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Her Majesty's Advocate v. Cameron & Anor [2005] ScotHC HCJ_02 (28 October 2005) [2005] HCJ02

HIGH COURT OF JUSTICIARY

NOTE

THE HONOURABLE

LORD BRODIE

in Petition of

DOUGLAS FLEMING

for the Recovery of Documents

in causa

HER MAJESTY'S ADVOCATE

against

DOUGLAS FLEMING

___________

Petitioner: Shead, Richardson; Russel & Aitken

Respondent: Angela Graham, A.D., L. Brabender; Crown Agent

28 October 2005

Previous procedure
[1] The Petitioner in this application for the recovery of documents is Douglas Fleming. On 12 July 2005 he was served with an indictment at the instance of Her Majesty's Advocate charging him and a co-accused, James Cameron, with offences in relation to the importation and supply of controlled drugs. The Petitioner has been previously indicted in respect of substantially the same charges but with a different co-accused. The Petitioner and his then co-accused went to trial on an earlier indictment at Glasgow on 13 September 2004. On 28 September 2004 that trial was deserted simpliciter on defence motion. The Lord Advocate appealed that decision by way of Bill of Advocation. The order of the trial judge was recalled by the Appeal Court on 24 March 2005. The circumstances which led to the trial judge deserting the trial had to do with the use or possible use of a Remote Viewing Room (RVR) within the High Court building during the course of that trial and during adjournments (when the Petitioner's legal advisers were in court) at times when an audio-visual television link to the trial court was operational. These circumstances are narrated in more detail in the opinion of the Lord Justice Clerk on the appeal by way of advocation which is reported as HMA v Fleming 2005 SCCR 324.

[2] Following upon successful Crown applications to extend the 11 and 12 month periods provided by section 65(1) of the Criminal Procedure (Scotland) Act 1995, the Petitioner appeared at a preliminary hearing on 12 August 2005. This was continued until 26 August.

[3] The Petitioner and his co-accused appeared before me on 26 August. I heard parties. Mr Shead, on behalf of the Petitioner, explained that there were three preliminary issues (canvassed in four separate Minutes) which he wished to raise and which required to be determined before a trial diet could be appointed. One of these issues related to the unauthorised transmission of what occurred in the trial court to the RVR. In bar of trial and in terms of the relevant Minute (the "RVR Minute") the Petitioner contends that the fact that the unauthorised transmission had occurred amounted to a contravention of his rights as guaranteed by Articles 6(3)(c) and 8 of the European Convention on Human Rights (the "Convention"). He further contends that consequently he cannot receive a fair trial on the current indictment, that the conduct of the Lord Advocate in insisting in the prosecution is an abuse of process and that his act in so doing is ultra vires.

[4] The preliminary hearing was further continued to 31 August and then to 7 September and then to 3 October and then to 4 October, by which date I had heard argument on two of the preliminary issues. This left the RVR Minute. On 7 September I appointed the Petitioner to lodge a statement of facts and issues between the parties in relation to the unauthorised transmission point by 21 September and the Crown to lodge Answers thereto by 28 September. On 4 October 2005 I further continued the preliminary hearing until the following day with a view to determining further procedure. On 5 October I assigned 24 October 2005 and the subsequent four days as a diet of continued preliminary hearing for the purpose of leading evidence, if necessary, and assigned 17 October as a diet of continued preliminary hearing in order that the court could be updated as to progress in identifying the precise form that the hearing on 24 October should take and, in particular, the need for proof. I granted diligence for citation of witnesses and havers. On 17 October Mr Shead advised me that adjustments had been drafted to the previously lodged statement of facts and issues which would address the issues raised by the Crown in their Answers. Certain disclosures had been requested from the Crown which had not been forthcoming. The Advocate Depute advised that Mr Shead had requested sight of witness precognitions but that no explanation had been forthcoming as to why these were being sought.

The petition for recovery of documents
[5] The petition for recovery of documents was presented on 19 October 2005. It came before Lord Wheatley on Friday, 21 October 2005. Parties agreed that it was convenient that it be heard by me. By reason of the later than anticipated conclusion of a trial I was unable either to conduct the preliminary hearing fixed for 24 October on that date or hear this application. The petition accordingly called before me on 25 October 2005. I heard argument on 25 and 26 October.

[6] Petitioner avers inter alia:

"2. That a continued preliminary hearing has been fixed for 24 October 2005 to be heard by Lord Brodie.

