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Her Majesty's Advocate v. Fleming & Anor [2005] ScotHC HCJAC_27a (24 March 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Cameron of Lochbroom

[2005HCJAC27]

Appeal No: XC816/04

OPINION OF THE LORD JUSTICE CLERK

BILL OF ADVOCATION

HER MAJESTY'S ADVOCATE

Applicant;

against

(1) DOUGLAS COLIN FLEMING and (2) FINBAR MATTHEW BRADY

Respondents:

_______

For the Crown: Murphy QC, AD; Crown Agent

For the First Respondent: M E Scott QC, S M MacCall; Russel & Aitken, Denny

For the Second Respondent: No appearance

24 March 2005

Introduction
[1] On 13 September 2004 the respondents went on trial at Glasgow High Court on charges of importing and supplying controlled drugs. The Crown alleged that they had been involved in a cocaine smuggling operation carried out in South America, the Caribbean, the Continent and the United Kingdom. On 22 September counsel and solicitors for the defence discovered that for most of the trial the proceedings had been relayed in sound and vision to a Remote Viewing Room (RVR) within the High Court building. On 28 September, on the motion of the defence the trial judge, Lord McEwan, deserted the diet simpliciter. His reasons are set out in his Opinion dated 7 October 2004. The Lord Advocate has appealed by Bill of Advocation against that decision.

[2] In consequence of the decision the respondents were released. The second respondent then left Scotland. His whereabouts are unknown to the Crown. The Crown no longer insists in the Bill so far as it is brought against him.

[3] The first respondent has lodged answers to the Bill and a devolution minute (cf Scotland Act 1998, Sched 6, para 1(d)) in which he contends that the conduct of the Crown during the trial infringed his rights under articles 6 and 8 of the Convention; and that, by lodging the Bill with a view to having the proceedings recommenced, the Lord Advocate is infringing his rights under article 6 and is therefore in breach of section 57(2) of the 1998 Act.

Court 3 and the Remote Viewing Room
[4] The trial took place within Court 3, which is a high security court. Behind the dock there is an armoured glass security screen. It is fitted with pull-up blinds. A television camera covers the well of the court except for the jury box and the dock. Another covers the witness box. The first camera is connected by closed circuit relay to the RVR. When the well of the court is screened off, it is possible in the RVR to see a witness whom the public cannot see. There are several microphones in the well of the court. Some relay the sound to the RVR. One of these is placed on counsel's lectern. The sound and vision links are activated from the clerk's table.

[5] There are signs to the RVR in the entrance hall of the court building. The RVR is on the first floor. One can reach it from the entrance hall by the main staircase or by the outside door side staircase without in either case passing the security posts. On the first floor balcony there is a sign to the RVR. On this balcony there is a door to a large room which accommodates the unempanelled jurors. This door has signs which read "Unempanelled Jurors" and "Remote Viewing Room." This door is lockable, but at the time of the trial it was not usually locked and was sometimes jammed open.

[6] Within the unempanelled jurors' room there is the door to the RVR. At the time, this door did not have a lock. The RVR has two plasma screens, loudspeakers and about 50 seats. The trial judge says that when he inspected the room, he could "clearly see the courtroom and overhear the advocate depute and his junior talking to each other. What could be heard depended on how loudly they spoke."

[7] The trial judge knows of no statutory authority for the RVR, nor of any practice note, Act of Adjournal or the like. Nor do I. The Crown has not suggested that any such warrant for the use of the RVR was in force at the time of the trial. The trial judge says that he suspects that many of the judges may be unaware of the RVR. Although there were notices in the public area of the building giving directions to the RVR, it is my impression that the existence of the RVR was not well-known among the judges or, as this case seems to show, the profession. The trial judge had learned of its existence by chance in an earlier trial. The advocate depute was not aware of its existence until after the trial had started. Those acting for the defence had never heard of it. I had never heard of it until this case arose. It is remarkable that judges and lawyers who had occasion to work in Court 3 were not notified of its existence and that no protocol was in force governing its use.

