Scottish High Court of Justiciary Decisons

In the light of these general considerations it was necessary for the appellants to have full information relating to all the circumstances pertaining to the fitting of a tracking device (or devices) to the Isolda and its subsequent use, including what had happened to it and any records of the information it collected or transmitted. That information had not been disclosed prior to or during the trial. Although some information had emerged since the trial there had not yet been full disclosure. The trial judge was not only not fully informed about these circumstances: on the contrary, he was positively misled. Neither the trial court nor this court could properly judge the questions of the possible value of, or the admissibility of, vital evidence about the movements of the Isolda prior to the alleged transfer of drugs to the Ocean Jubilee without knowing the precise details both about the placing of the device on the Isolda and the communications between the various public authorities involved relating to the affixing and use of the tracking device. The appellants were entitled to have access to any records made of information from the tracking device and relating to the tracking of the Isolda. The use made by the authorities of the signals emitted by the tracking device during the last voyage of the Isolda were also, and separately, relevant and crucial, as were the records made of such signalling. The seriousness of the manner in which the Convention rights had been violated could be relevant; the concept of proportionality might apply. The Crown had been repeatedly invited by those acting for the appellants to produce the necessary information and material but had not done so: reference was made to the relevant correspondence relating to these requests, in 1998 and 1999, and to the court's interlocutor of 20 May 1999.

Similar submissions were made in relation to the property control sheets. Distinct questions were raised in the Grounds of Appeal as to the possibility that there had been an unlawful seizure of a foreign vessel, the Isolda, in international waters. The disclosure sought under heads 4 and 5 of the Schedule was necessary to allow this matter to be properly developed. The Crown, however, intimated to the Court that there was no objection to disclosing this material, being the items referred to in paragraphs 4 and 5 of the said Schedule. We understand that material was handed over by the Crown to the appellants in intended satisfaction of these requests. Whether or not that handing-over exhausts the legitimate requirements of the appellants we do not yet know; no submissions were made to us about this; accordingly we need say no more about this aspect of the disclosure Minutes at this stage. In any event, the appellants submitted that as the necessary material had not been available to the defence at the trial, its production at this stage could not save the convictions. That is also a matter that does not arise for determination at this stage. We have not yet had full submissions as to whether or not there has been a miscarriage of justice in relation to the Grounds of Appeal associated with the disclosure issue.

The Crown expressed concern at the raising of various matters of which no notice had been given either in the Grounds of Appeal or in the Minutes. The appellants had chosen not to present at this stage their arguments in support of the Grounds of Appeal said to be related to the Minutes; but on behalf of the Crown it was to be submitted that the Crown were not in breach of Article 6 of the Convention. The Advocate-depute founded particularly upon McLeod v. H.M. Advocate, supra as governing the approach to be taken by this Court on questions of the fairness of our procedures; that case had been decided against the background of a full consideration of relevant Convention law. In the present case, it was clear that the Crown did not rely at the trial upon evidence obtained by the use of a tracking device on the Isolda; although it had been conceded then, and the concession was repeated now, that such a device had indeed been placed on the Isolda and that signals emitted earlier from it may have played a part in an officer of Customs & Excise being able on 27 July 1996 to give instructions that a particular sea area be searched by aerial surveillance for the Isolda; that sea area lay to the north west of Scotland and extended to about 7,200 square miles. No Crown witness had any knowledge of the use of the tracking device or gave evidence of the making, recording or use of signals from it. The trial judge, whose duty it was to rule on issues of admissibility of evidence, had been invited by the Crown to do so, and had done so, upon that basis and upon the express basis that the tracking device had been placed on the Isolda without lawful authority or warrant. It was explained that the Crown had not been in a position to adduce evidence at the trial of the circumstances in which the tracking device had been placed in or on the Isolda, in Spain.

There was, it was submitted, no departure from the principle of equality of arms or of the principles inherent in McLeod v. H.M. Advocate. There had been no attempt by or on behalf of any of the nine accused, before or during the trial, to use well-established procedures to recover the material now sought by the appellants. It was too late to try to recover this material now. The device itself, it was now acknowledged, had been removed from the Isolda by a U.K. Customs & Excise officer and returned to Spanish officers. It would be contrary to the public interest to disclose details of the placing, use and character of the tracking device because the use of such devices was necessary in the fight against serious crime, and such disclosure would simply aid criminals to escape detection. All the information that the appellants could possibly need was contained in the evidence of Santos Martin who gave evidence on 18 March 1999 in the second trial of Silverman. The appellants had obtained a transcript of that evidence, had lodged it in the present appeal process and referred to it in their Grounds of Appeal as providing a justification for further disclosure. No further disclosure was required; the Crown's information was that contained in Santos Martin's evidence.

In relation to the disclosure issue, we should note that the Grounds of Appeal for the third and fourth appellants include 3(a) which is in the following terms:

This, apart from the last sentence, raises an issue of admissibility of evidence.

We were referred by both sides to passages contained in the submissions made at the trial to the trial judge regarding the admissibility of evidence which, it was then submitted, depended upon an investigation which was tainted by illegality. The illegality, it was submitted for the appellants, derived from the fact that a tracking device had been placed clandestinely in or on the Isolda before it departed from Cadiz on 13 July 1996. The placing of the device had been effected without the knowledge and permission of anyone on the Isolda and without legal warrant granted by any responsible authority in the place where it had been done. It was submitted that, even although the Crown was not attempting to lead evidence of any signals or the like from the tracking device, it was clear that the operation, spoken to by Crown witnesses at the time, of locating and observing the Isolda in the sea areas to the west and north of Scotland had been rendered possible, or at least greatly facilitated, by the monitoring of signals from the device. The results of such monitoring had obviously been used to guide the pilots of the aircraft which located, shadowed and observed the Isolda. In substance, what was submitted at the trial in support of the objection to the admissibility of the evidence is what is now submitted on behalf of the appellants. The main difference now is that the arguments presented to this court, unlike those presented to the trial judge, include the important submission that various articles of the Convention, including particularly Article 8 and Article 6, apply directly and must be given effect to by this court in considering the appeals and matters properly incidental to them. We note that the arguments presented to the trial judge included a specific acknowledgement that Article 8 was not directly applicable in Scots law at the time when the trial was being conducted. It should also be noted that the Crown did not, either at the trial or in the course of these appeals, rely directly upon Article 8.2 or attempt to submit that any interference by a public authority with the exercise of the Article 8.1 right was, in so far as established at the trial, "in accordance with the law". It is thus not the position of the Crown in these appeals that the placing on the vessel of a tracking device was "in accordance with the law" in terms of Article 8 of the Convention.

