Barclay & Ors v HM Advocate [2012] ScotHC HCJAC_47 (11 April 2012)

Barclay & Ors v HM Advocate [2012] ScotHC HCJAC_47 (11 April 2012)

Section 70A of the Criminal Procedure (Scotland) Act 1995, as inserted by section 124 of the Criminal Justice and Licensing (Scotland) Act 2010, is compatible with Article 6 of the European Convention on Human Rights and within the legislative competence of the Scottish Parliament. The requirement to lodge a defence...

Source-derived case information.

Citation
[2012] ScotHC HCJAC_47
Parties
First Minuter: John Barclay; Second Minuter: William James Bain; Third Minuter: Douglas McLean; Respondent: Her Majesty's Advocate
Jurisdiction
Scotland
Judgment Date
11 April 2012
Procedural Posture
References on Devolution Minutes in Criminal Proceedings / Pre Trial Constitutional Reference
Outcome
References dismissed; statutory provisions upheld as compatible and within competence.
Legal Topics
Disclosure Obligations, Right to Silence, Legislative Competence, Fair Trial Under ECHR Article 6
Criminal Law Constitutional Law Human Rights Law Disclosure Obligations Right to Silence Legislative Competence Fair Trial Under ECHR Article 6

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 29 Party arguments 2
Sign in to unlock

Parties

John Barclay

First Minuter

William James Bain

Second Minuter

Douglas McLean

Third Minuter

Her Majesty's Advocate

Respondent

Procedural Posture

References on Devolution Minutes in Criminal Proceedings / Pre Trial Constitutional Reference

Legal Issues

  1. 1 Whether section 70A of the Criminal Procedure (Scotland) Act 1995, as inserted by section 124 of the Criminal Justice and Licensing (Scotland) Act 2010, is compatible with Article 6 of the European Convention on Human Rights
  2. 2 Whether the provisions are within the legislative competence of the Scottish Parliament
  3. 3 Whether the requirement to lodge a defence statement infringes the right to silence

Ratio Decidendi

Section 70A of the Criminal Procedure (Scotland) Act 1995, as inserted by section 124 of the Criminal Justice and Licensing (Scotland) Act 2010, is compatible with Article 6 of the European Convention on Human Rights and within the legislative competence of the Scottish Parliament. The requirement to lodge a defence statement is a procedural step to facilitate disclosure and does not infringe the right to silence or compromise fairness, as the statement is not evidence against the accused and no adverse inference can be drawn from its content or absence.

Court Disposition

References dismissed; statutory provisions upheld as compatible and within competence.

Orders

  • Questions answered: Section 70A is compatible with Article 6 ECHR; provisions are within legislative competence; second question does not arise.
  • Cases remitted to relevant courts for trial.