Criminal Appeals

Martin Kyle v. Her Majesty’s Advocate [2010] HCJAC 28

Wed, 17 Mar 2010 21:40:55 GMT

Criminal Note of Appeal Against Sentence:- The appellant was convicted after trial on indictment at Dundee Sheriff Court on charges of:- (1) being concerned in the supply of heroin contrary to section 4(3)(b) of the Misuse of Drugs Act 1971; (2) obstructing officers of Tayside Police in execution of their duty contrary to section 23(4)(a) of the Misuse of Drugs Act 1971; and (3) being in possession of a quantity of cannabis resin contrary to section 5(2) of the Misuse of Drugs Act 1971. All of the offences were committed while the appellant was on bail and he was sentenced to four years' imprisonment on the supply charge of which period 6 month was attributed to the bail aggravation. On the obstruction charge he was sentenced to nine months' imprisonment, three months attributable to the bail aggravation. The appellant was admonished in regard to the possession of cannabis charge. The two sentences of imprisonment were ordered to run consecutively. The appellant lodged a note of appeal against sentence which contained two grounds:- (1) the sentences were excessive having regard to the circumstances of the offence and the personal circumstances of the appellant; and (2) the sheriff should have imposed concurrent sentences of imprisonment and not consecutive sentences. Leave to appeal was granted and on 27 June 2008 an interlocutor was pronounced remitting the appeal to a bench of three judges for "determination ... of the maximum sentence competently available to a sentencer in respect of bail aggravations on a complaint/indictment containing more than one bail aggravated charge ..." Here it was submitted on behalf of the appellant that the maximum period of imprisonment which could be imposed in respect of a bail aggravation was six months and the six months' extension to the sentencer's maximum powers was the maximum available to the sentencer for distribution over the totality of the aggravated charges. Accordingly, it was submitted that the imposition of nine months for the bail aggravations in the present case by the sheriff was incompetent. Here the court considered whether the sentence imposed was incompetent and also whether the sentence imposed was excessive to the extent that the sentences should have been imposed concurrently.

William Gemmell Mackintosh v. Her Majesty’s Advocate [2010] HCJAC 30

Wed, 17 Mar 2010 21:37:35 GMT

Criminal Note of Appeal Against Conviction:- Following trial at the High Court at Paisley on 15 August 2002 the appellant was convicted of a charge of assault to severe injury and a charge of rape. On 5 September 2002, the court sentenced the appellant to twelve years imprisonment to run from 15 August 2002, in cumulo in respect of the two charges. A number of grounds of appeal against his conviction were lodged one of which was to the effect that a miscarriage of justice had occurred in consequence of the trial judge having erroneously repelled a submission of no case to answer at the conclusion of the Crown case in relation to the rape. That ground of appeal was held to be well-founded and the conviction in relation to the rape charge was quashed last year. Here a further ground of appeal relevant to the appellant's conviction on both charges was considered. It was submitted on behalf of the appellant that the evidence of Patricia Belton was now available which was significant and would have had a material part to play in the jury's deliberations if it could have been led at the trial and could be being regarded by a reasonable jury as credible and reliable and there had been a miscarriage of justice. The evidence of Belton was heard and it was submitted on behalf of the appellant that the evidence was to be seen as fresh evidence and the issue of a reasonable explanation, in terms of section 106(3A) of the Criminal Procedure (Scotland) Act 1995, did not constitute an obstacle in the circumstances of the case here. It was further submitted that the evidence was capable of being regarded as both credible and reliable by a reasonable jury and was plainly of material importance. In these circumstances the appellant's conviction on the assault charge should also be quashed. Here the court considered, firstly, whether the evidence of Patricia Belton fell within the scope of section 106(3)(a) of the 1995 Act and, secondly, whether the court considered that the additional evidence was capable of being regarded as credible and reliable by a reasonable jury.

