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Cite as: [2005] ScotHC HCJAC_1, [2005] HCJAC 1
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Transco Plc v. Her Majesty's Advocate [2005] ScotHC HCJAC_1 (14 January 2005)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Osborne Lord Hamilton
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[2005HCJAC1] Appeal No: XC857/04 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL under section 74 of the Criminal Procedure (Scotland) Act 1995 by TRANSCO plc Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Jones, Q.C.; Simpson & Marwick
Respondent: Mulholland, solicitor advocate, A.D.; Crown Agent
14 January 2005
Introduction
[1] Arising out of a serious explosion with resulting fatalities which occurred on 22 Dec 1999 in Carlisle Road, Larkhall an indictment for trial in the High Court was served on the appellants in February 2003. The indictment contained a single charge, which was in elaborate terms stated in the alternative. The appellants were charged in the first place with culpable homicide. The appellants challenged the relevance of this part of the charge, and in due course that challenge was held on 3 Jun 2003 to be well founded (Transco plc v H.M.Advocate 2004 SCCR 1). Accordingly proceedings were confined to the alternative, which alleged contravention of sections 3 and 33(1) of the Health and Safety at Work etc Act 1974 (the 1974 Act). The appellants also challenged the trial of the case by jury on the ground that it did not provide sufficient procedural safeguards to satisfy the right to a fair trial. On appeal this challenge was held on 16 Sep 2004 to be not well founded (Transco plc v H.M. Advocate (No. 2) 2004 S.C.C.R. 553).[2] The appellants have now challenged certain decisions of Lord Carloway at a preliminary diet on 29 October 2004. These were his rejection of the submission that he should not preside at the trial of the appellants or any pre-trial proceedings relating thereto, and the submission that a simultaneous transcription service using software such as LiveNote should be provided during the trial.
Presiding of Lord Carloway at the trial and pre-trial proceedings
The proceedings for production of the Main Report
[3] The issue relating to Lord Carloway requires to be considered against the background of the steps which the appellants took for the recovery of a report referred to as the "Main Report" by the Health and Safety Executive (HSE). This was submitted to the procurator fiscal at Hamilton in September 2000. It followed a considerable amount of investigation of the circumstances of the explosion. Its author was Mr Kenneth Staples, a hazards installations inspector. In January 2004 the appellants presented a petition for the recovery from the Crown of various documents including the Main Report. Following certain discussions the petition was withdrawn, and the Crown provided the appellants with a copy of section 7 of Part 1 of the Main Report. In September 2004 the appellants presented a Minute in which they sought the recovery of the whole of the Main Report. The appellants averred that Mr Staples had written the report in two parts so that the first might be released, but the second, which contained his recommendations, would not. They also averred that the contents of the report would have a bearing on the role of the HSE in relation to them prior to the incident, especially in regard to the defence of reasonable practicability. The appellants understood that Mr Staples had expressed the view that they should be prosecuted only for offences under the Pipeline Safety Regulations 1996 (the regulations), and not for a contravention of section 3 of the 1974 Act. This was information relevant to the preparation and presentation of the defence and ought to be disclosed by the Crown. The Crown opposed the production of the report, on the ground that it was confidential and formed the basis for the decision to proceed to the precognition of the case. The appellants had proceeded on an erroneous assumption: Mr Staples had not recommended that the appellants be prosecuted only in respect of a contravention of the regulations. The appellants had wrongly inferred from section 7, which was concerned with the question of reasonable practicability, that Mr Staples had not recommended prosecution for a contravention of section 3 of the 1974 Act.[4] At the end of the discussion of the minute on 13 September Lord Carloway asked whether he could see a copy of the Main Report in order to reach a decision as to whether the Crown's opposition to its recovery was well founded. The Crown had no objection. Nothing was said as to the possible consequences of his doing so. In due course on 23 September Lord Carloway decided to order that that Part 1 of the Main Report should be produced by the Crown, but not to make the same order in regard to Part 2. About a week later he issued a note (Number One) in which he set out the reasons for his decision. It may be noted that there is no suggestion that Lord Carloway's decision, or his reasons for that decision, were erroneous.
