Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Cameron of Lochbroom Lord MacLean	Appeal No: Misc. 285/01 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in PETITION to the nobile officium by SPENCER JAMES MELLORS Petitioner; ______

 

For the petitioner: J Carroll, Solicitor Advocate; Carr & Co.

For the respondent: Targowski, QC, AD; Crown Agent

18 October 2002

Introduction

1. This is a petition to the nobile officium of the court. The petitioner craves the court inter alia to set aside an interlocutor of the court dated 22 July 1999 by which an appeal by the petitioner against conviction was refused (cf. Mellors v HM Adv, 1999 SCCR 869), and to quash the conviction.
2. On 2 July 1996 at Glasgow High Court the petitioner was convicted of the following charges:

"(1) on 29 October 1995 at the house at 67 Crawford Drive, Old Drumchapel, Glasgow, you did assault [name], care of Drumchapel Police Office, Glasgow, force her to remain in said house against her will, seize hold of her by the shoulders, push her onto a bed, forcibly remove her clothing, kneel on top of her, repeatedly struggle with her, repeatedly place your hands round her neck and compress her neck, compel her to lie face down on a bed, point to a scalpel and repeatedly threaten her with violence if she did not comply with your demands or attempted to leave said house, lie on top of her and rape her; thereafter force her to take your private member into her mouth, slap her on the face, repeatedly bite her on the hand, growl at her, seize hold of her by the hair, pull her towards you and bite her on the face, place a cord round her neck and repeatedly tighten same, penetrate her hinder parts with a candle, penetrate her private parts with said candle, repeatedly strike her on the head with said candle, tie said cord around a leg of the bed and entwine your fingers in her hair forcing her to remain on said bed against her will; thereafter force her to take your private member in to her mouth and emit semen in her mouth, bite her on the hand, head and body, further tighten said cord around her neck, lie on top of her and rape her; thereafter force her to take your private member in to her mouth and emit semen in her mouth, all to her injury and to the danger of her life and repeatedly threaten to harm her and her child if she reported said assault and rape;

(2) having committed the crime libelled in charge (1) hereof and being conscious of your guilt in respect thereof and having appeared at Glasgow Sheriff Court on 8 December 1995 on a Petition libelling inter alia assault to injury and danger of life and rape and having been committed until liberated in due course of law in custody in respect of said Petition and further knowing that on 8 December 1995 warrants were granted by the Sheriff of Glasgow and Strathkelvin at Glasgow authorising James Rodger, MB, ChB, Police Casualty Surgeon, care of Motherwell Police Office, Motherwell to obtain from you samples of blood and saliva and authorising Donald Gordon MacDonald, RD, ADC, BDS, PhD, Professor of Oral Pathology, University of Glasgow Dental School, 378 Sauchiehall Street, Glasgow, to obtain from you dental impressions, dental measurements and photographs, you did on various occasions between 15 February 1996 and 21 February 1996, both dates inclusive, at Partick Police Office, Dumbarton Road, Glasgow and at the Prison of Barlinnie, Lee Avenue, Glasgow, repeatedly resist, obstruct, hinder and frustrate said James Rodger and said Donald Gordon MacDonald, in the execution of said warrants, repeatedly prevent said James Rodger from obtaining from you samples of blood and saliva and repeatedly prevent said Donald Gordon MacDonald from obtaining from you dental impressions, dental measurements and photographs and all this you did with intent to defeat the ends of justice and you did thus attempt to defeat the ends of justice;

(3) on 17 April 1996 at the Prison of Barlinnie, Glasgow you did resist, obstruct, molest and hinder John Riley, Sergeant, Strathclyde Police, then in the execution of his duty, struggle with him and attempt to bite him on the hands: CONTRARY to the Police (Scotland) Act 1967, Section 41(1)(a);

(4) on 17 April 1996 at the Prison of Barlinnie, Glasgow you did resist, obstruct, molest and hinder Derek Ingram, Constable, Strathclyde Police, then in the execution of his duty and did spit saliva at him: CONTRARY to the Police (Scotland) Act 1967, Section 41(1)(a);

and

(5) you being an accused person and having been granted bail on 24 October 1995 at Edinburgh Sheriff Court in terms of the Criminal Procedure (Scotland) Act 1975 and the Bail etc (Scotland) Act 1980 on the condition inter alia that you would not commit an offence while on bail did on dates and at places libelled in charges (1), (2), (3) and (4) hereof fail without reasonable excuse to comply with said condition, in respect that you committed the offences libelled in charges (1), (2), (3), (4) hereof: CONTRARY to the Bail etc (Scotland) Act 1980 Section 3(1)(b)."

