Her Majesty's Advocate v. Cameron & Ors [2007] ScotHC HCJ

"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 22 September 2004 at the trial before Lord McEwan. Accordingly, if parties were not at one about the material facts, they would have to be found by the court. It was the Minuter who contended that the circumstances were such that there should be no further trial. It therefore seemed to me to be appropriate that he should set out the facts upon which he relied and, if they were not admitted, that he should have the opportunity to prove them: cf HMA v McGill 1997 SCCR 230 at 237D and Brown v HMA 2002 SCCR at 684 at 690B. Accordingly, on 7 September 2005 I appointed the Minuter to lodge a statement of facts and issues between the parties in relation to the RVR issue by 21 September and the Crown to lodge Answers thereto by 28 September. On 4 October 2005 I further continued the preliminary hearing until the following day with a view to determining further procedure. On 5 October I assigned 24 October 2005 and the subsequent four days as a diet of continued preliminary hearing for the purpose of leading evidence, if necessary. As I have already indicated, for reasons which are explained in my opinion of 7 September 2006, that hearing did not take place until 30 October 2006.

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 Glasgow on 6 September 2004. The trial, before Lord McEwan and a jury, began on 13 September 2004. The Advocate Depute was Mr McConnachie QC. He was assisted by Miss Ralston. The Minuter was represented by Mr Ogg QC. The trial took place in Court 3 in the Saltmarket building. Court 3 is designated as the High Security Court. An armoured glass panel separates the dock from the public benches. Court 3 has facilities which other courts in the Saltmarket do not have. Among these facilities is the capability of transmitting an audio-visual feed from the court to the RVR. This is activated from the clerk's table. The visual feed comes from one camera mounted on the back wall of the courtroom. The camera is readily visible to anyone in the courtroom but there is no obvious indication that it is in operation. The audio feed comes from a number of microphones. Among these microphones are those situated on the table where counsel sit and one at the lectern which is intended as the position from which counsel examine witnesses. The RVR is set out in the manner of a small cinema. It has seats and two plasma screens. It is situated within a room designated for the use of unempanelled jurors. The unempanelled jurors' room and the RVR are situated on the first floor of the Saltmarket building, close to the suite of offices occupied by the COPFS and designated Crown Office (West).

[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 Scottish Court Service ("SCS"). The SCS is an Executive Agency of the Scottish Executive Justice Department. In 2004 the SCS had contracted provision of security in the Saltmarket building to Securiplan plc. Mr Williams was an employee of Securiplan.

[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 13 September 2004, before the jury was empanelled in the trial of the Minuter and Mr Brady, Ms McGhee came into the courtroom and asked Mr Lynn to activate the audio-visual link from Court 3 to the RVR in order that members of COPFS staff could watch the progress of the trial during their breaks. Ms McGhee explained that the case was of particular interest as many members of staff had been involved in administrative arrangements in connection with it (the example she gave was of witness citation). Mr Lynn had received no training on the operation of the RVR transmission system. He therefore went to ask Mr Armstrong how to operate the facility. Mr Armstrong went into court and demonstrated use of the system. Neither the trial judge nor any representative of either accused was present in court when Ms McGhee made her request. It did not occur to Mr Lynn to tell the trial judge because, as he explained: "It all seemed very innocent". No one told any defence representative of the request. When asked why he had not alerted the defence, Mr Lynn, recollecting what he thought were two or three requests to switch on the link during the course of the trial, said:

"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 13 September 2004. The first witness was DI Cuddihy (the reporting officer) who began his evidence at about 1517 hours. From then until the morning of Monday, 20 September, when it was interrupted during the evidence of Oswaldo Garcia, and then again on 21 September, there was transmission by means of the audio-visual link from Court 3 to the RVR. It commenced each day prior to the trial judge coming on the bench and it continued uninterrupted during the day until Mr Lynn switched it off prior to leaving the court. If the court adjourned, for example, to take a coffee break, the equipment was left on. However, on one occasion, towards the end of the first week of the trial it would appear that the system was not switched on. When Ms McGhee realised this she came into court and spoke to Mr McConnachie as the judge was coming onto the bench. Miss Ralston passed a note to Mr Lynn asking him to put on the link to the RVR. It was put 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 Tuesday, 14 September 2004, from about 1000 hours. His evidence was followed by that of other witnesses, including Ian McLean, whose evidence commenced at about 1532 hours and continued until 1555 hours.

