20 January 2009
by William F.I. BEGGS
against the United Kingdom
lodged on 20 June 2006
STATEMENT OF FACTS
The applicant, Mr William F.I. Beggs, is a British national who was born in 1963 and is currently serving a sentence of life imprisonment in HM Prison at Peterhead.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Background facts
On 6 December 1999, members of the Central Scotland Police Underwater Search Unit discovered severed parts of a human body while on a training exercise in Loch Lomond. Subsequently, further body parts were discovered. DNA analysis revealed the body parts to be those of Mr Barry Wallace. On 17 December 1999, the police conducted a search of the applicant’s home under an arrest warrant and discovered quantities of Mr Wallace’s blood, as well as other significant items. At some point between the discovery of Mr Wallace’s remains and the search of the applicant’s home, the applicant left Scotland and went to the Netherlands.
On 21 December 1999, a warrant for the arrest of the applicant was issued by Kilmarnock Sheriff Court alleging that the applicant had abducted and murdered Mr Wallace.
On 28 December 1999, the applicant, having sought legal advice in the Netherlands, voluntarily surrendered to the Amsterdam Foreign Police Bureau (Vreemdelingepolitie). On 29 December 1999, the applicant appeared before a Police Court (Rechter Commisaris) in Amsterdam and was remanded in custody pending receipt of a formal extradition request from the United Kingdom authorities.
On 10 January 2000, a further warrant for the arrest of the applicant was issued by Kilmarnock Sheriff Court alleging that the applicant had attempted to pervert the course of justice.
On 13 January 2000, a formal request for extradition was made by the United Kingdom authorities on charges of abduction, murder and attempting to pervert the course of justice. The Dutch authorities sought further details of the alleged offences. By letter of 21 January 2000, the Scottish Executive Justice Department provided the details requested.
The applicant challenged his extradition on the grounds that he would not receive a fair trial in Scotland as a result of the extensive media coverage of the crime and that there was a risk to his well-being as a result of a death threat made against him following the media coverage.
On 28 March 2000, the extradition request was heard by the District Court of Amsterdam (Arrondissementsrectbank). On 11 April 2000, the court issued its judgment declaring that the part of the request relating to the attempt to pervert the course of justice was inadmissible but that the remainder of the request was admissible. The applicant appealed to the Supreme Court of the Netherlands (Hoge Raad der Nederlanden). The appeal was received on 13 June 2000. The Procureur-Generaal was heard on 25 July 2000. The court handed down its judgment on 26 September 2000 rejecting the applicant’s appeal.
On 14 November 2000, the Dutch Minister of Justice agreed to extradite the applicant to the United Kingdom insofar as the extradition had been declared admissible by the District Court. The applicant sought judicial review of the Minister’s decision in the District Court of The Hague. The hearing took place on 19 December 2000 and the court rejected the applicant’s motion by judgment of 5 January 2001. The applicant was extradited on 9 January 2001.
B. Domestic proceedings
On 10 January 2001, the applicant appeared from custody on petition before Kilmarnock Sheriff Court and was remanded in custody for one week pending inquiries. On 17 January 2001, the applicant was fully committed for trial and remanded in custody for 110 days.
On 14 March 2001, the Lord Advocate indicted the applicant for trial in terms which exceeded the extradition grounds found to be admissible by the Dutch authorities.
In June 2001, the applicant’s legal advisers argued a plea in bar of trial on the grounds of the extensive media coverage and the inclusion in the indictment of matters excluded from the Dutch terms of extradition. This was rejected by the High Court of the Justiciary. The applicant’s appeal was refused by the Appeal Court of the High Court of the Justiciary (“the Appeal Court”) in August 2001.
On 14 September 2001, the applicant’s trial before the High Court of the Justiciary commenced. On 12 October 2001, the applicant was convicted of murder by majority verdict of the jury. He was sentenced to life imprisonment with a tariff set at 20 years.
