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TRANSCO Plc v. Her Majesty's Advocates [2004] ScotHC 57 (16 September 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord MacLean Lord Osborne Lord Hamilton	Appeal No: XC392/03 OPINION OF LORD MacLEAN in APPEAL under Section 74 of the Criminal Procedure (Scotland) Act 1995 by TRANSCO PLC Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellants: Jones, Q.C., J. Lake; Simpson & Marwick W.S.

Respondent: Mulholland A.D. Solicitor Advocate, Balfour; Crown Agent

16 September 2004

[1] Since your Lordship has dealt both in depth and detail with the submissions of the parties and I am in entire agreement with your Lordship's reasoning and conclusions, I wish to add only some observations of a more general character.

[2] The appellants' objection to trial by jury in this case, made in terms of Article 6 of the Convention, turns on the specific features of the case. The appellants do not maintain that trial by jury in criminal cases of itself would contravene Article 6 and lead to unfairness. On the contrary, the appellants accepted that the vast majority of jury trials in Scotland were Convention compliant. The competing submissions on behalf of the Crown and the appellants were, therefore, concerned with the anticipated consequences of a trial proceeding on the present indictment. The appellants were at pains to emphasise the complexities which would arise, while the prosecution sought to minimise these. To a large extent our decision depends, less on the numerous authorities cited to us and rather more on our assessment of the problems which might arise in the course of the trial and the ways in which these problems might be met.

[3] We were informed that the trial is expected to last between four and six months. That is not a wholly exceptional length of time for a jury to sit, although it must be recognised that for some jurors this would be a considerable imposition. I have no doubt that counsel would not wish to weary the tribunal but would prefer to advance their respective cases with as much expedition as possible. The issues raised in the trial may well be complex but the skills of advocacy can be applied to reduce or simplify such complexities. I do not think it greatly matters how many productions are lodged by either side. Much will depend upon their use in the course of the trial and upon the extent to which agreement is reached with regard to them. As for the recording of evidence, it will no doubt be for consideration whether Livenote can be usefully employed. In any event, it cannot readily be assumed that jurors will not take notes as the evidence unfolds. In my own experience it has become increasingly common for jurors, though not all jurors, to take their own notes.

[4] Much was also made of what was referred to as the split onus. If the Crown discharge the onus upon them of establishing a contravention of section 3 of the Health and Safety at Work Act 1974, it will be for the defence to establish on a balance of probabilities the defence of reasonable practicability. It is said that the jury will not know that such a defence is available to the appellants and, as the evidence is led, will not appreciate that some of it may be applicable to that defence. Opening speeches to the jury have never been part of Scots criminal procedure but I see no reason why the trial judge should not attempt to identify the relevant issues to the jury at the outset of the trial, in the course of which he can draw their attention to the defence of reasonable practicability. Throughout the trial he will have considerable responsibility to ensure that what is adduced in evidence before the jury is comprehensible and likely to be understood by them. At the end of the trial his charge to them, containing all the necessary legal directions, will be of crucial importance. In that connection, while there may be cases where it has been established that juries have erred in reaching their decision, or appear to have failed to follow the judge's directions, these cases are rare, and do not, in my opinion, detract from the presumption that juries will understand and properly apply a trial judge's directions.

[5] Following the Auld Report, sections 43 and 44 of the Criminal Justice Act 2003 have been enacted in England and Wales although they are not yet in force. While counsel for the appellants conceded that the Scots courts should not be overly influenced by changes in the law in England and Wales, he pointed out that it was introduced to remedy what was thought to be a defect in English procedure in relation to complex, lengthy trials. It has to be said that in Scotland there is no empirical evidence that juries are unable to absorb and understand complex issues, whether or not they arise in long trials.

[6] It was maintained on behalf of the appellants that procedural safeguards had to be put in place if the appellants were to have a fair trial in this case. The only way in which it could be tried before a judge alone was in summary proceedings. The Crown, however, deemed the issues raised in this case of such importance that they took solemn proceedings against the appellants. That course is perfectly understandable but it has the inevitable result that the case must be tried by a jury. There are no other procedural means within our legal system as it presently stands for any other course to be followed. If the appellants were well-founded in their submission that it was necessary that safeguards should be introduced, the law would have to be changed, and there would be no prosecution in this case unless that were done. That, as it seems to me, is what the appellants advocate. And, as the Crown pointed out, no case has been cited to us in which a trial set down before a jury had been withdrawn from it prospectively because of the anticipated complexity of the evidence or its length, except where there was an alternative provision to try it either way - that is, with or without a jury.

[7] I accept what was said by the court in Heasman v. J.M. Taylor & Partners 2002 S.C. 326 and later in H.M. Advocate v. M (R) 2003 S.C.C.R. 632 with regard to the fairness of a jury trial in considering rights under Article 6 of the Convention. The test is whether prospectively it can be said that such proceedings would necessarily be a breach of the accused's Convention rights or that they would inevitably result in the proceedings as a whole being unfair in the Convention sense. Since I am unable to affirm that in this case, I agree that this appeal should be refused.

TRANSCO Plc v. Her Majesty's Advocates [2004] ScotHC 57 (16 September 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord MacLean Lord Osborne Lord Hamilton	Appeal No: XC392/03 OPINION OF LORD OSBORNE in APPEAL under Section 74 of the Criminal Procedure (Scotland) Act 1995 by TRANSCO PLC Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellants: Jones, Q.C., J. Lake; Simpson & Marwick W.S.

Respondent: Mulholland A.D. Solicitor Advocate, Balfour; Crown Agent

16 September 2004

The Background
[8] On 22 December 1999, a serious explosion occurred in Carlisle Road, Larkhall. A dwellinghouse situated at No. 42 Carlisle Road was completely destroyed. Other dwellinghouses situated nearby were seriously damaged. The occupants of the dwellinghouse at No. 42 Carlisle Road, Andrew Findlay, Janette Findlay, Stacey Findlay and Daryl Findlay received injuries in the explosion, as a result of which they died. The appellants are a company incorporated under the Companies Acts, having their registered office at 123 The Strand, London. They were formerly known as British Gas Plc, as BG Plc and as BG Transco Plc. It is understood that, since at least 24 August 1986, they have been engaged in the business of being a public transporter of gas under the Gas Act 1986, as amended. They have been responsible for the transmission and distribution of gas in the area of Larkhall, among others.