The disclosure issue in relation to the disclosure Minutes is whether or not this Court should order the Crown to disclose the material specified in the Schedule. In the light of what has already been said, we need say no more at this stage about the material specified under heads (4) and (5) of the Schedule. The remaining heads, (1), (2) and (3), relate to the tracking device (or devices) on the Isolda. (There was no suggestion at the trial or in the course of the appeals that any tracking device had at any stage been fixed to the Ocean Jubilee).

We were urged to decide the matters raised by the disclosure Minutes in advance of dealing with the substantive Grounds of Appeal related to the matters sought to be disclosed. That invitation proceeded on the basis that the Grounds of Appeal would not, or might not, be able to be argued fully unless the material sought by the disclosure Minutes was available. This was perhaps unfortunate, because the underlying issues are important and are very closely connected in some respects with the disclosure issues. However, we have no choice but to deal with the disclosure issues in advance of the related Grounds of Appeal.

It is not necessary at this stage to refer in any detail to the evidence relating to the tracking device, its provenance or the use made of it. The debates at the trial ranged over many points not all of direct relevance to the central arguments about admissibility. At least at the beginning when such arguments were presented, the trial judge was not given accurate information by the Crown about the provenance or use of a tracking device. Eventually, but only after the judge had made one ruling on the matter in favour of the prosecution, the Advocate-depute conducting the trial acknowledged that he had unknowingly but innocently misinformed the trial judge about this matter when these issues were first discussed in the absence of the jury. Even as the debates later developed, the Advocate-depute did not, and asserted that he could not, disclose the whole circumstances regarding the provenance or use of the tracking device. (It was not until 11 January 1997 that John Gordon of the Customs & Excise stated in evidence that he believed that the tracking device had been planted on the Isolda by officers of Spanish Customs, and that that had been done in Spain and possibly in Cadiz). The Crown did not in the course of the debates before the trial judge accept that any onus lay upon the prosecution in relation to evidence objected to as inadmissible on the ground that it was tainted by illegality attending the circumstances in which that evidence had been obtained.

However, there can be no room for doubt that a tracking device was in fact placed on the Isolda, but that that was not done in the Scottish jurisdiction, and that it was probably done within Spanish jurisdiction. It is equally clear that this Court must accept that no legal warrant or justification was produced at the trial for the placing of such a device on the Isolda, wherever that was done. The Court, when it comes to consider the admissibility question, must accordingly assume that the tracking device was placed clandestinely on the Isolda without permission or lawful warrant wherever it was done and that when the Isolda entered Scottish waters the device was on the vessel and was transmitting a signal or beacon which could assist in predicting the probable route of the vessel, and also enable someone who knew or came to know the unique signal emitted by the device to know that the vessel emitting the signal was in fact the Isolda. The Court must also proceed upon the basis that some use was made of the tracking device, in that signals sent by it from the Isolda were picked up, and information derived therefrom was relayed to those whose job it was to search visually and by other means for the Isolda to the west and north of Scotland. No witness who gave evidence in the course of the trial claimed to have relayed to the persons who were doing the physical search in Scottish waters information obtained from the signal emitted by the tracking device; but it is evident that those witnesses who did the searching and surveillance received information, described as "intelligence", which enabled them to know the sea area in which to look for the Isolda. That intelligence-gathering must have included receiving signals from the Isolda and thereby monitoring its course to some extent.

In general terms, this Court should not order the Crown to disclose new material in the course of an appeal against conviction unless the Court is satisfied that the material to be disclosed is likely to be of value for the purpose of evaluating the Grounds of Appeal and determining whether or not there has been a miscarriage of justice. The Court may be prepared to consider ordering the production of new material which is shown to be of potential importance even if it is not material which is, on a strict reading, relevant to an existing Ground of Appeal, provided that, in that case, the material sought could provide the basis for a new or amended Ground of Appeal which the appellant should, at this late stage, be allowed to advance. In giving consideration to these issues in the present appeals the Court must bear in mind that it is now almost three years since the convictions and that considerable indulgence has already been shown to the appellants in relation to the advancing of new Grounds of Appeal. The Grounds of Appeal now before this Court are, as has been pointed out, not grounds for which leave was obtained under section 107 of the 1995 Act and they are entertained, though lodged very late, only by leave of the court. Furthermore, they have been added to, with the Court's permission, at the appeal hearing itself.

It is accordingly of importance to examine the existing Grounds of Appeal to see whether or not the material sought in the Schedule is likely to assist the court to evaluate those grounds. At the same time, of course, it has to be borne in mind that the material might warrant some alteration to the existing grounds.

In the case of the appeals by Hoekstra and Jan Van Rijs, the Ground of Appeal to which the material sought - relating to the tracking device - might relate is Ground 2. That is in the following terms:

It is clear that this Ground does not raise any issue as to the admissibility of any evidence. On the contrary, it founds upon the circumstance that the Crown allegedly had "access to records of readings and signals emitted from the device" but the defence did not have such access. This, it is suggested in the written Ground, had, as one of its results (the other is referred to later), that the defence were denied the opportunity of demonstrating by reference to those records (assuming they existed) that the two vessels were not in such close proximity (and) for the length of time alleged by Crown witnesses, so as to enable the cargo of cannabis resin to be transferred. The same point is raised by the remaining appellants in their Ground of Appeal, No. 3(a).

In relation to this matter we should have been sympathetic to a motion to order the Crown now to disclose all the documentary evidence in their possession of records of readings and signals from any tracking device on the Isolda when it was in the sea area where it was alleged to have been in close proximity to the Ocean Jubilee, i.e. in the vicinity of 59° north, 1° west, at any time between midnight on 28 July 1996 and 6 a.m. on 29 July 1996 - provided that there was reason to believe that such readings had been taken and a record of them made. We should have considered such a motion favourably because we consider that, if the defence had known before the trial that such a tracking device had been used and had been able to satisfy the court that it was likely to have produced information on the two matters of proximity and timing, and if the defence had been going to challenge any evidence adduced by the Crown directed to these two matters (and the defence at the trial did challenge such Crown evidence) then the court would have been likely to grant an order for production of these records. It is quite clear that if there were thought to be in existence, and accessible to the Crown, documentary or other material obtained from a tracking device that might show that, contrary to the evidence of Crown witnesses, the two vessels did not meet, or were not in sufficient proximity for a sufficient period of time to allow for the transferring of 3 tonnes of cannabis resin, then that would plainly be material that was exculpatory in character because it would directly contradict evidence relied on by the Crown. It would have been the duty of the Crown to disclose that information to the defence: McLeod v. H.M. Advocate. It is not easy to envisage any successful public interest objection to the production of such material: at that stage, the existence and use of the tracking device would ex hypothesi be known to the defence and therefore already in the public domain. However, counsel for the appellants did not in oral argument suggest that such material was sought with a view to supporting this aspect of Ground of Appeal 2. Whether counsel refrained from making such a motion because it was now recognised that no information from a single tracking device on the Isolda could possibly yield useful information as to the character or duration of the encounter between the two vessels we do not know. The matter was simply not raised, and the Advocate-depute accordingly made no submissions about it. There is nothing that has been presented to us to suggest that any records of, or made from, the tracking device would shed any light on this matter. The Schedule does not contain any specification of such records relating to the character and duration of the encounter between the two vessels. In these circumstances, we do not propose ex proprio motu to order such disclosure.