The petitioner was sentenced to imprisonment for a total of 9 years and 9 months.

3. The petitioner appealed against the conviction. On 22 July 1999 this court refused the appeal. Section 124 of the Criminal Procedure (Scotland) Act 1995, so far as relevant to that appeal, provides as follows:

"(2) ... every interlocutor and sentence pronounced by the High Court under this Part of this Act shall be final and conclusive and not subject to review by any court whatsoever ... "

The present petition

4. The petitioner has now invoked the nobile officium on the ground that, at his appeal, he did not receive a fair trial before an impartial tribunal in terms of article 6.1 of the European Convention on Human Rights. He contends inter alia that the decision of the court was vitiated by the participation in it of Lord Justice General Rodger. If that contention is well-founded, it will follow that the appeal was not heard by a properly constituted court and therefore that the interlocutor of the court was invalid. It is agreed that, if that is the case, the nobile officium of the court provides a remedy (Hoekstra v HM Adv (No 2), 2000 JC 308).

The prosecution, the trial and later events

The proceedings before the trial

5. The complainer on the rape charge was a prostitute. The Crown case was that in the morning of Sunday 29 October 1995 the petitioner had met her in the Anderston area of Glasgow and had taken her to his flat in Drumchapel, the locus of charge (1), and committed the acts libelled.
6. On the same date, the petitioner was involved in an incident in the centre of Glasgow when he was driving a car and was chased by the police. This incident led to his being charged with the attempted murder of a policeman and with certain road traffic offences. On 31 October 1995 the petitioner appeared on petition before the sheriff at Glasgow on these charges. He was committed for further examination. Bail was opposed by the procurator fiscal and was refused.
7. On 3 November 1995, the circumstances giving rise to the charge of rape were reported by the police to the procurator fiscal at Glasgow. At that stage the petitioner had been questioned by the police about the allegation of rape while he was detained at a police station on the attempted murder and related charges; but he had not been charged with rape.
8. On 7 November 1995 the petitioner appeared before the sheriff on the petition relating to the attempted murder and related charges and was fully committed. Bail was again opposed by the procurator fiscal and was refused. On the same date the then Lord Advocate, Lord Rodger of Earlsferry, demitted office on his appointment as a Senator of the College of Justice.
9. On 30 November 1995 the petitioner was arrested and appeared on petition before the sheriff at Glasgow on the charge of rape.
10. The Crown did not pursue the charge of attempted murder. Instead, the Crown indicted the petitioner for a contravention of section 2 of the Road Traffic Act 1988 and certain other statutory and common law offences. The petitioner was acquitted on all of those charges.
11. Thereafter the petitioner was indicted for trial at Glasgow High Court on the charges that we have quoted. His trial took place between 24 June 1996 and 2 July 1996. He was defended by Mr Michael McSherry, solicitor advocate.

The special defence of alibi

12. The petitioner lodged a special defence of alibi to the rape charge. The alibi, as it came out in the evidence, was to the effect that at about 4am - 5am on 29 October 1995 he was being chased by the police through the streets of Glasgow; that he had then driven back to his home; that he had later gone to the home of a girlfriend for several hours; and that he had then gone to a public house in Glasgow where he had remained until about 6pm.

The special defence of incrimination

13. The petitioner also lodged a special defence of incrimination to the rape charge naming a cousin David Clark Mellors who, it was said, had lived in the petitioner's flat for some time and was the only other person with a key to it. During the course of the trial Mr McSherry moved to amend the special defence by substituting the name David Grant Mellors. He said that information from the accused was to the effect that David Clark Mellors was an uncle, sometimes known as Davie Clark. It had then emerged that David Clark Mellors might be a cousin of the accused. The defence had precognosced a Crown witness from the Registrar's Office and had been advised that no such person existed but that there did exist a person called David Grant Mellors, a cousin of the accused. Mr McSherry's motion was refused. According to the minutes of the trial, Mr McSherry then "intimated the defence position to be that a person known to the accused as David Clark Mellors committed the offence in charge 1, whilst conceding that no person of that name exists."
14. The Crown called a cousin of the accused, David Grant Mellors, in replication of the incrimination evidence. This witness said that he had not seen the petitioner for about 25 years and that he knew nothing about the matter. The defence response was that this particular David Mellors was not the cousin referred to in the special defence. The defence did not lead any other person who claimed to be known by that name nor, it seems, did the defence put before the jury any further information about such a person, if he existed.

