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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Robertson & Ors v. Procurator Fiscal Aberdeen & Anor [2005] ScotHC HCJAC_2 (18 January 2005) URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_2.html Cite as: [2005] ScotHC HCJAC_2, [2005] HCJAC 2 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Hamilton Lord Macfadyen Lady Cosgrove Lord Philip
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[2005HCJAC2] Appeal No: XJ724/03 XJ725/03 XJ1285/03
OPINION OF LORD HAMILTON in BILLS OF SUSPENSION by MARTIN ROBERTSON and SEAMUS O'DALAIGH Complainers; against PROCURATOR FISCAL, Aberdeen Respondent: and KEVIN RUDDY Complainer: against PROCURATOR FISCAL, Perth Respondent: _______ |
Appellant: Jackson, Q.C., Mitchell; Blacklock Thorley (Robertson): Davidson, Q.C., Shead;
Drummond Miller (O'Dalaigh and Ruddy)
Respondent: Bell, Q.C., A.D.; Crown Agent
18 January 2005
[35] I agree with your Lordships that these bills should be refused.
[36] It is, in my view, worth noting at the outset the procedural history, according to the relative court minutes, of each of these prosecutions prior to the disposals by temporary sheriffs which are now the subject of challenge. [37] In the proceedings against Robertson the case first called on 15 January 1999 when the accused pled not guilty to the single charge on the complaint against him. It was thereafter continued on a number of occasions. On 2 June 1999 a sheriff adjourned the diet for trial until 10 August, 28 July being assigned as an intermediate diet. On 28 July the accused confirmed his plea of not guilty and the diet was continued until the trial diet previously fixed. No challenge is presented to any of these procedural orders, some of which may well have been made by temporary sheriffs. When, in accordance with these procedural directions, the case called for trial on 10 August, a temporary sheriff was on the bench. Evidence was led and closed. The Court found the accused guilty as libelled and continued the diet for reports. Ultimately the same temporary sheriff on 30 September 1999 admonished and dismissed the accused. [38] In the proceedings against O'Dalaigh the case first called on 31 December 1998 when on the motion of the defence it was adjourned without plea until 20 January 1999 for the personal appearance of the accused. Thereafter he pled not guilty by letter and various procedural hearings took place. At an intermediate diet on 5 October 1999 the Court assigned 12 October as a continued intermediate diet. On the latter date a temporary sheriff was on the bench. The accused pled guilty as libelled and was on the same day fined and disqualified from driving by that sheriff. Again no challenge is presented to any of the procedural orders made prior to 12 October, some again of which may well have been made by temporary sheriffs. [39] In the proceedings against Ruddy the case first called (before a permanent sheriff) on 8 September 1999 when the accused pled guilty to both charges on the complaint against him. The diet was then adjourned to 29 September for the purpose of obtaining certain reports. It was on two later occasions further adjourned, on the second of them (on 6 October) being adjourned until 20 October to enable the accused to attend in person. On that later date a temporary sheriff was on the bench. He made a probation order in respect of one of the charges, admonished and dismissed the accused in respect of the other and disqualified him from driving. No challenge is presented to any of the steps, procedural or otherwise, taken prior to 20 October. At least one of these orders of adjournment (that of 29 September) appears to have been made by a temporary sheriff. [40] The complainers were right, in my view, not to seek to challenge any incidental orders of a procedural character made by temporary sheriffs. None of these orders involved, in any substantive sense, a determination of any criminal charge. Accordingly, no act of a prosecutor in so advancing the prosecution procedurally before temporary sheriffs was ultra vires by virtue of section 57(2) of the Scotland Act 1998. Nor, in my view, was there any infringement of any of the accuseds' Convention rights by the cases being called on the dates which had been assigned for them as trial or other diets. Had they been called on those days and then adjourned, no complaint could properly have been made (see the disposal ordered by this Court in Starrs v Ruxton 2000 JC 208, per the Lord Justice Clerk at page 231). It is therefore plain, in my view, that not every prosecutorial act before a temporary sheriff is ultra vires. Accordingly, it is of importance in the circumstances of the present cases to identify what were the acts of the prosecutor which were in the