|
HIGH COURT OF JUSTICIARY
[2007] HCJ10
|
|
|
OPINION OF LORD McEWAN
in the cause
HER MAJESTY'S
ADVOCATE
against
L C
ญญญญญญญญญญญญญญญญญ________________
|
26 September
2007
[1] This
is a continued Preliminary Hearing and the matters argued before me relate to
four separate Minutes raising Devolution Issues. By consent, a separate Minute raising issues
relating to evidence was not argued. The
Minuter faces a charge of culpable homicide which narrates inter alia that
".... on (date) at
(address) she did supply a syringe and a controlled drug, namely (heroin) ... to
(K.B.) then residing at ... knowing or believing that he would inject said drug
to the danger of his life and subsequently K.B. did inject a quantity of
(heroin) ... into his body and lapsed into unconsciousness and she did not seek
prompt medical attention for him and he subsequently died and she did kill him
....".
The Minutes rely on certain
Articles in the European Convention on Human Rights ("The Convention"). I do not need to narrate the detail of the
Minutes at length. They can be
summarised thus.
[2] The
first Minute alleges that the charge of culpable homicide per se is a breach of Article 7.1. The second complains that a charge of
"failing to seek prompt medical attention" is not a crime. The third complains that the same words
amount to a breach of Article 7.1.
The fourth Minute alleges (as is not disputed) that the Lord Advocate
has granted immunity to certain medical people who distribute needles to drug
addicts. They will not be
prosecuted. The Minute says that to
prosecute in this case is discriminatory and a breach of Article 14 and
Article 6. I was referred to a
number of authorities to which I will return and to three documents viz the Lord Advocate's Guidance (2002),
Needle Exchange Provision in Scotland: a
Report (2006) and Evaluation of the Lord Advocate's Guidance .... (2005). Article 14 provides inter alia:-
"14....The
enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status".
Article 7 provides inter alia:
".... 1. No one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a criminal
offence... at the time when it was committed.....".
Article 6 provides inter alia:
"In the
determination... of any criminal charge against him, everyone is entitled to a
fair.... hearing.....".
[3] What
Mr Gebbie said to me was this.
There was no such crime as attempted culpable homicide. Nobody could be convicted on an actus reus when you
do not know what you are doing and when death was not in contemplation when the
"supply" was made. He referred me to
passages in Lord Advocates's Reference
1994 (No. 1) 1996 J.C. 76 and to the charge of the trial judge in Lourie v HM Advocate 1988 SCCR 634.
Since supply was the act or omission, and as there could be no attempt
at culpable homicide, the death made the crime retrospective. There was no need for intention. There was thus a breach of Article 7.
[4] The
second Minute produced a brief argument.
Mr Gebbie said that it was not a crime to "fail to come to the aid
of another". This was creating a crime
out of nothing and the Lord Advocate was usurping the function of the Scottish
Ministers.
[5] The
third Minute raised the same point as the second except that it disclosed a
Convention breach. What was indicted was
a breach of the rule of "nilla poena sine
lege". This was a retrospective
attempt to make such conduct criminal.
The trial judge ought to direct the jury to ignore these words. He referred me to Kokkinakis v Greece (1994) 17 EHRR 397.
[6] The
fourth Minute raised a more general point under the Convention Articles 6 and
14. Under reference to his three
productions, which I have mentioned, he argued that to prosecute his client was
a discriminatory act when others were expressly granted immunity from
prosecution. He referred to Willis v UK 11 September 2002
(unreported). He referred me to the
guidance and looking at the Evaluation document (pages 3, 4, 7, and 23)
concluded that few people were properly trained and there was no standard
protocol. In the Report document,
Mr Gebbie referred to many passages between pages 3 and 72. From these he concluded that there was no
standard training. The risks of using
needles was well known yet a budget was given to provide the means to take the
risks. The Government allowed and
encouraged "legal" distribution of needles yet the training of those involved
was poor and uneven with a wide variation in practice, also involving supply of
other items eg, swabs and steristrips.
Why should this accused be prosecuted for doing what the Government
wanted all addicts ("service users") to have.
[7] In
his reply the Advocate Depute asked me to refuse to uphold the terms of the
Minutes. He began with the first Minute
arguing that the only purpose of Article 7 was to prevent retrospective
criminality. The law had to be certain
so that people could know. It was
incorrect to say that the crime was retrospective just because death was
subsequent. If that was right it would
apply to every death. Since there could
be no "attempted" culpable homicide the completed crime was said to fall foul
of the Article. One consequence of that
would be that there could never be a verdict of culpable homicide in a murder
trial. The law determined intent, the
jury "wicked recklessness". However, the
proper question was this. In March 2006
was the law clearly defined that the supply of a drug to another person could
be culpable homicide. The answer to that
was yes. The Lord Advocate's Reference (1994) No 1 was the clearest
authority. Here the Court had no
dimension to the facts. No evidence had
been heard. There had been no reference
to any European jurisprudence about culpable homicide or its equivalent. Kokkinakis
was only about whether the law was
clear about what you could do. The Greek
law applying to that case had been clear for 50 years and the public would
know. It was the same with the relevant
Scots law. Judicial decisions could
change the law. Counsel referred me to SW v UK
(1996) 21 EHRR 363 (a unanimous decision).
In the Lord Advocate's Reference
the question was deliberately framed so that everyone could know. Counsel mentioned Paxton v HM Advocate 2000
JC. The actus reus
was "the supply". The conduct was
culpable and reckless.
[8] The
second Minute raised the issue of "prompt medical attention" and was it a
crime? This was only part of a large
indictment. The purpose was to give fair
notice of what evidence would be led. It
is necessary narration. Counsel stressed
that there was no attack on relevancy as in Bone
v HM Advocate 2005 SCCR 829.
