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Cite as: [2005] ScotHC HCJAB_1, [2005] HCJAB 01, [2005] ScotHC HCJAB_01

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Her Majesty's Advocate v.McGee [2005] ScotHC HCJAB_01 (12 October 2005)

HIGH COURT OF JUSTICIARY, ABERDEEN

[2005] HCJAB01

OPINION OF LORD ABERNETHY

HM ADVOCATE

against

ANDREW McGEE

________________

Act: Jessop, AD; Crown Agent

Alt: Richards, QC, Sayers; MacRitchie & Co, SSC, Peterhead

12 October 2005

[1] The trial in this case was due to start yesterday morning, 11 October 2005, in the High Court at Aberdeen. Before it could start, however, my attention was drawn to an article which had appeared on the inside pages of The Sun newspaper on 5 October 2005. The article was a two-page spread making strong allegations of sexual and physical abuse by the accused against both his wife and his daughter, all of whom were named. The daughter is now adult but from about the age of 8 had lived in the family with her mother and the accused. When they married in 2000, she became his stepdaughter. The introduction to the article spoke of the accused's violent perversions. The article itself was detailed and explicit as to what these were said to have been. It stated that the accused had been convicted and sentenced to a period of imprisonment for having had sexual intercourse with his stepdaughter. It identified the accused's wife as living in Peterhead, Aberdeenshire. The implication was that the accused and his stepdaughter lived there also. The article had sensationalist headlines and was illustrated with photographs of the three individuals. In all there were two photographs of the accused, three of his wife and two of his stepdaughter. The article made no mention either directly or indirectly of the charges which the accused faces in this case.

[2] Mrs Richards, senior counsel for the accused, moved me to adjourn the trial out of the present sitting and to a High Court sitting not in Aberdeen. She stressed that she was not making a plea in bar of trial. She pointed out that the accused's wife was a former co-accused in the case who at the preliminary hearing had pled guilty to charge 1 on the indictment and whose plea of not guilty to charge 2 had been accepted by the Crown. She was now to be a witness for the Crown in the trial of the accused. The stepdaughter was already on the Crown list of witnesses. The accused had lodged a notice incriminating both his two former co-accused. The credibility of the principal witnesses, including the accused himself, would be an issue in the trial. Counsel accepted that she would not wish to draw the jury's attention to the article in any way but she submitted that, with an article such as this published only six days before the trial was due to start, there was a risk that one or more members of the jury would have read and remembered it. There was therefore a risk of prejudice to the accused which was so grave that no direction of the trial Judge could reasonably be expected to remove it. She referred to the cases of Stuurman v HM Advocate 1980 JC 111, HM Advocate v Mitchell 1993 SCCR 793 and McLeod v HM Advocate 1997 JC 212.

[3] In reply, the Advocate Depute opposed the motion for adjournment. He accepted that the article was a highly prejudicial attack on the accused's character. He also accepted that the credibility of the civilian witnesses would be the major issue in the trial. He pointed out, however, that there was nothing in the article which mentioned the charges in the present indictment. In that respect the case was to be distinguished from those which had been cited. The Advocate Depute submitted that the risk of any jurors having read and remembered what was in the article, and therefore the risk of prejudice, was minimal. All those cited for jury service were from Aberdeen and the nearer surroundings; none was from Peterhead. Although the article had been published only six days before the trial was due to start, it was just the one article in a mass of news items to which the public were subjected in this day and age and had not been repeated as in some of the cases cited. In all the circumstances, it was possible for the accused to have a fair trial by proceeding now.