[5] In that note Lord Carloway states that Part 1 extended to 43 pages, exclusive of appendices. It contained general information on the nature and extent of the investigations, and a summary of the HSE's conclusions of fact, including a statement of the legal obligations said to be incumbent on the appellants under regulations 8 and 13 of the regulations and section 3 of the 1974 Act, together with a discussion on whether those obligations had been performed. Reference was made to the appellants' awareness of the unsuitability of ductile iron as a gas conduit, their prioritised rolling programme of mains replacement in the context of the defence of reasonable practicability under section 3 of the 1974 Act and the apparent fact that on the appellants' drawings the particular pipe involved in the incident was not shown as ductile iron but as polyethylene, the very material which was being used as a replacement. Part 1 then contained a short account of the corporate history of the appellants, and substantial detail as to the circumstances of the explosion. The latter included information about the incident site, the services to it, the sequence of events, the investigations and tests carried out, together with their results, and the HSE's findings on the cause of the explosion based on all of this material. The report also considered the appellants' safety systems, especially their mains replacement and maintenance policies and record keeping over a period of some years prior to the incident. It examined their approach to the corrosion of ductile iron mains before reaching a number of conclusions as to the cause of the accident relative to the appellants' systems, especially that of maintenance. It then dealt, in section 7, with preventative measures which might have been taken, and ended with some short sections on advice previously tendered by the HSE, broad references to the legislation and general references to photographs.
[6] Lord Carloway observed in his note that Part 1 did not provide the comfort which the appellants hoped that it might in regard to a breach of section 3, and in particular in regard to the question of reasonable practicability. However, he considered that it was clear that it set out the detailed findings in fact which resulted from the investigations and tests carried out by the HSE inspectors, although some, and perhaps all, of this material might be available and already produced in another form. It was apparent that the author was not merely making a report to the procurator fiscal, but was, at least partly for the purposes of the HSE, recording the findings of the HSE investigation. Part 1 was not a confidential communication to the procurator fiscal about potential criminal proceedings, and, so far as he could discern, it did not contain any privileged material which ought to be kept confidential for fear of jeopardising the proper administration of justice. On the contrary, it was an important summary of the position of the HSE. It appeared to be a valuable tool capable of setting a framework of what was presumably the essence of the Crown case. As such and because it was the work of the principal statutory investigative body, having an unique privilege in carrying out the investigations, it was in the interests of justice that it should be disclosed to the defence. Thereafter the Crown produced a copy of Part 1, along with a contents sheet, a list of witnesses, the appendices, a list of the appendices, and a summary.
[7] As regards Part 2 of the Main Report, Lord Carloway stated: "Part 2 of the report (some 10 pages) deals with "legal considerations", notably whether the minuters had, in the view of the HSE, breached regulations 8 and/or 13 of the 1996 Regulations and/or section 3 of the 1974 act. A brief analysis of the evidence in that regard is carried out. The issue of culpable homicide is also considered, albeit primarily in an English law context". He stated as his reasons for refusing to order its production: "Part 2 is a confidential communication to the procurator fiscal concerning whether and what legal proceeding should be taken. As such, it is essentially irrelevant to any potential defence. The HSE's views on this matter will not assist in the preparation or presentation on (sic) any defence to the charges which the Crown ultimately decided to bring. Such views are inadmissible. In the interests of the proper administration of justice, it is also important that the HSE should feel free to make confidential recommendations or suggestions to the procurator fiscal concerning the potential prosecution of persons for offences under the various safety regimes which they supervise. No doubt there may be exceptions and it would be inappropriate to state that all such reports should in all circumstances remain undisclosed. In this case, however, the minuters have not satisfied the test of demonstrating that it would be in the interests of justice that Part 2 be disclosed or that its disclosure would serve a proper purpose"
The issue of disqualification
[8] When Lord Carloway gave his decision on 23 September counsel for appellants raised the question whether Lord Carloway should recuse himself. Further discussion of the question was deferred pending the issuing of Lord Carloway's note to which we have referred. Thereafter the appellants presented a further Minute in which they sought a direction that Lord Carloway should not preside over their trial or any pre-trial proceedings relating thereto.[9] Having heard parties in regard to this matter on 14 October Lord Carloway on 29 October refused the appellants' application, setting out his reasons in a further note (Number Three). In that note Lord Carloway confirmed that, prior to ordering the production of Part 1, but not Part 2, of the Main Report, he had considered the whole report, although he had not seen it since making that determination. He stated that he did so as a means of ensuring the accuracy of the Crown's contention that it only contained material which was of a confidential nature and not material which was likely to be of assistance in the proper presentation and preparation of the defence. The basis for the application was that he had read the analysis, views and recommendations for prosecution made by the HSE, whereas the appellants had not and could not therefore make submissions to him as to the accuracy of their conclusions. In giving the reasons for his decision Lord Carloway stated in paragraphs 4 and 5 of his note:
"Although a court ought, as a matter of prudence, to take a cautious approach in this area, in the sense that it should err on the side of declining where allegations of potential bias are made ab ante, nevertheless the possibility of bias being perceivable objectively must be a real one. In this case it is not.
