CAROLINE McNAB v. HER MAJESTY'S ADVOCATE

The plea in bar of trial which was advanced on behalf of the appellant was based on the fact that, as from 20 May 1999, the Lord Advocate was subject to the terms of section 57(2) of the Scotland Act, which provides, inter alia , that a member of the Scottish Executive has no power to do any act so far as the act is incompatible with any of "the Convention rights". That expression has the same meaning as in the Human Rights Act 1998, and hence includes the rights set out in Article 6(1) of the European Convention. So far as relevant for the present purposes that Article provides:

"In the determination of his civil rights and obligations or of any charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".

On 11 March 1998 the Crown Office asked the Procurator Fiscal for an update. Along with his report he sent to Crown Office a form with a view to the case being allocated, on a provisional basis, to a sitting of the High Court. On 30 March 1998 the Crown Office provisionally allocated the case to a sitting at Glasgow commencing on 6 July 1998. On 3 June 1998, in a letter to the appellant's solicitors, the Procurator Fiscal referred to a letter from those solicitors dated 1 June 1998 and stated:

"It is intended to indict this case to the sitting of the High Court at Glasgow on 6 July 1998. It should be noted that this date may be changed due to pressure of business".

"The word 'victim' in the context of Article 25, denotes the person directly affected by the act or omission which is in issue, the existence of a violation being conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 50".