In relation to the other matter raised in Ground of Appeal No. 2 for Hoekstra and Jan Van Rijs, namely the assertion that

we cannot envisage any circumstances whatsoever in which the appellants would be able to persuade the court to allow them to submit new evidence in support of a Ground of Appeal to the effect that the Isolda was boarded by members of the Moroccan Navy, given the absence of any evidence of Hoekstra on oath at his trial that the vessel was boarded by members of the Moroccan Navy. It is abundantly clear that if the appellants, or any of them, had wanted to advance the argument that the Isolda had been found drifting at sea by a Moroccan Navy vessel and that the crew of the vessel would be able to vouch that there were no drugs on board on that occasion, then that evidence could have been adduced. The appellants must have known whether or not the Isolda was boarded by members of the Moroccan Navy. Their knowledge of that matter (if it occurred) depended upon their own observation, not upon the results of covert surveillance of which they knew nothing. Although the circumstances and results of the surveillance itself were not known to the appellants, there was nothing whatsoever to prevent them from leading evidence to show that the Isolda, after leaving Cadiz on 13 July 1996, was boarded by the Moroccan Navy. That would be "evidence which was not heard at the original proceedings": section 106(3) of the 1995 Act. So, in this respect, would be any evidence obtained from records generated by the tracking device of an encounter between the Isolda and the Moroccan Navy. This Court could not countenance, other than in quite exceptional circumstances (and none are suggested here), the receiving of additional evidence in support of such a Ground of Appeal to contradict the evidence given on oath by Hoekstra at the trial. We note that the same point about the alleged boarding by the Moroccan Navy is also advanced for the third and fourth appellants under head 3(b). We record elsewhere the fact that, in advancing submissions on behalf of the first named appellant in relation to Ground of Appeal No. 6, which is to the same effect as additional Ground of Appeal 15 for the third and fourth named appellants, it was argued that the third and fourth named appellants had relied upon evidence given by the first appellant, Hoekstra. (These Grounds of Appeal we consider later).

In relation to the admissibility issue raised by Ground of Appeal 3(a) for the third and fourth-named appellants, the appellants have chosen not to advance arguments in support of this Ground at this stage. We should, therefore, refrain from making any observation which might be construed as anticipating the debate on that Ground. It is plain, however, from the transcripts produced to us that, apart from the submission now advanced as to the direct applicability of Article 8, the main issues relating to admissibility were ventilated in argument at the trial. The Crown founded upon the fact that it was the defence, not the prosecution, that brought out in evidence the fact that there was a tracking device on the Isolda (John Gordon's evidence came late in the trial). The prosecution made no attempt whatsoever to introduce evidence directly derived from the tracking device. The Crown did not seek to bring out any evidence to show that the signalling by the tracking device enabled persons unknown to guide aircraft to the sea area where the Isolda was sailing. Questions were raised as to the possible application to the question of illegality of the laws obtaining in the jurisdiction within which the tracking device was fitted. The defence ventilated the question of fairness. The matter of the onus in relation to the existence, use and provenance of the tracking device was discussed. It was stated on behalf of the defence that the defence had no knowledge that the tracking device had been placed on the Isolda or that it had been used or that its signals had been detected by Customs & Excise officers or agents or others. The question of admissibility was fully discussed under reference to the relevant Scots law and the House of Lords case of Regina v. Khan [1996] 3 W.L.R. 164. It was also submitted, on behalf of the then accused, that in the absence of precise information as to the circumstances in which the tracking device came to be on the Isolda, the defence were unable to make submissions as to whether or not the illegality was "trivial" or of such seriousness that it could not be excused, applying the tests found in Lawrie v. Muir 1950 JC 19 and other such cases in Scotland.

The important question at this stage is whether or not the ordering of disclosure of the material now sought is necessary for the purpose of enabling this Ground of Appeal to be properly advanced. It is not necessary to examine such material in order to show that the device was placed on the Isolda without lawful warrant because that is conceded for the purpose of this case. Equally the argument must proceed upon the basis that those who gave directions to the witnesses who located the Isolda off the north of Scotland and kept it under observation were assisted by intelligence which made some use of signals from the tracking device to follow its course to the rendezvous area. The Crown does not claim to found upon compliance with treaties relating to co-operation between public authorities concerned in dealing with transnational crime. In Lawrie v. Muir the Lord Justice-General delivering the Opinion of the whole Court said,

As we are not asked at this juncture to consider the Grounds of Appeal raising directly the question of admissibility it would be inappropriate to say anything about unfairness or the other matters which might be relevant in order to be able to apply the Lawrie v. Muir tests. However, we see no reason to suppose that all the matters relevant to the application of the relevant tests (including any inferences appropriately to be drawn where no evidence has been adduced by the Crown of the particular circumstances under which the conceded irregularity was committed) cannot be properly considered by the Court without details of the kind now sought by the appellants. The duty of a trial judge in considering an objection to the leading of evidence is to consider all the arguments which are advanced to him in relation to the objections taken. In the present case, given the concessions by the Crown relating to the tracking device and the other material placed before him, the trial judge had all that he needed to take decisions about admissibility. Whether or not the decisions that he took were correct is not a matter upon which we should express any view in advance of the submissions which are to be made in relation to the related Grounds of Appeal.

Furthermore, it may be open to the Lord Advocate to argue in this Court, notwithstanding the provisions of section 57 of the Scotland Act 1998, that the trial judge was, in 1996, right to admit the evidence, and that, in so arguing, he (the Lord Advocate) would not be exercising a function in contravention of any of the Convention rights, admissibility being a question for the domestic law: Schenk v. Switzerland. We express no opinion on these matters which remain to be fully argued.

