Review of significant caselaw

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Criminal Law

Ross v Lord Advocate [2015] CSOH 123; 2015 S.L.T. 617; 2015 G.W.D. 30-503.
A disabled person (R) petitioned for judicial review of the Lord Advocate's failure to promulgate a policy identifying the facts and circumstances which he would take into account in deciding whether or not to prosecute a person who had assisted another to commit suicide, seeking declarator that such failure had rendered him in breach of ECHR art.8; and an order requiring him to do so. The Lord Advocate sought dismissal of R's petition on the basis that his averments were irrelevant and there was no proper foundation in law for the remedy sought. R averred that he suffered from multiple health problems, although his mental capacity was unimpaired, he was no longer able to live independently and anticipated that were his condition to deteriorate, he would wish to end his life, however, he was apprehensive that were he to require assistance, any such assistant would risk criminal prosecution. R averred that the Crown Office and Procurator Fiscal Service Prosecution Code was insufficiently clear and precise to enable a person who wished to enlist the assistance of another in committing suicide to foresee the consequences for that person in terms of liability to prosecution, which precluded either seeking or giving such assistance, thus representing an unjustified interference with the ECHR art.8 right to private life of the person wishing to commit suicide. R claimed that the factors set out in the code failed to satisfy the Convention requirements of foreseeability and accessibility, therefore, the interference with his rights under art.8(1) could not properly be described as being in accordance with the law as required by art.8(2).
Held: Petition dismissed. (1) The authorities made clear that the art.8(1) right to respect for private and family life encompassed respect for an individual's decision as to how and when to die, and in particular, to seek to avoid a distressing and undignified end to life, provided that the decision was made freely, thus art.8(1) was engaged in the present case. (2) The issue raised by the petition was the legality of the interference in terms of art.8(2) but it did not raise any issue as to the necessity of the existing law and practice in Scotland relating to homicide in cases of assisted suicide. (3) The court could review the legality of the Lord Advocate's policy but it was not its role to dictate the content thereof, and the certainty required of prosecutorial policy was of a lesser, more indicative, order than the certainty required of provisions which created or identified criminal offences. (4) The Lord Advocate's policy was accessible as the code and his statements in relation to cases of homicide which involved assisted suicide were published documents, there was no indication of divergence between the law and practice and no basis for concluding that the Lord Advocate's decision whether to prosecute would be likely to turn upon unpublished policy factors; the foreseeability requirement was met as the Lord Advocate had made his position clear to the public under reference to the code and his other public statements, there was no evidence of arbitrary or inconsistent behaviour on his part, and the policy was in accordance with the law, Sunday Times v United Kingdom (A/30) (1979-80) 2 E.H.R.R. 245 and R. (on the application of Purdy) v DPP [2009] UKHL 45, [2010] 1 A.C. 345, applied .
Criminal Procedure
Rondos (Michal) v HM Advocate [2014] HCJAC 119.

R sought leave to appeal to the Supreme Court against a decision of the Appeal Court refusing his appeal against conviction for inter alia carrying out a fraudulent scheme (Kupka v HM Advocate [2014] HCJAC 37, 2014 S.C.C.R. 383). Following his conviction in March 2013, R lodged his intention to appeal in May 2013 on the grounds that his ECHR art.6 rights had been breached by (i) the sheriff's failure to desert the trial pro loco et tempore due to prejudicial publicity, (ii) the sheriff's failure to uphold R's objections to the leading of evidence from R's co-accused (F), and (iii) the court's failure to provide a reasoned judgment. Following a hearing on February 20, 2014, R's appeal against conviction was refused. R submitted that his three grounds of appeal were presented as compatibility issues.

Held: Leave to appeal refused. (1) R's trial was completed before April 22, 2013, as at that date no intimation of intention to appeal had been lodged, the devolution issue had been finally determined by the sheriff and it was not a convertible devolution issue in terms of the Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 art.2(1)(c). (2) Esto the issue had not been determined, R was required to advance an argument relating to that compatibility issue when orally presenting his appeal, R had presented his appeal solely on the basis of domestic law, no reasoned decision by the appeal court on any convention argument had been given and in the circumstances, leave to appeal would not be granted on the issue of the sheriff's decision not to desert the trial pro loco et tempore. (3) R had not lodged a devolution minute relating to F's evidence in the sheriff court and therefore there was no convertible devolution issue in relation to that matter. (4) The Appeal Court had examined and addressed R's arguments and had given a reasoned decision which met the requirements of art.6 and had not left R in any real doubt as to why his appeal had failed. (5) In all the circumstances, the court was not persuaded that any compatibility issues had arisen, nor that the application had raised any issues of general importance, and it would not be appropriate to grant leave to appeal to the Supreme Court.