3. That it is intended that the Court hear evidence in support of the Petitioner's plea in bar of trial.

4. That it is understood that the Crown conducted certain enquiries in the wake of the desertion of the petitioner's previous trial in September 2004.

5. That in order to prepare for the hearing [on 24 October 2005], it is necessary for the Petitioner's advisers to be given disclosure of material already requested in paragraph 3 of the petitioner's agents' letter to the Crown dated 15 September 2005 namely statements together with the working notes of those involved in the investigation and also drafts of statements and affidavits in respect of (i) all those known to have been in the Remote Viewing Room during the course of the petitioner's trial in September 2004 and (ii) all those spoken to by the Crown during the course of its subsequent investigation.

6. That it is in the interests of justice that the petitioner obtain this material. Such material is necessary for the proper preparation and presentation of the petitioner's defence."

It is the documents referred to in statement 5 that the Petitioner seeks to recover. Notwithstanding the more general reference to the Petitioner's defence their immediate purpose, as Mr Shead came to acknowledge, is for use at the preliminary hearing.

Submissions
Submissions on behalf of the Petitioner
[7] It was Mr Shead's submission that the Petitioner was entitled to require the Crown to disclose to him the fruits of their investigations subsequent to any issue arising over the unauthorised transmission, however the information was expressed. He pointed me to what the Lord Justice Clerk had said in HMA v Fleming supra at 335D to the effect that should the Lord Advocate ascertain that the unauthorised transmission might have prejudiced the defence irremediably he would decide not to pursue the case further. Mr Shead did not accept that what was being sought necessarily fell to be regarded as consisting of or including precognitions, given the difficulty which the courts had experienced in determining whether or not a particular statement was a precognition: HMA v Kerr 1956 JC 14 at 18, M'Neilie v HMA 1929 JC 50 at 53, but even if the documents he sought to recover fell properly to be described as precognitions that, in his submission, was of no consequence. The Crown had an obligation to disclose all information that may be relevant to the defence, the only exception being where a public interest pointed against disclosure but in that exceptional case there must be sufficient safeguards in place in order to ensure equality of arms as between prosecution and defence and therefore a refusal to disclose information by the Crown had to be subject to the control of the court. The Lord Advocate was no longer the gatekeeper when it came to access to information in his possession. However, public interest was not founded on here beyond an attempt, reminiscent of the approach formerly taken in relation to police statements to argue that the confidentiality of precognitions had to be protected. Because the obligation was on the Crown there was no necessity that the defence make a request for information but where a request was made it was no answer to say that the defence could discover the information by precognoscing witnesses. Witnesses might be less candid or less forthcoming with representatives of the defence than with representatives of the Crown. The defence had to know what the Crown knew. There was no need for the defence to explain what it was precisely that it wanted to know or why. There was no such thing as a fishing diligence (whatever precisely that may mean) in this context. The question to be asked was: what would a reasonable defence counsel want to know. Mr Shead commended the approach of Lord Macfadyen in Maan Petitioner 2001 SCCR 172 insofar as he recognised that it may be too late if one waited to see how the material was relevant before ordering its disclosure. However, what Mr Shead principally founded on in support of his contentions was the advice of the Privy Council given in Sinclair v HMA 2005 SCCR 446 and in Holland v HMA 2005 SCCR 417. In the event that I discerned what Mr Shead described as a "tension" as between these cases, on the one hand, and the full bench decision in McLeod v HMA (No 2) 1998 JC 67, on the other, I should follow the former on the basis that they overruled or at least superseded McLeod. He reminded me that while McLeod had been decided under reference to the Convention, the decision pre-dated the enactment of the Convention into the domestic law of Scotland.

Submissions on behalf of the Respondent
[8] The Advocate Depute opposed the application. She began by submitting, for reasons that I record below, that the application was too late. However, it should, in any event, be refused on its merits.

[9] According to the Advocate Depute, what had occurred by way of investigation when the trial was deserted on 28 September 2004 was that the High Court Manager West (Ms Catriona Bryden, a senior Procurator Fiscal Depute) had precognosced eight named persons, five of whom swore affidavits. A further three persons swore affidavits. This process was completed prior to argument on the Crown Bill of Advocation. The final affidavits had been signed on 4 October 2004. The Appeal Court was advised of that. No further investigation had been carried out although the question as to whether the Petitioner should be re-indicted had been discussed at meetings held for the purpose in Crown Office. The names of all these persons had been given to the defence. They had been provided with the affidavits.