Certain of the submissions made to us were to the effect that disclosure as sought should be ordered so that the appellants and their advisers could now scrutinise the whole investigatory antecedents (however remote) of the interception of the Isolda so that these might be investigated for any irregularities. No order for such a purpose would in our view be justified. To do so would be inconsistent with the ratio of McLeod v. H.M. Advocate, by which we are bound. We shall therefore refuse to order the Crown to disclose the material referred to in heads 1, 2 and 3 (and of head 6 in so far as related to them) of the "Schedule to the Devolution Minute".

Among the items listed as label productions for the trial were large quantities of cannabis resin (amounting in total to about 3 tonnes in weight), the ketch "Isolda" and the lifeboat "Ocean Jubilee". The two vessels were, as at December 1996, at Rosyth Naval Base, a few miles from the courtroom at Dunfermline. The cannabis was at that time stored in a warehouse in Aberdeen. On 11 December the Advocate-depute, in the absence of the jury but in the presence of all the accused, proposed to the court that the jury should have the opportunity of viewing the cannabis and the two vessels. It was proposed that for that purpose the cannabis be transported from Aberdeen to Rosyth and that it and the vessels be viewed by the jury on a day to be arranged. Counsel for the various accused (who were nine in number) had no objection to that proposal.

On 23 December the Advocate-depute intimated to the court that 30 December would be a suitable date for the proposed visit. The Ocean Jubilee (which had been badly damaged by fire at about the time of its detention) was housed in a hangar at the Base. The Advocate-depute stated to the court that, having regard to its condition, he did not propose that the jury be invited to board the Ocean Jubilee; he indicated, however, that any alternative proposal might be considered. The cannabis would be brought to the same hangar at Rosyth for viewing by the jury there. The Isolda was berthed at a quayside at the Base. Its overall length was about 18 metres and its internal accommodation comprised inter alia restricted living and sleeping areas and an engine space, all linked by narrow passages and stairs. In view of its size the Advocate-depute proposed that the jury should board the Isolda in three groups of five jurors each. Counsel for the various accused, who were again all present, were then heard by the court on the Advocate-depute's proposal. None objected to it. Certain matters of detail were raised and resolved in relation to the arrangements and the instructions appropriately to be given to the jury in respect of them. The trial judge made it clear that the accused, their counsel and their solicitors would be expected to be present at the Base, though not necessarily on the vessel. No objection was taken to that arrangement. Given the size and nature of the Isolda, it would plainly have been impossible for the judge, the fifteen jurors, the nine accused and their legal representatives, the clerk and macer and appropriate security officers to be present all at the same time on the Isolda, far less in any particular part of it.

By 30 December arrangements were in place for the jurors to view the cannabis, the Ocean Jubilee and the Isolda at the Rosyth Base. On that day the Advocate-depute intimated to the court, in the presence of the jury and all the accused, that transport had been arranged to take all relevant persons there. He renewed his proposal that, so far as concerned the Isolda, the jurors be invited to look round it in groups of five. He proposed that each group should be accompanied and directed by the court macer, an officer of the court (Administration of Justice (Scotland) Act 1933 section 24(7)). No objection was taken on behalf of any of the accused to those proposals. The trial judge then instructed the jury as to the purpose of their visit. He said -

He then gave them certain instructions in relation to their visit.

The site visit took place later that day. The accused, their counsel and their solicitors as well as the judge, the jurors, the clerk and the macer travelled to the Base. As well as viewing the other items, the jurors viewed the Isolda in the manner arranged, namely, five at a time accompanied by the macer boarding it and viewing its external and internal accommodation. The accused were at that time in a bus on the quayside, the weather being such as to make it inappropriate that they be required to stand in the open air. Inevitably when the jurors were in the internal parts of the Isolda they were out of the direct sight of the accused. The accused were at such times unable to see (or to smell) exactly what any juror below deck on the Isolda was at that time seeing (or smelling).

Dr. Sjocrona for the appellants submitted that the trial judge was fundamentally in error in permitting this procedure. It was impossible, he argued, for the appellants to know what the jurors had seen or not seen or smelled or not smelled or what discussion they had had when below deck on the Isolda. The clerk of court had not accompanied them and no record had been made of their observations there. The trial judge had no right to delegate to the macer the supervision of the jurors' visit. The only proper place for the leading of evidence was in the courtroom in the presence of the accused. It was impossible to suppose that the jurors were not influenced by what they had observed or not observed while below deck. This was particularly important when a point subsequently arose at the trial as to whether certain jute-backed carpets and certain tins of yellow paint had been present on the Isolda at the time of its detention. The trial judge had also in his charge to the jury made observations about the smell of cannabis. Scots law required that all evidence be taken in the presence of an accused (Aitken v. Wood 1921 J.C. 84, per Lord Justice-General Clyde at p. 86; Brims v. MacDonald 1993 S.C.C.R. 1061). The case law of the European Court of Justice was to the same effect (Barbera, Messegue and Jabardo v. Spain, 6 December 1988, Series A No. 146 (11 E.H.R.R. 360) at para. 78; Brandstetter v. Austria, 28 August 1991, Series A No. 211 (15 EHRR 378) at paras. 66 and 67; Mantovanelli v. France, 18 March 1997, 1997 - II 424 (24 EHRR 370) at para. 33). It was also important that proceedings should be in public (Diennet v. France, 26 September 1995, Series A No. 325 (21 EHRR 554) at para. 33). The procedure acceded to by the trial judge infringed that principle.

The Advocate-depute submitted that the proceedings had been regular. The possibility of the jury visiting the vessels and the cannabis had been canvassed on several occasions in open court. No objection to the arrangements had been made. A judge had a discretionary power to adjourn to the locus to allow the jurors to view it (Rodden v. H.M. Advocate 1994 S.C.C.R. 841 at pages 845-6). The trial judge had made it plain to the jurors that they were going to the Base for no other purpose than to look at objects, namely the cannabis and the two vessels (which by reason of their size could not be brought into the courtroom), so that evidence led before them in the courtroom would be more understandable to them. They had been given appropriate instructions. As to the circumstance that at times the jurors on their visit would be out of sight of the accused, there was an analogy with jurors being allowed, after their retiral, to view productions in the privacy of the jury room. That procedure likewise was subject to the control and instructions of the trial judge. In such circumstances the jurors' observations and reactions inevitably took place outwith the presence of the accused. Reference was made to Renton & Brown - Criminal Procedure (6th edition) para. 18-87; Bertram v. H.M. Advocate 1990 S.C.C.R. 394; Martin v. H.M. Advocate 1989 S.C.C.R. 546; Hamilton v. H.M. Advocate 1980 J.C. 66; Boyle v. H.M. Advocate 1990 S.C.C.R. 480. (The court drew attention to Carroll and Santini v. H.M. Advocate 1999 S.C.C.R. 617). No unfairness had occurred by reason of the site visit. There had been no miscarriage of justice.