The availability of the witness Williamson

15. The petitioner avers that in the course of their preparations for the trial his solicitors traced a witness, Joseph Williamson, who was the complainer's minder. Williamson said that on the date of the alleged rape, he had seen the man who had gone away with the complainer. Williamson's description of the man, like that given by the complainer herself, did not fit the description of the petitioner. This, we assume, was set out in the defence solicitors' precognition of Williamson that is referred to in the judgment of the appeal court (cf. Mellors v HM Adv, supra, at p. 880D - G). An identification parade had been held at which the complainer did not pick out the petitioner but picked out a stand-in whose description resembled that given by her and by Williamson. For these reasons the defence solicitors considered that Williamson would be an important witness. When the indictment was served on the petitioner, Williamson was listed as a Crown witness. The defence solicitors assumed that he would be available as a witness at the trial.
16. In June 1996, during the sitting of the High Court, but before the petitioner's trial began, there was a meeting between the petitioner's solicitors and Mr T A K Drummond QC, the advocate depute who was to prosecute the case. The petitioner avers that the advocate depute told the defence representatives that Williamson was not in the building at that time; that the Crown did not intend to call him as a witness, but that the Crown would make him available to the defence.
17. The petitioner avers that during the trial the complainer, with hesitation, identified the petitioner as her assailant and that this made the evidence of Williamson all the more vital.
18. The petition contains a detailed narration of the reasons why, according to the petitioner, the defence could not lead Williamson as a witness. The petitioner alleges that before and during the trial Mr Drummond was uncandid with the defence about the availability of Williamson. The inability of the defence to lead Williamson, whatever the true reasons were, underlay one of the issues in the appeal.

Other relevant evidence

19. Before we discuss the petitioner's complaints, it may be helpful if we set them in context. There was little doubt that the complainer had been raped and that the rape had been committed in the petitioner's flat. Bloodstains found in the flat were consistent with being the blood of the complainer to a probability of 5,000 to one. A piece of paper with her name and address on it was found there.
20. The crucial question was the identification of the assailant. This raised an issue as to the time at which the rape had been committed. The evidence on the point was confused. The details of it, and the issues of timing, are set out in the Opinion of the court dated 22 July 1999. We need not rehearse the evidence on the point. It is sufficient to say that there was cogent evidence that the complainer's timings of events, about which she herself was uncertain, were inaccurate; that the alibi evidence was not conclusive, and that there was other evidence that directly implicated the petitioner.
21. Although the complainer failed to identify the petitioner at the identification parade and although her identification of him at the trial was hesitant, she described in some detail a facial scar on her assailant that corresponded with the scar on the petitioner. DNA evidence obtained from seminal stains on the bedding and from semen on vaginal swabs taken from the complainer pointed overwhelmingly to the petitioner as being the person who had had intercourse with the complainer. It showed that the semen was 37,900 times more likely to be from the petitioner than from any other unrelated person and 7,400 times more likely to be from the petitioner than from any cousin of his.
22. This body of evidence may be contrasted with the petitioner's evidence in support of his incrimination of a cousin, whose existence remains unproved, which seems to have been simply an ingenious attempt to explain away DNA findings that the defence made no effort to refute (cf. Mellors v HM Adv, supra, at p. 882 E - G).
23. Moreover, it appears that Mr McSherry may not have helped the defence case by bringing out - unnecessarily, in the view of the trial judge - evidence about the petitioner's criminal record and about an incident at Gatwick Airport when he had been detained on suspicion that he was carrying drugs.

Later events

24. The petitioner appealed against his conviction on three grounds, but leave to appeal was granted on only one, namely misdirection on the defence of alibi. Mr McSherry was later to add further grounds. The appeal proceedings extended over a period of about three years.
25. In 1998, during the course of the appeal proceedings, Mr Drummond was appointed a sheriff.

The appeal

The first hearing - 13 and 14 January 1998

26. There were three relevant hearings in the course of the appeal. The first was held before Lord Justice General Rodger, Lord Caplan and Lord Philip. Mr McSherry represented the petitioner. On this occasion the only ground of appeal before the court was that of alleged misdirection by the trial judge on the question of alibi. The court continued the appeal to 13 February 1998 to enable Mr McSherry to lodge a second ground of appeal, namely that new evidence should be led from Williamson since there was a reasonable explanation for its not having been led at the trial. The explanation was that the defence had decided not to seek an adjournment of the trial on the understanding that the Crown would use its best endeavours to bring Williamson to court, but that when that decision was made the defence were unaware that Williamson had not been cited by the Crown. This raised a question as to the propriety of Mr Drummond's conduct.

