22 October 1982
At advising on 1st April 1982,—
(i) that they did on 31st October or 1st November 1980, in London Road, near Davaar Street, Glasgow, assault the said X, strike her on the head with an unknown instrument whereby she became unconscious, drag or carry her to a structure situated in the disused premises at 10 Davaar Street, Glasgow, and there place her on the floor, forcibly remove her clothing, hold her down, lie on top of her and repeatedly rape her;
(ii) that they did further at the same place and on the same date, assault the said X by striking her repeatedly upon the head and body with a razor or similar instrument all to her severe injury, permanent disfigurement, and to the danger of her life.
In answer to the bill the respondents plead that in the events which have happened the bill at the complainer's instance is incompetent, and that in any event prosecution of the respondents now would be oppressive.
The history of the matter is as follows. The Lord Advocate indicted the three respondents for trial at the May sitting of the High Court, Glasgow. All three pled not guilty to the two charges in that indictment which were in terms identical to those on which the complainer seeks leave to prosecute them now. For two reasons this indictment was not called. The first was that the complainer had moved to an unknown address in England. The second was that the sitting could not proceed anyway because of a strike by Sheriff Court staff in Glasgow, the result of which was that no jurors were cited for the sitting. The instance accordingly fell and the Lord Advocate then re-indicted the respondents for trial at the next sitting of the High Court, Glasgow, in June 1981. Once again pleas of not guilty to the same two charges were tendered by each respondent and all three were present and available for trial when the sitting began. This second indictment, however, was not called either. The reason for this was that when the complainer presented herself at Justiciary Buildings grave doubt was entertained as to her fitness to give evidence. Arrangements were made to have her examined by a distinguished psychiatrist who gave the following advice in a lengthy and detailed report:—
"In my opinion, a Court appearance at present would be detrimental to her health, and in fact would be hazardous, which may lead not only to pretrial suicide attempt, but may disturb her even after the trial, whatever the outcome would be, to the same extent. I would respectfully suggest to the Court that evidence should be taken from her, should the Court decide to proceed with the case, without the public being present, and with the absolute minimum number of representatives from the legal system. A cross-examination at this stage is only likely to produce a severe block in her communication, which would lead to her retreating in silence.
"Finally, it is difficult to foresee an improvement in her state in the next two to four months, as the history reveals that her general mental state and attitude towards the Court case has not improved since the incident which occurred in September 1980. One must never forget that this woman has been very severely physically and psychologically traumatised, and that any further pressure put upon her will only cause more unhappiness, despair and isolation."
In light of that advice the very proper decision was that the indictment should be allowed to fall. The risk to the complainer's health was so serious as to be quite unacceptable. In September 1981 careful consideration was given to the question whether the proceedings against the three respondents should be kept alive. The decision was that they should not. The background against which this decision was taken was that two of the respondents were under 16 years of age at the time of the alleged crimes and the third was then a young person. They had already been called to answer to two indictments and had presented themselves twice for trials which did not take place. In the particular circumstances of this case there was sufficient evidence to justify prosecution of the respondents on the two charges only if the complainer was available to give evidence herself. The reason for the decision was, as the Lord Advocate has explained to us, that in light of the prognosis contained in the report obtained from the psychiatrist in June 1981 it was concluded that the prospect of material improvement in the complainer's health within the foreseeable future was slight; that accordingly there seemed to be no real likelihood of being able to proceed to the trial of the respondents at a reasonably early date; and that it was therefore thought not to be justifiable to keep the proceedings hanging over the heads of the respondents indefinitely. In these circumstances a letter was sent to each of the respondents dated 15th September 1981 informing them that the Lord Advocate intended to take no further proceedings against them. The effect of that letter was, as the case of Thom v. H. M. Advocate 1976 J.C. 48 shows, to deprive the Lord Advocate of his right to prosecute the respondents at any time thereafter on the charges contained in the indictments which had fallen. After 15th September 1981, accordingly, public prosecution of the three respondents ceased to be competent.
In presenting this bill the complainer asserts that in the events which have happened she, as a private individual, has the right, with leave of this Court, to prosecute the respondents to trial. She qualifies the necessary interest in respect that she is able to show that she has suffered injury of a substantial, particular, special and peculiarly personal nature beyond all others as the result of the alleged criminal acts of the respondents. Ex facie of the bill, and of the precognitions of necessary witnesses and of the productions lodged in support of the bill, she has made out, she claims, a prima facie case of the commission of the two crimes libelled, by the respondents.