[8] It appears from the Opinion of the trial judge that the RVR was created in 2002-2003 as part of the conversion work by which Court 3 was made a high security court. That work was done for the purposes of a terrorist trial that did not in the event take place. The only information that we have as to the purpose of the RVR is in the Annual Report of the Scottish Court Service for 2002-2003, according to which Court 3 "features a remote viewing room where victims of crime and members of the public can view the court proceedings without having to attend in the court room" (p 23). That raises a number of issues with which we need not concern ourselves for the purposes of this appeal. Our primary concern, in my opinion, is with the use that was made of the RVR during the trial.

How the issue arose
[9] On the morning of Wednesday 22 September senior counsel for the first respondent was told that a group of police officers whom he had seen going upstairs were going to the RVR. One of them was DI John Cuddihy, the reporting officer, who had given evidence on the first two days of the trial. Since senior counsel had not heard of the RVR before, he went to see it and found DI Cuddihy and three other police officers there. He became concerned that his confidential discussions with his client near to the lectern microphone during adjournments could have been relayed in sound and vision to the RVR.

[10] On that day there was to be a trial within a trial in which the witnesses were to be a Belgian police officer, Timo Debacker, and an undercover Dutch police officer named Mike. Earlier that morning, the trial judge had agreed to a request conveyed to him through the clerk of court that "the police" should be allowed to hear the trial within a trial in the RVR. The trial judge accepts that that decision was wrong; but nothing turns on that, because the trial within a trial did not take place. Instead, the trial judge adjourned the diet until the following day to enable senior counsel for the first respondent and the solicitor advocate for the second respondent to consider the position in the light of the discovery about the RVR.

The defence motion for desertion simpliciter
[11] On Thursday 23 September, senior counsel for the first respondent and the solicitor advocate for the second respondent moved the trial judge to desert the trial simpliciter.

[12] The parties tendered a signed statement of agreed facts. The debate proceeded on the basis of the statement and such further information as the trial judge had by then obtained. This is the statement.

"1. Transmission of video and audio was made from Court 3 to a remote viewing

room within the court building from the early part of the trial until 22nd September 2004;

2. Transmission of the feed was commenced by the clerk of court pressing

buttons on the clerk's desk within his station;

3. Transmission was commenced at the request of the Procurator Fiscal staff and

police;

4. Transmission normally commenced daily prior to the court officially sitting

and continued uninterrupted during the day until the clerk switched off the feed prior to leaving the court;

5. It follows that not only official court proceedings were transmitted but also

any audible or visual activity within the court bar during the day when the court rises;

6. Police officers connected with the trial including the reporting officer DI

Cuddihy and Crown precognition officer John Deeney were present and utilised the facilities of the remote viewing room whilst transmission took place;

7. The defence and accused were unaware of the existence of such a facility and

of its use in this case;

8. There was no official court personnel, security or court police monitoring or

securing the remote viewing room during these transmission;

9. No apparent compelling reason exists for police officers to have to utilise the

facility."

[13] In his Opinion the trial judge has amplified this statement with certain further facts that emerged from his own enquiries. The most significant of these are that on 14 September the manageress of the High Court office of the Procurator Fiscal asked the clerk of court to activate the RVR relay. The trial judge, the advocate depute and the defence were not told of this request. With the help of the High Court manager, the clerk switched the system on. On 15 or 16 September the advocate depute became aware of the RVR, and of the use being made of it, as a result of a chance remark by the manageress that she had seen the evidence of a witness named Ian McLean. The advocate depute assumed that such use of the RVR happened all the time. On a later day, the manageress told the advocate depute that the clerk had not switched on the RVR screens. The Crown junior passed a note to the clerk asking him to do so. On 20 September a protected witness was to give evidence from behind the security screens. While the court was being prepared, the clerk conveyed to the trial judge a request from the manageress that he should allow this witness's evidence to be viewed in the RVR. The clerk, the High Court Manager and the procurator fiscal who was in the court were concerned by this request. The judge refused it outright. This was when the judge first became aware of the use of the RVR during the trial.