The second hearing - 13 February 1998

27. At this hearing the same bench sat and Mr McSherry again represented the petitioner. On this occasion the court allowed Mr McSherry to lodge a third ground of appeal to the effect that there had been a miscarriage of justice because, although Williamson was traced in the course of the trial, the Crown had not passed that information on to the defence. The court allowed the petitioner to lead new evidence. In terms of section 104(1)(b) of the 1995 Act, it appointed that the evidence should be heard before Lord Philip.
28. The petitioner avers that before the hearing of the new evidence, the defence sought access to witnesses, including Mr Drummond and the Crown junior, with a view to precognoscing them, but were denied access. The petition then states:

"Without notifying the defence, the Crown approached the Lord Justice General and it is clear that representations were made to him in relation to the list of witnesses intimated to the defence. In the absence of any representation by the defence, the Lord Justice General restricted the appellant's list to three persons, being the witness W and two police officers." (stat. 5(q)).

29. Mr David Burns QC represented the petitioner at the hearing before Lord Philip. He led only the evidence of Williamson.

The third hearing - 24 June 1999

30. The third hearing took place before Lord Justice General Rodger, Lord Hamilton and Lord Macfadyen. Mr Burns QC again represented the petitioner. The court had before it the transcript of Wiliamson's evidence and a report on the proceedings by Lord Philip. The petitioner avers that

"the Lord Justice General informed [Mr Burns] that he should not address the court on matters previously dealt with in submissions by [Mr McSherry] in the earlier hearings on the appeal" (stat. 5(u)).

This averment is contrary to what the court says in its Opinion. We shall return to that point.

The decision of the court - 22 July 1999

31. The court rejected the first ground of appeal on the question of misdirection. The court considered it unnecessary to decide the point argued under the second ground, namely that there was a reasonable explanation why Williamson's evidence had not been heard. On the third ground, the court held that the failure of the Crown to inform the defence that Williamson had been traced had been "a serious flaw in the conduct of the case" (cf. Lowson v HM Adv, 1943 JC 141, Lord Justice General Normand at p. 146). This failure had arisen from a breakdown in communication within the Crown team (Mellors v HM Adv, supra, at p. 880B - D). However, having studied Williamson's evidence and Lord Philip's report, the court held that, despite that flaw in the conduct of the case, Williamson's evidence would not have led a reasonable jury to a different verdict. It therefore refused the appeal on the basis that there had been no miscarriage of justice (Mellors v HM Adv, supra, at pp. 882 - 883).
32. We should mention that despite the court's conclusion that the procedural mishap at the trial was caused by a breakdown in communication, and nothing more sinister than that, the petition continues to rehearse all the previous allegations against Mr Drummond (stat. 5(m) - (o)) and refers to the defence's having had information indicating that he

"may have been guilty of gross professional misconduct and thereby procured a miscarriage of justice resulting in the conviction of the petitioner" (stat. 5(q)).

At the hearing Mr Carroll said that he was making no submission in this process about the conduct of Mr Drummond at the trial.

The basis of the petition

33. The petitioner avers that the judgment of the court refusing the appeal contains a number of misstatements of fact. These alleged misstatements are set out in detail in the petition (stat. 5(x)). They relate to the dispute about Williamson's non-appearance at the trial.
34. The petitioner then avers that Lord Rodger was Lord Advocate when the petitioner appeared on petition on the attempted murder and related charges, and when the rape case was reported to the procurator fiscal. Then come the following averments:

"That, as Lord Advocate, the Lord Justice General had links with the trial advocate depute whose conduct was being impugned. Although the advocate depute had been responsible for bringing about a miscarriage of justice in this case he was appointed to the post of sheriff during the progress of the appeal and before there had been a judgment pronounced as to his conduct in the case. During the course of submissions by Mr McSherry and the home advocate depute in the earlier stages of the appeal their Lordships Caplan and Philip appeared to be highly critical of the conduct of the trial advocate depute. The composition of the court was changed thereafter and the petitioner knows of no good reason why this should have occurred. The petitioner knows of no measures that were taken to prevent any negative or prejudicial impact on his case. On the contrary, the Lord Justice General's direction that Mr David Burns QC should not address the court on matters already dealt with by Mr Michael McSherry solicitor advocate could be seen from the misstatements in the judgement of the court to have had a detrimental effect upon the proceedings" (stat. 5(y)).

35. For these reasons the petitioner avers that the proceedings did not amount to a fair trial. He avers that he cannot see any reasonable basis for the misstatements in the judgment of the court, and particularly those that deal with the conduct of Mr Drummond. He then avers that he has "legitimate grounds for fearing that the Lord Justice General may have been influenced by his former involvement as Lord Advocate and his professional links with [Mr Drummond]"; and that, in consequence, it cannot be said that the court was constituted according to law. He avers that there is therefore an objective basis for the conclusion that the court was not impartial.

