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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. Cameron & Ors [2007] ScotHC HCJ_01 (05 January 2007) URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJ_01.html Cite as: [2007] ScotHC HCJ_1, [2007] ScotHC HCJ_01, [2007] HCJ 01 |
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HIGH COURT OF JUSTICIARY [2007] HCJ01 |
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OPINION BY LORD BRODIE In the Minute by DOUGLAS FLEMING in the cause HER MAJESTY'S ADVOCATE against JAMES CAMERON AND DOUGLAS COLIN FLEMING ________________ |
Minuter:
Shead, Richardson; Russel &
Aitken, Solicitors
Crown:
Grahame, AD, Brabender; Crown Agent
Introduction
[2] The
Minuter has previously been indicted in respect of substantially the same
charges but with a different co-accused, Finbar Brady. The Minuter and his then co-accused went to
trial on that earlier indictment, before Lord McEwan and a jury, at
[3] On
[4] Following
upon a successful Crown application to extend the eleven and twelve month
periods provided by Section 65(1) of the Criminal Procedure (Scotland) Act
1995, the Minuter appeared at a preliminary hearing on 12 August 2005. This was continued until
[5] The
Minuter and his co-accused appeared before me on
[6] The
RVR issue is developed in two Minutes.
One of these Minutes is a Devolution Minute, in terms of which it is
contended that by virtue of Article 8 and Article 6(3)(c) of the
European Convention on Human Rights, the Minuter was entitled to have the
confidentiality of any discussions with his legal advisors protected and,
further, that the fact that there was a transmission from the court to the RVR
while these discussions took place constituted a violation of these
rights. It is contended that in the
circumstances the conduct of the police and the representatives of the Crown
has had the result that a fair trial on the current indictment cannot be
guaranteed. Moreover, it is contended
that the conduct complained of represents an abuse of process with the result
that no fair trial can take place. It is
accordingly contended that for the Crown to continue with the prosecution would
be for the Lord Advocate to act incompatibly with the Minuter's right to a
fair trial, as guaranteed by Article 6(1) of the Convention, and that to
do so would be ultra vires having
regard to the provisions of Section 57(2) of the Scotland Act 1998. The other Minute is presented at common law,
and under reference to Section 6 of the Human Rights Act 1998. Reference is again made to Articles 8
and 6(3)(c) of the Convention. It is the
contention in the Common Law Minute that for the Crown to continue with the
prosecution would be for the Lord Advocate to act oppressively and therefore
the plea in bar of trial should be upheld.
[7] In
my opinion dated
"We considered
that while the fuller information now submitted by the parties would be
material to any decision on a plea in bar of a re-trial, the essential question
for us was whether the trial judge's decision was justified by the facts that
were known to him at the time. We
therefore invited the advocate depute to address us on that question, but only
in relation to the decision to desert simpliciter."
[8] When
the matter came before me it appeared that the parties were still at issue on
what were the facts which were material to a determination of the RVR issue. Nor were they at one as to how to go forward. I understood Mr Shead, on behalf of the
Minuter, to favour some sort of inquiry which should be conducted by the Crown.
The Advocate Depute, on the other hand,
was of the view that the issue could be determined (or at least refined) by a
debate on the Minutes. Neither course
commended itself to me. As I understood
the matter, determination of the RVR issue would require a determination,
insofar as material, of what had or may have occurred between 13 and
The facts
[9] I
heard the evidence of the following witnesses: Eileen McGhie, Administrative Officer,
Crown Office and Procurator Fiscal Service ("COPFS"), Office Manager, Crown
Office (West); James Lynn, DCS, Clerk of Court; Colin Armstrong,
former Court Manager, Glasgow High Court; Carol Anne Airlie, Administrative
Officer, COPFS; Barclay Williams, Head of Security, Glasgow High Court;
Detective Inspector John Cuddihy; Detective Inspector William Miller;
John Deeney, Precognition Officer, COPFS; Mary Frances Ralston, Advocate,
Crown Assistant; Joanne Cunningham, Procurator Fiscal Depute; Brian McConnachie
QC, Advocate Depute; Derek Ogg QC, counsel for the Minuter at the trial;
Chief Inspector (formerly Detective Chief Inspector) Richard Casey; and
Catriona Bryden, Senior Principal Procurator Fiscal Depute and former High
Court Manager, Crown Office (West). At
the end of that evidence Mr Shead moved that I further adjourn the hearing
in order that attempts could be made to secure the attendance of two further
witnesses, the undercover Belgian police officers known only as "Mac" and
"Mike". That motion was opposed by the
Advocate Depute. I refused Mr Shead's
motion for the following reasons. To
adjourn the hearing would have resulted in a further lapse of time in a case
which originally had come before me in August 2005 and where the Minuter
has already complained of delay. It was
uncertain as to whether the witnesses would be available and, even were they to
be available, what they would have to say. A substantial amount of evidence had been led
as to the use of the RVR at the trial in September 2004. If the apprehended mischief was the risk that
the evidence of Mac or Mike or both had been contaminated in some way by reason
of events in September 2004 that could be explored at any future trial
that might be held.
[10] Having heard submissions on the evidence by Mr Shead and the Advocate Depute. I held the following facts to have been admitted or proved.