[14] Counsel for the first respondent submitted to the trial judge that there was a risk that his confidential discussions had been overheard in the RVR. Moreover, identification was an issue in the trial. The witness Ian McLean and the first respondent had met the undercover officer named Mike in Antwerp. Mike's handler had been in the RVR on at least one occasion during McLean's evidence. The test was whether there was a risk that the defence had been prejudiced. The first respondent's rights under articles 6 and 8 had been breached.

[15] The solicitor advocate for the second respondent stated that he too had spoken to his client in the dock during adjournments not realising that their discussions could be heard. During his submissions his junior solicitor advocate gained access to the RVR without difficulty. He discovered that the audio system from the court was working in the RVR despite its having been disconnected at the clerk's table. It is not known for how long that fault had been in existence. The solicitor advocate for the first respondent submitted that this fault showed that the court had lost control. The fact that defence communications had been put at risk was itself proof of prejudice.

[16] The advocate depute accepted that the RVR ought not to have been used without the knowledge of the trial judge or the defence. He submitted that in the event nothing untoward had happened. The police had seen no more than they could have seen by sitting in court. There was no evidence that anything had been overheard or acted upon. There was no breach of either article 6 or article 8. The defence had suffered no prejudice.

The decision of the trial judge
[17] The trial judge concluded that no fair trial could continue before him. One side had, without his sanction or knowledge, sought and obtained an advantage over the other in a covert manner. At the very least, justice had not been seen to be done. The room was well advertised and easily found. The use of the room was neither supervised nor monitored. The Crown, the police and a person associated with an undercover officer had made use of the RVR. The confidential communications of the defence might have been overheard. The use of the RVR had been going on since the trial began and therefore was extensive. A disinterested observer seised of all the facts would conclude that the trial had not been fair. Furthermore, the Strasbourg case law was all to the effect that confidential communications between agent and client must be protected save in the most exceptional of cases, and that to be overheard unawares disclosed a most serious situation.

[18] The trial judge concluded his reasons for deserting the trial by saying the following.

"I agree with the defence argument that to have a risk of overhearing defence tactics and conversations about the case within the very courtroom is a breach of article 8(1). I also agree that it is a breach of article 6(1). There is clearly a 'risk' of prejudice but in my view it goes further. To me the risk of overhearing these communications is demonstrably actual prejudice" (Opinion, p 14).

Having given his reasons for deciding to desert the trial, the trial judge then said:

"That leaves only a decision as to how the trial is to be deserted. In my view what has happened here is so serious that no fair trial can now take place. I have accordingly deserted the case simpliciter. That does not leave the Crown with no remedy.

I wish to add the following as a postscript. I understand that since giving my decision a lock has now been fitted to the RVR. It seemed to me at the time and now that any desertion pro loco et tempore would have raised insuperable 'time-bar' problems for the Crown as the second accused had been in custody for many months" (ibid).

Subsequent enquiries by the Crown and the defence
[19] The averments in the Bill indicate that the Crown has resiled from certain material parts of the statement of agreed facts. This change of front is confirmed by the eleven affidavits that the Crown has lodged from persons directly involved in the use of the RVR. The Crown now contends that the request for the use of the RVR came from the staff of the procurator fiscal; that no person is known to have watched the proceedings from the RVR other than those specified in the Bill; that no person is known to have watched the proceedings remotely who could have not have competently observed the trial in court; that no person is known to have overheard discussions between the respondents and their legal representatives by means of the RVR; and that no information relating to the prosecution was provided to the advocate depute by anyone as a result of using the RVR.

[20] In his answers the first respondent denies certain material averments in the Bill and makes positive and detailed averments on matters that go beyond the statement of agreed facts. The first respondent has also lodged an affidavit from senior counsel who defended him at the trial. From these documents it is clear that the parties now differ acutely on the facts.

Submissions for the parties

Preliminary question
[21] At the outset, senior counsel for the first respondent objected to the Crown's referring to its affidavits or relying on any factual assertion that was at variance with the statement of agreed facts. The advocate depute indicated that he would challenge the decision complained of only on the question whether the diet should have been deserted simpliciter. That depended on whether there had been actual prejudice to the defence. The question should be decided by reference to the affidavits. They were the best available information.