[10] The Advocate Depute reminded me of the terms of the RVR Minute. It founded on two matters: the possibility of confidential communications having been overheard and the appearance of unfairness which is suggested by the whole circumstances. The Crown position was that the leading of evidence on these matters was unnecessary. When the RVR Minute was lodged the Petitioner must have considered that he had a stateable argument as things then stood but there had been nothing to stop him carrying out a full investigation to explore how any of the circumstances might impact on his argument.

[11] In the event that the Petitioner sought recovery of documents from the Crown it was necessary that he meet the requirements set out in Macleod and Maan Petitioner, decisions that had been approved in Sinclair (supra at 452E - 456A, 456 F) and Holland (supra at 436G, 438D - 439B). He had not done so.

[12] The Advocate Depute attached importance to the fact that the Petitioner was seeking to recover precognitions. She submitted that precognitions have always been recognised as having a particular status. They were not admissible in evidence. For reasons that she elaborated, precognitions might be an unreliable indication as to what a witness had said to the precognoscer or might be able and prepared to say at trial. They were different from police statements. They did not have the "safeguards" associated with such statements or with precognitions on oath. They have always been held to be confidential. The Advocate Depute referred me to the decisions in Kerr v HMA supra, Coll Petitioner 1977 JC 29, HMA v Megrahi (No 2) 2000 SLT 1399, Kerr v HMA 2003 SLT 582, Arthur v Lindsay (1895) 22 R 417, and Donald v Hart (1844) 6 D 1255. According to the Advocate Depute, Sinclair maintained the distinction to be drawn between police statements and precognitions. She encouraged me to read what Lord Hope had said supra at 456C as reaffirming the rule that precognitions are not recoverable.

Discussion
[13] The scope of the arguments deployed before me deserves a fuller treatment than is provided in this Note but constraints of time make that impossible. I intend no disrespect to counsel by dealing with their arguments very briefly.

[14] It is convenient to begin by mentioning two matters neither of which I intend to rely on in coming to my decision. The first relates to the timing of the presentation of this petition. As a matter of generality it is a factor pointing to the refusal of an application for commission and diligence for the recovery of documents to be used in a proof that the proof is imminent. That is for the essentially pragmatic reason that recovering, lodging and considering documents takes time. That consideration of the application (as in the present case) or granting it has the result that a previously fixed hearing has to be postponed or delayed would also be a relevant consideration in determining whether to hear or grant the application. The Advocate Depute, however, made a rather different point. She referred to the terms of sections 72(2) and 79(2) of the Criminal Procedure (Scotland) Act 1995. This application was, in terms of paragraph (b)(vi) of section 79(2) a matter not mentioned in sub-paragraphs (i) to (v) which could be resolved with advantage prior to trial. It was therefore a preliminary issue and, in terms of section 79(1) required to be raised by notice under section 72(3). Mr Shead's response was that this was a common law application which had been heard other than at a preliminary hearing. The Advocate Depute had not challenged the competency of so proceeding when the matter came before Lord Wheatley on 21 October. She was barred from doing so now. That this application was presented very late seems incontrovertible. That the need to apply for a court order for the recovery of documents should be among the matters addressed by counsel as part of their preparation for a preliminary hearing with a view to such an application being dealt with at the preliminary hearing seems similarly beyond argument. However, I would be slow to decide that it is incompetent for the Petitioner to proceed as he has and, in all the circumstances, I am not inclined to decide this application against the Petitioner upon the basis that it is late. The second matter canvassed in argument which I propose to lay aside is Mr Shead's suggestion that any defect in the terms of the Petitioner's Minute (and, by implication, any other deficiency in the presentation of the Petitioner's case) did not in the end matter because of the obligation on the court, whether derived from section 6(1) of the Human Rights Act 1998 as read with article 6 of the Convention or the common law of Scotland, to ensure that the Petitioner received a fair trial. I do not dispute that it is an obligation of the court to ensure that an accused person receives a fair trial and that that obligation subsists throughout the trial itself and, indeed, extends back into pre-trial procedure. What I have more difficulty with is the proposition that that means that a judge should substitute his judgments for judgments made by an accused's counsel as to how the accused's case should be presented. While it may be the case that in criminal proceedings the principle that a party is bound by the actings of his representative must be tempered in order to avoid unfairness or injustice, securing a fair trial requires the judge to recognise the different roles of prosecutor and defence counsel and the obligations that go with those roles (in the case of defence counsel, not imposed by the Convention, but as the Advocate Depute submitted, obligations nonetheless). Whatever may be the case where the judge is faced with blatant incompetence which is clearly prejudicial to an accused's interests, I consider it proper to proceed upon the basis that defence counsel is both competent and astute in the observance of his professional duties. It is not for the judge to assume these duties. For him to do so, in our procedure, would not be a very obvious method of securing a fair trial.