Lord Rodger's Report

36. Lord Rodger has reported to the court on the averments in the petition. Having confirmed that he ceased to hold the office of Lord Advocate on 7 November 1995, he states the following:

"In the petition it is said that the police reported the case to the procurator fiscal on 5 November and that Mr Mellors appeared on petition at the instance of the procurator fiscal on 7 November. I assume that these facts are correct but, for the avoidance of doubt, I confirm that I was, of course, aware of neither of them and had no involvement of any kind in the matter. Again for the avoidance of doubt, I should make it clear that these matters were at no time drawn to my attention at the various hearings of the appeal and that I did not know about them until papers were sent to me, some time last year, in connexion with an application by Mr Mellors to the European Court of Human Rights.

So far as the events during the hearing of the appeal before myself, Lord Hamilton and Lord Macfadyen are concerned, after two years I frankly have no recollection of them nor of what I may have said. I do seem to recall, however, that a technical argument in relation to alibi, which had been presented by Mr McSherry at the earlier hearing, was not advanced by Mr Burns. Had Mr Burns wished to maintain that ground, it would, of course, have had to be reargued before the new bench. The argument which Mr Burns in fact advanced on alibi is recorded and dealt with in the opinion.

So far as concerns the narrative of the events relating to Williamson at the original trial, as the opinion of the court shows, there were divergences in the recollection of the original Advocate Depute and Miss Davies. The account given in the opinion was the court's view of what had happened, based on the documentary and other material before it.

I am unable to assist further."

The position of the present court

37. This petition was drafted, and the petitioner was represented before us, by Mr John Carroll, solicitor advocate. In view of his submissions to us regarding what he described as "links" between Lord Rodger and Mr Drummond, we pointed out to Mr Carroll that each of us had links with both of them, as former colleagues at the Bar, and with Lord Rodger, as a former judicial colleague; and that both Lord Rodger and Mr Drummond were advocates depute when Lord Cameron of Lochbroom was Lord Advocate. Mr Carroll said that he had no objection to the participation of any of us in the hearing and decision in this case.

The submissions for the petitioner

38. Mr Carroll put forward three propositions. The first was that Lord Rodger's participation in the appeal was vitiated by an appearance of bias because on 3 November 1995, when he was still Lord Advocate, the rape case against the petitioner was reported to the procurator fiscal and because that report preceded the full committal of the petitioner on the attempted murder and related charges on 7 November 1995. Mr Carroll submitted that these facts gave rise to legitimate fears (a) that between 3 and 7 November the report of the rape case might have been communicated to Crown Office and (b) that the procurator fiscal, and perhaps also Crown Office, might have considered whether the alleged rape and the alleged attempted murder might be linked. He said that that anxiety arose from the fact that at the stage of full committal on the attempted murder and related charges, when the petitioner had already been questioned by the police in relation to the allegation of rape, the procurator fiscal had opposed bail.
39. Mr Carroll took this submission further by arguing that whether or not Lord Rodger had even heard of the petitioner was of no moment. The mere fact that he was Lord Advocate at the relevant time was sufficient to create an objective suspicion of bias. Even if the rape case had not been reported to Crown Office by 7 November 1995, the Lord Advocate had constructive knowledge at that date of the actings of the procurator fiscal in relation to all the charges made against the petitioner and of the content of the police report on the rape enquiry.
40. Mr Carroll equiparated the position of Lord Rodger in this case with that of the trial judge, who was a former Lord Advocate, in Rimmer, Petr (2002 SCCR 1). In that case the court held that the judge should not have taken part in a case in which he had been involved as Lord Advocate. Mr Carroll relied on Rimmer and on the dictum of Lord Steyn in Brown v Stott (2001 SC (PC) 43, at p. 63G), quoted in that case, to the effect that a basic premise of the Convention system is that only an entirely neutral, impartial and independent judiciary can carry out the primary task of securing and enforcing Convention rights.
41. Mr Carroll's second proposition was that Lord Rodger's participation in the appeal was vitiated by the fact that he had had professional links with Mr Drummond, whose conduct was in issue. This proposition was based on the fact, which appears not to be in dispute, that when Lord Rodger was Lord Advocate he several times gave commissions to Mr Drummond to act as an ad hoc advocate depute. Mr Carroll argued that since Lord Rodger had in this way publicly evinced his confidence in Mr Drummond, he could not be seen to be impartial in considering the allegations made against Mr Drummond in the appeal. That fact alone was sufficient to disqualify Lord Rodger even though on the disputed question as to what passed between Crown and defence before and during the trial, the appeal court preferred the recollection of the Crown junior to that of Mr Drummond (cf. Mellors v HM Adv, supra, at p. 877E - F).
42. Mr Carroll's third proposition was that three defects in the appeal proceedings and in the Opinion of the court demonstrated that the court had misconducted the appeal. The first alleged defect consisted in certain "misstatements of fact" in the Opinion, which did not accurately record matters that were common ground. This takes us back to Mr Drummond again. The second alleged defect was the fact that the allegations against Mr Drummond could not be properly considered by the court at the third hearing because of its decision to exclude from the discussion matters that Mr. McSherry had raised at the earlier hearings. The third alleged defect was that the court, in appointing that Williamson's evidence should be led before Lord Philip, should have recognised that that made inadequate amends for the lack of Williamson's evidence at the trial. To lead the evidence of Williamson, a drug addict and a criminal, some two years later when, as Lord Philip observed, he was not in a fit condition to give evidence, was no substitute for the lost opportunity to lead his evidence at the trial itself. Instead, the appeal court had assessed Williamson's evidence in the knowledge that the jury had already found the petitioner guilty (cf. Millar v Dickson, 2002 SC (PC) 30, Lord Hope of Craighead at para [52]; Rowe and Davies v United Kingdom, 16 February 2000, ECHR). In the circumstances, the court should simply have quashed the conviction.