[9] The
Answer to what was put in issue in the third Minute was that the words were
only part of the narrative and not a substantive new offence.
[10] The depute then moved to the fourth Minute. It was not clear how Article 6 was involved
but, assuming it was there was no discrimination. The word "... status..." had to show some
personal quality. Could it be said that
the Lord Advocate's policy made the clinical nurses a special group. It was important to have regard to the social
policy. The aim was to reduce harm by
needle schemes. The World Health
Authority (W.H.O.) had found such schemes reduced harm. The aim was legitimate and did not have to be
100% successful.
[11] I was referred to R
(Carson) v Secretary of State
[2006] 1 AC 173 in some detail for categories and comparators. It was not clear here what were the
comparators. Was it medical
qualifications, or training or immunity.
Here it was a narrow class of people selected for a reason. They had to be "participating medical" people. A broad axe should be used to decide the
question. Here it was also critical that
not just a needle was supplied but also heroin.
Counsel referred me to Petrovic
v Austria
(2001) 33 EHRR 14.
[12] If there was difference in treatment one had to look at the aim
and proportionality. The W.H.O. needle
exchange system improved health. The
fact that the system was imperfect and had problems did not mean there was no
legitimate aim. There was a positive
encouragement and commitment to improving.
The Court should allow a wide margin of appreciation as it is a
difficult social policy to enforce.
Proportionality was met by the guidelines being restricted.
[13] In a brief reply Mr Gebbie made the following points. He said the law only told you afterwards you
had committed a crime not when you were attempting it. Jury direction on medical attention would be
difficult. If it was just narrative it
could not be a crime. Articles 6 and 14
were unqualified. There was difference
of treatment. Carson was not
in point.
[14] Let me now indicate my decision in the matters argued. The
first three Minutes can conveniently be grouped together. In my view the consequences of
Mr Gebbie's argument would be that I would have to say there was no such
crime as culpable homicide. Simply to
say that reveals the flaw in the argument.
Since the earliest Institutional writers down to the present substantive
law and practice the crime exists. It is
true that there may be no such offence as "attempted" culpable homicide or at
least it is never so indicted. That is
nothing to the point. The facts which,
if proved and result in death, may amount to culpable homicide vary enormously. They can be very violent or not. The present allegation is not a matter of
violence.
[15] Here there can be no question of any retrospective
criminality. In the Lord Advocate's Reference 1994 (No 1) the question which the Court
answered, precisely covered what is alleged against the Petitioner. The law is clear and where that it so there
can be no convention breach. Kokkinakis is authority for that proposition.
On the facts of that case the law in Greece
had been clear for years.
Paragraph 50 also makes it clear that judicial interpretation can
also be of importance for statements as to what the law is or how it has
changed. S W v The United Kingdom
is a good example of that latter point.
For these reasons the first Minute has to be refused.
[16] The argument presented on the second and third Minute is an
example of the fallacy of "divide and conquer".
What was done was to isolate a few words and attempt to say that the
rest of the indictment can be ignored. I
reserve my view as to whether a failure to come to the aid of another could
never be criminal, but the point does not really arise. The Court cannot ignore the rest of the words
in the narrative of the indictment.
There are both words before it, and after it, ie "supply" then
"death". All of the words are a
necessary part of the narrative and give fair notice of what evidence will be
led. I do not think that this is any
attempt to create a separate and new crime or any breach of the Convention.
[17] That leaves the last Minute.
Mr Gebbie seemed to assume that Article 6 was engaged. It would have to be, because Article 14
cannot operate on its own. The matter
was not fully argued to me and the Crown, probably wisely, did not make an
issue of it. I am prepared to assume
that it applies but reserve my opinion on the point for the future. In the same way it was assumed that Article 14
applied even though it is not clear that the Petitioner can properly be
classified within the words "other status".
Only very loosely can there be said to be any comparators in this
case. Again I am prepared to assume she
is a comparator of the trained medical people referred to. I do think the comparison is very artificial
and the analogy weak. One of the
problems about making a decision on this indictment is that I have no evidence
to guide me as to what the Petitioner did, what, if anything she said at
interview, the time frame and what evidence would emerge from the "silent
witness" (the body). On the other hand the documents produced by the defence do
provide a lot of evidence about the W.H.O. scheme which is to be commended,
even though in its execution it is less than perfect, with wide variation as to
training. The circumstances of supply of needles is however, done in a
controlled setting. European and other
jurisdictions have defined two distinct status categories as expressed by Lord Hoffman
in Carson
at paragraphs 15 to 17. The present
case, I hold, falls clearly into the second category and if there is
discrimination it does not need to be tested with the anxious scrutiny which
would apply to a case in the first category eg. race, gender. Any discrimination here has only come about
as a matter of social policy.
[19] It has to be said at the outset that the case of the Petitioner
is relevantly different (Carson, para 26) from the participating
medical people. In no sense can it be
contended that her supply of a needle was in a controlled setting. More importantly the medical people are not
supplying heroin as she is alleged to have done. That is a sufficient answer to the point.
[20] The supply is a serious problem and any State having as a
legitimate aim a policy to deal with that, has to be allowed a wide margin of
appreciation against which to judge whether any difference in treatment amounts
to a proportionate response. The policy
in Scotland is
one of very restricted guidelines and in my view that clearly satisfies the
proportionality test. Petrovic at H17 and C35 makes this very
clear.
[21] In these circumstances the prayer of the fourth Minute will be
refused.
[22] The whole matter is continued to a further preliminary hearing
for disposal.