event ultra vires. The nature of these acts may assist in characterising the substantive judicial acts which are the subjects of challenge in these bills. [41] I agree with Lord Macfadyen that there are two sub-categories of the category of decisions susceptible to suspension on account of procedural defect and that these sub-categories are as he describes them. I also agree that there has been an inconsistent use of terminology. For my part, I prefer to reserve the term "nullity" (which imports an incapacity to have any legal effect) for the sub-category where the procedural defect is incapable of being overcome by the express or implied consent of the accused. Decisions within the other sub-category may properly, in my view, be described as "invalid". Adopting that terminology, I now consider the circumstances in which each of the judicial decisions in issue was made - with particular reference to what acts of the prosecutor were ultra vires by virtue of section 57(2). [42] In the case of Robertson, the first act of the prosecutor challengeable on that basis appears to me to have been the leading by the prosecutor, before a court constituted by a temporary sheriff, of evidence in support of the charge - no doubt followed by an invitation to that sheriff to convict the accused on the basis of that evidence. Some time after conviction Robertson was admonished and dismissed by the same temporary sheriff. It is, however, unnecessary to consider whether what happened on that occasion involved any act by the prosecutor incompatible with the accused's Convention rights since if, for any reason, the conviction was null or invalid, the disposal following conviction would fall to be treated in the same way. [43] On 12 October 1999 O'Dalaigh pled guilty as libelled before a temporary sheriff. In summary proceedings, in contrast to those on indictment, it is not customary for the prosecutor to make a formal motion for sentence. But, as appears from the report made by the temporary sheriff in relation to O'Dalaigh's appeal against sentence, the procurator fiscal or his depute was physically present at that diet and narrated to that sheriff the circumstances of the offence. From that it may be implied that the prosecutor was inviting the temporary sheriff to sentence the accused. It was that implied act of the prosecutor which was incompatible with the accused's Convention rights. [44] In the case of Ruddy, similar procedure to that in O'Dalaigh's case no doubt took place before the temporary sheriff on 20 October 1999. [45] These bills of suspension were remitted to a bench of five judges primarily because of uncertainty as to the possible effect of the decision of the Privy Council in R. v HM Advocate 2003 SC (PC) 21 on the availability in principle of acquiescence as a response to a challenge mounted against determinations made, in respect of conviction or of sentence, by temporary sheriffs. That decision was heavily relied on in the proceedings before us. It founded the contention that the approach adopted by this Court in Lochridge v Miller 2002 SCCR 628 could not stand. [46] It is important, in my view, to bear in mind what was the issue for decision in R. v HM Advocate. It was whether a plea in bar of trial on certain charges should be sustained. That plea was directed to two charges on the indictment, in respect of which charges the accused had been charged by the police many years earlier. The plea was founded on the contention that the acts of the Lord Advocate in bringing proceedings on indictment against the accused on charges which included these two charges, and in continuing with that prosecution, were to that extent incompatible with the accused's Convention right to a hearing on them within a reasonable time. The case was concerned, accordingly, with an issue raised before trial, not with the legal situation where prosecutions have proceeded to conviction and sentence without any question having been raised in the course of these proceedings of an infringement or prospective infringement of an accused's Convention rights. [47] In the case of Robertson, the leading of evidence by the prosecutor before a temporary sheriff, and the prosecutor's (assumed) invitation to convict on that evidence, being an act or acts beyond the prosecutor's powers, must, so it seems in light of the majority views in R. v HM Advocate, be regarded as ineffectual in law i.e. the temporary sheriff must be treated as having convicted the accused, who had maintained a plea of not guilty, in the absence of any evidence entitling him to convict (and of any invitation by the prosecutor to convict). Likewise, in each of the cases of O'Dalaigh and Ruddy, the prosecutor's implied motion for sentence made before the temporary sheriff, being beyond the prosecutor's