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HIGH COURT OF JUSTICIARY [2007] HCJ08 |
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OPINION OF LADY SMITH in the cause D.L. Appellant; against HER MAJESTY'S ADVOCATE Respondent: ญญญญญญญญญญญญญญญญญ________________ |
Appellant: McKenzie, Advocate
Respondents: Dr A. Brown, Advocate-depute
Introduction
[1] An issue arose in this case in the context of the accused's bail appeal. It is a short point and is that he wished to be present at the hearing of his appeal against the refusal of bail. He had not been brought to the court from prison, where he had been remanded pending trial. He was represented by a solicitor and counsel. The issue that arises is whether he was entitled to be present at the hearing.
Background
[2] The accused has been
charged with having murdered his wife.
He was refused bail by the Sheriff at
"Our client would wish to be brought through for the above so that we can consult with Counsel. We enclose a copy of our letter to the Prison of even date."
[3] The letter to the prison was in the following terms:
"We enclose a
copy of our letter of even date to Justiciary and perhaps you could note that ...
is to be taken through to
[4] The
accused was not ordered up for the hearing which first took place on
The Hearing on
[5] Miss McKenzie appeared on behalf of the accused. She moved for a continuation which I did not consider it appropriate to grant. The grounds for that motion and its refusal are not pertinent to the issue with which this opinion is concerned.
[6] Miss McKenzie submitted that the hearing of the accused's bail appeal should not proceed in his absence. He had a right to be present. She advanced two grounds in support of that submission. The first was that the accused had instructed that he wanted to be present. It was not just a matter of wishing to consult, as was suggested by his agents' letter. He wished to be present at the hearing. He was studying for a law degree and considered that it would assist his case if he was present. The second was that there had been occasions in the past when the court had allowed accused persons to be present at the hearing of bail appeals.
[7] The
Advocate-Depute, for the Crown, opposed the motion. The accused did not have a right to be
present. The two relevant sources of law
were article 6(1) of the convention and s.32(4) of the Criminal Procedure(
Relevant Law
[8] Section 32 of the 1995 Act makes provision for bail appeals and s.32(4), in particular, provides:
"An appeal under this section shall be disposed of by the High Court or any Lord Commissioner of Justiciary in court or in chambers after such inquiry and hearing of parties as shall seem just."
[9] Article 6(1) of the European Convention on Human Rights, insofar as relevant for consideration in connection with this issue, provides:
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
[10] Article 5 of the convention, again insofar as relevant in connection with this issue, provides:
"1. Everyone has the right to liberty and security of person. No one shall be deprived of liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful ... detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or fleeing after having done so ...
...
3. Everyone who is ... detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power ...
...
4. Everyone who is deprived of his liberty by ... detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
[11] In the case of X v Federal Republic of Germany an applicant charged with murder complained that he was refused permission to appear in person before the Court of Appeal when decisions were taken confirming his detention on remand pending trial and that that refusal was a contravention of his article 6 rights. The court held that those proceedings were not concerned with the determination of the applicant's civil rights or obligations nor were they proceedings for the determination of a criminal charge against him. It followed that the proceedings fell outwith the scope of Article 6.
[12] Article 5 provides a set of procedural rights for
detainees and also requires to be considered.
Although not cited to me at the hearing today, I should add that I
consider that what is said in paragraph 51 of the judgment in Sanchez-Reisse v Switzerland 1987 9 EHRR 71 referred to in the more recent case of Kampanis v Greece 1996
21 EHRR 43, appears to be relevant to the issue raised:
"In the Court's opinion, Article 5(4) required in the present case that Mr Sanchez-Reisse be provided in some way or another, with the benefit of an adversarial procedure.
Giving him the possibility of submitting written comments on the Office's opinion would have constituted an appropriate means, but there is nothing to show that he was offered such a possibility. ...
The applicant's reply did not, however, necessarily have to be in writing: the result required by Article 5(4) could also have been attained if he had appeared in person before the Federal Court.
The possibility for a detainee 'to be heard either in person or, where necessary, through some form of representation' features in certain instances among the "fundamental guarantees of procedure applied in matters of deprivation of liberty". Despite the differences in wording between paragraph 3 (right to be brought before a judge or other officer) and paragraph 4 ( right to take proceedings) of Article 5, the Court's previous decisions relating to these two paragraphs have hitherto tended to acknowledge the need for a hearing before the judicial authority."
[13] Thus, the court in Sanchez-Reisse
did not regard the presence of the accused in person as being required to meet the
requirements of Article 5(4) albeit that that would be one way of doing
so. It is apparent both from that
decision and the decision in Kampanis
that it is not the only way and that the key consideration is whether or not
the accused has been afforded a proper adversarial procedure in a hearing
before a judicial authority. That that
is the key consideration is also apparent from cases such as Toth v
Discussion and Decision
[14] I determined that the accused did not have the right contended for by Miss McKenzie.
[15] Dealing firstly with the reference to accused persons having been present at bail appeals in the past, it seems to me that there are two separate sets of circumstances in which that might arise. The first is where the accused is unrepresented and wishes to appeal against a refusal of bail. It is self evident that in those circumstances he will normally be entitled to appear at the hearing. I say "normally" since I do not rule out the possibility that, in a particular case, his interests may be sufficiently protected and a proper adversarial process achieved by receiving his submissions in written form. The second is where the court, using the powers conferred by s.32(4) considers that justice requires that the accused be present.
[16] In the present case, the accused was represented by counsel who, in turn, had been instructed by a solicitor acting on his behalf. She had instructions to appear for him. She was, as it transpired, in a position to address the merits of the application, notwithstanding an initial indication that she could not do so. It seemed in fact that that indication was attributable to two further psychiatric reports that have been instructed not yet being available rather than being attributable to her not having familiarity with or instructions in respect of, the matters relied on by the Crown in support of its opposition to bail. In short, she was in a position to put his case and to do so in the light of all arguments raised against it. The accused was thus able to be afforded the benefit of a proper and full adversarial procedure.
[17] It was in these circumstances that I refused the motion to continue the appeal until the accused was present. I did so on three grounds:
1. I was satisfied that the accused's article 6 rights were not being breached since the hearing did not have the potential for determining any of his civil rights or obligations or the criminal charge outstanding against him;
2. I was satisfied that the requirements of Article 5(4) were met in respect that he was able to be afforded a proper adversarial procedure through his legal representatives; and
3. I did not consider that justice required him to be present in circumstances where he was able to be afforded the procedure above referred to through representation the adequacy of which I had no reason to doubt.