Description
Bill of Advocation:- The respondent had originally appeared on petition on 15 June 2011 in relation to possession of a lock knife contrary to section 49(1) of the Criminal Law (Consolidation)(Scotland) Act 1995, and a charge of being in possession of cocaine contrary to section 5(2) of the Misuse of Drugs Act 1971. On 23 June 2011 the respondent was fully committed and remanded in custody. On 7 September 2011 his agent attended at HMP Addiewell, with a view to consulting with the respondent. The agent was informed that he would require to provide a fingerprint in order to enter the prison. He was advised that the print could, if he wished, be destroyed after his exit or retained for future identification purposes. The agent refused to provide his fingerprints on the basis that he considered that the request amounted to a breach of his right to a "private life" in Article 8 of ECHR. The agent was denied entry. On 1 November 2011 the respondent lodged a devolution minute founded upon Article 6 of ECHR and, in particular, the right to "have adequate time and facilities for the preparation of his defence" in Article 6(3)(b). The minute contended that, by continuing to prosecute the respondent, the appellant was acting in a manner incompatible with the respondent's Article 6 rights. A debate took place in March 2012. On 9 March 2012 the sheriff upheld part of the devolution minute:- "only in so far as held that the requirement for the legal representative of the minuter to submit himself to biometric fingerprinting when visiting the minuter in custody at HMP Addiewell on 7 September 2011 impede the delivery of practical and effective legal assistance to the minuter and was in the circumstances, a breach of the Minuter's rights under Article 6". The sheriff refused that part of the crave relating to dismissing the indictment on the basis of a breach of Article 6. The sheriff confined his findings to the date of the visit and declined to hold that the respondent had been, or would be, denied a fair trial. The appellant lodged a Bill of Advocation in which it was contended that the sheriff erred in dealing with the devolution minute in the manner in which he did. The sheriff had not found that the actings of the appellant in continuing to prosecute the respondent were ultra vires because they amounted to a breach of the respondent's Article 6 right to a fair trial and, as such, the minute ought to have been refused simpliciter. Here the court passed the Bill and recalled the interlocutor of 9 March 2012 in so far as it purported to uphold part of the respondent's devolution minute by stating that the requirement on the respondent's agent to submit to biometric fingerprinting, when visiting his client at Addiewell prison on 7 September 2011, impeded the delivery of practical and effective legal assistance to the respondent and was, in the circumstances, a breach of the respondent's rights under Article 6 of the European Convention. The court considered that it was not for the sheriff, in criminal proceedings, to attempt to answer questions, whether hypothetical or otherwise, by making isolated declarators relating to the infringement of a person's human rights at a particular time or place. The court considered that if the respondent or his agent wished to maintain that his human rights had been infringed by the prison authorities, it was a matter for him to decide whether to raise civil proceedings and to seek an appropriate declarator, interdict or damages. The only question which was open to the sheriff to consider was whether the respondent would inevitably have an unfair trial because he had not been able to see his agent at the prison on 7 September 2011 and the sheriff had effectively answered that question correctly in the negative. He was bound to do so given that there was no evidence that, by the time he heard the debate, the respondent had not been able to consult fully with his agent. The court considered that this was a very simple charge of having a lock knife in a public place and whatever may have happened at the prison on 7 September 2011, by the time of the debate, the respondent had been in the sheriff court at least five times and his agent could have consulted with him there.
0141 553 4890