[9] There has been served upon the appellants by the respondent an indictment containing a single charge in elaborate terms. Originally, that charge contained two parts which were stated as alternatives. In the first alternative part, following upon a lengthy narrative of alleged knowledge on the part of the appellants, alleged facts and events and alleged failures, the allegation was made that:

"... in December 1999, the said medium pressure 10 inch ductile iron main was used and operated by you to distribute gas to the said houses in Carlisle Road and elsewhere in Larkhall when it was extensively corroded, not in good repair or working order and leaking, and, on 22 December 1999, quantities of gas which had escaped from said medium pressure main, migrated under the ground and entered the under floor void forming the foundations of the house at No. 42 there, accumulated to form an explosive gas cloud, ignited and exploded, as a result of which said house at No. 42 was completely destroyed, adjoining properties were damaged and the said Andrew Findlay, then aged 34 years, Janette Findlay, then aged 37 years, Stacey Findlay, then aged 13 years and Daryl Findlay, then aged 11 years, received injuries from which they died then and there, and you did kill them."

[10] In the second alternative part of the charge mentioned, the respondent alleged that:

"Between 24 August 1986 and 22 December 1999, both dates inclusive, (hereinafter referred to as 'the period of time') at your business premises hereinbefore referred to, at Carlisle Road, Larkhall and elsewhere in the United Kingdom, being an employer and having a duty in terms of section 3 of the Health and Safety at Work Act 1974 and section 18 of the Gas Act 1986 to conduct your undertaking as a public gas transporter (under the said Gas Act, as amended and the Licence granted thereunder), in such a way as to ensure, so far as it was reasonably practicable, that the persons who were not in your employment but who may be affected thereby were not exposed to risks to their health or safety and, in particular that members of the public were not exposed to risks of personal injury or death from fire, explosions or other dangers arising from the distribution of gas through pipes or from the use of gas supplied through pipes, you, Transco Plc, did fail so to do in that, over said period of time, you did fail to devise, institute, implement or maintain any adequate or effective safety policy or strategy for the use, maintenance, inspection, repair or replacement of ductile iron pipes and, in particular ..."

At this point in the charge, there follows a series of paragraphs containing details of particular alleged failures on the part of the appellants. Thereafter, this part of the charge runs on as follows:

"... with the consequence that in respect of the 10 inch medium pressure ductile iron distribution main which was laid in 1973 from Caledonian Road to Canderside Toll, Larkhall aforesaid (herein referred to as 'the main') and which, from about 1991 passed through the garden ground of No. 42 Carlisle Road there, the information held on your recording systems was inaccurate, incomplete, and contained inconsistencies, and, in particular, ..."

At this point in this part of the charge, there follows a series of paragraphs of alleged shortcomings in the information referred to. Following these paragraphs this part of the charge continues as follows:

"Knowing, by 1988, that ductile iron could fail and allow gas to escape as a result of through wall graphitic corrosion when laid in certain soil types within 10 years of its being laid; being aware of the risks of personal injury and death from escapes of gas from ductile iron mains as a result of incidents concerning your distribution pipelines at Whitworth in 1986, Western (sic) Super Mare in 1987, Rochdale in 1987, Warrington in 1988 and subsequently at Ilkeston on 8 July 1995, Elland, Leeds on 30 June 1998 and Runcorn in 1998; having, by 1989, decided to restrict the future use of ductile iron as a means of transporting and distributing gas and having determined there was a need to assess and address pro-actively the risks associated with ductile iron, and in particular medium pressure distribution main pipes and to thereafter devise and implement an appropriate management safety policy, whether by a points scheme for priority replacement or otherwise, ..."

There follows, at this point in the charge, a series of detailed paragraphs in which failures on the part of the respondents are alleged in relation to the matters just mentioned. The terms of the charge are then as follows:

"... with the consequence that, in respect of the said main from Caledonian Road to Canderside Toll aforesaid and passing through Carlisle Road, you, the said Transco Plc ..."

At this point there follows a series of detailed alleged failures on the part of the appellants, including the allegation that, by 22 December 1999, they had failed to replace the said main outside No. 42 Carlisle Road aforesaid. This part of the charge then concludes in this way:

"... and in December 1999, the said medium pressure 10 inch ductile iron main was used and operated by you to distribute gas to the said houses in Carlisle Road and elsewhere in Larkhall when it was extensively corroded, not in good repair or working order and leaking, and on 22 December 1999, quantities of gas which had escaped from said medium pressure main, migrated under the ground and entered the under floor void forming the foundations of the house at No. 42 there, accumulated to form an explosive gas cloud, ignited and exploded, as a result of which said house at No. 42 was completely destroyed, adjoining properties were damaged and the said Andrew Findlay, then aged 34 years, Janette Findlay, then aged 37 years, Stacey Findlay, then aged 13 years and Daryl Findlay, then aged 11 years, received injuries from which they died then and there ...CONTRARY to section 3 and 33(1) of the Health and Safety at Work Act 1974."

[11] Following the service of this indictment, the appellants lodged, first, a Minute of Notice under section 72 of the Criminal Procedure (Scotland) Act 1995 and, secondly, a Minute of Notice under Schedule 6 of the Scotland Act 1998 raising certain matters. Among the matters raised in the former Minute were the contentions that the charge of culpable homicide contained within the first alternative part of the charge in the indictment was incompetent, or, alternatively irrelevant. Among the matters raised in the latter Minute were the following:

"That Transco plc intends to raise devolution issues within the meaning of Schedule 6 to the Scotland Act 1998 on the following grounds:

(a) No reasons will be provided for the verdict of the jury. Alternatively, if the verdict taken together with the judge's charge are reasons (which is denied), such reasons are inadequate in the circumstances of the charges against Transco plc to comply with the requirements of Article 6.1 of the European Convention on Human Rights and Fundamental Freedoms ('the Convention'). In the circumstances of the charges against Transco plc, the trial before a jury will accordingly be in breach of Article 6.1 of the Convention.

(b) In the circumstances outlined above, trial before a jury will not constitute 'a fair and public hearing ... by an independent and impartial tribunal established by law' as required by Article 6 of the Convention. The jurors will not be aware until the judge's charge at the end of the proceedings of the issues of law that arise and how the issues of fact must be adjudged in relation to them. The jurors will not have an opportunity to ask questions of witnesses in the course of their evidence. When they are considering their verdict, they will not have full access to documentary or label productions and will not have access to the transcript of testimony of witnesses during the trial. The complexity of the issues of fact and law that will arise and the manner in which they will interact and the means by which the jury reach their decision give rise to a justified apprehension that there will not be compliance with the fair trial rights guaranteed by Article 6, that a jury is not a 'tribunal' for the purposes of that Article and that injustice will result.

(c) It is likely that persons cited as potential jurors for the trial will seek to be excused in view of the likely length of proceedings on the basis of their personal circumstances. In terms of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, section 1, certain groups of jurors are entitled to be excused from jury service as of right. In addition to that group, potential jurors may be excused at the discretion of the clerk of court or the trial judge. In practice jurors are excused by the clerk of court. The practice is that no intimation is given to an accused person of the applications for excusal or the basis on the which excusal is sought. An accused person is not made aware of what numbers of persons have been excused and the basis on which they are excused. An accused person is not given any opportunity to make submissions as to whether or not a potential juror should be excused. There are no published criteria as to how applications for excusal are to be considered. In these circumstances the court before which the trial will take place does not conform to the requirements of Article 6.1 of the Convention. It is not an 'independent and impartial tribunal established by law'."