[20 ] On Wednesday 15 September 2004 McLean resumed his evidence from about 1007 hours until about 1553 hours. Although she could not remember the exact date, Ms McGhee indicated that she was in the RVR at the time when McLean gave evidence. She watched during examination in chief for about 3 or 4 minutes. She saw the Advocate Depute asking questions (this must have been either late in the afternoon of Tuesday 14 or early on Wednesday 15 September).

[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 McLean's evidence that there was a discussion among the trial judge and counsel which he could not hear, although he had not had difficulty in hearing Mr McLean.

[22 ] Among the witnesses led on Thursday, 16 September 2004 was Chief Inspector Richard Casey. On Friday, 17 September 2004 further evidence was led from a number of witnesses who included Anthony Montgomery.

[23 ] On Monday, 20 September 2004 Mr Montgomery continued the evidence he had begun on Friday. He was in the witness box between 1041 hours and 1115 hours. He was followed by John Buchanan and then by Oswaldo Garcia.

[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 Tuesday, 21 September 2004 from Mr William Nimmo, Peter Kelbrick, Russell Andrew, Salleem Asghar, Gary Dans, Sharon McGregor and Donald McDonald. DI Cuddihy went to the RVR late that morning when the court was already in session but he heard the evidence of Peter Kelbrick from the public benches. DI Cuddihy spoke to Mr McConnachie before he left court that day and asked if the RVR could be in operation in order that the Belgian police welfare officer, identified only as "Mac", could be present in the RVR while the undercover officer, "Mike", for whom Mac had a responsibility, was giving evidence.

[27 ] To an extent the evidence as to the events of Wednesday, 22 September 2004 was conflicting but a certain amount appeared to be uncontroversial. When the court convened the Crown called a Belgian police officer, Timo Debacker, who was sworn. Mr Debacker required an interpreter in order to give his evidence. There was a technical problem with the necessary equipment and the court adjourned in order to allow the problem to be identified and fixed. No evidence was led from Mr Debacker. It was about this time that the existence and use of the RVR came to the attention of Mr Ogg. He asked Mr McConnachie whether the case was being remotely viewed, Mr McConnachie immediately answered in the affirmative. Mr Ogg took an objection. No further evidence was led in the trial.

[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 Appeal Court). This was of the nature of a familiarisation visit and occurred, according to Mr Deeney, at about 0910 hours or 0915 hours. Mr Deeney, Mr Debacker and Mike remained in the RVR for only a short period of time. The audio-visual feed was then on. I prefer the evidence of the police officers in rejecting Mr Deeney's evidence that DI Miller, DI Cuddihy, DCI Casey and Mac were there at that time, as opposed to being there later in the morning after DI Cuddihy had arrived with DCI Casey. When DI Cuddihy and DCI Casey arrived Timo Debacker could be seen from the RVR waiting in the witness box in Court 3. DI Cuddhy was in the RVR when Mr Ogg arrived together with Mr Lobjoie, Solicitor Advocate. Mr Ogg, who I accept on this as with the rest of his evidence, spoke to seeing DI Cuddihy, "two guys in suits who I had seen with DI Cuddihy but whom I did not recognise", either Mike or Mac's handler (a "Spanish looking chap"), "one of the IT guys at the High Court" and someone else. I take the "two guys in suits" to have been DCI Casey and DI Miller.