[15] In my opinion, agreeing with the Advocate Depute, what I have to apply is the law and the guidance to be found in the opinions of a full bench in McLeod and the opinion of Lord Macfadyen in Maan Petitioner. I have also found particularly useful what was said in the opinion of the court in Kerr v HMA 2002 SLT 583. I do not discern any necessary tension (which is what was suggested by Mr Shead) as between these decisions on the one hand and the advice of the Privy Council in Sinclair and Holland on the other. I entirely accept that the Crown has an obligation to disclose any evidence that is material or any information that is relevant to the defence of an accused person and I am not persuaded that that obligation is in any way qualified by the accident that the evidence (to the extent that it is proper to describe it as evidence) or the information is contained in a document that might be called a precognition. However, I do not consider that it follows that the Crown is under an obligation to disclose or that the defence has a right to demand disclosure of all information in the hands of the Crown or even all information that a reasonable defence counsel might wish to know. There would be practical difficulties in the implementation of such a supposed obligation, as was submitted by the Advocate Depute but, more importantly, to posit such a wide duty is, in my opinion, to lose sight of the important function of the Lord Advocate as prosecutor in the public interest, as discussed in McLeod and Kerr. Mr Shead challenged the proposition that Scottish criminal procedure is truly adversarial. He may well have been right to do so but whatever description is to be applied, it is a procedure in which two parties, the prosecution and the defence, have the opportunity to prepare their own respective cases with a view to presenting them to the fact-finder. A degree of confidentiality is implicit in such an arrangement. In the case of the defence the right to confidentiality is unqualified. With the prosecution it may admittedly be more complicated, but, of necessity, parties must have control over the preparation of their cases. As already touched on, as presently advised, I am not inclined to affirm any rule which is to the effect that recovery of a precognition (however precisely it might be defined) can never be ordered by the court or can only be ordered in very special circumstances. However I do accept that the description of the process described by the Advocate Depute which led to the generation of the material which the Petitioner seeks to recover points away from making such an order. What was said by the Advocate Depute was that precognitions were taken by a Procurator Fiscal Depute with a view to reporting the state of the case to Crown Office prior to a determination as to whether to proceed with a Bill of Advocation. I would regard such a communication as, on the face of it, confidential: Arthur v Lindsay supra at 420. That the defence have had the opportunity to precognose all the witnesses identified by the Crown, whose names have been disclosed, is also very relevant. This brings me back to what was said by Lord Macfadyen, applying McLeod, in Maan Petitioner supra at 188C:

"To obtain commission and diligence the petitioner must ...satisfy the test formulated in McLeod ...namely that making the order would serve a proper purpose and would be in the interests of justice. That involves ...consideration of (i) whether the material sought can to be put to legitimate use in support of the defence case or in attacking the prosecution case, (ii) whether the diligence is in the traditional sense a fishing diligence, and (iii) whether the calls in the specification are drafted to cover only material that can legitimately be [re]covered."

It is for the Petitioner to satisfy this test. In my opinion he has not done so. Essentially, Mr Shead acknowledged that. As a reasonable defence counsel, he wants to look at anything that might turn up and which might conceivably assist him with his case, irrespective of whether it could formally be put in evidence or not. He does not wish to be constrained by the terms of his Minute or the statement of facts and issues. He rejects the suggestion that a "fishing" diligence is something that should not be granted. He wants to recover everything, whatever its status, in the absence of a reason for refusing recovery based upon a specific public interest.

[16] I was not asked by either of the parties to look at the terms of what was sought to be recovered in detail. It was not suggested, for example, that documents which could be described in one way or which had been generated for a particular purpose or which contained information of a particular sort might be recoverable even if other documents were not. Both parties approached the matter on an all or nothing basis.

[17] As I have explained, I consider myself bound by McLeod and Maan, given the approval of the latter by the Privy Council. I do not consider that the Petitioner meets the test set out in Maan. To the extent that this is a separate point, I do not consider that he has explained, which it is for him to do, why the interests of justice require recovery of the material specified in the petition. The application for recovery is accordingly refused.