The submissions for the Crown

43. The advocate depute submitted that the remedy sought was open to the petitioner only if the appeal court had not been properly constituted. If the grounds of appeal relating to Lord Rodger failed, section 124 of the 1995 Act deprived the petitioner of any recourse to the nobile officium. In the circumstances of the case, there was no basis for any reasonable suspicion that Lord Rodger was or could have been involved in the proceedings against the petitioner in the brief period before he demitted office. An examination of the Crown Office records of the case had shown no trace of Lord Rodger's having seen any of the papers. Lord Rodger's judicial oath was an ample safeguard in relation to his previous links with Mr Drummond. Mr Carroll's other criticisms were not grounds for the exercise of the nobile officium.

Decision

(1) The participation of Lord Rodger in the appeal

44. In our opinion, Lord Rodger's participation in the appeal did not invalidate the decision of the court. Mr Carroll did not allege that Lord Rodger was biased against the petitioner; or that he was involved in any decision relating to the prosecution of the petitioner on the attempted murder and other charges or in the decision to oppose bail; or that he was aware of the report of the alleged rape submitted by the police to the procurator fiscal. The submission came to be that there was an appearance of bias arising from the mere fact of his having been a law officer at the relevant dates.
45. The test is well-established in cases like this. It is whether the fair-minded and informed observer, having considered the facts, would conclude that bias on the part of the court was a real possibility (Porter v Magill [2002] 2 WLR 37; Millar v Dickson, 2002 SC (PC) 30; Hoekstra v HM Adv (No. 2)., 2000 JC 391), that is to say, a possibility for which there was objective justification (Porter v Magill, supra, at para. [104]; cf. Doherty v McGlennan, 1997 SLT 444). This test is in line with the jurisprudence of the Strasbourg court (Millar v Dickson, supra, Lord Hope of Craighead at para [66]; cf. Hauschildt v Denmark, (1989) 12 EHRR 266). This too emphasises that the question of an appearance of bias must be seen from the standpoint of the informed observer and not, as Mr Carroll submitted in this case, from the standpoint of the petitioner himself (cf. McGonnell v United Kingdom, (2000) EHRR 289, per Sir John Laws).
46. As a matter of constitutional principle, the Lord Advocate bears responsibility for actions taken and decisions made in his name, whether by advocates depute or by procurators fiscal. But the question raised by this submission cannot be decided on the basis that the Lord Advocate has constructive knowledge of all information held, and all decisions taken, by his subordinates. If that were to be the approach, there would be no content in the principle that a real possibility of bias can be held to exist only where there is some objective justification for it.
47. In the day-to-day working of our system of criminal prosecution, the early stages of a case are, for the most part, in the hands of the local procurator fiscal. His involvement in a potential prosecution begins, in the normal case, with the making to him of a report by the police. It is only in exceptional cases that the procurator fiscal becomes involved at any earlier stage, for example in decisions whether or not to arrest and charge a suspect, to hold an identification parade, to apply for certain warrants, and so on. When a report is made to him, the procurator fiscal decides whether there is sufficient evidence to warrant a charge, and if so what the charge should be. He retains a discretion not to prosecute at all. If the procurator fiscal decides to place an accused person on petition, the petition runs in his name and not that of the Lord Advocate.
48. In the normal case, Crown Office becomes involved only at the stage when, after making his own enquiries, the procurator fiscal reports a case to it and requests further instructions. In such a case, the decision is normally made by Crown counsel and the instructions to the procurator fiscal run in Crown counsel's name. It is exceptional for Crown counsel to be involved at any earlier stage. It is even more exceptional for the Lord Advocate to be involved in, or informed of, any of these preliminary stages in a prosecution, or to have access to the contents of a police report.
49. In our opinion, there can be no objective justification for any suspicion of bias on the part of Lord Rodger. The fair-minded and informed observer when considering the possibility that Lord Rodger could have been involved in or known of the reports made or decisions taken in either of the cases against the petitioner, would have concluded that the possibility was so remote that it could be disregarded. When Lord Rodger demitted office on 7 November 1995 the criminal proceedings on the charges on which the petitioner was convicted had not even begun. In our opinion, it would be fanciful to imagine that Lord Rodger could have been involved in the decision to oppose bail. The petitioner's criminal record was of such length and quality that no competent procurator fiscal could have made any other decision.
50. We therefore consider that no suspicion of bias could reasonably have been held in respect of Lord Rodger's participation in the appeal. As was to be expected, this conclusion is confirmed by the Crown Office examination of its records of the case.
51. This case is clearly distinguishable from Rimmer, Petr (supra). That was a case in which the petitioner had pled guilty in the High Court to several charges, including charges under the Misuse of Drugs Act 1971. The essential irregularity in the proceedings in the High Court consisted in the fact that the presiding judge had been directly involved in the case as Lord Advocate when an application was made in his name to the Court of Session for a restraint order against the petitioner under the Proceeds of Crime (Scotland) Act 1995.