Gary Polland v. Her Majesty’s Advocate [2010] HCJAC 29

Wed, 10 Mar 2010 20:17:28 GMT

Reference from Scottish Criminal Cases Review Commission:- On 22 November 2006 following a trial at Glasgow High Court the appellant was convicted of two charges of aggravated assault. The appellant was subsequently sentenced to an extended sentence of 8 years detention comprising a custodial term of 6 years and an extension period of 2 years in relation to charge one. In relation to the second charge he was sentenced to 18 months detention to run concurrently with the first charge. The appellant appealed against his conviction on charge 1 on different grounds from those raised in this reference. In June 2007 application for leave to appeal was refused at both first and second sifts. The appellant applied to the Scottish Criminal Cases Review Commission who made a reference to the court on 14 October 2008. The first ground of appeal related to the failure by the Crown to disclose certain material relating to a defence witness of the appellant’s co-accused whom the Crown had obtained a statement from. In addition a synopsis of the CCTV footage prepared by a police officer was included in the report to the procurator fiscal but was not included as a production and was not disclosed to the defence. The second ground of appeal related to defective representation on the basis of an alleged failure of trial counsel, even in the absence of access to the undisclosed material, properly to appreciate the significance of the CCTV footage and to identify the man with the golf club as the defence witness and not the appellant. Here it was submitted on behalf of the appellant that the cumulative effect of the non‑disclosure and the defective representation gave rise to a miscarriage of justice. The Crown accepted that the material identified in the ground of appeal ought to have been disclosed, however, the advocate depute submitted that there had been no miscarriage of justice and as far as the question of defective representation was concerned the advocate depute submitted that it was not clear that trial counsel had been under a misapprehension as to the contents of the CCTV footage. Here the court considered whether there was a real possibility that the jury would have arrived at a different verdict if the undisclosed material had been available and whether trial counsel did misunderstand the contents of the CCTV footage to the extent of amounting to defective representation.

William Frederick Ian Beggs v. Her Majesty’s Advocate [2010] HCJAC 27

Wed, 10 Mar 2010 20:16:05 GMT

Criminal Note of Appeal Against Conviction:- On 12 October 2001 at Edinburgh High Court the appellant was convicted after trial of a charge of murder. After significant delay and protracted procedure a number of grounds of appeal were argued on behalf of the appellant:- (1) the appellant did not receive a fair trial as a consequence of prejudicial publicity both prior to and during his trial; (2) the trial judge erred in admitting, as hearsay evidence under section 259 of the Criminal Procedure (Scotland) Act 1995, a purported 'statement' made by Kenneth Petrie (who died on 23 February 2001) to police officers on 21 March 2000 and the document should have been regarded as a precognition; (3) the advocate depute made frequent, deliberate, inappropriate and prejudicial comments both in the course of the evidence led before the jury and in his address to them at the conclusion of the trial to the effect that the appellant was able to give evidence about matters which were relevant to the issues to be considered by the jury and that his silence was to be interpreted as an inference to the proof of his guilt; (4) the search warrant upon which the Crown relied did not authorise a search of the appellant’s house but was instead a warrant for the search of the appellant's garage at 2 Dee Avenue, Kilmarnock; (5) the trial Judge erred in rejecting a submission on the sufficiency of the evidence in relation to:- (a) the allegation of assault by punching the deceased on the face; (b) the allegation of assault by penetrating the deceased's hinder parts; (c) the charge of murder; and (d) any alternative finding in terms of culpable homicide; (6) the admissibility of evidence of travel by the appellant to the Netherlands and the effect of leading that evidence before the Jury was that evidence was led of a crime with which the Appellant was not charged and for which his extradition was not sought, namely an attempt to pervert the course of justice by fleeing and absconding; (7) the specialty rule precluded the leading of any evidence of actings which, while yet relevant and habile to prove the extradition crime, constituted in themselves a separate crime or offence for which express authority had not been granted by the extraditing state; (8) in the particular circumstances and complexities of the present case the fact that the jury did not give reasons for its verdict was not sufficient to meet the fair trial guarantee; (9) the failure of the Crown to disclose a police statement of the witness Irene Callaghan which impeded counsel in his field of cross-examination on the basis of a prior inconsistent statement. Here the court considered the various grounds on their individual bases, but also cumulatively, to assess whether a miscarriage of justice had occurred.

R. v B: CA (Crim Div): 21 January 2010

Wed, 24 Feb 2010 22:12:34 GMT

Appeal dismissed: The provisions of the Youth Justice and Criminal Evidence Act 1999 s.53 regarding the competence of witnesses to give evidence were clear and unequivocal and did not require reinterpretation, and a judge had been entitled to conclude that the competence of a four year old child to give evidence in relation to an allegation of rape had been established.

