HM Advocate v Harris [2010] ScotHC HCJAC_102 (08 October 2010)

HM Advocate v Harris [2010] ScotHC HCJAC_102 (08 October 2010)

The court held that the crime of attempting to pervert the course of justice exists at common law in Scotland, is sufficiently defined to withstand Convention challenge, and is not restricted to destruction of evidence. Charges (13) and (14) are relevant as they involve ongoing police investigations and steps taken to interfere with them. Charge (12) is relevant if it is established that the respondent deliberately set in train events designed to falsely incriminate the complainer. For breach of the peace, charges (8) and (9) are relevant due to the involvement of third parties and public element, while charges (4), (5), (7), and (10) lack the necessary community element and are irrelevant.

Citation
[2010] ScotHC HCJAC_102
Parties
Advocator: Her Majesty's Advocate; Respondent: Mark Harris
Jurisdiction
Scotland
Judgment Date
08 October 2010
Procedural Posture
Bill of Advocation / Appeal Against Sheriff's Decision on Relevancy of Charges
Outcome
Bill of Advocation allowed in part; sheriff's interlocutor recalled in respect of certain charges; some charges dismissed as irrelevant; remaining charges remitted for trial.
Legal Topics
Breach of the Peace, Attempt to Pervert the Course of Justice, Protection From Harassment, Declaratory Power, European Convention on Human Rights
Criminal Law Breach of the Peace Attempt to Pervert the Course of Justice Protection From Harassment Declaratory Power European Convention on Human Rights

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Parties

Her Majesty's Advocate

Advocator

Mark Harris

Respondent

Procedural Posture

Bill of Advocation / Appeal Against Sheriff's Decision on Relevancy of Charges

Legal Issues

  1. 1 Whether charges of breach of the peace and attempt to pervert the course of justice are relevant under Scots law
  2. 2 Whether the crime of attempting to pervert the course of justice exists at common law
  3. 3 Whether the charges breach Article 7 ECHR due to lack of foreseeability or clarity

Ratio Decidendi

The court held that the crime of attempting to pervert the course of justice exists at common law in Scotland, is sufficiently defined to withstand Convention challenge, and is not restricted to destruction of evidence. Charges (13) and (14) are relevant as they involve ongoing police investigations and steps taken to interfere with them. Charge (12) is relevant if it is established that the respondent deliberately set in train events designed to falsely incriminate the complainer. For breach of the peace, charges (8) and (9) are relevant due to the involvement of third parties and public element, while charges (4), (5), (7), and (10) lack the necessary community element and are irrelevant.

Court Disposition

Bill of Advocation allowed in part; sheriff's interlocutor recalled in respect of certain charges; some charges dismissed as irrelevant; remaining charges remitted for trial.

Orders

  • Dismiss charges (4), (5), (7), and (10) as irrelevant.
  • Recall sheriff's interlocutor of 21 January 2010 in so far as it found respondent not guilty of certain charges.