Her Majesty's Advocate v. Kenny & Anor [2011] ScotSC 36 (26 July 2011)

Her Majesty's Advocate v. Kenny & Anor [2011] ScotSC 36 (26 July 2011)

The risk of prejudice to both accused, arising from the passage of time, loss of records, and death of witnesses, is so grave that it would be impossible to direct a jury in such a way that the prejudice could be avoided. The accused would not have a fair trial under Article 6 ECHR, and the plea in bar of trial is sustained at this stage.

Citation
[2011] ScotSC 36
Parties
Prosecutor: Her Majesty's Advocate; Accused: Anne Rosalyn Kenny; Accused: Agnes Reville
Jurisdiction
Scotland
Judgment Date
26 July 2011
Procedural Posture
Criminal / Pre Trial (devolution Minutes, Plea in Bar of Trial)
Outcome
plea in bar of trial sustained (prosecution barred)
Legal Topics
Right to Fair Trial, Delay in Prosecution, Loss of Evidence, Article 6 ECHR, Oppression
Criminal Law Human Rights Law Right to Fair Trial Delay in Prosecution Loss of Evidence Article 6 ECHR Oppression

Case Brief

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Parties

Her Majesty's Advocate

Prosecutor

Anne Rosalyn Kenny

Accused

Agnes Reville

Accused

Procedural Posture

Criminal / Pre Trial (devolution Minutes, Plea in Bar of Trial)

Legal Issues

  1. 1 Whether the accused can receive a fair trial given the passage of time, loss of records, and death of witnesses
  2. 2 Whether the proceedings should be barred under Article 6 ECHR due to unfairness
  3. 3 Whether the common law of oppression applies

Ratio Decidendi

The risk of prejudice to both accused, arising from the passage of time, loss of records, and death of witnesses, is so grave that it would be impossible to direct a jury in such a way that the prejudice could be avoided. The accused would not have a fair trial under Article 6 ECHR, and the plea in bar of trial is sustained at this stage.

Court Disposition

plea in bar of trial sustained (prosecution barred)

Orders

  • First leg of Devolution Minutes sustained on Article 6 ECHR grounds; proceedings barred against both accused.