Scottish High Court of Justiciary Decisons

1. The appellants are Lieuwe Hoekstra, Jan Van Rijs, Ronny Van Rijs and Hendrik Van Rijs, who were convicted, after trial, on 20 February 1997 of being knowingly concerned in the attempted fraudulent importation of cannabis resin in contravention of section 170(2)(b) of the Customs and Excise Management Act 1997. All the appellants are Dutch nationals. Five other persons, all British, were charged on the same charge: one of them pled guilty at the conclusion of the Crown case and three more were convicted after trial. One was acquitted. There was also a separate charge of attempting to defeat the ends of justice against the British accused, of whom one pled guilty and one was convicted. The first and second appellants were sentenced to 14 years imprisonment and the third and fourth to ten years. The first and third appellants gave evidence at the trial: the others did not.
2. The circumstances giving rise to the charges have been explained in a number of previous court opinions and in the first instance it is only necessary to give an outline of the main features of them. The Crown case was that in July 1996 a vessel, a ketch known as the Isolda, crewed by these appellants, and carrying a large quantity of cannabis resin, sailed through the Fair Isle channel between Orkney and Shetland, travelling in an eastwards direction. At a point in the North Sea somewhere to the north east of the Moray Firth, the Isolda met another vessel, the Ocean Jubilee, which was crewed by two of the Scottish group of accused, and the cargo of resin was transferred from the Isolda to the Ocean Jubilee. Customs officers who had been maintaining surveillance of the operation then intervened. Both vessels were pursued and detained and the accused were arrested. In the course of the pursuit and arrest of the Ocean Jubilee, an attempt was made to burn the cargo and one of the Customs officers was accidentally killed. The evidence led by the Crown included evidence of observations of both vessels prior to and at about the time of the alleged meeting and transfer of cargo and of the pursuits and arrests. There was also evidence as to events during the preceding months including evidence of journeys to and from Spain, meetings and telephone calls. There was also evidence as to the movements of the Isolda, and information derived from the global positioning system on board the Isolda. From this evidence, it was alleged, inferences could be drawn that there had been a scheme, in which all the accused were, in different ways, knowingly involved to prepare for the attempted import of cannabis to the U.K. and its distribution once there. In addition there was forensic evidence derived from examination of the vessels and their alleged cargo. That included evidence of the finding of fibres on board the Isolda which matched the material used to wrap the cannabis resin found on board the Ocean Jubilee. It was not suggested in the course of this appeal that the evidence was insufficient to entitle the jury to convict these appellants, assuming that all the evidence was admissible.
3. All the convicted persons lodged notices of appeal. The proceedings in the appeals by the British appellants became separated from those involving these appellants. The British appeals were heard in December 1998: only one, the appeal by Brian Silverman, was upheld and a retrial was ordered in his case. Silverman was convicted again on 24 March 1999. The position now is that all the proceedings concerning that group of accused have been disposed of.
4. The appeal proceedings concerning these appellants have been more complex and lengthy. It will be necessary to explain what has happened in some detail in dealing with one of the grounds of appeal, which alleges that there has been excessive delay in disposing of the appeal. For the moment, it is enough to say that there was some initial delay in securing representation for these appellants, but that a variety of grounds of appeal and amended grounds, and related devolution issue minutes, were eventually lodged by the end of 1999. A partial hearing of the appeal took place in November and December 1999. A decision was issued in January 2001, but that decision was challenged and set aside and further devolution issues were raised thereafter. The hearing to which this opinion relates eventually took place in October 2001. By that time, the grounds of appeal relating to these appellants had been consolidated and agreement had been reached among the appellants as to how and by whom these grounds should be presented and argued. The upshot was that we heard argument on nine grounds of appeal. Three of these, numbered 3, 4 and 9, relate in one way or another to the use of a tracking device to locate the Isolda, and can be said to have arisen from events at the trial between 2 and 9 December 1996. Ground 5 relates to the question of authority to arrest the Isolda and arises from an objection to evidence taken at the trial on 17 December 1996. Ground 2 arises from a visit made by the jury to the Isolda in the course of the trial, on 30 December 1996. Grounds 6 and 7 concern alleged misdirections by the trial judge in his charge to the jury. Ground 8 concerns an incident which took place in the course of the appeal proceedings, on 7 July 1999. The final ground, ground 10, is based on allegedly excessive delay in completing the appeal proceedings. We propose to deal with these various matters in the order indicated above. Ground 1 of the consolidated grounds of appeal, which raised the question whether there had been sufficient evidence of importation of the cannabis resin, was dropped.
5. We should observe that some of the grounds of appeal were put forward, as written grounds, by some of the appellants but not by others. We have not however thought it necessary to identify, in every case, which ground was put forward on behalf of each appellant. All the grounds, in our view, raise matters which, if justified, would be material to the validity of the conviction of each appellant and we have therefore treated all the arguments advanced to us as relevant to each of the appellants. We should also observe that, in addition to the consolidated written grounds of appeal and the oral submissions we have the benefit of written submissions or skeleton arguments from some of the appellants. Many of the arguments advanced have appeared in these various sources, written or oral, in varying forms; and some of them have also appeared in different forms in the many devolution issue minutes lodged from time to time. We have not attempted to set out all the various forms which the arguments have taken from time, or to catalogue the devolution issue minutes but have treated as definitive the form in which the grounds of appeal and the devolution issues were presented to us at the hearing.

Grounds of Appeal 3 and 4

6. These grounds of appeal together with ground 9 and an associated devolution issue minute of 6 April 2001 all arise out of events at the trial between 2 and 9 December 1996. In brief, it emerged that there had been a tracking device on board the Isolda which had assisted the surveillance officers to locate it. As a result, questions have been raised as to the legality of the device and the admissibility of evidence obtained as a result of its use. The appellants have also sought to obtain information as to what the device would have recorded and what records of the use of the device would disclose. In order to understand and deal with the points at issue it is necessary to set out in some detail what took place during this phase of the trial.
7. On Monday 2 December 1996 a witness Nicholas Ernest Jones, an aircraft systems operator employed by a private aviation company, gave evidence as to certain survey flights carried out for the Customs & Excise in July 1996. The first part of his evidence was concerned with sightings of a life boat, identified as the Ocean Jubilee. He then said that on Sunday 28 July 1996 he was asked to locate a different target (transcript 2.12.96 p. 29) . The target was located at position 5928 north 0408 west at 1300 GMT on that date. The position was somewhat north and west of the Orkney islands but south of the Shetland islands. The target vessel was following a course which would take it through the Fair Isle Channel between Orkney and Shetland: it was a two-masted motorised ketch. On the following day, Monday 29 July, there were further flights and further sightings of the ketch, this time heading in a south-easterly direction somewhere to the east of the Moray Firth. Mr. Jones gave evidence that information about the position of the ketch had been passed to customs officers on surface vessels. At the end of his evidence in chief, Mr. Jones explained that most of his observations were made visually but that equipment on the aircraft was also used and that the position of the vessel was established by plotting radar contacts.
8. In cross-examination by Mr. Findlay, on behalf of the first appellant, Mr. Jones explained that the equipment on the aircraft included radar, a colour television camera and an infra red camera. He was then asked (transcript p. 50) what use was made of satellites or satellite tracking systems. At this point, the witness indicated that he was reluctant to answer the question. There was then a discussion between the Advocate depute, the judge and Mr. Findlay as to how to proceed. Eventually, some further questions were asked, but the witness indicated that he felt constrained in answering any questions by reason of his having signed the Official Secrets Act. Eventually, the Advocate depute formally objected to the questions and a further discussion took place. The discussion was continued on the following day, Tuesday 3 December. The Advocate depute restated his objection as an objection to the line of evidence based upon public interest in not disclosing the nature of surveillance equipment employed, among other matters. In the course of the discussion, Mr. Findlay explained, (transcript 3.12.96 p. 44) that in the first place it was not accepted that the course taken by the Isolda, assuming the Isolda to be the ketch identified by Mr. Jones, was the course which the Crown alleged. He then said (p. 45):

"The next thing my Lord as I can say this to your Lordship, the purposes of this assessment, if it is accepted that at some point in the ocean and I do say at some point in the ocean the Isolda came into contact with the Ocean Jubilee. It is certainly not accepted that the vessels were together for 20 minutes or more and my Lord I think it is fair to observe that when the Advocate Depute, I think I had him noted as saying 20 minutes or so, or words to that effect, that really wont do because as I understand the evidence it is going to be claimed that these two vessels were together for a specific period of time, I think from memory 23 minutes, it is not 20 minutes or so, it is specifically 23 minutes. It is certainly not accepted that the vessels were together for 23 minutes and it is certainly not accepted that they were ever in any way secured to each other and it is certainly not accepted that anything was transferred from the Isolda to the Ocean Jubilee. So that is very much at the heart of the defence case."

A little later, Mr. Findlay said this:

"Your Lordship is going to hear evidence and see some form of video recording of two vessels which it will be claimed are the Isolda and the Ocean Jubilee approaching each other and apparently coming into close contact with each other. There is then those 23 minutes period of time when they are supposed to be together and then the two vessels steam apart. Now that is the general scenario but the broad scenario is this, your Lordship will see on video tape two vessels coming close together and then there is a break in the video tape and the next thing your Lordship will see on the video tape is two vessels some distance apart and for some reason which certainly will have to be explored the crucial part of the whole case namely the transference of the drugs, according to the Crown those in the aircraft switched the camera off and there is no video record which has been produced, there are no photographs which have been produced of one second of the period of time when the boats are together and it is said that the drugs have been transferred. Now my Lord standing what I have already said to your Lordship, namely that it is most certainly not accepted that these two boats were together for 23 minutes, it's not accepted that any drugs were passed, that is clearly a matter in which I have a very strong interest in exploring in front of the jury doing both in a positive and negative way and your Lordship will know exactly what I mean by that."

9. Mr. Findlay then raised a question whether the aircraft had access to satellite technology and whether there were any possible photographs obtained by that means (page 50). From there, the discussion proceeded until, (at p. 51), Mr. Findlay referred to a further matter which, he suggested, the Advocate depute had hinted at and skirted round, perhaps reflecting the state of his own knowledge, namely that the Advocate depute had referred, on two or three occasions, to another piece of equipment which was used when the Isolda was somewhere off the Hebrides as a means of confirming identity, according to the information available to him (p. 51). Mr. Findlay said:

"I have to say to your Lordship I haven't the slightest doubt that there was a bug on the Isolda, I haven't the slightest doubt that that bug or tracking device was placed on the Isolda when it was in Spain."

After a short interruption, Mr. Findlay continued.

"I haven't the slightest doubt that tracking device was placed on the Isolda in Spain and that the piece of equipment that was used off the Hebrides was some piece of equipment to pick up a signal from this tracking device which no doubt would have some particular signal that would identify, not the vessel it was on but would identify itself. In other words, the tracking device which would have a particular signal as I understand these things. Now my Lord, this raises a very serious question of law, apart from anything else and that is what that tracking device, assuming it was there, placed legally on the Isolda because if it was placed illegally on the Isolda then it raises the legal question as to whether or not what flows thereafter is tainted by the presence of that illegal act. If there was no warrant then the information was not recoverable. Now my Lord we perhaps should not get too drawn into technology but we should look at perhaps and it would be in my submission no different from an illegal phone tap, if there was an illegal phone tap, the information derived therefrom and the information derived from that down the line could be tainted by that initial illegal act but I do say to my Lord and it is certainly a matter I would wish to explore with this and the subsequent witness, I have not the slightest doubt there was a bug placed on the Isolda."

10. The argument continued for some time thereafter. The judge considered the questions raised overnight and gave his decision on the morning of 4 December. Among other things, he said:

"Mr. Findlay claimed that evidence would show that a tracking device had been placed on one of the vessels in Spain and that the silent phantom systems had been used to establish that vessel's identity and position through the tracking device. He claimed that the placing of such a device might well be illegal and that that illegality might taint any evidence in respect of the vessel's activities which flowed from it and for these reasons it was crucial to the defence of his client that that information he sought be disclosed. The Advocate Depute in reply contended that Mr. Findlay's proposed attack on the Crown case in both respects was based on unwarranted assumptions. Mr. Findlay had no basis for saying that other systems had been used to keep observation when the vessels met nor that there was any illegality which could further the argument he anticipated. In short and with some hesitation I agree with the Advocate Depute that Mr. Findlay has failed to demonstrate that at this stage the disclosure of the information he seeks is crucial to the defence and outweighs public interest in maintaining its confidentiality. I say and lay stress on the phrase 'at this stage' because it may be that as the evidence develops Mr. Findlay will be able to establish such a basis and I would reconsider matters then. In the meantime I sustain the Advocate Depute's objection to the line of evidence."

11. Thereafter, the witness Jones was cross-examined about the use of radar equipment and colour television and infra red cameras. Some general questions were asked about other equipment on the aircraft, and the witness agreed that there was a facility on the aircraft which would enable him to follow a vessel if that vessel had a transmitter. There were then some rather obscure questions about some other system on the aircraft. The witness said that he did not use another system (transcript 4.12.96 p. 19). Then, (at p. 21), the witness agreed that when he went out on the first occasion to look for the ketch, he knew that there was a "bug" on the ketch which would have an identifying signal and that he would be able to use that to identify the target; but he added, (at p. 22), that in order to get an accurate position, course and speed it was still necessary to use electro optics and radar. There followed further questions about the circumstances in which video recording equipment might or might not be used. At p. 28, the cross-examiner returned to the question of the so-called "other system" and asked whether it had a recording facility, to which the answer was negative. Finally, in this particular connection, the witness said (at p. 32) that he did not know how a device might come to be placed on a vessel.
12. As a result of that evidence, the Advocate depute made further enquiries and thereafter gave an explanation to the court in the course of which he said that he had made repeated enquiries of those who provided the prosecution with information in order to satisfy himself about information that he had previously given to the court. He made it plain that he regretted that information which he had given to the court in good faith in regard to the absence of a tracking device, or at least the non use of any such device, was not accurate. Following that explanation, the judge said to counsel that there would be an opportunity, if they wished, to reconsider the decision which he had given that morning.
13. There was further questioning of Mr. Jones, none of which bears on the issues relevant for the present purpose. The next witness was Mr. Mervyn Green, who was a systems operator on the aircraft with Mr. Jones. He was first asked a number of questions by the Advocate depute about observations of the Ocean Jubilee. When the Advocate depute went on to ask questions about observations of the Isolda, Mr. Findlay objected to the leading of evidence of those observations on the ground that it was apparent that there was some form of device which enabled the surveillance team to locate the Isolda, but there was an inference that that device had been placed by some agency and that there was a question as to whether the device had been placed lawfully. There was then some substantial discussion of the objection, the result of which was that the judge determined to hold a trial within a trial. Mr. Green's evidence was therefore heard in the absence of the jury.
14. Mr. Green said (transcript of Thursday 5.12.96 p. 10) that he had been informed that there was a tracking device on the ketch and given an area in which to search, but he had not been given the tracking beacon details which would identify that particular beacon. He explained that his primary search had been by radar, backed up by electro optic equipment. He also said that he kept assessing tracking beacon equipment and eventually came to the view that that equipment was associated with his target.
15. After Mr. Green's evidence in the trial within the trial had been concluded, the Advocate depute informed the court (at p. 50) that he would not be in a position to lead evidence of what, if anything, had occurred in Spain, and that he was therefore prepared to deal with the argument on the basis that it was possible that whatever device was placed on the Isolda had been placed on board her in Spain; that it was possible that it was done without lawful authority or warrant; and that use was made of that device to track the Isolda. There was then a substantial discussion of the relevant law which continued on Friday 6 December. The judge continued the case until Monday 9 December to give his decision. On that date, he narrated the evidence that had been given and the concession made by the Advocate depute and said:

"Mr. Findlay maintained his objection on the basis that Mr. Green used the signal from the tracking device to locate the Isolda but on the basis that information from that device led to him being sent to the general area in which it was found. In that context it has to be noted from the evidence of Mr. Green that the area he was sent to search extended to some 6,000 and more square miles of sea and that it constituted what he called a choke point through which many vessels had to pass including those making a westerly passage around the United Kingdom from Spain. In all these circumstances it is my opinion that the authorities in this country were fully entitled to take into account in the fight against the illegal importation of large quantities of dangerous drugs any intelligence that they were able to gain including information from a tracking device which may have been placed on a vessel without lawful authority in order to give them an indication as to where such a vessel might be found. Indeed they would in my view have been derelict in their duty had they chosen to ignore such important information, nor do I consider that the evidence gained by the use of such information for this to be ignored by this court. Mr. Green was sent out to search for a vessel about which the authorities had suspicions. He found that vessel through perfectly lawful means and in my opinion his evidence as to the locating of the ship is admissible as is all the evidence that flows from it. I therefore repelled the objection."

16. The evidence of Mr. Green was then heard before the jury. He repeated to the jury the evidence which he had given as well as giving other evidence of his observations of the two vessels when they came together. He was not asked at any point to give any details of the tracking device or of the information which might be obtained from it, or from recordings of readings from it. He was not asked whether the tracking device was capable of giving any information relevant to the question whether the vessels ever were in close contact with one another, or as to the time over which any contact might have lasted.
17. So far as material, ground 3 of the grounds of appeal is in the following terms:

"There was concealment and disposal of evidence to the grave prejudice of the appellant's right to a fair trial and, in consequence thereof, a miscarriage of justice occurred. Following the arrest of the yacht Isolda and the appellants, members of Her Majesty's Customs & Excise secretly removed an electronic tracking device or bug that had been illegally placed upon the Isolda. The existence and use to which the device had been put was purportedly concealed from the Advocate Depute until some time during the trial of the appellants. The appellants have been denied access to the device and in consequence access to records of readings and signals emitted from the device. The conduct of the Crown in the form of H.M. Customs & Excise in removing the device and concealing the fact of its existence and use denied the appellants the opportunity of demonstrating by reference to records and readings that would have been made of signals that emanated from the device that the Isolda and vessel Ocean Jubilee were not in such close proximity and for the length of time alleged by Crown witnesses so as to facilitate the alleged transfer of some 3 tons of cannabis resin."

18. The ground of appeal also narrates that at the subsequent trial of Brian Silverman additional evidence had been led about the device but that Customs & Excise and police records had been falsified or withheld from the defence and that these as well as the circumstances of misleading the Lord Advocate's representatives had a bearing on questions of credibility as well as on the degree of contact between the vessels.
19. Ground 4 of the grounds of appeal is as follows:

"On 5 December 2000 there was a concession by the Lord Advocate through his depute in court that the annexation of the tracking device or bug to the Isolda and its use for the purpose of surveillance of the appellants living there was illegal and contrary to Article 8.1 of the European Convention on Human Rights. All of the evidence in relation to the appellants relative to the events of 29 July 1996 being predicated upon said illegal acts, the conviction proceeding thereon is a miscarriage of justice."