[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 14 September 2004 and 22 September 2004: Eileen McGhee; John Deeney; DI Cuddihy; DI William Miller; "Mac"; DCI Richard Casey; Carol Anne Airlie; and Joanne Cunningham. Of those persons, DI Cuddihy and DCI Casey were witnesses in the case. It is not however possible to conclude with complete confidence that these were the only persons in the RVR during the transmission of proceedings over the course of the trial. No security was provided for the RVR. Access was unsupervised. The door was unlocked. As Mr Williams explained, the Saltmarket building is monitored by 96 closed circuit television cameras. One, camera 55, was positioned close to the door to the unempanelled jurors room but faced towards the door to the offices of Crown Office (West). So situated, camera 55 did not provide a view of persons entering the unempanelled jurors room. Camera 55 could be trained on the door to the unempanelled jurors room but that was never done. No other camera provided a view of the door. Mr Williams was nevertheless asked to check what camera 55 had recorded on 22 September and the previous day. He found that due to a technical fault nothing had been recorded, either by camera 55 or any of the other 15 cameras which together formed multiplex 5, for at least that 48 hour period. Mr Williams did not check whether anything had been recorded on any day earlier than 21 September 2004 because he was not asked to do so.

[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 Appeal Court in HMA v Fleming. He submitted that the decision was not binding on me: it proceeded on different facts from those disclosed by the evidence which I had heard, it was concerned with a different issue and it did not address Article 6 on the view that it was unnecessary to do so. Mr Shead nevertheless advanced criticisms of both the position taken by the Crown in arguing the Bill of Advocation and the opinion of the Lord Justice Clerk on passing it. The Crown argument ignored the possibility of misconduct on the part of the prosecution being a sufficient bar to further proceedings and, as the evidence led before me had demonstrated, the case involved much more than simply "blunders and misunderstandings". The test adopted by the Lord Justice Clerk at paragraph 34 of his opinion: whether at a re-trial an unfair trial would be inevitable, was too high. At paragraph 35 the Lord Justice Clerk confused the issue of whether anything confidential had been overheard with the issue of whether a witness who had not yet given evidence had been in the RVR while the trial was proceeding. By concluding that Article 6 added nothing to the Minuter's case the Lord Justice Clerk had not considered the issue of the fairness of any future trial as viewed by a well-informed observer.

[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 Portugal 1998 ECHR 101, the European Court of Human Rights considered that there had been a contravention of Article 6.1 when an accused had been incited to play a part in the supply of controlled drugs by the actions of undercover police officers. Article 6 was not to be subordinated to notions of public interest: Montgomery v HMA 2000 SCCR 1044 at 1106C. It embraced both forensic fairness and broader ideas of fairness as expressed in Brown v HMA supra. Mr Shead commended the approach of the English Court of Appeal when, in R v Atul Patel [2001] EWCACrim 2505, it approved what had been said by Roch LJ in R v Hickey, 30 July 1997:

"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."

[48] The concession by the Crown that Lord McEwan had been correct to desert the diet in September 2004 was fatal to its position in relation to the plea in bar of trial. The concession was an admission that what had happened prevented there being a fair trial. Nothing then could be done to put right what had gone wrong.

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 Appeal Court in HMA v Fleming supra. By that stage there had been little point in arguing that Lord McEwan had been wrong to desert but in any event a trial judge may err on the side of caution in making his decision to desert without him having been wrong to do so. A risk of prejudice would suffice. For all the evidence that had been heard, the position of the Minuter was essentially the same as it had been before the Appeal Court. There is a risk that a conversation had been overheard but no more than that. There has been no evidence that a conversation was overheard. The Advocate Depute commended the view of the Appeal Court that no breaches of Articles 6 or 8 had been established. It was implicit in the Court's decision that the Lord Advocate could raise further proceedings against the Minuter should he decide to do so. The Advocate Depute submitted that Mr Shead's criticism of what had been done by Ms Bryden and the fact that there had been no further formal inquiry by the Lord Advocate were of no relevance. It was to be remembered that the Minuter was professionally represented. He has had the opportunity to present argument to the court under reference to two Minutes dealing with the RVR issue. He has been allowed to cite and to lead witnesses. In the event of a trial being fixed the Minuter will then have the opportunity to address the evidence to be led at such trial. Objection can be taken to the admissibility of evidence. Senior counsel appearing for the Minuter will have the opportunity to make representations about anything arising from the use of the RVR in September 2004. There is no reason why the Minuter cannot have a fair trial.