On 15 October 2001, the applicant intimated his intention to lodge an appeal against conviction before the Appeal Court. On 22 October, the applicant requested a copy of the Book of Adjournal, which contained a record of the indictment and the minutes of proceedings. By 3 December 2001, the copy of the Book of Adjournal had not yet been received and the applicant’s legal advisers sent a reminder to the court. On 5 December 2001, the court issued the trial judge’s charge to the jury.
On 20 December 2001, the applicant was granted a six week extension of time to lodge his note of appeal.
On 21 And 23 January 2002, the applicant sought authorisation from the Scottish Legal Aid Board (“SLAB”) for transcription of the evidence and legal submissions. On 23 January 2002, transcripts were ordered from the court.
On 30 January 2002 the applicant was granted a further six week extension of time to lodge his note of appeal.
On 12 March 2002, the applicant was granted a further six week extension of time to lodge his note of appeal on the ground that authorisation from SLAB was required for transcripts and opinions needed to inform and support the appeal.
On 23 April 2002, the applicant was granted a further six week extension of time to lodge his note of appeal on the ground of delays in provision by court staff of relevant transcripts and the need to seek an expert opinion in support of the applicant’s appeal.
On 16 May 2002 the applicant was transferred from HM Prison Edinburgh to HM Prison Peterhead, some four hours’ drive north. The transfer was considered to be beneficial to the applicant because, as the offence of which he was convicted included a charge of sodomy against the victim, he was classified as a sex offender, and HM Prison Peterhead was the prison normally used to house long-term male prisoners who were sex offenders. The applicant subsequently made repeated requests to the prison authorities to be transferred to a prison in central Scotland, in order that he could communicate more readily with his legal advisers. The requests were refused.
On 22 May 2002 the applicant was granted a further six week extension of time to lodge his note of appeal.
On 3 July 2002 the applicant’s legal advisers lodged a formal note of appeal against conviction and sentence. The note contained nine grounds of appeal against conviction and one ground of appeal against sentence. On 16 August 2002, the applicant’s legal advisers contacted the court to inquire after the trial judge’s report on the note of appeal, which was required in order for the court to consider whether to grant leave to appeal. They were advised that the report had not yet been ordered on account of a missing notebook which was in the process of being located. The report was ordered that day and the trial judge was given one month to produce the report. On 18 September 2002 and 13 November 2002, the applicant’s legal advisers wrote to the Appeal Court regarding the delay in the preparation of the report. The trial judge’s report on the note of appeal was received by the applicant’s legal advisers on 3 December 2002.
In late December 2002, the single “sift” judge restricted leave to appeal against conviction and sentence to a limited number of the grounds specified by the applicant in the note of appeal, under section 107(7) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”). The decision letter was sent by the court to the wrong firm of solicitors and was received by the correct solicitors on 6 January 2003.
By letter dated 17 January 2003 the applicant’s legal advisers intimated their intention to have the partial refusal reviewed and to have the papers passed to the “second sift” under section 107(4) of the 1995 Act. They sought an additional eight weeks to lodge further submissions directed at the refused grounds of appeal on the basis that, due to the applicant’s location in Peterhead, consultation with him was proving difficult. The applicant’s supplementary submissions were lodged on 17 March 2003.
On a number of occasions, starting in about February 2003, letters from the applicant’s legal advisers were opened by prison officers at Peterhead. Although the applicant received official apologies and assurances that it would not happen again, the incidents continued.
On 21 July 2003, the court authorities advised that the papers had not yet been passed to the second sift judges. The applicant lodged further supplementary submissions for consideration by the second sift.
On 25 August 2003, the second sift judges refused the applicant’s appeal against the partial refusal. No reasons were provided.
In September 2003 the applicant lodged a petition for judicial review in respect of the opening of his privileged correspondence by prison staff. On 5 September 2003, the Scottish ministers gave an undertaking not to open, or have the applicant open in the presence of prison staff, the applicant’s privileged correspondence sent to HM Prison Peterhead.
