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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Barclay & Ors v HM Advocate [2012] ScotHC HCJAC_47 (11 April 2012)
URL: http://www.bailii.org/scot/cases/ScotHC/2012/2012HCJAC47.html
Cite as: [2012] ScotHC HCJAC_47, 2012 SCCR 428, [2012] HCJAC 47, 2012 SCL 705, 2013 JC 40, 2012 GWD 14-275, 2012 SLT 855

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Clarke

Lord Philip

[2012] HCJAC 47

Appeal No: XC798/11, XC838/11 and XC839/11

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

in

REFERENCES

between

(1) JOHN BARCLAY

First Minuter;

and

WILLIAM JAMES BAIN

Second Minuter;

and

HER MAJESTY'S ADVOCATE

Respondent:

and

(2) DOUGLAS McLEAN

Third Minuter;

and

HER MAJESTY'S ADVOCATE

Respondent:

_______


First Minuter (Barclay): Scott, Q.C., McLaughlin; Browns, Glasgow

Second Minuter (Bain): Gebbie, McAulay; Drummond Miller, Edinburgh

Third Minuter (McLean): Scott, Q.C., Moll; Fleming & Reid, Glasgow

Respondent: Miller, Solicitor Advocate, A.D.; Crown Agent

11 April 2012

The proceedings


[1] The first and second minuters have been charged together on indictment in the
Sheriff Court at Glasgow with assault to injury and to the danger of life; the first minuter has additionally been charged with a contravention of section 41(1)(a) of the Police (Scotland) Act 1967. The third minuter has been charged, with another, in the High Court at Glasgow with murder and with certain other offences. In the first process several devolution minutes were lodged for each of the first and second minuters; in the second process a single devolution minute has been lodged. Each reference raises questions about section 70A of the Criminal Procedure (Scotland) Act 1995, as inserted by the Criminal Justice and Licensing (Scotland) Act 2010 - as to its construction and as to whether it is outwith the competence of the Scottish Parliament and accordingly not law. The questions raised in the two references are similar but not identical.

The statutory provisions


[2] Section 70A was inserted by section 124(3) of the 2010 Act. Section 124 is in the following terms:

"(1) This section applies where the accused lodges a defence statement under section 70A of the 1995 Act.

(2) As soon as practicable after the prosecution receives a copy of the defence statement, the prosecutor must -

(a) review all the information that may be relevant to the case for or against the accused of which the prosecutor is aware, and

(b) disclose to the accused any information to which section 121(3) applies.

(3) After section 70 of the 1995 Act insert -

'70A Defence statements

(1) This section applies where an indictment is served on an accused.

(2) The accused must lodge a defence statement at least 14 days before the first diet.

(3) The accused must lodge a defence statement at least 14 days before the preliminary hearing.

(4) At least 7 days before the trial diet the accused must -

(a) where there has been no material change in circumstances in relation to the accused's defence since the last defence statement was lodged, lodge a statement stating that fact,

(b) where there has been a material change in circumstances in relation to the accused's defence since the last defence statement was lodged, lodge a defence statement.

(5) If after lodging a statement under subsection (2), (3) or (4) there is a material change in circumstances in relation to the accused's defence, the accused must lodge a defence statement.

(6) Where subsection (5) requires a defence statement to be lodged, it must be lodged before the trial diet begins unless on cause shown the court allows it to be lodged during the trial diet.

(7) The accused may lodge a defence statement -

(a) at any time before the trial diet, or

(b) during the trial diet if the court on cause shown allows it.

(8) As soon as practicable after lodging a defence statement or a statement under subsection (4)(a), the accused must send a copy of the statement to the prosecutor and any co-accused.