Court
3 and the Remote Viewing Room
[11] The Minuter, together with
his then co-accused, Finbar Brady, was indicted for trial at a sitting of
the High Court at
[12] The main public entrance into the Saltmarket building gives on
to an open hall which provides a public circulation space and accommodates a
reception desk. Access to
four courtrooms, including Court 3, and the associated corridors used
by witnesses and counsel, is available by way of doors from the hallway. The hallway extends from the ground to the
roof of the building. There is a balcony
at first floor level off which are the doors to, inter alia, the unempanelled jurors' room and Crown Office (West). Two staircases lead from the
ground floor to the balcony, a main staircase and a side staircase. The top of the side staircase is close to the
door to Crown Office (West) and, some 20 feet away, the door to the
unempanelled jurors' room. The passage
of people along the balcony can readily be observed from both ground and
first floor levels. There is, however
a further corridor at first floor level, situated at the far side of
courts 3, 4, 5 and 6 and from which judges get access to their courts. This is referred to as the judicial corridor. Access to this corridor is restricted to those
with the requisite electronic pass. Judges, clerks, macers, and no doubt others,
have such a pass. It would appear that
at least some police officers have or have the use of such a pass. Access to the RVR can be got from the judicial
corridor without the need to use a pass to open the RVR door. Whereas anyone entering the unempanelled jury
room from the public corridor would be open to general view, this is not so
with someone entering the RVR directly from the judicial corridor.
[13] The Saltmarket building is, and in 2004 was, managed and
controlled by the
[14] The RVR had been established in 2003 as part of a refurbishment of Court 3. Its existence was openly advertised within the Saltmarket building on notices in the public areas of the building which gave directions to the RVR. It was intended for use by persons interested in viewing a trial or a particular stage of a trial but who might find it difficult to be present in the courtroom for one reason or another. The example given in evidence was that of relatives of a murder victim. Mr Lynn was aware of at least one occasion of a trial presided over by Lord McEwan when relatives had been admitted to the RVR in order to hear the jury verdict. Another instance of its use was mentioned in evidence. However, there was, as at September 2004, no statutory authority, practice note, Act of Adjournal, guidelines or protocol as to how the RVR should be used. Nor were COPFS staff given training in its use. The RVR was treated with no particular formality. The unempanelled jurors' room was used by those members of the procurator fiscal's staff who wished to smoke. Access was freely available to the RVR by a door which was unsecured. None of this applies any longer. A protocol has been implemented. The formerly open door to the RVR is kept locked. The signs advertising its presences have been removed.
The
request to initiate the audio-visual link
[15] On
"I did not feel that there was anything underhand or secretive. Nobody was whispering. It was all done in full view. To me it did not seem that there was any secrecy about it. It was all pretty open."
It was only with the benefit of hindsight that Mr Lynn thought that the defence should have been alerted and the trial judge kept informed.
[16] There was evidence from Joanne Cunningham that she had passed on a request from Ms McGhee that the RVR link be activated to Mr McConnachie and that he had agreed. I have concluded that she was wrong about that. I have preferred the evidence of Mr McConnachie that he was entirely unaware of the existence of the RVR at the beginning of the trial and only learned about it on the second or third day by reason of a chance conversation with Ms McGhee.
The
evidence led at the trial and the use made of the RVR
[17] The jury were empanelled at about 1440 hours on
[18] Throughout this time, from 13 September until the morning
of 22 September, the representatives of the Minuter and Mr Brady were
completely unaware that what was going on in court was being transmitted to the
RVR.
[19] DI Cuddihy continued his evidence on
[20] On
[21] DI Cuddihy remembered being shown to the RVR by Mr Deeney. When he first went into the RVR the trial was
not in progress. He could hear the clerk
moving about but no one else was in the courtroom. He viewed the evidence of Ian McLean
together with Mr Deeney. He said
that this was on the "first" day (although this evidence actually began on the second day of the
trial). DI Cuddihy then returned on what
he referred to as the "second day" and viewed the evidence of McLean until it
concluded. I take this to be a reference
to the afternoon of 15 September.
DI Cuddihy recalled that at the end of
[22] Among the witnesses led on
[23] On
[24] A screens application had been made in respect of Mr Garcia.
On 20 September Ms McGhee
requested Mr Lynn to transmit the evidence of Mr Garcia to the
RVR. The matter was referred to
Mr McConnachie. Ms McGhee
spoke to Mr McConnachie and asked if DI Miller could go into the
RVR. She then asked Mr Lynn if it
was possible for DI Miller to go into the RVR. She left it with Mr Lynn for him to
check with the judge. Mr Armstrong
recalled this second request. He
understood that it had been made in order to permit DI Cuddihy to see and
hear the evidence of a protected witness.
He was concerned about this. He
was aware of the screens application. He
was aware that the camera in Court 3 was so positioned that it looked over
the blinds that could be pulled over the armoured-glass panel. He thought it would defeat the purpose of
screening to allow anyone to view the witness from the RVR. The matter was referred to the trial judge by
Mr Lynn. Lord McEwan indicated
that it would not be appropriate to transmit Mr Garcia's evidence to the
RVR.
[25] Oswaldo Garcia gave evidence from behind screens from about
1218 hours to about 1523 hours on 20 September with a break over
lunch. Mr Garcia's evidence was not
transmitted to the RVR. DI Cuddihy
went to the RVR that day. He arrived before
1000 hours and met DI Miller.
He saw Mr Montgomery give evidence and then Mr Buchanan. Because transmission ceased with the beginning
of the evidence of Mr Garcia, DI Cuddihy went to the public benches in
order to hear that evidence.
[26] Evidence was led on
[27] To an extent the evidence as to the events of
[28] A more difficult question to determine was who may have been in
the RVR from early in the morning of 22 September until and including the
time when Mr Ogg discovered its existence and made an investigative visit.