20. Ground 9, which also relates to the tracking device, turns upon the refusal of a commission and diligence to recover records of the device and requires to be dealt with separately.
21. The argument in relation to ground 3 was presented by Mr. Jahae. Mr. Jahae surveyed what had happened at the original trial, and also referred to requests subsequently made, from November 1999 onwards, to obtain recovery of records. These requests and the relative proceedings will be dealt with in connection with ground 9. Mr. Jahae submitted that it was not correct, as had been submitted in the Crown's outline written submissions, that failure to disclose was never raised as the basis of an objection to any issue of admissibility at the original trial. The defence had asked for disclosure and had sought to exclude evidence. They did not know of the device before the trial and dealt with it orally at the trial. In any event that submission by the Crown did not deal with the trial as a whole and the requests which had been made at the appeal stage. It might be that the argument being submitted for the appellants involved the suggestion that the decision in Hoekstra v. H.M. Advocate No. 5 2001 S.C.C.R. 121 was wrong but in that case the question of disclosure had been pursued with a different objective: the appellant's present argument was related to conviction. Mr. Jahae referred to the decisions in Edwards v. The United Kingdom (1992) E.H.R.R. 417, Jasper v. United Kingdom (2000) 30 EHRR 97, Rowe & Davis v. United Kingdom (2000) 30 EHRR 1 and G.M.R. & A.K.P. v. United Kingdom, Application No. 29522/95; 30056/96. The European Court had decided that all material evidence for or against the accused should be disclosed. While there was no absolute right to disclosure, a balancing exercise had to be carried out in which there should be weighed, on the one hand, the right of the accused to have possession of all material for or against him and, on the other, potential reasons for withholding material evidence. These reasons, as defined by the court, were when issues of national security were at stake; when witnesses were potentially endangered; and when there was a need to keep police methods secret. In order to establish whether the trial as a whole was fair the balancing exercise must be scrutinised to see if the decision-making procedure complied, so far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused. If the balancing exercise was not properly carried out then a breach of Article 6 would be established. Material relevant to infringements of Convention rights must also be disclosed in relation to Article 13 and, in the present case, also to enable the appellants to argue the relevance of breaches of Convention rights under Article 8. On the facts of the present case the material in question must be relevant. It was potentially exculpatory as showing that the two vessels were never close enough for a sufficient period to allow a transfer of three tons of cannabis. Whether the vessels were or were not static would also be relevant to the question of the possibility of the transfer. As regards balancing the rights of the accused against any other interests, he asked what reasons were there against disclosure. It was not clear which of the possibly valid reasons the Crown were choosing to rely on. The nearest was the protection of police methods, but the use of a tracking device was not a novelty and in any such case in Holland information about it would be in the case papers from the start. In any case it was clear that no serious balancing act had ever been carried out and there was no other safeguard for the defence.
22. In reply, the Advocate depute submitted that the Crown had disclosed all information that could be disclosed before the trial. There had been various visits by defence representatives to the Isolda, in the presence of Customs officers, and the appellants' advisers had been permitted access to the documents in the possession of the Crown in the procurator fiscal's office, almost on a "dropping in" basis. It had been suggested that the appellants had no knowledge of any tracking device but the issue of that device had been raised by Mr. Findlay on 3 and 4 December 1996. The appellants had submitted that what he was trying to get was disclosure of records of the tracking device, but what he had actually said was that the issue was whether the device had been placed legally or illegally. He was not seeking disclosure to show that the vessels were not together. In the end, he had not asked for disclosure of the device or records, and had merely been laying the foundation for an allegation that there evidence had been illegally obtained. As far as arguments based on the case of Edwards v. United Kingdom and other such cases were concerned, the obligation was to disclose all material evidence, not all information which might be in the hands of some officer. That had been the subject of comment in Hoesktra v. H.M. Advocate No. 5 supra. Schenk v. Switzerland (1988) 13 E.H.R.R. 242 showed that the extent of the duty to disclose could not be determined in the abstract. At the trial the defence had not asked for the device even when they knew about it and the same applied to records. Looking at the position on evidence at the trial as a whole, any records that might exist in relation to the tracking device could not be regarded as material. There was a great deal of suspicious activity on land. Telephone calls were being monitored, including calls to a person known as "Alf" in Spain and from the Isolda to the accused McLean Senior. There was evidence of the Ocean Jubilee going out on a so-called dummy run and loitering in a particular area. There was a large body of evidence about the hiring of vans and sheds. There was evidence about the entering of positions in the Isolda's global positioning system. There was evidence of a conversation overheard by a Customs officer, Gordon, via a satellite in the second appellant had been heard to tell the Ocean Jubilee "come to starboard". That was the side of the Isolda on which fibres had been found, with red and yellow paint-like material which could be related to the wrapping of the cannabis. The first appellant himself had said that the vessels were close enough for conversation, even for a quarrel, to take place and there was evidence from the co-accused Hunter and the third appellant that the vessels were together. In any event, the Advocate depute pointed out, submissions had been made to the trial judge and that had taken place well before the Human Rights Act came into force. Reference should therefore be made to R. v. Lambert [2001] 3 WLR 206. In so far as reference had been made to additional evidence led at the Silverman trial, that related only to how the tracking device came to be on the vessel. The effect which that or any other additional evidence might have had was not explained in the grounds of appeal and it was difficult to see how it could be regarded as additional evidence within section 106(3) of the Criminal Procedure (Scotland) Act 1995.
23. The principles upon which the issues arising under this ground of appeal have to be decided have been stated in very similar words in a number of decisions of the European Court. They are, for example, set out in Rowe & Davis v. United Kingdom supra as follows:

"60. It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6.1 requires, as indeed does English law, that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused.

61. However, as the applicants recognised, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6(1). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.

62. In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. Instead, the European Court's task is to ascertain whether the decision-making procedure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused."

24. In the present case, the existence of the tracking device on the Isolda was not disclosed to the defence by the Advocate depute or any other representative of the Lord Advocate because, until the trial was under way, the representatives of the Lord Advocate were not themselves aware of the existence of the device. However, the defence were aware of the existence of the device and were able to establish, by cross-examination of witnesses, that the device did indeed exist and had played a part in leading the searching aircraft to the vicinity of the Isolda. The grounds on which the defence, at the trial requested further particulars of the device did include reference to the possibility that readings from the device might have assisted in establishing the relative positions of the two vessels at the time when the transfer of the drugs was alleged to have been carried out. However, that reference was never repeated in the later arguments and the whole emphasis in those arguments was placed on the question whether the device had been legally placed in position. That chapter of argument was brought to an end by the Advocate depute's concession that it had to be accepted that the device might have been illegally placed. The question of the existence and possible utility of any records of readings from the device was never reverted to. No further request having been made for the records of the device, the only question which the judge was asked to decide was whether evidence about the position of the vessel Isolda and observations of its course and actions after its first location was admissible. After the first intervention by the Advocate depute, the judge was never again asked to allow information to be withheld on public interest grounds nor was he asked to carry out the balancing exercise referred to in the European authorities. It is true that the Advocate depute's initial objection did raise the question of possible sensitivity of information about methods of detection used by Customs authorities but that was only a passing reference and the judge was never called upon later to make a decision upon it. Since the recoverability of records of the device was never made an issue at the trial, there seems to us to be no basis for any suggestion that the judge was obliged to carry out an independent "monitoring exercise" in order to review any question as to the recoverability of information about what the device might or might not have showed. In these circumstances, we see no basis in what took place at the trial for any suggestion that the procedure failed to satisfy the requirements of Article 6.1 as they are explained in cases such as Rowe & Davis v. United Kingdom supra.
25. Essentially the same arguments apply in relation to the submission on behalf of the appellants directed to the appeal stage of the process. At the trial, those representing the appellants had ample opportunity to explore the question of what information could be obtained from the tracking device, and were not prevented from doing so by any objection stated on behalf of the Crown or upheld by the judge. The appellants were well aware of the possibility that the tracking device might have disclosed information about the course and position of the vessel but chose not to insist in any attempt to explore that. In these circumstances, there can be no doubt, in our view, that any such evidence would not qualify as new evidence under the ordinary rules of Scottish procedure as, indeed, has already been held in Hoekstra No. 5. Likewise, in these circumstances, on the principles explained in Rowe & Davis v. United Kingdom supra, there is no necessity for the court to carry out a monitoring or balancing exercise.
26. The submission in support of ground 4 was that, it being conceded that the initial act of placing the device was unlawful, any evidence flowing from the use of the device was not admissible. The assumption on which this argument was based was that it was the use of the tracking device which permitted the Isolda to be found at a point in the sea north-west of Stornoway which had been fairly precisely identified. That arose from the fact that the evidence at the trial demonstrated that the search aircraft had been provided with information and instructions which enabled it to go to the area where the ketch was found. It was submitted that objection to the admission of evidence had been taken at the trial and that it had been conceded at the trial that the onus was on the Crown to show that it was not unfair to admit the evidence. The Crown attitude at the trial had been that they did not know, and could not take steps to find out, precisely how the device had been placed. That meant that it was not established what precisely was the nature of the illegality. The judge had not asked the Crown to satisfy him about the nature of that legality. It followed that the judge had not been in a position to perform a proper balancing exercise. Reference was made to Lawrie v. Muir 1950 J.C. 37. In terms of that decision, evidence unlawfully obtained might be admissible; for example, if a lawful exercise had incidentally led to some evidence being unlawfully recovered, that evidence might be admitted. In the present case it was possible that the illegal action might have consisted in placing the device, deliberately, some time previously. The device so place might have travelled through the territories of a number of States and might even have been used in systematic surveillance of the vessel. An illegality of that kind and extent would not be excusable. The judge needed to know what kind of illegality had occurred in order to ascertain whether the evidence might be fairly admitted. In addition to Lawrie v. Muir, reference was made to H.M.A. v. McGovern 1950 J.C. 33. It was also submitted, and conceded by the Crown, that the Isolda and those on board her fell within the scope of Article 8. Reference was made to Kroon v. Netherlands (1995) 19 EHRR 263; Neimetz v. Germany (1992) 16 EHRR 97; Buckley v. United Kingdom (1996) 23 EHRR 101; Barclay v. United Kingdom, Application No. 35712/97 and Boyle v. United Kingdom (1994)19 EHRR 179. If, as was apparent, the placing of the device was a breach of Article 8.1 of the Convention then the question of justification had to be approached under Article 8.2, which was narrowly interpreted. The first requirement was that any breach or interference with Article 8 required to be carried out in accordance with law. That could not be said in the present case and, in any event, the nature of the illegality was a relevant factor. This submission was supported by Huvig & Kruslin v. France (1990) 12 EHRR 528 and was not contrary to anything indicated in Schenk v. Switzerland supra.
27. For the Crown, the submission was that it was clear from cases such as Khan v. United Kingdom (2001) 31 E.H.R.R. 1016 that a breach of Article 8 did not necessarily lead to a breach of Article 6. The question always was whether the trial as a whole was fair, as had been shown by Schenk v. Switzerland supra. The Advocate depute also referred to Stott v. Brown 2001 SCCR 62 and P.G. & J.H. v. U.K. Application No. 44787/98, 25 September 2001.
28. In this case, the Crown chose to concede that the Isolda was, in the circumstances, within the protection afforded by Article 8. The Crown also conceded that it could not be shown that the placing of the tracking device was legal. It follows that there was a breach of Article 8 since it could not be said that any interference with privacy, which the placing of the tracking device clearly was, was in accordance with law. The questions therefore become whether, for the purposes of domestic law, the evidence of the observers in the aircraft as to the movements of the Isolda after the time that it was first identified in the sea north-west of Stornoway was admissible in accordance with the principles set out in Lawrie v. Muir supra: and whether, for the purposes of the Convention, the breach of Article 8 gives rise to a breach of Article 6.
29. So far as domestic law is concerned, the principle is set out in the well-known passage from Lawrie v. Muir as follows:

"Irregularities require to be excused and infringements of the formalities of the law in relation to these matters are not likely to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed. In particular, the case may bring into play the discretionary principle of fairness to the accused which has been developed so fully in our law in relation to the admission in evidence of confession or admissions by a person suspected or charged with crime. That principle would obviously require consideration in any case in which the departure from the strict procedure had been adopted deliberately with a view to securing the admission of evidence obtained by an unfair trick. Again, there are many statutory offences in relation to which Parliament has prescribed in detail in the interests of fairness a special procedure to be followed in obtaining evidence; and in such cases (of which the Sale of Food and Drugs Acts provide one example) it is very easy to see why a departure from the strict rules has often been held to be fatal to the prosecution case. On the other hand, to take an extreme instance figured in argument, it would usually be wrong to exclude some highly incriminating production in a murder trial merely because it was found by a police officer in the course of a search authorised for a different purpose or before a proper warrant had been obtained".

30. In the present case, it must be assumed that the device was planted deliberately, that is a circumstance which weighs heavily against the admission of any evidence arising from the use of the device. We do not, however, think that that argument gains much additional force from the submission on behalf of the appellants that it is important that the precise nature of the illegality is unknown. It seems to us to be of relatively little significance whether the device was placed on board the vessel at one harbour rather than another or whether it was unlawfully planted only in the jurisdiction in which it originated or also in any jurisdiction through which the vessel passed. Nevertheless, the argument that the observations of the movements of the Isolda were facilitated by a device illegally placed on board is a formidable and weighty one. As against that, however, the device played a very limited role in the proceedings. It enabled the position of the Isolda to be identified so that observations could be begun as she approached the north of Scotland but it played no further part in the carrying out of the observations and no evidence directly derived from the device was relied on as against the appellants. The authorities concerned with enforcement of the drugs laws had a very substantial body of information available to them to show that preparations were being made for a major transport of illegal drugs and that the Isolda was likely to be involved. It is difficult to see how contact with the Isolda could have been maintained without the use of some such device. If the illegality had consisted or resulted in the recording of conversations, for example, a very strong argument might have been presented that any such evidence was inadmissible. In the actual circumstances of this case, however, it does not seem to us that the use of the device played such a central part in the prosecution as to render the later observations tainted. What the device did was to make it possible to identify and commence observation on the Isolda as she approached the point at which the transfer of cargo was to be made. In these circumstances, it seems to us that the irregularity or illegality could be excused and that the judge was right to reject the objection to the admissibility of this evidence.
31. Essentially the same arguments apply in relation to the breach of Article 8. As has been established by Schenk v. Switzerland supra and other cases, Article 6 does not necessarily require the exclusion of illegally obtained evidence. In its judgment in Schenk at para. 46, the court said:

"While Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law. The court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It has only to ascertain whether Mr. Schenk's trial as a whole was fair."

32. Accordingly, the admission of such evidence can give rise to unfairness on the facts of the particular case. For this purpose, illegally obtained evidence includes evidence obtained as a result of a violation of Article 8. Given, however, the nature of the evidence relating to the tracking device and obtained by its use and its significance in the trial, it seems to us to be impossible to state that the fairness of the proceedings has been affected by the introduction of that evidence. The material evidence against the accused, so far as the meeting of the vessels was concerned, consisted of the evidence of direct observations, taken, as we have mentioned earlier, against the background of the whole mass of evidence tending to show that a major operation for the importation of illegal drugs was being planned and carried out.
33. In all these circumstances, neither ground 3 nor ground 4 of the grounds of appeal is, in our opinion, made out. We should observe that the appellants also criticised the judge's charge on the ground that he had not reminded the jury of the manner in which the position of the Crown had changed during the evidence on this issue: we deal with this criticism along with other criticisms of the charge.

Ground 9

34. The background to this ground of appeal is that in the course of the earlier proceedings in these appeals, application was made for the recovery of, inter alia, the records relating to any readings recovered from the use of the tracking device. Requests for records of or relating to the tracking device seem, on the information before us, to have been made from about June 1998 onwards. An application for recovery of such records was heard in the course of the previous hearing of the appeal and was refused. Later, the appellants sought production of the same documents by a petition lodged on 8 November 2000. There was a hearing on this petition on 5 December 2000 and on 18 January 2001 the petition was refused. The opinion of the court was given by the Lord Justice General (Rodger) and included the following passage at page 126:

"[3] At their trial the appellants were represented by experienced counsel and solicitors. Before the trial they had an opportunity to investigate the case. Indeed the Advocate Depute explained to us that in advance of the trial the Crown had given the defence representatives the opportunity to attend at the Procurator Fiscal's office in Aberdeen to examine documentary and other evidence. In particular defence precognition agents had had an opportunity to examine the tracking device in 1996. On 2 November 1996 virtually all the solicitors and counsel had gone to a meeting at the Procurator Fiscal's office where the case was discussed and information was provided. Defence counsel had been to the Isolda on 18 September, 15 October and 27 November 1996. In October 1996 an officer of Customs and Excise had gone to the Procurator Fiscal's office in Aberdeen for the purpose of showing defence counsel and solicitors most of the material which Customs and Excise had, but which was not to be produced for the trial. Not all of the defence teams took up this opportunity.

35. This account - which was not challenged by those representing the appellants - forms a significant element in the background against which we have to consider the appellant's application. As will be apparent, even from what we have said so far, the appellants are in effect seeking to recover documents and other evidence relating to matters which were issues at the trial - most obviously, the surveillance of the Isolda and its meeting with the Ocean Jubilee. Moreover, as we have just explained, the appellants' representatives had opportunities to investigate these issues before the trial and, accordingly, at the trial they challenged the Crown evidence to the extent and in the manner which they considered to be appropriate in the interests of their clients. They also had the opportunity to lead evidence on these matters, if so advised. It is therefore apparent that the appellants are in effect asking that the court should order the production of documents which would form a basis for trying to introduce evidence which was not led at the trial in relation to issues that were explored at the trial. But under Section 106 of the Criminal Procedure (Scotland) Act 1995 the circumstances in which the existence of evidence which was not heard at the original proceedings can constitute a miscarriage of justice are limited. In particular, under subsection (3A), there must be a reasonable explanation of why the evidence was not so heard. In addressing us Dr. Sjöcrona did not make any attempt even to suggest how the evidence which he was seeking to recover could fall within the terms of subsection (3A) and, in the circumstances which we have narrated, we are not prepared to treat it as though it could. It follows that the application for production of material which would not be fresh evidence of the kind contemplated by the statute is irrelevant and must be rejected on that ground".
36. Further in his opinion, in introducing the subject of the petition, the Lord Justice General had remarked:

"At the hearing the principal submission was advanced by Dr. Sjöcrona on behalf of all the appellants since there was said to be no difference in their positions, at least so far as this matter was concerned. In addressing us Dr. Sjöcrona did not advert to the specific heads of the petition setting out the documents being sought and he did not seek to justify the individual calls for recovery. He approached the matter on a global basis. To a large extent we shall follow that approach in dealing with the application".

37. Against that background we turn to ground of appeal 9. The ground begins by referring to the hearing on 5 December 2000 and the opinion of 18 January 2001 and continues:

"There followed a procedural hearing on 24 January 2001. At that hearing the court was advised by counsel on behalf of the appellants that its opinion bore to be based on a miss-statement of the submissions that had been made. It was then and is now submitted that there were manifest, material and significant differences between the submissions made and the account of them as set out in said opinion of the court. Neither the court nor the Advocate Depute representing the Crown disputed the challenge to the accuracy of the opinion. Neither did the court or the Advocate Depute dispute the submissions made by counsel for the appellants as to the materiality of the discrepancies. A motion for a hearing, founded on Scots and E.C.H.R. case law and jurisprudence was made by counsel for the appellants to consider discussion that the opinion be set aside by the court exercising its nobile officium. This was opposed as incompetent by the Lord Advocate per his depute with reference to section 124 of the Criminal Procedure (Scotland) Act 1995. The court upheld the submission of the Lord Advocate and refused the appellants the hearing so moved for as being incompetent in terms of section 124 of the Criminal Procedure (Scotland) Act 1995. There being no other court of appeal in Scotland and the interlocutor of 18 January 2001 being final and not subject to review the appellant is not able to have all of his grounds of appeal and matters concerning the case considered as a whole. In consequence thereof a miscarriage of justice has occurred."