R. v Starmer (Richard Gordon) CA (Crim Div): 22 January 2010

Wed, 24 Feb 2010 22:10:26 GMT

Application refused: The need for a jury direction of the type from R. v Brown (Kevin) (1984) 1 B.C.C. 98970, [1984] C.L.Y. 624 would seldom occur and would not occur when what was alleged was a course of conduct. It was necessary only in those cases where two or more different ways of committing the same offence were alleged in the same count.

R. v Wilkinson (Lee Geoffrey) CA (Crim Div): 11 December 2009

Wed, 24 Feb 2010 22:01:20 GMT

Appeal allowed: A man who had pleaded guilty to possessing criminal property, namely a stolen car, after he had test-driven it had not "obtained property", so that a confiscation order should not have been made against him.

R. v M CA (Crim Div), 13 November 2009

Wed, 24 Feb 2010 21:59:51 GMT

Applications refused: Although the Criminal Justice Act 2003 Sch.21 para.10 was silent or unspecific in relation to cases of murder resulting from the misuse of knives, the purpose of the schedule was illustrative and not exhaustive. Accepting that the starting point would not normally be the same as that involving a firearm or explosive, nevertheless it would always be an aggravating feature in any case involving death or injury, that the death or injury had been inflicted with a knife.

He Ding Chang v. Her Majesty’s Advocate [2010] HCJAC 18

Wed, 24 Feb 2010 19:53:03 GMT

Criminal Note of Appeal Against Conviction:- On 14 November 2008, the appellant was convicted by a majority following a jury trial at Glasgow Sheriff Court of a contravention of section 4(2)(b) of the Misuse of Drugs Act 1971, namely the cultivation of cannabis. Here the appellant appealed against his conviction on two grounds:- (1) in relation to the sheriff's answer to a question from the jury; and (2) that no reasonable jury, properly directed, could have returned a guilty verdict in terms of section 106(3)(b). The question raised by the jury was:- “If we believed that he, that is the accused, was cooking and cleaning and was aware of the Cannabis cultivation but are not sure beyond a reasonable doubt that he had any dealings with the plants, can we find him guilty?”. The sheriff answered the question. Here it was submitted on behalf of the appellant that the effect of the answer given was to negate the impact of all the previous directions relating to acquittal in the event of acceptance of the appellant's evidence or that evidence raising a reasonable doubt and that amounted to a misdirection which amounted to a miscarriage of justice. It was further submitted that the evidence did not entitle a reasonable jury to conclude that the appellant was concerned in the cultivation of cannabis. Here the court considered whether the sheriff's answer negated the impact of his previous directions and caused confusion to the jury. Further, the court considered whether on the evidence led at the trial, no reasonable jury properly directed could have reached the guilty verdict.

Lee William Reid Niblock v. Her Majesty’s Advocate [2010] HCJAC 21

Wed, 24 Feb 2010 19:51:57 GMT

Criminal Note of Appeal Against Conviction:- On 15 January 2009, following jury trial at Ayr Sheriff Court, the appellant was convicted of assault to severe injury, permanent disfigurement and permanent impairment. The only eye witness evidence led at trial came from the complainer and a witness “Smith”, however, only the complainer identified the appellant as the perpetrator of the assault. During Smith’s evidence the procurator fiscal depute referred him to his police statement which he gave the day after the incident to DC McCreath in which he identified the appellant as the assailant. Smith confirmed in cross-examination that he had told DC McCreath what had happened, but went on to say that he was not saying that it was the appellant who committed the assault. In re-examination Smith confirmed that he had told DC McCreath the truth. Thereafter, DC McCreath gave evidence that Smith gave a statement to him on the day after the incident in which he identified the appellant as the assailant. At the close of the Crown case the solicitor for the appellant submitted that there was no case to answer since Smith's evidence did not corroborate the complainer's identification of the appellant as the assailant. The sheriff repelled the submission. During his charge the sheriff did not direct the jury on the evidential significance of Smith's police statement. The appellant was subsequently convicted. The appellant appealed on two grounds:- (1) that the sheriff erred in repelling the submission of no case to answer; and (2) in any event the sheriff misdirected the jury by failing adequately to direct them on the evidential value of Smith's police statement. Here the court considered whether the preconditions of section 260 of the Criminal Procedure (Scotland) Act 1995 were met and whether the witness Smith truly adopted his statement. Further, the court considered whether the sheriff's failure to direct the jury explicitly on the significance of the statement as an exception to the general rule on the inadmissibility of hearsay evidence constituted a misdirection.

