APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Brailsford Lord Osborne	[2012] HCJAC 31 XJ479/11 OPINION OF THE COURT (No. 2) delivered by LORD EASSIE in APPEAL UNDER SECTION 174 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by GRANT ALISTAIR CAMERON Appellant; against PROCURATOR FISCAL, LIVINGSTON Respondent: _____________

Appellant: Shead et Mackenzie; Adams Whyte, Livingston

Respondent: A Stewart QC AD: Crown Agent

Advocate General: E Creally QC; Solicitor to the Advocate General

14 February 2012

[1] Following the issuing of our opinion in this appeal on 8 February 2012 the Crown has invited us, in terms of section 102 of the Scotland Act 1998, to limit the retroactive effect of the decision which we announced in that earlier opinion to the effect that, in terms of section 29 of the Scotland Act 1998, section 58 of the Criminal Justice and Licensing (Scotland) Act 2010 is not law.

[2] The limitation suggested to us is that retroactive effect should be confined to, first, any case (in which bail has been granted) which has not yet proceeded to trial or in which the trial is still in progress and, secondly, any appeal which has been brought timeously but has not yet been concluded. In other words, retroactive effect would not extend to any case already concluded by a plea or finding of guilt and in which no appeal has been brought or, if an appeal has been brought, that appeal has been concluded.

[3] Such a limitation mirrors the limitation which would otherwise apply in any event as a matter of the common law principles expounded in particular by the Supreme Court of the United Kingdom in its decision in Cadder v H.M. Advocate [2010] UKSC 43, 2011 SC (UKSC) 13 and also in the decision of the Irish Supreme Court in A v Governor, Arbour Hill Prison [2006] IESC45; [2006] 4 IR88; [2006] 2 ILRM 481 to which particular reference was made by the Supreme Court in Cadder.

[4] However, in order to ensure legal certainty and clarity, the Advocate depute has invited us to give express effect to that principle in the terms of our interlocutor.

[5] The Advocate General, who has now appeared in these proceedings following the intimation made to him in terms of s.102 of the Scotland Act 1998, adopts a position of neutrality, or, perhaps better described, benevolent neutrality, towards the position of the Crown.

[6] In these circumstances we have come to the conclusion that in the interests of clarity and legal certainty we should limit the retroactive effect of our finding that section 58 of the 2010 Act is not law in the manner in which we have been invited to do so by the Crown.

[7] We shall accordingly allow the present appeal; declare in terms of section 29 of the Scotland Act 1998 that the provisions of section 58 of the Criminal Justice and Licensing (Scotland) Act 2010 are not law; in terms of section 102 of the Scotland Act 1998 limit the retroactive effect of that declaration to (i) any case (in which bail has been granted) which has not yet proceeded to trial or in which the trial is still in progress and (ii) any appeal which has been brought timeously but not yet concluded; and remit to the Justice of the Peace at Livingston to proceed as accords.

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