Let us first of all test the bill by assuming that it may competently be passed and by ignoring for the moment a special plea by the respondents that to pass it now would be oppressive. There is no doubt that the complainer is well founded in saying that she has the necessary title, and has qualified the necessary interest, to prosecute privately. There is no doubt either that upon the precognitions and productions submitted in support of the bill a prima facie case, sufficient to justify bringing the respondents to trial upon the two charges, is disclosed. The evidential material, indeed, is in all essential respects that upon which the Lord Advocate thought it right to indict the respondents. The Lord Advocate has, however, declined to grant his concurrence and the question for the Court thus comes to be whether there are to be found in this case very special circumstances which would justify us in taking the now exceptional step of issuing criminal letters at the request of a private individual. We have no doubt that in this case the circumstances are sufficiently special to require us to pass this bill (a) if it is competent, and (b) if it would not be oppressive to pass it now. The position is that the Lord Advocate, while finding himself disabled from granting his concurrence by reason of his decision in September 1981, has informed us that he does not oppose the passing of the bill on the assumption that the Court is satisfied on the material now before it that circumstances have changed materially since September 1981, i.e., that the complainer is now likely to be able to give evidence at a trial of the respondents without exposing herself to the risk of serious injury to her health. As the Lord Advocate explained, the position of the Crown is, and always has been since the case was first considered, that on the assumption that the complainer was available as a witness there is a sufficient case against the three respondents to justify their prosecution on the two charges. In light of what the Lord Advocate has said to us we have considered the sufficiency of the evidential material available. In our opinion in the particular circumstances of this case sufficiency appears to depend essentially (a) upon the complainer herself giving evidence, and (b) depending on circumstances, perhaps also upon a young man, who might fall to be regarded as a socius criminis, being willing to testify against the respondents. The learned Dean of Faculty accepted, at once, the correctness of this view upon the question of sufficiency of evidence and we therefore have to ask ourselves (first) whether we have been satisfied that the health of the complainer is now such that she can be expected to present herself as a crucial witness without serious risk, and (second) whether the young man can reasonably be expected to testify without incriminating himself. As to the second question, there is, we think, no difficulty, for the complainer, through the Dean of Faculty, has declared an intention to grant him immunity from prosecution at her instance and the Lord Advocate for his interest has intimated to us that the young man will have immunity from suit at the instance of the Crown. As to the first question there is, we think, enough material before us to warrant the conclusion that the complainer is probably now fit to give evidence. That material is in the form of two recent reports by a consultant forensic psychiatrist and, subject only to the necessity for a last-minute precautionary check on the complainer's health very shortly before any trial, we are informed that her condition has now so much improved that she appears to be capable of giving evidence in Court. It is clear, therefore, that in this case the necessary very special circumstances are present. They consist essentially of the marked change which has taken place in the complainer's health and, in light of that change, the Lord Advocate's indication to us that he does not oppose the passing of the bill.
From what I have said so far this is one of those very rare instances in which, unless the bill is incompetent for the reasons advanced by the respondents, or it is demonstrated that to require the respondents to stand trial now would be oppressive, this Court would, in my opinion, be prepared to pass the bill and order the issue of criminal letters.
In these circumstances I come now to the important question of the competency of the bill. In support of the plea that it is now incompetent the respondents presented two submissions.
The first was that although the right of a private individual to seek leave to prosecute privately exists in circumstances in which the Lord Advocate declines to prosecute, that is to say refuses to take any steps towards the prosecution of an alleged offender, it is extinguished at once and for all time when the Lord Advocate has taken the step of raising an indictment against him. The mere raising of the indictment, regardless of its fate, has, it was said, this dramatic effect. For this somewhat startling proposition Mr Penrose, who presented the argument on competency for all three respondents with clarity and skill, relied essentially upon short passages in the opinions of Lord Mackenzie and Lord Justice-Clerk Boyle in the bill of ad vocation in the case of Wilson v. Hare in 1829. The most reliable record of the opinions delivered in that case is, I believe, to be found in the Supplement to the Trial of William Burke and Helen M'Dougal and from that report I quote the particular passages with which Mr Penrose's submission was concerned. Lord Mackenzie at p. 107 said this:
"It is true, that by the law of Scotland, there is a right of private, as well as public prosecution for crimes, and that not for reparation only, but for punishment—a right of which I rather think the Information for Hare speaks too lightly. But then it is just equally true, that unless the private party, having title to prosecute, come forward in time to prevent it, the King's Advocate, raising an indictment in his own name alone, comes to have full power of accusation vested in him. … Accordingly, it seems that, in general, those ways by which a party obtains protection from punishment by the act of the Lord Advocate do avail against the private prosecutor, who has not previously come forward."
At page 138 the Lord Justice-Clerk, who had been discussing certain clear abridgements of the rights of private parties to prosecute certain persons criminally, said this:
"They are, however, made to bend, in other respects, to the same interests, as the public prosecutor has the undoubted right of restricting any indictment, at any stage of the proceedings, previous to pronouncing sentence—a privilege that has arisen from usage alone. If again, he has taken the lead, and raised an indictment, in which he happens to fail from the most purely accidental mistake or blunder, no subsequent trial for the same offence or criminal act, though attempted to be shaped as a different charge, can ever be instituted by the private party."
These passages, said Mr Penrose, demonstrate conclusively that the true scope of the right of private prosecution is accurately defined by Alison where, at p. xi of the Introduction to vol. 2 of his work on the Criminal Law of Scotland, he expressed the fourth of the four principles upon which the Criminal Institutions of Scotland are founded, in these terms:
"That if the public authorities decline to prosecute at the public expense, an opportunity should still be afforded to the injured party, of himself conducting the prosecution on his own responsibility."
It is not at all surprising to find therefore that in the 153 years which have passed since 1829 the only recorded attempts to initiate private prosecution were in cases in which the Lord Advocate had declined to take any steps at all to prosecute alleged offenders.
