Introduction

The case of Faryad Darbaazi against Her Majesty's Advocate ([2021] ScotHC HCJAC_10) presents a significant judicial review concerning the procedural fairness in criminal trials, specifically regarding the lodging of special defences. This appeal challenges the High Court of Justiciary's decision to uphold Darbaazi's conviction for sexual offences under the Sexual Offences (Scotland) Act 2009. Central to the appeal is the court's refusal to accept a special defence of consent presented by Darbaazi after the initial proceedings had advanced, raising crucial questions about the balance between procedural rules and the overarching interest of justice.

Summary of the Judgment

On February 14, 2020, Darbaazi was convicted at the Sheriff Court in Glasgow for sexually penetrating a complainant, violating Section 2 of the Sexual Offences (Scotland) Act 2009. Sentenced to two years imprisonment, Darbaazi appealed the conviction, contesting the court's refusal to accept a late special defence of consent. The essence of the appeal lies in whether the refusal constituted a miscarriage of justice, particularly in light of statutory provisions governing the timely lodging of defences. The Scottish High Court of Justiciary ultimately quashed the conviction, holding that the refusal to allow the special defence, despite its late submission, undermined the fairness of the trial.

Analysis

Precedents Cited

The judgment references several key precedents that influenced the court's decision:

• Murphy v HM Advocate 2013 JC 60 – Emphasizes that cause for accepting a late defence lies in the interests of justice.
• Bhowmick v HM Advocate 2018 SLT 95 – Highlights the need to balance procedural adherence with fair trial rights.
• Radic v HM Advocate [2014] HCJAC 76 – Discusses the parameters for granting exceptions to procedural rules.
• Lowson v HM Advocate 1943 JC 141 – Underscores the tension between prosecutorial safeguards and justice.
• Williamson v HM Advocate 1980 JC 22 – Addresses the impact of procedural delays on trial integrity.
• Gorrie v MacLeod 2014 SCCR 187 and Osborn v The Parole Board [2014] 1 AC 1115 – Relate to the application of the European Convention in domestic law.

These cases collectively inform the court's approach to evaluating whether strict procedural compliance should yield to the necessities of a just trial.

Legal Reasoning

The court's reasoning pivoted on the interpretation of Section 78 of the Criminal Procedure (Scotland) Act 1995, which governs the submission of special defences. Specifically, Section 78(1)(b) allows the court to accept a special defence not lodged in time if cause is shown. The initial trial court concluded that Darbaazi's attempt to present a defence of consent late in the proceedings failed to demonstrate sufficient cause, primarily viewing his fluctuating defence strategy skeptically.

However, upon appellate review, Lord Justice General Lord Carloway scrutinized the trial court's narrow interpretation of "cause," emphasizing that it should center on whether accepting the defence serves the interests of justice rather than merely adhering to procedural timeliness. The High Court determined that excluding Darbaazi's defence deprived him of the opportunity to present his case fully, a fundamental aspect of a fair trial as enshrined in both domestic law and the European Convention on Human Rights.

Impact

This judgment reinforces the judiciary's commitment to ensuring that procedural rigidity does not override the fundamental rights of the accused to a fair trial. By prioritizing the interests of justice over strict adherence to timelines for defence submissions, the court sets a precedent that allows for greater flexibility in unusual or extenuating circumstances. Future cases involving late defence submissions will likely reference this judgment to argue for a more nuanced application of procedural rules, particularly when such flexibility aligns with the principles of justice and fairness.

Complex Concepts Simplified

Special Defence

A special defence is a specific legal argument raised by the accused to challenge the prosecution's case. Unlike general defenses, which may cover a broad range of issues, special defences address particular elements of the charge. In this case, Darbaazi's special defence was consent, disputing the allegation of non-consensual sexual activity.

Section 78 of the Criminal Procedure (Scotland) Act 1995

This section outlines the requirements and procedures for submitting special defences in Scottish criminal trials. It stipulates that such defences must generally be filed within specific timeframes to ensure fairness and efficiency in the legal process.

Miscarriage of Justice

A miscarriage of justice occurs when the legal system fails to deliver a fair trial, resulting in an unfair conviction or acquittal. In this context, the High Court considered whether the refusal to accept the late submission of the special defence constituted such a miscarriage.

Interests of Justice

This legal principle prioritizes achieving a fair and equitable outcome in legal proceedings over strict procedural compliance. It serves as a guiding standard for judges when determining whether to allow exceptions to established rules.

Conclusion

The appeal of Faryad Darbaazi underscores the judiciary's pivotal role in balancing procedural adherence with the fundamental rights of individuals to a fair trial. By quashing the conviction due to the improper refusal to accept a late special defence, the High Court of Justiciary affirmed that the interests of justice must supersede rigid procedural constraints. This decision not only rectifies the immediate miscarriage of justice in Darbaazi's case but also establishes a critical precedent for future cases where the timely submission of legal defences is in dispute. Consequently, legal practitioners must heed this judgment to advocate effectively for their clients, ensuring that the scales of justice remain balanced.