As invited to do by the Advocate Depute,
I accept Mr Deeney when he said that he brought Timo Debacker and
Mike to the RVR in order that they could view the courtroom (a matter which had
not been drawn to the attention of the
[29] Accordingly, on the basis of the evidence I heard, I can find
that the following persons were present in the RVR from time to time during the
period between
[30] There was at least some basis in the evidence for thinking that persons other than those who were identified may have been in or around the RVR at some time during the course of the trial. Ms McGhie spoke to seeing on one occasion a gentleman with DI Cuddihy and Mr Deeney whom she did not recognise. DCI Casey and DI Miller gave different descriptions of the man that they respectively referred to as Mac.
What
could be heard in the RVR and by whom?
[31] There is no question but that the system was efficient in transmitting the court proceedings to the RVR, at least when the speaker was close to a microphone. Witnesses could be seen and they could be heard. It was DI Cuddihy's evidence that counsel were more difficult to hear. For example, he could not hear Mr McConnachie, who was a quiet speaker, in the event of him moving away from the lectern. He had been unable to hear a discussion which appeared to be going on between counsel and the trial judge. The Minuter and his co-accused could be seen sitting in the dock. Whereas the view of the accused was from behind, their faces would be seen in the event of them turning round.
[32] Mr Ogg was concerned that in addition to transmitting the public proceedings in court the link to the RVR provided a means whereby conversations intended to be private, and in particular conversations between him and the Minuter during breaks in the proceedings, might be overheard. When Mr Ogg had been in the RVR on 22 September he had been able clearly to hear his junior in conversation with someone at counsels' table. Mr Ogg explained that it was the practice of the Minuter, who was on bail, to come into the well of the court during a break and to discuss with Mr Ogg how the evidence was coming out. The courtroom was empty during these discussions. He would not have allowed his client to say anything if he had been aware that everything that was said was being broadcast. He knew that what was said would have been "dynamite" if overheard. There had been oversights in the leading of Crown evidence that other witnesses could have made up for if the deficiencies were known to the prosecutor.
[33] I accept that conversations of the sort described by Mr Ogg took place at times when he and the Minuter had an expectation of privacy, that expectation being commensurate with being in a temporarily empty public courtroom which had five doors through any of which someone might enter at any time. There were rooms available in the Saltmarket for the purpose of consultation between the Minuter his legal advisors had they chosen to use them.
[34] Mr Armstrong confirmed that the microphones in Court 3 were sensitive. At an early stage he had spoken to all counsel present to remind them of this and to caution them to switch off the microphones if they wished a private discussion.
[35] It was Mr Lynn's evidence that he would sometimes remain in court when it was not in session but not always. He could not remember Mr Ogg discussing the case with his client. He could hear conversations in the courtroom when the court was down, but it depended upon how loudly the participants were talking. He would not pay attention. When he went to the RVR when the link was on he could hear people talking and moving about the courtroom but he could not hear what they were saying.
[36] Both Mr McConnachie and Ms Ralston recollected Mr Ogg and the Minuter having discussions in the courtroom when the court was down. They did not hear what was said.
[37] Mr Deeney brought DI Cuddihy to the RVR and remained there for about an hour and a half. DI Cuddihy made more extensive use of the RVR during the trial. He thought it was wholly appropriate for him to go into the room. It was of the nature of an extension to the public gallery. He thought that if there had been anything wrong about it he would not be afforded access. He didn't recall seeing the Minuter and Mr Ogg having any conversations. His evidence was that he did not hear any such conversation.
[38] Ms McGhee was at the door of the RVR on three or four occasions during the trial but the court was empty or the screens were not on. She never saw counsel or solicitors or the Minuter on screen and never heard discussions. There was nothing to prevent her from going into the courtroom at any of those times. She was in the unempanelled jurors' room for a cigarette and a coffee. When she was in the unempanelled jurors' room she could hear muffled sounds from the RVR when the trial was in progress. She only heard the evidence of one witness, Ian McLean.
[39] Ms Airlie said she that was in the RVR on perhaps three occasions when the trial was proceeding, but for no more that 5 minutes at any one time. She was in the RVR on a further one or two occasions when the trial was not in progress. She never saw Mr Fleming discussing the case with his solicitor or heard anything being discussed. In any event, she would not have recognised their voices.
[40] Each of the witnesses was asked whether he or she had heard while in the RVR or had reported to them by someone who had been in the RVR, anything which might assist the Crown in the prosecution of the case against the Minuter or which might be detrimental to his defence. Each answered in the negative. A recurrent theme in Mr Shead's submissions was that DI Cuddihy's credibility was in issue in the trial and I understood him as wishing to persuade me to take a sceptical view of DI Cuddihy's evidence. I confirm that I have thought it appropriate to consider DI Cuddihy's evidence critically because of the emphasis given to it by Mr Shead, but I have found nothing that has persuaded me to regard it as other than credible and reliable.
When
did the Advocate Depute become aware of use of the RVR?
[41] As I have already indicated, contrary to any evidence that would suggest that the Advocate Depute was in court when Ms McGhee made her request to Mr Lynn on 13 September, I accept Mr McConnachie's evidence which was that it was only on the second or third day of the trial that he became aware of the existence of the RVR and its use. This was by reason of a chance conversation with Ms McGhee who had told him that she had seen him questioning Mr McLean. The information gave rise to no particular reaction on Mr McConnachie's part. He did not visit the RVR until 22 September after the matter had been raised by Mr Ogg. His impression that it was a facility that was constantly available and that people could simply wander in and watch the trial. He accepted that there had been an occasion when Ms McGhee had requested that the link be switched on and that Ms Ralston had passed a note to that effect to Mr Lynn after he had confirmed that this was "ok" but Mr McConnachie did not consider that by giving his "ok" he was exercising any control over the RVR. Rather, he considered that it was under the control of the court.