(9) In this section, "defence statement" means a statement setting out -

(a) the nature of the accused's defence, including any particular defences on which the accused intends to rely,

(b) any matters of fact on which the accused takes issue with the prosecution and the reason for doing so,

(c) particulars of the matters of fact on which the accused intends to rely for the purposes of the accused's defence,

(d) any point of law which the accused wishes to take and any authority on which the accused intends to rely for that purpose,

(e) by reference to the accused's defence, the nature of any information that the accused requires the prosecutor to disclose, and

(f) the reasons why the accused considers that disclosure by the prosecutor of any such information is necessary.'.

(4) In section 78 of the 1995 Act (special defences, incrimination, notice of witnesses etc.), after subsection (1) insert -

'(1A) Subsection (1) does not apply where -

(a) the accused lodges a defence statement under section 70A, and

(b) the accused's defence consists of or includes a special defence.'."


[3] Section 124 is within Part 6 of the 2010 Act. That Part is headed "Disclosure". It imposes certain duties upon an "investigating agency" (a police force or certain other persons) to provide information to the prosecutor in a prosecution and upon that prosecutor a duty to disclose information to the accused. Each of these duties is a continuing one. In the case of the latter that duty continues until the conclusion of the proceedings against the accused. Section 125 makes for summary proceedings provisions equivalent to that in section 124 for solemn proceedings. Sections 128-130 make provision for court rulings on disclosure. Sections 131-167 make further provision with respect to disclosure. Section 121 provides:

"(1) This section applies where in a prosecution -

(a) an accused appears for the first time on petition,

(b) an accused appears for the first time on indictment (not having appeared on petition in relation to the same matter), or

(c) a plea of not guilty is recorded against an accused charged on summary complaint.

(2) As soon as practicable after the appearance or the recording of the plea, the prosecutor must -

(a) review all the information that may be relevant to the case for or against the accused of which the prosecutor is aware, and

(b) disclose to the accused the information to which subsection (3) applies.

(3) This subsection applies to information if -

(a) the information would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused,

(b) the information would materially strengthen the accused's case, or

(c) the information is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused."

Submissions on behalf of the minuters Barclay and McLean
[4] Miss Scott conceded at the outset that section 70A of the 1995 Act could be read in a way which was Convention compatible. No challenge was made to the requirement for a defence statement as a tool to enable disclosure. However, she submitted that, when one considered sections 121 - 127 of the Criminal Justice and Licensing (Scotland) Act
2010 in conjunction with section 70A of the 1995 Act, the way in which the disclosure regime was to operate could be construed as being incompatible with the minuters' rights to a fair trial under Article 6(3) and 6(1) of the Convention. That right was absolute and not subject to any limitation or balancing considerations (Montgomery v HM Advocate 2001 SC (PC) 1, per Lord Hope of Craighead at pages 27E-F and 29G). A fundamental aspect was the adversarial nature of criminal proceedings, including the procedural elements, and the equality of arms between parties, each of whom had to have knowledge of and the opportunity to comment on the evidence of the other (Edwards v The United Kingdom (2005) 40 EHRR 24 at para [52]; Jespers v Belgium (1983) 5 EHRR CD 305, at paras 54-58). Each party should have the opportunity to present his case in circumstances which did not place him at a substantial disadvantage (Dombo-Beheer B.V. v Netherlands (1993) 18 EHRR 213). The rules of natural justice had to be observed: the prosecution owed a duty to the court to ensure that any evidence which might assist an accused was made available (R v Hennessey (1979) 68 Cr.App. R 419, per Lawton, LJ at page 426).


[5] In assessing section 70A of the 1995 Act three questions required to be asked: (i) what does section 70A mean when read in the context of the disclosure provisions of the 2010 Act; (ii) how is it intended to operate in practice; and (iii) on that meaning and standing that method of operation, was it compatible with the appellant's right to a fair trial and thus within the competence of the Scottish Parliament (HM Advocate v DS 2007 SCCR 222 (per Lord Hope at paras 16-18 and 21-24). The starting point was the obligation upon judges, so far as possible, to read and give effect to legislation in a way which was Convention compatible (Human Rights Act 1998, section 3; Scotland Act 1998, section 101(2)). That obligation was strong, albeit rebuttable and subject to limitations (HM Advocate v DS, per Lord Hope at para 24; Ghaidan v Godin-Mendoza [2004]
2 AC 557, per Lord Rodger of Earlsferry at paras 103-111)