Docherty (Patrick) v HM Advocate [2014] HCJAC 72

D applied for leave to appeal to the Supreme Court against a decision of the Appeal Court refusing his second appeal against conviction for murder Docherty (Patrick) v HM Advocate [2014] HCJAC 94, 2014 G.W.D. 29-572. D submitted inter alia that (1) his first three grounds of appeal, namely non-disclosure of two police statements and reliance on evidence of one of his police interviews, were convertible devolution issues; (2) his fourth ground of appeal, namely misdirection by the trial judge in relation to dock identification, was not a convertible devolution issue at the time of appeal, but by the time the Appeal Court was determining the matter in the second appeal, it was de facto determining a compatibility issue because it was deciding whether or not a public authority had acted contrary to the ECHR art.6.

Held : Application refused. No compatibility issues had been determined by the Appeal Court and there was no competent appeal to the Supreme Court in the absence of such a determination. Any rights that D had to raise compatibility issues had been extinguished, none of the grounds of appeal had become devolution issues or compatibility issues by virtue of having been apt for consideration as ECHR art.6 matters, and in so far as the grounds of appeal might have become convertible devolution issues, they were determined when the court refused to entertain them at the first appeal hearing. Nothing in D's application could properly be viewed as a submission that the court erred in law on a compatibility issue, and the application had failed to meet the essential requirements for the grant of leave in Macklin (Paul Alexander) v HM Advocate [2013] HCJAC 141, 2013 G.W.D. 37-717, applied. Opinion, that D's application had not raised any issue of general public importance and any tension between the application of the tests in McInnes (Paul) v HM Advocate [2010] UKSC 7, 2010 S.C. (U.K.S.C.) 28 and Brodie (George) v HM Advocate [2012] HCJAC 147, 2013 J.C. 142 was insufficient, particularly where D had not submitted that there was any material distinction between the two tests, McInnes and Brodie, considered.