By letter of 7 October 2003, the applicant sought reasons for the refusal of the second sift judges to uphold his appeal against the decision of the single sift judge. The applicant applied separately for legal aid for a petition to the nobile officium jurisdiction of the High Court of the Justiciary (an extraordinary remedy to be granted only in exceptional circumstances – see further below).
By letter of 4 December 2003 the court provided a brief explanation of the reasons for the refusal of the second sift judges.
By letter of 24 December 2003, SLAB authorised legal aid for a petition to the nobile officium.
On 4 May 2004, the applicant’s request for a transfer to a central Scotland prison was granted on a temporary basis. He was transferred from HM Prison Peterhead to HM Prison Edinburgh, for a four-week period in order to facilitate the preparation of his appeal against conviction and sentence, including the nobile officium proceedings. He sought judicial review before the Court of Session of the decision to return him to HM Prison Peterhead.
While the applicant was detained in HM Prison Edinburgh, his letters were once again opened, the undertaking of the Scottish ministers applying only to mail sent to HM Prison Peterhead. On 19 May 2004, the Scottish ministers extended their undertaking to cover HM Prison Edinburgh.
A hearing on a motion for an interim order in the judicial review proceedings regarding the applicant’s prison transfer took place on 3 June 2004. The applicant was returned to HM Prison Peterhead on 4 June 2004.
On 14 June 2004, the petition to the nobile officium was lodged with the court.
The applicant’s motion for an interim order against his prison transfer was refused by the Court of Session on 18 June 2004. The judge noted that the applicant had had 33 visits from his legal representatives since the move to Peterhead and concluded:
“I do not think that the difficulties involved in travelling to Peterhead can reasonably be considered a material obstacle to the petitioner’s preparations for his appeal and relative application to the nobile officium”
On 7 July 2004, a first hearing on the petition to the nobile officium took place and the matter was continued due to insufficient court time.
On 26 November 2004 a prison officer at Peterhead opened a privileged letter to the applicant in his presence. It transpired that the Governor-in-Charge at Peterhead had decided not to make the terms of the Scottish ministers’ undertaking widely known to staff other than the management team. As a result, the staff responsible for sorting and delivering privileged mail did not know about the undertaking.
On 7-8 December 2004, the petition to the nobile officium was argued and granted. The Appeal Court set aside the decision of the judges on the second sift on the basis that it was not competent for the applicant to appeal to the second sift the decision of a single sift judge to specify only certain grounds of appeal as arguable. That being the case, the decision of the second sift judges was also incompetent. The court further specified that in a case such as the applicant’s, an application could be made to the court for leave to argue the refused grounds “on cause shown” under section 107(8). Such an application would be considered in open court. A formal judgment was issued on 18 January 2005.
On 25 March 2005, the Court of Session issued its opinion on the applicant’s judicial review proceedings in respect of his prison transfer, holding that:
“the petitioner’s fundamental complaint is that his location at Peterhead, pending the resolution of the petition to the nobile officium and his criminal appeal, mean that his right to effective access to his legal advisers is being denied. However, he has already been brought down to Edinburgh for a month to secure ready access to these advisers. He has also been brought to Edinburgh on at least two occasions since then. The petition to the nobile officium has been disposed of. Many months have now passed, during which there must have been ample time in which to discuss his appeal by way of telephone calls, written correspondence and consultation. A date for an appeal has not yet been fixed, so there will be even further opportunity for such discussion.”
The applicant’s petition for judicial review of the decision to return him to HM Prison Peterhead was accordingly dismissed. The applicant appealed.
On 22 April 2005, following the judgment in the nobile officium proceedings, the applicant sought an oral hearing under section 107(8) of the 1995 Act on the partial refusal by the single sift judge. On 13 May 2005, 29 June 2005, 12 July 2005 and 5 September 2005, the applicant’s legal advisers wrote to the court seeking a hearing date. The section 107(8) application was heard on 28 October 2005. On 25 November 2005, the Appeal Court granted leave to appeal on all grounds set out in the note of appeal lodged on 3 July 2002.