An
inquiry
[42] In the course of his opinion in HMA v Fleming supra at 336D the Lord Justice Clerk said this:
"It will be for the Lord Advocate to decide, in the light of the affidavits lodged by both sides, and of such further enquiries as he may make, whether or not to re-indict".
[43] When he came to address me in his submissions Mr Shead suggested that what the Lord Justice Clerk had envisaged was an inquiry such as had occurred in the hearing before me. He also submitted that the circumstances called for an independent investigation by an independent police force.
[44] I do not interpret what the Lord Justice Clerk said in the way that Mr Shead encouraged me to do but whether I am right or wrong about that, on the evidence I heard it would not appear that the Lord Advocate has ever instructed an independent inquiry of the sort envisaged by Mr Shead. Ms Bryden was instructed to investigate the facts by taking statements and preparing affidavits. She was under the direction of the Deputy Crown Agent. It was his decision as to who should be asked to provide affidavits. The purpose of this investigation would appear to have been to prepare the Crown position in relation to the case. I took Ms Bryden's object to have been to ascertain the facts as accurately as possible with a view to their full disclosure but I did not take her perspective to have been to be critical of herself, or of her staff or of Crown Office in relation to the uncontrolled and casual use of the RVR by COPFS. The RVR and its ancillary equipment was, of course, SCS property under SCS control and it is important to note that neither in the course of examination in chief or cross-examination was any criticism whatsoever directed at Ms Bryden personally. Neither, for that matter, was any criticism directed at Mr Armstrong.
Submissions
Submissions
for the Minuter
[45] Mr Shead moved me to sustain the plea in bar of trial in the common law Minute and to pronounce decree declaring that the Lord Advocate had no power to proceed further against the Minuter. He began the development of his submissions in support of these motions by reference to a series of questions. The first question was whether anyone had been the RVR who should not have been. He reminded me that Mr Deeney had brought Mike and Timo Debacker to the RVR for a familiarisation visit; of Ms McGhee's evidence as to seeing an unidentified person with DI Cuddihy; the discrepancies between the descriptions of "Mac" given on the one hand by DI Miller and on the other by DCI Casey; and Mr Ogg's reference to "two guys in suits" whom he did not recognise. Mr Shead invited me to find that there had been at least one unidentified person in the RVR and that he had been in the company of DI Cuddihy. However, there had been ample opportunity for others to be there. The RVR was unsupervised. It was unlocked. Moreover, there was a complete lack of awareness on the part of anyone that the unregulated use of the RVR raised any issue. For example, it had never occurred to Ms McGhee why COPFS staff should not use the room for their own purposes. At every level, from the Procurator Fiscal Depute through to the trial judge, there had been a failure on the part of those responsible for safeguarding the position of the accused. With the exception of Mr Armstrong, no one appears to have appreciated the risks of what Mr Shead described as "abuse of the room". Mr Shead's second question was whether use of the RVR had resulted in any witness being contaminated. He referred to "Mike" and Timo Debacker having been brought to the RVR by Mr Deeney and "Mac" being there when Mr McConnachie had arrived on 22 September and had immediately expressed his concern by saying "Tell me that is not Mike". It was reasonable to infer that Mac was in the RVR when the Minuter entered the dock and indeed when Timo Debacker entered the witness box. Accordingly, by reason of his presence in the RVR, Mac would be able to identify the Minuter. Identification was an issue in the case, as was the propriety of the conduct of the police. There had been a challenge to the credibility of DI Cuddihy. Mr Shead's third question was whether material confidential to the defence had been overheard in the RVR. He accepted that there was no evidence that anything of a confidential nature actually had been overheard but there was ample potential for this happening. He reminded me of Mr Ogg's evidence. Mr Shead's fourth question was whether, given what it had done by way of investigation, was the Crown in a position to assure the court that the Minuter's right to a fair trial had been safeguarded. A theme that Mr Shead returned to during the course of his submissions was the inadequacy of the Crown's investigation of the circumstances of the use of the RVR during the course of the Minuter's trial. Mr Shead characterised what had been done by Ms Bryden as a "very limited inquiry" in contrast to what he submitted should have taken place: an independent investigation by an independent police force. At the best for the Crown there had been a failure to grasp the significance of what may have occurred (although a more sinister explanation was available). Had it been otherwise Mr Williams would have asked to spend more than five minutes in looking at only two days tapes. The Crown position when presenting the Bill of Advocation was that nothing untoward had happened. Affidavits had been produced with a view to establishing that. The Crown was playing the part of a party to a litigation (and therefore not an independent investigator). It had never been disputed that it was the Crown that had brought the RVR equipment into operation. Mr McConnachie had become aware of this at latest by the third day of the trial and yet he had done nothing to prevent further transmission. Mr McConnachie accepted that he had been present when Ms McGhee spoke to Mr Lynn about the possible use of the RVR during the evidence of Oswaldo Garcia. Although he had no recollection of having done so, Mr McConnachie did not dispute the evidence of DI Cuddihy that they had discussed the reinstatement of the link to the RVR following Garcia's evidence. Accordingly, assuming no improper motive on the part of Mr McConnachie, he was nevertheless intimately involved in arrangements that he had come to recognise were inappropriate. There had been numerous opportunities for safeguards to kick in but they had not done so. This was due to failures attributable to the court administration, to the Crown and to the trial judge. The context therefore was one where there had been allegations of police misconduct during the trial with the credibility of police witnesses being questioned; where there had been a failure of potential safeguards of the Minuter's right to a fair trial; where the problem had been revealed by the defence at a critical stage in the proceedings; and where no inquiry had been carried out by a different police force or a different procurator fiscal. All this had the look of being highly suspicious, yet the Crown's response was wholly inadequate: a report from Ms Bryden, which was not careful, not complete, and not impartial. It had been compiled without anyone from the defence having been precognosced and without the defence perspective having been considered. The concern of Crown Office had been to support the Crown position in the Bill of Advocation. This was unfortunate in the extreme given that at the hearing of the Bill, the then Advocate Depute had sought to rely on affidavits despite the absence of an affidavit from Mr McConnachie (by reason of one not having been prepared on the instructions of the Deputy Crown Agent). The Crown investigation of the matter therefore offered no safeguard at all. There had been abuse of the RVR, whether of a casual or more sinister nature, and the well informed observer would have to hesitate before suggesting that a fair trial was possible. Moreover, the conduct of the authorities should simply not be tolerated, independent of whether the explanation lay in "conspiracy" or "chaos", to use the expressions of the Lord Justice Clerk in his opinion in HMA v Fleming supra, albeit that Mr Shead would characterise what had occurred, at best for the Crown, as systematic failure rather than chaos. It was indicative of a culture where the defence was invisible.