[22] We considered that while the fuller information now submitted by the parties would be material to any decision on a plea in bar of a re-trial, the essential question for us was whether the trial judge's decision was justified by the facts that were known to him at the time. We therefore invited the advocate depute to address us on that question, but only in relation to the decision to desert simpliciter.

Submissions for the Crown
[23] The advocate depute submitted that the facts and circumstances known to the trial judge did not justify desertion simpliciter. The trial judge could not say with certainty that any harm suffered by the defence was incurable. Desertion simpliciter implied that the irregularity in the proceedings was such that a fair trial could never take place.

[24] The Crown did not seek to justify the absence of a protocol regulating the use of the RVR or to justify the use made of it during the trial without the knowledge of the trial judge or the defence. Nevertheless, the trial judge had not been justified in concluding that the Crown had sought and obtained an advantage over the defence in a covert manner. There had been, at most, a discourtesy and an oversight that was part of a series of blunders and misunderstandings.

[25] The trial judge had not been justified in concluding on the information before him that a fair trial could not now take place. He had not said why the irregularity was incurable or why the mere risk that defence conversations during the case might have been overheard was "demonstrably actual prejudice." If he wished to reach a firm conclusion on that point, he should have considered some limited form of enquiry as to what happened in the RVR. Unless any defence conversations had actually been overheard, there was no objective justification for the conclusion that the first respondent's Convention rights had been infringed (Pullar v United Kingdom, (1996) 22 EHRR 391, at para 37). In other Strasbourg cases on similar questions, the conduct complained of was shown to have occurred (eg S v Switzerland, (1992) 14 EHRR 670; Lambert v France, (2000) 30 EHRR 346; Campbell v United Kingdom, (1993) 15 EHRR 137; Campbell and Fell v United Kingdom, (1985) 7 EHRR 165).

[26] The advocate depute therefore moved us to recall the decision complained of, to substitute an order of desertion pro loco et tempore and to grant authority to the Crown to re-prosecute the first respondent.

Submissions for the first respondent
[27] Counsel for the first respondent submitted that the trial judge was correct in finding that the trial had become unfair and that there had been a breach of article 6; and, in the unique circumstances of the case, in holding that desertion simpliciter was appropriate. The Crown had been responsible for an affront to justice. It came near to an abuse of process. The essential features were the nature and seriousness of the events themselves; and the breach of article 6 with the result that justice was not seen to be done. The Crown was responsible for all of these events. It had failed to put forward a good reason why they occurred. These events must be seen in the context of the defence line that there had been police misconduct and entrapment. The use of the RVR occurred outwith the knowledge or control of the trial judge, who provided the basic safeguard of fairness, and outwith the knowledge of the defence.

[28] It was accepted that there was no evidence that anyone overheard defence conversations; but the mere fact that such conversations had been relayed to the RVR, whether overheard or not, was prejudice itself and a breach of article 6 (Campbell and Fell v United Kingdom, supra). The test was the objective test of the reasonable and informed observer (eg Hoekstra v HM Adv (No. 2), 2000 JC 391; Buchanan v McLean, 2001 SCCR 475 (PC)). If the facts had emerged after a conviction, the conviction would have been quashed and, because the Crown was responsible, authority to re-prosecute would have been refused.

[29] Desertion simpliciter was the only appropriate remedy. There could be cases in which, after a trial was found to have been unfair, further proceedings could be conducted without unfairness; but in this case the defects arose from the actions of the Crown in a trial where the conduct of the prosecution authorities was a central issue. The Crown would rely on the same witnesses in any re-trial. The onus was on the Crown to show that there could be no unfairness affecting the re-trial. The court could not be sure that a fair trial could be guaranteed.

[30] Counsel for the first respondent therefore moved us to refuse the Bill, failing which to substitute an order of desertion pro loco et tempore.

Conclusions

The decision to desert the trial
[31] The Crown does not attempt to justify or excuse what happened at the trial. Counsel are agreed that the decision to desert was one that the trial judge could reasonably have made. I agree. In my view, desertion was the right decision.

