Scottish High Court of Justiciary Decisons

ALAN DEGNAN v. HER MAJESTY'S ADVOCATE [2001] ScotHC 83 (9th August, 2001)

[1] The Complainer was indicted to stand trial at Glasgow High Court, during a sitting commencing on Monday 30 July 2001. He faced three charges of contravening section 4 (3) (b) of the Misuse of Drugs Act 1971 and one charge of contravening section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995.

[2] On Friday 3 August 2001, the case called for trial before Lord Bonomy. On that occasion, before the Complainer was called upon to plead, counsel for the Complainer, Mr Gebbie, made a motion to adjourn the Complainer's trial, to a later sitting of the High Court. It was explained to the Trial Judge that the adjournment was sought on account of the lodging of two Section 67 Notices. It was explained that enquires were necessary to establish whether Devolution Issues might arise, as a consequence of the additional productions referred to in the Section 67 Notices. The Advocate Depute did not oppose the motion to adjourn the case into another sitting. In his report to this court, the Trial Judge informed us that, having heard defence counsel and the Advocate Depute, he had continued the case until Tuesday 7 August 2001.

The Trial Judge states that he did so to enable the defence to make the enquiries they claimed were necessary, on account of the lodging of the additional productions.

[3] On Tuesday 7 August 2001, the case called again in court before the Trial Judge. On that occasion, Mr Gebbie renewed his motion that the Complainer's trial be adjourned out of the current sitting, to enable further enquiries to be completed. The Trial Judge informed us that, although the motion was not opposed in principle by the Advocate Depute, he refused the motion, since the relevance of the proposed enquiries had not been explained to him and since no indication had been given as to the time that would be necessary to carry out the enquiries. The Trial Judge's refusal of the motion to adjourn was not challenged, when the Bill of Advocation came before us. Rather it was what had happened following the Trial Judge's refusal of the motion, that was the focus of the submissions made by Mr Gebbie, counsel for the Complainer.

[4] On 7 August 2001, having refused the Complainer's motion, the Trial Judge left the court. Before the Trial Judge did so, the Complainer was not called upon to plead. No witnesses were in attendance. Indeed that day, the Trial Judge was engaged in conducting a trial in another case, which had continued from the previous day. It appears to have been accepted on all sides that there was no possibility of the case against the Complainer proceeding to trial on 7 August 2001. In his report the Trial Judge informs us of what happened after he left the court:

The Minute to which the Trial Judge refers was in the following terms:

The Minute Book also contains two further entries, dated 7 August 2001, which relate to the case against the Complainer. Those entries are in the following terms:

[5] By means of the Bill of Advocation, the Complainer sought to argue that the indictment against him had fallen on 7 August 2001. It was contended that the indictment had fallen as soon as the Trial Judge left the court room, having refused the motion to adjourn the case out of the sitting and having taken no steps, in open court, to adjourn the case against the Complainer to a fixed date, whether 8 August 2001 or any subsequent day in the current sitting of the High Court in Glasgow. It was also argued that the Minute of 7 August 2001, purporting to adjourn the Complainer's case to the following day, 8 August 2001, as one of the remaining diets, was unlawful, in terms of Section 6 (3) of the Human Rights Act 1998. The Minute adjourning the case until 8 August 2001 constituted an act by the Court, which was incompatible with the Complainer's Convention rights under Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

[6] In view of the urgency of the matter, we heard argument on the Bill of Advocation on 9 August 2001. At the conclusion of that oral argument, we intimated that we had decided to refuse to pass the Bill. We also indicated that, at a later date, we would advise our reasons for that decision.

[7] The argument that the indictment against the Complainer fell, as soon as the Trial Judge left the court on 7 August 2001, involves consideration of the case of Keily v Her Majesty's Advocate 1990 S.L.T. 847. In Keily the accused was indicted to stand trial at a sheriff and jury sitting. On the first and second days of the sitting, the case was called in open court, in the presence of the accused. On each occasion, the case was continued to the following day, together with all the other remaining cases cited for trial at the sitting. On the third day of the sitting, the accused was present within the court house, but the case against him was not called in open court. On that day, however, at the conclusion of that day's proceedings, in the trial then underway, a minute prepared by the Sheriff Clerk recorded that "The court continued the diet and remaining cases until tomorrow morning at 10 a.m. and ordained all concerned then to attend under the pains of law". On the fourth day of the sitting, the case against the accused was called in court. The accused tendered pleas of guilty to the charges against him. He was remitted to the High Court for sentence. He subsequently appealed against conviction, arguing that by the time he came to tender the pleas of guilty on the fourth day of the sitting, the indictment against him had fallen and that all that had followed thereon was fundamentally null. In rejecting that contention, the Court noted that the accused had been required in terms of the notice served upon him to appear on the first day of the sitting "with continuations of days" until he was called upon to answer to the indictment, at any time prior to the conclusion of the sitting. As the report makes clear, the accused did not answer to the indictment by tendering pleas, until the fourth day of the sitting. In the opinion of the Court, accordingly, the indictment remained live, when, as a matter of court administration on the third day of the sitting, that indictment was duly continued, along with all the "remaining cases", until the following day.