Gaughran's Application for Judicial Review, Re Also known as: Gaughran v Chief Constable of Northern Ireland [2015] UKSC 29; [2015] 2 W.L.R. 1303; [2015] 3 All E.R. 655; [2015] N.I. 55; [2015] Crim. L.R. 809
Here the appellant appealed against a decision ([2012] NIQB 88) to refuse his application for judicial review of the indefinite retention by the respondent police service of fingerprints, a photograph, and a DNA profile, following his conviction for driving with excess alcohol. The appellant was arrested in October 2008, when the DNA profile, fingerprints and photograph were taken. The police service had a policy of indefinitely retaining materials and data obtained from individuals convicted of a recordable offence. The parties agreed that the retention of the material disclosed an interference with the appellant's rights under the ECHR art.8. The sole question for determination was whether, under art.8(2), that interference was justified and satisfied the principle of proportionality.
Held: Appeal dismissed. (Lord Kerr dissenting) (1) In S v United Kingdom (30562/04) (2009) 48 E.H.R.R. 50 the European Court of Human Rights stressed the importance of the protection of data to a person's enjoyment of his art.8 rights, and determined that the powers of retention of the fingerprint and DNA material of any person suspected, but not convicted, of a criminal offence was a disproportionate interference. It considered only the position of suspected persons. It did not suggest that the principles applied to convicted people, and was not saying that a blanket policy of retaining the data of convicted persons would be unlawful. However, it did not follow from the fact that the ECtHR was only considering unconvicted persons that the system in the UK was justified under art.8(2). The ECtHR recognised the importance of the use of DNA material in solving crime and that the interference in question was low. It was important to note that the scheme in that case involved the retention of all biometric data and did not discriminate between adults and children, whereas the instant case concerned only the retention of the DNA profile and the scheme applied only to adults, S v United Kingdom not applying (see paras 28-33, 35 of judgment). (2) Factors such as the nature of the offence, whether retention was permitted once a conviction was spent and whether retention was permitted indefinitely or was subject to a time limit were potentially relevant but not decisive in determining proportionality. Taking into account all relevant factors, the balance struck by the UK authorities was proportionate and justified. It was within the margin of appreciation which the ECtHR accepted was an important factor, Van der Velden v Netherlands (29514/05) considered (paras 34, 36-39). (3) The benefits to the public of retaining the DNA profiles of convicted persons were potentially very considerable and outweighed the infringement of the art.8 rights of the person concerned. Moreover, a retained DNA profile might also establish that the person concerned did not commit a particular offence (paras 40-41). (4) In S and Marper , the ECtHR, when considering the margin of appreciation in the case of those who had been acquitted, placed some reliance on the fact that the UK was almost alone in retaining biometric data. However, in cases concerning convicted persons there was a much broader range of approaches which showed no principled basis upon which the UK system could be held to be disproportionate. Accordingly, there were strong factors in support of the conclusion that the police service was entitled to retain the biometric data as it did in the case of those who had been convicted (paras 42-44). (5) While a blanket policy might be objectionable in some circumstances, all depended upon the circumstances, Animal Defenders International v United Kingdom (48876/08) [2013] E.M.L.R. 28 considered. There was no basis for concluding that the police service policy of retaining biometric data indefinitely was not justified. The policy was within the margin of appreciation identified by the ECtHR. Viewed from a domestic standpoint, the authorities were entitled to pursue such a policy on the basis that it was justified and proportionate under art.8(2) (paras 45-46).
McDowall v G4S Care and Justice Services (UK) Ltd 2015 SLT (Sh Ct) 57
A prisoner was granted declarator that his double handcuffing and restraint by a custodial and detention services company on three occasions while he was being taken to attend hospital appointments and during said appointments was incompatible with his rightsunder the ECHR art.3 and art.8. A prisoner (M) sought declarator that his double handcuffing and restraint by a custodial and detention services company (G) on three occasions while he was being taken to attend hospital appointments and during said appointments was incompatible with his rights under the ECHR art.3 and art.8, and damages of £10,000. M invited the court to fix a proof on quantum, submitting that (1) the absence of an individualised risk assessment meant the application of double handcuffs on each occasion he attended for a hospital appointment, without reference to any supposed risk that he was said to present, was disproportionate and in breach of arts 3 and 8, and G's averments about what might have happened had such an assessment taken place were irrelevant; (2) M's double handcuffing while being escorted in public areas and to examinations was inhuman and degrading; (3) there was an established line of authority to the effect that the routine handcuffing of prisoners was incompatible with Convention rights. G sought a proof before answer, submitting that (1) M had a history of violence and drug smuggling and as with all prisoners in circumstances outwith prison, there had been a risk of escape and it had been necessary to double handcuff him in light of all the risks posed; (2) the absence of risk assessments in M's case was not fatal as had they been made, the levels of security would have remained the same.
Held: Case put out by order. (1) There was a clear line of authority from the European Court of Human Rights that in certain circumstances, handcuffing and other measures of restraint might be inappropriate or disproportionate in an otherwise lawful context when the health, welfare, public exposure or other circumstances affecting the prisoner at the time were such that normal measures were not necessary and, indeed, might reach the threshold of ill treatment resulting in anguish, inferiority, humiliation, distress or discomfort, Raninen v Finland (20972/92) (1998) 26 E.H.R.R. 563 and Kudla v Poland (30210/96) (2002) 35 E.H.R.R. 11, considered . (2) The main theme in the line of English authorities was that blanket policies or an over cautious approach to the need and level of handcuffing had been flagged up as areas where the custodial authorities and their private partners required to show respect, proportionality and flexibility, especially where a prisoner's condition deteriorated, R. (on the application of Spinks) v Secretary of State for the Home Department [2005] EWCA Civ 275, [2006] 1 Prison L.R. 166 and R. (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin), considered . (3) On each occasion there seemed to have been ample officers guarding M, it ought to have been possible to have him single handcuffed to one officer and tightly flanked by the others when moving about the hospital and in the waiting areas, and had such steps been taken the whole exercise would have been less obvious to the public and less intrusive for M, while retaining a necessary level of security, further, there was the obvious flaw that no risk assessment had been carried out as to the nature and level of security required for each visit; the circumstances surrounding M's visits to hospital were such that they met the minimum threshold for the court to consider as violations of his arts 3 and 8 rights, albeit at the lower end of the scale, and declarator would be granted. (4) The case would be set down for further procedure with a view to, if advised, fixing a proof on quantum. Observed, that the overall involvement of the Scottish Prison Service and the private service providers at the prison where M was held as well as G, who accepted responsibility for M's lawful custody at the material times, perhaps resulted in an over cautious, risk averse, penalty avoidance culture, and that might point to the manner in which the standard operating procedure governing the movement of prisoners to and from hospital and while there undergoing treatment, might lag behind the developing law in that context.
