Memorandum submitted by Law Reform
The Society has received a copy of the Press
Notice dated 21 February 2007 announcing the enquiry into Devolution:
a decade on.
The Constitutional Affairs Committee is right
to acknowledge that 2007 marks the 10th anniversary of the setting
of the devolution agenda, however, 2007 is not the anniversary
of devolution becoming effective, given that the Scotland Act
1998 and Government of Wales Act 1998 and the Northern Ireland
Act 1998 were not implemented until 1999. It is appropriate to
note that there have been only two sessions of the Scottish Parliament
since 1999 and that this review is taking place at a relatively
early stage in the Parliament's history.
The questions which the Committee raises in
the terms of reference are important ones.
The Society has the following comments to make
on the questions raised in the Terms of Reference.
1. Westminster: How does Parliament deal with
devolution issues, e.g. legislating for Scotland and Wales
There are a number of ways in which Parliament
deals with legislation for Scotland and for Wales. This response
will be confined to Scotland.
The phrase "devolution issues" has
a specific legal connotation and is defined in the Scotland Act
1998, Sch 6, para 1 as:
(a) a question where an Act or part of an Act
of the Scottish Parliament is within the competence of the Scottish
Parliament.
(b) A question whether any function is a function
of the Scottish Ministers, the First Minister or the Lord Advocate.
(c) A question whether the exercise of a function
of the Scottish Executive is in devolved competence.
(d) A question whether the exercise of a function
of the Scottish Executive is incompatible with EU or ECHR law.
(e) A question whether a failure by a member
of the Scottish Executive is incompatible with EU and ECHR law.
(f) Any other question about whether a function
is in the devolved competence and any question about reserved
matters.
As a phrase "devolution issues" does
not therefore relate to "Legislating for Scotland and Wales".
Legislation for Scotland passed by the UK Parliament
can refer to:
(a) Acts which are on reserved issues in terms
of the Scotland Act 1998, Schedule 5 and apply in part to Scotland
because they apply to the whole of the United Kingdom, to Great
Britain or have particular provisions which extend to Scotland.
(b) Acts which apply to Scotland, which in other
circumstances would be within devolved powers but through the
mechanism of a Sewel motion or legislative consent motion, the
Scottish Parliament has agreed for the UK Parliament to legislate;
and
(c) Subordinate legislation which applies to
Scotland.
In terms of the Scotland Act 1998 Section 28(7),
the UK Parliament retains the power to legislate for Scotland
but is constrained by the Sewel Convention which ensures that
the UK Parliament will normally legislate on devolved matters
in Scotland with the consent of the Scottish Parliament.
The UK Parliament is legislating currently a
considerable amount of legislation for Scotland. Legislation which
applies to Scotland still requires the scrutiny of Scottish MPs
and input from Scottish interests bodies such as the Society,
are active in drawing to MPs and Peers attention comments on Bills
which have been introduced and which apply to Scotland. Sometimes
these comments may relate to technical issues concerning Scots
Law, concerns about consistency, vagueness or ambiguity or issues
of practicality but sometimes there may be more problematic questions
which require to be answered in terms of policy direction.
The Society has submitted comments or suggested
amendments on a number of Bills in the last four years as set
out in appendix 1.
Accordingly, the Committee should be aware that
there is a considerable amount of legislation being produced which
applies to Scotland and MPs and Peers who have an interest in
Scottish issues have a considerable role to play in the scrutiny
of that legislation. The Scottish Parliament is also legislating
broadly across the policy and legal landscape with the consequent
effect that while Scottish interests may legitimately be focussed
on Holyrood there also may be important legislation in Westminster
which requires attention. This can have an impact on capacity
of organisations and individuals to engage with Westminster.
The Society has always received a good hearing
from MPs and Peers in respect of its representations. Furthermore,
the Government and Opposition is often persuaded that amendments
are necessary as a result of the Society's representations.
2. What issues remain outstanding, eg "the
English question"
This is essentially a political issue on which
the Society has no comment to make.
3. Whitehall: What impact has devolution had
on Whitehall? Has there been a change in culture? How have they
responded to the divergence in policy making? How have the Concordats
developed, and are they working?
Whitehall is a large and complex institution,
and some departments have greater appreciation of Scottish issues
than do others. The Society has found that contact with departments
such as the Home Office and the DTI has been relatively good,
however, other departments are less attuned to the different legal
system which applies in Scotland. There may be some issues about
maintaining the Scottish profile in Whitehall departments.
4. Intergovernmental relations: How are bodies
such as the British Irish Council working? What about representation
at the EU level?
The Scottish Executive has two divisions which
are within the portfolio of the Minister for Finance and Public
Service Reform dedicated to working on Europe and European affairs
under the management of the Europe Director. One of the divisions
is a Brussels-based EU Office. The office is part of the Scottish
Executive, and reports to the Head of the Executive Secretariat.