I have no hesitation in rejecting this first submission on behalf of the respondents. The rights of a private prosecutor in our system of criminal jurisprudence have grown up alongside those of the Lord Advocate and indeed, historically, they bulked larger in earlier times than those of the King's Advocate. These rights still exist and there seems to be no good reason in principle for saying that they should not be available in any case in which the Lord Advocate has, for any reason, declined to prosecute an offender to a conclusion. The passages relied on by Mr Penrose in the opinions of Lord Mackenzie and the Lord Justice-Clerk in Wilson v. Hare were clearly obiter. The case before the Court was concerned merely with the question as to the extent of the immunity from all prosecution of a socius criminis who has given evidence for the prosecution in a criminal trial, and the decision did not turn at all upon the issue which is now before us. In any event, when these passages are read in their context it is impossible to conclude that the judges intended to convey that the mere act of serving an indictment extinguishes for all time the right of a private individual to seek leave to prosecute privately. Lord Mackenzie, indeed, immediately after the two passages quoted from page 107, explains perfectly clearly that what he had in mind was the effect upon the right of private prosecution of the Act of 1701, and of the comparable effects of a public prosecution which has reached its conclusion in the verdict of a jury. This is what he says:
"Thus, if the King's Advocate is dilatory, or inaccurate in proceeding, after apprehension of the criminal, who thereby obtains final liberation on the Act 1701, that criminal is as safe from private, as from public prosecution—though the private prosecutor may be absolutely blameless—may be absent, abroad, on a sick-bed, non compos, or a pupil. The intimation ordered by that statute is, to—"
His Majesty's Advocate, or procurator-fiscal, and party appearing by the warrant to be concerned, if any be within the kingdom. So that it is manifest, that in many cases prosecuted by the Lord Advocate, there can be no information to any private party, particularly in cases of murder. Yet, the Act provides—that if the Lord Advocate failzie, the process shall be deserted simpliciter, the party imprisoned to be for ever free from all question or process for the foresaid crime or offence." So, if the Lord Advocate draw the indictment erroneously, in respect of time, place, or circumstance,—or if he omit necessary witnesses (as, for instance, by not calling necessary socii criminis), or cite them erroneously, or examine them insufficiently, or allow them to be present in Court, or suffer them to be disqualified by improper communications, or in any other way fail in his prosecution, and the criminal is acquitted,—it cannot be denied that his acquittal is as valid against the private party, who might have prosecuted, as against the King's Advocate: So, if the Lord Advocate restrict the indictment to an arbitrary punishment, or depart from part of it, this avails the criminal equally against the private prosecutor: So, if the King's Advocate decline to move for judgment after conviction." The quoted passage from the opinion of Lord Justice-Clerk Boyle at page 138 is, when it is properly understood, concerned with the same set of circumstances and, in particular, with the effect upon the right of private prosecution of a public prosecution which has proceeded to a conclusion and has failed. In the result, I am persuaded that the passages relied upon by Mr Penrose do not lend any support for a proposition which seems to accord ill with principle.
The second submission for the respondents on the alleged incompetency of the bill was that in any event the right of private prosecution which the complainer once had was for ever extinguished when the Lord Advocate, on 15th September 1981, publicly relinquished his right to prosecute the respondents further on the charges contained in the two indictments which had been allowed to fall. The proposition was that whatever avails against the public prosecutor avails against all the world, and it took as its starting point those passages from the opinions of Lord Mackenzie and the Lord Justice-Clerk which I have already quoted in their relevant context. In this case, said Mr Penrose, the effect of the letters of 15th September 1981 was the same as that of desertion simpliciter on the prosecutor's motion. It made all further proceedings at the Lord Advocate's instance incompetent and this was expressly decided in the case of Thom v. H. M. Advocate 1976 J.C. 48. In order to find out what effect the sending of these letters had upon the complainer's right to seek to prosecute the respondents privately, all that one has to do is to ask what is the effect upon the right of private prosecution of desertion simpliciter on the motion of the public prosecutor. The answer to that question is that it makes ALL further prosecution incompetent, and that includes prosecution at the instance of a private individual. In the Commentaries, 3rd edition, II 277, Baron Hume said this:
"But if the prosecutor, being present, shall himself move the Court to desert the diet simpliciter, and thus neither allude to any dilatory cause for dropping his present libel, nor intimate any purpose to raise a new one; such a measure cannot well be construed any otherwise than as a thorough relinquishment or discharge of his right of prosecution."
That this discharge of the public prosecutor's right of prosecution discharges all right of prosecution was made clear in the case of Hall v. H. M. Advocate (1881) 4 Couper 50. In that case, in an opinion in which Lord Justice-Clerk Moncrieff, and Lords Deas. Mure, Craighill and Adam concurred, the Lord Justice-General (Inglis), after quoting the same passage from Hume with approval, added:
"Now, it appears to me that that expounds the law on this matter quite consistently, and very clearly, to be that the desertion of a diet simpliciter on this motion of the prosecutor is an end of all proceedings against the panel for the offence libelled against him."
It cannot be supposed, so ran the argument, that the Lord Justice-General did not mean precisely what he said, and giving to his opinion all the force it commands, the respondents' plea to competency in this case must be sustained.