38. In the written answers on behalf of the Crown, it is suggested that the ground of appeal is based upon an error in the opinion of the court in Hoekstra No. 5, in that reference was made to an opportunity to examine "the tracking device" whereas what the Advocate depute had actually said, according to a transcript made on behalf of the defence, was that access was given to "a global positioning system from the Isolda, in other words the tracking device information that was available". The answers continue to the effect that it was clear that the Advocate depute was not referring to the tracking device which had been placed on the vessel and it is said that, given all that had been said about the tracking device having been removed from the vessel shortly after it docked and never having been seen again, the ground of appeal had no proper basis, and proceeded on a distortion of the Advocate depute's words.
39. At the hearing before us, there was a certain amount of rather profitless discussion of possible interpretations of the words actually used by the Advocate depute on 5 December 2000. It seems to us that, on any view, the words used were capable of being interpreted as meaning that access had been given to the tracking device, that is the tracking device placed on the Isolda, and the words used by the Lord Justice General do seem to us to imply that he must have taken that meaning from the words, even though there was other information before the court to the effect that the tracking device had been removed from the vessel before it was inspected by the defence. We do not have any record of the Court's reasons for refusing the appellants' motion on 24 January and therefore do not know what view the court may have taken of the significance of the possible error. In the circumstances, it seems to us that this part of the appeal must be approached on the basis that there may well have been a misunderstanding on the part of the appeal court which heard Hoekstra No. 5.
40. The question which then arises is whether we should reconsider the decision in Hoekstra No. 5. It appears that on 24 January 2001 the court did, as the ground of appeal states, refuse to reconsider the point and that the question whether it was competent to reconsider it was at least one of the matters placed before the court. In the present appeal however it was argued that in terms of the Convention it was necessary for the court to consider overall whether the appellants had been denied a fair trial and that that consideration should be carried out without regard to any limitations placed on the powers of an appeal court under domestic law. We do not necessarily accept that that proposition has been established in its full width. There is, however, undoubtedly something unsatisfactory in refusing to reconsider a decision which contains an error. In the particular and unusual circumstances of this appeal we are prepared to look again at the decision for the limited purpose of deciding whether the error, which must be assumed to have been made, is capable of affecting the outcome.
41. The answer to that question is not, in our view, in any doubt. While the appellants' representatives did not have access to the tracking device before the trial, they were, as the course of the proceedings narrated above shows, well aware of the existence of the device and were in a position to ask questions about it. They had the opportunity, therefore, to investigate the question whether the information now sought could have been obtained and whether there were any records which might assist them. They chose to explore the matters relating to the device only to the limited extent and for the limited purpose already discussed. In these circumstances, the decision that the evidence could not constitute new evidence was not affected by the error and was in our view correct.
42. The position in regard to the appellants' submission based on the Convention is the same. It brings us back immediately to all the questions discussed in connection with ground 3, namely the manner in which the question about the records, if any, relating to the tracking device arose, the course pursued by the representatives of the appellants at the trial and the materiality and consequences of the evidence in relation to the tracking device. All these questions have already been considered and the reasoning which we have already held to defeat the argument that there has been a miscarriage of justice or a breach of Article 6 applies equally in the present context. This ground of appeal is merely another way of approaching the question, which we accept to be one of the essential questions in this case, whether the fact that records of any information obtained from the tracking device were not made available either to the Crown or to the defence materially affected the fairness of the trial. In our view, there is no reason to think that it has.
43. We would add that it seems to us that there has never been anything in the evidence heard which supports the proposition that the tracking device did, or could, provide information which would be of any assistance in regard to the issue of the proximity of the two vessels and the length of time over which that proximity existed. Nothing has been placed before this court in the way of technical information to support the submissions made. The assertion that records made from the device could be of any relevance or assistance is merely an assertion.
44. Dr. Sjöcrona also submitted an argument to the effect that the court's failure to consider the particular heads under which the documents had been sought in the specification considered in Hoekstra No. 5 amounted to a denial of a fair trial. Dr. Sjöcrona did not suggest that the court were wrong in saying that he had not dealt with the individual heads one by one, but he said that he had put the considerations relating to the legal framework and justification for the petition and its cause from a Strasbourg point of view and that the court's failure to consider the calls individually was contrary to Article 6. Again, however, the answer is the same. If Dr. Sjöcrona's expectation was that, even without detailed submissions on particular heads of calls, the court would consider each of them for itself, there is nothing which has been pointed to which suggests that any different answer should be given in regard to the question of the fairness of the trial from that which we have already indicated.
45. For all these reasons, ground of appeal 9 is also, in our opinion, without foundation.
46. Part of a devolution issue minute of September 2001 raises essentially the same question under the form of an argument that the Lord Advocate had no power to take the stance that he did at the hearing on the petition to the nobile officium, namely that section 124 of the 1995 Act prevented any reference back to another court, even though there was a dispute as to the factual basis of the decision in Hoekstra No. 5. It was suggested that if the Lord Advocate had made it clear to the court that it had not been intended to lead the court to believe that the defence had had access to the tracking device before the trial, then that might have led the court to take a different view on the question of the applicability of the nobile officium. Once again, it appears to us that this line of argument is simply another way in to the essential question whether anything has occurred which amounts to an unfair trial or a miscarriage of justice and for the reasons already given we do not think that this argument has any better success than the others which we have considered.

Ground of Appeal 5

47. This ground of appeal has its origin in an objection which was taken on behalf of the appellants, during the course of the trial, on 17 December 1996, during the evidence of Geoffrey Keith Pitts, an officer of the Customs & Excise working in the National Investigation Service. The argument in the appeal was different, in a material way, from the argument at the trial. In both cases, however, the object of the submission was to show that the Isolda had been detained in the purported exercise of statutory powers, but that the necessary conditions for the exercise of those powers did not exist.
48. Mr. Pitts testified that on 29 July 1996 he had been on duty on board a Customs vessel known as the Searcher in the afternoon of that day, along with the Commander of the vessel, a Mr. Pratt. At the material time this vessel had been situated in international waters. The witness had observed another vessel ahead of the Searcher, a white-hulled ketch. The vessel Searcher had been tracking the ketch for some time. Information had been received by radio concerning the location of the ketch. An instruction was received on board the Searcher concerning the ketch. The instruction was that the Searcher was to apprehend the ketch, having stopped it.
49. Following the receipt by the Searcher of this instruction, the witness was present with Mr. Pratt when radio contact was made with the ketch. Mr. Pratt had issued a challenge to the ketch. Crown label production 22 was a small audio tape which had been used to record the challenge issued by the Commander of the Searcher. Subsequently a transcript of that tape was prepared and was available. Thereafter the witness was asked whether the challenge had been given in terms of a particular Act of Parliament. He replied that he had understood that it was based upon the provisions of the Criminal Justice (International Co-operation) Act 1990; that had been the basis on which the challenge had been issued to the vessel concerned, the name of which was the Isolda. Thereafter this witness gave detailed evidence concerning the terms which had been used by Commander Pratt in making the challenge. He had said inter alia:

"I am an authorised enforcement officer under the United Nations Convention against illicit drugs trafficking in narcotic drugs. I am ordering you to stop and make ready for a boarding party. ..."

Thereafter the vessel Isolda had stopped. The witness then described how a boarding party had gone on board the Isolda and, sometime later, returned to the Searcher in company with a male person. A second male person was subsequently brought on board the Searcher from the Isolda. Thereafter a question was asked seeking details of the identity of the person or persons who had been brought from the Isolda, at which point objection was taken to the line of evidence. The nature of the objection and the subsequent submissions made in relation to it appear from page 8 in the transcript of proceedings for 17 December 1996 and in the transcript of proceedings for 18 December 1996. In summary, the argument at the trial was that the Crown were unable to prove by admissible evidence that the Isolda was in fact a British registered vessel or that it was in international waters at the time of boarding. On 19 December 1996 the objection was repelled by the trial judge and the evidence of Geoffrey Keith Pitts was resumed. The reasons given by the trial judge for his decision are to be found in the first transcript of proceedings of 19 December 1996. The evidence on which the Crown relied to show that the Isolda was a British registered ship is set out below. The resumed evidence of Mr. Pitts is to be found in the second transcript of proceedings of that date.

50. When ground of appeal 5 was the subject of argument before us, the arguments deployed in support of it were materially different from those which had been deployed before the trial judge and, indeed, to some degree, inconsistent with the terms of the ground of appeal itself. Counsel for the third named appellant, who was responsible for arguing this particular ground of appeal, pointed out that the enforcement powers conferred by the Criminal Justice (International Co-operation) Act 1990 were set forth in Schedule 3 to it. Section 20(1) of the Act provides:

"The powers conferred on an enforcement officer by Schedule 3 to this Act shall be exerciseable in relation to any ship to which section 18 or 19 above applies for the purpose of detecting and the taking of appropriate action in respect of the offences mentioned in those sections".

The particular powers which appeared to be relevant to the circumstances of this case were to be found in paragraphs 2(1) and 4 of Schedule 3.

51. Paragraph 2(1) provides:

"An enforcement officer may stop the ship, board it and, if he thinks it necessary in the exercise of his functions, require it to be taken to a port in the United Kingdom and detain it there."

Paragraph 4 provides:

"If an enforcement officer has reasonable grounds to suspect that an offence mentioned in section 18 or 19 of this Act has been committed on a ship to which that section applies, he may

(a) arrest without warrant any one whom he has reasonable grounds for

suspecting to be guilty of the offence; and

(b) seize and detain anything found on the ship which appears to him to be

evidence of the offence."

Section 19 of the Act of 1990 provides as follows:

"(1) This section applies to a British ship, a ship registered in a state other than the United Kingdom which is a party to the Vienna Convention (a 'Convention State') and a ship not registered in any country or territory.

(2) A person is guilty of an offence if on a ship to which this section applies, wherever it may be, he-

(a) has a controlled drug in his possession; or

(b) is in any way knowingly concerned in the carrying or concealing of a

controlled drug on the ship,

knowing or having reasonable grounds to suspect that the drug is intended to be imported or has been exported contrary to section 3(1) of the Misuse of Drugs Act 1971 or the law of any state other than the United Kingdom."

It was submitted that the effect of the foregoing provisions was that, before an enforcement officer could act in terms of paragraph 4 of Schedule 3 to the Act of 1990, he had to have pre-existing knowledge of reasonable grounds to suspect that an offence mentioned in sections 18 or 19 of the Act had been committed on a ship to which that section applied. Because of the way in which section 19(2) of the Act was worded, that pre-existing knowledge of reasonable grounds to suspect extended to the issue of whether the ship concerned was one to which section 19 applied.

52. Counsel submitted that the present case had proceeded upon the basis that the Isolda was in fact a "British ship", upon the basis that it was registered in the colony of Gibraltar, a relevant basis for such a categorisation. However, it was clear that the existence of that fact, so far as the enforcement officers were concerned, had emerged only after the Isolda had been stopped and searched. There appeared to have been four pieces of evidence which were capable of demonstrating the fact. These were, firstly, the appearance of the words "Isolda Gibraltar" on the stern of the vessel, secondly, the finding of a red ensign in a locker on board the vessel, thirdly, the recovery of the log book pertaining to the vessel, which demonstrated Gibraltar registration, and fourthly, a receipt for mooring charges found on board the vessel. The fact was, submitted counsel for the appellants, that a decision had been made to stop the vessel and to undertake the procedure which was subsequently followed before those responsible had knowledge giving rise to reasonable grounds of suspicion. At this point in the argument reference was made to the evidence of Mr. Pitts, to which we have already referred. It was submitted that the officers concerned had given no thought as to the nature and extent of their powers before acting. The enforcement officers ought to have made some attempt to discover the nature and extent of their authority before action was taken. In particular, the arresting officer could have examined the name or designation appearing on the vessel itself. He could have hailed the vessel and sought identification of it. There was in fact no evidence relating to the appearance of the vessel before arrest, whatever might have been able to be seen.
53. In connection with the foregoing submissions, reference was made to Leckie v. Miln 1982 S.L.T. 177, which, it was submitted, showed that any officer purporting to exercise legal powers required, before doing so, to consider the nature and extent of his authority. That case had been concerned with the admissibility of evidence concerning the product of a search conducted by two police officers of the house of a suspect. The officers had learned from their Inspector that the suspect had been arrested on petition on a charge of "sneak theft". That was all they were told. They were then instructed by the Inspector to go to the suspect's house and search it, which they proceeded to do. They had not seen the petition, were completely unaware of the nature of any charge in that petition save to the extent that it was a charge of theft of the "sneak theft" variety, did not know at all what articles had been stolen and did not have the petition in their possession containing the warrant to search when they went to the suspect's house. The Crown had argued that authority for a search of the suspect's premises had in fact existed, having been granted upon the petition. The Court had decided that the search conducted had not been carried out within the authority contained in the warrant, of which the officers had been ignorant; it had been a random search of the suspect's house in the hope of finding something which might conceivably have been the proceeds of a "sneak theft" anywhere. The subsequent conviction was quashed. Thus an enforcement officer required to know the extent of his authority when he acted. That had not been the case here. Accordingly, the fruits of the search had been unlawfully obtained and the objection to the line of evidence had been wrongly repelled.
54. In reply, the Advocate depute invited us to reject this ground of appeal. The position was that the stopping and searching of the Isolda had been carried out under the powers conferred by the Act of 1990, as explained by Mr. Pitts in his evidence. The submission made in support of the ground of appeal appeared to be that Mr. Pitts and his colleague had made a decision to stop the vessel without considering their powers. That was not the case. Looking at the evidence in the case, there was reason to suppose that Mr. Pitts and his colleague had had reasonable grounds to suspect that the Isolda was a "British ship", for the purposes of the legislation concerned. In particular the word "Gibraltar" appeared on the stern of the vessel on close proximity to which Mr. Pitts had been. That circumstance would give rise to a reasonable inference that the vessel was in fact registered in that British colony. However, the Crown was prepared to submit that the lawfulness of the boarding of the vessel was dependent upon a verifiable fact, which could be ascertained after the boarding as well as before. That fact was that the vessel was a "British ship". There was no dispute that that was in fact the position. In any event, the Crown were entitled to rely upon paragraph 8 of Schedule 3 to the Act of 1990, which provided:

"An enforcement officer shall not be liable in any civil or criminal proceedings for anything done in the purported performance of his functions under this Schedule if the Court is satisfied that the act was done in good faith and that there were reasonable grounds for doing it."

This provision would cover the making of a genuine mistake. However, the primary submission was that the enforcement officers did consider their powers and acted with reference to them. Accordingly, the case of Leckie v. Miln could be distinguished. Mr. Pitts had in fact made reference to the Act of 1990 in his evidence, as the basis for the action taken. At no stage, either before or after the discussion of the objection, was he questioned further about that matter. It could properly be implied from the evidence which he gave that he had had the necessary reasonable grounds for suspicion. The final position adopted by the Crown was that it was accepted that section 19(2) of the Act had the effect of requiring that the "reasonable grounds to suspect" embraced not only the commission of an offence but the qualification of the ship. On the assumption that the position of the Crown on the whole matter was unsound, any irregularity in the procedure was excusable on the principle of Lawrie v. Muir 1950 J.C. 19. The question of whether any given irregularity ought or ought not to be excused depended, in each case, upon the nature of the irregularity and the circumstances in which it was committed. In the present case, if it were to be held that the enforcement officers did not have the necessary reasonable grounds to suspect in relation to the categorisation of the ship, the consequent irregularity ought to be excused, because it was not disputed that in fact the ship was a British ship. Accordingly, the irregularity was of a highly technical nature.

55. At the outset, we would comment that it is unfortunate that this ground of appeal, as stated in the grounds of appeal, is by no means closely related to the arguments which were deployed before the trial judge when the objection under consideration was taken. Furthermore, it is equally apparent that the arguments deployed before us were not closely related to this ground of appeal as stated in writing. In these circumstances, we intend to proceed upon the basis of the arguments which were addressed to us.
56. At different stages of the argument before us, the position taken up by the Crown changed. At first, it was argued that the lawfulness of the boarding and subsequent procedures depended upon a verifiable fact, which could be ascertained after the boarding had occurred, that is to say the fact that the Isolda was a "British ship". As to that, it was said that there was no dispute, the Isolda being registered in the British colony of Gibraltar. However, during the course of the argument, and following interchanges with the Court, the Advocate depute's position altered. It was ultimately accepted that the legislation concerned had the effect that the "reasonable grounds to suspect that an offence mentioned in section 17 or 18 of this Act had been committed", referred to in paragraph 4 of Schedule 3 to the Act of 1990, embraced the matter of the registration of the ship, on account of the terms of section 19(2) of the Act. In our opinion, that interpretation of the relevant provisions of the Act of 1990, which was advanced by counsel for the appellants is sound. In our view, the terms of section 19(2) and, in particular, the words "...guilty of an offence if on a ship to which this section applies,..." a person does certain things there defined, have that effect. In short, the definition of "an offence" to be found in this sub-section includes reference to "a ship to which this section applies". Accordingly, we proceed upon the basis of that approach to the statutory language. Furthermore, we recognise the principle which was applied in Leckie v. Miln, to the effect that law enforcement officers cannot be treated as acting under and in terms of legal powers of which they are, at the time in question, ignorant and heedless.
57. However, against the foregoing background, we have not been persuaded that it has been shown that the action taken by the enforcement officers at the time of the stopping and boarding of the Isolda was unlawful. The evidence which was given by Mr. Pitts, which we have narrated above, indicates clearly that the enforcement officers concerned had applied their minds to the question of the powers available to them and that they considered that they were acting in terms of them, in particular under the provisions of the Act of 1990. At no stage in the evidence of Mr. Pitts was he challenged in any way on that matter. In particular because of the way in which the objection was taken and the point argued at the trial, Mr. Pitts was never asked whether he had applied his mind to the question whether the Isolda was a British ship. We consider it reasonable to take the answer which he did give about his view of the powers under which he was acting as implying that he had applied his mind to the point. In these circumstances, we consider that it can properly be inferred that there was no irregularity involved in the conduct of the matter. We pause to observe, in that connection, that there was evidence in the form of the writing on the stern of the vessel Isolda indicating that Gibraltar was the port of registration, which was no doubt open to observation by the enforcement officers.
58. In any event, we understood that there was no dispute that the Isolda was in fact a "British ship" at the material time, by virtue of having been registered in the British colony of Gibraltar. If, contrary to our view irregularity was involved in the steps which were taken, we consider that, in these circumstances, that irregularity would be excusable, as being of a highly technical nature, in terms of the principles set forth in Lawrie v. Muir. Accordingly we are of the opinion that no miscarriage of justice has been shown to arise out of the terms of this ground of appeal.