The decision in relation to the production of the Main Report was, in general terms, in favour of the minuters. It released that part of the report which referred to evidence which was then perceived by the HSE to exist in the case. The only material not released was the recommendations by the HSE and related analysis of the Part 1 material. In fact, the content of that analysis is perhaps fairly obvious from a consideration of Part 1 but, be that as it may, the important point is that Part 2 does not contain or refer to any evidence of fact or similar material which has not already been disclosed in Part 1. There is no new information evident in Part 2 which could have any bearing upon the decisions of fact in the case, whether relevant to proof of guilt, admissibility of evidence or sentence. Had there been such information, I would not have made the decision that Part 2 should not be disclosed because of the nature of its content since, in that event, it would have fallen to be handed over under the test set out in McLeod v HM Advocate (No.2) 1998 JC 67 (see Note (number one)). For these reasons I will not decline jurisdiction over the case".
"There is no reason to suppose that the content of Part 2 could have any bearing or other effect, sub-conscious or otherwise, on any decision to be taken by the Court during the course of the jury trial or in any prior procedure. Furthermore, there is no reason to suppose that the court's awareness of the HSE's analysis of, or recommendations upon, the evidence already disclosed in Part 1 could result in any actual bias or be perceived by the informed observer as potentially creating such bias. Quite apart from the vintage of the HSE's recommendations, the court in almost any health and safety prosecution might reasonably assume that the HSE had recommended proceedings, just as it might be assumed in all prosecutions that a responsible procurator fiscal or Crown counsel had determined that there is sufficient evidence to proceed and that it is in the public interest to do so. But what the HSE or prosecuting authorities might have thought of the merits of the case in advance of the trial can have no possible bearing on the decisions to be taken upon the issues arising at the trial or in the procedural stages leading up to that trial. These issues will have to be decided, not upon the views of the HSE some years ago or how they might have set out and analysed the evidence on paper, but upon the evidence actually adduced at the trial or the material placed before the court by the parties at any procedural diet. That evidence might be radically different from anything contained in the Main Report. The fact that the judge in the case has seen that report, including the content of Part 2, could not incline the informed observer to the view that therefore the judge might be biased against one or other party".
Submissions to this court
[11] For the appellants Mr Jones did not to suggest that there had been any procedural irregularity in Lord Carloway seeking to deal with the Crown's claim of confidentiality by looking at the report. The problem arose from the fact that he had done so.[12] While the material which had already been disclosed had given the appellants some insight into the views of the author as to their culpability, they were concerned about the implications of Lord Carloway having seen the detailed evaluation of their culpability by a senior inspector of the HSE, which indicated the matters which he regarded as serious and provided the reasons for his recommendations. The views of the trial judge as to culpability, which would be relevant to sentence in the event of conviction, should be informed only by the evidence which was given in open court during the trial, so that the defence had an opportunity of eliciting evidence in mitigation. It was accepted that the contents of Part 2 were not admissible as evidence, and that Lord Carloway would make every effort to put aside what he had read. However, the appellants did not know whether and to what extent his views about the evidence and their culpability might be coloured, even unconsciously, by his reading of its contents. The author might have set out to persuade the reader that his recommendations were well founded. He might have drawn erroneous conclusions or exaggerated the position. Because they had not seen Part 2 the appellants could do nothing to counteract this. The matter also went deeper than that. There was a danger that, in the light of his reading of Part 2, Lord Carloway might attach special significance to factors relied on by the HSE which were the subject of evidence. Furthermore, whether consciously or subconsciously, the Crown might place emphasis on such factors. Unlike Lord Carloway and the Crown, the appellants had no knowledge of the contents of Part 2. It was possible that if they had been alive to its contents they would have presented their case differently.