[6] Analysing the provisions in that manner, a number of issues could be identified. The definition of the prosecutor's duty of disclosure under section 121 of the 2010 Act was too restrictive: it should be read as a duty to disclose information which "might" undermine the case against the accused or assist his defence, rather than information which "would" do so (see Allison v HM Advocate 2010 SC (UKSC) 19, per Lord Rodger at para [14] and Lord Hope at para [28]; McInnes v HM Advocate 2010 SC (UKSC) 28, per Lord Hope at para [19]; HM Advocate v Murtagh 2010 SC (PC) 39, per Lord Scott of Foscote at para [43]). The duty of further disclosure under section 122 of the 2010 Act was not enforceable (2010 Act, section 128; cf section 121). Moreover, the common law rules of disclosure having been abolished, there was no mechanism to enforce this further duty prior to the trial (2010 Act, section 166). If section 122 were read as expanding the enforceable duty of disclosure in section 121, the difficulty identified might not arise. The information to be disclosed to the defence was "material of any kind given to or obtained by the prosecutor in connection with the proceedings" (2010 Act, section 116). That could be too restrictive. Absent any statutory definition, "prosecutor" should be interpreted so as to include the police (McDonald v HM Advocate 2008 SCCR 154, per Lord Justice General Hamilton at para [48]). There was a time limit within which the defence statement had to be lodged, but not for the prosecuting authorities to make full disclosure (2010 Act, section 121; cf 1995 Act, section 70A). That placed the defence at a disadvantage where, for example, information was received later on, with resultant differences in defence statements lodged. Section 70A of the 1995 Act should be read as imposing the duty to lodge a defence statement only after full disclosure. The scope of information required should be interpreted restrictively: the matters outlined in section 70A(9)(c), (d) and (f) should not be read as mandatory.


[7] There were two important differences from the English disclosure regime: there the obligation to lodge a defence statement only arose after the prosecution had complied with its disclosure obligations (Criminal Procedure and Investigations Act 1996 Act, section 5(1)(b)); and adverse comment and the drawing of adverse inferences were permitted where an accused did not lodge a defence statement timeously or changed his position (1996 Act, section 11). The latter was a natural development of the English common law in relation to an accused's silence prior to trial. Scots common law did not generally permit such adverse inferences or comment (Larkin v HM Advocate 2005 SCCR 302; 1995 Act, section 36(8) of the 1995 Act). Section 70A should be read in a way that the information in a defence statement, or lack thereof, could not result in any inference adverse to the accused being drawn. If read otherwise, it risked undermining an accused's right against self-incrimination. That applied to statements obtained, as here, under compulsion which might bolster the prosecution's case by undermining the accused's credibility (Saunders v United Kingdom (1997) 23 EHRR 313, at paras 68-71). The English approach to silence at police interview did not offend against Article 6 due to safeguards which had been put in place in that jurisdiction (Condron v United Kingdom (2001) 31 EHRR 1 at para 57-61). Similarly, there were safeguards to prevent unfairness in relation to any comments or inference to be drawn in relation to a defence statement (Tibbs [2000] 2 Cr.App. R 309; R v Petkar/R v Farquhar [2003] EWCA Crim 2668, per Rix LJ at para 51; R v Essa [2009] EWCA Crim 43). In
Scotland, an accused could be cross-examined about discrepancies arising in relation to his plea of special defence. The risk that the Crown might make similar use of the defence statement was acute: it was to be lodged in the absence of full disclosure by the Crown, required detailed information and the Crown had to be notified of any material change in position. Glover v United Kingdom (2005) 40 EHRR was decided in the context of safeguards in England, where there was judicial control.


