humanrights.scot

In the recent case of Urquhart v HMA [2015] HCJAC 101, the Appeal Court held that the reverse burden placed on an accused by section 38(2) of the Criminal Justice and Licensing (Scotland) Act 2010 is an evidential, not a legal, one.

Mr Urquhart was convicted of contravening section 38(1) by shouting, swearing and brandishing a sword at police officers. Perhaps surprisingly, given the terms of the libel, he had mounted a defence based, inter alia, on section 38(2).

Section 38(2) states, “It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular, circumstances, reasonable.”

Article 6(2) enshrines the presumption of innocence as a component of the right to a fair trial. This means that the burden of proving guilt rests with the prosecution. However, presumptions of law (legal burdens) and presumptions of fact (evidential burdens) are permitted provided they are kept within reasonable limits, the rights of the defence are maintained and they take proper account of the importance of what is at stake (Salabiaku v France (1991) 13 EHRR 379).

Mr Urqhuart did not argue that section 38(2) could not be compatible with Article 6. Rather the question for the Court was whether this provision imposes a legal burden, meaning that the accused has to prove the defence on balance of probabilities; or an evidential burden, meaning that accused has to raise the issue in evidence, with the burden remaining on the prosecution to disprove it.

Previous authorities (e.g. Glancy v HMA 2012 SCCR 52) make clear that in deciding this question, the Court should examine (i) the relevant statutory provisions; (ii) the activity prohibited and the measures directed at it by the statute; and (iii) the justification for the departure from the presumption of innocence.

Applying that analysis to section 38(2), the Court first noted that the language of the section was that the person charged needed “to show” rather than “to prove” or “to establish”. This, the Court said, supported the conclusion that the burden was only an evidential one. In fact, this may be a rather weak indicator of an evidential burden, since legal burdens have been found to exist in other statutory defences where the expression “to show” is used (e.g. R v Johnstone [2003] UKHL 28 and Glancy v HMA 2012 SCCR 52).

Looking next at the activity prohibited by section 38(1), the Court’s view was that the offence created did not obviously support the imposition of a legal burden, given the spectrum of behaviour potentially criminalized by it. In other words, the mischief tackled by the provision might be minor, making a legal burden unreasonable.

Last the Court considered the justification for interpreting section 38(2) as imposing a legal burden. Legal burdens have been held to arise where the defence relates to matters closely conditioned with the accused’s own knowledge or state of mind and where the prosecution would face particular problems securing a conviction in the absence of a legal burden (Sheldrake v DPP Attorney General’s Reference (No. 4 of 2002) [2003] EWCA Crim 762). In the context of section 38(2), however, the Court observed that the assessment of reasonableness is an entirely objective test and is not, of itself, amenable to proof. In other words, in order to rely on the defence, the accused may need not adduce any additional evidence beyond that led by the Crown in proof of its case.

It is, on the facts, not surprising that the Court decided that Mr Urquhart’s behaviour could not on any view be construed as reasonable. But in future cases, it will be interesting see whether there are circumstances in which the Court will conclude that, applying an objective test, the behaviour libelled was likely to cause a reasonable person fear or alarm, and yet the behaviour was, objectively, reasonable in the circumstances.

On 14 October 2015, the Supreme Court decided that the Scottish prison authorities had acted unlawfully in holding the appellant in solitary confinement, also known as segregation, for almost five years.

Rule 94 of the Prisons and Young Offenders Institutions (Scotland) Rules 2006 gave the prison authorities the power to segregate.  Rule 94(1) provided that the governor of a prison could order a prisoner’s segregation for various purposes, including the prisoner’s protection.  Rule 94(5) provided that the prisoner “shall not be subject to such [segregation] for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority on the application of the governor, prior to the expiry of the said period of 72 hours”.  Rule 94(6) provided that such authority “shall have effect for a period of one month commencing from the expiry of the period of 72 hours mentioned in paragraph (5) but the Scottish Ministers may, on any subsequent application of the governor, renew the authority for further periods of one month commencing from the expiry of the previous authority”.

