HER MAJESTY'S ADVOCATE v. ANNIE MULVEY HARKINS GOURLAY or DICKSON

Factual and Procedural Background

This opinion concerns a criminal trial before the High Court of Justiciary in Glasgow involving the Crown against the Defendant, who faced three charges under section 4(3)(b) of the Misuse of Drugs Act 1971. During the Crown's case, the Crown sought to admit as evidence a transcript of an interview conducted by customs officers under section 24 of the Criminal Law (Consolidation)(Scotland) Act 1995. The Defendant objected to the use of this transcript on the grounds that it violated the Defendant's rights under Article 6 of the European Convention on Human Rights (ECHR), specifically the right to a fair trial, because the Defendant had not had access to a solicitor during the interview.

The Crown relied on the Act of Adjournal (Devolution Issues Rules) 1999, particularly Rule 40.2.(1), which requires written notice within seven days of an intention to raise a "Devolution Issue." The Defendant contended that this Act was ultra vires and could not be relied upon to bar the objection. The trial judge found the question of the Act's vires sufficiently important to convene a three-judge court to determine the issue.

Legal Issues Presented

1. Whether the Act of Adjournal (Devolution Issues Rules) 1999 was validly made within the powers conferred by section 305 of the Criminal Procedure (Scotland) Act 1995 and paragraph 37 of Schedule 6 to the Scotland Act 1998.
2. Whether the requirement under Rule 40.2.(1) of giving written notice within seven days to raise a Devolution Issue infringes the Defendant's rights under Article 6 of the European Convention on Human Rights.
3. Whether the Lords Commissioners of Justiciary were obliged to consider Convention rights when making the Act of Adjournal.
4. The legal effect of the timing and procedural requirements for raising Devolution Issues in criminal proceedings.

Arguments of the Parties

Defendant's Arguments

• The Act of Adjournal (Devolution Issues Rules) 1999 was ultra vires because it purported to limit the Defendant's Convention rights, particularly the right to a fair trial under Article 6.
• The Scotland Act 1998 devolved criminal law and procedure to the Scottish Parliament, and the Act of Adjournal improperly narrowed Convention rights without proper authority.
• The seven-day notice period for raising a Devolution Issue was too restrictive and violated Article 6(3)(b) of the Convention, which guarantees adequate time and facilities to prepare a defense.
• The provisions of the Act of Adjournal were biased in favor of the State, requiring detailed specification of the Devolution Issue by the Defendant but not imposing similar obligations on the State.
• The Act of Adjournal was made two days before paragraph 37 of Schedule 6 to the Scotland Act 1998 came into force, undermining its authority.
• The powers in section 305(1) of the Criminal Procedure (Scotland) Act 1995 are cumulative, not alternative, and the Act of Adjournal did not satisfy all requirements.
• The Defendant could not have complied with the seven-day notice because the transcript was not used or objected to until trial.
• Decision makers, including the Lords Commissioners of Justiciary, should have considered Convention rights under Wednesbury principles when making the Act of Adjournal.

Crown's Arguments

• The Act of Adjournal was intra vires, validly made under section 305(1) of the Criminal Procedure (Scotland) Act 1995, with paragraphs (a) and (b) being alternative powers.
• Paragraph 37 of Schedule 6 to the Scotland Act 1998, although not yet in force at the time the Act of Adjournal was made, was an enactment and could be properly referenced under section 305(1)(b).
• The Act of Adjournal regulates procedure, not substantive Convention rights, and does not remove any Convention right but merely regulates its exercise for orderly administration of justice.
• The seven-day notice requirement is not absolute; Rule 40.5.(1) allows late raising of Devolution Issues on cause shown, providing flexibility.
• The Lords Commissioners of Justiciary are not part of the Scottish Executive and thus are not bound by section 57(2) of the Scotland Act 1998, but Convention rights may still be relevant considerations.
• The Defendant had constructive notice of the evidence listed in the indictment and could have given notice of intention to raise a Devolution Issue within the prescribed period.
• The procedural timetable is comparable to other time limits in criminal procedure, such as preliminary diets and lodging special defences.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first examined the statutory authority under which the Act of Adjournal was made. It concluded that the powers in section 305(1) of the Criminal Procedure (Scotland) Act 1995 are alternative, not cumulative, and that paragraphs (a) and (b) provide sufficient authority for the Act regulating criminal procedure and rules necessary or expedient to carry out the purposes of relevant enactments.

The court further held that paragraph 37 of Schedule 6 to the Scotland Act 1998, though not yet in force at the time of the Act of Adjournal's creation, was properly referenced as an enactment under section 305(1)(b). This interpretation avoids a legislative gap that would otherwise exist.

Regarding Convention rights, the court distinguished between substantive rights and procedural regulations. It found no indication that the Act of Adjournal improperly narrows or removes Convention rights. The seven-day notice requirement was deemed a legitimate procedural timetable aimed at expeditious and orderly justice, with flexibility preserved by the "cause shown" provision allowing late raising of Devolution Issues.

The court rejected the argument that the Lords Commissioners of Justiciary were obliged to act consistently with Convention rights under the Scotland Act 1998 but acknowledged that Convention rights are a relevant consideration in framing procedural rules. The court found no evidence that these rights were ignored.

In sum, the procedural rules were consistent with the overall fairness required by Article 6, and the Act of Adjournal was validly made within the powers conferred.

Holding and Implications

The court held that the Act of Adjournal (Devolution Issues Rules) 1999 was intra vires and validly made by the Lords Commissioners of Justiciary.

This decision affirms the validity of procedural rules requiring timely notice for raising Devolution Issues in criminal proceedings and clarifies that such procedural time limits do not infringe the substantive right to a fair trial under Article 6 of the European Convention on Human Rights. The ruling limits the scope for procedural challenges based on Convention rights where adequate procedural safeguards and flexibility exist. No new precedent altering substantive rights was established; the decision primarily confirms the lawful scope of procedural regulation within devolved criminal justice.