[12] The matters raised in both of these Minutes of Notice, including the competence and the relevance of the first alternative part of the charge in the indictment were the subject of submissions before a single judge. Subsequently, on 21 March 2003, that judge refused to dismiss the first alternative part of the charge in the indictment on the grounds of incompetency and irrelevancy. He went on to refuse to dismiss the indictment on the grounds stated in the Minute of Notice under Schedule 6 of the Scotland Act 1998, in so far as these were argued. Against these decisions, the appellants appealed to this court under section 74 of the Criminal Procedure (Scotland) Act 1995. On 3 June 2003 we decided that the averments in the indictment were irrelevant to instruct a charge of culpable homicide against the appellants. Accordingly on 3 June 2003 the first alternative part of the charge in the indictment was dismissed as irrelevant. At that time, consideration of the matters raised in the Minute of Notice under Schedule 6 of the Scotland Act 1998 was postponed. Those matters came before this court on 10 February 2004 and the following days, when the matters raised in paragraphs (a), (b) and (c) of the Minute of Notice were the subject of submissions.

The Decision
[13] In my opinion, the starting point in the resolution of the issues which have been raised must be the recognition that the determination of the guilt of an accused person by a jury, associated with the absence of reasons for that decision, cannot, in itself, be considered as being contrary to Article 6.1 of the Convention. That was stated by the European Court of Human Rights in Refik Saric v Denmark (Application No. 31913/96). In paragraph 1 of the Opinion of the Court it is said:

"The absence of reasons in the High Court's judgment was due to the fact that the applicant's guilt was determined by a jury, something which cannot in itself be considered contrary to the Convention (see Application No. 15957/90, decision of 30 March 1992, D.R. 72, p. 195)." (2 February 1999, unreported).

It should be recorded that that state of affairs was recognised by senior counsel for the appellants. He made it clear that, in his submissions, the issue raised in paragraphs (a) and (b) of the Minute of Notice did not raise any issue of principle related to trial by jury. He explained that his submissions were based upon the particular circumstances of this case. He contended that, in those circumstances, no prosecution of the appellants here before a jury under Scottish procedure could be fair, within the meaning of Article 6.1 of the Convention. That was because, in his submission, there were insufficient procedural safeguards to achieve fairness in the

particular circumstances of this case. The position just described was recognised as consistent with what had recently been said in Regina v Connor &c; Regina v Mirza [2004] UK (HL) 2. At paragraph 155 of the speeches, Lord Rodger of Earlsferry said this:

"Like any other human institution, however, trial by jury in criminal cases is neither perfect nor infallible. Some distinguished commentators therefore advocate its abolition and replacement with a system of trial by (imperfect and fallible) judges - as has largely happened in civil cases in England and Wales. Trial by jury, must, of course, be fair. But counsel did not submit that a fair jury trial was impossible in cases like the present. Nor did they submit that, whether by virtue of Article 6(1) of the European Convention for the Protection of Human Rights and Fundament Freedoms ('the Convention') or otherwise, juries should be required to give reasons for their verdicts. On the contrary, the appeals were argued on the footing that, in principle, jury trial was fair, even though the jury did not give reasons for their verdict."

[14] Against this background, it therefore appears to me to be necessary now to examine the particular circumstances of this case and, in the light of them, to assess the nature of the task which a jury would be required to perform in reaching a verdict here. The obvious starting point of such a consideration would be the nature of the statutory provisions under which the second alternative part of the charge in the indictment is brought. They are sections 3 and 33(1) of the Health and Safety at Work Act 1974, to which I refer hereafter as the 1974 Act. Section 3(1) provides:

"It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety."

Section 33(1) provides:

"It is an offence for a person -

(a) to fail to discharge a duty to which he is subject by virtue of sections 2-7; ..."

In the present context, it is also necessary to notice the terms of section 40 of the 1974 Act, which provides:

"In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement."

[15] In Regina v Davies [2003] ICR 586 (C.A.), it was submitted on behalf of the defendant that section 40 of the 1974 Act was not compatible with the presumption of innocence in Article 6(2) of the Convention, unless the section was read down, so as to impose only an evidential burden on the defendant. The trial judge had ruled against that submission, after which the defendant was convicted. The matter then came before the Court of Appeal which dismissed the appeal. It held that the 1974 Act was regulatory and designed to protect the health and safety of those affected by the activities referred to; that the duty holder, in choosing to operate in a regulated sphere of activity, had to be taken to have accepted the regulatory controls that went with that activity; that before any onus fell on a defendant, under section 40, to prove that it was not reasonably practicable to do more, the prosecution had to prove that the defendant owed the relevant duty and the relevant safety standard had been breached; that the facts relied on in support of the defence of reason practicability would be within the knowledge of the defendant, but, if there was merely an evidential burden on the defendant, the prosecution might face considerable difficulties, particularly in complicated, and potentially the most serious cases; that the consequences to the defendant of conviction did not involve the moral obloquy of a truly criminal offence and he would not face imprisonment; and that, for those reasons, the imposition of a legal burden of proof in section 40 of the Act was justified, necessary and proportionate and was not incompatible with Article 6(2) of the Convention. In the course of argument before us, no challenge was mounted to that decision. Accordingly, it requires to be recognised that a feature of any trial on the present indictment would be the existence of what may be called a split onus of proof. There would, of course, be the usual onus of proof upon the Crown in relation to those parts of section 3(1) of the 1974 Act other than the qualification "so far as is reasonably practicable". However, there would be a legal onus of proof upon the appellants in relation to any case which they might wish to prove, based upon those qualifying words. It was not disputed before us that the standard of proof required to be achieved by the respondent would be that of proof beyond reasonable doubt, whereas the standard of proof to be discharged by the appellants would be that of proof on a balance of probabilities. There was also no dispute that any defence based upon the words "reasonably practicable" would have potentially a very wide scope. That implied that, in the circumstances of the present case, it would be open to the appellants to base a defence, not only upon any practicable or physical restraints that might have existed upon them in relation to the corroded ductile iron pipes which were said to have failed in the present case, but also upon the basis of the limited financial resources available to the appellants to replace potentially hazardous gas mains. In that connection, it was pointed out to us that, since the inception of the appellants activities in the privatised gas industry, their business had been subjected to statutory regulation by several agencies. In practical terms, that meant, among other things, that the charges which they were able to make for the transmission of gas through their pipes were the subject of control by regulators. In turn, that meant that the financial resources available to the appellants for the maintenance or replacement of the gas mains system were limited and had to be deployed according to a system of priorities. Those priorities had to be developed upon the basis of the assessment of the risks associated with different features of the distribution system. Gas was distributed through several different kinds of pipes, including ductile iron pipes, cast iron pipes and polyethylene pipes. The primary responsibility for the regulation of the safety aspects of the appellants operations lay with the Health and Safety Executive. However other statutory agencies were involved , including Ofgas. Different statutory agencies adopted different approaches to the assessment of risk, which created a difficult situation for the appellants in the development of priorities for expenditure on maintenance or replacement of the distribution system. As I understand it, it was accepted by parties that the implications of the state of affairs described are likely to be ventilated in any trial as part of the appellants' defence, based on the statutory words "so far is reasonably practicable". Furthermore, having regard to the chronological width of the allegations made in the indictment, the appellants' operations over a period of 13 years will require to be examined.