Ground of Appeal 2

59. The background to this ground of appeal is that, as we have observed earlier, the Crown led forensic evidence with a view to linking the cannabis resin found on the Ocean Jubilee to the Isolda and her crew. Very soon after the detention of the vessels, the Isolda was inspected by a forensic scientist, Rosalind Mary Brown, who prepared a report which was lodged, and gave evidence. The essential part of her evidence for this purpose was that she had found hessian fibres marked with red, yellow and white paint on the Isolda which matched the fabric used to wrap the resin found on the Ocean Jubilee. She also said that there was no other source for the fibres on the Isolda. The first appellant, however, said in his evidence that such fibres might have come from the backing material of carpet on board the Isolda and that there were pots of paint on the vessel which might account for the paint markings.
60. In the written grounds of appeal, the issues relating to the forensic evidence are linked to issues relating to an inspection of the Isolda and of a warehouse in which the Ocean Jubilee and its cargo were stored during the trial. The position in regard to this ground of appeal is somewhat confused because it brings together a number of matters which might be regarded as distinct. The written ground No. 2, as it appears in the consolidated grounds of appeal involves (i) an allegation that part of the trial, namely the inspection, took place outwith the presence of the appellants (ii) an allegation that in referring, as he did, to the smell of cannabis resin in directing the jury, the trial judge must have been treating as evidence in the case something whose only source could be in the inspection; (iii) an allegation that objects, in particular carpets and pots of paint, which were capable of providing an explanation for the forensic findings were on board the vessel and were seen by representatives of the defence but were not on board at the time of the inspection, or at least that the defence were unable to satisfy themselves that they had been there; and (iv) that the Advocate depute improperly cross-examined the first appellant by suggesting to him that there was no alternative source for the fibres when he knew or should have known that there was such a source. At the outset of his submissions however counsel who presented this ground made it clear that he would not be submitting that part of the trial had taken place outwith the presence of the appellants. In addition, there was never any evidence before the court at the trial and there was no attempt during the appeal to present any to the effect that any defence representatives had seen on board the Isolda the carpets or pots of paint referred to. In these circumstances, it became at times difficult to understand what the submission for the defence actually was.
61. The issue of the inspection by the jury of the vessel, along with certain other items which were present at Rosyth Docks, was raised during the course of the trial, on 23 December 1996. Counsel for the appellants submitted that, at pages 19C - 20D of the transcript of proceedings relating to that date, it was apparent that the trial judge did not intend to permit either the accused themselves, or their representatives, to inspect the vessel at the same time as the jury. The significance of this was said to be that the defence representatives had been denied the opportunity to satisfy themselves that all items present on the vessel at the time of its interception were still present and would be seen by the jury. The formal instructions of the trial judge to the jury on the day of the inspection were recorded in the transcript of proceedings at the trial for 30 December 1996. At pages 5C - 6D, the trial judge had told the jury that they were going to see the vessel only. The visit was not an investigatory exercise. The purpose of it was to enable the evidence which the jury did hear to be rendered more comprehensible to them than otherwise would have been the case. He also had indicated to the jury that they were at liberty to ask themselves what they were seeing and also to talk about the case amongst themselves. However, he directed them that they should not engage in conversation between themselves and anyone else who was on the visit. These instructions by the trial judge, argued counsel for the appellants, were open to criticism. It was "unorthodox" for a jury to discuss a case among themselves as it proceeded. The trial judge had encouraged them to speculate among themselves as to the state of the evidence. However, in answer to a question by the court, counsel for the appellants agreed that there was nothing untoward about the inspection per se, although the defence representatives had expected they themselves would have had an opportunity to be present.
62. Again, in answer to a question by the court, counsel for the appellants submitted that the state of the vessel at the time of the jury's inspection had been different from its state at the time of its interception. In this connection he referred to the evidence of Rosalind Mary Brown, a forensic scientist who gave evidence on behalf of the Crown on 20 January 1997. Reference was made to pages 4, 80, 81 and 113 of the transcript of proceedings of that date. It was considered that, as regards carpeting and yellow paint, there had been some changes in the state of the vessel. The carpeting had not been present on the vessel at the time of the inspections by Rosalind Mary Brown. The cross-examination by the Advocate depute of the first-named appellant on 29 January 1997 had prejudiced him. It was contended that his credibility had been damaged to a substantial degree by this line of questioning. This aspect of the appellant's complaint was focused in this ground of appeal. It was pointed out, in connection with the issue of the state of the vessel, a production, that section 68(3) of the Criminal Procedure (Scotland) Act 1995 had been founded upon by the Crown. However, the label in lieu of the vessel, Crown Label Production 323 had been the subject of a notice under section 67 of the Act of 1995 and accordingly section 68(3) of that Act could not have application.
63. Counsel for the appellants next referred to William Turner Davies, Petitioner 1973 S.L.T. (Notes) 36 at page 37. That case showed that productions in a criminal prosecution remained in the control of the court and that, given appropriate safeguards, there was no reason why the defence should not have the same facilities as the prosecution to make an inspection and examination of a production in any case. In the present case the defence had been denied access to the vessel at the time of the jury inspection. In answer to a question by the court, counsel for the appellants accepted that the Crown expert, Rosalind Mary Brown, had not been questioned specifically about the carpet as a possible source of fibre; however she had been questioned generally regarding sources of jute. The forensic science report by Rosalind Mary Brown, Crown Production 211, contained a schedule of items taken by her from the vessel to the forensic science laboratory. The defence had assumed that the carpet, which was the focus of attention, would have been returned for the purposes of the jury's inspection. Counsel for the appellants next referred to Aitken v. Wood 1921 S.L.T. 124, a case in which a conviction was quashed because magistrates had taken evidence in the absence of an accused person. However, he recognised that the significance of that case in the present context had been undermined by the concession made at the commencement of his submissions on this ground of appeal. He also appeared to rely upon Brims v. MacDonald 1994 S.L.T. 922, a case in which a sheriff's unaccompanied inspection of a locus was held to have amounted to the taking of evidence outwith the presence of the parties. However, once again, counsel for the appellants recognised that he had specifically conceded that it was not part of his submission that part of the trial had been conducted outwith the presence of the appellants. Nevertheless, he submitted that demonstrable prejudice had been done to the appellants by the terms of the trial judge's decision in relation to the jury inspection.
64. In reply, the Advocate depute pointed out that counsel for the appellants, in connection with this ground of appeal, had concentrated on the circumstance that neither the appellants, nor their legal representatives had had access to the vessel on the occasion of the inspection by the jury. In order to decide whether this complaint had any force, it was necessary to consider the basis upon which that inspection had taken place. The proposal to allow the jury to inspect the Isolda had been fully debated by counsel for the appellants and the Advocate depute before the trial judge on 23 December 1996. There had been a full discussion, involving all parties, regarding the arrangements which had to be made for the inspection and as to what could and what could not happen. It was submitted that in consequence of that discussion, the arrangements which were made and put into effect had been agreed by all parties. Furthermore, the submissions of counsel for the appellants in the present appeal indicated that he was under a serious misapprehension as to the purpose of the visit itself. The purpose of the visit was not to take evidence or to enable the jury to make enquiries into the evidence of their own. On the contrary, the purpose was to enable the jury to see the vessel, so that they might the better understand the evidence which had been given and would be given in the trial concerning it. In any event, it was recognised that the physical size and configuration of the vessel were such that only a very limited number of persons could board it for inspection at one time. In particular, it had been considered that only five jurors, together with the macer and the clerk of court, could do so. The matter of the presence of the accused on the vessel on that occasion had been the subject of discussion at page 20 of the transcript of the proceedings relating to 23 December 1996, but was never raised again, nor was the alleged need for the presence of the accused on the vessel at the same time as the jury insisted upon. In effect, no objection had been taken to the arrangements which had been settled by the trial judge. The arrangements for the provision of an opportunity for a jury to inspect a locus or production was a matter within the discretion of the trial judge. It had been recognised that the purpose of such an inspection was not to enable a jury to take evidence for themselves, as appeared from Sandells v. H.M. Advocate 1980 S.L.T. (Notes) 45 at page 46. To the extent that this ground of appeal proceeded on the basis that the jury might have been making examinations of evidential features of their own, it was not well founded.
65. Counsel for the appellants had gone on to deal with the matter of a jute-backed carpet, which was submitted to have been of significance. The only source of information on which counsel for the appellants had relied for a suggestion of interference with the carpet was a visit by the appellants' legal representatives to the Isolda in December 1998. No question of there having been any interference with the vessel or its equipment was raised during the trial. One of the productions in the trial had been a book of photographs, Crown Production 235, which contained a series of photographs of the vessel in question, which had been taken on 30 July 1996. Certain of these photographs showed carpeting in the cabin of the vessel. Defence counsel and solicitors had visited the vessel prior to the trial. In particular there had been visits on behalf of the defence on 18 September, 15 October and 27 November 1996. Forensic scientists for the defence visited the vessel on 22 November 1996. These persons had appeared in a list of defence witnesses for the second named appellant and two reports from them had been produced, although not referred to. A third forensic scientist, instructed on behalf of the first named appellant, had also produced a report dated 21 November 1996, which had not been lodged. That forensic scientist had met with the Crown expert, Rosalind Mary Brown, and had questioned her in depth concerning the report prepared by her and a colleague. Given this background it was inconceivable that, at some later stage, items of significance would have been removed from the vessel. The fibres on which the Crown relied had red, yellow and white paint on them. The evidence of Rosalind Brown was that there was no source for those fibres other than the bales. The assumption underlying the appellants' argument appeared to be that carpets were removed and later returned to the vessel in 1998. That was ridiculous and defied common sense. There remained no explanation for the fibres associated with paint, other than that advanced by Rosalind Mary Brown, whatever might be said regarding ropes and jute-backed carpets. A production list had been prepared by the Customs and Excise, and Rosalind Mary Brown had prepared a schedule of items taken into possession from the Isolda, dated 30 July 1996, which was Crown Production 227. The items referred to therein included a sample of carpet from the forward cabin, ropes, vacuum cleaned debris, etc. In this connection reference was made to the last page of the Crown forensic science report.
66. In short, in view of the foregoing background, there was no substance whatever in this ground of appeal. It was apparent that the appellants' advisers had not properly addressed the matter. The ground of appeal appeared to be based on unjustified suspicion or supposition that what was seen in December 1998 had not been present on the vessel at the time of the jury's visit. There was no substance in the allegation that, in some way, evidence had been tampered with. While it was true that, in the cross examination of the first-named appellant, at page 27 of the transcript of proceedings of 29 January 1997, the Advocate depute questioned that appellant concerning his evidence about the carpet, there was in fact no mention in Rosalind Mary Brown's evidence as to whether any carpet was jute or foam-backed. That witness concentrated on the fact that there was no source other than that postulated to explain fibre in association with red, yellow and white paint. It was never suggested to her in cross-examination that the source of those fibres could be jute-backed carpet. In any event, it could be seen from photographs 25 and 26 of the book of photographs of the vessel that the carpet appeared to be foam-backed.
67. As regards a separate point that a label in lieu of the vessel had not been lodged timeously and accordingly the provisions of section 68 of the Act of 1995 had no application to it, the Advocate depute submitted that no objection had been taken at the trial to any reference being made to the vessel itself. Accordingly, in terms of section 118(8) of the Act of 1995 the matter could not now be raised. In this connection reference was made to McGinley v. H.M. Advocate 2001 S.C.C.R. page 47 and to MacNeil and Others v. H.M. Advocate 1986 S.C.C.R. 288.
68. In assessing the arguments which were deployed on behalf of the appellants in support of this ground of appeal, in our opinion, it is of importance to understand the basis upon which the examination by the jury of the vessel Isolda, the vessel Ocean Jubilee and the items alleged to have been taken from the latter vessel took place. On 23 December 1996, during the course of the trial, there was an extensive discussion involving the Advocate depute, counsel for the accused and the trial judge concerning the proposal that there should be an examination of the vessels and items mentioned. The matter was raised by the Advocate depute, there having been previously some discussion about the possibility of such a visit. He had invited the trial judge to canvas with counsel the procedure for such a visit. At that stage it was indicated that, having regard to the size of the vessel Isolda, it would not be feasible to have more than five jurors on the vessel at any one time. Accordingly, the suggestion made was that the jury should view the vessel in groups of five accompanied by the clerk of court and the macer. So far as the Ocean Jubilee was concerned, similar difficulties did not exist, since that vessel was not in the water, but accommodated in a large warehouse building. Following on the raising of the proposal, the trial judge expressed concern relating to the matter of conversation involving members of the jury. Thereafter there was a discussion about the proposed visit, involving all counsel. In the course of the discussion, the view was expressed that jurors should not be permitted a completely free rein to look inside cupboards and compartments. The trial judge plainly took the view that the jury should not be allowed to conduct investigations of their own. In the course of the discussion, at page 19 of the transcript of proceedings of 23 December 1996, the trial judge expressed the view that the purpose of the visit was not for counsel or their clients to see the vessel or parts of them, but to enable the jury to see them. That view was apparently accepted by all concerned. It was also a matter of agreement that the jurors would be free to talk amongst themselves, but not to listen to or engage in conversation with any other persons. At the conclusion of this discussion, there was no objection taken to the arrangements which had been proposed.
69. On 30 December 1996, the court was convened in the presence of the jury, when the trial judge explained to them that arrangements had been made for them to see the two vessels and items alleged to have been taken from one of them. The Advocate depute then explained in detail the practical arrangements which had in fact been made. These included the arrangement that the jury would be invited to view the Isolda in groups of five, the size of the vessel making it difficult for any larger party than that to see round it comfortably. They were to be shown around the vessel by the court's macer. Then they were to be afforded the opportunity of seeing the Ocean Jubilee in the premises in which it was contained. Thereafter there would be the opportunity to view the items said to have been removed from the Ocean Jubilee. After these practical arrangements had been outlined the trial judge then explained to the jury what was about to take place. In the course of his remarks he said this:

"We are going to look at site objects but it is also a site visit. We are just going there to see, we are not going to hear anything told to us that will be part of the case. Do you follow what I mean? So it is not an investigatory exercise, it is just an exercise in having a look, so that the evidence as yet to come will be more understandable to you. I have made arrangements, as the Advocate depute said, that you will be conducted on your visit by Mr. Todd who is the court macer and he is an officer of the court and he will direct you as to what you can see and what you can't see and that is under my direction. You are perfectly free in the course of the visit to talk amongst yourselves and just pause for a moment because it is quite important. You can ask yourselves what is this we are looking at, what is it we are seeing and it really comes back to what I said at the outset of the case, you are perfectly free to talk about the case amongst yourselves. What is important is that there is no conversation between you and anyone else who is on this visit and I am really not talking to you at the moment - or - I am talking to everyone else in the court on this visit, that there has to be no conversation about what you see, about what you might overhear. Feel free to talk amongst yourselves, what you are looking at and what it amounts to and so on and that is your function. Mr. Todd can overhear it, of course, that is no problem but do not be party to any conversation that takes place amongst anyone else."

70. Having regard to the purpose of the inspection, explained in the trial judge's remarks to the jury just quoted, and to the arrangements made for it, we are of the opinion that there was nothing objectionable in the way in which the inspection was arranged or conducted. It was plainly a matter within the discretion of the trial judge as to whether there should be such an inspection by the jury and what arrangements should be made for it. We do not consider that the trial judge's exercise of that discretion can be criticised. It was made absolutely plain to the jury that the inspection was not an "investigatory exercise" in which evidence would be gathered; it was an exercise to enable the jury to have a look at the vessels and articles involved in the case, so that the evidence would be more comprehensible to them. In our opinion that was a perfectly legitimate purpose.
71. Something was made in the argument before us of the fact that the arrangements made for the jury's inspection did not allow for the presence of the accused and their legal advisers in the immediate vicinity of the jury as they carried out their inspection. It was said that this denied to them the opportunity to satisfy themselves that all items present in the vessels at the time of their interception were still present. While that might be so, it appears to us to be beside the point. Because the exercise was not an "investigatory exercise" in which evidence was being gathered, that appears to us to be a matter of no importance. Throughout the investigation of the case, it is quite plain that the accused and their advisers had had the opportunity to conduct inspections of their own of the vessels and the items involved and indeed to have them examined by appropriate experts, which they did. In these circumstances we fail to understand how it can be suggested that prejudice of any kind was suffered by them on account of the fact that they were not permitted to be on board the Isolda at the time when it was being viewed by groups of jurors.
72. During the course of the submissions in support of this ground of appeal, at one stage it was suggested that there was some impropriety in the trial judge's decision to allow the jurors to discuss the case and what they were seeing among themselves at the time of the inspection. It was said that this constituted an encouragement of speculation. In our view there is no merit whatever in this submission. It is a matter of every day occurrence that jurors are permitted, once they have been empanelled, to discuss among themselves the case in which they are sitting as jurors. Indeed, it would hardly be practicable for any attempt to be made to prevent them from doing so. In any event, it is invariable practice for jurors to be told that their verdict must be based upon the evidence which they have heard in the case and not upon speculation or conjecture.
73. It appeared to us that much of the argument in support of this ground of appeal was based upon the suspicion that, in some respects, the state of the vessel Isolda had been deliberately and surreptitiously altered prior to the viewing of the vessel by the jury, to the prejudice of the appellants. We have not been able to discern any factual or evidential basis for that suspicion. In any event, when it is understood that the viewing of the vessel by the jury was not an "investigatory exercise", but merely an opportunity for them to view a vessel so that they might the more readily understand the evidence relating to it, we do not see how any prejudice or injustice could be suffered by the accused even upon the basis that the suspicion was correct. No suggestion that any possible source of relevant fibres had been removed from the Isolda was made at the trial. The appellants have not sought to introduce any new evidence at the appeal in order to establish that any items were removed from the Isolda or that there was a source or sources of relevant fibrous material on the Isolda which had not been taken into account by the Crown forensic scientists. The only evidence that there was a possible alternative source for fibres was that given by the first appellant.
74. In any event, as is apparent from the report of Rosalind Mary Brown, the gravemen of the Crown case in relation to vegetable fibres was that the fibres found were associated with red, yellow and white paint and matched similar fibres from the material used to wrap the bales seized from the Ocean Jubilee. These fibres thus demonstrated the presence of bales of the controlled drug on the Isolda. According to Rosalind Mary Brown, there was no other source on the Isolda for the fibres associated with such paint. That, and the evidence of the first appellant, was all the evidence before the jury on this point. Against the background, it is difficult to see what evidential relevance such fibres not associated with such paint might possess. Yet the assumption underlying the appellant's submissions in relation to this ground of appeal seems to involve there being significance in the sources of such fibres alone.
75. As regards the Advocate depute's cross examination of the first named appellant on 29 January 1997, having examined that passage in the Advocate depute's cross-examination of that appellant, we cannot agree that it was prejudicial. Its purpose appeared simply to be to elicit from him the basis for the suggestion that the fibres which were regarded as of significance might have come from some source other than that suggested by the Crown. In any event, if, as suggested in this particular ground of appeal, there was thought to be some impropriety in that part of the cross-examination of the first named appellant, then, no doubt, that part of his questioning could have been objected to. It was not.
76. In the whole circumstances we have reached the conclusion that there is no merit in this ground of appeal. For the avoidance of doubt, we should say that, to the extent that this ground of appeal contains certain criticism of the trial judge's charge to the jury, we shall deal with that matter when considering the other criticisms made of the charge.

Ground of Appeal 6

77. Submissions were made under this ground of appeal in relation to alleged misdirections by the trial judge under these headings. Firstly, it was submitted that he had misdirected them in fact by misleading them in regard to the evidence in two particular respects namely the smell of cannabis resin, a point on which there was no evidence, and the period of time for which the Isolda and the Ocean Jubilee might have been in contact. Secondly, he had misdirected the jury in law by failing to give adequate directions as to how the jury should treat the prosecution evidence in regard to the surveillance of the vessels, having regard to the way in which evidence in regard to the tracking device had come out. Thirdly, he had failed to present the defence case adequately to the jury, with the result that the charge was heavily weighted towards the Crown.
78. Dealing firstly with the alleged misdirections in fact, it was submitted that a trial judge had a duty in regard to his references to the evidence in his charge. In that connection reference was made to Shepherd v. H.M. Advocate 1996 S.C.C.R. 679, particularly at pp. 684 to 686. In the present case, it was accepted that the trial judge had said several times that the jury ought to proceed upon the basis of their own recollection of the evidence and not his. However, such a direction would not necessarily eliminate the effect of a material error on the part of the trial judge in relation to the facts. Furthermore, his observations on a matter of fact might be so frequent that the jury might be diverted from proceeding on the basis of their own recollections. In the present case there had been certain misrepresentations of fact by the trial judge which were of a material nature and which, it was submitted, had led to a miscarriage of justice. Reliance was also placed upon Larkin v. H.M. Advocate 1988 S.C.C.R. 30, at page 35. This case showed that there were limits to the effect of a direction that a jury should proceed on the basis of their own recollection. That had also been recognised in Hunter and Others v. H.M. Advocate 1999 S.C.C.R. 73, which concerned the appeal of a former co-accused.
79. Turning to particular matters, upon which it was submitted there had been misdirections in relation to the facts, counsel drew attention to, firstly, the observations of the trial judge, during the course of his charge, on 19 February 1997 at pages 2 and 3 of the transcript relating to that date. In that part of the charge he referred to reasons why each of the crew of the Isolda must have known of the presence of the cargo of cannabis resin on board. They included a reference to the smell of the cargo. This passage in the charge was a reflection of what had been said by the Advocate depute in his speech on 11 February 1997 at page 42 of the transcript of the proceedings of that date. The only basis for that part of his contention was what might have been gleaned by the jury from their inspection of the cannabis at Rosyth. Yet the cannabis had by then been partially burned and was soaked in diesel fuel. It was submitted that there was no basis for this part of the Advocate depute's contention and that the trial judge ought to have pointed that out to the jury. Secondly, it was submitted that a further fatal misdirection of fact by the trial judge had occurred in relation to the alleged convergence of the vessels. This matter had been discussed by the trial judge at page 6 of the transcript of his charge relating to 19 February 1997. It was submitted that the source of the suggestion that there had been a convergence lasting "for about 23 minutes" was unclear. The third named appellant had mentioned in his evidence a figure of 10 to 15 minutes only. The length of time was important in relation to the practicability of the transfer of the drugs in question from one vessel to the other. There was a real risk that the jury were misled by this observation.
80. Dealing next with alleged misdirection in law, counsel for the appellants submitted that there had been a failure on the part of the trial judge to give adequate and proper directions in regard to the fairness of the evidence of prosecution witnesses as to the tracking and interception of the Isolda. The trial judge had been correct to resolve the question of admissibility himself, but it was a matter for the jury to decide what weight and value to give to the evidence concerned, under appropriate directions. They should have been directed to have regard to the circumstances attending the obtaining of the evidence when they were evaluating it. In this connection reference was made to the observations of the trial judge between pages 27C and 28B of the transcript of proceedings of 18 February 1997. The same matter had been dealt with by Mr. Findlay in his speech on 13 February 1997 at pages 20 and 21 of the transcript of that date. It had to be remembered that the concession regarding the illegality of the placing of the secret device on the Isolda had not been made before the jury. It had simply been made for the purposes of the debate regarding the admissibility of evidence which arose from the matter. In this connection reference was made to Thompson v. Crowe 2000 J.C. 173.
81. Counsel for the appellants dealt, thirdly, with the alleged failure of the trial judge to present the defence case adequately to the jury. A feature of this was the way in which the defence case that it had been believed that what was involved was dealing in tobacco had been treated by the trial judge. He dealt with this at page 18C of the transcript of proceedings of 18 February 1997. There was a reference to this matter in the evidence of the first named appellant on 28 January 1997, as appeared from page 8 of the transcript of that date. A further example of the shortcomings of the charge was to be found in the treatment by the trial judge of the forensic evidence, which was dealt with at pages 38 to 40 of the transcript of 18 February 1997. In this connection reference was made to Simpson v. H.M. Advocate 1952 J.C. 1, at page 3. In reference to this particular matter, the trial judge's treatment of the defence evidence was deprecatory. The same criticism could be made of other parts of the charge. He had promoted his own view of the evidence to the jury, which favoured the Crown. In this connection reference was made to the transcript of the charge of 18 February 1997, at pages 37 and 39 and in the transcript of 19 February 1997 at pages 7, 8, 11 and 12. Counsel made it clear that the matters to which he referred were only examples of a multiplicity of imperfections which he contended existed in the charge. Importance was attached to the trial judge's choice of words, which, it was argued, conveyed to the jury his scepticism as to the defence case. The cumulative effect of these defects was a charge which failed properly to put the defence case to the jury.
82. In reply, the Advocate depute dealt with the points made in the same order as counsel for the appellants. On the topic of the significance of the smell of cannabis resin, the observations of the trial judge had been no more than a reflection of the contentions made on behalf of the Crown. It was not a valid criticism of a trial judge's charge that he had summarised the contentions of the Crown. Even if there was no justification on the part of the Crown for a reference to the smell emitted by cannabis resin, any failure on the part of the trial judge to correct the assertion of the Crown did not amount to a miscarriage of justice, in view of the other and plainly valid reasons offered by the Crown as to why the cannabis resin involved could not fail to have been observed on the Isolda by all members of its crew.
83. Turning to deal with the allegation related to the duration of convergence of the vessels, the matter was dealt with by the trial judge at page 6 of the transcript of 19 February 1997. There was nothing either unclear or erroneous about what was said there. Reference was made to evidence from Mr. Green and Mr. Gordon, of the Customs & Excise, concerning a convergence of the vessels for a period of 23 minutes. In addition to that, Gary John Hunter, one of the former co-accused, gave evidence on his own behalf and spoke to a transfer of "contraband" from the Isolda to the Ocean Jubilee. He said that he had hidden in the engine room of the latter vessel during the time of the transfer. Thus, in association with the forensic evidence, there was an abundance of evidence entitling the jury to conclude that the quantity of controlled drug involved had been transferred in fact, regardless of exactly how long the operation took.
84. Turning to the allegation that the trial judge had been responsible for a misdirection in law in relation to the assessment of evidence, the admissibility of which had been challenged, but which had been admitted by him, it was submitted that there was no such misdirection. The criticism of the passage in the charge at pages 27F to 28B of the transcript of 18 February 1997 was without merit. Furthermore, the submission that it was ultimately a matter for the jury to reconsider the trial judge's decision on the admission of challenged evidence was misconceived. What was said in Thompson v. Crowe was of no assistance in the present context, because, unlike the situation in that case, the court was not here concerned with the admissibility of a statement by an accused person, where the circumstances of its having been taken might be considered by a jury for the purpose of deciding the weight to be given to it.
85. Moving on to deal with the alleged failure of the trial judge adequately to present the defence case, it was submitted by the Crown that counsel for the appellants had failed to acknowledge that only two of the four appellants had given evidence themselves, namely the first and third named appellants. In the transcript of his charge of 19 February 1997, at pages 7 to 13, the trial judge adequately summarised the positions of the present appellants in their defence. The way in which tobacco had featured in the defence position was also adequately summarised.
86. It had been alleged that the trial judge's charge lacked balance and, in particular, criticisms had been made of it in relation to the forensic evidence. The trial judge, at pages 37 to 40 of the transcript of his charge of 18 February 1997, in summarising the Crown's case, dealt with the forensic evidence led by the Crown, which was the only forensic evidence in the case, a fact which had to be borne in mind. At page 40 of the same transcript, the judge made reference to explanations tendered in defence evidence to explain the presence of fibres found by the Crown forensic experts. There was no lack of balance in the presentation of the case by the trial judge.
87. Turning to the issue of the trial judge's choice of language, which had been characterised as deprecatory, it was submitted that there was no real substance in the criticisms. The language which had been criticised at pages 37A to C and 39C to D of the transcripts of the charge of 18 February 1997 was in fact part of the trial judge's summary of the Crown's submissions. It did not represent his own view of the evidence. There was nothing wrong with a trial judge summarising the contentions of the Crown. None of the passages referred to at pages 16 and 17 of the grounds of appeal involved an attempt by the trial judge to impress his view of the facts upon the jury. The use of the word "tale" at page 17E of the transcript of the charge of 19 February 1997, while perhaps unwise, was in fact a reference not to the evidence of any of the present appellants but to that of the former co-accused Brian Silverman. Its use in that context could not affect the position of the present appellants. In that connection reference was made to the case of Hunter and Others v. H.M. Advocate. The appeal against conviction of Brian Silverman had succeeded, but that of Gary John Hunter and Roderick McLean, Junior had not.
88. At the outset of our treatment of this ground of appeal, we would wish to make clear that we acknowledge the validity of those passages from the cases of Shepherd v. H.M. Advocate and Larkin v. H.M. Advocate, relied upon in this connection by counsel for the appellants. Coming to the particular bases of the submission that the trial judge's charge contained misdirections in fact, we deal firstly with the point made concerning the reference to the smell of cannabis resin. In this connection we consider that it is important to appreciate how the Crown case was presented to the jury. It was, of course, to the effect that the unchallenged Crown forensic evidence demonstrated that fibres, in association with certain colours, found on the Isolda could only have come from the bales of cannabis resin. The Advocate depute contended that the evidence demonstrated conclusively that the cannabis had been brought on the Isolda to a meeting point with the Ocean Jubilee. Thereafter, at page 41F and following of his speech in the transcript of 11 February 1997 he said this:

"Now if you do take that view, if you take the view that the evidence shows that the cannabis came on the Isolda and met up with the Ocean Jubilee, what does that mean? In the first place it has implications for all of those on the Isolda, because in practical terms and in reality, if you come to that view you really are coming to the view that all of those on the Isolda are guilty because there is no possible way that such a cargo could be on the Isolda without them all knowing, it is far too bulky, it is far too big. Nobody on the Isolda has ever suggested that they knew the cargo was there, but that it was something else. Such a cargo could never be stored, or slipped in unnoticed onto the Isolda. All the evidence surrounding the Isolda, the bulk of the cargo that is on it the deception about the route, the telephone calls backwards and forwards to Alf and to the McLeans, taking that together demonstrates to you that all of them knew that the cargo was there and knew what it was.

That is before you even begin to ask yourselves about the smell of it. You saw for yourselves the cargo and it was all wrapped in large polythene bags and at the time, I don't known how close to it individually you were, but it will not have escaped your attention that the cannabis has a smell and 3 tons on board a yacht of the size of the Isolda will not be ignored. So we have looked then at what evidence there is and it tends to show us that the Isolda brought the cannabis."

89. Looking at what was said by the trial judge at pages 2 and 3 of the transcript of 19 February 1997, it is quite plain that, in that passage, he was summarising the contentions of the Crown, which we have just quoted. Dealing with the Crown's argument as to proof of knowledge of the crew of the Isolda of the cargo, at page 2E, the trial judge said:

"Each played a part in getting the vessel from Cadiz to the meeting point, each must, according to the Crown, have known of the presence of the cargo on board, it was far too big, far too bulky and perhaps even far too smelly for them not to have known what was, and I use this expression again, what was afoot and there was no suggestion from any of the crew of the Isolda that any other type of cargo was being transported. That then is the proposition of fact proposed by the Advocate depute."

It will be seen from the quotation of the speech of the Advocate depute and the passage just quoted from the judge's charge that reliance was placed by the Crown on a number of factors, including the size of the packages which constituted the cargo, their bulk and their smell. It is obvious from what was said by the Advocate depute that, in making the point which he did concerning the smell of cannabis resin, he appeared to be relying exclusively upon what the jurors might have perceived for themselves when inspecting the cannabis resin on the occasion of their visit to Rosyth. For the purposes of the present consideration, we are prepared to accept that argument was not legitimate, since the jury had been told, prior to their visit, that the visit was not intended to be of an investigatory nature in which evidence was gathered, but rather to enable the jury to better understand the evidence which they heard in the court. Against this background, one might have expected the trial judge to make that point in his remarks to the jury concerning the Crown's contentions although the judge is not required to deal with every argument on the facts. No such comment was made. It is to be observed, however, that what the judge said involved the phrase "perhaps even far too smelly". That choice of language indicates to our mind that no particular emphasis was placed by the trial judge on the consideration of smell and confirm that he was not adopting, or indicating to the jury that they should adopt, the Crown argument on this point. The other factors relied upon by the Crown, namely the size and bulk of the cargo were quite clearly the subject of evidence and supported the point being made by the Crown. In all of these circumstances, we consider that the passage complained of cannot be regarded as a material misdirection of fact.

90. Turning to the criticism of the charge which was related to the time of the convergence of the vessels, dealt with by the trial judge at page 6 of the transcript of 19 February 1997, there was plainly evidence from a number of sources before the jury concerning the matter. The trial judge refers to the evidence of Mr. Green and Mr. Gordon of the Customs & Excise who had it that the vessels were together for a period of 23 minutes. Furthermore, there was direct evidence from the former co-accused Gary John Hunter to the effect that the cargo of the Isolda, which he believed to be tobacco, had in fact been transferred to the Ocean Jubilee during the period of convergence. While this evidence was the subject of cross-examination, the whole issue was left to the jury by the trial judge, as appears from page 6D to E. In all the circumstances we are not persuaded that this point possesses any force.
91. Dealing next with the alleged misdirection in law of the trial judge, it appeared to be recognised by counsel for the appellants that the responsibility for the decision as to whether the evidence concerned should or should not be admitted was that of the trial judge. However, the argument appeared to be that the decision on admissibility could be "reviewed" by the jury, in the sense that they would be entitled to discard evidence which the trial judge had decided ought to be admitted. As we understood it, the submission was said to be based upon the decision in Thompson v. Crowe. That case was concerned with the implications of answers given by an accused person during a police interview and with the way in which evidence concerning the interview might be used. Of course, it was there held that the question of the admissibility of evidence was for the trial judge, rather than the jury to decide. It was also decided that for a statement by an accused to be admitted into evidence, the trial judge had to be satisfied that the statement was made voluntarily and not extracted by unfair or improper means; further, that if a statement was ruled to be admissible, it was for the jury to assess the weight to be attached to the statement, the circumstances in which the statement was taken being relevant in determining its weight. In these circumstances, while it is entirely comprehensible that a jury would be entitled to consider the circumstances of the obtaining of a statement by an accused person, in evaluating the weight to be given to it, we are unable to accept that that principle can be meaningfully applied in the circumstances of this case. The objection to the admissibility of evidence which was dealt with by the trial judge in this case was not related to any incriminating statement made by an accused person, where issues of unfairness or undue pressure might arise. It was concerned with completely different considerations and depended only on issues of law. We are therefore unable to accept that the circumstances considered by the trial judge in reaching a decision on the admissibility of the evidence concerned were, apart from that evidence itself, matters for the legitimate consideration of the jury. Having considered the passage between pages 27F and 28B of the transcript of the trial judge's charge of 18 February 1997, we see nothing in that passage which we regard as objectionable. In all of these circumstances, we reject the submission that, in this respect, the trial judge misdirected the jury in law.
92. Turning next to consider the submission that the trial judge failed adequately to present the defence case to the jury, we observe that the main point on which this criticism was focused was the point concerning tobacco. In particular, reference was made to a passage at page 18 of the transcript of the charge of 18 February 1997 and particularly the phrase "some reference to tobacco has been made in the course of the evidence." It was contended that the trial judge's treatment of this aspect of the case was inadequate. With that contention, we do not agree. We consider that the position of the defence in relation to this matter was quite fully summarised by the trial judge in the transcript of his charge of 19 February 1997 between pages 7 and 13. Between pages 7 and 8, the trial judge summarised the evidence of the first named appellant in relation to the purpose of the voyage of the Isolda. At page 8 he said that the position of this appellant was that a decision had been made to go to Holland rather than Gothenburg for sound maritime reasons. Referring to the first named appellant's evidence concerning this matter he then said:

"Mr. Hoekstra asserted that he was only made aware of any ulterior motive for the voyage by Jan Van Rijs late in the cruise and that is of course the plan, as he spoke, to uplift some tobacco at sea and take it to Denmark. According to him he immediately expressed disapproval of such a venture and maintained an attitude of wishing nothing to do with it. He spoke, however, of the meeting with another vessel at sea and the conversation between Jan Van Rijs and someone on board the other boat. No cargo had been carried on the Isolda and nothing was transferred to the other boat."

In our view, this passage clearly puts before the jury the position of the first named appellant in relation to the part played by tobacco in the purpose of the voyage. Between pages 9 and 11 of that particular transcript, the trial judge deals with the position taken up on behalf of the second appellant. Once again, we consider that this passage adequately summarises the contentions made on his behalf; it should of course be borne in mind that he did not give evidence. Between pages 11 and 12 of the same transcript, the trial judge deals with the position of the third appellant, who did give evidence. At page 12 the point is made that this appellant also had explained that he thought that a certain conversation which he had overheard was related to the taking of some tobacco into Denmark, a proposition which he was against. Finally, the position of the fourth appellant was dealt with by the trial judge at pages 12 to 13 of the same transcript. This appellant had not given evidence. We are not persuaded that the trial judge's treatment of this appellant was in any way inadequate. On the whole matter, we do not consider that this particular submission that the trial judge failed adequately to put the defence case before the jury is soundly based.

93. Some further criticisms of the trial judge's approach to the presentation of the defence case were related to the forensic evidence in the case. As has been observed, the only forensic evidence in the case was that which was led by the Crown. The trial judge deals with this at pages 38 to 40 of the transcript of the charge of 18 February 1997, as part of his summary of the Crown's case. In this passage the trial judge goes into some detail as to the features of the forensic evidence. In relation to this tract of evidence, at the bottom of page 39 to page 40, the trial judge reminds the jury of the explanations advanced for the possible presence of the relevant fibres on board the Isolda, which had been suggested by the first and third named appellants in their evidence. He concluded this passage by indicating to the jury that it was entirely a matter for them to decide whether any of those suggested explanations were acceptable to them or cast any doubt on the evidence relating to the fibres relied upon by the Crown. Having regard to all of these circumstances and considerations, we are not persuaded that the trial judge's presentation of this important aspect of the case to the jury was inadequate or unbalanced.
94. Finally, in this part of the case, we consider the contentions made in criticism of the trial judge's more general presentation of the defence case, which was described as deprecatory. This argument was based upon a considerable number of passages in the charge, which were said to be examples of the use of unwise or critical language in relation to that case. Two particular passages at page 37A and 39C to D of the transcript of the charge of 18 February 1997 were founded upon. However, it is perfectly clear from the context of these passages that they amount to a summary, by the trial judge, of the contentions of the Advocate depute. We do not consider that they are phrased in such a way as to mislead the jury into thinking that they represented the views of the trial judge himself. Likewise, the passage at page 7 of the transcript of 19 February 1997, which was criticised, was plainly a part of the trial judge's summary of the Crown case. In the passages following page 7, with which we have already dealt, we do not consider that the trial judge's language is such as to reveal a personal approach on his part which is critical of the defence case. On the whole matter, we do not think that the criticism of the trial judge as regards the general presentation of the defence case is justified. In view of this and the other conclusions which we have reached on the arguments supporting this particular ground of appeal, we reject the ground.