The Strasbourg Court has been much concerned with criminal procedure issues coming from the UK courts, often in terrorism cases.
For example in Ibrahim and Others v The United Kingdom (nos. 50541/08, 50571/08, 50573/08, and 40351/09) the European Court of Human Rights held, by six votes to one, that there had been no violation of art. 6(1) and 6(3)(c) arising from detention following the events of 21 July 2005 where four bombs were detonated on the London transport system but failed to explode. The perpetrators fled the scene and a police investigation immediately commenced. The first three applicants, Mr Ibrahim, Mr Mohammed and Mr Omar, were arrested on suspicion of having detonated three of the bombs. Mr Abdurahman, the fourth applicant, was initially interviewed as a witness in respect of the attacks but it subsequently became apparent that he had assisted one of the bombers after the failed attack and, after he had made a written statement, he was also arrested. All four applicants were later convicted of criminal offences. The case concerned the temporary delay in providing the applicants with access to a lawyer, in respect of the first three applicants, after their arrests, and, as regards the fourth applicant, after the police had begun to suspect him of involvement in a criminal offence but prior to his arrest; and the admission at their subsequent trials of statements made in the absence of lawyers.
The Court noted that two weeks earlier, suicide bombers had detonated their bombs on the London transport system, killing fifty-two people and injuring countless more. It was satisfied that, at the time of the four applicants’ initial police interviews, there had been an exceptionally serious and imminent threat to public safety, namely the risk of further attacks, and that this threat provided compelling reasons justifying the temporary delay in allowing the applicants’ access to lawyers. It also found that no undue prejudice had been caused to the applicants’ right to a fair trial by the admission at their trials of the statements they had made during police interviews and before they had been given access to legal assistance. The Court took into account the counterbalancing safeguards contained in the national legislative framework, as applied in each of the applicants’ cases; the circumstances in which the statements had been obtained and their reliability; the procedural safeguards at trial, and in particular the possibility to challenge the statements; and the strength of the other prosecution evidence. In addition, as concerned the fourth applicant, who had made self-incriminating statements during his police interview, the Court emphasised the fact that he had not retracted his statements even once he had consulted a lawyer but had continued to rely on his statement in his defence up until his request that it be excluded at trial.
In Abdulla Ali v The United Kingdom ( application no. 30971/12) the European Court of Human Rights held, unanimously, that there had been no violation of art. 6(1) or the right to a fair trial. The case concerned Mr Ali’s complaint that, because of extensive adverse media coverage, the criminal proceedings against him for conspiring in a terrorist plot to cause explosions on aircraft using liquid bombs had been unfair. Following a first trial in Mr Ali’s case which had resulted in his conviction on a charge of conspiracy to murder, there had been extensive media coverage, including reporting on material which had never been put before the jury. A retrial was subsequently ordered in respect of the more specific charge of conspiracy to murder by way of detonation of explosive devices on aircraft mid-flight (on which the jury at the first trial had been unable to reach a verdict) and Mr Ali argued that it was impossible for the retrial to be fair, given the impact of the adverse publicity. His argument was rejected by the retrial judge and he was convicted at the retrial. He was sentenced to life imprisonment with a minimum term of 40 years.
The Court found in particular that the applicable legal framework in the UK for ensuring a fair trial in the event of adverse publicity had provided appropriate guidance for the retrial judge. It further found that the steps taken by the judge were sufficient. Thus, he considered whether enough time had elapsed to allow the prejudicial reporting to fade into the past before the retrial commenced and recognised the need to give careful jury directions on the importance of impartiality and of deciding the case on the basis of evidence led in court only. He subsequently gave regular and clear directions, to which Mr Ali did not object. The fact that the jury subsequently handed down differentiated verdicts in respect of the multiple defendants in the retrial proceedings supported the judge’s conclusion that the jury could be trusted to be discerning and follow his instructions to decide the case fairly on the basis of the evidence led in court alone.
We have another case on hearsay in the case of Horncastle and Others v The United Kingdom (application no. 4184/10) the European Court of Human Rights held, unanimously, that there had been no violation of art. 6(1) or 6(3)(d) in a case which concerned four applicants’ complaints that in admitting victims’ written statements as evidence against them at their criminal trials the domestic courts had violated their right to have examined witnesses who gave sole or decisive evidence against them. The Court reiterated the principles established in its Grand Chamber judgment in Al-Khawaja and Tahery v the United Kingdom (application nos. 26766/05 and 22228/06) in which it had agreed with the domestic courts that a conviction based solely or decisively on the statement of an absent witness would not automatically result in a breach of art. 6(1) as the question was whether there were adequate counterbalancing factors in place, including strong procedural safeguards, to compensate for the difficulties caused to the defence. In relation to the first two applicants, the Court found that even assuming that the written statement of the victim had been “decisive”, there had been sufficient safeguards in domestic law to protect their right to a fair trial. In relation to the second two applicants, the Court concluded that the statement had been neither the sole nor decisive basis of their conviction and, accordingly, that there had been no violation of their defence rights.