[16] A further feature of the case which is relevant to the present consideration arises from the interaction of the terms of the second alternative charge in the indictment and the provisions of section 3(1) of the 1974 Act. In this connection it is pertinent to identify the ingredients of an offence under section 3(1) of the 1974 Act. Guidance in relation to that matter can be got from Regina v Board of Trustees of the Science Museum [1993] 1 W.L.R. 1171. That case arose out of the finding by officers of the Health and Safety Executive of the bacterium legionella pneumophila, which may cause legionnaires' disease, in the air conditioning system of the appellants. The appellants were charged, as employers, with failing to discharge their duty under section 3(1) of the 1974 Act to conduct their undertaking in such a way as to ensure, so far as was reasonably practicable, that persons not in their employment were not exposed to risks to their health and safety, in that members of the public outside the appellants' building had been exposed to risks to their health due to an inadequate system of maintenance of the air conditioning system. At the close of the prosecution evidence and again at the end of all the evidence the appellants submitted that there was no case to answer, as no actual risk to the public's health had been proved. Both submissions were rejected. In his summing up, the judge directed that the prosecution did not have to prove that members of the public had inhaled the bacteria, or that the bacteria had been outside the building to be inhaled; it was sufficient if there had been risk of it being there. The appellants were convicted and appealed against that conviction. Their appeal was dismissed. It was held that, on a true construction of section 3(1) of the 1974 Act, it was sufficient for the prosecution to prove that members of the public were exposed to a possibility of danger; that the risk that harmful bacteria might emerge into the atmosphere outside the appellants' building had exposed members of the public to a possibility of danger; and that, accordingly, since the jury had been entitled to conclude that the defendants had not discharged the burden of proving that they had taken all practical steps to minimise the risk, the conviction could not be said to be unsafe and unsatisfactory.

[17] On the basis that this case was correctly decided, in my opinion, it has significant implications in the present circumstances. Having regard to the numerous and varied allegations contained in the second alternative part of the charge, it might be that a breach of the terms of section 3(1) of the 1974 Act could be established in a variety of different circumstances, quite apart from the risk to members of the public associated with the explosion which occurred on 22 December 1999. Putting the matter in another way, there may exist a variety of possible bases for a conviction under section 3(1), in the circumstances of the present case. The jury would require to consider these possibilities and also consider the application of the qualifying words, "so far as reasonably practicable" in relation to the several bases for conviction.

[18] Another facet of the case which requires to be considered in the present context arises out of the nature of the subject matter of the present prosecution. It would, no doubt, be the case that evidence of a technical nature would be led. Furthermore, it is likely that evidence would be led relating to the manner in which, over a period of 13 years, the appellants have conducted their gas distribution operation. That, in itself, may involve voluminous and, it may be, complicated evidence relating to the maintenance and replacement of that distribution system and the prioritisation of claims arising in respect of different parts of the distribution system made upon the limited resources of the appellants. That, in turn, may involve the hearing of evidence relating to the financial resources of the appellants over the period in question and the impact which the statutory regulators had upon the availability and deployment of such resources. In the argument before us, senior counsel for the appellants submitted that there was serious doubt as to whether a jury would be able to understand and to follow evidence of that kind.

[20] As regards the likely length of the trial, a conservative estimate of six months was offered; depending on circumstances, it could endure substantially longer than that. Against that background, it was submitted for the appellants that such a trial would be most likely to impose a formidable burden on the jurors, in the form of their need to recollect detailed and complicated evidence which they had heard, it might be, many months before. It could not reasonably be expected that jurors would be able, or prepared, to make detailed notes of evidence of the expected character over such a period of time.

[21] Having identified the features and characteristics which a trial on the present indictment would be likely to possess, I consider next the criterion which must be applied at this stage, in advance of the trial, to decide whether, as submitted by senior counsel for the appellants, no prosecution before a jury under our criminal procedure could be fair, in terms of Article 6.1 of the Convention. In this regard, Heasman v J. M. Taylor & Partners 2002 S.C. 326 is of assistance. That case involved the contention on the part of the defenders that a civil jury trial in an action of damages would not constitute a fair hearing before an independent and impartial tribunal. The particular facet of the procedure in civil jury trials which was the basis of the defenders' criticism was the assessment of solatium by juries. On a reclaiming motion the case came before an Extra Division. At page 345C, Lord Hamilton said this:

"Article 6 of the Convention in so far as material provides:

'In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ...'

Section 2 of the Human Rights Act 1998 requires a court, when determining a question which has arisen in connection with a Convention right, to take into account among other things the jurisprudence of the European Court of Human Rights ('the Court'). In the nature of things the jurisprudence of the Court relative to the right under Article 6 to a fair hearing has in general evolved in the context of the retrospective consideration of what has earlier occurred in domestic courts and tribunals. Here the issue arises prospectively. The test for infringement in such circumstances may not as yet be wholly clear but, in my view, it can be taken for present purposes as being whether the act in question will inevitably or at least with practical certainty, result in a breach of the party's right to a fair hearing. That will require consideration not only of the prospective jury trial itself but also of any right to have an adverse verdict reviewed by a higher court."

Further guidance in this respect can be obtained from H.M.A. v R.M. 2003 S.C.C.R. 632. That case involved the prospective determination of the fairness of a criminal jury trial. At page 638, Lord Hamilton, giving the Opinion of the Court, recognised the possibility of situations in which the court might determine in advance that the admission of certain evidence would create unfairness as regards the proceedings as a whole. He then went on to say:

"... such a pre-emptive determination can only be made where it is clear that an application at the time for the admission of the statements would necessarily be a breach of the accused's Convention rights ...; or, put otherwise, that the admission of such statements in evidence at the trial would inevitably result in the proceedings as a whole being unfair, in the Convention sense, to the accused."