A Scottish Executive Civil Servant heads the office supported
by a team of desk officers and locally recruited support staff.
The office opened on 1st July 1999.
The purpose of the Office is to assist the Scottish
Executive in carrying out its EU-related business by providing
support to the Executive, information gathering, influencing EU
policies and raising Scotland's profile with the EU Institutions.
The Office works closely with the UK Permanent
Representation. There is a concordat which governs relations between
the UK Government and the devolved administration on EU issues.
Relations with the European Union are the responsibility of the
UK Government. However, the Scottish Executive is involved in
decision making on EU matters which touch on devolved matters
through the over-arching concordat on EU policy issues, which
obliges the UK Government to consult the Scottish Executive on
EU issues which have a bearing on devolved competencies.
The other division is the Europe Division Edinburgh
Office which deals with EU policy and organisations, strategy
and co-ordination and European Bilateral links.
Scottish Ministers have also had a direct role
in EU Council meetings attending both with the lead UK Minister
and, on occasions, attending as the lead UK Minister for particular
meetings. Executive officials also attend some EU Council Working
Groups.
The Scottish Parliament's European and External
Relations Committee has an over-arching role in consideration
of EU matters and considers the main EU issues concerning Scotland
through a number of Inquiries and Reports.
5. What is the future of the current Secretaries
of State for Scotland, Wales and Northern Ireland? Are the current
arrangements for the Wales and Scotland offices within the DCA
appropriate?
The Society responded to the House of Lords
Select Committee on the Constitution inquiry entitled Devolution:
Inter-Institutional Relations in the United Kingdom in 2002
and expressed the view that the role of the Secretary of State
for Scotland was to represent Scottish interests in areas that
are reserved to the UK Parliament under the Scotland Act.
That role still subsists and it will continue
to be important for Scotland to have adequate representation at
Cabinet level.
The Society draws the Committee's attention
to Devolution Guidance Note 3 in the "Role of the Secretary
of State for Scotland".
6. Devolution and the Courts: have there been
legal disputes in the context of devolved/reserved issues and
policy divergence?
The Annual Reports of the Office of the Advocate
General for Scotland disclose an increasing number of intimated
devolution issues eg:
(a) During 2005-06, 901 Devolution minutes were
intimated; an increase of 37% over the previous year; and
(b) During 2004-05, 658 Devolution minutes were
intimated; an increase of 73% over the previous year.
The number of appeals to the Judicial Committee
of the Privy Council is shown in the attached table.
| Year | Appeals entered
| Dismissed | Allowed
|
| 2005 | 4 | -
| 2 |
| 2004 | 2 | 4
| - |
| 2003 | 4 | -
| 1 |
| 2002 | 4 | -
| 2 |
| 2001 | 2 | 4
| 5 |
| 2000 | 13 | 2
| 1 |
| 1999 | 0 | 0
| 0 |
| Totals | 29 | 10
| 12 |
| |
| |
The Scottish courts have, by and large, dealt very well with
the increase in litigation and the Scottish legal professions
are conscious that their clients may require such issues to be
brought to the attention of the courts.
Annex 2 attached to this letter shows many reported cases
since 1999 in the Sheriff Court, High Court of Justiciary, Court
of Session and Judicial Committee of the Privy Council. The variety
of cases is very broad indicating the way in which the Courts
and the Profession have dealt with the Scotland Act 1998 and the
incorporation of the ECHR.
Issues about legislative competence may be perceived as ripe
for controversy because they may result in a question of interpretation.
Section 29 of the Scotland Act 1998 sets out the legislative
competence of the Scottish Parliament and confirms in subsection
(1) that in An Act of the Scottish Parliament is not law so far
as any provision of the Act is outside the legislative competence
of the Parliament. "When dealing with the relationship between
Acts of the Scottish Parliament and reserved matters subsection
(3) encapsulates the `purpose' test." Subsection (3) states
"for the purposes of this section, the questions whether
a provision of an Act of the Scottish Parliament relates to a
reserved matter is to be determined, subject to subsection (4),
by reference to the purpose of the provision, having regard to
(among other things) to its effect in all the circumstances".
This is a statutory version of the common law purpose test
enunciated by Lord Atkin in the case of Gallagher v Lynn
1937 A.C. 863.
As such it shows that there requires to be a judgement made
about the "true nature" and the pith and substance of
the legislation.
The subsection ensures that the courts will require to determine
whether a provision "relates" to a reserved matter by
reference to the "purpose" of the measure. Accordingly,
the role of the courts in relation to devolution issues, the competence
of the Parliament and the validity of legislation is highly important.
It is however regrettable that the Devolution Guidance note
on "court proceedings regarding Devolution Issues" is
not yet published.
7. What are the other outstanding issues around reserved
and devolved issues? How could these be best resolved? Is the
UK's model of asymmetric devolution sustainable?
These are essentially political issues on which the Society
has no view.
8. What are the broader consequences of devolution for
the future of the UK's constitution?