I have no hesitation, either, in rejecting this second submission on behalf of the respondents. In the case of Hall, which was concerned with the effect upon the Crown's right to prosecute further when there had been desertion of a diet simpliciter by the Court ex proprio motu, the Court was considering only the right of the public prosecutor. No question as to private prosecution was in mind at all and I cannot accept that the Lord Justice-General's observation on which Mr Penrose relied was intended to do more than echo the words of Hume which he had just quoted. Properly understood in its context in the case of Hall, the Lord Justice-General's reference to "all proceedings" against the panel can only have been intended to relate to proceedings at the instance of the prosecutor concerned. The proposition for which Mr Penrose contended requires us to accept that desertion of a diet simpliciter on the motion of the public prosecutor is equivalent to acquittal or absolvitor of the accused on the charges upon which he answered at his trial. The opinions in Hall, and in the earlier case of Tabram 2 Couper 259 which was concerned with a similar narrow question, lend no support for this, and it is of material significance to observe that although in the first edition of the Commentaries, II 30/31, Baron Hume concluded the passage quoted from the 3rd edition, II 277, with the words "and equal to a judicial consent on his part, to the passing of absolvitor in favour of the pannel," these words were deliberately excised in all subsequent editions, including the second and third for which the author was himself responsible.
Why these words were deliberately struck out is not known with any certainty. What is important, however, is that they were deliberately struck out by that great authority upon our criminal law. In my opinion the passage which I have quoted from Hume, Commentaries, 3rd edn, II 227, discloses that the only effect of desertion of a diet simpliciter on the prosecutor's motion is to disable that prosecutor from taking fresh proceedings against the accused upon the same charge or charges.
Upon the whole issue of competency of this bill, therefore, I am not persuaded that there are any good reasons, in principle or authority, for holding that in the events which have happened this bill must be rejected as incompetent. In so saying I am content to record that the Lord Advocate, in addressing us, said that he was satisfied that the bill was competent and that had he entertained any doubt upon the question he would have felt it his duty so to inform the Court.
The remaining question of importance is focused in statement 5 in the answers for each of the respondents. Shortly stated, the submission was that the widespread publicity about this case in the period 13th January to 13th February 1982, in the Press, on television, on radio, and in Parliament itself, has made it impossible for the respondents at any time to obtain fair and impartial trial anywhere in Scotland. To put the respondents on trial would, in short, constitute oppression. In presenting this submission on behalf of all three respondents Mr Macaulay recognised, under reference to the recent cases of Stewart v. H. M. Advocate 1980 J.C. 103, and Stuurman v. H. M. Advocate 1980 J.C. 111, that the question for this Court to answer is whether the risk of prejudice to the prospects of fair and impartial trial is so grave that no direction of a trial judge, however careful, could reasonably be expected to remove it. In this case he contended that the answer is emphatically in the affirmative, when the nature and contents of the publicity are considered. The publicity began when there was a public outcry about an apparently inappropriate sentence imposed upon a convicted rapist by a circuit judge in England. The subject of rape and the handling of this crime by the Courts became then of immediate concern to the media and to Parliament. In this situation it became known to a reporter of the "Daily Record" newspaper that proceedings against the three respondents on the two charges in the two fallen indictments had been dropped by the Crown on or about 15th September 1981. Having regard to the serious nature of the two alleged crimes and upon the assumption—an erroneous one as it has now been demonstrated—that those who had been accused of these crimes could never be brought to trial, there was sparked off a welter of publicity, informed and ill-informed, designed to find out why the decision to abandon public prosecution of the respondents had been taken. This legitimate public discussion, however, said Mr Macaulay, got out of hand because it began to focus attention upon the three respondents as a group, without differentiating among them, and upon their alleged guilt of the crimes which had been libelled against them. In no time at all the case became notorious. It acquired the label of the "Glasgow Rape Case" and the general effect of the whole saturation coverage which it received was to encourage a wave of public sympathy for the alleged victim, and public animosity against those alleged to be responsible. For almost a month (before and after the Lord Advocate made his now well-known statement in Parliament on 21st January 1982—a statement repeated by the then Solicitor-General in the House of Commons) the complainer, "her case," and the three respondents, who were not, of course, named, were kept constantly in the public eye. The implication of all that was said and printed was that a mistake may have been made by the Crown Office, and the average reader, it was said, could not fail to draw the inference that the three respondents should have been prosecuted and that the probable result would have been conviction. In the period in question no fewer than 160 articles about the case appeared in daily newspapers circulating in Scotland, 46 of them before the Lord Advocate's statement in the House of Lords on 21st January 1982. The case received similar massive coverage in television and radio programmes in course of some of which there were interviews with the complainer herself and with the solicitor who came to act for her after she was apparently spirited away to the Highlands by a newspaper, and her former solicitor had been prevented from getting in touch with her. Further, the publicity included remarks attributed to sources in the police and in the Procurator-fiscal service expressing disquiet that the proceedings had been abandoned, and the idea that a grave mistake had been made was fostered by linking the resignation of the Solicitor-General, quite wrongly, with the decision to abandon proceedings itself. The worst feature of the publicity, however, was in the "Daily Record" of 19th January 1982 (before the possibility of private prosecution was indicated in the Lord Advocate's statement in the House of Lords). In that newspaper, on that day, there was published, inter alia,some of the dramatic contents of an alleged "confession" by one of the three respondents (who was not identified) and of alleged "statements" by two of the respondents (also unidentified), and by a fourth youth who was to have been a Crown witness. Publication of such material and of references to other so-called "evidence", much of which was picked up and repeated in the media generally, was by itself so damaging to the prospects of the presentation of a defence by any of the three respondents that it destroyed the slightest chance that they could ever be tried fairly by an unprejudiced jury. No matter where and when any trial might take place in Scotland the whole public outcry will be recalled to the minds of those balloted for jury service in a trial of a unique character, and it cannot be said, as was said in Stuurman, that the only problem will be a residual risk of prejudice. The risk is large and substantial and will still be large and substantial even if the respondents were to face trial at the earliest practicable date, namely the end of May 1982.