The decision to desert simpliciter
[32] In my opinion, the trial judge went too far in deserting the trial simpliciter. Where the Crown itself deserts a diet simpliciter, it is held to renounce the right to raise the prosecution again. But the same result does not necessarily follow when the court takes this course at its own hand (Hume, ii, 277; Mackenzie v Maclean, 1980 JC 92, Lord Cameron at pp 97-98). It would have been open to the Crown to re-indict this case and, in the face of a plea in bar, to rely on Mackenzie v Maclean (supra) in asking the court to let the case proceed. But that was not a realistic option, since the trial judge's conclusion that no fair trial could now take place would have remained unchallenged. That conclusion, which is at the heart of the case, could be challenged only by means of this Bill.

[33] When a judge has to decide whether or not to desert a trial, he bases his decision on such facts as are known to him at that stage (Donaldson v Kelly, 2004 SCCR 153, at para [18]). He should desert the trial if the fairness of it has been prejudiced or if there is at least a material risk that it may have been. As I have said in another context, a judge may be justified in deserting a trial even where a subsequent investigation of the circumstances establishes that there was in fact no miscarriage of justice (Gray v HM Adv, 2005 SCCR 106, at para [6]).

[34] But when the trial judge has to decide whether to desert pro loco et tempore or to desert simpliciter, he has to direct his attention to the future and particularly to the circumstances in which any re-trial will take place. Counsel for the first respondent has submitted that the test is whether at a re-trial a fair trial could be guaranteed. I do not agree. In my view, the test is whether at a re-trial an unfair trial would be inevitable. That, I think, was the approach of the trial judge.

[35] In reaching his conclusion on the point, his reasoning was in essence that the risk that defence conversations might have been relayed to the RVR, whether they were overhead or not, was actually prejudicial to the respondent and precluded the possibility of a fair trial. I do not accept this reasoning. The trial judge had to decide the point on the information that he had. That showed, so far as I can see, that the room had been used by a police officer who had completed his own evidence, by one of the procurator fiscal's precognition officers and by "other officers connected with the trial." It did not suggest that the room had been used by any police officer who was on the witness lists and had yet to give evidence. There was therefore no information to suggest that the room had been used by anyone who would not have been entitled to watch the trial from the public gallery.

[36] The more important question, in my view, related to the relaying of confidential defence conversations. On this question, it is agreed that there was no evidence that any visitor to the RVR had overheard any such conversation. For all that was known at the time, there might have been no one in the RVR during any of the breaks in the proceedings when confidential defence conversations took place. Without firm evidence on the point, the trial judge had no basis on which to conclude that the integrity of the proceedings had been fatally compromised.

[37] While the mere risk that persons in the RVR might have overheard such conversations was a sufficient justification for the desertion of the trial, it was not a sufficient justification, in my view, for the conclusion that there could never again be a fair trial.

[38] The trial judge was influenced by the consideration that the second respondent had spent many months in custody; but that consideration, I think, raised a separate issue that would become significant if and when, for the purposes of a new prosecution, the Crown were to apply under section 65 of the Criminal Procedure (Scotland) Act 1995 for an extension of time.

[39] For these reasons, the correct decision, in my opinion, would have been to desert the trial pro loco et tempore. That would have left open at least two safeguards for the defence. One was that if the Crown were to ascertain that the use of the RVR might have prejudiced the defence irremediably, the Lord Advocate would decide not to pursue the case further. The other was that if the defence were to obtain evidence to that effect, there would be grounds for a plea in bar of a re-trial (Mowbray v Crowe, 1993 SCCR 730, Lord Justice Clerk Ross at p 736B-D; Brown v HM Adv, 2002 SCCR 684, Lord Marnoch at para [11]). In the latter event, the court would sustain the plea if persuaded that there was no possibility of a fair trial (Fox v HM Adv, 2002 SCCR 647). It may be that if that plea were to be taken, the court would see the up to date information in a different light.