[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."

[55] McFadyen v Annan was an example of a case raising an issue of what Mr Shead characterised as forensic fairness. It was asserted that the delay had resulted in grave prejudice to the appellant. The same could be said about Stuurman v HMA 1980 J.C. 111, a case where there had been prejudicial pre-trial publicity. There the Lord Justice General said this, at 122:

"... 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."

[57] That passage was quoted by all of the members of the Court in McFadyen v Annan. It is obviously particularly pertinent to the question of delay and I would understand it to have been cited by the Solicitor General in that case with a view to emphasising the extent of the Crown's uncontrolled discretion when it comes to raising (as opposed to continuing) proceedings. However, it does envisage interference by the court upon any case of hardship or oppression by undue delay or otherwise. Oppression, therefore, is not confined to cases of prejudice (in the sense of forensic unfairness). There is also at least some support for oppression going beyond forensic unfairness in the opinion of the Court delivered by the Lord Justice Clerk (Ross) in Mowbray v Crowe 1993 S.C.C.R. 730. There proceedings had been instituted after the procurator fiscal had interviewed the appellant who had already been charged by the police. Although the Crown did not intend to lead in evidence what had been said at interview, the Court took the view that it had nevertheless secured an advantage in having learned her defence. The accused had therefore been prejudiced but, having noted that the Crown had been given an advantage which is would not have had if the interview had not taken place, the Lord Justice Clerk continued:

"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 Horseferry Road ex parte Bennett conclusively establish that proceedings may be stayed. ... not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. ... (The) judge must weigh in the balance the public interest in ensuring that persons charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means."

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.'"

[60] Differing, as he saw it, from Lord Philip and Lord Clarke, Lord Marnoch affirmed as the essential basis of a plea of oppression that, for whatever reason, the prosecution would be unfair to the accused (supra at 690C). However, he immediately accepted that conviction of a crime artificially created by agents of the State can also be seen as an abuse of the court process and he adopted the statement of principle by Lord Nicholls that a prosecution founded on entrapment would be an abuse of the court's process and that the court will not permit the prosecutorial arm of the state to behave in this way (supra at 690G to 691B).

[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."

[62] What I take from the opinions in Brown v HMA, read with the other cases that I have mentioned, is that a plea in bar of trial may be sustained in a variety of circumstances where the court is satisfied that it would be oppressive to allow the prosecution to continue. Many of these cases will be best analysed by reference to the unfair prejudice that the accused would suffer if obliged to go to trial. In other cases the outstanding feature will be prosecutorial or police misconduct pointing to an abuse of process. At least where the misconduct is particularly grave, the feature of prejudice (if present) may be of little importance. There may be yet other cases (although perhaps not easy to figure) where even in the absence of prejudice or misconduct, the continuation of a prosecution would amount to an affront to the public conscience or would be contrary to the public interest in the integrity of the criminal justice system. In any of these instances the case may be discussed in terms of the avoidance of unfairness, although the precise meaning to be attached to the word "unfair" might depend upon the particular circumstances. However, whatever the circumstances, regard must be had to the strength of the language used by the judges in the cases cited above to describe instances where a plea in bar will be upheld: "oppressive", "prejudice ... so grave that no direction ... could reasonably be expected to remove it", "misuse of state power", "abuse of process", "an affront to the public conscience". Thus, the test to be satisfied before the court interferes with an exercise of the prosecutorial discretion of the Lord Advocate will be a high one. The cases where the plea is upheld will be rare and exceptional: Stuurman v HMA supra at 122, McFadyen v Annan supra at 60, it being borne in mind that there are other mechanisms available to avoid what would otherwise be unfairness (the exclusion of evidence improperly obtained, for example). Where what gives rise to the plea is apprehension of prejudice the risk must be "so grave that no direction of the trial Judge, however careful, could reasonably be expected to remove it": Stuurman v HMA supra at 122. Where the case has more to do with prosecutorial misconduct, the mere fact that the Crown has behaved in a way of which the judge disapproves, does not entitle him to hold that there has been oppression: Renton & Brown supra at 9-21 and cases there cited; R v Grant supra at 456E. He would have to be satisfied that a continuation of the prosecution would so affront the public conscience as to amount to an abuse of the process of the court. I would respectfully suggest that the test of no possibility of a fair trial is entirely apposite and, if regard is had to the different shades of meaning that may attach to the word "fair", applicable to the whole range of cases where oppression may be alleged.