[4] It was common ground that, although the motion before me did not amount to a plea in bar of trial, the basic test is the same and is as laid down by Lord Justice General Emslie in Stuurman v HM Advocate 1980 JC 111. At page 122 His Lordship said this:

"The test which fell to be applied and which was applied in disposing of the plea of bar is not in doubt. As the authorities show, the High Court of Justiciary has power to intervene to prevent the Lord Advocate from proceeding upon a particular indictment but this power will be exercised only in special circumstances which are likely to be rare. The special circumstances must indeed be such as to satisfy the Court that, having regard to the principles of substantial justice and of fair trial, to require an accused to face trial would be oppressive. Each case will depend on its own merits, and where the alleged oppression is said to arise from events alleged to be prejudicial to the prospect of fair trial the question for the Court is whether the risk of prejudice is so grave that no direction of the trial Judge, however careful, could reasonably be expected to remove it."

He had previously expressed the test in similar terms in Stewart v HM Advocate 1980 JC 103. The test was adopted with approval by Lord Hope of Craighead in Montgomery v HM Advocate 2001 SC (PC) 1 at page 25.

[5] It was also common ground that the article in question here was a highly prejudicial attack on the accused's character. It featured and named not just the accused but also his wife and stepdaughter, who would be the principal witnesses for the Crown. As the Advocate Depute very fairly put it, the credibility of these witnesses would be the major issue in the trial. The article was accompanied by sensationalist headlines and by photographs, one of them an almost full length photograph of the three individuals. It also stated that the accused had been convicted of having had sexual intercourse with his stepdaughter and sentenced to a term of imprisonment.

[6] The Sun is a national newspaper. I was not given actual figures but it is common knowledge that it has a wide circulation. There was no suggestion that that did not include the north-east of Scotland. The article in question stated that the accused's wife was living in Peterhead. The implication was that the accused and his stepdaughter lived there also. I accept the submission of senior counsel for the accused that, if anyone in the north-east of Scotland read that in the article, they would be more likely to read the article more fully and carefully and to remember it, at least in general terms. Counsel accepted that, as noted in the cases cited, it was notorious that the public's memory for what it read in the newspapers was short but this article was published only six days before the trial was due to start. In this context also it is appropriate to take into account the contents of the article and the manner in which it was written and presented. In all these circumstances, I am prepared to accept that there is a real risk that one or more members of the jury would have read the article and, even if they came from other parts of Aberdeenshire than Peterhead, would remember, at least in general terms, what it said. It is true that the article does not mention the present charges but, since the major issue in the trial would be the credibility of the principal witnesses, there is in my opinion a real risk that, if any juror had read and remembered the article, which is so damaging of the accused's character, he or she would from that form an adverse view of the accused's credibility.

[7] I conclude from all this that there is a risk of prejudice to the accused which can be said to be grave in the sense used in the cases cited.

[8] I have considered whether such a risk could be removed by direction of the trial Judge. In the context and circumstances of this case I have great difficulty in seeing how it could but where, as here, the motion is not a plea in bar of trial but that the trial should proceed in a different court and that is possible, then, as was stated by Lord Coulsfield when giving the opinion of the Criminal Appeal Court in McLeod v HM Advocate (at page 216), "the question must assume a somewhat different aspect". The Court in that case noted that HM Advocate v Mitchell established that the fact that a trial can take place in another court is a relevant consideration. "In that context," said Lord Coulsfield, "there must be greater room for taking account of the perception of the proceedings by the public and, indeed, by the accused himself".

[9] As has been said repeatedly when dealing with issues of this kind, each case must turn on its own facts. Having regard to the facts of this case and in light of the authorities to which I was referred, I have come to the conclusion that I should grant the motion for adjournment. Mrs Richards stated that if the case did not proceed in the High Court at Aberdeen, she would have no objection to any adjournment being of short duration. The accused is in custody and the 140 day time bar expires on 19 October. She said she was not opposed to an extension of the time limit but plainly it should not be for longer than necessary. It has been identified that the trial can be accommodated in the sitting of the High Court in Dundee starting on 14 November 2005. I shall therefore adjourn the case to that sitting. It will be a dedicated floating trial, floating for 3 days and 6 days will be allocated for it.