[13] The Advocate depute emphasised at the outset of his submissions that the Main Report had been provided by the HSE some two or three years before the stage at which the Crown precognition was prepared. Since then a significant amount of evidence had been collected. The report did not contain a full summary of the evidence which the Crown intended to present at the trial. The ascertainable facts in the present case did not give rise to a real possibility of bias on the part of Lord Carloway. He had decided to order the disclosure of Part 1 and not Part 2 of the report. There had been an opportunity for detailed submissions. He had given the reasons for his decision, which had not been questioned. These included that it did not contain any facts which were not contained in Part 1. It contained only the recommendations of the HSE and the related analysis of Part 1. The content of that analysis was fairly obvious from Part 1. Lord Carloway had looked at Part 2 for a limited purpose and as part of the regular court procedure prior to the trial taking place. In these circumstances there was no objective basis for the concerns which the appellants had expressed. They were no more than fanciful and speculative. It would in any event be open to Lord Carloway, in the exercise of his duty to ensure a fair trial, to revisit his decision as to the extent to which the report should be disclosed.
[14] Towards the end of his submissions the Advocate depute responded to an invitation from the court that it be provided with more information as to the general nature and scope of Part 2 by producing a summary of its contents. This showed that Part 2 included references to the applicable legislation, and a statement as to the pieces of evidence, already set out in Part 1, which had a bearing on the particular provisions, together with conclusions as to the sufficiency of evidence to establish breaches. Thereafter there was a discussion of the appellants' account as to how they complied with the legislation, which ended with the conclusion that there nevertheless had been a breach of the regulations. The next part of the summary was headed "Mitigation", and in view of the submissions made in regard to the matter of sentence, it is right that we quote this in full. The summary states:
"Sets out various factors, which are also detailed in part 1, which the HSE anticipates may be called upon by Transco as mitigation. HSE provides comments on some of the factors specified as mitigation. Evidence upon which the comments are based are set out in part 1. E.g. states that over 4km of MPDI in Larkhall replaced by Transco following the incident [as mitigation] but HSE comments that this was the result of an enforcement notice. [Part1 of the report states that the DI sections in the Larkhall main were taken out of use by a specified date as a result of an enforcement notice]".
The summary then refers to specific failings, leakage rates, fatalities and possible preventative action which are specified in detail in Part 1.
Decision
[15] Both Mr Jones and the Advocate depute referred to a number of decisions concerned with the question whether a judge was disqualified from sitting on the ground of apparent bias. These included Bradford v McLeod 1986 S.L.T. 244, in which Lord Justice Clerk Ross at page 247 said that the law of Scotland was in accordance with the rule stated by Eve J in Law v Chartered Institute of Patent Agents [1919] 2 Ch 276 at page 289, namely that
"if there are circumstances so affecting a person acting in a judicial capacity as to be calculated to create in the mind of a reasonable man a suspicion of that person's impartiality, those circumstances are themselves sufficient to disqualify although in fact no bias exists".
Mr Jones also pointed out that in Davidson v Scottish Ministers (No 2) 2003 S.C. 103 Lord Justice Clerk Gill at paragraph 25 stated that the test which should be applied was a matter of agreement -
"It is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased".
That formulation was derived from a passage in the speech of Lord Hope of Craighead in Porter v Magill [2002] A.C.357 at paragraph 103, which related to the final convergence of English law on this subject with the test applied in Scotland and in most Commonwealth countries. Mr Jones and the Advocate depute were content to use that formulation in their submissions.
[16] In the present case, unlike Bradford and Davidson, we are concerned, not with the significance of previous conduct or statements of a judge, but with the fact that a judge had read part of a document before deciding that it should not be produced. According to the submissions made by Mr Jones this could subconsciously affect his attitude to culpability on the part of the appellants. He referred to R v Liverpool Justices, ex parte Topping [1983] 1 W.L.R.119, in which Ackner L.J. at page 125 referred with approval to a passage in the judgment of Frankfurter J in Public Utilities Commission of the District of Colombia v Pollak (1952) 343 U.S.451 at page 466, where he remarked that it was true that
"reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves".