On 13 January 2006, a reformulated note of appeal was lodged with the Appeal Court, taking into account the judgment of 25 November 2005.
On 10 March 2006, the applicant’s appeal in the judicial review proceedings against his prison transfer was dismissed.
On 20 March 2006 authorisation was sought from SLAB for further transcripts. This was partially granted.
Since March 2006, the applicant has made continued attempts to obtain full disclosure of material relevant to his appeal. The disclosure attempts have been resisted by the prosecution.
On 28 April 2006, the Appeal Court refused to order the applicant’s interim release pending the determination of the appeal.
On 12 May 2006, the applicant’s request for funding to allow transcripts to be prepared on an expedited basis was refused by SLAB on the ground that this would not have any impact on the speed of the appeal procedure.
On 7 July 2006, a procedural hearing was held in the applicant’s appeal at which the court refused to order disclosure. On 31 July 2006, the applicant lodged a petition for recovery of documents.
On 26 September, 10 October 2006 and 31 October 2006, further procedural hearings took place before the Appeal Court.
On 28 November 2006, a further procedural hearing took place before the Appeal Court. During the hearing, the applicant made a request for interim release on the basis of the “unreasonable delay” in the criminal proceedings. The court refused to classify the length of time taken as “unreasonable delay” in terms of Article 6 of the Convention and concluded that the matter was best adjudicated once the whole appeal process had been completed. In the exercise of its discretion, taking into account the gravity of the offence, the applicant’s history of violence and the risk to the public, the court refused to grant the application for interim release.
Further hearings on the applicant’s appeal and with reference to the petition for recovery of documents took place on 25 September 2007, 19 December 2007, 13 February 2008 and 14 March 2008.
On 22 May 2008, the Appeal Court discharged the two-day hearing set down for June 2008 on recovery of documents pending the Privy Council’s decision in McDonald and others, which was likely to have a bearing on the issues related to the duty of disclosure raised in the applicant’s petition.
The Privy Council handed down its decision in the McDonald case on 16 October 2008.
No date has yet been set for the hearing of the applicant’s appeal.
B. Relevant law and practice
1. The Criminal Procedure (Scotland) Act 1995 and the “sift”
Section 107 of the Criminal Procedure (Scotland) Act 1995 provides, insofar as relevant:
“(1) The decision whether to grant leave to appeal for the purposes of section 106 (1) of this Act shall be made by a judge of the High Court who shall-
(a) if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing has he considers appropriate; and
(b) in any other case-
(i) refuse leave to appeal and give reasons in writing for the refusal ...
(2) The documents referred to in subsection (1) above are-
(a) the note of appeal ...
(c) where the judge who presided at the trial furnishes a report under section 113 of this Act, that report; and
(d) where, by virtue of section 94 (1) of this Act, a transcript of the charge to the jury of the judge who presided at the trial is delivered to the Clerk of Justiciary, that transcript.
(4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (10) below, apply to the High Court for leave to appeal.
(4A) The High Court may, on cause shown, extend the period of 14 days mentioned in subsection (4) above, or that period as extended under this subsection, whether or not the period to be extended has expired (and if that period of 14 days has expired, whether or not it expired before section 62 of the Criminal Justice (Scotland) Act 2003 (asp 7) came into force).
(5) In deciding an application under subsection (4) above the High Court shall-
(a) if, after considering the documents mentioned in subsection (2) above
and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and
(b) in any other case-
(i) refuse leave to appeal and give reasons in writing for the refusal ....
(6) Consideration whether to grant leave to appeal under subsection (1) or (5) above shall take place in chambers without the parties being present.
(7) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.
(8) Where the arguable grounds of appeal are specified by virtue of subsection (7) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.
(9) Any application by the appellant for the leave of the High Court under subsection (8) above-
(a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and
(b) shall, not less than seven days before that date, be intimated by the appellant to the Crown Agent.
