Wednesday, January 6th, 2016
HMA v Ross Porch  HCJAC 111
Claire Mitchell acted as junior counsel for the accused. He had “appeared from custody on a complaint of assaulting his pregnant girlfriend by repeatedly pushing her, throwing a set of ladders at her, sitting on top of her, holding her down and spitting on her, all to her injury". There was a separate unconnected charge in the complaint. Having entered a not guilty plea, the accused was admitted to bail on standard conditions with an additional condition, which he accepted, that he should not enter the street where his pregnant girlfriend, the complainer, lived, nor should he approach, contact or attempt to approach or contact her.
At a later date, the accused appeared on a separate complaint. His plea in relation to that complaint was not accepted and he was refused bail. Bail was granted at a later stage where a trial diet was adjourned. The conditions were the same as set out following the bail orders pronounced in relation to the previous complaint.
At a later stage the accused lodged an application for variation of his bail conditions. In particular, he sought removal of the bail condition preventing contact with the complainer. The sheriff refused variation of the conditions and the accused appealed. In the course of the appeal the accused presented a compatibility minute asserting that: (i) the complainer did not wish the accused to be subject to the special conditions; and (ii) “the acts of the Lord Advocate in seeking the special conditions, and then objecting to their removal, and of the court in imposing them, and then refusing to recall them, were in breach of the article 8 rights of the accused and of the complainer.”
The bail judge referred the compatibility minute to the High Court of Justiciary without offering any views about the problem, or possible solutions.
Paragraph 8 of the Opinion of the court delivered by Lady Dorrian sets out the issues that were referred and having considered submissions on behalf of the accused, the complainer and the Crown, including a letter explaining Crown policy, the court came to the view that there was no infringement of the accused’s article 8 rights. The court stated: “There is no basis for considering, under either domestic law or European jurisprudence, that it is necessary to grant a right of audience to a complainer in the circumstances of a case such as the present.”
Lady Dorrian sets out that cases of domestic violence raise delicate issues and it is a problem in society – problems can arise do to the close relationship between the accused and the victim. Victims tend to be particularly vulnerable and there are international instruments that acknowledge the need for active state involvement in their protection. Particular attention was drawn to the case of Criminal Proceedings v Gueye and others  1 WLR 2672 where the ECtHR “considered that the duty to enable victims properly to take part in criminal proceedings did not preclude a mandatory injunction in domestic violence cases preventing the accused from being in contact with the complainer for a specified period of time, even when the complainer sought a reconciliation.”
This view was expressed having given due regard to authorities that had been cited and the Sentencing Guidelines Council for England and Wales in their guidelines entitled “Overarching principles: Domestic Violence”. The court considered the “pressures which can exist in relation to victims of crime, particularly in relation to domestic abuse”.
A further matter that arose related to the conduct of the bail judge with the court observing, under reference to O’Leary, Minuter  HCJAC 45, that “it is somewhat unusual for a judge of the High Court to refer a case to a bench of three without at least providing his own analysis of the problem and proposing a solution.”
A copy of the Court's Opinion can be found here.