Ground of Appeal 7

95. This ground of appeal was essentially concerned with certain passages in the charge of the trial judge at pages 18 and 19 of the transcript of proceedings of 19 February 1997, and in particular with a passage at pages 18A to 19D, quoted in full below. This part of the charge dealt with the matters of interviews conducted with the appellants by officers of the Customs & Excise and also with the judicial examinations of the appellants before the sheriff. The issue principally relates to the drawing of inferences from the apparent failure on the part of the appellants to mention certain matters at their interviews and examinations.
96. In developing his submissions counsel drew attention to the statutory provisions which were applicable to these procedures. So far as the interviews conducted by officers of the Customs & Excise were concerned, the relevant enactment was section 24 of the Criminal Law (Consolidation)(Scotland) Act 1995, which authorised the detention and questioning by Customs Officers of the suspects there defined. It was pointed out that these provisions were similar to the provisions of section 14 of the Criminal Procedure (Scotland) Act 1995, which authorised the detention and questioning at a police station of certain suspects. Section 24(8) of the Criminal Law (Consolidation) (Scotland) Act 1995 provided that a person detained under that section should be under no obligation to answer any question other than to give his name and address, and an officer had to so inform him, both on detaining him and on arrival at the Customs office or other premises. The statutory provisions relating to judicial examination were to be found in sections 35 and 36 of the Criminal Procedure (Scotland) Act 1995. It was quite plain from an examination of these various statutory provisions that the purposes of the procedures involved were different. In particular, section 36(8) of the Criminal Procedure (Scotland) Act 1995 authorised the making of comments at a trial in relation to things which had or had not happened at a previous judicial examination. There was no counterpart to that provision in either section 24 of the Criminal Law (Consolidation)(Scotland) Act 1995, or section 14 of the Criminal Procedure (Scotland) Act 1995. It was contended that the difference between the statutory provisions applicable to interviews by Customs & Excise officers and judicial examinations gave rise to a need for a trial judge, who found it necessary to give directions on such procedures, to give directions which were distinct and correct.
97. Counsel for the appellants had two major criticisms. First, the trial judge had not given distinct directions in relation to the interviews of the appellants conducted by Customs & Excise officers, on the one hand, and the judicial examinations of the appellants, on the other. These matters had been "lumped together" in a single passage, which was, for that reason among others, defective. Secondly, a criticism was made of the passage at page 19A to B of the transcript where, by using the words "or chose not to mention certain allegations", the trial judge had appeared to direct the jury to the effect that silence on the part of a person interviewed by Customs & Excise officers might be a basis upon which inferences adverse to that person might be drawn. That was plainly an erroneous direction, having regard to the right of silence enshrined in section 24(8) of the Criminal Law (Consolidation)(Scotland) Act 1995. A further criticism was directed towards what the trial judge had said at page 19 of the transcript in relation to the significance of judicial examination before the sheriff. In particular, what had been said at page 19C to D was objectionable. In that connection reliance was placed upon Condron v. United Kingdom (2001) 31 E.C.H.R. 1. That case had been concerned with the fairness of criminal proceedings for the purpose of Article 6(1) of the European Convention on Human Rights in the context of directions given by a trial judge in English criminal proceedings in relation to the provisions of the Criminal Justice and Public Order Act 1994, which authorised the drawing of certain inferences unfavourable to an accused person as to his guilt upon the basis of his silence. In relying upon this case, counsel for the appellants agreed that the English legislation with which the case was concerned differed materially from legislation operative in Scotland and, in particular, section 24 of the Criminal Law (Consolidation)(Scotland) Act 1995 and sections 14 and 36(8) of the Criminal Procedure (Scotland) Act 1995. The direction given by the trial judge in Condron was ultimately held to have been unsatisfactory even though it made reference to the explanations given by the applicants for their silence. The decision in Condron had certain parallels in Scotland. In that connection he referred to McGhee v. H.M. Advocate 1992 S.L.T. 2, a case in which a conviction had been set aside on account of misdirection by the trial judge, who had drawn attention to an inference unfavourable to the accused which might be drawn from his silence at judicial examination, without drawing attention to another possible explanation for that silence. In this connection reference was also made to Dempsey v. H.M. Advocate 1996 S.L.T. 289, a case in which a conviction had been quashed upon the basis of remarks made by a prosecutor and a sheriff where an accused had not mentioned a special defence of self-defence at his judicial examination, and had not subsequently given evidence. On account of this latter circumstance, it was held that the sheriff's comments amounted to a breach of section 20A(5) of the Criminal Procedure (Scotland) Act 1975, the predecessor of section 36(8) of the Criminal Procedure (Scotland) Act 1995. Reverting to Condron v. The United Kingdom, counsel for the appellants contended that the charge which had been given in that case, which had been held to have been unsatisfactory, was in fact a better charge than that delivered in the present case. The view taken by the court in Condron, at paragraph 61, was to the effect that, as a matter of fairness, the jury should have been directed that, if it was satisfied that the applicants' silence at the police interview could not sensibly be attributed to their having no answer or none that would stand up to cross-examination, it should not draw an adverse inference. On the whole matter, the court took the view that the applicants had not received a fair hearing within the meaning of Article 6.1 of the Convention.
98. Counsel for the appellants next proceeded to develop what we understood to be an elaboration of his criticism of the trial judge's charge by reference to factors bearing on the Customs & Excise officers' interviews and the judicial examinations of the appellants. In this connection he drew attention to Granger v. United Kingdom (1990) 12 EHRR 469. This was a case concerning the concept of equality of arms in the context of the non-availability of legal aid. The case demonstrated that the court had a general duty to secure the fair conduct of proceedings. In the present case, the conduct of the interviews with the appellants by Customs & Excise officers had involved the use of interpreters, save in the instance of the third appellant, who was a fluent English speaker. However, no reference had been made by the trial judge to that circumstance. Furthermore, the interviews had been conducted in Aberdeen, whereas the appellants had been detained on the Isolda, some distance out in the North Sea; a very considerable period of time had been occupied in the journey from the point of detention to Aberdeen, without the appellants being given the opportunity for rest. No mention had been made of that circumstance by the trial judge. At this point in his submissions counsel for the appellants referred to Barbera and Others v. Spain (1988) 11 E.H.R.R. 329. Reference was made in particular to paragraphs 68 and 89 of the decision.
99. Dealing with the position relating to the judicial examinations in detail, counsel for the appellants pointed out that the first appellant had remained silent at judicial examination on legal advice, yet there was no reflection of that in the charge. The same was true of the third appellant, who had given evidence on his own behalf; he also had remained silent at judicial examination on advice. There was no reflection of that in the charge. Under reference to Rowe and Davis v. United Kingdom (2000) 30 EHRR 1 it was submitted that an appeal court could not cure a problem created by material which had not gone before a jury. The inadequacies of the charge involved in this case represented a failure by the court to lay before the judges of the facts questions which they ought to have considered and decided. Accordingly there had not been a fair trial.
100. At this point in his submissions, counsel for the appellant raised a further aspect of the situation regarding the tracking device allegedly used by Customs & Excise officers. He drew attention to the fact that the Crown's position in relation to this device had varied with time. In the first instance the Crown had asserted that there was no such device. Secondly, their position appeared to be that it had existed, but had not been used. Thirdly, the Crown position was that the device had existed and had been used, but only to confirm positions observed by other means. It was submitted that the trial judge had failed properly to direct the jury in respect of these various changes of position on the part of the Crown. The position had been that objection had been taken on the part of the Advocate depute in relation to questioning concerning this device, which had been sustained. There had been a discussion in relation to that matter outwith the presence of the jury. It had emerged that certain equipment had been present in the aircraft involved in the surveillance operation. Those acting for the appellants had been prevented from fully exploring this matter at the trial. It was submitted that the whole background should have been put before the jury by the judge including the circumstance that the Advocate depute had been misled by those instructing him.
101. In reply, the Advocate depute submitted to this court that one striking factor relating to ground of appeal 7 and the submissions made in relation to it was that it did not take into account the fact that the Crown had not relied to any extent on the interviews conducted by Customs & Excise officers in relation to the appellants. The Advocate depute at the trial had not founded upon them. The trial Advocate depute had no recollection of having led in evidence the terms of the interview of the first named appellant. If he had used any part of it, his recollection was that it was that part only which dealt with this appellant's control of the Isolda. Some parts of the fourth named appellant's interview had been read to the jury, but no reference had been made to it in the Crown's speech to the jury. Accordingly, whatever the judge might have said or not said about these interviews, that could not have resulted in a miscarriage of justice in the circumstances of the case. Furthermore, the criticisms made of the circumstances of the interviews were without foundation. The appellants had had access to a solicitor before the interviews were conducted. Interpreters were available. Those interviewed had been cautioned correctly by those conducting the interviews. It was to be noted that the Crown had made use of interviews of persons who were not now before the court. The reference at page 18E to F of the judge's charge in the transcript of 19 February 1997 to certain accused was not in fact a reference to any of the appellants since the Crown had not relied to any extent upon the interviews of the appellants. While the Advocate depute accepted that the language used at pages 18 and 19 of the charge in the transcript of 19 February 1997 could have been improved upon, there was nothing in it which amounted to a misdirection of the jury. The case of Condron v. United Kingdom ought to be distinguished from the circumstances of this case, because the statutory provisions applicable to the silence of an accused person in England were fundamentally different from those which existed in Scotland. In England, the silence of an accused person could give rise to an inference of guilt directly, whereas, in Scotland, no such inference arose; silence was relevant, at best, to the issue of the credibility of an accused person who gave evidence.
102. Dealing with the alleged failure of the trial judge to direct the jury in relation to the alleged significance of the changes of position of the Crown in relation to the tracking device, it was submitted that this criticism was without merit. There was no question of the Crown having debatable "credibility". In any event, the matters concerned had not been discussed in the presence of the jury. It would have been improper for the trial judge to have given directions to the jury relating to the significance of evidence or matters about which they had not heard.
103. The Advocate depute submitted that, in so far as the submissions of the appellants in criticism of the trial judge's charge were based upon alleged breaches of the European Convention on Human Rights, those submissions were misconceived in the light of the decision in R. v. Lambert [2001] 3 WLR 206. It had been decided in that case that an appellant could not rely upon an alleged breach of the Convention which had occurred before 2 October 2000, where it was said to arise from conduct on the part of the court, as opposed to the prosecuting authority. Thus, in relation to the charge to the jury in the present case, criticisms of it could not be founded upon an alleged breach of Article 6 of the Convention. Thus the court should approach the matter according to the common law of Scotland. In any event, even if there were to have been a breach of Article 6 of the Convention, that did not necessarily entail a miscarriage of justice.
104. At the conclusion of the arguments in support of this and the other grounds of appeal, counsel for the appellants sought and was granted a right of reply in relation to the case of R. v. Lambert, relied upon by the Advocate depute, of which he had had no notice. He then drew attention to the dissenting speech of Lord Steyn, whose approach he commended to the court. In this connection he also relied upon Osman v. United Kingdom (2000) 29 EHRR 245. The exclusionary rule considered in that case had been held to be a violation of Article 6(1) of the Convention. Reverting to R. v. Lambert, it appeared from the decision in that case that there were two categories of appellants, those having an interest in judicial acts prior to 2 October 2000 and those having an interest in judicial acts after that date. It appeared that the decision of a court might differ according to the category into which an appellant fell. There was thus a difference in status between these categories of appellants. However, Article 14 of the Convention did not permit discrimination on any ground or "other status". It was plain that the decision of the majority in R. v. Lambert had the effect of "exporting" problems to the European Court of Human Rights. That was an undesirable situation.
105. The principal arguments advanced in support of this ground of appeal were focused upon the passage in the charge of the trial judge to be found at pages 18A to 19D of the transcript of 19 February 1997. In view of the importance which this passage possesses in the context, it is appropriate to quote it in full:

"Ladies and gentlemen a few further matters before I leave the evidence in Charge 1. Firstly, you have heard evidence and indeed on occasions tape recordings of interviews between the Customs & Excise and the accused. All of these interviews were conducted under caution, that is to say that the Officers who were conducting the interview explained at the outset to each of the accused that they did not require to answer any questions, they did not require to answer any questions, but that any questions they did answer, any explanations they did give, would be tape recorded and perhaps noted and be available to be given in evidence against them. That is to say they were given their rights under the law as suspects to remain silent and not to incriminate themselves by what they said.

Now despite that caution in the course of these interviews some of the accused, at least, made certain statements about their involvement in the events of May to July 1996. I have already explained to you the legal significance of such statements. However, since what was said to the Customs & Excise Officers by some, at least, of the accused was relied on by the Advocate Depute and to some extent by other defence counsel, I should of course point out to you that in considering the credibility of any of the evidence given to you in court, by those accused, you are perfectly entitled to take into account the fact that an accused said something different when interviewed, or chose not to mention certain allegations, the truth of which he now maintains. Similarly, I explained to you when the transcripts were read out, the purpose of the judicial examination before the sheriff. That is a judicial procedure which may be invoked soon after an arrest and which gives an accused, at such an early stage, the opportunity to state any defence which he may have to the charge, or charges against him. If he fails, or declines, to do so ladies and gentlemen and then advances such a defence at the trial some time later, you may take that into account in assessing his credibility. In other words you are entitled to take the view that since he did not advance the defence, when given the opportunity to do so, so shortly after the event, but advances the defence now, he may have concocted it in the time which he had to do so. So much for charge 1."

106. The first criticism which was directed against this passage in the charge was to the effect that the trial judge had conflated what he had to say regarding the product of interviews conducted by Customs & Excise officers with the appellants under section 24 of the Criminal Law (Consolidation)(Scotland) Act 1995 with what he had to say concerning the procedure of judicial examination of the appellants which had taken place before the sheriff under sections 35 and 36 of the Criminal Procedure (Scotland) Act 1995, with the result that the jury would have been left in confusion concerning the principles to be applied to this material on account of the lack of the necessary clarity of the treatment of these matters. Leaving aside certain detailed criticisms of what the trial judge said relating to these matters, with which we deal subsequently, we have not been persuaded that this criticism is justified. At page 18A of the transcript, in the first paragraph of the passage which we have quoted, the trial judge, in our opinion, makes it perfectly clear that he is talking about the content of the tape recorded interviews between the Customs & Excise officers and the accused. In the next part of the passage quoted, beginning with the words "Now despite that caution...", the trial judge continues with his treatment of the significance of the statements made to the Customs & Excise officers. In our opinion, it is quite plain that that is what he is doing at that part of the passage. He there speaks of "these interviews" and also to "what was said to the Customs & Excise Officers". This part of the passage concerned runs on to page 19 ending with the words "the truth of which he now maintains". At that particular point in the passage quoted, which is to be found at page 19A to B of the transcript, the trial judge next commences his treatment of the transcripts of the judicial examinations of the appellants before the sheriff, beginning with the words "Similarly, I explained to you...". The treatment by the trial judge of the products of judicial examination then runs on to the end of the passage in the charge which we have quoted, ending with the words "So much for charge 1". Although it is the case that the trial judge dealt with the results of the interviews between Customs & Excise officers and the appellants and the products of judicial examination in close proximity in the course of his charge, we consider that it is sufficiently clear from the words that he used that he dealt with these matters separately and that no reasonable jury would have been likely to have been confused by his approach to these matters. Accordingly we reject this particular criticism.
107. Turning now to deal with the detailed criticism which was made of that part of the passage from the charge which deals with the product of interviews by Customs & Excise officers with the appellants, we observe that no serious objection was taken to the language used in the first paragraph of the passage quoted beginning with the words "Ladies and gentlemen..." and ending with the words "...by what they said." The only point which was made about this part of the charge, where the trial judge explained the position of the accused at such interviews, was that he said that "any questions they did answer, any explanations they did give, would be tape recorded and perhaps noted and be available to be given in evidence against them". These words did not in fact reflect what had been said at the commencement of the interviews by Customs & Excise officers; what was said was that any answers would be tape recorded and might be noted and might be used in evidence. Notwithstanding that disparity, we do not consider that what was actually said by the trial judge at this point in the passage amounts to misdirection.
108. However, the position is somewhat different in the later part of the passage quoted where the trial judge completes his treatment of the significance of statements made at interview to Customs & Excise officers. In the latter part of this treatment, the trial judge said this:

"I should of course point out to you that in considering the credibility of any of the evidence given to you in court, by those accused, you are perfectly entitled to take into account the fact that an accused said something different when interviewed, or chose not to mention certain allegations, the truth of which he now maintains".

We are clearly of the opinion that the words which we have emphasised were quite inappropriate in the context. Section 24(8) of the Criminal Law (Consolidation) (Scotland) Act 1995 provides that:

"A person detained under subsection (1) above shall be under no obligation to answer any question other than to give his name and address, and an officer shall so inform him both on so detaining him and on arrival at the Customs Office or other premises."

Thus the law confers a right upon a detained person under section 24 to decline to answer any question "other than to give his name and address". In this respect, the position of such a person is the same as that of a person detained under section 14 of the Criminal Procedure (Scotland) Act 1995. Furthermore, in the legislation pertaining to detention, there is no counterpart to the provisions of section 36(8) of the Criminal Procedure (Scotland) Act 1995, which applies to judicial examination. In these circumstances, we conclude that it was wrong for the trial judge to use the words "or chose not to mention certain allegations", in the passage quoted. It appears to us that the use of those words would have indicated to the jury that a declinature on the part of an accused person interviewed by Customs & Excise officers to answer questions put to him by them would create a basis upon which the jury would be entitled to reach an adverse conclusion as to the credibility of such an accused person. Such a direction is plainly in conflict with the provisions of section 24(8) of the Criminal Law (Consolidation)(Scotland) Act 1995 and, indeed, with what the trial judge himself had correctly said in the first paragraph of the passage in the charge which we quoted. In these circumstances we conclude that the use of the words concerned did involve a misdirection on his part.

109. This being so, the question which then arises is whether this misdirection has resulted in a miscarriage of justice so far as any of the present appellants are concerned. In this connection, in our view, it is necessary to examine carefully the scope of what was said by the trial judge in the passage beginning with the words "Now despite that caution..." and ending with the words "...which he now maintains." It will be seen that, within this passage, the trial judge says this:

"However, since what was said to the Customs & Excise Officers by some, at least, of the accused was relied on by the Advocate Depute and to some extent by other defence counsel, I should of course point out to you that in considering the credibility of any of the evidence given to you in court, by those accused, you are perfectly entitled to take into account"

the matters, including the objectionable words, with which we have already dealt. Thus the direction which we consider was justifiably criticised was given in relation to the consideration by the jury of the credibility of evidence given in court by certain accused only. It appears to us that the accused concerned were those who had given evidence and whose statements to Customs & Excise officers were relied upon by the Advocate depute or defence counsel. Of the four appellants, only the first and third named appellants gave evidence. Accordingly the trial judge's misdirection could not apply to the second and fourth named appellants, who did not. The next question, then, is whether anything said in the course of interviews by the first and third named appellants was relied upon by counsel. In the course of argument before us, it was not suggested that any reliance had been placed upon anything said in the course of his interview by the third named appellant, which is not surprising, having regard to the fact that, in the course of his interview he simply declined to answer questions other than to identify himself. So far as the first named appellant is concerned, there was very limited reliance upon what he had said in the course of his interview with Customs & Excise officers in respect that he had agreed that he had had authority to sail the vessel Isolda. However, that matter was not at all in controversy at the trial and, indeed, it was the subject of evidence by the first named appellant himself. It appears to us that, in the light of these circumstances, the direction under consideration was formulated as being applicable to the position of accused persons other than the present appellants. Examination of the transcripts of the speech of the Advocate depute of 11 and 12 February 1997 confirms us in this view. At p. 80 et. seq. of the transcript of 11 February, 1997, the Advocate depute discussed discrepancies between the evidence of Gary John Hunter and the content of his interview with Customs & Excise officers extensively. A similar exercise was undertaken in relation to Kenneth Corrigan, as appears from pp. 100 to 107 of the same transcript; in relation to Roderick McLean, Junior, as appears from p. 6 et. seq. of the transcript of 12 February, 1997; and in relation to Brian Silverman, as appears from p. 38 et. seq. of the same transcript. The Crown did not rely on anything said by the first and third named appellants, except to the limited extent indicated above, nor on any failure on their part to give any statement or explanation. In all these circumstances, we have come to the conclusion that no miscarriage of justice in relation to the present appellants has occurred as a consequence of the misdirection which we consider did occur in the manner which we have explained.

110. We next consider the criticism which was directed to the latter part of the passage under scrutiny in the trial judge's charge, where he deals with the matter of judicial examination. The criticism was focused upon the last sentence of the passage where the trial judge says:

"In other words you are entitled to take the view that since he did not advance the defence, when given the opportunity to do so, so shortly after the event, but advances the defence now, he may have concocted it in the time which he had to do so. So much for charge 1."

It is quite evident from this passage and its context that the language concerned, which has been criticised, is applicable only to an accused person who gave evidence and the credibility of whose evidence was therefore in issue. Thus, whatever may be said about this particular part of the charge, it can possess no significance in relation to the second and fourth named appellants, who did not give evidence. The criticism advanced in relation to this passage was concerned rather with what the trial judge had not said than with what he had said. What he did say was that the jury were entitled to take the view that, if a defence had not been advanced at judicial examination but was subsequently advanced in evidence, the accused "may have concocted it in the time which he had to do so." The criticism was that the trial judge made no mention of other possible explanations for silence in regard to that particular defence at judicial examination, such as, for example, the reception of legal advice to maintain silence.

111. In considering the force of this criticism, while we recognise that the trial judge made no reference to possible explanations for silence in relation to a defence at judicial examination, which he might have done having regard to what was said at those examinations, we observe that the words which he did use were not designed to suggest that the inevitable conclusion from the situation was that what was stated as a defence in evidence was "concocted". What the trial judge said was that there was that possibility inherent in the situation. We consider that, in essence, the question for us in relation to this matter is one of fairness and balance in the approach of the trial judge to what he said. In all the circumstances, we have not been persuaded that this passage, in the context of the charge as a whole, amounts to a misdirection.
112. In support of this part of the appellants' argument reliance was placed on a number of authorities. In Condron v. United Kingdom, the European Court of Human Rights concluded that the applicants had not received a fair hearing within the meaning of Article 6.1 of the Convention, in respect of the directions which the jury received about the applicant's silence on certain matters at his trial in England. They expressed the view that, as a matter of fairness, the jury should have been directed that, if they were satisfied that the applicants' silence at the police interview could not sensibly be attributed to their having no answer or none that would stand up to cross-examination they should not draw an adverse inference. No such direction had been given.
113. In our opinion, this decision does not assist the appellants in the context of this case for two reasons. In the first place, the issue arose against a background of the operation of the provisions of the Criminal Justice and Public Order Act 1994, which provisions, so far as material, are set forth in paragraph 30 of the decision of the court. It is quite plain that those provisions are fundamentally different from section 36(8) of the Criminal Procedure (Scotland) Act 1995, which applies to judicial examination. Under the provisions of the Act of 1994, as we understand them, the silence of an accused person, or his failure to give evidence, possesses great significance, in respect that it can give rise to such inferences as the court or jury considers proper. In particular, such circumstances may be treated as constituting, in certain circumstances, evidence against the accused person. Given that background, we can readily understand the need for particular directions to be given of the kind desiderated by the court. However, the need for any such directions is much less obvious in a Scottish context where section 36(8) of the Act of 1995 alone is of significance. In the second place, the issue in Condron for the court was whether the applicants had received a fair hearing within the meaning of Article 6.1 of the Convention. That is a different issue from the one which faces us, that is to say whether there has been a miscarriage of justice in relation to the appellants, or any of them.
114. Reliance was also placed by the appellants on McGhee v. H.M. Advocate, a case which was decided on appeal in the High Court of Justiciary. The appeal was concerned with certain remarks made by a trial judge concerning the circumstance that, at his judicial examination, the accused person had replied to questions principally by saying "No comment". In particular, he had not then advanced a defence of alibi. At the trial, the accused had founded on such a special defence. The trial judge made certain comments concerning the situation, which tended to suggest that the accused's conduct in this respect was extraordinary. The court held that, when a judge made comments on an accused's refusal to answer questions at judicial examination, he should do so with restraint. In the circumstances of the case, the court considered that what the trial judge said went far beyond what was permissible, because he was seeking to impress his own views on matters of fact upon the jury. In the circumstances it was held that a miscarriage of justice had occurred. Looking at what had been said in that case the conclusion reached by the court was, in our view, understandable. However, looking at what was said and what was not said in the passage with which we are concerned, we do not perceive that the trial judge was endeavouring to impress upon the jury his own view of the facts. For this reason we do not consider that this case assists us.
115. Dempsey v. H.M. Advocate was also relied on on behalf of the appellants. The accused person involved in that case had been charged, along with another, with aggravated assault. At his judicial examination, the accused had not claimed that he had been acting in self-defence, but at his trial he advanced a special defence of self-defence, although he did not give evidence. The appellant criticised remarks made by the prosecutor in the course of his submissions to the jury, and also the sheriff's directions. The decision of the court was that any prejudicial effect of the prosecutor's remarks might have been removed by the sheriff's directions, but that the sheriff's own comments about the accused's silence at judicial examination amounted to a breach of section 20A(5) of the Criminal Procedure (Scotland) Act 1975, where the accused had not himself given evidence. Having regard to the fact that, in the present case, the first and third named appellants, in relation to whom this argument is alive, did give evidence, we do not consider that this case is of assistance. For all these reasons we reject this particular argument in support of this ground of appeal.
116. As will be apparent from our narrative of the argument, certain general criticisms of unfairness or lack of balance were made of the trial judge's charge with reference to a number of factors bearing upon the taking of statements by Customs & Excise officers from the appellants. The point was made that three out of four of the appellants were not fluent in the English language and required the assistance of interpreters. Furthermore, it was pointed out that the appellants were interviewed by Customs & Excise officers in Aberdeen following upon a lengthy journey from the point of their detention in international waters on the Isolda. As we understood it, the suggestion was that these factors ought to have been the subject of direction or comment by the trial judge in his charge to the jury. In connection with this submission reference was made to Granger v. United Kingdom supra and Barbera v. Spain supra. In the light of the very limited content of the interviews between Customs & Excise officers and the present appellants, we have considerable difficulty in seeing what relevance these criticisms possess in the context of the present appeals. Furthermore the authorities relied upon do not appear to us to be of assistance in relation to these criticisms. We regard the question of whether the trial judge might have referred to the factors mentioned as a matter wholly within his discretion. He plainly decided not to do so and we do not consider that his decision can be justifiably criticised.
117. Further criticism of the trial judge's charge was focused upon the controversy which arose during the course of the trial surrounding the use said to have been made by Customs & Excise officers of a tracking device. The manner in which this question arose, and the attitude taken by the Crown have been explained in an earlier section of this opinion. The submission on behalf of the appellants appeared to be that the trial judge had failed to present a balanced summary of the positions of the parties to the jury, in that he had failed to refer to the changes in position of the Crown in relation to these matters. It appeared to be suggested that, in some way which we do not fully understand, this failure was prejudicial to the defence. We find ourselves unable to see any force in this particular criticism of the trial judge's charge. As has been indicated, these matters were the subject of debate and decision when objection was taken to a particular line of questioning, all of which occurred outwith the presence of the jury. We fail to understand how it can be suggested that it would have been appropriate for the judge to introduce into his charge a summary of these matters, which themselves were not the subject of evidence before the jury. Plainly it was the task of the jury to decide the case on the basis of the evidence which they had heard and not upon the basis of any statements of position made in the course of legal debate outwith their presence. In any event, if the jury were to have perceived any inconsistencies in the evidence led in support of the Crown case, they would have been able to take that into account in assessing the weight to be given to that evidence. In these circumstances we reject this particular criticism of the trial judge's charge.
118. During the course of argument related to this ground of appeal, reliance was placed by the Advocate depute on the decision of the House of Lords in R. v. Lambert supra. It was perceived by the respondent that certain of the criticisms of the appellants were said to involve breaches of rights enshrined in the European Convention. Upon that basis, it was pointed out that there was a question whether the appellants could rely upon an alleged breach of the Convention which occurred prior to 2 October 2000, in particular, at the much earlier date when the jury in the present case were given directions by the trial judge. It was submitted that the appellant could not rely on such alleged breaches, under reference to the view of the majority in the case of R. v. Lambert. Subsequently, in reply to the Crown's speech before us, counsel for the appellant commended to us the views of Lord Steyn, who was in a minority in that case. We do not find it necessary to say more about this matter than to point out that the position of the Crown is supported by the majority in the House of Lords. It appears to us accordingly, that to the extent that this court requires to consider directions given to the jury prior to 2 October 2000, those directions should not be evaluated against the provisions of the Convention, but rather by reference to the requirements of Scots law and procedure.
119. For all of the foregoing reasons we therefore reject this ground of appeal.