[8] If the plain meaning of the words in these statutory provisions did not permit the interpretation put forward by her, Miss Scott submitted that the first question in the minuter Barclay's case should be answered in the negative. The second question however should be answered in the affirmative standing the interpretation desiderated. Esto that interpretation was not accepted, the provisions would be in breach of Article 6 and outwith the competence of the Scottish Parliament (Scotland Act 1998, section 29(1) and (2)(d)). The third question should be answered in the affirmative. The answers to the reference in the minuter
McLean's case were essentially the same, albeit in a different order.

Submissions on behalf of the minuter Bain

[9] Mr Gebbie submitted that section 70A of the 1995 Act represented an attack on the accused's right to silence and was outwith the competence of the Scottish Parliament. The Crown's duty of disclosure had already been established at common law (Murtagh v HM Advocate; Allison v HM Advocate). It had developed against the background of an accused not being required to answer any question put to him by the prosecuting authorities (cf 1995 Act, section 36). Section 70A placed an obligation upon the defence where previously no such obligation existed, requiring the accused, within a specified time frame, to state his defence. The Crown's duty of disclosure did not now arise until the defence statement was lodged. That placed an accused at a disadvantage. The mandatory nature of the procedure in section 70A was a departure from the recommendations made in Lord Coulsfield's Report ("Review of the Law and Practice of Disclosure in Criminal Proceedings in
Scotland", August 2007). It was that which compromised the right to a fair trial (Saunders v United Kingdom at para 74; Condron v United Kingdom). Moreover, the statement would be forwarded to the investigating police officers who would be witnesses in the case against the accused. An accused ought not to be compelled to provide evidence which might be used against him (Funke v France [1993] 1 CMLR 897 at paras 44-45). It was of note in this regard that section 70A referred to a defence "statement".


[10] In considering these referrals this court was, in effect, sitting as a constitutional court. The minuter clearly had "standing" to raise these matters (Axa General Insurance Ltd, Petitioners 2011
SLT 1061, per Lord Reed at paras 169-170). Any consideration of whether section 70A of the 1995 Act was within the legislative competence of the Scottish Parliament was not limited to issues which arose on a case by case basis. In each of the minuters' cases the Crown had made a motion that a defence statement should be lodged: the minuter was thus affected by the provision and it did not have to await the conclusion of his trial. The defence statement could be used in evidence against an accused, and, even if it could not, the question of a breach of the right to silence remained.


[11] The procedure in
England was not directly comparable (cf R v Bryan [2004] EWCA Crim 3467). It was designed to prevent "trial by ambush" and was not immediately concerned with Crown disclosure. In that jurisdiction a defence statement was only required after the prosecutor had disclosed all relevant material. Moreover, unlike the position in Scotland, provision was made for an adverse inference to be drawn where a statement had not been lodged. In any event, it was not conceded that the procedure in England was Convention compliant. The matter had never been considered by the Supreme Court, nor directly addressed by the European Court of Human Rights. A requirement to lodge even a statement which simply stated that the accused did not admit the offence, called upon the Crown to prove it and advanced no positive case, involved a breach of the right to silence. Reference was made to R v Rochford [2011] 1 WLR 534, per Hughes LJ at para 24. A difficulty might also arise in cases involving sexual offences where the accused required a lawyer but was unwilling to accept any advice as regards the need to lodge a defence statement, resulting in representatives continually having to withdraw from acting.

Submissions on behalf of the Crown

[12] The Advocate depute submitted that section 70A of the 1995 Act was compatible with Article 6 of the Convention and thus within the legislative competence of the Scottish Parliament. Ultimately, that was the question to be addressed by this court in the present references. However, the submissions on behalf of the minuters Barclay and McLean went wider than that. While the matter had to be considered in the context of section 121 of the 2010 Act, the references did not raise any questions of that latter provision being read down.