Mr Jones also invoked the broad principles of natural justice, in accordance with which a tribunal must deal fairly and equally with the parties, citing Barrs v British Wool Marketing Board 1957 S.C.72 and Errington v Wilson1995 S.C.550. He said that the main principle which had been invoked by the appellants before Lord Carloway was that justice must not only be done but also be seen to be done. He submitted that Lord Carloway had failed to address the application of that principle to the present case. In the light of the application of Article 6(1) of the European Convention on Human Rights, he referred to Jasper v United Kingdom (2000) 30 EHRR 441, in which the European Court of Human Rights observed at paragraph 51:
" 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".
[18] It may be noted that in R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 2)[2000] 1 AC 119 at page 141 Lord Hope of Craighead remarked that in criminal cases the principle that justice must not only be done, but must also be seen to be done had its origin in the requirement of impartiality. The relevance of information independently acquired to the issue of disqualification may be seen in the judgment of the High Court of Australia in Media, Entertainment and Arts Alliance and Theatre and Managers Association, ex parte The Hoyts Corporation Pty Ltd (1993)119 A.L.R. 206. At paragraph 11 the court observed:
"The rule against bias is directed to ensuring that a judge or a member of a tribunal that is bound to act judicially brings and is seen to bring ' an impartial and unprejudiced mind to the resolution of the question' to be decided... One aspect of the rule, and the only one that is relevant for immediate purposes, is that the decision should be made on the basis of the evidence and the argument in the case, and not on the basis of information or knowledge which is independently acquired. That aspect of the rule is similar to but not identical with the rule of procedural fairness which requires a person be given an opportunity to meet the case against him or her. However, in the case of the rule against bias, the question is not whether there is or was an opportunity to present or answer a case, but whether, in the circumstances, the parties or the public might entertain a reasonable apprehension that information or knowledge which has been independently acquired will influence the decision".
"I rather think that the present case is governed by an analogous principle, that justice must not only be done but must manifestly be seen to be done; when a judge has received in private representations concerning a case, the court will not inquire whether the representations in fact worked to the prejudice of the party against whose interest they were made - it is enough that they might do so"
[21] We turn now to consider the application of that principle to the circumstances of the present case. Mr Jones strongly maintained that they were close to the circumstances of Edwards and Lewis v United Kingdom (2003) 15 B.H.R.C.189. In that case the Crown claimed public interest immunity in regard to certain evidence. Having seen that evidence, the judge decided that it should not be disclosed to the defence. It did not form part of the prosecution case and was not put before the jury. However, it related, or may have related, to an issue of fact which the trial judge had to decide, namely whether the accused had been the victims of entrapment. It included material suggesting that one of them had previously been involved in drug dealing. The trial judge later rejected the defence of entrapment, which was a matter of decisive importance in the trial. The European Court of Human Rights was not satisfied that the procedure employed to determine the issues of disclosure of evidence and entrapment in that case complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused. Mr Jones contrasted this case with Jasper v United Kingdom in which the court was satisfied that the procedure by which the trial judge assessed the need for disclosure throughout the trial was in conformity with the principles of fair trial embodied in Article 6(1). In that case there was no question of the trial judge requiring to decide a question of fact to which the undisclosed material was relevant.
[22] In approaching the facts of the particular case it is, in our view, of critical importance to determine whether there is an objective basis for a fair-minded and informed observer reaching a conclusion of apparent bias, bearing in mind that, in the words of Kirby J in Johnson v Johnson (2000) 201 C.L.R. 488 at page 509, " a reasonable member of the public is neither complacent nor unduly sensitive or suspicious". In Porter v Magill Lord Hope of Craighead pointed out at paragraph 104 that in Hauschildt v Denmark (1989) E.H.R.R.266 the court emphasised that what is decisive is whether any fears expressed by the complainer are objectively justified. The need for such justification was emphasised by Mason J. in Re J.R.L. at page 352 in words which have been quoted in other cases and deserve repetition here. He said:
"Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour".
