekanina) or that there was "a reasonable suspicion against the accused which had not been dissipated" (Rushiti).


[27] If proceedings are essentially criminal in nature in the sense that they give rise to a "criminal charge" against an individual who is party to them, then that individual will have the benefit of the presumption of innocence guaranteed by article 6 (2) and that right may be violated if a judicial decision or statement by a public official reflects an opinion that he is guilty: Geerings v The Netherlands supra at para 41. However, even if the proceedings do not give rise to a criminal charge, they may nevertheless be "so linked to the criminal trial" that article 6 (2) applies. Thus, in
Y v Norway supra immediately after the passage quoted above, the Court went on to say this:

"Accordingly, the Court will examine whether the compensation proceedings in the present case gave rise to a 'criminal charge' against the applicant and, in the event that this was not the case, whether the compensation case nevertheless was linked to the criminal trial in such a way as to fall within the scope of Article 6 (2)."

The form of words which, in the English translation of its decisions, the European Court has used to express the degree of linkage necessary for the article 6 (2) protection to apply is "a consequence and the concomitant of": Rushiti v Austria supra, para 27, O v Norway supra, para 33 (described by Lord Phillips in Serious Organised Crime Agency v Gale supra, para 21 as "the mantra oft repeated"). Additionally, again as noted by Lord Kingarth in Scottish Ministers v Doig supra, para 33, under reference to Y v Norway, the European Court has attached significance to the strength or clarity of the language used in imputing criminal liability to provide a sufficient link to earlier criminal proceedings with the result that the right to the presumption of innocence has been infringed (see, in particular, the concurring opinion of Judge Greve, the Norwegian member of the Court, in Y v Norway). Thus there is obvious force in Lord Phillips's dry observation in R (Adams) v Justice Secretary [2012] 1 AC 48 at para 58:

"The court's expansion of what would seem to be rule intended to be part of the guarantee of a fair trial into something coming close to a principle of the law of defamation is one of the more remarkable examples of the fact that the Convention is a living instrument."

It is this expanded concept which Mr Gebbie invites this court to apply to the circumstances of the sending of the Scottish Ministers' dossier to the Parole Board where that dossier contains material which refers to and may to an extent rely on the fact that the minuter was indicted in respect of five charges of which he was acquitted by reason of his pleas of not guilty being accepted. While Mr Sheldon's reference to Serious Organised Crime Agency v Gale supra suggested a degree of scepticism about the soundness of the Strasbourg decisions cited to us, he did not go the distance of submitting that they were wrong. Accordingly, for present purposes, we take the law to be as set out in the cases relied on by the minuter.


[28] In the case of
Serious Organised Crime Agency v Gale supra at para 32, Lord Phillips described this as a "confusing area of Strasbourg law [which] would benefit from consideration by the Grand Chamber", but whatever may be the difficulties in reducing the European Court's decisions to a coherent statement of general principle, when one looks at the circumstances of the present case it seems clear to us that nothing which has been done by the Scottish Ministers or which it can reasonably be apprehended that they may do, can be said to contravene the minuter's rights as protected by article 6 (2) of the Convention. In our opinion, article 6 (2) is not engaged here but even if it were, it would not be infringed by what the minuter complains of. At its core, article 6 (2) provides a guarantee that in a criminal trial the burden of proving the accused's guilt lies upon the prosecution and that nothing is said or done by the state to cast doubt on that. Hence, as a starting point, there is a need to determine whether, in relation to the proceedings under consideration, the individual is facing a criminal charge. We did not understand Mr Gebbie to argue that the Parole Board's hearing the minuter's case was the equivalent of criminal proceedings or that in any sense the minuter would be facing a criminal charge. We would agree with what we took to be Mr Gebbie's approach. That follows from what was described in Y v Norway as the European Court's established case-law when deciding whether a person was charged with a criminal offence for the purposes of Article 6. There are three criteria to be applied: the classification of the proceedings under national law, the essential nature of the proceedings, and the type and severity of the penalty which may be imposed as a result of the proceedings. When these three criteria are applied to the hearing of the minuter's case by the Parole Board, it cannot be said that the proceedings constitute the determination of a criminal charge. According to the law of Scotland, proceedings before the Parole Board are not classified as being criminal in nature. Neither is their essential nature criminal. As Mr Gebbie accepted, they are conducted with a view to making what is an administrative decision. The concern of the Board (through a tribunal) is to assess the degree of risk presented by the prisoner whose case it is hearing with the object of protecting the public from harm. There is no question of the imposition of a penalty. The proceedings are entirely non-punitive in nature. For these reasons the House of Lords in R (West) v Parole Board supra at paras 40, 58 and 76 held that a consideration by the Parole Board for England and Wales of whether it should recommend re-release after revocation of the claimant's licence (exactly what is in issue here) did not involve a determination of a criminal charge. The situation is the same in Scotland. A Parole Board hearing in order to decide on early release from custody is fundamentally different from proceedings to determine a criminal charge.