I have considered closely the contents of the selected publicity material placed before us by Mr Macaulay and, as the learned Dean of Faculty very properly conceded, his proposition is a formidable one which I have examined with more than usually anxious care. It cannot be disputed that the massive publicity, and in particular the matters referred to first in the "Daily Record" of 19th January 1982, have created a risk of injustice in that the respondents might not receive a fair trial from an uninstructed jury. As the cases of Stewart and Stuurman show, the question for us is whether, in a few months' time, the risk of prejudice as the result of the publicity, true or false, the most damaging of which occurred before 21st January 1982, will still be so grave that even careful directions by a trial judge could not reasonably be expected to remove it. In this case this question is of the greatest difficulty and it is only after considerable hesitation that I have been persuaded to answer it in the negative. In considering what the answer should be I have not forgotten that while the public interest in securing fair trial of accused persons is of the highest importance, so too is the public interest in the fair administration of justice and the detection and trial of alleged perpetrators of crime. Great weight must be given to this latter aspect of the public interest in this case, for the crimes alleged are of a particularly serious and horrible nature. In light of this consideration, and my assessment of the probable course which presentation of available evidence at a trial would follow, can I confidently affirm now that fair and impartial trial of the three respondents cannot reasonably be secured? I have come to be of opinion that I cannot so affirm. Trials in cases which have become notorious are not uncommon, and that this case should be remembered as the notorious "Glasgow Rape Case" does not move me to think that fair and impartial trial of those accused by the complainer will be, on that account, impossible. As to the particular allegations made first in the "Daily Record" newspaper on 19th January 1982, it must be borne in mind that public memory of the detailed content of newspaper articles and of broadcasts is notoriously short. Having read all the relevant material for myself I have formed the distinct impression that the burden of its message is that the alleged perpetrators of the alleged crimes ought to have been put on trial, and that what will remain in the minds of potential jurors in a few months' time will be a recollection that the massive publicity between 13th and 21st January 1982 had been directed to express public anxiety that this might not happen. There was then sufficient evidence to justify prosecution of the three respondents, always on the assumption that the complainer herself was fit to testify. The fact that the three respondents were twice indicted so demonstrates. That is still the position today and while, for obvious reasons, I wish to say nothing whatever about the apparent strength or otherwise of possible evidence apparently available against any one of the respondents in relation to one or other or both of the alleged crimes, I am prepared to accept that the particular references to alleged "evidence" in the "Daily Record" of 19th January 1982 are unlikely to be remembered in any detail by potential jurors, and to have any material influence upon their ability to remain true to their oath and to accept faithfully and to apply the directions of the trial judge who will, no doubt, in this case, find it necessary to identify precisely for the jury the only evidential material upon which they are entitled to consider whether the guilt of any accused has been established beyond reasonable doubt. The risk of prejudice will undoubtedly be present. I find myself unable to hold, however, that a trial judge will be unable, when all the admissible evidence has been led, to secure, by careful directions, that the members of the jury will reach their verdicts upon an unprejudiced consideration of that evidence, and that evidence alone. The risk of prejudice arising in various ways is present inevitably in the course of many trials and our system essentially depends upon the assumption that jurors will behave with propriety, and exclude from their deliberations all considerations which have not been presented to them in evidence in Court in the course of the trial. In this case I have concluded, although not without some hesitation, that this necessary assumption can still be made.
All that remains to be mentioned is that Mr Morton for each of the respondents drew our attention to the provisions of section 31 of the Social Work (Scotland) Act 1968 which applied to forbid prosecution of the second and third named respondents by anyone but the Lord Advocate until 1st January 1982 and 30th June 1981, and to the provisions in the Criminal Justice (Scotland) Act 1980 designed to prevent delay in trials. Although none of these statutory provisions has any application to this case the Court should, said Mr Morton, discover in them the intention of Parliament to restrict the prosecution of children and to prevent the prosecution of anyone after certain time limits have expired. In light of that Parliamentary intention it could, it was argued, be seen that it would be unfair to require the three young respondents to face trial in the summer of 1982—long after the date of the crimes alleged, and when they have already twice suffered the anxiety associated with the two indictments to which they answered. I see no sufficient force in this separate submission to encourage me to give effect to it. Leaving out of account the risk of prejudice by publicity which I have already examined, I cannot accept that there would be any material prejudice to the respondents in exposing them to prosecution now. The reason why they have not already been prosecuted is that, until recently, the health of a necessary witness, the complainer, presented a serious obstacle to early trial and this is a factor which, if it had come to be considered in the context of the statutory provisions for prevention of delay in trials, would have provided a ground upon which the Court would have been likely to exercise its power to extend the various periods of time prescribed.
