Supreme Court decision: Criminal procedure and article 6
Public Law and Judicial Review
Today the UK Supreme Court issued its long awaited decision in the criminal appeals of Keir and Daly v HM Advocate. The judgment will have major ramifications for the way in which sexual offence cases are dealt with in Scotland’s criminal courts.
David Welsh was instructed as junior counsel on behalf of the interveners, the Faculty of Advocates and the Law Society of Scotland and was led by Roddy Dunlop KC and Claire Mitchell KC.
The Supreme Court had been asked to consider whether the recent practice of the Scottish courts to treat certain categories of evidence as inadmissible on the common law basis of relevance (instead of leaving such matters under the control of trial judges) undermined the right of those accused of sexual crimes to a fair trial. After very careful consideration, it concluded that it did.
This Case in 60 Seconds
- Case: Keir and Daly v HM Advocate
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Court: UK Supreme Court
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Issue: Whether the Scottish courts’ exclusion of certain evidence on common law grounds of “relevance” breaches the right to a fair trial under Article 6 ECHR.
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Decision: Yes — the Supreme Court held the practice deprives accused persons of the right to present relevant evidence to a jury.
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Key Quote: “No society governed in accordance with the rule of law can tolerate the conviction and punishment of the innocent.”
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Impact: The ruling requires Scottish courts to return control of sensitive questioning to trial judges under the statutory scheme, fundamentally reshaping the handling of sexual offence cases in Scotland.
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Counsel: David Welsh (junior counsel), led by Roddy Dunlop KC and Claire Mitchell KC, acting for the Faculty of Advocates and the Law Society of Scotland as interveners.
The Ruling and Legislation
The Supreme Court has determined that the current Scottish approach – which has been in place since 2013 – is liable to deprive an accused person of the right to put obviously relevant evidence before a jury, in breach of the right to a fair trial guaranteed by article 6 of the European Convention. The Court found that the long-held concerns regarding this practice were justified.
This decision requires the Scottish courts to change the way in which they deal with such cases. As the court stated: ‘no society governed in accordance with the rule of law can tolerate the conviction and punishment of the innocent’.
It is not only in the interests of the accused that a trial is carried out fairly, but something that everyone in a liberal democratic society should be concerned about.
The “Common Law” Exclusion
The ruling addresses the balance between protecting complainers and ensuring a fair trial for the accused. Countries across the world have long recognised the need to protect complainers in sexual offence cases from needlessly intrusive and humiliating questioning. Parliament introduced a statutory scheme forty years ago, updated in 2002, which was designed to place questioning on sensitive topics under strict judicial control. This statutory scheme was approved by the country’s highest courts and by the European Court of Human Rights. The Supreme Court has been clear that the legislation itself is not the concern in these appeals.
However, in recent years, many in the legal profession became concerned that Scottish courts were not applying the statutory scheme. Instead, the scheme was effectively being avoided by determining the evidence not to be relevant as a matter of common law, resulting in the refusal to allow accused persons to present certain evidence at trial. It is that increasingly restrictive approach that has been determined to be problematic.
Procedural Context and Implications
The Law Society of Scotland and the Faculty of Advocates, the bodies representing solicitors and advocates respectively, took the unusual step of intervening in the appeals so that the concerns could be articulated on behalf of the legal profession. The effect of today’s decision is to require the Scottish courts to change the way in which they deal with such cases.
In practice, that should result in the meaningful reinstatement of the statutory scheme, with questioning being returned to the control of trial judges.
The decision is very important in terms of criminal procedure in Scotland. The practical ramifications of the decision will be wide ranging and significant.