[24] In the present case the facts relating to the guilt or innocence of the appellants would be determined by the jury and not by the trial judge. The sole relevance which it is claimed that the contents of Part 2 may have to the exercise of a function of the trial judge is in regard to the matter of sentence. It is clear that Part 2 does not contain any statement of fact which is not also contained in the part of the report which has been disclosed to the defence. The factors which it rehearses in favour of prosecuting the appellants, and the comments which it makes on what might be put forward by way of defence, appear to be based wholly on material contained in the other part of the report. Thus the appellants are not denied access to significant factual material available to the prosecution and the court. They are in a position to adduce at the trial, if they think fit, evidence to meet such factors bearing on culpability as may emerge from the terms of the report. Moreover, as would be plain to any fair-minded and duly informed observer, the trial judge's approach to sentence - should that in the event arise - will be based not on material which prior to the trial has come to his notice for another purpose but on the evidence led on either hand at the trial and on any submissions then made upon that evidence. In our view the appellants have failed to demonstrate an objective basis for the fears which they have expressed.
[25] For these reasons we are not satisfied that the appeal against Lord Carloway's decision on this issue is well founded.
Simultaneous transcription
[26] The statutory provisions which currently regulate the recording of proceedings at the trial of a person tried in solemn proceedings are contained in section 93 of the Criminal Procedure (Scotland) Act 1995. That section (side-noted "Record of trial") provides:
"(1) The proceedings at the trial of any person who, if convicted, is entitled to appeal under Part VIII of this Act, shall be recorded by means of shorthand notes or by mechanical means.
(2) A shorthand writer shall -
(a) sign the shorthand notes taken by him of such proceedings and certify
them as being complete and correct; and
(b) retain the notes.
(3) A person recording such proceedings by mechanical means shall -
(a) certify that the record is true and complete;
(b) specify in the certificate the proceedings or, as the case may be, the
part of the proceedings to which the record relates; and
(c) retain the record.
(4) The cost of making a record under subsection (1) above shall be defrayed, in accordance with scales of payment fixed for the time being by Treasury, out of money provided by Parliament".
Subsection (5) defines "proceedings at the trial" as the whole proceedings, including the evidence led at the trial. Part VIII prescribes the procedure for appeals from solemn proceedings.
[27] It is appropriate also to notice section 94 (as amended) of the Act (side-noted "Transcripts of record and documentary productions". It provides:
"(1) The Clerk of Justiciary may direct that a transcript of a record made under section 93(1) of this Act, or any part thereof, be made and delivered to him for the use of any judge.
(2) Subject to subsection (3) below, the Clerk of Justiciary shall, if requested to do so by -
(a) the Secretary of State or, subject to subsection (2B) below, the
prosecutor; or
(b) any other person, not being a person convicted at the trial, on payment
of such charges as may be fixed for the time being by Treasury,
direct that such a transcript be made and sent to the person who requested it.
(2A) If -
(a) on the written application of a person convicted at the trial and granted
leave to appeal; and
(b) on cause shown,
a judge of the High Court so orders, the Clerk of Justiciary shall direct, on payment of such charges as are mentioned in paragraph (b) of subsection (2) above, that such a transcript shall be made and sent to that person.
(2B) Where, as respects any person convicted at the trial, the Crown Agent has received intimation under section 107(10) of this Act, the prosecutor shall not be entitled to make a request under subsection (2)(a) above; but if, on the written application of the prosecutor and on cause shown, a judge of the High Court so orders, the Clerk of Justiciary shall direct that such a transcript be made and sent to the prosecutor.
... ".
[29] The Advocate depute in response submitted that the context in which Lord Carloway had considered and decided the matter was an application to him that a record by means of LiveNote should constitute the official record of the proceedings. The appellants' counsel had not submitted to Lord Carloway that he was bound by the earlier decision of the appeal court; nor was he, on a sound construction of the opinions, in fact so bound. No detailed consideration had been given at that hearing before the appeal court to the competence of the use of LiveNote at trial or to what particular use it might be put. The Crown's position before Lord Carloway and before this court was that LiveNote should not be the official means of recording the proceedings. The purpose of section 93 (as read with section 94) of the 1995 Act was to provide, for the purposes of appeal proceedings, a record of the whole proceedings at the trial. Its statutory ancestors were section 11 of the Criminal Appeal (Scotland) Act 1926 and section 274 (as read with section 275) of the Criminal Procedure (Scotland) Act 1975. The scheme of the statutory provisions did not allow for a system of recording which provided a transcript of the proceedings to be made available on a daily basis to parties during the trial. The court had a legitimate interest (in relation to the protection of witnesses, the risk of contamination of future testimony and otherwise) in protecting the official record of the proceedings against too ready dissemination. Section 9 of the Contempt of Court Act 1981 made like provision in respect of unofficial recording and the use of any such recording. The statute laid down a scheme for the making of an official record at public expense (section 93(4)). It was not for a trial judge to override that scheme. If, contrary to the Crown's submission, it was competent to direct that LiveNote be used as the means of making the official record, Lord Carloway had carefully addressed the contentions advanced in favour of and against its use and had rejected the application. It could not properly be said that he had erred in the exercise of his discretion.