The broader consequences of devolution include:
(a) Increasing divergence in law and policy in the devolved
areas.
(b) Potential tension between the devolved administrations
and the UK Government especially if different political parties
form the respective administrations.
(c) Potential changes in the reserved areas by way of transfer
of powers from the UK Parliament to the Scottish Parliament.
I hope these comments are helpful to the Committee in conducting
its enquiry.
Michael P Clancy
Director
May 2007
APPENDIX 1
ACTS OF
THE UK PARLIAMENT
Public Acts 2003
Crime (International Co-operation) Act 2003.
Extradition Act 2003.
Finance Act 2003.
Sexual Offences Act 2003.
Public Acts 2004
Asylum and Immigration (Treatment of Claimants, etc) Act 2004.
Child Trust Funds Act 2004.
Civil Partnership Act 2004.
Energy Act 2004.
Finance Act 2004.
Gender Recognition Act 2004.
Patents Act 2004.
Pensions Act 2004.
Planning and Compulsory Purchase Act 2004.
Public Acts 2005
Constitutional Reform Act 2005.
Gambling Act 2005.
Inquiries Act 2005.
Prevention of Terrorism Act 2005.
Serious Organised Crime and Police Act 2005.
Public Acts 2006
Consumer Credit Act 2006.
Equality Act 2006.
Identity Cards Act 2006.
Immigration, Asylum and Nationality Act 2006.
Legislative and Regulatory Reform Act 2006.
Police and Justice Act 2006.
Road Safety Act 2006.
Terrorism Act 2006.
APPENDIX 2
Total number of cases: 102 (of which two are continuations).
APPENDIX 3
CASES INVOLVING DEVOLUTION ISSUES 1999-2006
| Case citation | Court
| Judgement Date | Section(s) of Scotland Act referred to
| Devolution issue |
| Vannet v Hamilton 1999 SCCR 558 |
Sheriff Court, Glasgow | 21 May 1999
| s 57(2) | Insufficient custody statement; alleged incompatibility with Article 5(2) of the ECHR
|
| HMA v Scottish Media Newspapers, Scott & Duff 1999 SCCR 599
| High Court of Justiciary | 8 June 1999
| s 57(2) | Risk of prejudice; newspaper article referring to character of accused prior to court case; alleged incompatibility with Article 10 of the ECHR
|
| HMA v Little 1999 SCCR 625 | High Court of Justiciary
| 16 June 1999 | s 57(2) |
unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR
|
| McNab v HMA 1999 SCCR 930 | Appeal court, High Court of Justiciary
| 2 September 1999 | s 57(2)
| unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR
|
| HMA v Dickson 1999 SCCR 859 | High Court of Justiciary
| 10 September 1999 | Sch 6, paras 1, 37
| Whether Act of Adjournal (Devolution Issues Rules) 1999 is ultra vires
|
| HMA v Robb 1999 SCCR 971 | Appeal court, High Court of Justiciary
| 20 September 1999 | s 57(2), Sch 6, para 1(d)
| Whether admitting evidence of police interview in absence of solicitor contravenes right to fair trial
|
| HMA v Campbell 1999 SCCR 980 | Appeal court, High Court of Justiciary
| 21 September 1999 | s 57(2), Sch 6, para 1(d)
| Identification parade held without presence of accused's solicitor; whether this constitutes an act by Lord Advocate that is incompatible with Article 6
|
| Starrs & Chalmers v Ruxton; Ruxton v Starrs & Chalmers 1999 SCCR 1052
| Appeal court, High Court of Justiciary |
11 November 1999 | s 57(2), (3)
| Temporary sheriff: alleged incompatibility with article 6(1) of the ECHR; whether competent for Lord Advocate to bring case before temporary sheriff
|
| Paton v Ritchie 2000 SCCR 151 | Appeal court, High Court of Justiciary
| 24 November 1999 | s 57(2), Sch 6, para 1(d)
| Whether admitting evidence of police interview in absence of solicitor contravenes right to fair trial
|
| McKenna v HMA 2000 SCCR 159 | Appeal court, High Court of Justiciary
| 13 December 1999 | s 57(2), Sch 6, para 1
| Admission of hearsay evidence: alleged incompatibility with Article 6 of the ECHR
|
| Van Rijs v HMA 2000 SCCR 263 | Appeal court, High Court of Justiciary
| 28 January 2000 | s 57(2), Sch 6
| Counsel who had formerly advised appellant instructed to appear as advocate-depute in procedural hearing in appeal; whether incompatible with Article 6 of the ECHR
|
| Brown v Stott 2000 SCCR 314 | Appeal court, High Court of Justiciary
| 4 February 2000 | s 57(2), (3)
| Whether use as evidence against accused of answer given in response to statutory requirement to give information is incompatible with Article 6(1)
|
| HMA v Nulty 2000 SCCR 431 | High Court of Justiciary