[22] In the course of the argument before us, a number of cases were brought to our attention by senior counsel for the appellants which, at first sight, might be thought to suggest that a criterion other than "a practical certainty", "inevitability", or that there would "necessarily be a breach", should be applied. One such case was Holm v Sweden 1993 18 E.H.R.R. 79. That case was concerned with the assessment ex post facto of the question of whether the applicant had been denied his right to a hearing by an independent and impartial tribunal within the meaning of Article 6(1) of the Convention. At the stage of the assessment, there had been a jury trial before a jury properly constituted under national law. At page 91, the Commission expressed the view that:

"... in the specific circumstances of the case the independence and impartiality of the District Court of Stockholm sitting with a jury was capable of appearing to be open to doubt and that the applicant's fears in this respect can be considered to be objectively justified. Accordingly, the Commission finds that the applicant's case was determined by a tribunal which cannot be regarded as independent and impartial within the meaning of Article 6(1) of the Convention."

Senior counsel for the appellants also relied in this connection upon De Cubber v Belgium 1984 7 E.H.R.R. 236. Once again the European Court of Human Rights was concerned to assess, following the conviction of a Belgian citizen, whether there had been a violation of Article 6(1). The issue which arose was that of the impartiality of the judge. At page 244 the court said this:

"In this regard, even appearances may be important; in the words of the English maxim quoted in, for example, the Delcourt judgment of 17 January 1970, 'justice must not only be done: it must also be seen to be done'. ... What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused."

[23] Senior counsel for the appellants sought to persuade us that the criteria referred to in these cases should be applied ab ante in the circumstances of this case. The argument ran that there were objectively justified doubts as to the capability of a jury to make a fair decision in accordance with the law, in the circumstances here. Putting the matter in another way, a jury in the present case would not be a tribunal which would inspire the necessary confidence in the public and the accused.

[24] In my opinion, there is no conflict between the approach adopted by Lord Hamilton, delivering the Opinion of the Court, in the dicta which I have narrated, and the criteria explained in Holm v Sweden, De Cubber v Belgium and other cases relied on by the appellants. Where, as here, the issue has been raised ab ante as to whether a violation of Article 6(1) will occur, no doubt, before the court will so conclude, there must be "a practical certainty" or "inevitability" of such a violation. However, one must go further; it is necessary to consider what breach may be a "practical certainty" or an "inevitability". If what has been put in issue is the kind of breach occurring where an accused person has objectively justified fears, or doubts, concerning the independence, impartiality or, as here, the capacity of the tribunal to accord a fair trial to the accused in the context of our system of criminal procedure, then the criteria derived from the European cases mentioned must be applied, in my opinion. In the nature of things, in such a context, one must necessarily be involved in the assessment of fears, doubts, or perceptions and whether they are objectively justified. Even where such matters are in issue ex post facto, there can be no certainty about the subject matter of these fears, doubts, or perceptions, nor, on the cases, is there a need for it. I consider that that must also be so when the assessment is one undertaken ab ante, since, in logic, the same criterion for a violation of the kind in question has to be applied. Thus, in my opinion, where the capacity of a jury to make a rational decision according to law in the present case has been put in issue, it is appropriate to apply the kind of criteria which were used in Holm v Sweden and De Cubber v Belgium. Accordingly, I am prepared to agree with the submissions of the appellants as to the way in which the capacity of a jury to make a proper decision is to be assessed.

[25] Applying those criteria to the circumstances of this case, as I have described them, my conclusion is that this part of the appellants' appeal must fail. While any trial in this case would be likely to involve complex evidence and be of substantial duration, I consider that the appellants' submissions materially exaggerated the difficulties which a jury would face. Furthermore, it appears to me that, in the making of those submissions, there was implicit a failure to recognise the assistance which could be given to a jury in this case, but which would not normally be available in a criminal jury trial of a more commonplace kind.

[26] In this particular context I propose to consider a number of facets of the problem which the appellants contended existed. In the first place, it was suggested that a jury would not normally appreciate what were the live issues in the case until a stage after the completion of the evidence, when submissions were made to them and the presiding judge charged them. It was contended that, if that state of affairs were replicated here, there would be good reason to suppose that there would be a failure on the part of the jury to identify evidence, as it was led, which might prove, in the end, to be crucial, with the result that their decision might be flawed. I am not persuaded that this apprehension is real, having regard to the special measures which might be taken here, within the constraints of our solemn criminal procedure. It is a matter of everyday occurrence, in modern practice, that prior to the leading of evidence in a criminal trial before a jury, the presiding judge gives to them an explanation of the procedure which is to be followed. There is no statutory authority for such an introduction, but, equally, there is no statutory or other legal basis for objection to such an introduction. In any trial in this case, it appears to me that it would be both appropriate and competent for the presiding judge to go somewhat further than is usual in introducing the case to the jury. In addition to the procedural guidance which is normal, I consider that it would be quite feasible and proper for the presiding judge to give an explanation to the jury, at the commencement of the trial, of the terms of the relevant sections of the Health and Safety at Work Act 1974. Furthermore, I see no reason why that explanation should not embrace guidance as to the significance of the words "so far as reasonably practicable", occurring in section 3 of that Act. I see no reason why, in addition, at the outset, the jury could not have explained to them the normal rule regarding the onus of proof resting upon the Crown and the onus of proof relating to the qualification created by those words, resting upon the appellants. There could also be given to the jury, at that stage, guidance relating to the standard of proof required of the Crown and the different and lesser standard of proof required of the accused. Indeed, with co-operation on the part of the appellants, it might be feasible for an explanation to be given to the jury as to the scope of any defence which they proposed to mount, based upon those qualifying words. In short, I consider that, within the confines of normal solemn procedure, a jury could be appraised effectively of the main issues which they would require to decide, at the outset of the trial. Thus, I am not persuaded that the appellants' fears of likely confusion on the part of a jury arising from a failure to appreciate the issues in the case at an early stage are real.

[27] In the second place, much was made in the course of the appellants' submissions concerning the risk of a failure on the part of the jury to comprehend the evidence as it emerged, particularly in the case of complex technical or financial evidence. Once again, it appears to me that those fears are without real substance, provided that the presiding judge and the advocates participating in the trial take proper steps to avoid such difficulties. In this connection, in the circumstances of this case, it appears to me that special responsibilities would rest upon the presiding judge and those appearing as advocates in the case to ensure lucid presentation. However, with proper presentation, there is no reason why evidence, even of a technical or complicated nature, should not be understood by a jury. If, during the course of any trial, it appeared to the presiding judge that that ideal was not being achieved, then, in my opinion, he would come under a duty to intervene to see that, either the advocates concerned, or the witnesses concerned, rendered the evidence being led more readily comprehensible. If the presiding judge considered that, for example, an expert witness was not making a sufficient effort to present his points in a form which a jury might reasonably be expected to understand, then I see no reason why the judge could not intervene to seek a more lucid presentation.