Leave to appeal
[18] I announced my decision refusing the Petitioner's application on 27 October 2005 prior to the calling of the continued preliminary hearing. After the preliminary hearing had called, Mr Shead moved me to grant leave to appeal from my decision refusing the application for recovery, should it be necessary for him to do so. While it was his position that the provisions of section 74(1) and (3A) of the Criminal Procedure (Scotland) Act 1995 did not apply in the circumstances in which this application for recovery of documents had been made and determined, should he be wrong about that, it was a case where the Petitioner should be allowed to take an appeal and therefore I should grant leave. It was a matter of importance to the Petitioner but it was a matter of more general importance if, notwithstanding the decisions in Sinclair and Holland, a person in the position of the Petitioner had to satisfy the test found in McLeod and Maan. In this case the court had effectively imposed a requirement for pleadings and the Petitioner was accordingly particularly anxious to obtain the recovery of documents access to which, for the reasons he had previously submitted, Mr Shead said he was entitled. This was, in any event, a case where a decision of the Appeal Court would be necessary. Mr Shead reminded me of the still pending appeal against the decision of Temporary Judge Matthews, made on 9 August 2005, to extend the 11 and 12 month periods.

[19] Mr Shead's submission that leave to appeal was unnecessary was consistent with his response to the Advocate Depute's submission that the application for recovery of documents should be refused as coming too late: the application had been made at common law; it had been presented on 21 October, which was not assigned as a preliminary hearing diet; it had been continued to 25 October with the consent of the Crown; on 25 and 26 it had been argued at a hearing which was very clearly not a preliminary hearing; and on 27 October the court had refused the application, again not at a preliminary hearing. It was clear, therefore, that that refusal was not a decision "at a first diet or a preliminary hearing" and therefore no right of appeal was conferred by section 74(1). There being no other statutory right of appeal, the Petitioner would require to proceed by way of petition to the nobile officium of the High Court, as had occurred in McLeod.

[20] The Advocate Depute addressed me on the question as to whether I had power to grant leave to appeal in terms of section 74(1) of the 1995 Act. As she had previously submitted, an application for recovery of documents was a preliminary issue in terms of section 79(2) (b), being "any other point raised by a party ...which could in his opinion be resolved with advantage before the trial". It was for that reason that she had submitted that notice of the application should have been given not less than 7 days before (the first calling of) the preliminary hearing and which should then have been disposed of at a preliminary hearing, as is required by section 72(6)(b)(i) of the Act. No notice having been given, in terms of section 79(1) the application for recovery of documents should not have been made except by leave of the court on cause shown. There was, the Advocate Depute pointed out, provision in section 72(9) for preliminary issues to be disposed of at "a further diet, to be held before the trial diet appointed under section 72A" (a preliminary issue may also be disposed of at a trial diet). The system introduced by the Criminal Procedure (Amendment) (Scotland) Act 2004 should be looked upon as one procedure. There was one procedure, not two parallel procedures. There was no need for a parallel common law procedure for dealing with applications for recovery of documents, with different rules when it came to appeal. Such applications could and should be accommodated within the procedural framework provided by the statute. What are truly to be regarded as preliminary issues should be dealt with in a uniform way. The right of appeal should not depend upon whether a preliminary issue is properly disposed of at a preliminary hearing or disposed of at some other diet. The Advocate Depute accepted the literal terms of section 74(1) might suggest that there was only a right of appeal, with leave, if the relevant decision was made "at ...a preliminary hearing" but that could not be the proper construction. Could it be suggested that where a preliminary issue was disposed of at "a further diet" in terms of section 72(9) there was no right of appeal simply because of the precise nature of the diet at which the decision was made? Section 74(1) should be construed in a purposive manner, having regard to the legislative intention which was to ensure that all matters of a preliminary nature should be expeditiously disposed of within one procedural framework before any trial diet was fixed.

[21] In the event that I agreed with her contention and took the view that I did have power to grant leave to appeal and exercised that power, the Advocate Depute made an application in terms of section 74(3A) for a direction that a period of two months should not count towards the 12 month time limit as it applied to the Petitioner and to his co-accused. In reply to that application, Mr Shead, while accepting that the appeal process takes time, submitted that two months was an unnecessarily long period. Ms Breslin, on behalf of Mr Cameron (having been allowed an adjournment until 28 October in order to take instructions) did not oppose the Crown application.