| 17 February 2000 | s 57(2), Sch 6, para 1
| Admission of hearsay evidence: alleged incompatibility with Article 6 of the ECHR
|
| HMA v McGlinchey and Or 2000 SCCR 593
| Appeal court, High Court of Justiciary |
18 February 2000 | s 57(2) |
Unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR
|
| |
| | |
| Case citation | Court
| Judgement Date | Section(s) of Scotland Act referred to
| Devolution issue |
| Robb v HMA 2000 SCCR 354 | Appeal court, High Court of Justiciary
| 18 February 2000 | s 57(2)
| Unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR
|
| Van Rijs v HMA SCCR 367 | Appeal court, High Court of Justiciary
| March 2000 | s 57(2) | Article critical of ECHR published by chairman of court shortly after he delivered an opinion of court refusing appeal involving submissions on Convention; whether impartial; whether breach of 6(1)
|
| Crummock (Scotland) Ltd v HMA 2000 SCCR 453
| Appeal court, High Court of Justiciary |
16 March 2000 | s 57(2) | Unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR
|
| Clancy v Caird 2000 SCLR 526 | Court of Session, Inner House (Extra Division)
| 4 April 2000 | s 59, 129(2)
| Whether a temporary judge is an "independent and impartial tribunal established by law"; at what point objection should be raised (Article 6(1)
|
| BBC, Petitioners 2000 SCCR 533 | Appeal court, High Court of Justiciary
| 20 April 2000 | s 57(2), Sch 6, paras 1, 9, 11
| Whether refusal by court to authorise public television transmission of proceedings to victims' families abroad incompatible with Article 10 of the ECHR
|
| Van Rijs v HMA 2000 SCCR 676 | Appeal court, High Court of Justiciary
| 2 June 2000 | Sch 6, paras 1(b), 11
| Appeal court setting aside earlier decision of appeal court on ground that earlier court not properly constituted; whether later decision raised devolution issue
|
| Buchanan v McLean 2000 SCCR 682 |
Appeal court, High Court of Justiciary | 15 June 2000
| s 57(2) | Whether fixed legal aid fees are incompatible with articles 6(1) and 6(3)(b) & (c) of the ECHR
|
| Montgomery v HMA 2000 Scot (D) 4/12 |
Judicial Committee of the Privy Council | 20 July 2000
| s 57(2), Sch 6, para 1 | Extensive media coverage of events prior to prosecution of accused; whether decision of Lord Advocate to proceed with prosecution incompatible with Article 6(1) of the ECHR
|
| Miller v Dickson; Stewart and Ors v Heywood; Marshall v Ritchie 2000 SCCR 793
| Appeal court, High Court of Justiciary |
3 August 2000 | s 57(2), (3), Sch 6,
para 1
| Accused subject of criminal proceedings before temporary sheriff; whether failure by accused to object amounts to waiver of right
|
| HMA v Burns 2000 SCCR 884 | High Court of Justiciary
| 4 August 2000 | s 57(2), Sch 6
| Inclusion of divorced wife's home and property in statement of accused's assets; alleged incompatibility with Article 8 of the ECHR
|
| Clark v Kelly 2000 SCCR 821 | High Court of Justiciary
| 18 August 2000 | s 57(2), Sch 6, para 9
| Whether prosecution in district court consisting of lay justice is incompatible with Article 6 of the ECHR
|
| Monterroso v HMA 2000 SCCR 974 | High Court of Justiciary
| 29 September 2000 | s 57(2). Sch 5
| Complaint that prison régime in breach of articles 6(3)(b), 8 and 14
|
| Hoekstra and Ors v HMA 2000 Scot (D) 18/10
| Judicial Committee of the Privy Council |
2 October 2000 | Sch 6, para 13, 33
| Appeal to refer devolution matter to the JCPC
|
| |
| | |
| Case citation | Court
| Judgement Date | Section(s) of Scotland Act referred to
| Devolution issue |
| Robert McIntosh, Petitioner 2000 SCCR 1017
| Appeal court, High Court of Justiciary
| 13 October 2000 | s 57(2)
| Whether statutory assumptions that property the proceeds of drug trafficking incompatible with article 6(2)
|
| Coulter v HMA 2000 SCCR 1044 | Appeal court, High Court of Justiciary
Judicial Committee of the Privy Council
| 19 October 2000 | s 57(2), Sch 6, paras 1(d), 13(a)
| Public controversy between judge and Lord Advocate as to whether accused should have been tried for murder along with another person who was acquitted; alleged incompatibility with article 6(1) of the ECHR
|
| Van Rijs v HMA 2000 SCCR 1121 | Judicial Committee of the Privy Council
| 26 October 2000 | Sch 6, para 13
| Referral to JCPC Appeal court set aside earlier decision of appeal court; whether this is competent
