Her Majesty's Advocate v. P.H. [2002] ScotHC 124 (19 September 2002)

Her Majesty's Advocate v. P.H. [2002] ScotHC 124 (19 September 2002)

The majority decision in Lord Advocate's Reference (No.1 of 2001) does not constitute a Devolution Issue under Schedule 6 of the Scotland Act 1998. Judicial correction of the law of rape is permissible and does not violate Article 7(1) ECHR as it was reasonably foreseeable and consistent with the essence of the offence.

Citation
[2002] ScotHC 124
Parties
Prosecutor: Her Majesty's Advocate; Defendant: P. H.
Jurisdiction
Scotland
Judgment Date
19 September 2002
Procedural Posture
Criminal / Pre Trial, Devolution Issue Hearing
Outcome
Minute dismissed; leave to appeal refused.
Legal Topics
Rape, Judicial Law Making, Devolution Issues, Retrospective Application of Law, European Convention on Human Rights Article 7
Criminal Law Constitutional Law Human Rights Law Rape Judicial Law Making Devolution Issues Retrospective Application of Law European Convention on Human Rights Article 7

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Parties

Her Majesty's Advocate

Prosecutor

P. H.

Defendant

Procedural Posture

Criminal / Pre Trial, Devolution Issue Hearing

Legal Issues

  1. 1 Whether the majority decision in Lord Advocate's Reference (No.1 of 2001) constitutes a Devolution Issue under Schedule 6 of the Scotland Act 1998
  2. 2 Whether the redefinition of rape law in Scotland violated Article 7(1) of the European Convention on Human Rights by retrospective application

Ratio Decidendi

The majority decision in Lord Advocate's Reference (No.1 of 2001) does not constitute a Devolution Issue under Schedule 6 of the Scotland Act 1998. Judicial correction of the law of rape is permissible and does not violate Article 7(1) ECHR as it was reasonably foreseeable and consistent with the essence of the offence.

Court Disposition

Minute dismissed; leave to appeal refused.

Orders

  • Minute raising Devolution Issue dismissed.
  • Motion for leave to appeal refused.