(2) Lord Rodger's "links" with the advocate depute

52. Mr Carroll insisted that this too was merely a question of there being the appearance of an objective risk of bias, although in our view the submission comes close to being one of actual bias. The allegation is that Lord Rodger's previous demonstrations of confidence in Mr Drummond disqualified him from assessing defence allegations that impugned Mr Drummond's integrity. If such demonstrations had created any appearance of the risk of bias on the part of Lord Rodger, his judicial oath would not, in our view, have provided a sufficient answer (cf. Millar v Dickson, supra, at para. [65]). But in our view there is nothing in this point.
53. The fact that Mr Drummond, like many other members of the Bar, had held commissions as an ad hoc advocate depute from Lord Rodger could not, in our view, have raised any reasonable suspicion in the mind of a fair-minded and informed observer that Lord Rodger would be unable to adjudicate impartially on the allegations levelled against Mr Drummond, particularly since they related to a prosecution that Mr Drummond conducted after Lord Rodger had ceased to be Lord Advocate. No such observer could reasonably have concluded that there was any objective risk of bias.
3. The three alleged defects in the conduct of the appeal and in the Opinion of the court
54. In our view, this ground is irrelevant to the exercise of the nobile officium. If, as we have held, the proceedings at the appeal were not vitiated by Lord Rodger's participation in them, the decision in the appeal, by reason of section 124 of the 1995 Act (supra), cannot be reviewed in this process on other grounds that do not go to the validity of the proceedings themselves. The nobile officium cannot provide a remedy in the face of a clear statutory intention to the contrary (Windsor, Petr, 1994 SCCR 59, at p. 65D - E; cf. Connolly v HM Adv, 1997 SCCR 205; Ryan, Petr, 2002 SLT 275). For that reason alone, this ground of the petition is irrelevant in all its branches.
55. In any event, we consider that there is no merit in any of the criticisms made by Mr Carroll on this part of the case.

(i) Misstatements

56. We are concerned by the fact that Mr Carroll has repeated the reference in the petition to there being "misstatements," rather than inaccuracies, in the Opinion of the court. One of the court's alleged misstatements is referred to in the petition as a "misrepresentation" (stat. 5(x)(iv)).
57. Each of the alleged misstatements relates to the allegations against Mr Drummond. The court looked into all of these allegations. It received affidavits on the question. It reached a considered view that implied no misconduct on the part of Mr Drummond. The petitioner has not produced any reason why that conclusion should not be accepted. We would have rejected this point even if it had been open to us to entertain it.

(ii) Restriction of the argument at the third hearing

58. We would have been surprised if the court at the third hearing had made an error so fundamental as to prevent senior counsel for the appellant from re-arguing certain points that two members of the court had not heard. Nevertheless, Mr Carroll said that, having been present throughout the hearings of the appeal, he was as certain as he could be that that was what the court had done. This serious allegation is contrary to the court's account of the matter. In view of the importance of the point, we quote the words of the court in full.