|
| Stott v Brown 2001 SCCR 62; 2000 Scot (D) 14/12
| Judicial Committee of the Privy Council |
5 December 2000 | s 57(2), (3) |
ther use as evidence against accused of answer given in response to statutory requirement to give information is incompatible with Article 6(1)
|
| HMA v McIntosh 2001 SCCR 191 | Judicial Committee of the Privy Council
| 5 February 2001 | s 57(2)
| Whether statutory assumptions that property the proceeds of drug trafficking incompatible with article 6(2)
|
| Follen v HMA 2001 Scot (D) 12/3 | Judicial Committee of the Privy Council
| 22 February 2001 | Sch 6, para 13
| Referral to JCPC Accused challenged competency of proceedings before trial judge, raising a devolution issue; Appeal court refused leave to appeal
|
| Follen v HMA 2001 SCCR 255 *continuation
| Appeal court, High Court of Justiciary
Judicial Committee of the Privy Council
| 8 March 2001 | Sch 6, para 13
| Referral to JCPC unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR
|
| S v The Principal Report and Or 2001 Scot (D) 40/3
| First Division | 30 March 2001
| Sch 6, para 1 | Legal aid not available for representation at Children's hearing; whether compatible with Article 6 of the ECHR
|
| HMA v Touati 2001 SCCR 392; 2001 Scot (D) 10/5
| Appeal Court, High Court of Justiciary |
4 May 2001 | Sch 6, para 9 |
Referral to High Court Diet adjourned for more than two months for preparation of reference to High Court; whether adjournment incompetent
|
| Kane v HMA 2001 Scot (D) 19/5 | Appeal Court, High Court of Justiciary
| 4 May 2001 | s 57(2) | Unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR
|
| Dickson v HMA 2001 SCCR 397; 2001 Scot (D) 14/5
| Appeal Court, High Court of Justiciary |
10 May 2001 | Sch 6, paras 1, 9, 11, 37
| Whether failure to give reasons for determining validity until conclusion of trial contravenes right to fair trial; whether admitting evidence of police interview in absence of solicitor contravenes right to fair trial
|
| HMA v Bain 2001 Scot (D) 28/5 | High Court of Justiciary
| 22 May 2001 | s 57(2) |
Admission of hearsay evidence: alleged incompatibility with Article 6 of the ECHR
|
| Buchanan v McLean 2001 SCCR 475 |
Judicial Committee of the Privy Council | 24 May 2001
| s 57(2) | Whether fixed legal aid fees are incompatible with articles 6(1) and 6(3)(b) and (c) of the ECHR
|
| |
| | |
| Case citation | Court
| Judgement Date | Section(s) of Scotland Act referred to
| Devolution issue |
| Valentine and Ors v HMA 2001 Scot (D) 25/7
| Appeal Court, High Court of Justiciary |
6 July 2001 | s 57(2) | Unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR
|
| HMA v Mills and Or 2001 Scot (D) 2/10
| Appeal Court, High Court of Justiciary |
13 July 2001 | s 57(2) | Unreasonable delay in courtproceedings; alleged incompatibility with article 6 of the ECHR
|
| Millar v PF, Elgin; Payne and Ors v PF, Dundee 2001 SCCR 741; 2001 Scot (D) 34/7
| Judicial Committee of the Privy Council |
24 July 2001 | s 57(2), (3), Sch 6, para 1
| Accused subject of criminal proceedings before temporary sheriff; whether failure by accused to object amounts to waiver of right
|
| Mills and Ors v HMA 2001 SCCR 821 |
Appeal Court, High Court of Justiciary | 1 August 2001
| s 57(2), Sch 6, paras 1(d), (e), 5 and 6 |
Unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR
|
| S v The Principal Reporter and Or 2001 Scot (D) 13/8 *continuation
| First Division | 7 August 2001
| Sch 6, para 1 | Legal aid not available for representation at Children's hearing; whether compatible with Article 6 of the ECHR
|
| HMA v R 2001 SCCR 915 | High Court of Justiciary
| 10 October 2001 | s 57(2) |
Unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR
|
| A and Ors v The Scottish Ministers and Ors 2001 Scot (D) 17/10
| Judicial Committee of the Privy Council |
15 October 2001 | s 29(2)(d) |
Ground for refusal of discharge that continued detention necessary in order to protect public from serious harm; whether compatible with Article 5 right to liberty where condition not treatable
|
| Stevens v HMA 2001 SCCR 948; 2001 Scot (D) 13/11
| High Court of Justiciary | 9 November 2001
| s 57(2), Sch 6, para 1(d) | Minute seeking declaration of incompatibility of legislation under which minuter prosecuted
|
| Van Rijs v HMA 2002 SCCR 135 | Appeal Court, High Court of Justiciary
