HER MAJESTY'S ADVOCATE v. ANNIE MULVEY HARKINS GOURLAY or DICKSON

During the course of the discussion of the foregoing objection before the trial judge, the Advocate Depute sought to rely on certain provisions of the Act of Adjournal (Devolution Issues Rules) 1999, (S.I. 1999 No. 1346) which was made on 4 May 1999 and came into force on 6 May 1999. In particular, the Advocate Depute sought to rely on the terms of Rule 40.2.(1) of that Act of Adjournal, which provides as follows:

"Where a party to proceedings on indictment proposes to raise a Devolution Issue he shall, not later than seven days after the date of service of the indictment, give written notice of his intention to do so in Form 40.2A to the Clerk of the Court in which the trial is to take place; and a copy of the notice shall, at the same time, be served on the other parties to the proceedings and on the relevant authority."

"No party to criminal proceedings shall raise a Devolution Issue in those proceedings except as in accordance with Rule 40.2, 40.3 or 40.4, unless the court, on cause shown, otherwise determines."

The time limit provided for in Rule 40.2.(1) amounted to a restriction upon the Convention rights of the panel. Furthermore, the provisions of Rule 40.6 were objectionable also. That Rule provides:

"The notice given under paragraph (1) of Rule 40.2 or 40.3 or paragraph (2) of Rule 40.4 shall specify the facts and circumstances and contentions of law on the basis of which it is alleged that a Devolution Issue arises in the proceedings in sufficient detail to enable the court to determine, for the purposes of paragraph 2 of Schedule 6 or, as the case may be of Schedule 10 or Schedule 8, whether a Devolution Issue arises in the proceedings."