In 2006, the appellant was convicted of murder and sentenced to life imprisonment.  The prison authorities had intelligence that, because of his notoriety as the perpetrator of a particularly appalling crime, he was at risk of serious injury or worse from other prisoners.  A Scottish Prison Service body that had no status under the rules, the Executive Committee for the Management of Difficult Prisoners (“ECMDP”) periodically considered his case and concluded that he should be segregated.  Prison governors and the Scottish Ministers made various orders under rule 94(1), (5) and (6) to keep him segregated for his own protection, both while he was on remand before his trial and after his conviction.  With the exception of the period immediately prior to and during his trial, when he was detained in mainstream conditions, he was segregated for a continuous period of around 56 months.  During his segregation, he was confined to his cell for between 20 and 22 hours a day.

The appellant applied for judicial review of the segregation orders on the grounds that they were unlawful under section 6 of the Human Rights Act 1998 because they were incompatible with articles 3 and 8 ECHR and that some of them were not authorised by rule 94(5) and (6) because the Scottish Ministers made them after the expiry of the 72 hours or one month periods.

The application was heard in the Outer House of the Court of Session in 2011.  By that time, the prison authorities had returned the appellant from segregation to mainstream conditions.  The appellant asked the court to declare that the segregation orders were unlawful and to award him damages as just satisfaction under section 8 of the Human Rights Act 1998.  On 18 November 2011, the court refused his application (2012 SLT 707).  He appealed against that decision to the Inner House of the Court of Session.  On 31 January 2014, the court refused his appeal (2014 SC 490).  He appealed to the Supreme Court.

The Supreme Court allowed his appeal.  It decided:

(1) That part of the appellant’s segregation was unlawful because the Scottish Ministers had failed to comply with the time limits in rule 94(5) and (6).  The correct interpretation of those provisions was that neither a late authority under rule 94(5) nor its renewal under rule 94(6) could authorise segregation.  The Scottish Ministers had granted three late authorities under rule 94(5), which they renewed several times under rule 94(6).  The periods of segregation that resulted from those authorities and renewals, which totalled around 14 months, were therefore without authorisation under the rules.

(2) That the appellant’s segregation did not breach article 3.  The court considered the conditions and circumstances of the segregation against the criteria in the case law of the European Court of Human rights and decided that the segregation did not attain the minimum level of severity required for a breach.

(3) That the appellant’s segregation breached article 8.  It was an interference with the appellant’s right to respect for his private life for the purposes of article 8.1 that pursued the legitimate aim of protecting his safety.  The interference was not justified under article 8.2, however, for two reasons.  First, it was not in accordance with law.  That was because some of the decisions of the prison governors to grant orders under rule 94(1) and to make applications under rule 95(5) and (6) were not taken in the exercise of their own independent judgment but proceeded on basis that they were expected to follow the conclusions of the ECMDP.  Those decisions breached the rule of domestic administrative law that a statutory power of decision-making must be exercised in reality by the person on whom the power has been conferred.  Part of the segregation was also not in accordance with law because it was not authorised by the late authorities under rule 94(5) and their renewals under rule 94(6).  Secondly, although segregation carries well-known risks to a prisoner’s mental health, the prison authorities took no serious steps in the appellant’s case to find an alternative until four and a half years after it had begun.  In those circumstances, the segregation was not proportionate to the aim that it pursued.

(4) Not to award damages.  The appellant would have been segregated even if the late authorisation and their renewals had not been made late and the prison governors had exercised independent judgment rather than following the conclusions of the ECMDP.  The appellant’s segregation did not cause harm to his health or completely isolate him from others.  Had he not been segregated, the other prisoners would not have associated with him.  In those circumstances, an award of damages was not necessary to afford him just satisfaction for the purposes of section 8 of the Human Rights Act 1998.   The combination of declarators that the appellant requested and an award of the expenses of the proceedings would provide just satisfaction.