Jacqueline Aiton v. Her Majesty's Advocate

Thu, 18 Feb 2010 07:59:18 GMT

Criminal Note of Appeal Against Conviction:- The appellant was convicted after trial at Edinburgh High Court of two charges of being concerned in the supply of diamorphine and cannabis resin contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The appellant lodged note of appeal under Section 110 of the Criminal Procedure (Scotland) Act 1995 and a number of grounds of appeal were considered at the appeal hearing. A number of criticisms were made of the trial judge’s directions to the jury, in particular, in relation to the burden of proof required which suggested that the jury could convict the appellant if all the Crown established was that she suspected or had reason to suspect that she was involved in an operation to supply the drugs specified in the charges. Further, it was submitted that there was insufficient evidence to establish that the appellant was concerned in the supplying of the controlled drugs during the period and at all the loci specified and the trial judge should have directed the jury that if they were to convict the appellant of either charge the libel should have been restricted in accordance with the evidence led and the latitude of the period of time of the libel should have been restricted to the single day on which the appellant was detained in terms of section 23 of the Misuse of Drugs Act 1971. Here the court considered whether the jury had a clear direction that it was for the Crown to prove that the appellant knew that she was involved in an operation the objective of which was the supplying of a material or substance to another or others. In addition, the court considered whether it was necessary for the jury to consider the terms and effect of section　28 of the Misuse of Drugs Act 1971 given that the appellant’s position was that of a simple denial of any involvement in a supplying operation, and ignorance of any drugs contained in the car in which she was travelling. In the event that the court considered there had been a misdirection it went on to consider whether there had been a miscarriage of justice.

Rory Connell Morrison v. Her Majesty's Advocate

Thu, 18 Feb 2010 07:55:01 GMT

Criminal Note of Appeal Against Conviction:- The appellant was convicted after trial on indictment at Edinburgh Sheriff Court of a charge of assault and a separate charge of robbery. The sheriff made an order in terms of section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in respect of sentences on another indictment matter, ordering that the appellant be returned to prison for a period of four　months. As regards the robbery charge on the present indictment, the appellant was sentenced to two　years and six months imprisonment and on the assault charge he was sentenced to eight months imprisonment and were ordered to run consecutively to each other and also consecutively to the period specified in the order under section 16. The appellant lodged a note of appeal under section 110 of the Criminal Procedure (Scotland) Act 1995 on the grounds that the jury had deleted any reference to an "assault" in relation to the robbery charge and in the absence of any other evidence of violence or intimidation, the jury ought to have convicted the appellant of theft only. It was further submitted that esto the conviction of the appellant for robbery was upheld a sentence of two　years six　months imprisonment was excessive. It was submitted on behalf of the appellant that the Crown had prosecuted their case as one of assault and robbery and once the jury had negatived the assault part of the charge the jury could not properly go on to convict of robbery and should have convicted the appellant of a simple theft. It was submitted on behalf of the Crown that the jury's verdict could be justified by the recognition that some violence had been used in the incident by the appellant, notwithstanding that the jury had made the deletions they did. Here the court considered the legal definition of robbery and, notwithstanding the deletions of the averment of assault and also the specification of the narrative relating to an assault, whether there was sufficient evidence of personal violence used for the purpose of appropriation of the property of the complainer to amount to a robbery. Further, the court went on to consider whether the sentence imposed on the robbery charge of two years and six months imprisonment was excessive.

