Scottish High Court of Justiciary Decisons

NOTE OF APPEAL UNDER SECTION 74(1) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY HER MAJESTY'S ADVOCATE v. DAVID SHIELDS MONTGOMERY and ANDREW COULTER [1999] ScotHC 221 (14th September, 1999)

In this Crown appeal the respondents are David Shields Montgomery and Andrew Alexander Marshall Coulter. On 2 July 1999 they were served with an indictment containing a number of charges, including a charge in these terms:

The trial diet was fixed for 16 August 1999 in the High Court at Glasgow.

Rules 40.2 and 40.5 of the Act of Adjournal (Criminal Procedure Rules) 1996, which were added by the Act of Adjournal (Devolution Issues Rules) 1999, provide inter alia:

On 9 July 1999, within the period of seven days specified by Rule 40.2 (1), the agents for both respondents gave written notice to the Lord Advocate of their intention to raise a devolution issue. The Advocate Depute who appeared before this court explained that the minute on behalf of Coulter was not actually lodged with the Clerk of Court until 12 July and the minute for Montgomery was not lodged until 14 July. While drawing attention to the fact that the minutes were lodged late, the Advocate Depute did not found on that failure since the Lord Advocate had received a copy of the notice within the period specified in Rule 40.2 (1).

The notices given by the respondents, which were in the form of minutes as envisaged by Form 40.2A of the Act of Adjournal, specified two issues which the respondents intended to raise, each of them arising out of events surrounding the trial of Ronnie Coulter who is the uncle of the respondent Coulter and is mentioned in the averments of assault in charge 3. As can be seen from that charge, the alleged murder was committed on 4 November 1998. The respondent Coulter appeared on petition, charged with the murder, at Hamilton Sheriff Court on 6 November; he was committed for further examination and released on the instructions of the procurator fiscal on 13 November. The respondent Montgomery appeared on petition, also charged with the murder, in the same court on 9 November; he was similarly committed until further examination and released on 13 November. Ronnie Coulter appeared on petition charged with the same murder, again in Hamilton Sheriff Court, on 10 November; he was committed for further examination and then fully committed on 17 November. The Crown went on to indict Ronnie Coulter on the charge of murder. The charge contained averments to the effect that Ronnie Coulter did "while acting with others" assault and murder the deceased. Before the trial the agents for Ronnie Coulter lodged a defence of incrimination, naming the respondents as the perpetrators. The trial began in the High Court at Glasgow on 2 March 1999 and on 9 March Ronnie Coulter was convicted of assaulting the deceased but was acquitted of the charge of murder. At the end of the trial, the judge commented critically on the fact that the Crown had not charged two other persons who appeared, from the evidence led, to have been involved in the fatal assault on the deceased. The Advocate Depute at the trial did not ask for an order under Section 4 of the Contempt of Court Act 1981 and the remarks were widely reported. The Lord Advocate replied in a public statement which was also widely reported in the press. The comments of the trial judge and of the Lord Advocate were discussed in the press.

In the minutes which were sent to the Lord Advocate on 9 July the respondents indicated that they intended to raise two issues arising out of those events. The first, set out in paragraph 1 of the minutes, was to the effect that, by failing to move for an order under the Contempt of Court Act, the Lord Advocate's Depute had failed to protect the respondents from the risk that the trial judge's comments would prejudice their right to a fair trial in any proceedings which might subsequently be raised in the Lord Advocate's name. By virtue of Sections 44(1) and 57(2) of the Scotland Act 1998 ("the 1998 Act"), the Lord Advocate has no power to do any act which is incompatible with inter alia the rights contained in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. On behalf of the respondents it was said that in the circumstances there had been a breach of the respondents' right to a fair trial as enshrined in Article 6. Paragraph 2 of the minutes contained a related argument to the effect that, by engaging in public comment, the Lord Advocate had attracted further publicity to the circumstances of the case and had in that way breached the respondents' right to a fair trial.

