(a) So long to reforming criminal law defences?
The new projects handed to the Scottish Law Commission (see previous post) probably mean that the Commission’s proposed reform of provocation, self-defence, coercion and necessity (see pp22-23 of the Seventh Programme of Law Reform) will be left on the back burner. That may be no great loss, however, as the case for undertaking that reform is obscure. In its Seventh Programme, the Commission said that:
“The main impetus for our review comes from the state of the current law on provocation. In Drury v HM Advocate [2001 SLT 1013] the court accepted not only that the law required reform and clarification but also that legislation was the best mechanism for changing the law.”
But it is difficult to find any basis for that claim in Drury. All that happened there was that two of the five judges said that if there were to be a major reform of the law of provocation, that would be a matter for Parliament and not the court (see Lord Nimmo Smith at para 9 and Lord Mackay of Drumadoon at para 3). No views seem to have been expressed on whether reform was actually necessary. It is true that, as the Commission notes, the decision in Drury is controversial – and I am flattered to be one of a number of writers cited in support of that claim – but critics of Drury have been primarily concerned about the definition of murder offered in that case rather than the actual rules of provocation set out there. (The High Court has since made a start on tidying up some of the problems left by Drury, in Gillon v HM Advocate 2007 JC 24.)
(b) The slow wheels of justice
The latest temporary sheriffs case, Dickson v HM Advocate; McNaughton v HM Advocate  HCJAC 65 (see earlier post) has taken an extraordinary length of time to come to a conclusion given that the convictions occurred in 1999. Originally, three appeals on the point were associated together, but the appellant in one case died before the current decision. (It has been possible since the Crime and Punishment (Scotland) Act 1997 for appeals to be continued posthumously, but that was not done here.)
Dickson abandoned his appeal against conviction (but not against sentence) in 2005. Why this happened is not clear, but if he was under 18 at the time of the conviction – his age is not specified – then his conviction would have become spent in 2004 (in accordance with the Rehabilitation of Offenders Act 1974). His sentence, however, has not been served in full, because he was granted interim liberation as far back as July 1999. The idea that someone could be returned to jail to serve out a sentence for a spent conviction seems at least peculiar (so much for the theory of rehabilitation), but there appears to be nothing to prevent it. In the opinions issued last Thursday, the appeal court made no order as regards that sentence.
(c) English cases as precedent in the Scottish courts
In Dickson v HM Advocate, one argument advanced by Dickson and McNaughton was that the Human Rights Act 1998 should be given retrospective effect, a proposition which was rejected initially by the House of Lords in R v Lambert  2 AC 545. Subsequent decisions of that court have cast some doubt on the correctness of Lambert but have consistently taken the view that it should be followed for reasons of judicial precedent.
Lord Hamilton, in delivering the leading opinion of the Dickson court, is not prepared to expressly endorse R v Lambert as correct. Instead, he takes the view that, although not binding on the High Court, it should be followed because (a) there are “respectable arguments” in its support and (b) it would be undesirable for the Scottish and English courts to interpret the Human Rights Act 1998 differently. In the circumstances, he regards a “fresh interpretative exercise” as inappropriate (see para 27).
While that position is attractive, it has the curious – and somewhat troubling – result that a court unconstrained by binding precedent seems to have declined to rule directly on a point of law which was argued before it and was crucial to the determination of the case. Here, the High Court is not in the same position as the House of Lords in the post-Lambert cases on retrospectivity, because that court treats prior decisions of its own as “normally binding”: Practice Statement (Judicial Precedent)  1 WLR 1234. By contrast, the High Court’s obligation is not to treat such decisions as “normally binding”, but instead to give them “great respect” (see Dickson, at para 27).