powers, must be regarded as ineffectual in law i.e. the temporary sheriff must be treated as having sentenced these persons in the absence of a motion for sentence (express or implied) having been made by the prosecutor. However, it does not necessarily follow, in my view, that the same qualitative character falls to be attributed to the acts of the court as is to be attributed to the acts of the prosecutor. The prosecutor was disabled by statute from doing the acts which he purported to do. His purported acts may accordingly be described as legally ineffectual (or "null"). The Court was not so disabled. Its judicial acts were vitiated by the disability of the prosecutor. But it is the true character of that vice which requires to be determined for the purpose of deciding whether or not acquiescence is in principle available as a response to a challenge to these acts. [48] In seeking to determine whether the judicial acts were invalid (and thus open in principle to a plea of acquiescence) or null (and thus not so open), one finds little assistance from decided cases. However, the relationship between the prosecutor and the Court in matters of sentence was considered in Arthur, Petitioner 2003 SCCR 6. There in solemn proceedings the judge had proceeded to impose the mandatory sentence of life imprisonment on a person convicted of murder without first calling on the Advocate depute to address him or waiting for him to make a motion for sentence. An argument that the sentence pronounced in these circumstances was fundamentally incompetent and the situation so created irretrievable was rejected by the Court. It was held that the sentence "proceeded on an irregularity" (para. 16). The sentence was quashed and the case remitted to the trial judge to hear parties on that matter. While that case was concerned with the prosecutor being denied his right to move (or to decline to move) for sentence, rather than his impliedly moving for sentence when he had no power to do so, both situations involved the Court proceeding to sentence without the legally required preliminary of a motion for sentence (express or implied) having effectually been made by the prosecutor to it. The Appeal Court's characterisation of the trial judge's act was that it proceeded on an irregularity, i.e. it was invalid, not that it was a (fundamental) nullity. [49] In the case of Robertson, the prosecutor acted ultra vires in leading before a temporary sheriff evidence in proof of the charge and inviting that sheriff to convict on that evidence. That act, or those acts, must be regarded in law as ineffectual. But it is not unknown for a prosecutor to lead, and to rely crucially on, evidence which is, on appeal, held, on grounds of unfairness, to have been inadmissible at common law (and accordingly incompetent in law); these same acts of the prosecutor might, at least in some cases, also be ultra vires under section 57(2) - if their result was to deny to the accused his Convention right to a fair hearing. The result on a timeous appeal would be the same; the conviction would fall to be quashed on the ground of a miscarriage of justice. Such a conviction, if not timeously challenged, would be defensible in principle upon a plea of acquiescence, at least in so far as it proceeded on evidence which was incompetent at common law. It would be remarkable (and give rise potentially to uncertainty and confusion) if, in relation to the same evidence, a challenge to conviction were not open to that plea because that evidence had been adduced ultra vires by the prosecutor. While the legal origins of the incompetence are different, the effect (viz. the use of incompetent evidence) is the same. In each case, in my view, the resultant conviction is invalid, but is not a nullity. [50] Looking at the matter more broadly, it appears to me that the judicial acts challenged in the present bills are not, due regard being had to the circumstances in which they occurred, of the fundamentally flawed character which would justify them being placed within the sub-category of decisions which are null and so not amenable in any circumstances to a plea of acquiescence. The decided cases within that sub-category (involving, as they do, the absence of any offence, lack of jurisdiction and the like) appear to me to be of a much more radical character. On the contrary the decisions complained of were, in my view, invalid and so in appropriate circumstances capable of being acquiesced in. [51] I agree with Lord Macfadyen that acquiescence is not in all respects directly analogous to waiver, although there are some common features. These include a measure of knowledge and, in light of that knowledge, preparedness to accede to what might otherwise be challengeable. But that measure need not, in my