[29] What Mr Gebbie did argue was that the proceedings before the Board were sufficiently linked to the minuter's trial in the course of which his pleas of not guilty were accepted as to attract the protection of article 6 (2) with the result that even the voicing of suspicion of guilt would amount to a contravention of the minuter's human rights. We do not accept that submission. Agreeing with Mr Sheldon, it appears to us that the requirement for the Board
to hear the minuter's case arises not from the minuter's acquittal on the five charges but from his conviction on the two charges. It is of course true that all the charges appeared on one indictment, but they need not have done. In the present context, which relates to the extended application of article 6 (2), we do not see how the hearing of the minuter's case by the Parole Board can be regarded as the consequence or the concomitant of the proceedings in respect of the criminal charges of which he was acquitted. Accordingly, subject to a qualification to which we will turn, the minuter's right to be presumed innocent (in the sense of the criminal standard of proof not having been met) in respect of the five charges of which he was acquitted, cannot be infringed in proceedings which are taking place by reason of his conviction on two different charges. Understandably, Mr Gebbie emphasised that even the voicing of a suspicion of guilt was prohibited in any context which was sufficiently linked to the relevant criminal proceedings so that article 6 (2) was engaged. Where there is sufficient linkage that may be so. However, and this is the qualification to what is stated immediately above, as was noted in Scottish Ministers v Doig, the strength of the language used by a court or other public authority, in circumstances where there may otherwise be insufficient linkage to the original criminal proceedings, has been found by the European Court to justify the conclusion that the right to the presumption of innocence has been infringed. Accordingly, were the Scottish Ministers clearly to assert that the minuter was in fact guilty of the five charges of which he was acquitted, that might contravene article 6 (2). That means that it is relevant to consider the precise terms in which the material in the dossier sent to the Parole Board is expressed, irrespective of whether or not the Parole Board hearing is to be regarded as the consequence or the concomitant of the proceedings in respect of the criminal charges of which the minuter was acquitted. However, Mr Gebbie did not invite us to look at the material. We understood him to accept that while the material contained references to the minuter having been acquitted of specific charges, nothing to be found in the dossier went the distance of an assertion that the minuter was in fact guilty of the offences in respect of which the Crown accepted his pleas of not guilty. Indeed, as we understood it (and nothing was pointed to as having contrary effect) nothing in the dossier even goes the distance of the voicing of suspicion of guilt. We reiterate; it is the statement by a public authority inconsistent with an individual's innocence in respect of a charge of which he has not been convicted which is incompatible with the right guaranteed by article 6 (2), where article 6 (2) is engaged. We do not find article 6 (2) to be engaged here but even were it to be engaged, nothing has been put before us to suggest that article 6 (2) has been contravened. As we were led to believe by Mr Sheldon (and Mr Gebbie did not dispute this), the Scottish Ministers have expressed no view whatsoever on the matter. Rather, they have carried out what Mr Sheldon described as essentially a secretarial function in making available a variety of material compiled by a number of persons who are independent of the Scottish Ministers and who have had responsibility for or in connection with the minuter. In that material there are references, for purposes which those persons consider relevant to the process of assessing the risk posed by the minuter, to his having been indicted in respect of the five charges and acquitted of these charges on his pleas of not guilty being accepted. We do not understand that any of these persons have asserted that the minuter was in fact guilty of any of the five charges (in the sense of the criminal standard of proof being met) or even that they suspect that he was guilty. But even if they were to do so, it is by no means clear to us how that could be said to be the act of the Scottish Ministers.


[30] At the very best for the minuter his complaint is premature. Nothing has as yet happened which would amount to a contravention of his article 6 (2) rights and nothing has been put forward on his behalf to suggest that it may be reasonably apprehended that his rights will be contravened. Paragraph 3 vii of the Devolution Issue Minute is in these terms:

"That consideration of any evidence relating to criminal matters for which the Minuter has not been convicted is likely to put at risk the Minuter's right to a presumption of innocence in respect of those allegations in terms of Article 6 (2) of the Convention."

For reasons that we hope will be apparent from the preceding discussion of the scope of the guarantee afforded by article 6 (2), as it has been developed by the European Court of Human Rights, that proposition is simply unsound. In our opinion, the minuter has failed to identify any devolution issue as arising from the sending of the Scottish Ministers' dossier to the Parole Board or the consideration of the material in that dossier by the Board (through its tribunal). It is therefore unnecessary to address the Minister's contention that no devolution issue arises as any violation of the minuter's Convention rights would be occasioned by the Parole Board. If it had been necessary to do so, we would have rejected that submission. It is no answer to say that the Ministers' hands were tied by the terms of the 2001 Rules. The Rules were promulgated by the Ministers and thus also constitute an act of the Scottish Executive in terms of section 57 (2) of the 1998 Act. If a literal meaning of the rules did require the Ministers to lay before the Board material that, if considered, would lead to violation of the prisoner's Convention rights then the rules would have to be read differently or, if that was not possible, a blue pencil would have to be drawn through the offending provisions. That makes the position of the Scottish Ministers in relation to this matter indistinguishable from that of the Lord Advocate in criminal proceedings. Any violation of the minuter's rights could be said equally to be occasioned by the Board's consideration of the material as by the Ministers' act in introducing it. But this does not remove its character as a devolution issue: R v HM Advocate [2004] 1 AC 462, Lord Rodger of Earlsferry at para [118] approving Mills v HM Advocate (No 2) 2001 SLT 1359, Lord Justice General (Rodger) at para 19.


[31] The
Devolution Issue Minute is therefore dismissed. We reserve all questions of expenses.


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