| 23 January 2002 | s 57(2) |
Irregularly obtained evidence; whether incompatible with article 8; Whether admission of evidence incompatible with article 6 of the ECHR
|
| Dyer v Watson and Or; HMA v K 2002 Scot (D) 44/1
| Judicial Committee of the Privy Council |
29 January 2002 | s 57(2) | Unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR
|
| HMA v Urquhart 2002 SCCR 300; 2002 Scot (D) 40/2
| High Court of Justiciary | 7 February 2002
| s 57(2) | Accused pled guilty to drug trafficking on one day for not financial gain; Crown seeking confiscation on basis of income over five years. Alleged incompatibility with Article 6 of the ECHR
|
| Connor v HMA 2002 Scot (D) 19/3 |
Appeal Court, High Court of Justiciary | 13 March 2002
| s 57(2), Sch 6, para 1 | Temporary sheriff: alleged incompatibility with article 6 of the ECHR
|
| Lochridge v Miller 2002 SCCR 628 |
Appeal Court, High Court of Justiciary | 19 March 2002
| s 57(2) | Extradition case. Alleged breach of articles 5 & 6 of ECHR
|
| HMA v Vervuren 2002 SCCR 481 | High Court of Justiciary
| 12 April 2002 | s 57(2) |
Evidence obtained during surveillance; whether incompatible with article 8 of the ECHR
|
| |
| | |
| Case citation | Court
| Judgement Date | Section(s) of Scotland Act referred to
| Devolution issue |
| R v HMA 2002 SCCR 697 | Appeal Court, High Court of Justiciary
| 31 May 2002 | s 57(2) |
Unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR; whether actings of Scottish Ministers or Lord Advocate can be subject of devolution issue
|
| Kenny v Howdle 2002 SCCR 814; 2002 Scot (D) 11/7
| Appeal Court, High Court of Justiciary |
9 July 2002 | | Whether court presided over by honorary sheriff constitutes an "independent tribunal"; alleged breach of article 6 of the ECHR
|
| Mills v HMA 2002 SCCR 860; 2002 Scot (D) 7/8
| Appeal Court, High Court of Justiciary |
22 July 2002 | s 57(2), Sch 6, para 1
| Unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR
|
| Adams and Ors, Petitioners 2002 SCLR 881; 2002 Scot (D) 1/8
| Court of Session, Outer House | 31 July 2002
| ss 28, 29, 101, 102 | Challenge to Act of Scottish Parliament criminalising mounted foxhunting. Alleged incompatibility with Articles 8 & 14 of the ECHR
|
| HMA v PH 2002 SCCR 927 | Appeal Court, High Court of Justiciary
| 6 September 2002 | s 57(2), Sch 6, para 1
| Whether court entitled to make decision that rape did not require force; whether it constitutes a change in law, making subsequent prosecutions for rape incompatible with Art 7 of ECHR
|
| HMA v H 2002 Scot (D) 20/9 | High Court of Justiciary
| 19 September 2002 | s 98 |
Whether a change in law relating to rape with retrospective effect violated the accused's Convention rights (in particular the article 7(1) protection against retroactivity)
|
| R v HMA and Another 2003 SCCR 19; 2002 Scot (D) 4/12
| Judicial Committee of the Privy Council |
28 November 2002 | s 57(2), Sch 6, para 1
| Whether bringing person to trial after unreasonable delay an act of Lord Advocate incompatible with Article 6 of the ECHR; definition of "act" in terms of the Lord Advocate
|
| HMA v S 2003 Scot (D) 23/1 | High Court of Justiciary
| 22 January 2003 | s 57(2), Sch 6, para 1
| Unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR
|
| Clark v Kelly 2003 SCCR 194 | Judicial Committee of the Privy Council
| 11 February 2003 | s 57(2), Sch 6
| Whether prosecution in district court consisting of lay justice is incompatible with Article 6 of the ECHR
|
| Daly v HMA 2003 SCCR 393 | Appeal Court, High Court of Justiciary
| 9 May 2003 | s 57(2), Sch 6, para 1
| Admission of hearsay evidence: alleged incompatibility with Article 6 of the ECHR
|
| |
| | |
| Case citation | Court
| Judgement Date | Section(s) of Scotland Act referred to
| Devolution issue |
| McKenna v HMA 2003 SCCR 399 | Appeal Court, High Court of Justiciary
| 9 May 2003 | s 57(2), Sch 6, para 1
| Admission of hearsay evidence: alleged incompatibility with Article 6 of the ECHR
|
| McMurray v HMA 2003 SCCR 456 | Appeal Court, High Court of Justiciary
| 4 June 2003 | s 29(2)(d) |
Parole Board put back date appellants would be considered for release due to Convention Rights (Compliance) (Scotland) Act 2001; alleged incompatibility with Art 7 of ECHR
|
| Webster v Dominick 2003 SCCR 525 |