Thomas Thomson v. Her Majesty's Advocate [2009] HCJAC 11

Thu, 11 Feb 2010 17:43:41 GMT

Criminal Note of Appeal Against Conviction:- On 10 August 1999 at Glasgow High Court the appellant was found guilty of a charge of rape. At trial the appellant's position was that although there had been sexual contact between him and the complainer it had been at her instigation and with her consent. Although he admitted to sexual intercourse in an interview with police, he denied in evidence that sexual intercourse had taken place, and claimed that he was under pressure during the interview. After the complainer completed her evidence in chief, counsel for the appellant sought leave of the court to allow certain questioning under and in terms of section 275(1)(c) of the Criminal Procedure (Scotland) Act 1995. The trial judge allowed questioning in relation to two parts of the application on the basis that the proposed questioning was directly relevant to the issues in the trial, however, he disallowed questioning in respect of the remaining three parts of the application on the basis that it could have no bearing on the credibility and reliability of the complainer in relation to the circumstances which were the subject of the trial and the line of evidence sought to be adduced was unsupported by any witnesses cited to give evidence for the defence in relation to the making of the false allegations referred to. The appellant appealed against his conviction on the basis that the trial judge had erred insofar as he refused the questioning, however, on 26 January 2001 the appeal was refused. In December 2003 the Scottish Criminal Cases Review Commission referred the appellant's case back to the court on the basis that it believed that there may have been a miscarriage of justice and expressed the view that the questioning disallowed at the trial did not strictly fall within the prohibition in section 274 of the 1995 Act, it being proposed only to show that the allegations were false, not that the complainer had in fact engaged in any other sexual behaviour. The only ground advanced at the hearing of the second appeal related to the trial judge's decision to refuse questioning in respect of the same matters as were referred to in the previous appeal and on 20 January 2005 the second appeal was refused. On 12 October 2006 the appellant's case was referred back to the court by the Commission which adhered to the views expressed in its earlier report, concluded that "the consequences of the approach taken by (the solicitor advocate) was that the applicant was denied the opportunity of having his appeal properly argued before the High Court and, as such, the applicant has suffered a miscarriage of justice". Here two grounds of appeal were argued:- (1) that the trial judge erred in refusing trial counsel leave to question the complainer in terms of the section 275 application; and (2) related to fresh evidence which was of such significance that the verdict reached in ignorance of it could be regarded as a miscarriage of justice. Here the court considered whether the trial judge was correct to hold that the proposed questioning was a collateral matter which was irrelevant and did not have any direct bearing on the credibility and reliability of the complainer. In relation to the "fresh evidence" the court considered whether it was admissible and, if it was, whether it would have been material.

John Scott Anderson v. Her Majesty's Advocate [2010] HCJAC 9

Thu, 11 Feb 2010 17:42:39 GMT

Criminal Note of Appeal Against Conviction:- On 29 September 2008, the appellant was convicted at Edinburgh High Court after trial of a charge of murder. At the trial the position put forward by the appellant was that he had been acting in self defence of himself, his brother and his mother. During his address to the jury, senior counsel for the appellant raised the issue of provocation as being a basis upon which the jury might reduce a verdict of guilty from one of guilty of murder to one of guilty of culpable homicide. After the advocate depute and counsel for the appellant had addressed the jury the trial judge raised with them, outwith the presence of the jury, whether a verdict of culpable homicide was sustainable within the context of provocation. Following submissions by parties the trial judge intimated that he was of the view that provocation could not be made out and that his charge to the jury would contain a direction that the only verdict of acquittal which would be open to the jury would be on the basis of self defence. The appellant appealed against conviction on the basis of those directions. It was submitted on behalf of the appellant that the trial judge had erred in withdrawing provocation from the jury and had acted illogically in allowing the defence of self defence to go to the jury, whilst withdrawing that of provocation given there had only been one stab wound suffered by the deceased. It was submitted that the trial judge's failure to direct the jury that it would have been open to them to return a verdict of culpable homicide had given rise to a miscarriage of justice. It was submitted on behalf of the Crown that it was not appropriate for the trial judge to have directed the jury that a verdict of culpable homicide was open on the basis of only one stab wound as the kitchen knife had been directed towards a particularly vulnerable part of the body which it had fatally injured. Further, it was submitted that although defences of self defence and provocation were sometimes linked they are separate lines of defence and the facts here would not have warranted a jury holding that the elements of provocation necessary to reduce a charge of murder to one of culpable homicide. Here the court considered:- (1) whether this was a case in which it would have been appropriate for the trial judge to have directed the jury that it would have been open to them to return a verdict of culpable homicide on the basis that the appellant had only struck one blow; and (2) whether the trial judge was entitled to withdraw the defence of provocation from the jury.