Section 92(1) of the Criminal Procedure (Scotland) Act 1995 provides -

Section 54 concerns proceedings in respect of which a question arises as to whether an accused is insane; section 92(2) concerns circumstances in which the accused has so misconducted himself that a proper trial cannot take place unless he is removed. The general principle behind section 92(1) has been part of the law of Scotland since at least the passing of the Criminal Justice Act 1587. The principle is expressed in Hume on Crimes vol. II page 404 as follows:

Although expressed in the language of its day, the meaning of that paragraph, so far as relevant for present purposes, is clear - the taking of evidence must for the reasons stated take place in open court before the parties (including the accused) and the jurors (or the judge or judges) charged with reaching conclusions on the evidence. Thus, in Aitken v. Wood the conviction was quashed when the complainer, who had given evidence in court of injuries allegedly sustained to her arm on being assaulted by the accused, was called by the magistrates (one of whom was a medical man) into their private room and her arm there examined outwith the presence of the accused and the parties' representatives. Lord Justice-General Clyde at page 86 said:

In Brims v. MacDonald, where a question arose at the trial as to the credibility and reliability of a police constable's evidence about whether a bend in the road was or was not blind, the sheriff took it upon himself during a break in the trial to visit the locus privately in order to make his own observations. The High Court observed at p.1065:

The making of a site visit by the court (as a whole) is a competent, albeit relatively rare, procedure under Scots law. Its object is not the taking of evidence but the affording of an opportunity to the ultimate fact-finders to observe directly the general physical environment of a location so that evidence previously or subsequently led in court about it or events said to have occurred at it may more readily be understood. For the purposes of a site visit during a jury trial the whole court, namely, trial judge, jurors, court officials, prosecutor and accused and their legal representatives adjourn to the locus. Whether or not in any particular case it is in the interests of justice that a site visit take place is a matter for the discretion of the trial judge, having heard the parties (Rodden v. H.M. Advocate). If such a visit is to take place, the trial judge, having considered any representations made to him by the parties, will determine the particular arrangements to be made for it. He will also direct the jury as to the purpose of the visit, as the trial judge did in this case.

A feature of this case is that in the course of the visit to Rosyth Naval Base the jurors viewing the Isolda were at times outside the direct sight of the accused. That was inevitable and clearly foreseeable if the jurors were to be permitted to view its internal accommodation. No objection was taken to this arrangement when it was discussed in the courtroom prior to the visit. The assumption must be that this arrangement was then perceived by the accused and their representatives to be in the interests of the accused. That the jury should have a general but direct impression of the restricted and limited accommodation on board the Isolda might well be of importance to the defence in a case such as this where the allegation (disputed by the defence) was that the vessel had carried a substantial and bulky cargo. If Dr. Sjocrona's argument were correct, it would be incompetent and improper in any circumstances to allow a jury to visit and view a location which involved any confined spaces such that any juror might at any point of time, albeit briefly, be out of sight of any of the accused - even in circumstances where the defence had specifically requested it and it was very important for the defence that the jurors have a direct impression of that location. Such a rule would, in our view, be a denial of justice. Of course, care must be taken before a site visit is authorised to ensure that the jurors understand its limited purpose; the arrangements for it must also be carefully considered. However, no valid criticism can, in our view, be made of the trial judge in these respects. With regard to the judge's reference to the smell of cannabis, that occurred at a point when he was, in his charge to the jury on 19 February 1997, summarising the Crown's contentions against the Dutch accused and in particular how, according to the Crown, each of them must have known of the presence of a cargo of cannabis on board the Isolda. He said - "It was" (according to the Crown contention) "far too big, far too bulky and perhaps even far too smelly for them not to have known what was...afoot...". That reference was wholly unrelated to anything which any juror may have smelled while on board the Isolda during the site visit in December 1996.

There is, to some extent at least, an analogy with the examination by a jury after their retiral of productions previously spoken to in evidence in open court. Whether any such item is made available to the jury in their private room is subject to the discretion of the trial judge (Hamilton v. H.M. Advocate at p. 69). In some circumstances the private viewing by the jury in places other than their room of items previously spoken to in evidence may be unobjectionable (Carroll and Santini v. H.M. Advocate) - in that case a video film replayed in the courtroom in the absence of the trial judge and the parties. Sensations of sight, sound and touch etc. experienced by individual jurors under such arrangements are of their very nature not within the presence of the accused. Yet, again it may be in the interests of justice, not least of justice to the accused, that in particular situations such facilities be granted.

We have considered the authorities in Strasbourg jurisprudence cited to us by Dr. Sjocrona. None of these, in our view, conflicts with the principles of Scots law or warrants a different approach to the issue in this case. In Barbera, Messegue and Jabardo v. Spain the conclusion of the majority of the Court that there had been a violation of Article 6(1) was based primarily on the fact that very important pieces of evidence were not adequately adduced and discussed at the trial and under the watchful eye of the public (para. 89). That evidence was principally of a person (Mr. Martinez Vendrell) who had made incriminating statements against the accused and whose evidence was regarded as vital (paras. 85-6); the statements by the accused themselves and used against them were also regarded as having been obtained in unsatisfactory circumstances (para. 87); the defence was unable to challenge in a fully effective manner the identification and relevance of real evidence (weapons, documents etc.) relied upon by the prosecution as evidence (para. 88). These circumstances are very remote from those of the present case. In Brandstetter v. Austria the Court held that the applicant's complaint in respect of certain defamation proceedings was well-founded (para. 69). It rejected his complaints in respect of certain other proceedings (paras. 54 and 63). His complaint in relation to the defamation proceedings was that a submission made by the public prosecutor to the Vienna Court of Appeal and relied on by it had not been communicated to him and its existence was not known to him (para. 64). The European Court of Human Rights held that the practice in force in Austria at the relevant time did not sufficiently ensure that appellants were aware that a submission on which they should comment had been filed by the prosecutor (para. 67). In these circumstances it held that there had been a violation of Article 6(1). In Mantovanelli v. France the parents of a young woman who had died following certain medical procedures brought civil proceedings for damages against the hospital authority. The Administrative Court on the application of Mr. and Mrs. Mantovanelli appointed an expert to carry out certain enquiries and to report. There were admitted irregularities in the procedure followed in preparing the expert medical report - in particular, neither Mr. and Mrs. Mantovanelli nor their counsel had been informed of the dates of the interviews conducted by the expert, who had also in his report referred to documents which they had not seen (para. 30). The Court of Human Rights (by a narrow majority) held that Mr. and Mrs. Mantovanelli, despite being able to make submissions to the Administrative Court on the content and findings of the report, had not in the circumstances considered as a whole had a real opportunity to comment effectively on it; they could only, it was held, have expressed their views effectively before the expert report was lodged (para. 36). The circumstances of both Brandstetter and Mantovanelli are far removed from those of the present case. The relevant test in this context is whether the accused can participate effectively in the conduct of his case (Stanford v. The United Kingdom, 23 February 1994, Series A No. 282 para. 26; Thompson v. The United Kingdom, 16 December 1999, para. 85). That test was, in our view, satisfied here.