view, be identical. Although the older cases do not involve any thorough analysis of the requirements of acquiescence, it is reasonably plain from them that a significant factor is the public interest consideration of finality of decisions, in particular those made in criminal proceedings. That factor, which has no part to play in relation to waiver, may result in the plea of acquiescence being available where the complainer may have had less information than would have been necessary to found a plea of waiver. Subject to these observations the decision and the reasoning in Lochridge v. Miller are, in my view, sound. [52] Mr. Davidson submitted in the alternative that, even if the whole proceedings were not a nullity, acquiescence was still not available when the disposal (conviction or sentence) had been made by a tribunal which did not satisfy the Article 6 guarantee. The right to an independent and impartial tribunal was so fundamental that a plea of acquiescence could not, it was submitted, be admitted to an infringement of it. However, for the reasons more fully given by your Lordships, I am satisfied - particularly against the recognition by the Privy Council that in appropriate circumstances the right to an independent and impartial tribunal may be waived - that acquiescence is in principle available in respect of determinations by temporary sheriffs. [53] For the reasons given by your Lordship in the chair I agree that, in each of the cases before us, the plea of acquiescence has been made out by the relative respondent.Robertson & Ors v. Procurator Fiscal Aberdeen & Anor [2005] ScotHC HCJAC_2 (18 January 2005)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Hamilton Lord Macfadyen Lady Cosgrove Lord Philip
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[2005HCJAC2] Appeal Nos: XJ724/03 XJ725/03 XJ1285/03 OPINION OF LORD MACFADYEN in BILLS OF SUSPENSION
by MARTIN ROBERTSON and SEAMUS O'DALAIGH Complainers; against PROCURATOR FISCAL, Aberdeen Respondent; and KEVIN RUDDY Complainer; against PROCURATOR FISCAL, Perth Respondent; _______ |
Complainers: Jackson, Q.C., Mitchell; Blacklock Thorley (Robertson): Davidson, Q.C., Shead; Drummond Miller (O'Dalaigh and Ruddy)
Respondent: Bell, Q.C., A.D.; Crown Agent
18 January 2005
[54] I agree with your Lordships that the plea of acquiescence is available to the respondents in answer to the contention advanced by the complainers that the convictions and sentences complained of, which were pronounced by temporary sheriffs, should be suspended on that account. I also agree that in the circumstances of these particular cases that plea has been made out. I therefore agree that the bills should be refused. [55] The starting point for consideration of these cases is that it has been held that (in the absence of any form of plea of personal bar) a conviction or sentence pronounced by a temporary sheriff is invalid (Starrs v Ruxton 2000 JC 208). It is, however, in my view worth examining why that is so, before turning to the main issue in these cases, namely whether it is possible for an accused person to acquiesce in such a conviction or sentence, to the effect of barring suspension. [56] In my view the correct analysis of the ground on which a determination of a criminal charge by a temporary sheriff is invalid is as follows."There are several situations which our law has long regarded as involving fundamental nullity of proceedings even if the accused has concurred or acquiesced."
The particular defect in question in that case was, however, found to be capable of being waived. That seems to me to make it clear that there are some situations in which the law will regard a defect as so serious that it cannot be waived or acquiesced in, and other situations in which the law is prepared to regard concurrence or acquiescence as curing the defect, in the sense of barring the challenge that might otherwise have been made to the validity of the decision. Support for the distinction may also in my view be found in Shields v Donnelly 1999 SCCR 890, per Lord Justice General Rodger at 894. Examples of cases in which an accused person has been held to be barred from seeking suspension by acquiescence may be found in the older cases cited by your Lordship in the chair, and more recently in Love v Wilson 1993 SLT 948, Storie v Friel 1993 SCCR 955, Cassidy v Friel 1995 SLT 391 and Lochridge v Miller 2002 SCCR 628. That there are cases where the defect is regarded as justifying suspension notwithstanding acquiescence on the part of the accused is supported by Hull v H. M. Advocate 1945 JC 83 per Lord Justice Clerk Cooper at 86. Other examples, cited by Lord Justice General Emslie in H. M. Advocate v McDonald, are Aitkenhead v Cuthbert 1962 JC 12 and Law and Nicol v H. M. Advocate1973 SLT (Notes) 14.