[28] In the third place, submissions were made by the appellants based upon their fear that, over the substantial period of time which it was expected would be occupied by the contemplated trial, members of a jury might forget evidence which they had heard at an earlier stage. These concerns were expressed upon the assumption that it would be impracticable for a jury to make full notes of the evidence led in a case such as this. While it may be that, over a period of some months, jurors might not preserve a clear recollection of all of the evidence which they had heard, it appears to me that, within the confines of our established procedure, measures could be taken to avoid the consequences of such a failure. Evidence led before juries is routinely recorded electronically and can therefore be retrieved, where necessary. In addition, modern techniques are available, which could be used to produced an agreed transcript of the evidence led, in an electronic form. I have in mind the Livenote system. If that facility were made available in this case, all those participating in the trial, that is to say the presiding judge, the advocates and the jurors could have ready access to a reliable record of the evidence which they had heard, which could be used for the purposes of making submissions, delivering a charge and verifying potentially imperfect recollections.

[29] In the fourth place, emphasis was laid by the appellants upon the difficulties which they claimed would arise from the very substantial number of documentary productions which have already been lodged in this case. As regards this aspect of the matter, it must be recognised that the mere fact that numerous productions have been lodged does not necessarily lead to the conclusion that they will be referred to during the course of any trial. Indeed, we were informed by the Advocate Depute that a substantial proportion of the productions lodged by the Crown were documents of a routine nature, which might only be required to be referred to, in the event of agreement not being reached in relation to their subject matter. However, leaving that aside, I am not persuaded that the use of a large number of documentary productions in a criminal trial presents particular difficulties. Modern electronic scanning techniques enable the contents of such productions to be stored and any part of them to be presented, almost immediately, upon visual display units, which could be available to members of the jury and others. These means have been used on occasion in cases where substantial numbers of productions were involved, such as fraud trials. In these circumstances, I am not persuaded that this aspect of the case undermines, in any way, the confidence to be reposed in a jury to make a proper decision according to the evidence.

[30] In the fifth place, there was much discussion concerning the characteristic of criminal jury trials that the decision of the jury might be conveyed in a single word verdict. While it was not submitted that the absence of reasons for the decision necessarily rendered a trial unfair, the availability of reasons for the decision of any court or tribunal did constitute a procedural safeguard, without which, depending upon the circumstances, confidence in the decision-making body might be undermined. While it is true that, at least in theory, the conclusion of any trial before a jury in this case might be a verdict couched in a single word, or two words, in view of the elaborate nature of the second alternative charge in the case, the outcome, in the event of there being a verdict of guilty, might be more likely to be a verdict under deletion of at least some parts of that charge. Such an outcome would necessarily give the parties interested some indication of the basis of the jury's decision. Further illumination regarding that would also be available by inference from the manner in which the case was presented to the jury in submission and from the presiding judge's charge.

[31] During the course of the submissions made to us, a series of decisions was relied upon by the appellants, in which it was established or accepted that juries in criminal trials had erred, in one way or another, either by failing to follow legal directions given to them by the presiding judge, or otherwise. While immediately recognising that the jury cannot be seen as an infallible decision-making body, nor could a judge or judges sitting alone be so regarded. Regrettably, from time to time, judges, as well as juries, may err in their understanding or application of the law, or in their assessment of evidence. In short, no tribunal composed of human beings can be seen as infallible. I am not persuaded by reference to the decisions mentioned, which highlight errors on the part of juries in the past, that the appellants could not be expected to receive a fair trial, within the meaning of Article 6 of the Convention from a jury in the present case.

[32] In their submissions to us the appellants also relied upon certain features of the system of civil jury trials in Scotland. It was pointed out that the causes enumerated in section 11 of the Court of Session Act 1988, and its predecessors, might be ordered to be dealt with by way of a proof, rather than a civil jury trial, "if special cause is shown", within the meaning of section 9 of the 1988 Act and its predecessors. A number of cases were cited to show that, where there were particular complexities or difficult and delicate questions of mixed fact and law, or other particular relevant circumstances, enumerated causes would be withdrawn from the system of trial by civil jury. It appears to me that all of that goes without saying. However, I am not persuaded that those arrangements as regards civil jury trials have any relevance to the issue of whether a jury under solemn criminal procedure could provide a fair trial for the appellants. It has been recognised that the issue of "special cause" why an enumerated cause should not be dealt with by a civil jury, since the enactment of section 4 of the Evidence Act 1866, is essentially a matter for the discretion conferred on the Lord Ordinary before whom the issue is raised by the legislation mentioned. I am unable to accept that examples over the years of the exercise of that discretion can have any bearing on the matter now before the court, having regard to the differing contexts and traditions of civil and criminal jury trials in Scotland. To my knowledge it has never been decided in this jurisdiction that a jury in solemn criminal proceedings would be incapable of reaching a just decision in any case, even one of the greatest complexity. If it were so decided, our system of criminal justice in solemn matters would be fundamentally undermined.

[33] I turn now to consider the submissions made to us in terms of paragraph 3(c) of the Minute of Notice lodged in this case under Schedule 6 of the Scotland Act 1998. The argument advanced was that, on account of the legislative provisions relating to the excusal of potential jurors, a jury in a criminal trial in Scotland could not be regarded as an "independent and impartial tribunal established by law", within the meaning of Article 6(1) of the Convention. This argument was based upon the provisions of section 1 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 and the implications to which those provisions were said to give rise. That section deals with a number of issues, including eligibility for jury service, entitlement to be excused from jury service and automatic excusal from jury service in certain circumstances. Section 1(5) of that Act provides:

"A person cited to attend for jury service and not excused under subsection (2) or (3) above may, if he shows to the satisfaction of the clerk of court issuing the citation that there is good reason why he should be excused from attending in compliance with the citation, be excused by that clerk of court from so attending."

It was said that this provision undermined the procedural safeguard of random selection of jurors which was essential to a fair trial and meant that the jury which was the product of a process to which the provision applied was not a tribunal "established by law".

[34] In my opinion, the foregoing submission is without merit. The ultimate composition of any particular jury will be the result of the operation of the provisions of section 1 of the 1980 Act, including section 1(5). Those provisions are, of course, part of primary legislation. Section 1(5) authorises the excusal of a person cited to attend for jury service, "if he shows to the satisfaction of the clerk of court issuing the citation that there is good reason why he should be excused...". I am unable to accept that a jury selected in accordance with these provisions is not a tribunal "established by law". The provisions which I have mentioned, which operate in the ultimate constitution of a particular jury, are plainly themselves provisions of law. It thus appears to me that the resulting jury must be seen as one "established by law". In the course of the argument before us it appeared to be suggested that, in some way, a clerk of court would excuse persons cited to attend for jury service in an arbitrary way. Considering that there must be "good reason" for excusal and considering that the clerk of court is an officer of the court, who may be assumed to act responsibly, I am unable to understand the basis of that contention.