In Diennet v. France proceedings had been brought against a medical practitioner for professional misconduct. Under the then applicable national rules these proceedings were held in private (though those rules were subsequently changed). In upholding the applicant's complaint of a breach of Article 6(1) the Court emphasised the importance of the principle that court hearings be, in general, held in public. It observed (para. 33):

Observations to a similar effect were made by the Court in Barbera, Messegue and Jabardo v. Spain at para. 89. Dr. Sjocrona sought to rely on these principles in the present case. We observe firstly that any exclusion of the public from attendance at the site visit to Rosyth Naval Base forms no part of the appellants' Grounds of Appeal. More importantly, however, the submission is, in our view, misconceived. The whole evidence at the trial was led in the courtroom at Dunfermline, where also were heard the submissions of counsel and the judge's directions to the jury. The public had access to that courtroom. The circumstance that the place where the jury viewed objects too large to be produced in the courtroom (including a very substantial amount of controlled drugs) was a secure establishment in no way, in our view, involved an infringement of the principle that there should be public scrutiny of the administration of justice.

There was a suggestion by Dr. Sjocrona in the course of argument that the appellants, of whom three are Dutch nationals whose native language is not English and for whom interpreters were provided, had not, when the arrangements for the site visit were discussed in court, understood what was to happen. There was also a suggestion by him that some form of objection to the arrangements had been taken by them at the quayside. Neither of those complaints is contained in any Ground of Appeal presently before us; nor was it suggested to us that these alleged concerns had been raised before the trial judge. In these circumstances it would be inappropriate to say anything further about them other than to refer to paras. 30 and 31 of the Court's judgment in Stanford v. The United Kingdom.

Within Ground of Appeal 9 for the third and fourth appellants is a complaint that the Isolda when inspected by the jury "was not exhibited as an unadulterated production". It is alleged that certain items, namely, jute-backed carpets and tins of yellow paint said to have been on the Isolda at the time of its detention had been removed prior to the visit by the jury on 30 December 1996. A similar complaint by the first and second appellants is made in Ground 1 of their Grounds of Appeal. These matters are said to be material to certain evidence given by the first appellant in the course of his cross-examination by the Advocate-depute on 29 January 1997. In our view these matters, whatever their possible significance for other Grounds of Appeal, have no relevance to the issue of the competence or propriety of the jury being permitted to visit the Isolda in the way that they were on 30 December 1996. The purpose of that visit was not for the jurors to carry out an investigation of the contents of the Isolda, far less for them to look for and note the presence or absence of items such as jute-backed carpets or tins of yellow paint. The presence or absence of particular items on board the Isolda at any time was a matter for the evidence which the jury heard in the courtroom in the immediate presence of all the accused.

In these circumstances Ground 1 for the first and second appellants and Ground 9 for the third and fourth appellants fall to be rejected.

In Ground of Appeal 6 for the first and second appellants it is claimed that the trial judge misdirected the jury in several respects. First it is claimed that he "misdirected the jury as to inferences that may be drawn by reference to interrogation of suspects by Customs & Excise, the nature of the caution and inferences to be drawn by what was or was not said under caution". In addition, it is said that "the trial judge's directions confused the quite separate processes of interrogation by Custom & Excise and judicial examination". Next, under reference to Dempsey v. H.M. Advocate 1995 J.C. 84, it is asserted that the trial judge "failed to properly distinguish between those former accused who gave evidence and those who did not." The trial judge is also criticised for failing "to exercise restraint in his comments that a defence may have been 'concocted'." The additional Ground of Appeal (15) for the third and fourth appellants repeats these criticisms and adds that in giving directions as to the evidential value of "anything that was said or not said at judicial examination, the Judge fails to direct the jury in relation to advice which may have been given by a solicitor". This Ground of Appeal also criticises the wording used by the judge when saying that suspects had a right "to remain silent and not to incriminate themselves" because that way of putting it implied that if they spoke they would be likely to incriminate themselves. Finally it is asserted that " the trial judge fails to take cognisance of the fact that not only the accused, but also the Crown did not disclose their positions at the outset of proceedings, as it is quite clear from the evidence as extracted that the Crown did not disclose the existence of a tracking device, and the position of the Crown case changes as it progresses. In singling out the appellant the learned trial judge unfairly charges the jury in relation to the attitude which they should take."

Although it was stated at the bar that certain of the appellants thought that the transcripts of their judicial examinations were not placed before the jury, we note that there is no reference to such a complaint in any of the Grounds of Appeal. The Book of Adjournal records that nine transcripts of judicial examination of the accused were read to the jury by the Clerk of Court on day 34 of the trial. We proceed on the basis that the Book of Adjournal accurately records what happened.

It is appropriate to begin by referring to what the trial judge said. (The criticised passages begin on page 18 of the transcript of proceedings for 19 February 1997). In the first passage he reminded the jury that they had heard evidence, including tape recordings, relating to interviews between officers of Customs & Excise and the accused persons. He reminded the jury that all such interviews had been conducted under caution and he explained what that meant. He added that those interviewed were told of their rights under the law "to remain silent and not to incriminate themselves by what they said." The trial judge's charge continued in the following terms:

It is important to observe that both in relation to the Customs & Excise interviews and in relation to the appearances at judicial examination the trial judge was indicating to the jury that they might find assistance from these sources in considering or assessing the "credibility" of evidence or of witnesses. Thus, in relation to the Customs & Excise interviews, the words he used were

In relation to the judicial examinations, again the emphasis is on the assistance that the jury might find in assessing a witness's credibility, if they had heard evidence that he proffered in court, consisting of material supporting his defence, but including material that he had not disclosed at an earlier stage.