[64] It would be convenient if the expression "fundamental nullity" could be used to denote those cases in which the defect is seen as so serious as to preclude acquiescence as a defence to suspension. Unfortunately, that phrase has not consistently been used in that sense. For example, in Shields v Donnelly, Lord Justice General Rodger (at 894) described the proceedings as "tainted by a fundamental nullity", yet went on to indicate that it should not be assumed that the court would take the same attitude where an accused person had acquiesced in a conviction or penalty. In these circumstances, I regard it as safer to avoid the use of the label "fundamental nullity" in discussing whether a particular procedural defect leads to suspension even where there have been circumstances from which the accused's acceptance of the conviction or sentence, despite the procedural defect, may be inferred. In any event, even where the phrase is used to denote a defect which cannot be cured by acquiescence, it does nothing to identify the criteria to be applied in consigning a particular defect to that category. [65] It is important, in my view, to recognise that in both of the sub-categories which I have identified, the decision is invalid or null. What distinguishes the two sub-categories is whether or not the invalidity or nullity may be overcome by acquiescence, that is by consent inferred from inaction on the part of the potential challenger of the validity of the decision. It follows, in my opinion, from the existence of the distinction which I have drawn, that the answer to the question whether acquiescence is available or excluded in the present cases is not to be found simply by noting that the decisions of the temporary sheriffs were invalid or null. It is necessary to go on to ask the additional question: Is the defect one which the law should overlook if the person with the interest to challenge it does not challenge it, but instead, in knowledge of the defect, acts as if he accepts the invalid decision as valid; or on the other hand is the defect one which the law should regard as so serious that, however much the accused may appear from his actings to accept the invalid decision, it must be set aside? Moreover, on that analysis, the observations in R v H. M. Advocate to the effect that prosecution before a temporary sheriff is a nullity do not strengthen the case for excluding the plea of acquiescence. [66] There are, in my opinion, no unequivocal criteria by which to recognise a nullity that cannot be overcome by implied consent. I do not consider that any common thread can be seen as running through the cases. It is, it seems to me, a matter of the policy of the law in each case whether the defect should be regarded as of such a nature or of such gravity as to be incapable of being overlooked, even if the accused may be taken to have consented to its being overlooked. If that is the right approach, there are, it seems to me, two main considerations that affect the outcome in the present case. The first is the policy that underlies the general rule that suspension must be brought within a reasonable time (Trotter, Summary Criminal Jurisdiction, 66). It is an important consideration that there should be certainty in the finality of criminal convictions and sentences. To exclude the possibility of acquiescence in a particular case requires reasons which are sufficient to overcome and outweigh that long established policy of the law. The second is that it is, in my opinion, legitimate at this point of the analysis to revert to the fact that Convention jurisprudence has been held to permit waiver of an Article 6 right. While the mechanism by which waiver results in a decision of a temporary sheriff being allowed to stand is different from that by which such a decision may be allowed to stand because of acquiescence, and the availability of waiver therefore does not directly support the availability of acquiescence, it seems to me that it would be odd if it were acceptable for an accused person to give up his objection to having his case determined by a temporary sheriff, provided he did so in advance of the decision, but impossible for him to do so if the ground for regarding the decision as invalid came to his attention only after it had been made. If waiver can be effective in this context, as is settled in Millar v Dickson, I do not understand on what basis it can be said that there is any compelling policy reason for precluding the equivalent plea of acquiescence, where knowledge of the defect is only acquired after the decision has been made. [67] I do not consider that the importance of the right to have a criminal case determined by an