HM Advocate v Porch [2015] ScotHC HCJAC_111 (24 November 2015)

HM Advocate v Porch [2015] ScotHC HCJAC_111 (24 November 2015)

Article 8 rights of accused and complainer are engaged but not infringed; procedures for bail applications are convention compliant; complainer has no right to be represented or address the court in bail proceedings; absence of mechanism for independent representation does not breach ECHR; no compatibility issue arises.

Citation
[2015] ScotHC HCJAC_111
Parties
Prosecutor: Her Majesty's Advocate; Accused: Ross Porch; Complainer: Martin Johnston (complainer)
Jurisdiction
Scotland
Judgment Date
24 November 2015
Procedural Posture
Criminal Appeal (compatibility Reference) / Reference to High Court of Justiciary Under Section 288 ZB of the Criminal Procedure (scotland) Act 1995
Outcome
Reference dismissed; questions answered in negative as to complainer's procedural rights.
Legal Topics
Bail Conditions, Domestic Violence, Article 8 ECHR, Right to Private and Family Life, Procedural Rights of Victims
Criminal Law Human Rights Law Bail Conditions Domestic Violence Article 8 ECHR Right to Private and Family Life Procedural Rights of Victims

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Parties

Her Majesty's Advocate

Prosecutor

Ross Porch

Accused

Martin Johnston (complainer)

Complainer

Procedural Posture

Criminal Appeal (compatibility Reference) / Reference to High Court of Justiciary Under Section 288 ZB of the Criminal Procedure (scotland) Act 1995

Legal Issues

  1. 1 Whether Article 8 ECHR rights of accused and complainer are engaged by bail conditions preventing contact
  2. 2 Whether complainer has right to be heard or represented in bail proceedings
  3. 3 Whether absence of mechanism for complainer's independent representation breaches ECHR

Ratio Decidendi

Article 8 rights of accused and complainer are engaged but not infringed; procedures for bail applications are convention compliant; complainer has no right to be represented or address the court in bail proceedings; absence of mechanism for independent representation does not breach ECHR; no compatibility issue arises.

Court Disposition

Reference dismissed; questions answered in negative as to complainer's procedural rights.

Orders

  • Accused and complainer's Article 8 rights engaged but not infringed.
  • Procedures for bail applications are convention compliant.