Crime proceeds

HM Advocate v Younas (Mohammed) [2014] HCJ 123

Following Y's conviction for a contravention of the Misuse of Drugs Act 1971 s.4(3)(b), the Crown moved for a confiscation order for £126,000 in terms of the Proceeds of Crime Act 2002. Y had purchased a flat (X) on 9 November 1990 and was registered as its heritable proprietor. Y's family members, including two of his sisters (S) lived in the property with him. In September 1993, Y was sequestrated and the accountant in bankruptcy (B) was appointed as his permanent trustee. Following Y's conviction on two other drug offences in 2001, a confiscation order was made against him. In 2002, S agreed to purchase the equity in X from B, paid instalments in July 2002 and June 2003, and missives were concluded in October 2002. In October 2003, S's solicitor wrote to B stating that S had decided that they did not wish the title to X to be transferred to their names, and Y remained as its heritable proprietor. In January 2004, B confirmed that he had no further interest in the property, and eventually Y and B received their discharges and the sequestration was concluded. Y challenged the Crown's calculations of benefit from general criminal conduct with respect to (1) mortgage payments for X as such payments had been made by his late father and by S; (2) rent from another property (Z); (3) a £35,000 loan allegedly made by Y's mother, who had brought an initial writ against him for payment thereof, and £10,000 received from her as a share in his late father's estate; (4) payments of various amounts by means of cheques from certain persons; (5) a bank transfer of £5,000 which was allegedly a loan from Y's nephew; (6) funds lodged in his former partner's bank accounts; (7) alleged loans from certain of Y's friends; (8) cash advances on various credit cards. Y further submitted that the available amount should exclude X as he no longer had any interest therein, where his interest had vested in B due to his sequestration, S had purchased the equity from B and they were to be seen as the true legal owners of the property. S argued that to allow X's value to be included in the available amount would constitute a violation of their rights under the ECHR art.1 of the First Protocol.

Held : Motion granted and confiscation order in the sum of £126,000 made. (1) All of Y's challenges to the Crown's calculation of the benefit figure fell to be rejected on the facts and Y had benefited from his general criminal conduct in the amount of £212,951: Y and S had not proved that the mortgage payments were made from S's own funds or from those of their late father; Y was an incredible and unreliable witness and his evidence in respect of Z, the sums received from his mother, the cheques, the £5,000 bank transfer, the funds lodged in his former partner's bank accounts, the loans from his friends and cash advances on credit cards lacked detail and was unsupported. (2) The intention of the 2002 Act was to empower the Crown to confiscate assets in which a convicted person could be shown to have some interest, even though he had attempted to distance himself or conceal such interest, and the clear intention of s.150(2)(a) was to catch any interest of whatever nature. Y was unquestionably the heritable proprietor of X, and although B could have acquired a real right in X, his title was only ever personal rather than real, and the missives had no effect on the real right in X which remained vested in Y. It was clearly the case that the registered heritable proprietor had an interest in X for the purposes of the 2002 Act, X was Y's free property and its value fell to be included in the available amount. (3) S took a deliberate and conscious decision not to have X disponed to them and it was probable that was because they wanted to keep it out of the Crown's hands and to prevent it being sold by B to third parties; there were no grounds for holding that the Crown was barred from asking for X's value to be included in the available amount or that the Crown would be acting in bad faith by taking that stance. (4) S's human rights argument had to be rejected where they had taken a deliberate decision not to have title to the property transferred to them, it had not been proven that they had paid the mortgage instalments from their own resources, inclusion of X's value in the available amount was not a disproportionate interference with any rights they had in relation thereto, and the public interest prevailed over any personal rights that S had under a contract relating to X. (5) Y held an interest in X valued at £121,245.91 and an interest in Z of £5,000, and the available amount was £126,000.

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