Appeal Court, High Court of Justiciary | 22 July 2003
| s 52(2), Sch 6, para 9 | Whether charge of shameless indecency too vague to comply with Article 7 of the ECHR
|
| McMurray v PF, Airdrie 2003 Scot (D) 14/9
| Appeal Court, High Court of Justiciary |
14 September 2003 | s 57(2), Sch 6, para 9
| Whether provisions fixing period within which summary proceedings under Bankruptcy (Scotland) Act 1985 required to be raised incompatible with right to trial within "reasonable time"
|
| C and another v Miller 2003 Scot (D) 21/10
| Extra Division, Inner House, Court of Session
| 10 October 2003 | Sch 6, para 13(b)
| Whether decision by a court not to entertain a devolution issue constitutes "determining a devolution issue"
|
| Haston and Ors v HMA 2003 Scot (D) 15/10
| Appeal Court, High Court of Justiciary |
15 October 2003 | s 57(2), Sch 6, para 1
| Unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR
|
| Hill v HMA 2003 SCCR 779 | Appeal Court, High Court of Justiciary
| 13 November 2003 | s 57(2), Sch 6, para 1
| Admission of hearsay evidence: alleged incompatibility with Article 6 of the ECHR
|
| Clark v HMA 2003 Scot (D) 1/12 | Appeal Court, High Court of Justiciary
| 28 November 2003 | s 57(2), Sch 6, para 1
| Unreasonable delay in court proceedings; alleged incompatibility with article 6 of the ECHR
|
| HMA v Bowie 2004 SCCR 105 | High Court of Justiciary
| 8 December 2003 | s 57(2) |
Accused pled guilty to drug trafficking on one day only; Crown seeking confiscation of proceeds of drug trafficking over greater period. Alleged incompatibility with Article 6 of the ECHR
|
| Grampian University Hospitals NHS Trust v Frame 2004 SCCR 173; 2004 Scot (D) 20/2
| Appeal Court, High Court of Justiciary |
13 Feb 2004 | ss 57(2), 100(1)(b)
| Whether NHS Trust a non-governmental organisation and therefore has right not to incriminate itself. Alleged incompatibility with Article 6 of the ECHR
|
| Corstorphine (aka Smith) v HMA 2004 SCCR 193
| Appeal Court, High Court of Justiciary |
19 Feb 2004 | s 57(2) | Irregularly obtained evidence; whether incompatible with article 8; Whether admission of evidence incompatible with article 6 of the ECHR
|
Flynn & Ors v HMA 2004 SCCR 281; 2004 Scot (D)
33/3
| Privy Council | 18 Mar 2004
| ss 29(2)(d), 101(2) | Parole Board put back date appellants would be considered for release due to Convention Rights (Compliance) (Scotland) Act 2001; alleged incompatibility with Art 7 of ECHR
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| Case citation | Court
| Judgement Date | Section(s) of Scotland Act referred to
| Devolution issue |
| Adam and ors v the Scottish Ministers 2004 Scot (D) 1/6
| Second Division, Inner House, Court of Session
| 28 May 2004 | s 29(2)(d) |
Act banning mounted fox hunting with dogs: whether ban contrary to petitioners' human rights
|
| Matthew v Aitken 2004 SCCR 515; 2004 Scot (D) 2/7
| Appeal Court, High Court of Justiciary |
2 Jun 2004 | s 57(2) | Breach of condition of fishing licence; condition lacking precision necessary to found criminal offence. Alleged incompatibility with Art 7 of ECHR
|
| Gilchrist and another v HMA 2004 Scot (D) 13/10
| Appeal Court, High Court of Justiciary |
24 Aug 2004 | s 57(2) | Evidence obtained during unauthorised surveillance; whether incompatible with article 8 of the ECHR
|
| MM v HMA 2004 SCCR 658; 2004 Scot (D) 4/10
| Appeal Court, High Court of Justiciary |
11 Oct 2004 | Sch 6, para 9 |
Statutory restrictions on admissability of evidence of complainer's character in a sexual offences case: alleged incompatibility with article 6 of the ECHR
|
| Flynn & Ors v HMA Scot (D) 21/10
| Appeal Court, High Court of Justiciary |
14 Oct 2004 | s 29(2)(d) | Parole Board put back date appellants would be considered for release due to Convention Rights (Compliance) (Scotland) Act 2001; alleged incompatibility with Art 7 of ECHR
|
| Moir v HMA 2004 Scot (D) 20/11 | Privy Council
| 17 Nov 2004 | Sch 6, para 11 referral to JCPC
| Accused seeking to raise devolution issue to challenge legislation before trial; whether issue should be heard before trial
|
| Robbie the Pict v Wylie 2004 Scot (D) 10/12
| Appeal Court, High Court of Justiciary |
7 Dec 2004 | s 57(2), Sch 6 |
Complainer on trial in district court; Justices continued proceedings to allow complainer to raise devolution minute as to fairness of trial (Article 6(1))