independent and impartial tribunal is undervalued by accepting that the defect can be over-ridden by the consent of the accused evinced ex post facto. The importance of the right is, in my view, adequately recognised by testing rigorously whether the accused had all the necessary knowledge, and whether acquiescence is in all the circumstances the proper inference. [68] For these reasons, I agree that we should hold that the plea of acquiescence is available to the Crown as an answer to the contention that the convictions and sentences in the present cases must be set aside because of the temporary sheriffs' lack of objective independence or impartiality. [69] I also agree that in the circumstances of each of the particular cases before us the plea of acquiescence should be held to have been made out. There is nothing that I wish to add on that aspect of the case. In the result therefore I agree that the bills should be refused.Robertson & Ors v. Procurator Fiscal Aberdeen & Anor [2005] ScotHC HCJAC_2 (18 January 2005)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Hamilton Lord Macfadyen Lady Cosgrove Lord Philip
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[2005HCJAC2] Appeal Nos: XJ724/03 XJ725/03 XJ1285/03 OPINION OF LADY COSGROVE in BILLS OF SUSPENSION
by MARTIN ROBERTSON and SEAMUS O'DALAIGH Complainers; against PROCURATOR FISCAL, Aberdeen Respondent; and KEVIN RUDDY Complainer; against PROCURATOR FISCAL, Perth Respondent; _______ |
Appellant: Jackson, Q.C., Mitchell; Blacklock Thorley (Robertson): Davidson, Q.C., Shead; Drummond Miller (O'Dalaigh and Ruddy)
Respondent: Bell, Q.C., A.D.; Crown Agent
18 January 2005
[70] I have had the advantage of reading the Opinions of your Lordship in the Chair and Lord Macfadyen and am in full agreement that the plea of acquiescence is available to the respondents and that, in the circumstances of these particular cases, that plea has been made out. [71] This court held in Lochridge v. Miller 2002 S.C.C.R. 628 that the principle of acquiescence was not, in appropriate circumstances, incompatible with the right of an accused under Article 6(1) of the European Convention on Human Rights to a hearing before an independent and impartial tribunal. These cases were referred to a court of five judges to consider the complainers' submission that that case was wrongly decided in the light of the observations in R. v. H.M. Advocate 2003 SC (PC) 21. [72] The view expressed in the majority of the speeches in Millar v. Dickson 2002 S.C. (P.C.) 33 is that, in appropriate circumstances, an accused person may waive his Convention right to trial by an independent and impartial tribunal (Lord Bingham of Cornhill at paragraph 27 and Lord Hope of Craighead at paragraph 53). I agree with your Lordships' analysis of the basis upon which the plea of waiver operates in such circumstances: once the right to an independent and impartial tribunal has been waived by an accused in the full knowledge of the existence of that right, the prosecutor's act in continuing with the prosecution before the temporary sheriff is not incompatible with it and is therefore no longer one for which he has no power under section 57(2) of the Scotland Act 1998. [73] I agree with Lord Macfadyen that acquiescence being based on an implied acceptance of a temporary sheriff's decision after it has been made, as distinct from the giving up of a Convention right before any act which is incompatible with it, is not directly analogous with waiver in its operation and that the availability of the plea of waiver therefore does not directly support the availability of the plea of acquiescence. I also agree that previous decisions of this court do not demonstrate any clear criteria for distinguishing cases in which the procedural defect is so serious that it cannot be overlooked; and that the answer to the question whether acquiescence is available or excluded depends upon how the law chooses to categorise the judicial determination which is flawed as a result of the defect. [74] The issue for determination by the Privy Council in R. v. H.M. Advocate was whether the prosecutor could continue with a prosecution where there had been such a delay as to give rise to a breach of the reasonable time requirement of Article 6 of the Convention. The Privy Council described the 'act' of the prosecutor in such circumstances as "invalid, a nullity" (Lord Rodger of Earlsferry at paragraph 128) and "necessarily void and of no effect" (Lord Clyde at paragraph 86). Since the context of these observations was the consideration of a plea in bar of trial which was sustained, the issue of the effect of the prosecutor's lack of power to proceed with the prosecution on