[46] Mr Shead then turned to consider the decision of the
[47] In setting out what he submitted was the common law as it
related to oppression, Mr Shead referred me to Brown v HMA 2002 S.C.C.R. 684 and then to Mowbray v Crowe 1993 S.C.C.R.
730. What these cases demonstrated was
that the concept of oppression went beyond cases which raised the issue of what
Mr Shead described as simple forensic fairness. It includes abuse of the court process. It provides for the principle that justice
must not just be done but seen to be done. A trial could be fair in purely forensic terms
but the prosecution might still amount to oppression. Neither Mitchell
v Frame 2003 S.C.C.R. 321 nor Rose v HMA 2003 S.C.C.R. 569 should be seen as being to contrary effect. Article 6 of the Convention was to be
approached from a similar perspective. In Teixiera de Castro v
"The court is not concerned with the
guilt or innocence of the appellants, but only with the safety of their
convictions. This may, at first sight,
appear an unsatisfactory state of affairs, until it is remembered that the
integrity of the criminal process is the most important consideration for
courts which have to hear appeals against conviction. Both the innocent and the guilty are entitled
to fair trials. If the trial process is
not fair; if it is distracted by deceit or by material breaches of the rules of
evidence or procedure, then the liberties of all are threatened."
Submissions for the Crown
[49] The Advocate Depute
addressed me first on what findings of fact I should make. She then turned to the law. She did not accept that because there was
potential for a conversation that the Minuter and Mr Ogg had chosen to
have in a public courtroom being overheard that amounted to a breach of
Article 8 but, in any event, absent a consequential unfair trial breach of
Article 8 was irrelevant: McGibbon v HMA 2004 J.C. 60 at 64. Neither
did the Advocate Depute accept that what had occurred in September 2004
had led to a breach of Article 6. No
concession on that should be inferred from the Crown position before the
[50] Returning to the risk that the Minuter may have been overheard
during a break in the proceedings, the Advocate Depute contrasted the
circumstances in the present case with those in S v Switzerland (European
Court of Human Rights, App 12629/87) and in the recent English case of R v Grant [2005] 3 WLR 437. In these cases there had been deliberate
violations of the accused's right to confidential communication with his legal
advisers. The Advocate Depute conceded
that where the circumstances were as grave as those in Grant, for example, a Scottish court did have power to sustain a
plea in bar of further proceedings even if no evidence had been discovered as a
result of police misconduct which would prejudice the accused. But, responding to the points relied on by
Mr Shead, she argued that the situation in the present case was very far
from the facts in S or Grant. There was nothing sinister about the presence
of Mac in the RVR. It made no sense to
suggest that he was there in order to see the Minuter. If he wanted to do that he could simply have
waited until the Minuter came in the front door of the Saltmarket building. There were, in any event, surveillance
photographs of the Minuter which had been lodged as productions. The challenge to police evidence at trial had
related to the allegation that certain information had been downloaded from the
hard disk of the Minuter's computer. This
had nothing to do with the RVR. Any
suggestion of police misconduct was simply the result of speculation. In relation to Ms Bryden's inquiry, it
was not the case that she had deliberately omitted to obtain an affidavit from
Mr McConnachie. This was not a
situation where the Crown had obtained affidavits from everyone involved but
had left out Mr McConnachie. Others
had not provided affidavits. Ms Bryden's
concern was to obtain affidavits from those who had been in the RVR in the
course of the trial. Ms Bryden had
denied the suggestion that she had taken steps to suppress Mr McConnachie's
evidence. Ms Bryden had expressed
disappointment in having failed to transfer all the information from her notes
into the affidavits. There had been no
attempt on her part to omit information. Ms Bryden had been given the remit to
find out what had happened in fact. That
is what she had done. Before making his
decision to proceed with the present indictment the Lord Advocate had had he
opportunity to consider all the precognitions which had been obtained, Ms Bryden's
report, notes of the submissions made to the court by the Crown and on behalf
of the Minuter, a report from the Advocate Depute, the affidavits obtained by
the Crown and those lodged on behalf of the Minuter. In addition, law officers had had a meeting
with the trial Advocate Depute. Moreover, senior counsel for the Minuter had
not only been present when all submissions were made to the court but he had
had the opportunity of discussing the RVR issue with Mr McConnachie. On the evidence, there was no question of a
conspiracy between the Crown and the SCS here.