[22] At first blush I required little persuasion from Mr Shead before coming to the view that the decision to refuse the application for recovery of documents had not been made at a preliminary hearing and therefore I had no power to grant leave to appeal. The submission of the Advocate Depute caused me to reconsider. As I have already explained, I took the view that, in all the circumstances, this was a case which should not be decided against the Petitioner simply on the basis that his application was late. However, I considered the Advocate Depute to be correct when she said that an application for the recovery of documents is apt to be disposed of as a preliminary issue, due notice having been given, at a preliminary hearing or an adjourned preliminary hearing, and generally speaking, should be. That is consistent with what appears in paragraph 8.13 of Improving Practice, the report by Lord Bonomy on his review of the practices and procedures of the High Court, published in 2002, which preceded the enactment of the 2004 Act. That being so, I may too readily have rejected the Advocate Depute's submission that the Petitioner's application could only be dealt with by leave of the court on cause shown, as is required by section 79(1) of the 1995 Act, as amended. However, it remains the case that section 74(1) provides for an appeal "against a decision at a first diet or preliminary hearing". In doing so it essentially re-states the equivalent provision (in relation to preliminary diets) which was found in section 76A of the Criminal Procedure (Scotland) Act 1975, as amended, and in section 74 (1) of the 1995 Act, as originally enacted. The Act of Adjournal, in rules 9A.6 and 9A.7, similarly refers to "a decision of the High Court at a preliminary hearing". Thus, at least at first sight, a right of appeal (with leave) is conferred, not in relation to a particular decision or class of decisions but, rather, against all decisions made at a particular stage in procedure. The Advocate Depute argued, however, that that is an unduly restrictive interpretation of section 74(1). I have been persuaded that she is correct. I agree with her submission that the 1995 Act, as amended, should be construed as providing a unitary procedural framework for disposing of such issues as require to be determined. I would see it as at least a little odd were it to be the case that in a situation where a statutory procedure has been provided to deal with an application of this sort as a preliminary issue, and where the court has entertained an application which could have been dealt with as a preliminary issue within the general framework of that procedure, an accused person should be deprived of what otherwise would be a statutory right to appeal, with leave, which is conferred by the provisions that implement that procedure, simply because the decision was not made "at a preliminary hearing". It cannot be the case that if a preliminary issue is disposed of at "a further diet", which has been appointed at the preliminary hearing, as is provided by section 72(9), the accused has no statutory appeal available to him whereas if the same issue had been dealt with at the preliminary hearing itself he would have had such an appeal. While the expression "a further diet" where it occurs in section 72(9) might conceivably be a reference to a further diet of the preliminary hearing, section 72D(8) would indicate that, in the language of the statute, when a preliminary hearing is continued to another day, it is to be considered as an "adjourned preliminary hearing" rather than "a further diet". That at least suggests that in the language of the statute "a further diet" is something different from "a preliminary hearing". If that is so, a very literal and restricted construction of "a preliminary hearing" should not be adopted in the context of section 74(1) because to do so might have the result of denying an accused a right of appeal simply because a preliminary issue has been decided at a further diet. I would not regard it as a valid objection were it to be argued that prior to the enactment of the 2004 Act a disappointed petitioner who had sought an order for the recovery of documents was not thought to have any right of appeal and that nothing in the 2004 Act explicitly changes that, there being a presumption, in the construction of statutes, against the creation of a new jurisdiction. Section 3 of the 2004 Act amended section 74(1) of the 1995 Act. While this was achieved simply by the substitution of "hearing" for "diet" where that word appeared in the previous text, the making of decisions at a preliminary diet subject to appeal, albeit only with leave, followed a recommendation made at paragraph 8.21 of Lord Bonomy's report and by reason of the introduction of other new provisions for disposing of preliminary issues it conferred a right of appeal, with leave, in respect of any matter which could be dealt with as a preliminary issue. That the requirement for leave qualifies or restricts the right does not, in my opinion, mean that it is nevertheless inappropriate to regard section 74(1), as amended, as conferring a right on accused persons. That being so, it appears to me appropriate to give the sub-section a less rather than more restrictive construction.

[23] On the view that I had power to grant leave to appeal, I was persuaded that it was appropriate to do so, for the reasons advanced by Mr Shead. I made a direction under section 74(3A) in the terms proposed by the Advocate Depute.