the determination by the court was not addressed by the Privy Council. [75] In Millar v. Dickson Lord Hope of Craighead, in the passage at paragraph 67, to which your Lordship in the Chair has referred, emphasised that the prosecutors' lack of power under section 57(2) made it "unlawful" for them to conduct proceedings before temporary sheriffs. So far as the temporary sheriffs themselves were concerned, it was their lack of independence and impartiality (as established in Starrs v. Ruxton 2000 JC 208) which was the defect sufficient to "disqualify" them from taking any part in the determination of the criminal charges. [76] It is, of course, plain that, in the case of a purported prosecution before a temporary sheriff, the lack of power on the part of the prosecutor flows from and is linked with the lack of independence and impartiality of the court. At first sight, therefore, it may seem somewhat artificial and unsatisfactory to view the defective determination by the temporary sheriff of a prosecution at the instance of the prosecutor who had no power to act in a different light from the act of the prosecutor whose participation was essential to the proceedings; to distinguish the former as in any way less vitiated and less drastic in its consequences may appear inconsistent. But the rule is that one must compare like with like, and as Lord Hope observed in R. v. H.M. Advocate (at paragraph 66), the comparison between the breach of a Convention right and the breach of section 57(2) of the Scotland Act 1998 cannot be made. In this connection, he described the declaration in section 57(2) that the prosecutor has 'no power' to do any act which is incompatible with any of the Convention rights as a "unique provision not found elsewhere in the Commonwealth". The temporary sheriffs were, of course, not subject to any such statutory disability. The drawing of a distinction between the act of the prosecutor and that of the temporary sheriff is foreshadowed in the passage in Lord Hope's speech in Millar v. Dickson to which reference has been made. And it is the distinction between the unlawfulness of an act which is in breach of an accused's Convention right and the nullity that arises from a breach of section 57(2) that is the very essence of the approach of the Privy Council to the issue to be determined in R. v. H.M. Advocate. [77] It follows, in my view, that the nature and effect of the determination by the temporary sheriff, either by way of conviction or sentence, of a purported prosecution can properly be distinguished from that of the act of the prosecutor. I consider further that the defective determination by the temporary sheriff should be categorised as an invalid act of a character that is capable of being overlooked and acquiesced in rather than one which is null and necessarily void and of no effect and which cannot be so cured. I observe in this connection that the consequences of a breach of a Convention right and the matter of remedy are primarily matters for determination by the domestic law (R v. H.M. Advocate, Lord Clyde at paragraph 99). [78] If there were to be any doubt as to the categorisation of the sheriffs' actings as an invalidity capable of being cured, I consider that the important well-established public policy considerations of certainty in the law and finality in criminal proceedings should weigh heavily in favour of the availability of acquiescence in these cases. It is to be noted in this connection that there are no grounds for saying the judgement of the temporary sheriffs was affected, or that their verdicts of guilty were unsafe or the sentences imposed were excessive. [79] I consider that the court correctly held in Lochridge v. Miller that acquiescence is not incompatible with an accused's Convention right to an independent and impartial tribunal and I would refuse to pass the bills of suspension.Robertson & Ors v. Procurator Fiscal Aberdeen & Anor [2005] ScotHC HCJAC_2 (18 January 2005)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Hamilton Lord Macfadyen Lady Cosgrove Lord Philip
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[2005HCJAC2] Appeal Nos: XJ724/03 XJ725/03 XJ1285/03 OPINION OF LORD PHILIP in BILLS OF SUSPENSION
by MARTIN ROBERTSON and SEAMUS O'DALAIGH Complainers; against PROCURATOR FISCAL, Aberdeen Respondent; and KEVIN RUDDY Complainer; against PROCURATOR FISCAL, Perth Respondent; _______ |
Appellant: Jackson, Q.C., Mitchell; Blacklock Thorley (Robertson): Davidson, Q.C., Shead; Drummond Miller (O'Dalaigh and Ruddy)
Respondent: Bell, Q.C., A.D.; Crown Agent
18 January 2005
[80] I agree that the bills should be refused for the reasons set out by your Lordships and your Ladyship.