There was no bad faith and no deliberate attempt to mislead in any way. At worst, those involved were guilty of lack
of consideration of the implications, a lack of thought, a lack of foresight. Many of those had been heavily engaged in the
trial at the relevant time and were juggling with a number of issues. They perhaps ought to have had concerns but
they did not. Nevertheless, no
information had come to the attention of the Crown which was detrimental to the
defence.
[51] Under reference to what
was said in Stuurman v HMA 1980 J.C. 111 and McFadyen
v Annan 1993 J.C. 53, the Advocate Depute reminded me of
the high test to be satisfied before the court exercised what was the exceptional power to uphold a plea in bar of
trial. When considering the question of
the fairness of any future trial it was important to bear in mind that the
Minuter has had the advantage of a very full consideration of the issues at
this hearing. Entrapment, as discussed
in Brown v HMA, was an extreme example of oppression. Entrapment could be regarded as forming a
special category of case, albeit that it was discussed in Brown in terms of unfairness. It can be contrasted with other cases in that
in other cases evidence will have been ingathered, there will have been a
decision to prosecute. Only then will
something have happened which arguably results in oppression. While stressing that the onus was on the
accused to establish oppression, the Advocate Depute accepted that in extreme
cases the court will not require the accused to show prejudice. However, the Crown position was that
regardless whether the test is oppression or abuse of process, when one looked
at the facts in the present case (and each case had to depend on its facts),
there had neither been prejudice nor oppression. The Crown should accordingly be allowed to
proceed against the Minuter. All the
evidence that will be presented had been ingathered prior to the trial in
September 2004. Use of the RVR had
not impacted on that evidence. It would,
in any event, be open to the defence to lead its evidence and to test the Crown
evidence in cross-examination. The
Advocate Depute accepted, under reference to Mowbray v Crowe, that
there was a place for the principle that justice must not only be done but also
seen to be done. It was an aspect of
Natural Justice. However, here, while it
may be that an unfortunate situation had arisen during the trial in
September 2004, an informed observer who had sat and watched the entire
proceedings would say that justice had in fact been seen to be done.
Discussion and decision
[52] It is the Minuter's position that because of what happened when he first went to trial in September 2004 he cannot now receive a fair trial as provided for by Article 6 of the European Convention on Human Rights and, moreover, that it would be oppressive for the Crown to continue with the prosecution. By way of reinforcing these contentions he points to the rights guaranteed to him by virtue of Article 8 of the Convention (respect for private and family life). Article 6 and the common law concept of oppression overlap. As the Lord Justice Clerk explains in HMA v Fleming supra at paragraph 41:
"Scottish criminal procedure is based on an underlying principle of fairness. An aspect of that principle is that the court will prevent a prosecution from taking place, or from continuing, if it would be oppressive to the defence (cf McFadyen v Annan, 1992 J.C. 53; Renton and Brown, Criminal Procedure, 5th ed, para 9-21".
[53] Mr Shead was anxious that I understand that while the underlying principle might be that of fairness, more is involved in the common law concept of oppression than simply disadvantage at trial or "forensic unfairness" as he put it. The same applied under Article 6 of the Convention. It was therefore not essential that he establish that the Minuter will suffer prejudice, let alone irremediable prejudice, in the event that he is compelled to go to trial. I am persuaded that Mr Shead is right about that. I am not, however, persuaded that the circumstances here are such that requiring the Minuter to proceed to trial would result in any sort of relevant unfairness or oppression. Equally, I am not persuaded that the Minuter cannot have a fair trial as that expression is to be understood in terms of Article 6 of the Convention. I do not consider that any contravention of the Minuter's rights under Article 8 has been established but were I to be wrong about that it is my opinion that a breach of the Minuter's Article 8 rights by a public authority at some time in the past and nothing more (i.e. in the absence of consequences which would prevent a fair trial and therefore contravene Article 6) does not have the result that the Lord Advocate cannot proceed with this prosecution: McGibbon v HMA 2004 J.C. 60 at 64. The reasons for my conclusions are as follows. I begin by setting out my understanding of the law.
[54] McFadyen v Annan was a decision by the majority of a bench of five judges. The accused raised a plea to the competency of summary proceedings on the ground of undue delay (an alleged assault in August 1990, a complaint served in May 1991). The case was remitted to a court of five in order to permit reconsideration of the appropriate test in cases of alleged oppression by reason of delay, as previously stated in Tudhope v McCarthy 1985 JC 48. The majority of the Court disapproved Tudhope. In the course of his opinion the Lord Justice Clerk said this (McFadyen v Annan supra at 60):
"... the real question which the court has to consider in all cases where delay is alleged is whether the delay has prejudiced the prospects of a fair trial. This involves the court asking itself whether the risk of prejudice from the delay is so grave that no direction by the trial judge could be expected to remove it. ... I would again stress that cases where such a plea in bar of trial will be upheld will be rare and exceptional cases. The test to be applied where oppression is alleged to have been the result of delay is the same as that which falls to be applied in cases where oppression is alleged to be the result of pre-trial publicity or any other cause."
"... the High Court of Justiciary has power to intervene to prevent the Lord Advocate from proceeding upon a particular indictment but this power will be exercised only in special circumstances which are likely to be rare. The special circumstances must be such as to satisfy the Court that, having regard to the principles of substantial justice and of fair trial, to require an accused to face trial would be oppressive. Each case will depend on its own merits, and where the alleged oppression is said to arise from events alleged to be prejudicial to the prospects of fair trial the question for the Court is whether the risk of prejudice is so grave that no direction of the trial Judge, however careful, could reasonably be expected to remove it."