[30] The Criminal Appeal (Scotland) Act 1926 introduced a right of appeal against conviction in solemn proceedings. With that introduction Parliament provided, by section 11 of that Act, that shorthand notes be taken of the proceedings at the trial and that the cost of taking them be met out of public funds. That section also made provision for the making in certain circumstances of a transcript of those notes or any part of them. Section 11(3) of the 1926 Act provided that such provision as was necessary for securing the accuracy of the notes to be taken and for the verification of the transcript might be made by Act of Adjournal. Such provision was made by section 3 of the Act of Adjournal made on 27 October 1926. Section 11 was repealed by the Criminal Procedure (Scotland) Act 1975 and, with elaboration, re-enacted as section 274 of that Act. Section 275 brought into the body of the statute the provision, which had previously been made by Act of Adjournal, for certification of the shorthand notes etc. Section 47(1) of, and Schedule 5, paragraph 1(27) to, the Prisoners and Criminal Proceedings (Scotland) Act 1993 substituted for the existing sections 274 and 275 of the 1975 Act new sections 274 and 275 which provided, among other matters, that the proceedings at a trial on indictment "shall be recorded by means of shorthand notes or by mechanical means". The expression "mechanical means" was not defined, but by 1996 (by which time the statutory provisions were sections 93 and 94 of the Criminal Procedure (Scotland) Act 1995) they were being interpreted as including recording by tape recorder, although the prime force employed by such a device is electrical. Presumably, the wider sense of the expression "mechanical" (namely "by machine") was intended. From about July 1996 in the Sheriff Court and from about July 1997 in the High Court recording by tape recorder was being used regularly as the means of recording solemn proceedings at trial. Shorthand writers ceased to be used for that purpose. The clerk of court was charged with operation of the tape recording machine and with the retention of the tape as the record.
[31] "LiveNote" is a system of recording and transcription by which a highly skilled stenographer listens to oral testimony and other matters and, by simultaneous operation of the keyboard of a computer, records on that computer the words spoken in the course of the proceedings. The recording is, by the functioning of the computer, available almost instantaneously on screen. Visual display can be made immediately accessible to counsel, judge, accused and such others as may be arranged. The intensity of the stenographer's work is such that a team of stenographers is required. The record, as keyed in by the stenographer, is subject to contemporaneous correction by "editors", who also listen to the proceedings. The whole of the computer's stored record of a day's proceedings is then once again scrutinised for errors, after which it can be printed off soon after the end of that day's proceedings. More usually it is stored on a magnetic disc for subsequent reference by a visual display unit. The facility of LiveNote, including the provision on a daily basis of discs of the day's proceedings, is inevitably expensive - a figure of £750 per day, exclusive of VAT, was mentioned in the course of the discussion. The trial in the present proceedings is anticipated to last several months.
