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ANNEX 10: OPINION OF SHERIFF STODDART INHM ADVOCATE v JM
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
NOTE
by
CHARLES NORMAN STODDART, Sheriff of Lothian and Borders at Edinburgh
in causa
HER MAJESTY'S ADVOCATE
against
[J M]
ACCUSED
For the Crown: Mrs G More, Procurator fiscal Depute
For the Accused: Mr S Ronnie, Advocate, instructed by Gilfedder & McInnes, Solicitors, Edinburgh
EDINBURGH, 22 October 2004
In this case the Accused was originally indicted with two charges in the following terms:-
"(1) On 25 December 2003 at [address], Edinburgh, you [JM] did assault [X], c/o Lothian and Borders Police, Edinburgh and did seize her by her hair, drag her between rooms within said house, attempt to force her to take your private member in her mouth and pull down her trousers and this you did with intent to rape her; and
(2) On 25 December 2003 at [address as above], Edinburgh, you [JM] did steal £180 in cash."
The Accused denied these charges at the First Diet, but when the case called for trial before me on 5 August 2004 he pleaded guilty to Charge (1) under deletion of the words "attempt to force her to take your private member in her mouth and pull down her trousers and this you did with intent to rape her"; in respect of Charge 2, the Accused maintained his plea of not guilty.
These pleas were accepted by the Crown. The Procurator fiscal Depute thereupon moved for sentence and laid before me a Schedule of Previous Convictions relating to the Accused, to which no prior exception had been taken. In terms of section 14(5) of the Criminal Justice (Scotland) Act 2003 ("the 2003 Act") the Depute also laid before me a victim statement completed by [X], the complainer in Charge 1.
Having heard the Crown narrate the circumstances of the offence and the procedural history of the case, I decided to call for Social Enquiry and Community Service Reports. I refrained from reading the victim statement, having been told by Mr Ronnie for the Accused that he had not yet read it himself and might want to make submissions about it; and I was content that any plea in mitigation should only be made when this had been done. I continued the case on bail.
When the case came back before me on 30 August 2004 I learned that a Devolution Issue Minute had been lodged on behalf of the Accused, with intimation to the Crown and to the Advocate General. In order for the matter to be properly argued I therefore deferred sentence for consideration of the Minute until 11 October 2004, when I heard full submissions from Mr Ronnie and Mrs More for the Crown. There was no appearance by or on behalf of the Advocate General. Once more, I refrained from reading the victim statement and, to date, I am still unaware of its terms.
The salient points to be taken from the Minute are to be found in paragraphs 2(h) and (i) thereof. These state:
"2(h) The provision of a victim statement in terms of section 14 of the Criminal Justice (Scotland) Act 2003 is incompatible with the rights of the Minuter under Article 6 of ECHR. It is disproportionate to the rights of the Minuter under Article 6(1).
2(i) The charge as it now stands is much reduced, with the removal of the sexual aggravations. The victim statement relates to the full charge (and more). It is submitted that it goes beyond the information sanctioned by section 14. It is submitted that the provision to the Court of material prejudicial to the Minuter does not allow the charge to be determined by an impartial tribunal. The provision of the victim statement is an act of the Lord Advocate as represented by the Procurator fiscal."
In argument before me, it was accepted that the earliest point at which a Minute raising these matters could have been lodged was when the Crown moved for sentence. Accordingly, there was "cause shown" in terms of rule 40.5 of the Act of Adjournal (Criminal Procedure Rules) 1996 (" the 1996 Rules") for the lodging of the Minute before sentence was passed. No technical point therefore arose.
For the accused, Mr Ronnie submitted that section 14 of the 2003 Act was incompatible with the right of the accused under Article 6(1) of ECHR to a determination of the charge against him by "... an impartial tribunal established by law." By virtue of section 29(1) and (2) of the Scotland Act 1998 ("the 1998 Act") section 14 was not law, being outwith the legislative competence of the Scottish Parliament and thus a devolution issue arose under Schedule 6 para. (1)(a) of that Act. But such an issue also arose under para. 1(d) of Schedule 6 in relation to the act of the Crown under section 14(5) of the 2003 Act in laying before the court the victim statement when moving for sentence, since section 57(2) of the 1998 Act provided that a member of the Scottish Executive (in this case the Lord Advocate through his representative) had no power to do any act incompatible with any Convention rights.