[35] At one stage in the submissions of the appellants, it was submitted that the operation of these provisions involved "a selection process which is blatantly discriminatory". I regard that submission as extravagant and without any merit whatsoever. There is no question of a selection process being conducted at all, in my opinion. As I see it, the position is that a random selection of members of the public are cited for jury service. Parliament has authorised that certain of those persons are entitled to be excused under section 1(2) of the 1980 Act. Furthermore, under section 1(3) of that Act, in particular circumstances, other persons may be excused. It appears to me that the operation of those provisions is random, in the sense that they will operate only if persons whom they affect are cited for jury service. In any event, following upon those excusals, the pool of potential jurors remains a randomly selected pool. When the time comes for the operation of section 1(5) of the Act, it may be that certain persons can show "good reason" why they should be excused and, in that event, will be excused. Once again, the presence of such persons in the pool of potential jurors must be random. Following upon their excusal for "good reason" what will be left will remain a randomly selected pool of persons who are available for jury service, from which certain persons have been excluded by the operation of the law. When the jury is finally selected by ballot, in any reasonable sense of the word, I consider that that selection will be random.

[36] In all of these circumstances, having regard to the view which I have formed concerning the submissions made to us, it follows that I agree that this appeal should be refused.

[37] Before parting with this case I feel that it is necessary to make certain observations about a related aspect of the case. During the course of the arguments, we were given estimates concerning the potential duration of a trial in this case. It was considered that it would last at least six months and could be substantially longer. It goes without saying that, in a case of the kind involved here, there will be a need for the jury to apply themselves to the evidence which will be led with undivided attention and concentration. Involvement in such a trial as jurors would almost certainly have implications for the individuals concerned as regards their private lives, employment, or business activities. I regard the imposition of such responsibilities on members of the public as a very severe burden upon them. I do not, however, consider that the imposition of such a burden gives rise to any reasonable apprehension that the appellants will not in fact receive a fair trial. Nevertheless, in my opinion, in view of the nature of trials, such as this one may be, and similar trials of long duration, consideration should certainly be given by those responsible for the development of the law relating to criminal procedure to the question of whether an enactment should be introduced authorising trial under solemn procedure before, either a single judge, or some tribunal other than a jury of members of the public, in appropriate circumstances. An example of such provisions is to be found in sections 43 and 44 of the Criminal Justice Act 2003, which has effect in England and Wales, although I immediately accept that had those provisions been in force in Scotland, they would not have applied to the circumstances of this case. In addition, reference was made in the course of the arguments before us to similar provisions which exist in other common law jurisdictions. With the increasing complexity which has developed in the financial world and, indeed, in the background to ordinary life, it appears to me that the time has come for serious consideration to be given to the question of whether it is reasonable for the law to impose upon members of the public the kind of heavy burdens which a trial in this case and in comparable cases would involve.

TRANSCO Plc v. Her Majesty's Advocates [2004] ScotHC 57 (16 September 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord MacLean Lord Osborne Lord Hamilton	Appeal No: XC392/03 OPINION OF LORD HAMILTON in APPEAL under Section 74 of the Criminal Procedure (Scotland) Act 1995 by TRANSCO PLC Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellants: Jones, Q.C., J. Lake; Simpson & Marwick W.S.

Respondent: Mulholland A.D. Solicitor Advocate, Balfour; Crown Agent

16 September 2004

[38] The indictment served on the appellant company charged it, in the first alternative, with the culpable homicide of the four members of a single family and, in the second alternative, with a contravention of sections 3 and 33(1) of the Health and Safety at Work Act 1974, a result of that contravention being averred to have been the deaths of these four individuals. This court has, on an appeal taken from a single judge, held that the averments in the indictment do not disclose a proper basis upon which, under the existing law of Scotland, a verdict of culpable homicide could be returned; it has accordingly dismissed the indictment in so far as laid on the first alternative. The issue now before this court, again exercising its appellate jurisdiction, is whether the charge in the second alternative can be permitted to go forward to trial by jury.

[39] In Scotland there has long been a procedural distinction between proceedings on indictment and proceedings on complaint. In general, more serious offences, whether crimes at common law or contraventions of statutory provisions, are charged on indictment. Where, under statute, a contravention may be prosecuted either on indictment or on complaint, the statute prescribes the maximum penalties which may be imposed following conviction on the alternative modes of prosecution. Under the Health and Safety at Work Act 1974 (as amended) a person convicted on indictment of a contravention of sections 3 and 33(1) is liable to a fine of unlimited amount; a person so convicted on complaint is liable to a fine not exceeding £20,000. Given the gravity of the allegations made in the charge, including the averred fatal consequences, it is unsurprising that the Crown should have chosen to prosecute on indictment, even if one disregards the common law charge.

[40] The appellant, however, contends that for the Crown to prosecute the alleged statutory contravention on indictment would constitute an infringement of its Convention rights. The bases on which that contention has been advanced before this court have been set out by Lord Osborne. I gratefully acknowledge his narrative.

[41] Leaving aside for the present the contention in respect of section 1(5) of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1980, the appellant's fundamental proposition is that, in the circumstances of this case, procedure in the form of trial by jury would infringe its right, under Article 6.1 of the Convention, to a fair trial. Throughout his submissions Mr. Jones was at pains to stress that his contentions did not involve any general challenge to trial by jury in criminal cases, whether at large or in respect of alleged contraventions of the 1974 Act, but were restricted to the circumstances of this case.

[42] No trial has, of course, as yet taken place. The appellant invites this court to hold prospectively that, if this case were to proceed to trial by jury, its Convention rights would be infringed. An issue arose before us as to the correct approach to determination of this invitation. We were referred to Heasman v. J.M. Taylor and Partners 2002 S.C. 326 where, in the context of a challenge to the use of a jury in civil proceedings as the adjudicating body in respect of the assessment of damages for solatium, I tentatively suggested (at page 345) the test which might fall to be applied. Neither of my colleagues, I think, addressed that matter specifically. In H.M. Advocate v. M. (R) 2003 S.C.C.R. 632 the High Court of Justiciary, constituted on that occasion by Lord Justice-General Cullen, myself and Lord Cameron of Lochbroom required to consider whether the sheriff had been correct to sustain a devolution minute (and to dismiss the criminal charges to which it related) where it was contended that the admission of hearsay evidence at the prospective trial would infringe the accused's rights under Article 6. The court sustained a Crown appeal against the sheriff's determination. In delivering the Opinion of the Court (and accordingly in this instance with the comfort of my colleagues' concurrence in the reasoning contained in it) I said that

"such a pre-emptive determination can only be made where it is clear ... that the admission of such statements in evidence at the trial would inevitably result in the proceedings as a whole being unfair, in the Convention sense, to the accused". (para [13]).