Counsel who presented this submission to us on behalf of all four appellants intimated that these Grounds of Appeal raised what he described as "a fair trial point", with particular reference to the matter referred to in the last passage in Ground of Appeal 15, being that quoted earlier. The first point to be argued, however, was that there was a fundamental difference between the interrogating of a suspect by officers of Customs & Excise and the questioning of an accused under judicial examination procedure. The statute governing questioning by Customs officers was section 24(8) of the Criminal Law (Consolidation)(Scotland) Act 1995. That provision, it was submitted, was in significantly different terms from section 36(2) of the Criminal Procedure (Scotland) Act 1995, the corresponding statutory provision relating to judicial examination. He maintained that section 36(2) was there for the purpose of eliciting a possible defence to the charge or charges. Section 24(8), it was submitted, had no such purpose. Having regard to the differences in the respective statutory provisions it was submitted that the trial judge, notably by using the word "Similarly" in the passage quoted, had equiparated two things that were not at all the same. This, it was submitted, was clearly wrong. Reference was made in that context to Dempsey v. H.M. Advocate 1995 J.C. 84 and to David Crawford v. H.M. Advocate 1999 S.C.C.R. 674. In relation to the latter case, counsel drew attention to the passage at page 678B where it was said:

However, as was pointed out to counsel, that passage does not at all support the view that drawing the jury's attention to any such inconsistency amounted to a material misdirection. That was a case in which the trial judge misdirected the jury by giving them an inaccurate and misleading account of the evidence relating to a crucial issue, that of identification. Accordingly, as noted in the Opinion of the Court at page 675B, "The appellant appealed against his conviction on the ground that the judge misdirected the jury by misrepresenting the evidence on the crucial question of the identification of the appellant as the person who stabbed the complainer". A careful examination of the submissions made to the court in that case indicates that counsel for the appellant, Crawford, did not even suggest that the trial judge's invitation to the jury " to have regard to inconsistency between the appellant's evidence in court and what he said to investigating police officers" amounted to a misdirection. Counsel for the appellant was referring to that particular direction only because it was part of the background or context in which the passage that she did submit was a misdirection - the passage relating to identification evidence - appeared. Furthermore, Crawford was a case in which the accused had not chosen to remain silent when questioned by the investigating police officers but chose to give them an account of matters; that account, however, was inconsistent with the evidence that he later gave in court. Accordingly Crawford affords no support for the submission advanced. Dempsey was a case in which the presiding sheriff clearly misdirected the jury by passing comment on the accused's failure to indicate in his judicial examination that he had been acting in self-defence. However, since the accused had not given evidence at the trial itself, that comment amounted to a clear breach of what was then section 20A(5) of the 1975 Act (now re-enacted, but after amendment, in section 36(8) of the Criminal Procedure (Scotland) Act 1995). Counsel was not able to persuade us that this decision had anything whatsoever to do with the matter brought under consideration by the Grounds of Appeal which he was advancing in the present appeals. These Grounds relate to how the jury might use other material to assess the credibility of an accused who has given evidence before the jury.

It was submitted that what the trial judge said in the present case in relation to assessing the credibility of those accused who chose to give evidence had a bearing upon the cases of those accused who had chosen not to give evidence, because the two of the present appellants who had not given evidence had relied to some extent on the evidence of Mr. Hoekstra; accordingly, if there was found to be a misdirection in relation to Mr. Hoekstra that, it was submitted, would affect them. If there was a misdirection in respect of those who gave evidence, there would equally be a misdirection and possible miscarriage of justice in respect of the others who had relied upon that evidence to any extent.

Section 24 of the Criminal Law (Consolidation) (Scotland) Act contains, in addition to the subsection referred to by counsel for the appellants, various provisions to which the court drew attention - in relation to the detention and questioning of a person when an officer has reasonable grounds for suspecting that that person has committed a relevant offence punishable by imprisonment. These provisions include subsection (6) which permits an officer to put to a person detained under subsection (1) "without prejudice to any existing rule of law as regards the admissibility in evidence of an answer given,...questions...in relation to the suspected offence". Section 36(1) of the Criminal Procedure (Scotland) Act 1995 permits the prosecutor at judicial examination to question the accused "in so far as such questioning is directed towards eliciting any admission, denial, explanation, justification or comment which the accused may have as regards anything to which subsections (2) to (4)...apply". (The word "admission" was added, to section 20A of the Criminal Procedure (Scotland) Act 1975, by section 10 of the Criminal Justice (Scotland) Act 1995.) Subsection (2) begins, "This subsection applies to matters averred in the charge..." The differences in wording between the provisions in section 24 and those in section 36 of the two Acts seem to relate principally to the fact that in the situation to which section 24 relates the person is detained as a suspect and may be questioned about "the suspected offence", whereas in the situation to which section 36 relates the person is facing questioning after there is a charge against him. This is an important distinction. But, in our view, both statutes permit the questioner to put questions to a person, a suspect in one case, an accused in the other, relating to the accusations which that person faces. In both situations the questioning affords the person questioned an opportunity to admit, deny or, if he chooses, to explain or justify his participation in the events which have led to his detention or arrest. In neither situation would our courts admit evidence of answers given under unfair pressure or hostile cross-examination. In each set of circumstances the person has first to be reminded of his right to silence. If he chooses to exercise that right but later goes into the witness box and advances an account of matters which, if true, he would have been able to advance when first questioned then he would expose himself to legitimate cross-examination as to why he had not, on the earlier occasion, given the account which he subsequently gave in court from the witness box. The jury would certainly be entitled, in assessing the reliability of the evidence that they heard in court, to have regard to the circumstance that that account had not been given earlier, along with any explanation given by the witness in his evidence as to why he had not given that account earlier. It is commonplace for an accused who does choose to answer the questions put to him at the stage of investigation and/or judicial examination, and in doing so gives an exculpatory account containing allegations of facts and circumstances that may be able to be investigated at once, to give evidence to the jury in similar terms and to point to and found upon his openness on the first occasion when he was questioned and the consistency of his position from the first occasion to the last ( in the witness box) as bolstering his credibility as a witness. This is a relevant consideration when considering the credibility and reliability of the evidence given by him in court. It could hardly be improper for the jury, if a suspect has remained silent on the first occasion on which he was questioned, to have regard to that silence when assessing his evidence as given in court and, to reflect on any explanation tendered in cour