[56] Notwithstanding the emphasis on prejudice in McFadyen v Annan and Stuurman v HMA, there is, as Mr Shead submitted, a basis in authority for a different sort of oppression on the part of the Crown as providing a basis to uphold a plea in bar of trial. In Sugden v HMA 1934 JC 103 (a decision of the full bench that negatived the existence of a vicennial prescription in the prosecution of crime) at 112 the Lord Justice Clerk approved a passage in Burnett, Criminal Law at page 309:
"As His Majesty's Advocate ... cannot be compelled to give his instance, so this officer cannot be controlled as to the way and manner in which he is to give it, or as to the time when he is to exercise his right, except in as far as he has been restrained by express enactment as to the form of trial and the period within which it must be brought, or by the interference of the Court of Law upon any case of hardship or oppression towards the party accused, by undue delay or otherwise, in conducting the trial."
"Not only that, but it is well established that justice must not only be done but must be seen to be done and in our judgment justice is not seen to be done if the prosecutor has behaved in the way in which the respondent behaved in the present case, by interviewing the appellant without warning her that she did not require to attend for interview nor advising her that she might wish to take legal advice and could be accompanied by a solicitor at the interview."
[58] More definite steps away from the position that Scots law requires there to be irremediable prejudice to the accused before a plea of oppression can be upheld, were taken by the judges who formed the Court in Brown v HMA supra, a case of alleged entrapment. The Court did not find entrapment to have been made out, but each of its members took the opportunity to endorse what had been said in the House of Lords in the English case of R v Looseley [2001] 1 WLR 2060 as having equal application in Scotland. In Looseley Lord Nicholls and Lord Hoffmann had explained that the rationale behind the court granting a stay in cases of entrapment is to prevent the abuse of process which would result from the proceedings going any further. Thus, in paragraph 1 of Lord Nicholls's speech there is the following passage, quoted with approval in Brown v HMA supra by Lord Philip at 693C and by Lord Clarke at 696A:
"... every court has an inherent power and duty to prevent abuse of its process. It is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment, with which these two appeals are concerned, is an instance where such misuse may occur. It is simply not acceptable that the state, through its agents, should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure that this does not happen."
As Lord Hoffmann put it at paragraph 36:
"The question is not whether the proceedings would be a fair determination of guilt but whether they should have been brought at all."
[59] In Brown Lord Clarke adopted (supra at 694G) what had been said by Lord Steyn in R v Latif [1996] 1 WLR 104 at 112:
"Weighing countervailing considerations of
policy and justice, it is for the judge in the exercise of his discretion to
decide whether there has been an abuse of process which amounts to an affront
to the public conscience and requires the criminal proceedings to be stayed. ... The speeches in R v
Lord Clarke continued (supra at 685F):
"I consider,
therefore, that it is more appropriate to recognise that in such cases the
proper function of the court is to mark the unacceptability of certain
practices being adopted by the police and prosecution authorities, which the
law will not tolerate and that the principle involved is that the court is
refusing to allow an abuse of process. To
put the matter another way, I would refer to what Lord Hoffmann said in Loosely
at para. 71, that is, the question is: 'Whether the involvement of the court in the
conviction of a defendant who had been subjected to such behaviour would
compromise the integrity of the judicial system.'"
[61] The approach taken in R v Loosely and R v Latif was followed in R v Grant, a case where the police had unlawfully tape recorded conversations between the defendant and his solicitor while the defendant was in custody. Laws LJ said this, supra at 455H to 456G, when giving the judgment of the court:
"54 ... True it is that nothing gained from the interception of solicitors' communications was used as, or (however indirectly) gave rise to evidence relied on by the Crown at the trial. Nor, as we understand it, did the intercepts yield any material which the Crown might deploy to undermine the defence case. But we are in no doubt but that in general unlawful acts of the kind done in this case, amounting to a deliberate violation of a suspected person's right to legal professional privilege, are so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court. ...
55 ... Not every misdemeanour by police officers in the course of an investigation will justify a stay on grounds of abuse. And plainly there are cases where prejudice or detriment to the defendant must be shown; indeed the case where the defendant is denied a fair trial by the prosecutor's act or omission may be thought a paradigm of abuse of process.
56. Where a fair trial remains possible, faced with an application for a stay on grounds of abuse the court has a balance to strike. On the one hand public confidence in the criminal justice system has to be maintained; and where misconduct by the police or prosecution is shown, that will favour a stay of the proceedings. On the other hand, it is the court's duty to protect the public from crime, especially serious crime; that consideration may militate in favour of refusal of a stay. For the balancing exercise see R v Latif [1996] 1 WLR 104, per Lord Steyn.
56. Where the court is faced with illegal conduct by police or State prosecutors which is so grave as to threaten or undermine the rule of law itself, the court may readily conclude that it will not tolerate, far less endorse, such a state of affairs and so hold that its duty is to stop the case."
[63] Whether the facts in the present case are considered from the perspective of unfair prejudice to the Minuter, prosecutorial misconduct, or, more broadly, abuse of process, I do not consider that it would be unfair or oppressive to require the Minuter to go to trial. To the extent that this is different I do not consider that such a trial will be other than in compliance with Article 6 of the Convention.