[40] I should add that while I accept the submission that in a case of this kind the Crown's responsibility for the events complained of is a relevant consideration, I do not accept that it necessarily rules out the option of desertion pro loco et tempore. In my view, the responsibility of the Crown in this case was not a powerful consideration since the use of the RVR had been initiated by the procurator fiscal's office manageress, without reference to the advocate depute, and since it appeared at that stage that the RVR had not been used by any of the procurator fiscal's legal staff. With hindsight it is clear that the advocate depute should have intervened as soon as he learned of the matter and should have disclosed the facts to the defence; but it may be that his incuriosity can be excused by other preoccupations in this unusually difficult and fraught trial. The advocate depute suggested to us that the trial judge's conclusion that the Crown sought and obtained an advantage in a covert manner and the submission of counsel for the first respondent that the Crown was responsible for an affront to justice, proceeded on a conspiracy interpretation of the facts. The conspiracy theory may be tenable, but on the information before the judge I think that in this case, as so often in life, the chaos theory was the more satisfactory.

The devolution minute
[41] Although counsel for the first respondent relied on Convention principles, she did not move the crave of her devolution minute, nor did she refer us to it. For this reason, I am not convinced that we are required to make a decision upon it. But in any event, I consider that articles 6 and 8 add nothing to the case for the first respondent. Scottish criminal procedure is based on an underlying principle of fairness. An aspect of that principle is that the court will prevent a prosecution from taking place, or from continuing, if it would be oppressive to the defence (cf McFadyen v Annan, 1992 JC 53; Renton and Brown, Criminal Procedure, 5th ed, para 9-21). If this case had occurred before Convention rights became part of our law, we would, in my view, have decided it in the context of that principle in exactly the same way.

[42] In any event, I consider that if it was necessary for the trial judge to refer to the Convention, he erred in holding that breaches of articles 6 and 8 had actually occurred and in holding that, in consequence of those breaches, no fair trial could now take place.

Disposal
[43] The prayer of the Bill craves the court to recall the decision of the trial judge and to remit the first respondent to an assize for trial. It is not for us to remit the first respondent to the knowledge of an assize. It is sufficient that we recall the order of the trial judge and substitute an order for desertion pro loco et tempore. There is no need for us to grant the Crown express authority to re-indict. The power to re-indict is implied in the substituted order.

[44] It will be for the Lord Advocate to decide, in the light of the affidavits lodged by both sides, and of such further enquiries as he may make, whether or not to re-indict. If he decides to re-indict, he will require to have an extension of time under section 65 of the 1995 Act. The Crown has already applied for that extension in a separate process. That application will have to be considered at a further hearing.

[45] I propose that we should pass the Bill to the extent of recalling the decision advocated so far as it relates to the first respondent, and that we should substitute an order deserting the trial against the first respondent pro loco et tempore.

Her Majesty's Advocate v. Fleming & Anor [2005] ScotHC HCJAC_27a (24 March 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Cameron of Lochbroom

[2005HCJAC27]

Appeal No: XC816/04

OPINION OF LORD OSBORNE

BILL OF ADVOCATION

HER MAJESTY'S ADVOCATE

Applicant;

against

(1) DOUGLAS COLIN FLEMING and (2) FINBAR MATTHEW BRADY

Respondents:

_______

For the Crown: Murphy QC, AD; Crown Agent

For the First Respondent: M E Scott QC, S M MacCall; Russel & Aitken, Denny

For the Second Respondent: No appearance

24 March 2005

[46] I agree that the Bill be passed for the reasons given by your Lordship in the chair and to the extent proposed by your Lordship. There is nothing that I can usefully add.

Her Majesty's Advocate v. Fleming & Anor [2005] ScotHC HCJAC_27a (24 March 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Cameron of Lochbroom

[2005HCJAC27]

Appeal No: XC816/04

OPINION OF LORD CAMERON OF LOCHBROOM

BILL OF ADVOCATION

HER MAJESTY'S ADVOCATE

Applicant;

against

(1) DOUGLAS COLIN FLEMING and (2) FINBAR MATTHEW BRADY

Respondents:

_______

For the Crown: Murphy QC, AD; Crown Agent

For the First Respondent: M E Scott QC, S M MacCall; Russel & Aitken, Denny

For the Second Respondent: No appearance

24 March 2005

[47] I agree that the Bill be passed for the reasons given by your Lordship in the chair and to the extent proposed by your Lordship. There is nothing that I can usefully add.