[32] It is, in our view, plain that the intention of Parliament in enacting the provisions now contained in section 93 (as read with section 94) of the 1995 Act was to provide at public expense an official record of the proceedings at trial for the purpose of such a record being available, if appropriate, for use in the course of any appeal under the statute. That also was Parliament's intention in respect of the earlier legislative provisions. These statutory arrangements may be contrasted with those made for summary proceedings, where there need be made only a much more restricted record - which does not include a record of the evidence led (section 157). The difference may be explained by the respective seriousness, in general, of the offences charged by the different modes of procedure. It was clearly not the legislative intention that the record be made for the purpose of its use in the course of the trial. That is plain from the reference in section 93(1) to entitlement to appeal, from the reference in subsection (2) to the signing of the shorthand notes, to the certification of them as complete and correct and to their retention (all of which envisage action taken after the trial has ended) and from subsection (3) which, in respect of recording by mechanical means, again envisages post-trial action. That interpretation is confirmed by the provisions of section 94 in respect of the making available of a transcript of the record, or any part of it, made under section 93(1). The statute in particular does not envisage the making of a record of each day's proceedings which would be available at the end of that day to the parties or to any other person. That does not mean that the existence of the arrangements for recording, whether as currently by tape recorder, or as formerly by the taking by a skilled person of shorthand notes, may not in appropriate circumstances facilitate the conduct of a trial. If, for example, the judge wishes to check the exact words used by a witness in relation to some important matter, he or she may make arrangements to listen to the relevant part of the tape recording - as formerly the judge might ask the shorthand writer to translate orally his or her notes on that matter. No doubt in some circumstances, in particular if there were a serious dispute as to what precisely had been said by a witness, arrangements could be made for counsel to listen to the relevant part of the tape recording. Exceptionally, the judge might direct that a transcript be made of some critical passage. But the advantage which the existence of a recording arrangement might incidentally afford for the purposes of the trial itself does not detract from the true statutory purpose, namely, that an official record be available for the purposes of any appeal. An arrangement such as recording by LiveNote, the avowed purpose of which being to make available a daily record on a disc of the trial proceedings, is not within the scope of the statutory provisions. Nor is any other simultaneous transcription service. That is so even if it is possible, by a liberal construction of the expression "by means of shorthand notes or by mechanical means", to accommodate LiveNote, as we have described it, into that expression. It matters not that LiveNote happens to have been used, apparently by the implicit consent of parties and of the court, as the means of making the official record in the exceptional circumstances of the Lockerbie trial.
[33] Accordingly, so far as concerns the making of a record under section 93 of the Act, it was not, standing the present legislative provisions, open to Lord Carloway nor is it open to this court to direct that that record be made by means of LiveNote or any equivalent service. For that reason alone Lord Carloway was right to refuse the application made to him and this appeal must be refused.
[34] Mr. Jones submitted that the trial judge was bound, regard being had to the opinions delivered in the earlier appeal, to direct that LiveNote be used as the means of making the official record. It is at least doubtful whether a submission in these terms was made to Lord Carloway; but, in any event, on a fair construction of the observations made by the judges who heard that appeal, that submission is, in our view, unsound. Lord Osborne's observations were made in the context of discussion of a number of possible arrangements which might facilitate a fair trial. His Lordship did not suggest that, in the absence of LiveNote, the prospective trial would be unfair. Lord MacLean stated (paragraph [3]) that "it will no doubt be for consideration whether LiveNote can be usefully employed". The third member of the court made no specific reference to LiveNote. Sections 93 and 94 were not the subject of submission before that court. In these circumstances no ruling, binding on Lord Carloway or on this court, was made that LiveNote should be the means of officially recording the trial proceedings. Nor could any expectation of that mode of official record have legitimately been entertained.
[35] If, contrary to our view, it was open to Lord Carloway to direct that LiveNote be used as the means of making the official record and that he accordingly had a discretion in the matter, we are not persuaded that he erred in the exercise of it. In the Note issued by him on this matter (Number Three) and in his report to this court he carefully addressed the considerations for and against such an arrangement. We are not satisfied that, taking his reasoning in the round, it can properly be maintained that he erred in the exercise of any discretion which he may have had in the matter.
[36] The fact that the use of a system, the primary advantage of which is said to be the availability during the trial, to parties (and possibly to the presiding judge), of a verbatim record of the evidence led, is not what is contemplated by the statutory provisions does not of itself preclude an arrangement being made whereby such a system might be used on an extra-statutory and supplementary basis. That, however, is a matter initially for the parties and thereafter for authorisation (or otherwise) by the presiding judge, due regard being had to the whole circumstances of the trial in question. Although some of the considerations touching on such an arrangement were the subject of discussion before us, the application previously made to Lord Carloway was concerned only with a direction in relation to the official record. It would be inappropriate for this court to express any view on any such extra-statutory arrangement (which, in any event, was not specifically formulated) unless and until the matter was canvassed before the single judge and his decision on any specific proposal taken.
[37] In these circumstances this appeal is refused.