Dealing first with procedural matters, Mr Ronnie recognised that the sheriff has no power to make a declaration of incompatibility; by virtue of section 4 of the Human Rights Act 1998 that power (in criminal proceedings) was reserved to the High Court of Justiciary sitting otherwise than as a trial court (section 4(5). He also recognised that any declaration of incompatibility would not affect the validity, continuing operation or enforcement of section 14 of the 2003 Act, nor would it be binding on the parties to the present case (section 4(6)). But his challenge was directed to the vires of section 14 of the 2003 Act; and he suggested that in order for the devolution issue based on incompatibility to be determined, it would be necessary for me to refer it to the High Court by virtue of para 9 of Schedule 6 to the 1998 Act, using the procedures for such a reference set out in rules 40.7 and 40.8 of the Act of Adjournal (Criminal Procedure Rules) 1996. Those rules would also allow for procedural dispositions to be made in respect of deferring sentence on the present indictment pending resolution of the devolution issue.
The basis upon which Mr Ronnie submitted that his client's rights under Article 6(1) of the Convention were in jeopardy related to the alleged impartiality of the tribunal which was due to pass sentence. This was in issue because of the terms of the victim statement, which went much further than the reduced charge to which the accused had pleaded guilty. What the Crown had put before the court was a totally unfiltered document, about which a reasonable apprehension arose that the court could not put out of its mind, in passing sentence, the extraneous matter contained in the statement. While Mr Ronnie recognised that some of the statement was directly relevant, he submitted that so much of it was of no relevance that any "filtering" which the court might carry out would not remove the legitimate fears which, from an objective standpoint, would arise as to the impartiality of the court. Mr Ronnie stressed that there was no suggestion of actual bias or prejudice; he relied on the statements in Reed & Murdoch, A Guide to Human Rights Law in Scotland at para 5.42 in respect of objective impartiality, an assessment of which had to be undertaken in the light of the public's increased sensitivity to the importance of fair and transparent administration of justice. As it had been put in Findlay -v- UK (1997) 24 EHRR 221, "the tribunal must be impartial from an objective standpoint; that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect": para 73, quoting from Pullar -v- UK (1996) 22 EHRR 391 at para. 30; see also Incal -v- Turkey 1998-IV, 1547 para. 71.
Mr Ronnie submitted further that the legislative history of section 14 of the 2003 revealed misgivings about its compatibility with Article 6. At Stage 1 of what was then the Criminal Justice (Scotland) Bill, the Justice 2 Committee of the Scottish Parliament had expressed its concern: see the Official Report, 5 June 2002, columns 1468 et seq. Accordingly, Mr Ronnie suggested that the only way for these points to be resolved was for me to refer the devolution issue(s) to the High Court using the statutory procedure and to defer sentence further, if necessary from time to time, until the matter was resolved.
For the Crown, these submissions were strongly resisted. On the concerns about objective impartiality, Mrs More suggested that these were completely unfounded. In many cases, courts required to ignore irrelevant or extraneous matters which had been put before them; this was part of the judicial function. This was what happened when previous convictions were inadvertently disclosed prior to conviction: see Carmichael -v- Monaghan 1986 SCCR 598; Kerr -v- Jessop 1991 SCCR 27; Penman -v- Stott 2001 SCCR 911. But in any event, section 14(5) of the 2003 Act was determinative of the matter. It provides:
"(5) A prosecutor must:
(a) in solemn proceedings, when moving for sentence as respects an offence…..
lay before the court any victim statement which relates (whether in whole or in part) to the offence in question, and the court must in determining sentence have regard to so much of
(i) that statement…….
as it considers to be relevant to that offence"
That subsection clearly envisaged that the court would carry out its normal function of disregarding irrelevant matter. Nothing done by the Crown at its own hand had or would deny the accused a fair hearing; the Crown had no power to filter or redact the contents of a victim statement. It should not be assumed, even from an objective standpoint, that the court would misdirect itself on the effect of the statement any more than it should be assumed that in a jury trial the jury would not apply the court's directions in law: see Boyd -v- HM Advocate 2000 SCCR 962 at 966; Pullar op cit). There was no objective justification for any fears as to the Court's impartiality. Mrs More invited me to hold that no devolution issue arose, to refuse to refer the matter to the High Court and to proceed forthwith to sentence the accused.
In a brief word of reply, Mr Ronnie founded strongly on a passage in Penman -v- Stott 2001 SCCR 911 at 914D where it was observed that whether a sheriff could properly disregard evidence which should not be before him must depend on the nature of the evidence. In the present case there was so much extraneous matter in the victim statement that there was a basis for his argument about objective impartiality. While section 15(2) of the 2003 Act seemed to suggest that a proof in mitigation might be appropriate in cases where the accused did not accept some element of a victim statement, the situation here was that the statement contained irrelevant matter.