On 10 August 1999 Lord Cowie ordered that the minutes should be considered on 12 August when he continued consideration of the notices until 26 August 1999 and, by reason of a minute lodged by both respondents, postponed the trial diet to the sitting of the High Court at Glasgow on 13 September. On 20 August the respondent Montgomery lodged with the Clerk of Justiciary and served on the Lord Advocate and the Advocate General a further document bearing the inelegant title "Addition to Minute"; on 23 August the other respondent lodged a similar document, though service on the Advocate General was not effected until 24 August. These documents in effect sought to amend the minutes which had been served in July by adding a further paragraph containing another argument. This argument also was based on Article 6 and alleged that the failure of the Lord Advocate to bring the respondents to trial along with Ronnie Coulter constituted a breach of the respondents' rights under that Article. Reference was made to the publicity surrounding the trial of Ronnie Coulter and to the fact that the Crown had required to change the allegation relating to Ronnie Coulter: whereas the indictment on which he went to trial alleged that Ronnie Coulter committed the murder along with others, Charge 3 on the present indictment avers that, along with the respondents, Ronnie Coulter assaulted the deceased - but not that he murdered him.

On 26 August the continued hearing on the respondents' minutes was held before Lord Abernethy. As the presiding judge records in his report to this court, at the start of the hearing the Advocate Depute made a submission to the effect that the Addition to Minute was incompetent. Having heard counsel for the respondents, the presiding judge decided that it was in the interests of justice to allow the hearing on the devolution issues to proceed on the basis of both the Minute and the Addition to Minute in each case. Since, however, the period of seven days allowed by Rule 40.2 (3) for the Advocate General to decide whether she wished to become a party to the proceedings had not elapsed in the case of the Additions to Minute, the presiding judge further continued consideration of the minutes until 1 September and granted the Crown leave to appeal against his decision. On 1 September Lord Osborne again continued consideration of the minutes and additions, this time until 9 September, in view of the fact that the Crown had marked an appeal to this court.

From the narrative which we have given it emerges that at no stage in the proceedings so far have the merits of the devolution issues set out in the various documents been discussed. Nor were they discussed before this court. We therefore express no view about them; we are concerned only with the procedural issues which have arisen.

We must first clarify the nature of the hearing in the court below. The order for that hearing was pronounced by Lord Cowie and the minute recording his order reads

The minute is not actually coherent, the main reason for this being that it is written on a pre-printed form designed to record orders under Rule 9.4 for a preliminary diet, but the reference to the preliminary diet has been scored out. The clerk who drafted the minute may have thought that the pre-trial hearing on a notice of a devolution issue under Rule 40.2 (1) was not a preliminary diet.

Chapter 40 of the Act of Adjournal, which deals with devolution issues, does not contain any specific provisions for a hearing. The inference is that devolution issues are to be considered under the existing procedures. The position of both the Advocate Depute and counsel for the respondents before us was that, despite the unsatisfactory minute, the appropriate way of dealing with a devolution issue before the trial diet was in a preliminary diet and that the hearing in the court below had indeed been a preliminary diet. Section 72 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") provides:

In the present case each of the respondents gave a written notice containing specification of two devolution issues. As framed by counsel for the respondents, the notices did not indicate an intention to raise a matter of competency or relevancy nor an intention to submit a plea in bar of trial. In those circumstances counsel did not suggest that the notices fell within the provisions of Section 72(1)(a) - (c). Before us, however, the Advocate Depute proceeded on the basis that the matter fell within the scope of Section 72(1)(d) and, not surprisingly perhaps, counsel for the respondents were content to adopt the same approach. In case it should be thought that the matter has been overlooked, we point out that in fact the notices lodged in this case do not fall squarely within paragraph (d) of subsection (1) since the respondents did not actually give written notice that the devolution issues "could in [their] opinion be resolved with advantage before the trial diet". None the less, since the Advocate Depute did not take that point and since, in any event, Lord Cowie must have granted the order because he considered that the matters could be resolved with advantage before the trial, we too are content to treat them as matters arising under Section 72(1)(d). Indeed, unless they were to be regarded as apt for decision at a preliminary diet, the whole statutory basis for the present appeal, which is taken under Section 74(1) of the 1995 Act, would disappear.

We add a further observation. Chapter 40 of the Act of Adjournal lays down certain specific rules for handling devolution issues. Special treatment of such issues is necessary because of the various provisions in the devolution legislation for Scotland, Wales and Northern Ireland requiring notice to be given to the relevant authorities, allowing those authorities to become parties to the proceedings and so forth. To that extent such issues are distinct. And there may well be devolution issues which stand on their own and require to be given effect in a distinctive way. On the other hand it would be wrong, for instance, to see the rights under the European Convention as somehow forming a wholly separate stream in our law; in truth they soak through and permeate the areas of our law in which they apply.

