Scottish bail conditions breach human rights to liberty, rules Scottish court
10 February 2012
Brought to you by Andrew Tickell
Cameron v. Procurator Fiscal  ScotHC HCJAC_19 – Read judgment
Amongst Scots lawyers, few judicial observations are more notorious than those uttered by Lord Cranworth in the House of Lords in Bartonshill Coal Co v Reid in 1858. “If such be the law of England,” he said, “on what ground can it be argued not to be the law of Scotland?” Today, in a United Kingdom further complicated by the asymmetric devolution of the 1990s, it isn’t unusual to encounter a Cranworthy combination of perplexity and indifference amongst English lawyers when it comes to the structure and implications of devolution elsewhere in these islands.
On one level, this is perfectly understandable. Devolution is a matter for the Welsh, Northern Irish and Scots, the proposition runs. Let them get on with it. For those of us interested in the developing constitution, human rights and judicial review, weary of re-reading hand-me-down copies of Dicey, this inattention is to be regretted. The emerging body of litigation around devolution, and the powers of devolved institutions, is producing some of the most interesting “constitutional” cases in Britain today.
This week furnishes another, from the Scottish courts. In Cameron v. Procurator Fiscal, Livingston, the Court of Criminal Appeal in Edinburgh decided that the provisions of a 2010 reform to the standard Scottish bail conditions were incompatible with Article 5 rights to liberty under the European Convention.
I’ll return to the detail of Cameron in a moment, but it is worth pausing beforehand, to emphasise the – generally overlooked – jurisdiction now enjoyed by Scottish courts in relation to Acts of the Scottish Parliament. As the debate around the proposed repeal of the Human Rights Act continues to fume, what generally isn’t mentioned is that the devolution settlements all incorporate human rights review of the statutes and measures passed in Edinburgh, Cardiff and Belfast, quite independently of the Human Rights Act.
The remedies available to aggrieved litigants challenging the laws adopted by devolved institutions differ too. While courts reviewing Westminster legislation are constrained only to offer declaratory remedies under the Human Rights Act – “declarations of incompatibility” which do “not affect the validity, continuing operation or enforcement” of Westminster Acts found to be incompatible with Convention rights – for Holyrood, Stormont and the Senedd, this is precisely the legal consequence of a judicial finding that their primary legislation is incompatible.
Under the Scotland Act, any law passed by Holyrood which violates Convention rights is simply outside the parliament’s legal competence, is invalid, and courts can strike offending provisions down, rather than being limited to mannered declaratory disposals. The Northern Ireland Act and the 2006 Government of Wales Act both include similar provisions.
This is precisely what happened in the Cameron case in Edinburgh this week. The impugned reform, enacted in Holyrood’s last session, added two new provisions to the standard Scottish bail conditions, requiring that any bailed person:
§24(5)(cb) “whenever reasonably instructed by a constable to do so –
(i) participates in an identification parade or other identification procedure; and
(ii) allows any print, impression or sample to be taken from the accused”
For the Scottish Government, adding these additional conditions to standard bail conditions was primarily seen an efficiency measure, seeking to:
“remove the need for the Crown to seek a further special bail condition for an accused to make themselves available for attendance at any ID procedure. Such conditions are becoming more and more common and by including it in the standard conditions, this will save court time through the Procurator Fiscal not having to ask the court to impose the additional condition.”
Under the much-amended Criminal Procedure (Scotland) Act 1995, these standard bail conditions are mandatory, meaning that courts granting bail applications are bound to give these powers to police, whatever the circumstances of the individual case. Not justified, concluded Lords Eassie, Brailsford and Osborne. Holding that Article 5 was engaged by pre-trial bail conditions, the Court identified the “fundamental problem” with the new obligatory DNA and ID bail conditions is their elimination of …
“… all elements of judicial discretion and supervision of the question whether the particular accused may be required to submit to evidence gathering or other investigatory procedures as a counterpart for his obtaining pre-trial liberty. As was pointed out in the discussion before us, while an accused who has not been in custody may be required to participate in an identification procedure by virtue of section 267B of the 1995 Act, whether he should be subjected to that requirement is a matter of judicial decision in the individual circumstances of the case and provision is made for his having an opportunity to make representations to the court. The taking of prints, impressions or samples from such an accused would, of course, require judicial warrant. To that extent we have come to the view that the inclusion of the condition in question as a mandatory condition on the grant of bail is incompatible with the rights secured to the citizen by Article 5 ECHR. As earlier indicated, the Crown frankly indicated its difficulty in advancing to us any comprehensible reason for the amendment effected by the 2010 Act which might require to be weighed in any assessment of its compatibility with the Convention.” [para 19]
For regular observers of Scottish Courts, the striking feature of the Court of Appeal’s judgment in Cameron is its confidence – a terse analysis, striking down the offending provision without outward signs of reticence, or deference to the legislature. Despite the theoretical strength of human rights review under the Scotland Act, in practice, some have expressed concerns that Scottish judges were proving overly reluctant to exercise their human rights jurisdiction in a thoroughgoing and potentially controversial way.
Prominent Scottish QC Maggie Scott, for example, has argued that “there has been a failure by the Scottish courts, in particular the appeal court, to engage in human rights implementation into Scots law”, after the High Court’s deferential and cautious approach to the human rights claims advanced in Cadder and Fraser were dramatically and rather scathingly overturned on appeal to London
The Appeal Court’s change of tone in Cameron may well be an indication that, stung by these criticisms, Scottish courts are beginning much more confidently and more robustly to apply themselves to the human rights norms that constitute Scotland’s “constitution”, under devolution.
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