On the whole matter I am of opinion that we should, in this quite exceptional case, pass the bill and order the issue of criminal letters. It is fortunate that this is a course which we will rarely be disposed to follow for the great strength of our system of criminal law still resides in the role of the Lord Advocate, as the impartial and wholly independent prosecutor in the public interest. One final observation only falls to be made. It is obvious, I believe, that the Press and the media must recognise that further publicity about this case in advance of the trial may add materially to the risk of prejudice which already exists. The situation is one of peculiar delicacy and it is to be hoped that, even in reporting this judgment, those who disseminate information to the public will exercise the greatest discretion.
It is on the question of the effect of prejudicial publications, however, and their effect on the prospects of a fair and impartial trial, if the respondents should be remitted to the knowledge of an assize, that I would wish to add certain observations of my own.
While there is a public interest of paramount and permanent importance in the detection and suppression of crime, it is of equal importance that those charged with crime should be entitled to and receive a fair and impartial trial. This implies of necessity that the minds of jurors charged with the duty of considering and returning a verdict should not be subject to prejudicial influences or comment from whatever source they may come. One of the readiest sources is the publication of prejudicial matters in one or other of the media of public communication. The present case affords a very clear example of how that prejudice could arise, and the question is whether the risk of prejudice which might affect the minds of jurors, if and when this case came to trial, "is so grave that no direction of the trial judge however careful could reasonably be expected to remove it"—Stuurman v. H. M. Advocate 1980 J.C. 111 at p. 122; cf. also Stewart v. H. M. Advocate 1980 J.C. 103 at p. 109. In considering these matters I think it may be assumed that jurors, having taken an oath to return a true verdict according to the evidence and having received clear direction from the presiding judge to put from their minds everything except the evidence which they have heard in court, will be faithful to that oath and obedient to the directions of the judge. If that assumption were not correct, then, as Lord Avonside said in the case of Stuurman, "… trial by jury would be meaningless, in the sense that if it were accepted that directions in law might be disregarded or disobeyed the justification for trial by jury in indictment proceedings would collapse." On the other hand, it would be idle to pretend that pre-trial statements or comments could not be of such impressive and prejudicial force as to give rise to very real doubt whether in any circumstances a fair and impartial trial could properly take place. The well of truth can be poisoned beyond the possibility of its waters ever being purified.
The present case involves a charge of multiple rape against three persons, alleged to have been carried out in circumstances of nauseating squalor, and one of brutal and vicious concerted assault with a knife or razor. There can be no doubt of the high public interest in the detection of such crimes and the conviction of their perpetrators. It is also proper to observe that the nature and surrounding circumstances of the crimes themselves, as set out in the indictment and as likely to be developed in evidence, are of such a character as inevitably to be liable to provoke a most powerful emotional reaction in the minds of any jury, and, as a necessary consequence, to require and lead the judge to give careful warning against the jury permitting their natural feeling of revulsion at what they may hear in evidence to weigh in any way in their consideration of that evidence and in the verdict which they return. It is a common experience that juries in our courts do require to consider evidence of a shocking or distressing character, but it is also the case that this fact does not, as it should not, prejudice them against the prisoner when they come to consider their verdict. This is a factor which in my opinion requires to be clearly kept in view in this case when considering the effect of pre-trial publications of prejudicial matters on the prospect of the accused persons receiving that fair and impartial trial to which they are by law entitled.
Necessarily we are in no position to assess the nature and probable weight of the evidence as it may be placed before a jury, if this case goes to trial; it might be such as to leave little room for doubt as to the conclusion to which it pointed in the case of all or any of the respondents; equally the issues of fact might be so nicely balanced that the influence or possible influence of prejudicial publications—or at least the risk of such influence—could be to that extent the greater. These possibilities, which I feel are relevant considerations, make the determination of this matter all the more delicate and difficult.
While much of the published material in relation to this case—and we have had presented to us a wealth of such material from the Press, national and local, news bulletins, commentaries and interviews on both radio and television—is clearly prejudicial, it is not to be assumed that such a concentrated assault on the mind and memory of potential jurors has taken place. No doubt the extent and character of these publications may have been influenced by the assumption, wrong as it was, that as the Crown had dropped proceedings no other party could have a right or title to initiate a private prosecution, if sanctioned by this Court, but that does not alter the fact of or the potential danger arising from such publication to the prospects of a fair and impartial trial in this case. I doubt, however, whether the average juror would have had either inclination or time to acquaint himself with more than a fraction of the matters which for a comparatively few days were agitated in journals or other elements of the media. It would be easy to exaggerate the probable or possible effects of the exposure of potential jurors' minds to such a mass of material as has been collected and presented for the respondents. I think therefore it is legitimate to discount to some extent the impact which the material, now collected and presented in concentrated form, would in fact be likely to make on readers' or viewers minds, and the probable or possible influence it might be likely to exert in the determination of their verdict if called as jurors in a subsequent trial.