A challenge to a provision in an Act of the Scottish Parliament as being incompatible with any of the Convention rights (Section 29(2)(d) of the 1998 Act) might, for instance, take the form of a plea to the competency or relevancy of an indictment based on the provision. It would therefore come within the scope of Section 72(1)(a)(i) of the 1995 Act, while also being regulated by Chapter 40 of the Act of Adjournal.

More particularly, under Section 57(2) of the 1998 Act the Lord Advocate has no power to act in a manner which is incompatible with Convention rights. Therefore, putting the matter generally, he and his representatives have no power to act in a manner which would prevent an accused person from having a fair trial. But it was always the case that a Lord Advocate and his representatives were not entitled to act oppressively, in a manner which would prevent an accused person from having a fair trial; if they did, the court could intervene and sustain a plea of oppression in bar of trial (McFadyen v. Annan 1992 J.C. 53). While the authority now given to Convention rights in our law means that, when considering what constitutes a fair trial, the court must take account of Convention law and jurisprudence, the issue will still fall to be dealt with under our existing procedures. Cf. McLeod v. H.M. Advocate (No. 2) 1998 JC 67, at p. 77D-E per the Lord Justice General. In other words, even when relying on an alleged breach of Article 6 on the part of the Crown, an accused person may still seek to focus the issue by means of a plea of oppression. So, depending on its nature, a plea of oppression may well raise a devolution issue and, if it does, then Chapter 40 will come into play. But even where the plea of oppression does raise a devolution issue, it remains by its very nature a plea in bar of trial. As such, it falls within Section 72(1)(b) of the 1995 Act and may be dealt with in a preliminary diet; indeed, it can be raised later only by leave of the court on cause shown (Section 78(1)). In fact the notices in this case, in the form in which they were before this court, did not refer to the matter of oppression nor identify the procedural remedy sought in any other way.

We have explored at some length what may seem to be a technical issue as to the precise nature of the hearing in the court below because it has a bearing on the first issue which was raised by the Crown in the appeal. The Advocate Depute submitted that, since there was no provision in Rule 40.2 for amendment of the notice of a devolution issue, both the Addition to Minute in each case and the presiding judge's decision to consider the Addition to Minute had been incompetent. The Act of Adjournal laid down a strict timetable which had to be followed. Parties and their advisers had seven days after service of the indictment within which to identify any devolution issue and to give the appropriate notices. Once given, they could not be altered so as to introduce a fresh issue. Time limits as such formed a recognised part of our rules of procedure. Admittedly, the timetable laid down by Rule 40.2 (1) could be regarded as demanding but it was not unduly so; moreover, only if it were adhered to, could the court deal with devolution issues within a time which would also allow trials to proceed promptly at the sitting for which the relevant indictment had been served. If notices could be amended so as to introduce additional devolution issues, the whole procedural timetable was liable to be disrupted.

In the course of the Advocate Depute's submission, we drew his attention to the terms of Section 72(3). If, as he accepted, the proceedings in the court below were a preliminary diet held to resolve a matter specified in a notice under Section 72(1), then it appeared that Section 72(3) also must have applied to those proceedings. He did not demur to that proposition even though it was to prove destructive of his contention that the respondents were inextricably bound by their original notices and could not introduce any fresh matter. Here the respondents had raised two devolution issues which were to be resolved at the preliminary diet. Leaving aside any technicalities of form, notices in the shape of Additions to Minute had been lodged on 23 and 24 August, in each case more than twenty-four hours before the continued preliminary diet fixed for 26 August. Since nothing of substance had occurred on 12 August, in reality the adjourned hearing on 26 August marked the start of the preliminary diet. The notices on 23 and 24 August indicated that the respondents wished the court to consider the additional matter contained in them. In that situation, by virtue of Section 72(3) the court was not precluded from considering the matter in the notices. In our view therefore the Advocate Depute's argument that it had been incompetent for the respondents to lodge these Additions to Minute and for the presiding judge to decide to consider them must be rejected.

As the presiding judge recognised, precisely because the Additions to Minute raised a fresh devolution issue, that issue required to be intimated to the Advocate General. One does not find that requirement laid down in Section 72(3), which is general in application; when a devolution issue is involved, however, the procedures in Sections 72 to 75 and 79 must be melded, so far as possible, with those in Chapter 40 of the Act of Adjournal. In particular, the requirements about notice to the Advocate General applied here. Doubtless, there may be cases where a decision by the Advocate General can be anticipated shortly after intimation. So, it may be possible to fix a hearing or a continued hearing for a date before the expiry of the seven days envisaged in Rule 40.2 (3). Here, however, the presiding judge decided that the full period should be allowed and adjourned the diet until 1 September. Neither the Advocate Depute nor counsel for the respondents criticised that aspect of his decision.