I have no doubt that no devolution issue arises in respect of the "act" of the Crown in putting the victim statement before the court. The Crown is obliged by section 14(5) to do so when moving for sentence; it has no power to refrain from doing so, far less any power to filter or redact what the victim states. It is the obligation of the court (and not the Crown) to consider the terms of the statement and, in terms of section 14(5) to determine the relevance of what it says to the offence under consideration. This is not a case in which the Crown have done anything which contravenes the Convention rights of the accused; it is within the province of the Crown to move for sentence if it wishes to do so; and if it chooses to do so it must lay before the court any victim statement which relates in whole or in part to the offence in question. The Crown's obligation stops there; the relevance of that statement and the use to which it is put is a matter for the court. On that simple ground any ECHR challenge to the "act" of the Crown in this case is misconceived.
But the question remains whether section 14 of the 2003 Act is incompatible with article 6(1) of ECHR. The accused is clearly a "victim" within the meaning of section 100 of the Human Rights Act 1998. At this point I require to determine whether I am obliged to refer the compatibility issue to the High Court as suggested by Mr Ronnie, or first to try and decide by myself whether or not section 14 is ultra vires of the Scottish Parliament and is "not law" (see s.29 of the 1998 Act). I should make it clear that in my view no question arises directly under the Human Rights Act 1998; whether section 14 is or is not "law" has to be determined according to procedures under the Scotland Act. To that extent, any suggestion that if I were to refer this matter to the High Court that court could make any declaration of incompatibility under s. 4 of the Human Rights Act 1998 is misconceived, at least in the context of the present Minute. An Act of the Scottish Parliament is not "primary legislation" such as would warrant such a course of action. Paragraph 9 of Schedule 6 to the 1998 Act does not require that a devolution issue should be referred to a higher court, although at first blush it might be thought that such a reference is mandatory where the compatibility or otherwise with ECHR of a piece of legislation by the Scottish Parliament is raised.
However, that would be to ignore section 101 of the 1998 Act. This provides:
"(1) This section applies to:
(a) any provision of an Act of the Scottish Parliament ... which could be read in such a way as to be outside competence.
(2) Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly.
(3) In this section "competence"
(a) in relation to an Act of the Scottish Parliament ... means the legislative competence of the Parliament".
Before proceeding further, I should record that no reference to section 101 was made by either party before me. But as was observed by Lord Hope of Craighead in A -v- The Scottish Ministers 2002 SLT 1331 at 1334K, the aim of this provision is to enable the court to give effect to legislation which the Scottish Parliament has enacted wherever possible rather than strike it down. I deem it my duty to attempt to interpret section 14 of the 2003 in a way which is Convention-compliant, before holding that a devolution issue arises under paragraph 1(a) of Schedule 6 to the 1998 Act.
I am clearly of the view that section 14(5) of the 2003 Act (which is really the only part of section 14 which is challenged) can be read in a manner which renders it within the legislative competence of the Scottish Parliament. I do not even think it requires a particularly narrow construction. The subsection simply requires the sentencing court to make a judgement (1) as to the relevance of the statement to the offence to which the accused has pleaded guilty; and (2) in the event that statement is in any way relevant, to have regard to whatever matter(s) in it that the court deems relevant. Such judgments are a commonplace. In the event that such a judgement, once made, is deemed to be flawed, it can be corrected on appeal. Further, the subsection points up the need for the sentencer to be vigilant; it directs that person to have regard only to relevant matters. That person is enjoined directly by law not to make a decision based on extraneous or irrelevant matter in a victim statement. While it is true that the final phrase of subsection (5) is expresses subjectively, it cannot be supposed (and especially not ab ante) that any sentencer would disregard its terms. Quite apart from anything else the judicial oath is a powerful guarantee sufficient to exclude any legitimate doubt as to impartiality, especially when taken by a permanent member of an independent judiciary.
Accordingly, in my view no devolution issue arises in respect of section 14(5), since that provision can be read as being within legislative competence. I shall therefore dismiss the Minute now. I propose thereafter to hear submissions on the victim statement (which I have still to read), hear Mr Ronnie on all other matters relevant to the disposal of this case and sentence the accused accordingly. In determining sentence in a case such as this in which a victim statement is lodged, I think it is part of the judicial function to hear submissions on the relevance or otherwise of the statement and then, when passing sentence, to indicate at the very least the "regard" which the sentencer is paying to the relevant parts (see section 14(5)). I propose to do that in this case.
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