[13] Nevertheless, the code of practice for disclosure promulgated under section 164 of the 2010 Act addressed the concerns raised by the minuters as regards the operation of section 121 and the need to err on the side of disclosure. It was a public document to which prosecutors, the police and other relevant investigatory bodies were required to "have regard". The Crown had developed parameters as regards the timing of disclosure which were set out in Annex B to the Crown Disclosure Manual, also a public document. In large-scale enquiries, it provided important milestones and ensured that disclosure was considered from the outset. Moreover, the Crown accepted that there was a continuing duty of disclosure. In that regard, it was unclear what was meant by saying that the English system required disclosure prior to the defence statement being lodged: more often than not there would be further information received after that point. The section 67 procedure allowed amendment of the indictment, with leave of the court, where such new information arose. If this resulted in a change of circumstances, the defence statement could be updated.


[14] A defence statement lodged was not evidence. The purpose of section 70A of the 1995 Act was to assist the Crown with its duty of disclosure, not with its prosecution of the accused. Any cross-examination of the accused or comment at the trial as regards a change in defence would always be subject to considerations of fairness. That had already been established in relation to special defences (Williamson v HM Advocate 1980 JC 22; Wilkinson v HM Advocate 1991 SCCR 856). While the common law rules about disclosure had been abolished, that did not affect an accused's right to seek disclosure or recovery of information other than by way of the procedures outlined in the 2010 Act (2010 Act, section 166(3)). The requirement to set out any special defence did not mean that the whole defence statement had to be read to the jury: the part relating to the special defence could be read in isolation, or the accused could lodge a separate plea of special defence. Where a defence statement was not lodged the Crown could only draw the court's attention to that fact. There were other mandatory obligations to lodge documents with no prescribed statutory sanction: an example was the requirement to lodge a written record of parties' state of preparation in advance of the preliminary hearing (section 72E of the 1995 Act; Rule 9A.4 and Form 9A.4 of the Act of Adjournal (Criminal Procedure Rules) 1996). The mandatory language itself provided the impetus to ensure that the rules were complied with.


[15] Saunders v
United Kingdom could be distinguished. It concerned the use in evidence of an extrajudicial statement obtained under compulsory powers. In contrast, a defence statement could not amount to a judicial admission: it did not automatically result in the agreement of the facts to which it referred; it did not restrict the accused to the line of defence of which it gave notice; and it left open the possibility of a defence claim that insufficient evidence had been led. It was simply a mechanism to facilitate disclosure. It was an indication of an accused's defence, which one would not normally describe as incriminatory. There was no reason why, as in England, the defence statement should not simply state that the charge was not accepted and that no positive defence was being advanced; no adverse inference could be drawn if that was the approach adopted (cf R v Rochford; R v Bryan per Latham LJ at paras 22-23). It might, however, explain any subsequent difficulties which the Crown encountered in disclosing relevant information to the defence. While the European Court of Human Rights had not directly addressed the compatibility of defence statements with the Convention, in Glover v United Kingdom it had cited, without criticism, the English Court of Appeal's judgment that the scheme was compatible and that its proper aim was to aid disclosure (pages 156-159). It was submitted that the request for a defence statement was simply the latest evolution in the process of disclosure which was fundamentally important and often complex. Given the scale of the issues involved in some cases, it was not unreasonable, at an early stage, to ask for some input from the defence in order to focus the live issues at trial.


[16] Finally, it was submitted that the impact of the legislation in terms of the Convention could best be determined after the conclusion of the trial at the appeal stage (M (M) v HM Advocate 2004 SCCR 658, per Lord Johnston at page 694). Many of the issues raised in the references were speculative and could not properly be determined before that stage in proceedings. There was, prima facie, no reason to suppose that the provisions would result in unfairness.

Discussion

[17] In our view there is, and can be, no doubt about what section 70A(2) and section 70A(3) (as read with section 70A(9)) mean. Section 70A(2) obliges an accused on whom an indictment has been served in the sheriff court to lodge a defence statement setting out the matters referred to in subsection (9) at least 14 days before the first diet; section 70A(3) obliges an accused on whom an indictment has been served in the High Court to lodge such a defence statement at least 14 days before the preliminary hearing. The obligatory character of each of these provisions is to be contrasted with the permissive character of section 70A(7). Neither section 70A(2) nor section 70A(3) can be read down to render it other than obligatory.