The Advocate Depute submitted that, even if it had been competent for the respondents to seek to raise this additional devolution issue at this stage in the proceedings, the presiding judge had erred in determining under Rule 40.5 (1) that they should be allowed to do so. Here the only "cause" which the respondents had shown was the failure of their advisers to identify the additional issue within the seven days allowed under Rule 40.2 (1). Indeed the Additions to Minute containing the additional issue had not been lodged until six weeks or more after the expiry of the time limit in that rule. This delay was all the more deplorable since the respondents and their advisers knew about the events at the earlier trial and so, even before the indictment was served, they would have been in a position to identify the kinds of issue which might arise. An unjustified failure to comply with the statutory timetable did not constitute a "cause" for the purposes of Rule 40.5 (1).

In support of his argument the Advocate Depute referred to two criminal cases, Stein v. Lowe 1991 S.C.C.R. 693 and Stenton v. H. M. Advocate 1998 J.C. 278. In particular he submitted that, in applying Rule 40.5 (1) the court should apply the kind of two-stage test which has been laid down for the determination of applications by the Crown to extend the twelve-month period for commencing a trial under Section 65(3) of the 1995 Act. This would involve the court, first, in determining whether an accused had advanced a reason which could be said to justify allowing the devolution issue to be raised late and, secondly, in deciding by an exercise of discretion whether actually to allow the issue to be raised for that reason. The presiding judge had failed to apply the rule in this way and so his approach was flawed and his decision could be reviewed. If this court applied the two-stage approach, it would conclude that the respondents had failed to advance any cause which could justify it in allowing the fresh devolution issue to be raised late and on that ground we should allow the appeal and order the presiding judge to consider only the issues raised in the original notices.

For their part counsel for the respondents argued that the issue fell to be determined under Section 72(3) rather than under Rule 40.5 (1). In terms of Section 72(3) the presiding judge had an unfettered discretion to consider the matter set out in the Addition to Minute in each case. He had taken into account the short period allowed under Rule 40.2 (1), the novelty of the legislation, the lapse of time before full papers could be obtained and the complexity of the issues involved. He had reached the view that, in all the circumstances, it was in the interests of justice that the new issue should be considered along with the issues identified in the original minutes. This was not a case where the respondents had failed to identify devolution issues within the initial seven-day period and had then come along out of the blue at a late stage to try to raise one. Rather, the respondents' advisers, having timeously raised two devolution issues flowing from the circumstances of the earlier trial of Ronnie Coulter, had continued to analyse the ramifications of those circumstances and in this way had come to identify another issue. Those being the facts, this court could not say that the presiding judge had erred in exercising his discretion by deciding that he would consider the fresh issue along with the original ones.

Mr. Welsh, Q.C., who appeared for the respondent Montgomery, was not able to give much by the way of definite information as to precisely why it had taken so long for the additional issue to be identified and for the Addition to Minute to be lodged and served. The absence of his agent on holiday for two weeks had had some bearing on the matter; but the reality seemed to be that, with counsel and agents being involved in other cases as well, they could not devote all their attention to this matter and so time had passed before their deliberations reached the stage when the fresh point was formulated. Mr. Davidson, Q.C., who appeared for the respondent Coulter, gave more detail of what had occurred in his case. His agents had originally been told by a representative of the Crown that they would be telephoned to warn them if an indictment was going to be served on the respondent. In fact, however, no such call had been received and the first thing that happened was the service of the indictment on him. Thereafter not Mr. Davidson, but a different senior counsel, had been instructed and on his advice the agents had lodged the original minute, adopting the terms of the minute lodged on behalf of Montgomery. The senior counsel said that he would get back in touch but, when he had not done so by 6 August, the agents had considered instructing someone else. At that time no other suitable counsel was available. The original senior counsel appeared at the hearing on 12 August. During the following week the agents became aware that Montgomery's agents were going to try to raise an additional devolution issue and so they again sought to protect Coulter's position by lodging a similar document. On 27 August the original senior counsel withdrew from acting and it was then that Mr. Davidson came into the case. Counsel submitted that, in what were not altogether easy circumstances, the agents had acted responsibly in tendering the Addition to Minute.