(10) The Clerk of Justiciary shall forthwith intimate-
(a) a decision under subsection (1) or (5) above; and
(b) in the case of a refusal of leave to appeal, the reasons for the decision, to the appellant or his solicitor and to the Crown Agent.”
2. The nobile officium
In Perrie, Petitioner (1991 S.C.C.R. 475), Lord Justice General Hope (as he then was) described the jurisdiction of the court under the nobile officium as follows:
“The purpose of the nobile officium is to prevent injustice or oppression where the circumstances are extraordinary or unforeseen and where no other remedy or procedure is provided by the law.”
3. The duty of disclosure under Scots law
In the case of McLeod v Her Majesty’s Advocate (No. 2) (1998 JC 67), Lord Justice General Rodger (as he then was) held:
“Our system of criminal procedure ... proceeds on the basis that the Crown have a duty at any time to disclose to the defence information in their possession which would tend to exculpate the accused ... Equally ... the Crown will respond to specific requests from the defence for information or for the production of statements or other items where the defence can explain why they would be material to the defence ...
In a system which operates in this way there should for the most part be no need for an accused person to invoke the petition procedure to recover documents whose possible exculpatory effect can be appreciated by the Crown, whether spontaneously or when the defence ask for them. In such a system also it can be expected that the defence will have access to the documents which are material to the preparation and presentation of their case ...
Like others in the past I am conscious of the difficulty of formulating the test which the court should apply when asked to order the production of documents in a criminal case where the charges are set out relatively succinctly and the only formal documents indicating a line of defence will be any transcript of the accused’s judicial examination and any special defence or notice of incrimination. I consider, however, that an accused person who asks the court to take the significant step of granting a diligence for the recovery of documents, whether from the Crown or from a third party, does require to explain the basis upon which he asks the court to order the haver to produce the documents. The court does not grant such orders unless it is satisfied that they will serve a proper purpose and that it is in the interests of justice to grant them. This in turn means that the court must be satisfied that an order for the production of the particular documents would be likely to be of material assistance to the proper preparation or presentation of the accused’s defence. The accused will need to show how the documents relate to the charge or charges and the proposed defence to them. Such a requirement imposes no great burden on an accused person or his advisers: the averments in the petition may be relatively brief and the court will take account of any relevant information supplied at the hearing.”
In Sinclair v Her Majesty’s Advocate ( UKPC D2), the Privy Council considered the position of disclosure in Scots law and the relevant Convention authorities. Lord Hope of Craighead set out the following principles:
“First, it is a fundamental aspect of the accused’s right to a fair trial that there should be an adversarial procedure in which there is equality of arms between the prosecution and the defence. The phrase “equality of arms” brings to mind the rules of a mediaeval tournament - the idea that neither side may seek an unfair advantage by concealing weapons behind its back. But in this context the rules operate in one direction only. The prosecution has no Convention right which it can assert against the accused. Nor can it avoid the accused’s Convention right by insisting that the duty does not arise unless the accused invokes it first. Secondly, the prosecution is under a duty to disclose to the defence all material evidence in its possession for or against the accused. For this purpose any evidence which would tend to undermine the prosecution’s case or to assist the case for the defence is to be taken as material. Thirdly, the defence does not have an absolute right to the disclosure of all relevant evidence. There may be competing interests which it is in the public interest to protect. But decisions as to whether the withholding of relevant information is in the public interest cannot be left exclusively to the Crown. There must be sufficient judicial safeguards in place to ensure that information is not withheld on the grounds of public interest unless this is strictly necessary.”
Lord Rodger of Earlsferry added:
“The Crown’s article 6(1) duty to disclose evidence in favour of the defence does not ... depend on any request being made by the defence. That duty subsists unless, unusually, it is waived by the defence.”
The Privy Council quashed the convictions, holding that the failure of the prosecution to disclose police statements of witnesses rendered the trial unfair.