[18] Mr Gebbie's submission was straightforward and uncompromising. In short, the requirement to lodge a defence statement offended against an accused's right to silence, a right afforded to him by the domestic law of
Scotland, reinforced by Convention law; it compromised the fairness of his trial, contrary to Article 6(1). This submission proceeds, in our view, on the false premise that the content of a defence statement is available as evidence against the accused. It clearly is not - as the Advocate depute acknowledged. Read in the context of the disclosure provisions contained in Part 6 of the 2010 Act the requirement to lodge a defence statement is a procedural step designed to ensure that the Crown's obligation of disclosure is appropriately directed to such defence, positive or negative, as the accused may adopt at his trial. The 2010 Act does not expressly authorise any wider use of the defence statement (cf Criminal Procedure and Investigations Act 1996, section 11(3)). Where the fruits of compulsory measures have offended against the right against self-incrimination or the absolute right to a fair trial, that has been where these fruits were available for use and were actually used as evidence against the accused at his trial (Saunders v United Kingdom); or the State used compulsory measures with a view to compelling the citizen to provide evidence against himself (Funke v France).


[19] While section 70A obliges an accused to lodge a defence statement, that statement need not advance a positive defence; the accused's position in his statement may simply be to deny the charge or charges and to put the Crown to its proof. Section 70A(9)(a) to (d) appear to be modelled on section 6A(1) of the 1996 Act (as amended), against which a negative defence can be formulated (R v Rochford, especially per Hughes LJ at para 24). Provided the nature of the defence, positive or negative, is made clear, there will be compliance with the statutory requirement.


[20] If a defence statement does not constitute an evidential statement by the accused, the timing of the requirements as to when it must be lodged are immaterial. The court may under section 67(5) of the 1995 Act grant leave for the prosecutor to examine a witness or put in evidence a production not included in the lists lodged with the indictment. This may occur at a stage after the expiry of the time by which the accused has to lodge his defence statement. The nature of the evidence which any such witness may give or the terms of any such production may in some cases constitute a material change of circumstances in relation to the accused's defence, so requiring him to lodge a (fresh) defence statement (section 70A(5)); but if any change of front, by reference to a difference between the original defence statement and the later defence statement, cannot evidentially be used against the accused at his trial, he cannot be prejudiced.


[21] There is no substance, in our view, in the proposition that section 70A is, of its nature, non-compliant with the Convention.


[22] Miss Scott's approach was more nuanced. The requirement to lodge a defence statement was not per se incompatible with the Convention; the legislation could be construed and applied in a way which was compatible. It was, however, essential that the court so construed and applied it.


[23] In so far as any question of construction of the legislation arises, we accept that the obligation is to construe it in so far as possible in a way which is compatible with Convention rights and that this will involve looking closely at the legislation to see if it can be explained and operated in a way that is compatible and, if it is not, how it can be so construed as to make it so (HM Advocate v D.S., per Lord Hope at para 24). But, in our view, as already stated, no question of construction arises - at least at this stage - in relation to the cases before us. Section 70A(2) and section 70A(3) are each perfectly clear. Each obliges an accused to lodge a defence statement within the time limits specified. It cannot be read in any other way.


[24] There may be implications or difficulties arising from the performance of that obligation. But, while Miss Scott's submissions give rise to a number of interesting questions of statutory interpretation, these do not arise for consideration and determination at this stage. It would be inadvisable to endeavour to anticipate them. It cannot be said ab ante that there will inevitably or with practical certainty be a breach of any Convention right (see Transco plc v HM Advocate 2005 JC 14 at paras 7, 24 and 44; Thomson v Burns 2009 SCCR 597 at para [10]). These implications and difficulties, if they arise at all, are best dealt with by the sheriff or judge in the context of the trial in question - once the statutory requirement to lodge the defence statement has been met. These judicial office holders will address any such implications or difficulties having regard to their respective obligations to ensure that the trial of the accused in question is fair. Any challengeable rulings can, in the event of a conviction, be dealt with on appeal in light of the particular circumstances of the trial.