In our view the respondents' argument that Rule 40.5 had no bearing on the presiding judge's decision should be rejected. It is correct that, in terms of Section 72(3), where an appropriate notice has been duly intimated, nothing precludes the court from considering that notice. But, as counsel for the respondents acknowledged, the presiding judge retains a discretion as to whether or not to do so. When exercising that discretion in the case of a notice which seeks to introduce a fresh devolution issue, the presiding judge must have regard to the terms of Rule 40.5. Were the respondents' argument to the contrary correct, the result would be that the test for allowing a devolution issue to be raised late would differ, depending on whether the accused happened to be involved in a preliminary diet or not. That would lead to confusion and inconsistency.

In the course of his report to this court, referring to Rule 40.2, the presiding judge says that it seemed to him

Counsel for the respondents submitted that this was the correct approach and that, since the presiding judge had been entitled to hold that it was in the interests of justice to allow the devolution issue to be raised late, we could not interfere with his exercise of the discretion vested in him.

So far as the construction of Rule 40.5 is concerned, we are not persuaded that it would be appropriate to adopt the kind of two-stage approach which is used in applications under Section 65(3) of the 1995 Act. The issue under that section is whether the court should, on the application of the Crown, extend an important time-limit conceived by Parliament in favour of accused persons. If such an application is refused, then there is no risk of the accused person suffering any injustice. Here, by contrast, the issue is whether to allow an accused person to raise a devolution issue late. If such an application is refused, the result may be that the accused person would suffer injustice. The contexts within which the two provisions have to be applied are therefore different. The Advocate Depute acknowledged that, if his construction of Rule 40. 5 (1) were adopted, the result would be that, where an accused's advisers had been negligent in failing to give timeous notice of a devolution issue, in any application to raise the issue late, the court would have to hold that no cause had been shown and so refuse the application. Since no element of discretion would be involved, this would be so, even if the court could see that prima facie the proposed devolution issue was soundly based and fundamental. The case would need to proceed to trial; the accused's only remedy would be to appeal on the basis of Anderson v. H. M. Advocate 1996 J.C. 138 in the event of his being convicted. That consequence of the application of the test favoured by the Advocate Depute appears to us to be profoundly unattractive: not only would it be potentially productive of injustice to accused persons but in addition it might lead to a lengthy and ultimately futile trial in circumstances where, if the devolution point had been resolved at the outset, the trial would have been avoided or reduced in length.

On the other hand we doubt whether it is particularly helpful simply to say that cause is shown in terms of Rule 40.5 (1) when it is in the interests of justice in the particular case to depart from the requirements of Rule 40.2 (1), since all decisions correctly taken by courts in civil or criminal proceedings must by definition be in the interests of justice. Although the Advocate Depute urged us to give positive guidance about the application of Rule 40.5, we do not consider that it would be advisable to try to lay down broad statements of principle about the application of a provision of which the court has little experience. We can, however, give some limited and tentative guidance, which may well require revision in the light of experience. What the accused must show under Rule 40.5 (1) is cause for allowing the devolution issue to be raised late. In deciding whether an accused person has shown that cause, the court should have regard to all the circumstances; the mere fact that those circumstances disclose some failure on the part of the accused person or his representatives will not necessarily mean that he has not shown cause for allowing the issue to be raised late. Part of the cause for allowing an issue to be raised late may be its prima facie significance, particularly for the course of the proceedings as a whole.

Approaching the matter in that way, we are satisfied that, on the basis of the various factors advanced by counsel for the respondents before the presiding judge and before us, and taking into account the nature of the issue outlined in the Addition to Minute in each case, the presiding judge was entitled to take the view that the respondents had shown cause for their being allowed to raise that new issue even at this late stage. We do not say, of course, that his was the only possible view, but merely that it was one which a reasonable judge could properly take. That being so, the appeal by the Crown must be refused.

We should add that during the hearing before us a question arose as to whether it had been competent for the presiding judge to grant leave to appeal under Section 73(1) of the 1995 Act before he had actually resolved all the issues for decision at the preliminary diet. Counsel for the respondents did not argue that it had been incompetent for the presiding judge to do so and so we heard no argument on the point. Assuming that it is competent, however, there will probably be few cases in which a presiding judge will think it right to grant leave at this stage since such an appeal will be liable to lead to additional delays. On the other hand, the complexity of the procedural issues thrown up by the new legislation makes this one of those rare cases where granting leave before the final decision was appropriate.