Ian Matthew Hopton v. Her Majesty's Advocate [2010] HCJAC 10

Thu, 11 Feb 2010 17:41:29 GMT

Criminal Note of Appeal Against Conviction:- On 30 October 2008, the appellant was convicted at Edinburgh High Court after trial of a charge of rape and sentenced to 8 years imprisonment. The appellant appealed against conviction on two grounds relating to misdirections by the trial judge in his charge to the jury:- (1) that the jury could use evidence from both the complainer and the appellant that a chair had been put against the front door of the flat and that that piece of evidence could be used to find corroboration both that the complainer was not consenting and the appellant knew that she was not; and (2) the way the jury were to treat the evidence of the first adult person the complainer spoke to after the incident and whether the complainer displayed signs of distress to that witness which could be used by the jury to infer a lack of consent on the complainers part. It was submitted on behalf of the appellant that it had not been opened to the jury to draw any inference adverse to the appellant from the evidence which the appellant had himself given about the chair as it had not formed any part of the charge against the appellant that he had used a chair to barricade the complainer within her flat nor had the complainer suggested that and the Crown had not sought to rely on the evidence relating to the chair as a source of corroboration of any of the essential elements of the complainer's evidence. It was submitted that the evidence in relation to the chair could not have been viewed by the jury as a threat against the complainer, and evidence of her lack of consent, or of knowledge on the part of the appellant that the complainer was not consenting to sexual intercourse. It was submitted that the directions in relation to the first adult person the complainer spoke to after the incident were not balanced and that the witness' impression may be based on less complete information than the jury had and as a result the jury should have been directed to treat carefully the significance of the impression. It was submitted that these misdirections of the trial judge had led to a miscarriage of justice. It was submitted on behalf of the Crown that it had been open to the jury to hold from the appellant's evidence that the chair from the living room had been placed behind the front door as a barricade was consistent with his having been engaged in raping the complainer and whether there was anything wrong with the trial judge's directions in relation to ground 2. Here the court considered inter alia whether the trial judge's directions relating to the appellant's evidence of having placed a chair behind the front door did constitute a misdirection and, if so, whether it resulted in a miscarriage of justice.

Mohammed Atif Siddique v. Her Majesty's Advocate [2010] HCJAC 7

Wed, 03 Feb 2010 15:55:49 GMT

Criminal note of appeal against conviction and sentence:- On 17 September 2007, at the High Court of Justiciary at Glasgow, the appellant was convicted after trial of four offences related to terrorism and sentenced to:- (a) 6 years' imprisonment in respect of charge (1) from 13 April 2006; (b) 6 months' imprisonment in respect of charge (3); (c) 2 years' imprisonment in respect of charge (4); and (d) one year's imprisonment in respect of charge (5). The period of imprisonment for charge (3) was to run concurrently with the period on charge (1) and the periods imposed on charges (4) and (5) were to run concurrently but consecutively to the period imposed on charge (1). Subsequently, the appellant lodged a Note of Appeal against conviction and sentence on a number of grounds including inter alia that the trial judge misdirected the jury in the course of his charge in relation to the jury assessing the question of whether the appellant's possession of the articles was for a purpose connected with the commission, preparation or instigation of an act of terrorism and what evidence they could consider in that assessment. Further, it was submitted that the trial judge misdirected the jury as to what amounted to a reasonable excuse in relation to the statutory defence of reasonable excuse under Section 58(3) of the Terrorism Act 2000. In addition, it was submitted that the trial judge had failed to present a balanced picture of the evidence to the jury during the charge. Here the court considered the various grounds of appeal, in particular, whether the directions given by the trial judge in respect of the relationship between the statutory language used in section 57(1) and the defence created by section 57(2) were sufficiently clear for the jury.

R (on the application of A) (Appellant) v B (Respondent) [2009] UKSC 12

Tue, 02 Feb 2010 23:09:56 GMT

Supreme Court - Press Summary

BACKGROUND TO THE APPEAL
A is a former member of the Security Service, B its Director of Establishments. A wants to publish a book about his work in the Security Service. A duty of confidentiality binds A and he cannot publish material relating to the Security Service without B’s consent. B refused A’s application for consent to publish. As a result, A began proceedings in the High Court to challenge B’s decision. He claimed, amongst other things, that his right to freedom of expression under article 10 of the European Convention on Human Rights had been breached. B argued that section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 (“RIPA”) provided that the Investigatory Powers Tribunal (“the IPT”)
was “the only appropriate tribunal” in relation to proceedings under section 7(1)(a) of the Human Rights Act 1998 brought against the intelligence services, such that the High Court did not have jurisdiction to entertain A’s article 10 claim.