[25] A number of principles have emerged in
England and Wales out of the operation of the 1996 Act (see, for example, Tibbs; R v Petkar/R v Farquar; R v Essa). No doubt in the operation of the 2010 Act principles will emerge - which will no doubt take account of the differences between the English and the Scottish statutory provisions (as well as the points of similarity) and the different general legal backgrounds against which these provisions must be set.


[26] Nor is it appropriate at this stage to consider the scope of the Crown's obligation of disclosure under the statutory scheme. Section 121(3) may or may not innovate upon the common law as developed hitherto. But that issue does not properly arise under either reference.

Disposal


[27] The questions posed by the sheriff in the case in which the first and second minuters are the accused are:

"(i) Whether section 70A of the Criminal Procedure (Scotland) Act 1995 introduced by section 124 of the Criminal Justice and Licensing Act 2010, read in conjunction with section 121 of the said 2010 Act, is compatible with Article 6 of the European Convention on Human Rights?

(ii) If not, whether section 70A of the Criminal Procedure (Scotland) Act 1995 introduced by section 124 of the Criminal Justice and Licensing Act 2010, read in conjunction with section 121 of the said 2010 Act can be read in such as way as to be compatible with Article 6 of the European Convention of Human Rights?

(iii) Whether said provisions are outwith the legislative competence of the Scottish Parliament in terms of section 29(1) and 29(2)(d) and section 101 of the Scotland Act 1998."

We answer the first of these questions in the affirmative and the third in the negative. The second question does not arise.


[28] The questions posed by the judge in the case in which the third minuter is an accused are:

"(a) Are the provisions of section 124 of the 2010 Act within the legislative competence of the Scottish Parliament in so far as the provisions (or any of them) are incompatible with the rights (express or implied) of the second accused guaranteed by Article 6 of the European Convention on Human Rights?

(b) On the assumption that any provision of section 124 could be read in such a way as to be outside competence, is it possible for the provision to be read to be within competence?"

We find question (a) to be unintelligible: if any of the provisions of section 124 (and in particular section 124(3)) is incompatible with the third minuter's Convention rights, then necessarily such provisions would not be within legislative competence; however we are unable, on the arguments presented to us, to find that any of these provisions is so incompatible. As to question (b), we do not find it appropriate to make the assumption referred to; as explained above, the meaning of the relevant provisions (section 70A(3) of the 1995 Act, as inserted by section 124(3) of the 2010 Act) is quite clear; there is no need to read it in any way other than in accordance with its natural and ordinary meaning.


[29] Each case will now be remitted to the relevant court for trial.

Coda

[30] We should add that at the outset of the hearing Mr Gebbie suggested that the High Court could not properly deal with the reference which the sheriff had made to it. That was because that court had in furtherance of the 2010 Act made an Act of Adjournal (the Act of Adjournal (Criminal Procedure Rules No.4) (Disclosure) 2011) which provided that defence statements (and certain other statements) lodged in furtherance of the 2010 Act should be in certain forms. The making of that Act of Adjournal created, it was suggested, an appearance of an absence of impartiality in relation to the matters in issue under the reference. Miss Scott did not associate herself with that suggestion.


[31] In our view there is no substance in that suggestion. The circumstance that the court in its administrative capacity has made an Act of Adjournal which prescribes the technical form which a defence statement or other statement lodged in furtherance of the 2010 Act should take, in no way suggests, or could suggest, a lack of impartiality on the part of any judge of the High Court adjudicating judicially on the vires of any provision of that Act. No informed and objective observer could reasonably take the view that there was a lack of impartiality. We accordingly rejected the suggestion and refused the devolution minute which sought to advance it. We refused leave to appeal.


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