[64] I turn first to the theme of risk of prejudice. As I have already indicated, it is not
possible comprehensively to list with complete confidence the persons who were
in the RVR for at least some part of the evidence. That said, having heard evidence, I have no
reason to believe that anyone on the Crown list who had yet to give evidence
was present in the RVR. Thus, the
position remains as it was assumed to be when HMA v Fleming was before
the
[65] I turn to what I shall refer to as prosecutorial misconduct, albeit that, critical as he was of the Crown, this is not an expression that I noted Mr Shead as using. He preferred to talk about "abuse" of the RVR. I intend to comprehend within prosecutorial misconduct the conduct of the police in the persons of DI Cuddihy and DI Miller. Activation of the link and use of the RVR was at the instigation of COPFS staff, in particular Ms McGhee and Mr Deeney. Ms Cunningham, a Procurator Fiscal Depute and acting High Court Manager, was aware that the RVR was in use. The trial Advocate Depute, Mr McConnachie, became aware of the use of the RVR and acquiesced in its continuing use. None of these people considered that there was anything untoward about the trial being viewed from the RVR by members of COPFS staff and police officers. In retrospect this insouciance is remarkable. Retrospect, however, provides a privileged perspective. Here, it includes the knowledge that neither the trial judge nor the representatives of the accused were aware of what was happening. That was not appreciated at the time by those involved with the activation of the link, albeit none of them appear to have addressed themselves to the issue. Control of the link was in the hands of the clerk of court, Mr Lynn. Ms McGhee therefore made her request to him. When the link was activated she was entitled to believe that use of the RVR had Mr Lynn's approval. She understood (wrongly) that Mr McConnachie had indicated that he had no objection. When asked why she did not draw her request to the attention of the defence she replied that it had not occurred to her that that had any bearing on the case. That may indicate a lack of understanding on her part but she was an administrator not a lawyer. Ms Cunningham thought and Mr McConnachie, when he learned of its existence, assumed, that use of the RVR was a matter of routine (and therefore generally known about). It was Ms Cunningham's understanding, from working intermittently at the Saltmarket building, that it could be used if necessary but that there were no special considerations to be taken into account. Mr McConnachie's impression was that the facility was constantly available. Neither at the time nor when he gave evidence before me could he see any difference between, DI Cuddihy for example, viewing proceedings in the RVR and him sitting in the public benches in the courtroom. That very much coincided with DI Cuddihy's own view. He too had been unaware of the existence of the RVR before the trial. He was told by Mr Deeney (rightly or wrongly) that it had been created on the recommendation of Lord Bonomy. He thought it a good idea but he saw it as no more than an extension of the court. In the course of his opinion in HMA v Fleming, the Lord Justice Clerk contrasts conspiracy theory and chaos theory as explanations of the events as they were then understood. Mr Shead did not favour chaos theory as an explanation. His preferred characterisation was a systematic failure for which the Crown was responsible. I see force in the way the matter was put by Mr Shead, but nothing that I heard in evidence persuaded me that there had been a conspiracy. It appeared to me that everyone involved was acting in good faith. With the exception of DI Cuddihy, of whom he encouraged me to be suspicious, Mr Shead did not really suggest otherwise. However, if the individuals are not to be blamed, then attention must turn to the system. There is something clearly unattractive about the RVR being appropriated by COPFS staff, if not simply as an adjunct to what was used as a smoking room, then at least as a private facility whereby staff and their guests could watch part of a trial while enjoying a coffee break. The Advocate Depute made the point that the RVR was under the control of the SCS. That may be so and responsibility may lie in that direction, but I do not see that as absolving COPFS from the need to address the issues arising from the availability of the RVR and make provision for its proper use, although, as I have already stated, it is important to record that neither Mr Armstrong nor Ms Bryden, the respective SCS and COPFS senior managers, had that point put to them. However, even if a systemic failure for which the Crown is responsible is taken as displacing chaos theory as the most apposite explanation of the course of events which led Lord McEwan to desert the diet, in all the circumstances that does not persuade me that it would not be fair to require the Minuter to submit to a re-trial. As I have already indicated, I do not consider that a risk of prejudice has been made out. Had I come to the conclusion that the Crown had acted in bad faith, had there been a conspiracy, for example, I would have considered it open to me to uphold the Minuter's plea, irrespective of whether any prejudice had ensued. However, whatever words one uses to describe or explain the conduct of the Crown, that conduct does not demonstrate bad faith. Criticisms can be made of the Crown but the circumstances are very far away from a case of "pollution of the moral integrity of the machinery of justice", as envisaged by Lord Clarke in Brown v HMA supra at 695C. Nor do I find anything sinister or suggestive of misconduct on the part of the police officers. Mr Shead appeared to suggest that there was something reprehensible about DI Cuddihy "monitoring" (DI Cuddihy's word) the evidence in the case. I cannot agree. It appeared to me entirely understandable that a reporting officer who had given his own evidence would be interested, for a variety of reasons, in how the rest of the evidence turned out. Accordingly, it is my opinion that there was nothing in the conduct of the prosecutorial authorities which would have the result of making a re-trial unfair.
[66] I have thought it appropriate to try further to view the circumstances overall, giving weight to possibilities as well as what I have found to have been proved on the basis of probability. I have attempted to look at things from the perspective of the well informed observer who would wish justice to be seen to be done. Having done so, I cannot conclude that it would be an abuse of process or an affront to the public conscience or unfair to require the Minuter to submit to a re-trial. Nor can I conclude that a re-trial would contravene the Minuter's rights as guaranteed by Article 6 of the Convention. I shall therefore dismiss the Minutes.
[67] I would add, because of the emphasis given to this in his submissions by Mr Shead, that I have attached no significance to the fact that I heard no evidence of the Lord Advocate having carried out any inquiry into the matter beyond what was spoken to by Ms Bryden. The Lord Advocate is not made subject to judicial review by virtue of these proceedings. I consider it appropriate to proceed on the basis that the decision to re-indict the Minuter was made as a proper exercise of discretion on the basis of such information as the Lord Advocate thought it right to have available to him.