In the case of McDonald and others v Her Majesty’s Advocate ( UKPC 46), the Privy Council again considered the duty of disclosure in Scottish criminal proceedings. In that case, the defence had requested statements and details of previous convictions from the prosecution, contending that no formal specification of documents was required in light of the prosecution’s general duty of disclosure. The prosecution declined to provide the documents requested and considered that for recovery of documents in such wide terms, a petition for the recovery of documents should be lodged with, and considered by, the court. The defence lodged petitions for recovery of documents and challenged before the court, by reference to Article 6 of the Convention, the position of the prosecution regarding disclosure.
The Privy Council considered developments in the duty of disclosure in Scotland and the requirements of the Convention. It dismissed the appeals and found the system of disclosure in Scotland, as it operates at present, to be compatible with Article 6.
An October 2008 version of the prosecutors’ Disclosure Manual, revised in light of the decision in McDonald and available on the website of the Crown Office, provides guidance as to the extent and operation of the obligation of disclosure under Scots law. In particular, the manual sets out the following disclosure principles:
“The Crown’s Principles of Disclosure
1. The Crown is obliged to disclose all material evidence for or against the accused. This relates to statements, but it also relates to all information of which the Crown is aware.
2. ‘Material’ means evidence which is likely to be of real importance to any undermining of the Crown case, or to any casting reasonable doubt on it, and of positive assistance to the accused.
3. This legal duty persists in perpetuity. This means that the duty exists during the appeal process, and even where there is no live appeal, for example, where such material comes to the attention of the Crown after conviction, or after an appeal has been refused.
4. Compliance with the duty requires the Crown to disclose all statements of all witnesses on the Crown and defence lists, including [notices under section 67 of the 1995 Act regarding last-minute witnesses or evidence].
5. Compliance with the duty requires the Crown, without having to be requested to do so, to disclose all previous convictions and outstanding charges for all witnesses on the Crown lists, including [notices under section 67 of the 1995 Act regarding last-minute witnesses or evidence], subject to the materiality test and the public interest in protecting the Convention Rights of the witnesses.
6. Failure to disclose material evidence risks a miscarriage of justice. Disclosure carried out properly and timeously ensures that justice is done and prevents unnecessary trials and delay.”
It is expected that a proposal for legislation regarding the duty of disclosure under Scots law will be introduced to the Scottish Parliament in the near future, together with a statutory code of practice, following the publication of a consultation paper by the Scottish Government in November 2007.
The applicant complains under Article 6 § 1 of the Convention that he has not had a final determination of the criminal proceedings against him within a reasonable time because of, inter alia, the lack of any formal disclosure system in Scotland which led to delays in accessing relevant information; his removal to a prison in Peterhead and the resulting difficulties in communicating with his legal advisers, exacerbated by the opening of his prison correspondence by the prison authorities; the delay in obtaining authorisation from the Scottish Legal Aid Board for certain expenditure and its refusal to authorise expedited transcripts; and the poor administration of his case by the Appeal Court.
He further complains under Article 13 of the Convention that he has no domestic remedy in relation to the delay in his appeal proceedings.
QUESTIONS TO THE PARTIES
between 12 October 2001, when the applicant was convicted, and 3 July 2002, when a formal note of appeal was lodged on behalf of the applicant?
between, 3 July 2002, when the note of appeal was lodged, and 26 November 2002, when the trial judge’s report on the note of appeal was issued?
between 6 January 2003, when the applicant’s legal advisers received notification of the decision of the single sift judge, and 25 November 2005, when the Appeal Court granted leave to appeal on all grounds set out in the applicant’s original note of appeal?
since 25 November 2005, when the Appeal Court granted leave to appeal on all grounds set out in the applicant’s original note of appeal?
the system of disclosure under Scots law as it applied in the applicant’s case?
the decision to transfer the applicant from HM Prison Edinburgh to HM Prison Peterhead?
the interference with the applicant’s prison correspondence by prison staff?
the conduct of the authorities, and in particular of the Appeal Court and the Scottish Legal Aid Board?