Apart from the misconceived reference to David Crawford v. H.M. Advocate, counsel for the appellants presented no argument and referred to no authority in support of any submission to the effect that a judge is not entitled to remind a jury that an accused exercised his right of silence when questioned before the trial and to tell them that they may have regard to that matter when assessing his credibility if he has chosen to enter the witness box and to proffer there an explanation that he did not proffer when questioned earlier. We emphasise that we are not concerned here with a situation in which it was suggested to the jury that the exercise by an accused of his right to silence when facing questions pre-trial could itself yield some positive inference of guilt. (We note, however, that in Fox v. Paterson 1948 JC 104 the Lord Justice-General (at page 109) suggested that a suspect's silence at the earlier stage might be a criminative circumstance for the purposes of the application of the doctrine of recent possession. The same was said by Lord Justice General Clyde in Wightman and Another v. H.M. Advocate 1959 J.C. 44 at p. 46. These dicta are referred to below.). The only point here under consideration arising out of the present Grounds of Appeal is whether or not the jury when assessing the evidence given in the witness box by an accused person can take into account his decision, when questioned pre-trial, not then to disclose facts and circumstances, known to him then, and which, when he elects to give evidence in court, he claims show or tend to show that he is not guilty of the charge he faces.

No English authority was referred to. The recent English cases have been concerned with the application of section 34 of the Criminal Justice and Public Order Act 1994 which does not apply in Scotland. It may, however, be of some interest to note that when this section (then Clause 32) was being debated in the House of Lords the then Lord Chief Justice, Lord Taylor of Gosforth, gave the following example,

We consider that that example is useful in assessing the matter before us. We also observe that in Murray v. United Kingdom 1996 22 EHRR 29 the Court, when considering the application of the Criminal Evidence (Northern Ireland) Order 1988, did not hold that there had been any violation of Article 6(1) and (2) of the Convention arising out of the drawing of adverse inferences on account of the applicant's silence.

There is, we recognise, a distinction between the inferences that may legitimately be drawn from a person's silence when he is questioned as a suspect and his silence when formally charged. As the Lord Justice General (Clyde) said in Wightman:

Section 36(8) of the Criminal Procedure (Scotland) Act 1995 contains a statutory change to the common law position as explained in Wightman. That subsection provides that -

The result is that, at least in this respect, the position of a suspect who is interrogated by officers in exercise of their powers under the Criminal Law (Consolidation) (Scotland) Act 1995 and who subsequently gives evidence at his trial is not materially different from the position of a person charged who appears before the sheriff for judicial examination and later gives evidence at his trial. In each instance, provided that the person gives in court an account of factual matters that he has not given on the earlier occasion, there is room for legitimate comment upon the decision of the suspect or person charged to exercise his right of silence on the earlier occasion. It is a circumstance relevant to the assessment of the reliability and credibility of his evidence as given on oath to the trial court.

It is also, in our view, a misunderstanding of the trial judge's use of the word "Similarly", in the passage in his charge which has been quoted earlier, to suggest that he was thereby implying that the position of a suspect being questioned by Customs & Excise officers was the same as the position of an accused before the sheriff at judicial examination. There are some obvious differences which the jury would clearly understand from the way in which this material was presented to them. All that the trial judge was doing at this point was using the word "Similarly" as an adverbial link between the two situations in which the appellants faced questioning about the events in which they were said to have become involved. There was, in our view, no risk that the jury would be confused in any material respect.

We can see no reason at all why, in this context, the trial judge should have differentiated expressly between the position of those who had given evidence and the position of those who had not. As we have sought to make clear, the judge was dealing simply and solely with the jury's possible approach to consideration of the credibility and reliability of evidence that they had heard from the mouths of those who entered the witness box.

In relation to the suggestion that the trial judge should have drawn the jury's attention to the circumstance that before or during questioning the accused who were being questioned may have been given legal advice, we are of the clear view that the trial judge had no duty to remind the jury of every fact or possible factual consideration that might arise. They heard all the evidence that parties wished to place before them about the circumstances in which the accused were questioned. The judge did not have to go through all that evidence in detail. Whether or not he should do so was a matter within his discretion in the light of what he saw to be the matters in issue in the trial. A trial judge has to be careful not to patronise the jury or to risk confusing them by going into unnecessary and repetitive detail about such matters.

As was noted earlier, the use by the trial judge in the passage already quoted of the word "concocted" was criticised. In our view that is an acceptable synonym for fabricating a story or making up a false explanation of incriminating circumstances which had been discovered by the police investigation.

Counsel advanced the further submission (see Ground 15 for the third and fourth appellants) to the effect that, because the trial judge had, in the absence of the jury, heard more than one explanation advanced by the Crown in relation to an entirely different matter, namely the possible presence on the Isolda of a tracking device surreptitiously planted there without the knowledge of the crew, the trial judge should have expressly referred to this matter in his charge in order to show the jury that even the prosecution and those assisting them could be inconsistent in relation to matters of evidence. The rationale of this argument escapes us. It appears to proceed upon a wholly unsustainable notion that the jury's consideration of the credibility and reliability of evidence given on oath before them should somehow be affected by circumstances that shed a poor light upon the quality of the Crown's preparation of the prosecution case. But the Crown is not like a witness whose credibility and reliability are in issue. The Crown does not give evidence as a witness does, on oath. The credibility and reliability of the Crown as prosecutor is not in issue in the way that the evidence of witnesses is.

In any event, if the trial judge did misdirect the jury in relation to how they might approach possible differences between evidence given in court and statements made or withheld at some earlier stage then he has misdirected the jury. If he has not misdirected the jury in that regard then he has not done so. The fact that outwith the presence of the jury the Crown has revealed errors in its understanding or investigation in connection with a matter unconnected with post-detention interviews of the accused can not have any bearing on the directions given to the jury about their assessment of the evidence they have heard.

It has been said repeatedly that a judge's charge to a jury should be assessed not "on isolated passages" but "on its general tenor"; see, for example, Lord Justice General (Normand) in Scott (A.T.) v. H.M. Advocate 1946 J.C. 90 at page 97. Looking at the judge's charge in relation to how the jury were entitled to approach the credibility of those accused who gave evidence in court and who had appeared for questioning on earlier occasions, we consider that the jury could not have been misled by what the trial judge said. In our opinion, there is no basis in the passages criticised for suggesting that a miscarriage of justice has occurred.

These Grounds of Appeal must be rejected.