A further consideration which it is in my opinion legitimate to take into account is the lapse of time between prejudicial publications and the trial itself. This is a very different case from that of Atkins v. London Weekend Television 1978 J.C. 48 when the offending material was broadcast practically on the eve of a trial, and as a consequence the prosecution was thereafter withdrawn. Here at least a period of several months must inevitably elapse between the cessation of the appearance of what can be properly regarded as prejudicial material in the Press or in other media, and any trial which may take place. Whether the subsequent Press and other publicity accorded to this case was either desirable or attractive is a matter of taste but not, I think, one of prejudice to any material degree. The passage of time and consequently the intervention of other events catching the minds of members of the public, all tend to blur recollection, especially in matters of detail, and consequently this is in my opinion a relevant factor in balancing the public interests involved. In this case the time factor should be given weight, as lessening or likely to lessen the impact on the minds of jurors, the more the distance in time between publication and trial is prolonged. The fact that the most explicit of the Press publications professed to give information as to the nature and details of the "evidence" which would have been given had the prosecution proceeded, is open to this comment, that if the charges were pursued such evidence, given its impact on the minds of the jury, would in all probability be vastly more impressive, vivid and prejudicial, than the memory—a fading memory—of what had been published in the Press some months before. Now it is the commonest experience for judges to give warnings to jurors, in cases when evidence of a sordid or revolting character or the charge itself involves conduct of such a kind, that they must wholly put aside the legitimate feelings which may be provoked and not let their judgment be in any way deflected or biased, and in my experience juries loyally accept and act upon such directions.
It is also necessary to have in view the very important statement made by the Lord Advocate, that it was solely because of the grave risks to the health and possibly even the life of the complainer that proceedings at his instance were terminated. It now appears that the complainer's present state of health is said to be such that this obstacle to a trial is removed: if that be the case, and it receives support in psychiatric reports on the complainer's past and present state of health, that is a circumstance which in my judgment it is legitimate and proper should go into the scale for allowing the complainer's application, and is a very weighty consideration indeed. The situation therefore is that here are grave and serious charges on which the Crown indicted the respondents; it is to be assumed that the Crown would not have proceeded and endeavoured to bring the case to trial had the Crown not been able to present evidence which if admitted and accepted would have warranted conviction as libelled. The only reason why proceedings were dropped was the evidence which the Crown had as to the complainer's mental state: it is not said that by the lapse of time any evidence has been lost and therefore all the material upon which the Crown would have sought a verdict of guilt against the respondents is available to be presented to a jury. It would require very powerful and compelling reasons to convince me that such a case should not be presented to a jury for their consideration and verdict.
I have anxiously considered the arguments which the respondents have deployed on the issues of prejudice and oppression (which, to my mind, are but two sides of the same coin) in a case which in its circumstances and history, to my knowledge, is unique in our criminal records, but have reached the firm conclusion that the matters complained of, though necessarily prejudicial to the interests of the respondents, are not of so fundamental a character as to involve such a risk to the doing of justice in this case that that risk could not be overcome by proper directions from the presiding judge at the trial, whose directions I have no reason to think would be disobeyed or ignored by a jury fully aware of its heavy responsibilities and loyal to its oath.
On 12th June 1981 the complainer was examined by a psychiatrist. In his report he stated inter alia that the complainer had "acute fear of her forthcoming appearance as a witness". In his opinion a Court appearance at that time would have been detrimental to her health and hazardous. He found that it would be difficult to foresee "in the next two to four months" an improvement in her state, and warned that any further pressure would increase the nervous state of the complainer.
By letter dated 15th September 1981 the Procurator-fiscal at Glasgow, on the instruction of the Crown Office, informed each of the three respondents that there would be no further prosecution against them. In effect, the charges against them were dropped. These letters, it was said by the Lord Advocate, were intended to relieve the strain upon the respondents caused by the fear of the charges hanging over them. The complainer was not informed of the position.
One moves on to January 1982. In the early part of that month the antic of an English judge who dealt with a man found guilty of rape by way of fining him, provoked public outcry which increased almost to the point of hysteria. By mid-January the media—newspapers, television and radio—had got wind of the fact that the charges against the respondents in this case had been dropped. The publicity grew in volume. On 19th January a newspaper published what I suppose is called a "scoop". One of the respondents in this case, it was said, had made an alleged "confession" of his part in the crime. That "confession" had been in the possession of the Crown Office before the charges against the respondents had been dropped. The "confession" was quoted in detail. It was also said that the reporter had seen a "statement" made by each of the other accused and these alleged "statements" were quoted. In effect, readers of the newspaper concerned would, I think, believe that the respondents had admitted guilt of their part in the alleged rape of the complainer plainer and of the serious assault upon her. From that date onwards the media were in full flight, and public interest must have been fully aroused. In addition to what was quoted in the media, the matter reached Parliament and was brought before both Houses by way of speeches and questions.
Such was the public outcry that on 21st January statements were made in the Commons by the Solicitor-General and in the House of Lords by the Lord Advocate. I quote part of the statement by the Advocate in the Lords on a matter which had become so urgent that he had had to fly back to this country from Luxembourg the night before. What he said is this:
"The problem for me is that Scots law says that once intimation is made on behalf of the Lord Advocate to accused persons that the charges against them are not to be proceeded with I can do nothing further; I cannot indict the people again. Therefore, the question of what can be done is important. If this lady's position is now different and if she, being advised for herself, considers that the risks are not as great as we had thought, or that the situation had changed in such a way that it would be perfectly safe to proceed, then there is an avenue open to her to make an application." There are two points in that statement. The first is that the Lord Advocate told us that the indictment would have been pressed to a conclusion but for the danger to the health of the complainer. The second point is that the Lord Advocate hints that action was open to the complainer and the result of that is that this bill is before the Court.