[8] The procedure approved of in Keily is one which was recognised by Hume (Commentaries, ii, 263) and is followed day and daily, during sittings of the High Court and sheriff and jury courts throughout Scotland. Mr Gebbie, counsel for the Complainer, recognised that was so. Indeed he did not dispute that normally, unless and until the indictment against an individual accused is called in court and that accused is required to tender a plea in respect of the indictment against him, the indictment against an accused can competently be continued from day to day, by a minute subscribed in accordance with the procedure approved of in Keily. He argued, however, that the procedure has no application to an indictment, once any hearing has taken place in open court, in respect of that indictment, after the particular High Court or sheriff and jury sitting has got under way. Thus in a case such as the present, in which a motion had been made to adjourn the trial of the accused out of one sitting and into another sitting, any further procedure in relation to the indictment in the first sitting required to take place in public. Similarly, if, once a sitting is under way, an accused has sought the recovery of documents by means of an application dealt with in open court, to approve a Specification of Documents, then the procedure approved of in Keily can no longer have any application. In making those submissions, Mr Gebbie did recognise that any such applications, whether to adjourn the trial of an accused from one sitting to another or to seek the recovery of documents, which had been heard before the start of a sitting, would not prevent the procedure approved of in Keily from being employed, once the sitting got under way.

[9] We are quite satisfied that the procedure approved of in Keily could competently be employed in the present case. In our opinion, there is no factual or legal basis for distinguishing the present case from Keily. There is nothing to be found in the Opinion of the Court in Keily (or in the passage from Hume's Commentaries, which is quoted in that Opinion), which provides any support for the argument advanced by Mr Gebbie. On the contrary, there is no reason in principle nor any sound practical consideration, why the procedure approved of in Keily should not have been applied to the Complainer, irrespective of the occurrence of the hearings that took place in court before the Trial Judge on 3 and 7 August 2001. Those hearings were necessary to deal with a motion that the trial of the indictment against the Complainer should be adjourned out of the sitting. When that motion was refused, the indictment remained one that was scheduled to go to trial in the current sitting. In our opinion, accordingly, there is no basis for holding that the indictment against the Complainer could not competently be continued from day to day, by a Minute such as was subscribed by the Trial Judge's Clerk on 7 August 2001.

[10] The second leg of Mr Gebbie's submissions on behalf of the Complainer was founded on the provisions of Article 6 (1) of the Convention and in particular on the reference which that Article makes to an entitlement to a "fair and public hearing". The argument was that because the Minute subscribed on 7 August 2001 had been written in private, the Complainer's Convention rights had been infringed, even although the Minute was subsequently open for examination by the Complainer and his legal advisers. Placing these submissions within the context of the language to be found in section 6(1) of the 1998 Act, the High Court, as a public authority, had acted unlawfully by acting in a way which was incompatible with the Complainer's Convention rights.

[11] Once again, it is important to remember that Mr Gebbie did not seek to argue that the procedure approved in Keily was incompatible with the Convention rights of every accused indicted to stand trial at a sitting of the High Court or a sheriff and jury sitting. The alleged incompatibility only arose in respect of an accused, such as the Complainer, whose case had warranted some preliminary hearing before the High Court Judge or sheriff, after, but not before, the start of the sitting to which the accused had been indicted.

[12] In support of these submissions, Mr Gebbie referred us to Klass and Others v Federal Republic of Germany (1978) 2 E.H.H.R. 215 and, in particular, to paragraph 56 of the Judgment of the European Court of Human Rights. That case related to legislation in Germany which permitted the State authorities to open and inspect mail and to listen to telephone conversations, in order to protect against 'imminent dangers' threatening the 'free democratic constitutional order' and 'the existence or the security' of the State. Mr Gebbie suggested that the decision in Klass was a strong indication that where individuals enjoy rights under the Convention, public authorities require to justify in public hearings any interference with or regulation of such rights. We regret to say that we drive no assistance from a consideration of the report in Klass. The facts of that case were far removed from the facts of the present case. The arguments justifying secret surveillance, and the exclusion or limitation of judicial control over such surveillance, have no conceivable bearing on the practical reasons why a High Contracting Party, bound by the Convention, might wish to evolve domestic rules of procedure, which allow formal and non-contentious steps in criminal proceedings to take place without the necessity of public hearings.

[13] Furthermore, we are by no means convinced that the provisions of Article 6(1) require all substantive steps leading up to the determination of a criminal charge to take place in public. Whilst a jury's verdict, which determines a criminal charge against an accused, must be delivered in public, no one has yet suggested that a jury should conduct their deliberations in public. More pertinently, perhaps, in Martin v United Kingdom 1999 S.C.C.R 941, the European Court of Human Rights held that the statutory procedures set out in Section 107 of the Criminal Procedure (Scotland) Act 1995, for dealing with applications for leave to appeal, initially by a single judge of the High Court and then by the High Court itself, are compatible with the provisions of Article 6(1), notwithstanding that an appellant has no right, under those procedures, to a public hearing in connection with any such application for leave to appeal.

[14] Martin was relied upon by the Advocate Depute in arguing that there was no substance in the submissions advanced by Mr Gebbie in relation to Article 6(1). The Advocate Depute also founded strongly on the inherent inconsistency in Mr Gebbie's position, which accepted that in the ordinary case the minute procedure, approved of in Keily, was compatible with Convention rights, yet contended that the facts of the present case gave rise to incompatibility.

[15] We are quite satisfied that there is no substance in the submissions advanced by Mr Gebbie under reference to Section 6 of the Human Rights Act 1998 and Article 6(1) of the Convention. In our opinion, the indictment against the Complainer did not fall on 7 August 2001, after the Trial Judge refused the motion to adjourn the trial of the current sitting. In our opinion, the indictment against the Complainer was competently continued to 8 August 2001, by the Minute subscribed by the Clerk later on 7 August 2001. It was for those reasons that, on 9 August 2001, we refused to pass the Bill of Advocation.