Ground of appeal 8

120. This ground of appeal and adopted by the other appellants, is concerned with the conduct of the Crown and an Advocate depute, Mr. Graham C. Bell, Q.C.
121. In the ground of appeal it is stated that in the circumstances the appellants are entitled to have grave misgivings about the conduct of the Crown.

"Said conduct raised a suspicion in the mind of the appellants, who are Dutch nationals, as it would have in the mind of any ordinary, informed observer that the proceedings were manifestly unfair and that justice was not impartial and that a miscarriage of justice occurred".

It is also stated that the Lord Advocate's use of Mr. Bell as his depute was contrary to natural justice and to the Guide to the Professional Conduct of Advocates. His actings in his capacity as the Lord Advocate's depute were the actings of the Lord Advocate and were contrary to natural justice and to the Guide. The ground further states:

"In particular, it raised a reasonable perception in the minds of the appellants that confidential information provided to the said senior counsel in the course of their defence would be used to advance the position of the Crown and against the interests of the appellants"

and

"In the above circumstances the Lord Advocate's actings and the actings of said senior counsel for and on behalf of the Lord Advocate had violated the appellant's right to a fair hearing contrary to Article 6.1 of the European Convention on Human Rights (ECHR). There has not been a fair and impartial hearing. Justice has not been done and seen to be done. Accordingly there has been a miscarriage of justice".

122. In devolution minutes presented on behalf of the first and second appellants, dated 11 November 1999, it was maintained that the actings of the Lord Advocate infringed the appellant's rights under Article 6.1 of the ECHR.
123. In regard to this ground of appeal and the devolution minutes the court heard the evidence of the following witnesses: Mr. C.T.R. MacNeill, W.S., a partner of Messrs Anderson Strathern, W.S.; Mrs. Rosemary Cameron, an unqualified legal assistant, formerly employed by that firm; The Honourable Lord Menzies; Mr. L. Brown, formerly Principal Procurator Fiscal Depute in the Appeals Unit of the Crown Office; and Mr. Bell. In addition, at the invitation of Mr. Pen who represented the second appellant, the court took into consideration the transcript of the evidence given by Miss G.Y. Clymie, formerly a procurator fiscal depute in the Appeals Unit, (which she had given in) November 2000 in connection with an earlier hearing of these matters, the decision in which was subsequently set aside on 9 March 2000 (see 2000 S.C.C.R. 367). Dr. G. Morrison issued a certificate as to Miss Clymie's unfitness to give evidence to this court, and himself gave evidence to this court in regard to that matter.
124. Before coming to the evidence which we heard it is convenient, by way of introduction, to set out the background. In the course of the proceedings in these appeals there were a number of procedural hearings. The general objects of such hearings are to prepare for the hearing of the appeal, to bring into focus the matters in issue, and to ensure that the time which has been set aside for the hearing of the appeal is used as effectively as possible.
125. At a procedural hearing of these appeals on 20 May 1999 all four of the appellants were present and had the benefit of the advice of solicitors. The third and fourth appellants were represented by counsel. The first and second appellants, who had previously been represented by counsel, were unrepresented and accordingly had to speak themselves. The interlocutor of the court which related to that hearing, recorded that each of the appellants had tendered at the bar new grounds of appeal which were intended to replace the existing ones. The Crown opposed this. The court did not hear full argument on that matter and continued the procedural hearing until 7 July 1999 at 10 a.m. The interlocutor stated that the court:

"1. Directed the solicitors instructed by each of the four appellants forthwith to submit to this court, with copies being sent to Crown Office, a written explanation for the delay in presenting grounds of appeal;

2. Directed that any further proposed grounds of appeal must be intimated in writing to Justiciary Office, Edinburgh and copied to Crown Office within 21 days of this date;

3. Indicated that at the next procedural hearing, the court will consider -

(a) whether and to what extent the proposed grounds of appeal tendered by

each of the appellants at the bar of court today are to be allowed to be received;

(b) the order of presentation to the court of any such grounds of appeal;

(c) the amount of time required by each of the appellants to present such

grounds;

(d) any arguments by the appellants as to whether written submissions on

the grounds of appeal to be advanced are to be lodged prior to the hearing of the appeal on those grounds;

(e) further if necessary, the question of legal representation by counsel on

behalf of the first and second named appellants, and whether any action need be taken by this court to ensure such representation".

126. Following the hearing on 20 May 1999 Mr. John Carroll, who acted as solicitor for the first and second appellants, wrote a letter to the Clerk of Justiciary dated 22 May 1999, which was copied to the Crown Office, in which he tendered an explanation for the lateness of the tendering of the proposed grounds of appeal. In the course of that letter he stated that it appeared that before his firm became involved in the case Mr. Bell had offered tentative advice, but that thereafter he had accepted a commission as an Advocate depute.
127. At the continued procedural hearing on 7 July 1999 the Crown was represented by Mr. Duncan Menzies, Q.C., the Home Advocate depute, who was later appointed to the bench with the judicial title of Lord Menzies. The third and fourth appellants were represented by counsel. The first and second appellants were again unrepresented. No further grounds of appeal additional to those tendered on 20 May were proposed by or on behalf of the appellants. The Advocate depute did not oppose the motion that the proposed grounds of appeal should be allowed to be received in place of the original grounds.
128. The matters in issue are concerned with what happened shortly before that hearing took place. We will set out a summary of the evidence which we heard, followed by our conclusions as to what is proved to have taken place.
129. Mrs. Cameron stated in evidence that Messrs Anderson Strathern had been instructed as Edinburgh agents by Mr. Carroll's firm as from June 1998. In preparation for the hearing on 7 July 1999 she had prepared written submissions for use of the first and second appellants. Since Mr. Carroll could not attend the hearing on 7 July it had been arranged that Mr. MacNeill should be present in order to ensure that a qualified solicitor was in attendance. According to the submissions which she had prepared, the first and second appellants would invite the court to allow the proposed grounds of appeal to be received, and ask the court to order a further report from the trial judge in regard to them. The submissions also dealt with all the other matters which had been referred to in the interlocutor of the court dated 22 May. Mrs. Cameron said that, in view of the Crown's attitude on the previous occasion, she expected that there would be some debate about the reception of the replacement grounds of appeal, since she was under the impression that the Crown would probably continue to oppose this.
130. Mrs. Cameron stated that she and Mr. MacNeill sat down in court room No. 2, where the hearing was to take place. She looked across the court room and noticed that Mr. Bell, who was in wig and gown, was standing close to the seat which is normally used by an Advocate depute. He had put some papers on the table and stood back. She recalled that at some stage Miss Clymie was also there. She wondered why Mr. Bell was there. She went across to the doors on the right hand side of the court room, as seen from the bench, and attracted his attention. She asked him if he was going to appear as the Advocate depute. She knew that the present appeals were the only criminal business to be dealt with in that court, and she wanted to assure herself that Mr. Bell was not going to appear for the Crown. She asked him whether he remembered that he had acted for two of the appellants.
131. At this point we should interject that it is not in dispute that while Mr. Bell had not appeared for any of the accused at the trial, he had twice given advice to the second appellant in 1997 and had drafted grounds of appeal for him prior to his taking up appointment as an Advocate depute on 1 January 1998. For completeness we should add that he had also appeared for the fourth appellant in a motion for the postponement of the commencement of the trial.
132. Mr. Bell replied to Mrs. Cameron's question in the affirmative. He said to her that he had recognised the names when he had looked at the papers the night before. He asked her: "Are you objecting?". She replied that she could not do so, meaning that she had no right of audience before the court. Once more he asked her if she was objecting. There was then some discussion between them. Counsel for the third and fourth appellants came into the courtroom. The clerk of court approached her and Mr. Bell and asked whether they were ready for the hearing to begin. She said to the Clerk that there was a slight problem (or difficulty) and referred to the fact that Mr. Bell had previously advised the appellants. At that time Mr. Bell again asked her if she was objecting. The Clerk then left the court room. She was not aware that Mr. Bell had asked the Clerk to delay the sitting of the court, but accepted that this could have happened. When the Clerk returned he said that the Lord Justice Clerk and the other members of the bench would not come into court until the Crown was represented by another Advocate depute. Shortly after that Mr. Bell "grumped" and left the court room. Not long after, Mr. Menzies, who had been asked to take the place of Mr. Bell at very short notice, entered the court room. This was followed by the appellants being brought in. The court was then convened. Mrs. Cameron noted that Mr. Menzies did not oppose any of the motions made by or on behalf of the appellants, and that he was not able to supply the court with information which it sought in regard to certain aspects of the procedure. Mrs. Cameron said that if Mr. Bell had appeared for the Crown the first and second appellants would have drawn the attention of the court to the fact that he had previously advised them. For this purpose she would have prepared something for them to say.
133. Mrs. Cameron went on to say that she had had a brief opportunity to speak to the first and second appellants before they were returned to prison. When she told them what had happened in the courtroom before the court was convened they expressed some concern. However, they were more interested in the acceptance of the replacement grounds of appeal. When she and Mr. Carroll went to see them in prison later that week they "exploded with frustration and upset". She explained that they had been horrified when counsel who had previously represented or advised them had become Advocate deputes. They had not understood the system and had been very agitated by it. They had been concerned that counsel would be working against them if they appeared for the Crown. She had reassured them that, in accordance with the conduct expected of advocates, they would not have anything to do with their appeals while they were in Crown Office. Now the first and second appellants challenged her having misled them, claiming that they had been "right all along". She could give them no explanation for what had happened. Mrs. Cameron added that, following the appointment of another counsel as a sheriff, she had encountered difficulty in engaging other counsel to represent the appellants. Hence they were unrepresented at the hearings on 20 May and 7 July 1999.
134. The court was provided with a number of business notes which Mrs. Cameron had prepared on 7 July following the events which she described. These included a note of a telephone conversation with Mr. Carroll in the course of which she said to him that Mr. Bell told her that he had recognised the name of one of the appellants when he looked at the papers the night before. It also recorded that Mr. Bell had repeatedly asked her whether she was going to object.
135. Mr. MacNeill gave evidence that he had attended the hearing on 7 July because the appellants were entitled to the advice of a solicitor and were unrepresented. He had a supervisory role. He regarded the hearing as of critical importance. He was aware that Mrs. Cameron had a conversation with Mr. Bell who was dressed in wig and gown, standing at the partition at the edge of the well of the court. When Mrs. Cameron reported to him the suggestion that if they did not object, there would not be a continuing difficulty, he considered that they were in a curious position as they did not have a mandate from their clients. The position would have to be explained to them. The need for this was obviated when the Clerk stated that the court would not convene until another Advocate depute was present to appear for the Crown. Thereafter Mr. Bell expressed dissatisfaction and left the courtroom.
136. At this point it is convenient for us to refer to the evidence of Miss Clymie. She stated that she had worked in the Appeals Unit since December 1998. She was responsible for passing the appropriate papers to the Advocate depute who was going to appear in the particular appeal, and for giving general assistance to the Advocate depute in the preparation of the case for the Crown. She had been on holiday at the time of the hearing on 20 May, but she made herself familiar with what had happened on that occasion. She organised the papers for the hearing on 7 July when she had ascertained who was to be appearing as Advocate depute. Her recollection was that the papers for the hearing had been sent to Mr. Bell as the Advocate depute who was to appear at it. These were sent either by her or by another Advocate depute. This might have been a fairly late change. She specifically recalled being at her desk and receiving a call from Mr. Bell, possibly from his home. She thought that she might have been trying to contact him at home by leaving a message on his answering machine. Her purpose had been to ascertain that all was well for the following day, and that he knew what was to happen. This was possibly in the afternoon. He said to her that there was some problem or reason why he could not appear for the Crown in these appeals. It was something to do with the fact that he had acted for one of the appellants. He indicated that he had got the papers, and said that he would be consulting the Home Advocate depute. She explained that in the case of a number of other appeals Mr. Bell had indicated to her that he could not appear for the Crown. Accordingly there was nothing unusual in his saying this in the present case. She said that she seemed to recollect asking him whether there was anything which she could do in order to assist in getting the papers to another Advocate depute. He indicated that he would be speaking to Mr. Menzies in order to see what could be done. She added that if she had been aware prior to 7 July that Mr. Bell had previously been instructed for any of the appellants, she would have raised this matter. Miss Clymie said that she had sent with the papers a procedural note which was on top of them. This was to provide background information giving the procedural history of the appeals, and, in regard to the grounds of appeal, where the case had to go at that stage. She thought that the note contained a discussion about the proposed grounds of appeal.
137. As regards the events in the courtroom, she was aware of there being a conversation between Mr. Bell and someone from a solicitor's office in the well of the court. She recalled coming in and not being aware of who was going to appear for the Crown. She thought that Mr. Bell - who was not in wig and gown - indicated to her that he could not appear for the Crown. Mr. Menzies rushed along, but she had no recollection of how he came to appear for the Crown at the hearing. She thought that he had a reasonable grasp of matters during the hearing.
138. Mr. Brown confirmed that Miss Clymie was exclusively looking after the present appeals. He was not aware whether she had prepared a briefing note. As far as he was concerned, such a note was not invariably prepared in the case of a procedural hearing. Whether the papers were delivered on the day before the hearing would depend on the nature of the hearing. He expected that the papers would be sent round to and placed in the box of the Advocate depute. If there was to be a minimal involvement on the part of the Crown they might be taken straight to the court room. If he had been aware that an Advocate depute had formerly been involved in the defence of an accused, he would not put the papers before that Advocate depute, but arrange for another Advocate depute to appear. If grounds of appeal were to be opposed, he would expect there to be reasons of such opposition, and there to be a consultation with the Advocate depute who was going to take the appeal.
139. Mr. Bell stated in evidence that, as set out in the Crown Office list for the week beginning 5 July 1999, he was on duty in the office during that week. He was also due to appear for the Crown in bail appeals on 7 July. As he had received instructions to appear in two single bills on that date, he arranged with Mr. Menzies that he would exchange duties with him, so that Mr. Menzies would attend the bail appeals whereas he would appear at the procedural hearing. This change was arranged in the late afternoon of the previous day or on the morning of 7 July. He understood that the hearing was to be continued for four weeks and was a formality, with the Crown consenting to the continuation. If the hearing was to a formality he would not expect the papers to be sent to him in advance. Papers were sometimes put in his box at Parliament House but more often they were brought in by a member of the Crown Office staff. In practice he would not necessarily expect the papers to be sent out the night before. He did not think that he had spoken to Miss Clymie about these appeals until the morning of 7 July. The previous day he had been on duty in the office, which often involved being there until about 6 p.m.
140. On the morning of 7 July, having arrived at Parliament House he put on his wig and gown. When he arrived at the court room he saw Mrs. Cameron. He was not sure, but he thought that they met outside the door of the court room. She said to him that he could not do this. He asked her why. She said that he had once advised one of the appellants. His immediate reaction was that it did not matter if the hearing was to be a formal continuation. Continuations were a matter of regular occurrence. He thought that Mr. Menzies had told him that it was to be a formality. Mrs. Cameron told him that it was not so, and that if he appeared for the Crown it would be a matter for comment. Miss Clymie, who had brought the papers with her, was under the same impression that it was a formal hearing. She had not realised its true purpose.
141. Mr. Bell explained that he said to Miss Cameron "Fair enough", agreeing with her that it was not appropriate for him to appear. He realised that he had to ask the Clerk to convey his apologies to the judges and to have the sitting of the court delayed. He told the Clerk that there was a problem, as he could not appear for the Crown. He never opened the papers, and had no recall of there being a note with them.
142. Mr. Bell said that he was aware that on a previous occasion he had said to Miss Clymie that he could not appear for the Crown in connection with the present appeals. He had no recollection of appearing for the Crown on 19 May 1999 when the decision of the court in regard to the appeal against conviction of other co-accused in the same case was issued. He explained that their names would not have meant anything to him. He added that the name "Hoekstra" did not then mean anything to him.
143. Mr. Bell also said that Mrs. Cameron made no complaint. He regarded the incident as of no consequence. It was "just something that had happened". He denied that he had been angry or had stormed out of the courtroom. Either he or Miss Clymie handed over the papers to Mr. Menzies. He was emphatic that he had not given anyone in the Crown Office any information which he had been given in his consultation with the second appellant. Mr. Menzies reported to him after the hearing on 7 July that he had been unhappy because the papers did not include a briefing note and because Miss Clymie had not prepared the information which he required in order to deal with questions put to him by the court.
144. Mr. Bell explained that there had been previous occasions when it had been arranged that another Advocate depute should appear on behalf of the Crown in appeals in cases in which he had appeared for or advised the appellant. He estimated that there had been about ten appeals with which he had been previously involved at the time when he held office as an Advocate depute.
145. Lord Menzies gave evidence that after he left the bail appeal court on 7 July he was stopped by a member of the Crown Office staff and asked to deal with a matter which was purely procedural. He was informed that he did not need to become acquainted with the details. He hurriedly changed and went to the courtroom in wig and gown. On the table at the position at which the Advocate depute sat was a bundle of papers some nine inches deep, bound in tape. They did not include a briefing note. He was irritated when he found that he had to ask what was the position in order to answer a question from the court. He had thought that it was going to be a "walking on part". He did not recall being given information about the receiving of replacement grounds of appeal. He would not have been happy to deal with any opposition to their being received. Lord Menzies explained that the allocation of duties on 7 July was made during the course of the previous afternoon. He did not recall whether Mr. Bell had been allocated to appear in the bail appeals and had been re-allocated to the procedural hearing. If an appearance was primarily procedural he would not expect to look at the papers for it the night before. Lord Menzies confirmed that Mr. Bell had not passed on any information which he had gleaned from the appellants.
146. It should be added that after these events Mr. Carroll wrote two letters to the Lord Advocate dated 21 October and 4 November 1999 in which he complained about the conduct of Mr. Bell and of the Crown. In a letter dated 29 October the private secretary of the Lord Advocate replied, pointing out that Mr. Bell had not represented the Crown at the hearing on 7 July. The complaint was described as "without substance". It was stated that, when Mr. Bell had discovered that the hearing involved an appellant whom he had previously represented, he had contacted the Clerk of Court and asked the court to delay the sitting while he found another Advocate depute.
147. Mrs. Cameron also gave evidence that on or about 26 November - which was during the week when the earlier hearing of this ground of appeal was taking place - Mr. Bell had come up to her in Parliament Hall and said to her that she would be hearing from his solicitors. She was very upset by his evident hostility, thinking that she had done something to the prejudice of Messrs Anderson Strathern. By this time a complaint had been made about Mr. Bell's conduct to the Dean of Faculty as well as the Lord Advocate. Mr. Bell said that he was angry about this complaint. He regarded it as defamatory. He accepted that when he was passing Mrs. Cameron he made some inappropriate remark to her. He was very angry and remained angry. He accepted that what he had said was some kind of threat.
148. An assessment of the evidence which we have summarised above involves questions of not only reliability but credibility on which we were addressed by counsel for the appellants and the Advocate depute.
149. The first question which we have to consider is what led up to the incident at the courtroom on 7 July. We do not accept as reliable the evidence of Miss Clymie that on the previous afternoon Mr. Bell informed her in the course of a telephone conversation that he could not appear for the Crown at the hearing. It is clear from other evidence, including the written record of the allocation of duties, that Mr. Bell was working in the office during that week, and hence would not be at home. More importantly, the evidence of Miss Clymie is inconsistent with the evidence of Mrs. Cameron, which we accept, that at the outset of her conversation with Mr. Bell he did not consider that there was a difficulty in his appearing for the Crown. Moreover, if Miss Clymie is correct, it is likely that Mr. Bell would have spoken to Mr. Menzies in order to make alternative arrangements for the representation of the Crown at the hearing. However, that did not take place. Lord Menzies did not give evidence that Mr. Bell had been in contact with him for that purpose. We should add that we accept the evidence of Miss Clymie and Mr. Bell that in the case of other criminal appeals where he had previously acted for the appellant he had made arrangements to avoid his appearing for the Crown. Against that background, it does not appear to us to be likely that, if he had informed Miss Clymie that he could not appear in regard to these appeals, such an arrangement would not have been made.
150. It is clear that the arrangement by which Mr. Bell was to appear for the Crown at the hearing was made at his instance and not long before the hearing took place, probably during the course of the preceding afternoon. It is also clear, despite the terms of Mr. Carroll's letter dated 22 May, neither Miss Clymie nor Mr. Menzies was aware that Mr. Bell had previously advised any of the appellants. If either of them had been aware of this, he or she would have raised the matter and taken steps with a view to ensuring that an alternative Advocate depute appeared for the Crown.
151. The evidence as to when the Crown papers for the hearing reached Mr. Bell was conflicting, as we have already noted. However, we attach particular significance to the fact that Mrs. Cameron made a note the same day that Mr. Bell had informed her at the courtroom that he had recognised the name of the appellants when he looked at the papers the night before. It is difficult to envisage that she could have been mistaken about a matter that was so explicit. Accordingly, we accept he evidence on this point.
152. As we have already noted, Mr. Bell gave evidence that he had been given to understand that the hearing was to be a formality. This was not, of course, the true position. However, his evidence on this point gains support from the evidence of Lord Menzies that he expected to have a "walking on part", and was irritated to discover that he was not able to answer questions put to him by members of the court. He discovered that the papers did not include a briefing note. If that was the case, it would tend to support the view that the person who put the papers together for the Advocate depute was under the impression that the hearing was to be merely a formality. For these reasons we accept the evidence of Mr. Bell that he understood that the hearing was to be only a formality. We also accept that he did not believe at the outset that there was a difficulty in him appearing for the Crown.
153. Turning then to the evidence of what happened at the court room, it is clear that Mr. Bell was intending to appear for the Crown in the hearing. He was wearing his wig and gown. He did not seek the consent of the appellants or their representatives. It is also clear from the evidence of Mrs. Cameron and Mr. Bell that, had it not been for her raising a query, he would have gone on to appear for the Crown. He had second thoughts and withdrew from the courtroom before the appellants or the members of the bench had entered the courtroom. On the other hand we are not convinced that Mr. Bell changed his mind as readily as he said in evidence. We accept the evidence of Mrs. Cameron, supported by her contemporary note, that he persisted, and that when he gave up his intention to appear he did so with an ill grace. It is likely that it was he who indicated to the Clerk of Court that the starting of the hearing should be delayed until another Advocate depute could appear on behalf of the Crown. There was no suggestion that Mr. Bell had in fact imparted to the Crown, or indeed to anyone else, any information which he had obtained from the second appellant in the course of advising him in 1997. Counsel for the appellants made it clear that there was no question of his integrity being challenged.
154. As we have already indicated by reference to the terms of the ground of appeal, counsel for the appellants relied on the terms of the Guide to the Professional Conduct of Advocates. Three aspects of these rules were founded upon. First, it is stated as a cardinal principle of professional conduct, that an advocate must at all times show himself to be worthy of the trust of those who deal with him, including his client (para. 2.2). An advocate has to remember that his client relies on him to exercise his professional skill and judgment in the client's best interests (para. 8.1.2). Secondly, it is stated that an advocate should not accept instructions to act for, or advise, more than one party in the same proceedings if there is a conflict of interest between them (para. 4.3.10). An advocate should not accept instructions where it is clear that the instructions already accepted make it impossible for him to comply with the new instructions (para. 4.3.13). Thirdly, counsel cannot use, for the benefit of a new client, knowledge which he has obtained in confidence from another client with an opposing interest (para. 4.3.11). "It is a fundamental duty of an advocate not to disclose or use any information communicated to him in his professional capacity other than for the purposes for which it was communicated to him, so long as it remains in confidence and has not otherwise been made public" (para. 8.1.1).
155. These rules apply, of course, to every advocate whether he is in practice on his own account or holds office as an Advocate depute. The office of Advocate depute is a public office, based on a commission from the current Lord Advocate. It is normal for counsel who have reached a certain stage in their career at the bar to serve for one or more periods of about three years in that office. They have the responsibility of deciding whether cases which have been reported by procurators fiscal be prosecuted and, if so, at what level, and of representing the Lord Advocate in appeals against conviction and other proceedings arising out of conviction and sentence. Unlike procurators fiscal, Advocate deputes are not professional or permanent prosecutors. They may or may not have previous experience of criminal work, including criminal appeals. Mr. Bell had considerable previous experience as defence counsel, including frequent appearances in the Criminal Appeal Court.
156. In light of the nature of the hearing which was to take place on 7 July, it is plain that it was not proper for Mr. Bell to represent the Crown, or for him to attempt to do so. On the other hand, as we have already indicated, he believed that the hearing was to be only a formality. However, even if that had been the true position, he could not have properly appeared for the Crown without discussing the matter in advance with the appellants' representatives.
157. On behalf of the second appellant Mr. Pen submitted that what had happened had caused the clients to lack trust that "their appeal was in good hands". They were concerned that the Crown had not dealt with the appeal "in a proper and decent way". They felt insecure. This would never have happened if Mr. Carroll's letter dated 20 May had been read in the Crown Office. He maintained that Mr. Bell had deliberately gone into court in order to appear on behalf of the Crown when he knew that there was a problem about his doing so.
158. Mr. Pen emphasised, under reference to Wemhoff v. Germany (1968) 1 E.H.R.R. 55, Delcourt v. Belgium (1969) 1 E.H.R.R. 355 and Artico v. Italy (1980) 3 E.H.R.R. 1, that for the purpose of Article 6 the proceedings should be seen as a whole; that the Article should not be interpreted restrictively; and that the appearance of matters was significant. He submitted that article 6 referred to all those who took part in the proceedings, including advocates. In the present case the Crown had failed to provide the appellants with the necessary confidence in the impartiality of the justice process. Reference was made to Bendenoun v. France (1994) 18 EHRR 54 and Khan v. United Kingdom (2001) 31 EHRR 45. As regards the matter of appearances he referred to the test applied in the Scottish cases of Bradford v. McLeod 1986 S.L.T. 244 and Lorimar v. Normand 1997 S.L.T. 1277, comparing the approach of the European Court of Human Rights in McGonnell v. United Kingdom (2000) 30 EHRR 289.
159. Mr. Pen submitted that the Crown should have apologised for what had happened. The statement on behalf of the Lord Advocate that the appellants' complaint was "without substance" was nonsense. While an apology would have made quite a difference, it would not have affected the fact that Article 6 had been breached. There had been a miscarriage of justice and accordingly the appellants' conviction could not stand. He presented no separate argument in regard to the devolution minute.
160. Mr. McLaughlin, who appeared with Mr. Pen, emphasised the line of decisions to the effect that justice must not only be done but also be seen to be done. The impartial observer would have known, in view of the fact that Mr. Bell had previously advised one of the appellants, that he could not properly appear for the Crown. He took a chance and withheld the information that he had previously been involved. A breach of the Code would "go to the heart of a fair trial". On the face of what had happened the Crown had adopted an entrenched position.
161. Mr. Gebbie for the first appellant went further than other counsel and claimed that what was known to Mr. Bell must be treated as known to the Lord Advocate. Mr. Bell's knowledge of his previous involvement could not be regarded as expunged by his acceptance of a commission from the Lord Advocate for his appointment as an Advocate depute. His conduct raised the suspicion that the proceedings were manifestly unfair. The Lord Advocate's use of Mr. Bell was contrary to natural justice and to the Code. The actings of the Lord Advocate and Mr. Bell violated the appellant's right to a fair and impartial hearing. There was a reasonable perception on the part of the appellants that confidential information which had been provided to Mr. Bell could be used to advance the position of the Crown and against the interests of the appellants.
162. In approaching these submissions we have no difficulty accepting that criminal proceedings should be considered as a whole. Thus in Delcourt the court observed at para. 25:

"Thus, a criminal charge is not really 'determined' as long as the verdict of acquittal or conviction has not become final. Criminal proceedings form an entity and must, in the ordinary way, terminate in an enforceable decision".

One obvious example of the application of this proposition in practice is the way in which an appeal court can take action to avoid what otherwise would have been a breach of Article 6.

163. As we have already noted, the submissions of Mr. Pen placed reliance on the requirement for impartiality. It is appropriate at this point to consider the place for impartiality in Article 6. One of the essential requirements of the Article is that the hearing of a criminal charge should be by "an independent and impartial tribunal established by law". In Piersack v. Belgium (1982) 5 E.H.R.R. 169 the court at para. 30 observed:

"Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6(1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect".

In determining the presence or absence of impartiality the courts in Scotland have applied the test of a reasonable suspicion or apprehension of bias (as in Bradford v. McLeod), whereas in England the courts have applied the test of a real likelihood, in the sense of a real possibility, of bias on the part of the tribunal (R. v. Gough [1993] AC 646). Lord Bingham of Cornhill observed in Lockabail Limited v. Bayfield Properties [2000] 1 All ER 65 at page 74 that in the overwhelming majority of cases the application of the two tests would lead to the same outcome. He added:

"Provided that the court, personifying the reasonable man, takes an approach which is based on broad commonsense, without inappropriate reliance on special knowledge, the minutiae of court procedure or other matters outside the ken of the ordinary, reasonably well-informed member of the public, there should be no risk that the courts will not ensure both that justice is done and that it is perceived by the public to be done".

164. The present case raises no question as to the impartiality of the court which sat on 7 July 1999 or at any other stage in the appeal proceedings.
165. The submissions made by Mr. Pen implied that there was a duty under Article 6 on the part of all those who are involved in "the justice process" to act impartially. We have considerable doubt as to the meaning of such a sweeping proposition, and even greater doubt as to its soundness. It is one thing to say that every accused is entitled to expect that his case will be determined by an impartial tribunal. However, if it is said that every accused has the right to insist that the prosecutor is impartial, how is this to be reconciled with the fact that in an adversarial system the prosecutor is entitled to seek to make a case against the accused and, in the event of a conviction, to seek to have it upheld?
166. The true question, in our view, is whether the appellants' right to a fair trial has been infringed, and, if so, whether a miscarriage of justice has occurred. It is clear from a number of decided cases that the actions of a body or person other than the tribunal may give rise to a breach of the accused's right to a fair trial. Thus, for example, the failure to produce documents may infringe the rights of the defence or the principle of equality of arms (Bendenoun v. France). In Borgers v. Belgium (1991) 15 E.H.R.R. 92 the court found that there was a violation of Article 6.1 where the defence did not have the opportunity of responding to unfavourable submissions made by the Avocat General, and where he participated in an advisory capacity in the deliberations of the court.
167. In considering whether there has been a breach of the right to a fair trial, which comprehends the right to a fair determination of guilt, it is clear that the court should consider both a subjective and an objective approach. Thus in Bulut v. Austria (1996) 24 E.H.R.R. 84 the court observed, at para. 47:

"The court recalls that under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent. In this context importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice".

Consideration of the appearances once more brings the court to consider what a reasonable well-informed member of the public would have thought of what happened. As in cases where the impartiality of a judge is in question, the standpoint of the accused is important but is not decisive. What is decisive is whether there is objective justification for the complaint of lack of fairness (Hauschildt v. Denmark (1989) 12 EHRR 266 at para. 48; Nortier v. The Netherlands (1993) 17 E.H.R.R. 273 at para. 33).

168. In the present case reasonable a well-informed observer would have considered, in the light of his previously having acted as an adviser to one of the appellants, that Mr. Bell should not have attempted to appear for the Crown, let alone persisted in his attempt when the true position was pointed out to him. However, he would see that Mr. Bell withdrew and was replaced by another Advocate depute for the appellants before the members of the court entered the courtroom. It was plain that whatever Mr. Bell had attempted to do it had no effect whatsoever on the proceedings at the hearing on 7 July or at any other stage of the proceedings. There was no suggestion that any confidential information which he had obtained from the second appellant was used either to the advantage of the Crown or to the disadvantage of any of the appellants. As the Advocate depute in the present appeals pointed out, if Mr. Bell had actually appeared at the hearing on 7 July, the fact that he had previously advised one of the appellants would have been made known to the court and the court would have been able to deal with any unfairness to that appellant. As the Advocate depute pointed out in the course of her argument, during the appeal process the prosecutor is no longer the master of the instance, and accordingly the court can take whatever course of action is appropriate for the purpose of doing justice (Howitt v. H.M. Advocate; Duffy v. H.M. Advocate 2000 S.C.C.R. 195; Santini v. H.M. Advocate 2000 S.C.C.R. 726).
169. In these circumstances Mr. Bell's attempted appearance at the hearing, which he had arranged, would have been in conflict with rules governing the conduct of advocates. However, he withdrew and was replaced after he realised his error. We do not doubt that these events, when reported to the appellants, caused them consternation. However, they were not apprised of the full facts, and in any event what happened had no practical effect on the fairness of the proceedings for the final determination of their guilt. For these reasons we are satisfied that there was no breach of the right of any of the appellants to a fair trial in accordance with Article 6 of the Convention. It also follows that, whatever may be said as to whether or not what happened involved an "act" of the Lord Advocate, it was not in contravention of that Article.
170. In these circumstances we consider that this ground of appeal is not well-founded, and that the facts do not give rise to any devolution issue.
171. Ground of appeal 10 is in the following terms:

"There has been inordinate and unconscionable delay in the proceedings that has denied the appellants' their right to a fair hearing before an impartial tribunal within a reasonable time contrary to Article 6.1 of the European Convention on Human Rights. The grounds of appeal having been lodged and the subsequent delays not being attributable to conduct of the appellants but to the failure to ensure a hearing before a properly constituted and impartial quorum of the High Court of Justiciary within a reasonable time a miscarriage of justice has occurred."

172. In order to consider this ground it is helpful first of all to set out a full chronology of the case. The appellants were arrested on 29 July 1996 and were convicted after the trial on 20 February 1997. They were sentenced on 13 March 1997. Between May and June 1997, grounds of appeal were lodged for each of the appellants. There was, however, some difficulty, which has not been explained to this court in any detail, in finding legal representation, or acceptable legal representation, for the purposes of the appeal. Additional and/or amended grounds for some of the appellants were lodged on a number of dates in 1998 and procedural hearings dealing with the lodging of grounds of appeal were held on 13 May, 30 June and 25 September 1998. The appeals on behalf of the Scottish group of appellants were eventually heard in December 1998. Certain of the appeals were refused but Silverman's appeal was allowed and a re-trial was ordered. On 24 March 1999, Silverman was convicted after the re-trial. In May 1999 skeleton arguments were lodged on behalf of the present appellants and, as has been explained in another section of this opinion, there was a procedural hearing on 20 May 1999 and a further procedural hearing on 7 July 1999 when amended grounds of appeal for all the present appellants were received late without Crown opposition. Devolution issue minutes were lodged in November 1999 and eventually the first appeal hearing took place from 23 November to 5 December 2000. The judgment on that appeal was issued on 28 January 2000. There does not appear to be any suggestion that any undue delay had occurred up to that point.
173. Thereafter, devolution minutes challenging the decision issued on 28 January 2000 were lodged and the decision was set aside by a judgment issued on 9 March 2000. On 23 March, a devolution minute relating to section 124 of the 1995 Act was lodged and on 2 June 2000 the judgment in Hoekstra No. 5, dealing with the question of the application of that section, was issued. At that time, the Lord Justice General ordered two full weeks in October 2000 to be set aside to complete the appeal and also ordered consolidated grounds to be lodged by 22 September 2000. However, in July 2000 the defence applied for special leave to appeal to the Privy Council and on 16 August 2000 the hearing for 16 October was discharged on written application by the defence. No consolidated grounds of appeal were lodged in September 2000. The hearing on the application for special leave took place on 2 October and the application was refused on 26 October 2000. The next event was the lodging of the minute relating to disclosure issues which was, as again has been noted earlier, heard on 5 December 2000 and refused by a judgment of 18 January 2001. Thereafter consolidated grounds of appeal were lodged in February or March 2001. A procedural hearing took place on 17 April 2001 and that at that time a further devolution minute relating to the error in Hoekstra No. 5 was lodged. On 3 May 2001 the defence requested that a hearing be fixed for late October 2001. That was the hearing which eventually took place before us but before that hearing arrived there had been yet a further devolution minute lodged on 7 September 2001.
174. In presenting this ground of appeal, Mr. Bavel submitted that, for the purposes of Article 6.1 the period to be considered was the whole period of the proceedings starting from the date of arrest and extending to the completion of any appeal. In the present case, that period now exceeded five years. None of the delay could be blamed on the appellants. Any delay arising from their difficulties in obtaining suitable senior counsel to represent them was not their responsibility. Similarly, they could not be blamed for utilising all the remedies open to them, including the application to the Privy Council for special leave. Substantial delay had been caused by the disqualification of the judges who heard the first part of the appeal. Further delay had been caused by the appointment of certain of the counsel who had been engaged as, in one case and Advocate depute and in another case as a sheriff. It could be suggested that it was the responsibility of the Executive to ensure that persons such as the appellant were not prejudiced by the making of such appointments. As regards the remedy, the precedent to be followed was the case of Darmalingum v. The State (Mauritius) (Privy Council 1999) in which it had been held that the only appropriate remedy which would vindicate the constitutional rights of the appellant would be quashing of the conviction.
175. Following Mr. Bavel, Mr. Gildea submitted that the question of the responsibility of the Executive for the abortive sitting on the first hearing of the appeal raised a devolution issue, the effect of which was that the Lord Advocate had no power to proceed with the prosecution. The same considerations were relevant to the question of the appointments of counsel as Advocate depute and sheriff.
176. The principles on which the question of excessive delay has to be approached have been explained by a series of Scottish decisions, in which the application of the Convention has been fully taken into account. It is now settled that it is only in an exceptional case that a conviction can be quashed because of delays occurring at the appeal stage. In the present case, while there has been a delay much longer than would normally be expected and while much of that delay cannot be laid at the door of the appellants, equally, a very substantial part of the delay cannot be laid at the door either of the court or the prosecution. Neither the prosecution nor the court have any responsibility for the difficulties in obtaining suitable representation. The delay caused by the abortive first hearing of the appeal is not in itself so substantial, however regrettable it may be, as to give rise to excessive delay in the disposal of the whole matter. In these circumstances neither this ground of appeal nor the associated devolution issue minute have any merit.

Conclusion

177. For all these reasons, we are satisfied that the appeals against conviction by these four appellants fall to be refused.