The High Court held that it had jurisdiction to hear A’s challenge. The Court of Appeal, by a majority, reversed the High Court’s decision, holding that exclusive jurisdiction did lie with the IPT. A appealed to the Supreme Court. Justice (an all-party law reform and human rights organisation) intervened in the appeal in support of A’s submissions.

JUDGMENT
The Supreme Court unanimously dismissed A’s appeal. Lord Brown, with whom all the members of the Court agreed, gave the leading judgment. Lord Hope gave a concurring opinion.

REASONS FOR THE JUDGMENT
Two alternative arguments were advanced by A:
 Section 65(2)(a) excludes the section 7(1)(a) jurisdiction of any other tribunal but not that of the courts.
 Even if section 65(2)(a) is to be construed as conferring exclusive section 7(1)(a) jurisdiction on the IPT, it does so only in respect of proceedings against the intelligence services arising out of the exercise of one of the investigatory powers regulated by RIPA.

As to the first argument, Lord Brown noted that the language of section 7(2) of the 1998 Act and the use of the word “only” before “appropriate tribunal” in section 65(2)(a) indicated that it was unlikely that Parliament was intending to leave it to a complainant to choose for himself whether to bring proceedings in court or before the IPT (Para 13). Whilst the IPT rules made under RIPA were restrictive (e.g. in relation to the limited disclosure of information to a complainant), there were various provisions in RIPA and the IPT rules which were designed to ensure that, even in the most sensitive cases, disputes could be properly determined. None of these provisions would be available in the courts (Para 14). A further telling consideration against A’s construction was that there were in fact no other tribunals with section 7(1)(a) jurisdiction over the categories of claim listed in section 65(3) of RIPA (Para 15).

As to the second argument, Lord Brown considered that A’s submission would involve reading into section 65(3)(a) (which contains the phrase “proceedings against any of the intelligence services”) words which were simply not there. There were, in addition, other provisions in RIPA which were more obviously directed to complaints of abuse of the intelligence services’ regulatory power which made it impossible to adopt A’s construction (Para 18). It also did not seem right to regard proceedings of the kind intended here as immune from the same requirement for non-disclosure of information as other proceedings against the intelligence services (Para 19).

Lord Brown then went on to consider whether there were sufficiently strong arguments available to A which would require the Court to construe section 65 in a way which was contrary to Lord Brown’s initial conclusions as to its construction. For the reasons set out below, Lord Brown concluded that there were no such arguments available to A.

Lord Brown rejected A’s argument to the effect that to construe section 65 as conferring exclusive jurisdiction on the IPT would constitute an ouster of the jurisdiction of the courts that would be constitutionally objectionable (Para 21). RIPA, the 1998 Act and the Civil Procedure Rules all came into force at the same time as part of a single legislative scheme and it could not be said that section 65(2)(a) was ousting some pre-existing right (Paras 21-22). Parliament had not ousted judicial scrutiny of the acts of the intelligence services, but had simply allocated that scrutiny (as to section 7(1)(a) proceedings) to the IPT (Para 23-24).

Lord Brown also rejected the argument that forcing A’s article 10 challenge into the IPT would result in breaches of article 6 of the Convention. Claims against intelligence services inevitably raise special problems that cannot be dealt with in the same way as other claims and this was recognised both domestically and by the European Court of Human Rights (Para 26). The Court would be going further than the Strasbourg jurisprudence if it were to hold that the IPT procedures are necessarily incompatible with article 6(1) and it would decline to do so here (Para 30). Even if the IPT’s rules are in any way incompatible with article 6, the remedy would be to modify them, instead of adopting some artificially limited construction of the IPT’s jurisdiction (Para 31).

The anomalies which A alleged would arise if the Court of Appeal’s construction were to be adopted also did not cast doubt on the correctness of the Court of Appeal’s decision (Paras 32-37).