|
| Kearney v HMA 2005 SCCR 79 | Appeal Court, High Court of Justiciary
| 17 Dec 2004 | ss 44, 48(5), 57(2), Sch 6, para 1
| temporary sheriff: alleged incompatibility with article 6 of the ECHR
|
| Robertson and ors v Frame and Griffiths 2005 SCCR 134
| Appeal Court, High Court of Justiciary |
18 Jan 2005 | s 57(2) | temporary sheriff: alleged incompatibility with article 6 of the ECHR
|
| Hansen v HMA 2005 Scot (D) 29/3 |
Appeal Court, High Court of Justiciary | 4 Mar 2005
| Sch 6 | Whether insistence by the Lord Advocate in prosecution was incompatible with right to a hearing within a reasonable time under art 6(1) of the ECHR
|
| Quninan, PF, Dumbarton 2005 Scot (D) 14/3
| Appeal Court, High Court of Justiciary |
16 Mar 2005 | Sch 6, para 1 |
Whether criminal proceedings against the appellant were disproportionate and incompatible with arts 10 and 11 of the ECHR
|
| Marnoch v HMA 2005 SCCR 354 | Appeal Court, High Court of Justiciary
| 14 Apr 2005 | s 57(2) |
Evidence obtained during unauthorised surveillance; whether incompatible with article 8; Whether admission of evidence incompatible with article 6 of the ECHR
|
| Sinclair v HMA 2005 SCCR 446; 2005 Scot (D) 3/5
| Privy Council | 11 May 2005
| s 57(2), Sch 6, para 1 | Failure of Crown to disclose police statements of witnesses—Disclosure not sought by defence before trial: alleged incompatibility with article 6alleged incompatibility with article 6 of the ECHR
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| Case citation | Court
| Judgement Date | Section(s) of Scotland Act referred to
| Devolution issue |
| HMA v D S Accused 2005 SCCR 655 |
Appeal Court, High Court of Justiciary | 3 Aug 2005
| Sch 6, para 9 | statutory provision requiring prosecutor to place previous convictions before court: alleged incompatibility with article 6 of the ECHR
|
| Headrick, minuter 2005 Scot (D) 10/11
| Sheriff Court, Edinburgh | 8 Sep 2005
| ss 52, 53, 57(2), (3)(b), Sch 6, para 1 |
unreasonable delay in contravention of article 6 rights; whether actings of Scottish Ministers or Lord Advocate can be subject of devolution issue
|
| PF, Kinguissie v Spencer 2005 Scot (D) 8/10
| Appeal Court, High Court of Justiciary |
12 Oct 2005 | Sch 6, para 9 |
Criminal procedure: whether charge incompatible with article 6 of the ECHR
|
| HMA v Headrick 2005 SCCR 787; 2005 Scot (D) 17/11
| Sheriff Court, Lothian and Borders | 27 Oct 2005
| ss 52, 53, 57(2), (3)(b), Sch 6, para 1 |
unreasonable delay in contravention of article 6(1) rights; whether actings of Scottish Ministers or Lord Advocate can be subject of devolution issue
|
| HMA v Voudouri 2005 Scot (D) 8/11 |
High Court of Justiciary | 10 Nov 2005
| s 98, Sch 6, para 36 | Crown failing to lodge proper submissions in outline and list of authorities; whether expenses should be awarded against Crown
|
| Kearney v HMA 2006 SCCR 130 | Privy Council
| 6 Feb 2006 | ss 44, 48(5), 57(2), Sch 6, para 1
| temporary sheriff: alleged incompatibility with article 6(1) of the ECHR
|
| Ruddy v Griffiths 2006 SCCR 151 |
Privy Council | 6 Feb 2006 |
s 57(2), Sch 6, para 1 | temporary sheriff: alleged incompatibility with article 6(1) of the ECHR
|
| Wylie v Robbie the Pict 2006 SCCR 221
| Appeal Court, High Court of Justiciary |
15 Feb 2006 | s 95; s 57(2), Sch 6, para 1
| Validity of judicial appointments; Schedule 6 of the Scotland Act; alleged incompatibility with article 14 of the ECHR
|
| Goatley v HMA 2006 SCCR 463 | Appeal Court, High Court of Justiciary
| 12 July 2006 | ss 44, 51(1), 57(2), Sch 6, para 1
| extradition proceedings: alleged incompatibility with article 8 of the ECHR
|
| Antonio la Torre v. HMA 2006 SCCR 503
| Appeal Court, High Court of Justiciary |
14 July 2006 | ss 44, 57(2), Sch 6, para 1
| extradition proceedings: alleged incompatibility with article 8 of the ECHR
|
| McNaughton v Gilchrist 2006 SCCR 637
| Appeal Court, High Court of Justiciary |
11 Oct 2006 | s 57(2), Sch 6, para 1
| temporary sheriff: alleged incompatibility with article 6(1) of the ECHR
|
| Mungo Bovey QC Petitioner 2006 SCLR 498
| Court of Session, Outer House | 18 Nov 2006
| Sch 6, paras 11, 13 | Legal Aid fees; whether Auditor of Court of Session had right to tax account
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