[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 Appeal Court, the room was not used to listen to the proceedings by anyone who would not have been entitled to watch the trial from the public gallery. The prejudice suggested by Mr Shead was different. First, given the presence of Mac and possibly another unidentified person in or about the RVR, the opportunity might have been taken to look at the Minuter in order to identify him. Second, the Minuter might have been overheard in private conversation with Mr Ogg discussing deficiencies in the way that the Crown case was being led. Now, it is important to make clear that there was no evidence that anyone who would not have otherwise been able to recognise the Minuter did make such a surreptitious identification or that anyone did overhear any confidential conversation. I accepted as true the evidence, to a negative effect, given by all the witnesses who were asked by the Advocate Depute whether they had heard or been told anything that would be adverse to the Minuter or advantageous to the Crown as a result of them or others being present in the RVR. Both suggested ways whereby the Minuter may have suffered prejudice are therefore no more than possibilities. As to the first, Mac was not on the Crown list of witnesses. His role was that of welfare officer to Mike, the undercover Belgian policeman who was due to give evidence. Mike had been taken into the RVR by Mr Deeney, together with Timo Debacker, for the purpose of familiarisation early on 22 September but had not heard any witness and had left before Mr Debacker entered the witness box. If it were to be suggested that there was anything wrong in familiarising witnesses with the layout of the courtroom, I would disagree. The relevance of Mac having seen the Minuter was, as I understood Mr Shead's argument, that he might communicate a description to Mike, identification of the Minuter being an issue in the case. An unidentified person might play a similar role. I would observe, as was submitted by the Advocate Depute, that if anyone wished to view the Minuter with the object of being able to identify him, ample opportunities would have been available from the public parts of the Saltmarket building on any of the days of the trial. However, if there is concern over a witness identifying the Minuter on the basis of having seen him from the RVR or having had him described by someone who saw him in the RVR, that can be taken up in cross-examination at any future trial. I accept that it would have been possible to overhear both sides of a conversation between Mr Ogg and the Minuter, provided that both were standing near to the lectern. I accept that such conversations took place. I accept that Mr Ogg regarded them as confidential, albeit that they were carried on in what was an only temporarily empty public space. Mr Ogg's concern was that during these conversations he and the Minuter had identified omissions in the leading of evidence by the Crown which, if the information was passed on to those responsible for the prosecution, could be remedied with later witnesses. I accept Mr Ogg's assessment of the contents of his conversations (or at least one of his conversations) as "dynamite". However, while I can understand, for the reasons given by Mr Ogg, that if the contents of his conversations had been overheard and passed on, that might have influenced the conduct of the trial in September 2004, it is less clear that having such information would give the prosecution a material advantage at a re-trial where the evidence would have to be led from the beginning and would, inevitably, come out differently. However, there was no evidence led before me that these conversations were overheard, while there was evidence from those who were present in the RVR that they were not overheard. I therefore cannot be satisfied that the Minuter will be prejudiced to any extent in any future trial, far less that a fair re-trial will be impossible. I have therefore no basis upon which to uphold the plea in bar on this ground.

[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.

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	Scottish High Court of Justiciary Decisons
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] HCJ 01, [2007] ScotHC HCJ_01

Scottish High Court of Justiciary Decisons