"When the court came to consider [Lord Philip's] report in June 1999, the composition of the court was different from its composition in 1998 and Mr Burns, QC appeared in place of Mr McSherry, the solicitor who had conducted the earlier stages of the appeal. For these reasons we in effect reheard the appeal on the alibi ground, the fresh evidence ground and the ground based on the failure of the Crown to inform the defence about Williamson" (Mellors v HM Adv, supra, at pp. 873F - 874A).

We have not been provided with any contradiction of what the court has said on that subject, other than the say-so of Mr Carroll. Moreover, the Opinion of the court records that the account given by the Crown regarding events before and during the trial was not challenged by Mr Burns QC in any of its essentials at the third hearing (ibid., at p. 878D - F). It was on the Crown's interpretation of those events, rather than Mr McSherry's, that the court sustained the third ground of appeal to the limited extent of holding that there had been a flaw in the conduct of the trial. We therefore reject this allegation.

(iii) The court's reliance on Williamson's evidence

59. Mr Carroll's submission is in essence that the inability of the defence to lead Williamson's evidence at the trial was irremediable and that the court should therefore have quashed the conviction rather than have appointed the evidence to be heard. There is no notice of this point in the petition. If the point was to be taken, it should have been taken at the appeal. Instead, Mr McSherry's amended grounds of appeal urged the court to allow the evidence to be heard. For these further reasons, we consider that this submission fails.
60. In any event, there is nothing in the point. We cannot assume that if Williamson had given evidence at the trial he would have spoken to his defence precognition (cf. Mellors v HM Adv, supra, at p. 880D - E). On the contrary, there is every reason to think that Williamson would have been an unreliable witness whenever his evidence had been heard. About two weeks after the incident, he gave a statement to the police that was inconsistent with the defence precognition. His evidence before Lord Philip was inconsistent with both the police statement and the precognition. Moreover, in his own words, he was "high on drugs, really bad" on the night in question (cf. Mellors v HM Adv, supra, at pp. 880D - 882D). There is therefore no reason to suppose that the quality of Williamson's evidence, or the accuracy of his recollection, declined in the period between the trial and the hearing before Lord Philip. The serious problems affecting Williamson's reliability and credibility were there from the outset.

Other matters raised in the petition

61. Although they were not the subject of any submission to us, we are concerned by certain averments that we have quoted from statement 5 of the petition. These relate to the appointment of Mr Drummond as a sheriff during the course of the appeal; to the changes in the composition of the bench between the second and the third hearings, and to the alleged communings between the Crown and Lord Rodger while the appeal was pending.
62. Mr Carroll told us that the averments regarding Mr Drummond's appointment were merely matters of narrative given to complete the history. In our view, these averments were intended to imply that there was some connection between Mr Drummond's part in the prosecution and his appointment to the shrieval bench.
63. Similarly, Mr Carroll told us that the averments as to the changes in the composition of the bench between the second and the third hearings were made merely by way of narrative and that he had not intended to imply that there was anything untoward in those changes.
64. The composition of an appeal court can seldom be finalised until a few days before the hearing. Judges have other commitments that often over-run. A judge who took part in an earlier stage of an appeal may be unable to take part in a later stage, perhaps because he is scheduled to sit in the Outer House or is on circuit. There was no need for the third hearing in this case to be held before the same bench so long as counsel for the appellant had the opportunity to argue the grounds of appeal in full, as we hold that he did. The unpleasant implication in statement 5(y) (supra) is that Lord Caplan and Lord Philip were replaced for the third hearing because they had been critical of Mr Drummond at the earlier hearings. The responsibility for that suggestion rests with Mr Carroll. There is simply no evidence to support it.
65. At the hearing on the petition Mr Carroll did not even refer to the averments that we have quoted regarding the alleged communings between the Crown and Lord Rodger while the appeal was pending.
66. All of these averments, in our opinion, are scandalous and improper. Mr Carroll made no attempt to justify their obvious implications, nor did he move to delete them from the pleadings. In our view, Mr Carroll's conduct in this respect was wholly irresponsible.

Decision

67. If we had held that the decision complained of was not made by a properly constituted court, we would have quashed the decision but not the conviction. In that event, the appeal would have remained to be competently disposed of. The appropriate course would have been to appoint it to be re-heard before a new division of the court (cf. Hoekstra v HM Adv (No 2), supra; cf. Davidson v Scottish Ministers (No 2), 11 September 2002). In the result, however, we shall simply refuse the prayer of the petition.