Counsel for the respondents argued powerfully that looking to the widespread publicity, and particularly to the newspaper article of 19th January to which I have referred, there has been a "trial by media". Although a trial judge would direct the jury that they must close their minds to what they might have read or seen before the trial, no jury could in the circumstances be free of prejudice. To reopen the case would constitute oppression of the respondents. I have sympathy with the argument and I have had considerable hesitation before coming to a decision to reject it.
It is plain that the attack of the media, if I may use that term, was based on the belief that the respondents could never come to trial, and that belief was wholly understandable. Counsel for the respondents say that this is irrelevant. It matters not what the media might or might not think. It was what was said that was in issue. The "Glasgow Rape Case" was an obvious example of what was reported, and it was pointed out that even in Hansard reports of what was discussed in the Lords and the Commons came under such a heading. However, it must be noted that after the Lord Advocate's statement to the House publicity became less sensational. When it became known that this bill would be presented, although for some time the case continued to be reported, mainly by news and photographs of the complainer and her adviser, which I find distasteful, the clamour had died down and eventually disappeared by the end of January.
One is faced with a delicate and difficult decision. On the one hand is the interest of the public that justice should be done and should be seen to be done, and on the other, quite properly, is the interest of the respondents in this case which I believe to be unique in the facts which surround it. In my opinion the interest of justice must be paramount.
The date of the trial by bill has yet to be fixed. It would seem, although this is only a tentative view, that it would probably be in May, some four months after the January publicity. Memory is short, and particularly so of what is written or said in the media. At worst, jurors, in my opinion, would have a vague memory that there had been some sort of publicity regarding the case before them. Details would be forgotten.
Further, and this point has been made before, if the witnesses for the Crown speak to the substance of their precognitions as set forth in the productions for the complainer, which I have read, the publicity of the past will have no effect on minds of jurors. In my opinion there could be ample evidence to command their attention to the trial, whatever may have been said in the past.
Again, as has been said by my Lord in the chair and by myself, it must be presumed that jurors who have taken the oath to give a true verdict will accept and obey instructions given by the trial judge on questions of law. If that is not accepted then our whole system of trial by jury collapses. The conduct of proceedings in this case, as in all, is entirely a matter for the trial judge. There is no doubt that in his charge to the jury he will direct that only the evidence in Court, and from no other source, is to be considered. If he thinks it desirable in this case he may warn the members of the jury, before evidence is led, that they must come to a decision only on the evidence put before them in the course of the trial.
I have left to the end of this part of the case two factors, the first of which is of great importance. As has been seen, Crown Office dropped the case because of the fears expressed in the psychiatric report in June, and, as I understand it, the Lord Advocate wished to prosecute and would have done so if the complainer had been able to give evidence.
The complainer has been examined by another psychiatrist who has made two reports, one in February, and the second was lodged during the hearing of this case and is up-to-date. This psychiatrist is of opinion that the complainer is fit to give evidence, although, very reasonably, she would wish to see the complainer again about a week before a trial. Obviously this is a change of circumstances of vital significance.
The second point is that, I hope, the complainer now understands that her evidence will be heard within closed doors. In our Courts a victim alleged to have been raped almost invariably gives evidence behind closed doors. In such a situation the public is not permitted to hear her evidence. It has been the practice, particularly in Glasgow, to allow the Press reporters to remain. They are asked to exercise a wise discretion, and in my experience, this they do admirably. The trial judge could, of course, if he thought it desirable, exclude the Press and clear the court completely.
I have not spoken on the question of the competence of the case for the complainer. I cannot usefully add to the opinion of your Lordship with which I agree. It is a strange case. The respondents argue that once the Lord Advocate has undertaken a prosecution it is once and for all in his hands. If he decides not to proceed then no one can question his decision by any process of law. Before us the Lord Advocate, far from approving that argument, said that in his opinion the procedure by bill was competent. The Court, of course, is in no way bound to follow the opinion of the Advocate, but it must be treated with respect, especially in this case where the respondents, as it were, are supporting his jurisdiction and he does not accept their argument.
I would pass the bill.
There are two matters to which it seems to me desirable to refer. Firstly, the media again and again claimed that the resignation of the Solicitor-General was prompted by his "handling" of the case now before us. That is not true.
Secondly, in the outcry following upon the decision of the English judge to which I have referred, it was claimed that there must be new legislation to deal with cases of rape; that the Lord Chief Justice of England would issue directions to judges in regard to the sentences on men convicted of rape and so on. I have read reports in newspapers and heard what was said and seen on television on this subject. I can say with certainty that any reasonable reader or listener would have thought that this publicity covered the United Kingdom. In my experience, I know of no case of rape which was not prosecuted when proper evidence was available. I know of no case in which on conviction the accused was not sentenced to imprisonment. I do know, on the contrary, that there have been appeals based on the argument that the terms of imprisonment imposed by our judges were too severe. An accusation of rape in Scottish Courts is one of the pleas of the Crown; that means that such an accusation is put before the High Court and only that Court has jurisdiction. The common law of Scotland in this respect needs no legislation and no instructions to judges. Whatever may be the case in England has nothing to do with the law of Scotland.
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