[43] In the present appeal we were also referred to Holm v. Sweden [1993] 18 E.H.R.R. 79, where the Court of Human Rights required to decide whether the applicant's rights under Article 6 had been violated in respect that his claim (that he had been libelled) had not been determined by an independent and impartial tribunal. The claim concerned passages in a book in which assertions had been made about the conduct of the applicant, including alleged political conduct of an extreme right-wing character. A jury of nine members was constituted to hear the case. Five of these nine were members of a political party of known left-wing persuasion. The Court considered that having regard to the whole circumstances -

"the independence and impartiality of the District Court were open to doubt and that the applicant's fears in this respect were objectively justified" (page 97, para. 33).

In De Cubber v. Belgium [1984] 7 E.H.R.R. 236 the Court held that there had been a violation of the applicant's right to a hearing before an impartial tribunal in that one of the three judges (who had in criminal proceedings given judgment in the charges against him) had previously acted as investigating judge in the same matter.

[44] Both these decisions were, of course, taken after domestic proceedings had been exhausted. They provide, in my view, no direct assistance on the proper approach to an assertion of a prospective infringement of Article 6. Of course, where the constitution of a tribunal and the subject-matter for its determination are known or readily knowable in advance, it may be possible to conclude with confidence that a tribunal so constituted will not, for identifiable reasons, be capable of determining the known or knowable subject-matter as an independent and impartial tribunal (see, for example, Rojas v Berllaque [2004] 1 WLR 201). A judgment to that effect would require to be made objectively and would require consideration to be given to whether a party whose rights were in issue had objectively justified fears as to the independence and impartiality of the tribunal. But in many cases it will be impossible in advance to determine with confidence whether apprehended concerns as to the satisfaction of one or more of the requirements of Article 6 will, in the trial itself, turn out to have been well-founded. In the English case of R. v. A (No. 2) [2002] 1 AC 45 Lord Hope of Craighead at para. [107] (in the context of discussion as to the questioning of a complainant of rape as to previous sexual relations with the accused) expressed agreement with the submission made by counsel for the Crown

"that it will only be in rare and isolated cases that the question of fairness will be capable of being determined before the trial".

In Montgomery v. H.M. Advocate 2000 SCCR 1044 at page 1095B his Lordship, in discussing the effect of section 57(2) of the Scotland Act 1998, had earlier held that

"this fetter on the power of the Lord Advocate extends not only to acts which give rise to a present and immediate incompatibility but also to acts which will inevitably lead to an incompatibility in the future" (italics added).

Accordingly it is, in my view, only if the appellant can demonstrate that this is one of those "rare and isolated cases" in which it can be said at this stage that proceeding to jury trial will "inevitably" result in an infringement of the appellant's right to a fair trial that this court would be justified in sustaining the appellant's objection to that course.

[45] I am not persuaded that the appellant has satisfied that requirement. Lord Osborne has dealt fully with the contentions advanced on behalf of the appellant. I add only a few observations of my own.

[46] The indictment concerns events and conduct over a period of 13 years and some months. The subject-matter raises technical issues about the management of a major gas distribution system. The defence may involve, among other elements, consideration of financial and economic factors.

[47] Under our criminal procedure there is a facility for parties to agree facts and documents (Criminal Procedure (Scotland) Act 1995 section 256); legally represented parties have certain duties to identify in advance of trial facts which are capable of agreement and to take reasonable steps to secure such agreement (section 257); other steps can be taken by a party to render it unnecessary to lead oral evidence in relation to uncontroversial matters (section 258). While the lists of documentary and label productions attached to the indictment are long, as is the list of witnesses, there is no reason to doubt that a significant amount of relevant material to which these relate could be the subject of agreement. The same is likely to be true of some at least of any material which the defence wishes to put in evidence.

[48] There will no doubt be factual issues (whether of a primary or of a secondary kind) which are incapable of agreement and which will require to be decided by the jury. But it cannot, in my view, be said at this stage that these issues will be of such complexity and difficulty that a determination of them by a jury would constitute an unfair trial. Particular care may require to be exercised by parties' counsel in eliciting with clarity evidence which is complex or technical; but there are familiar techniques of examination and of presentation, the use of which may render relatively simple what could otherwise be unduly complicated. Juries are regularly tasked with determining issues which may turn on technical and unfamiliar materials - such as issues involving psychiatric, psychological or scientific disciplines. The burden on the presiding judge to ensure a fair trial may in this case be especially onerous. That burden will so rest throughout the trial, from the judge's introduction of the jury to the task before them at least until the framing and delivery of directions to them before they retire to consider their verdict. It will include the responsibility of explaining to them, in clear terms and under reference to the issues which in the event remain live, the legal framework against which their decisions on issues of fact require to be taken. That will, no doubt, include a direction about the "split" onus and about the different standards of proof which may require to be applied. But directions of that kind are not infrequently given to juries - for example, where an issue of diminished responsibility arises in a homicide case. There is, in my view, no reason to suppose that the trial judge will be incapable of discharging the burden imposed on him or her in this case or that the jury will be incapable of comprehending the evidence and of discharging their responsibility duly to consider and determine the live issues of fact.

[49] It is, of course, impossible to know at this stage what these live issues of fact will be. While the tract of time with which the indictment is concerned is lengthy and the averments of failures elaborate, it may be that the evidence led or ultimately insisted on is within much narrower compass. Should that arise, amendment by deletion or alteration at any time prior to the determination of the case would be competent (1995 Act section 96(2)). The issues which remain live will no doubt be identified and explored in counsel's speeches to the jury. The legal framework in which they are to be determined by the jury, including what are in this case the crucial facts and the need for corroborated proof of them, will be explained in the judge's charge. I see no reason to suppose that the jury's determination of them will either be or appear to be unfair.

[50] It is true that the jury's verdict will not in terms set forth an analysis of the process of reasoning by which it or its individual members arrived at that conclusion. But that is of the nature of trial by jury. That feature has been acknowledged by the Court of Human Rights. There is no suggestion that that feature of itself renders the proceedings unfair. Despite the inevitable absence of a document or an oral judgment setting forth its process of reasoning, the substantive issues for decision will have been focused for the jury. Some inferences, albeit of a broad character, as to the basis of its decision may be drawn from the jury's verdict, including from any deletions made in the event of a verdict of guilty being returned.

[51] For these reasons, and for the reasons more fully given by Lord Osborne, the primary contention for the appellant falls, in my view, to be rejected. I also agree with Lord Osborne that the contention advanced in relation to section 1(5) of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1980 is without merit.

[52] I accordingly agree that the appeal in respect of the devolution issues under Article 6 of the Convention should be refused.