Scottish High Court of Justiciary Decisons

For the Minuter: Shead, Richardson; Russell & Aitken, Solicitors

For the Crown: Angela Graham AD; Crown Agent

7 September 2006

Introduction

[1]               The Minuter is Douglas Fleming. On 12 August 2005 he appeared at a preliminary hearing at Glasgow to answer an indictment charging him and his co-accused, James Cameron, with contravention of Section 170(2) of the Customs & Excise Management Act 1979 and Section 4 (3) (b) of the Misuse of Drugs Act 1971. The allegations relate to the period between 1 September 2000 and 27 September 2002. The Minuter was represented by Mr Shead, Advocate and Mr Richardson, Advocate. The preliminary hearing was continued to 26 August 2005. On 26 August 2005 Mr Shead, on behalf of the Minuter, explained that there were three preliminary issues (canvassed in four separate Minutes) which he wished to raise. All of them required to be determined before a trial diet could be appointed. What then followed, at a number of continued preliminary hearings, were attempts to determine these issues expeditiously and effectively. It is a matter of no satisfaction that so unsuccessful was I in my attempts, that when the case called before me on 17 July 2006, after many intervening hearings, none of the preliminary issues had yet formally been determined.

[2] This Note is concerned with the issue of delay, as canvassed before me first, on 3 and 4 October 2005 and again on 17 July 2006. Before turning to the argument it will be necessary to set out the history of the case in some detail, both the history before and after 12 August 2005, but first, in order to provide a context and to explain the procedure that has been followed, it is convenient briefly to summarise the three issues, of which delay is one, introduced by way of Minute and listed by Mr Shead at the hearing on 26 August 2006. I shall also mention a further issue, the raising of which has had an impact upon the progress of the proceedings.

[3] This issue arises from the Minuter having first appeared on petition on 1 October 2002 and yet, for reasons to which I shall return, having only been served with the present indictment on 12 July 2006 citing him to attend the preliminary hearing on 12 August 2006.

[4] The Crown required to apply for extension of the 11-month (until 12 August 2005) and 12-month periods (until 12 September 2005) provided, respectively, by paragraphs (a) and (b) of section 65 (1) the Criminal Procedure (Scotland) Act 1995, as amended by the Criminal Procedure (Amendment) (Scotland) Act 2004. These applications, which were opposed, came before Temporary Judge Matthews QC. On 9 August 2005 Temporary Judge Matthews he granted both applications. That decision was appealed by the Minuter. During the hearing before me on 17 July 2006 this was referred to as the "section 65 appeal". The section 65 appeal was heard in January 2006 and advised on 30 August 2006. The neutral citation of the decision of the Appeal Court is in Fleming v HMA [2006] HCJAC 64. As at the date of the most recent hearing before me, it was not known when the section 65 appeal would be determined.

[5] The contention for the Minuter before me was that because he had been cited to a preliminary hearing and not to a trial diet at a duly constituted sitting, the indictment with which he had been served was incompetent, having regard to the terms of the transitional provisions contained in the Criminal Procedure (Amendment) (Scotland) Act 2004 (Commencement, Transitional Provisions and Savings) Order 2004, SSI 2004/405.

[6] I heard argument on the competency of the indictment on 31 August 2005. On 7 September 2005 I made an Opinion available what is headed up as an Opinion but perhaps more properly should be regarded as a Note, in which I indicated, for the reasons there set out, that I proposed to repel the preliminary plea to the effect that the indictment is a nullity or otherwise incompetent. However, for reasons to which I shall return when narrating the procedural history of the case, I did not pronounce an interlocutor formally repelling the plea.

[7] In determining the section 65 appeal the Appeal Court gave its opinion on this preliminary issue. It held the indictment to be competent.

[8] I have already observed that the Minuter first appeared on petition on 1 October 2002. He was then remanded in custody. He appeared again on 8 October 2002 when he was fully committed and again was remanded in custody. However, an application to extend the 80 and 110 day time limits having been refused, he was released from custody on 21 January 2003. After a procedural history to which I shall return, he went to trial on 13 September 2004 at Glasgow High Court, together with his then co-accused, Finbar Matthew Brady. That trial was deserted on 28 September 2004 in circumstances which had to do with the use or possible use of the Remote Viewing Room (RVR) within the High Court building during the course of the trial and during adjournments. The trial judge deserted the trial simpliciter. The Lord Advocate appealed against that decision by way of Bill of Advocation. On 24 March 2005 the Appeal Court recalled the order of the trial judge and substituted an order for desertion pro loco et tempore. That decision is reported as HMA v Fleming 2005 SCCR 324. In his opinion the Lord Justice-Clerk explained that there was no need to grant the Crown express authority to re-indict. The power to re-indict was implied in the substituted order. The Lord Justice-Clerk further observed that it would be for the Lord Advocate to decide, in the light of available information, whether or not to re-indict. If he did decide to re-indict, if he was to proceed to trial he would require to apply for, and obtain, an extension of time under section 65 of the 1995 Act. On 21 June 2005 an application was made directly to the Appeal Court for an extension of the 12-month period. The competency of this was questioned, no indictment having been served since desertion of the trial. The Crown withdrew its application. It then made the application for extension which was granted by Temporary Judge Matthews.

[9] Notwithstanding the extensions of the time-bar, it is the contention of the Minuter, having regard to the history of these proceedings, that the Lord Advocate has no power further to insist with this prosecution in that to do so would be incompatible with the Minuter's right to a fair trial within a reasonable period of time, as guaranteed by Article 6 (1) of the European Convention on Human Rights.

[10] I heard argument on the issue of delay in bringing the Minuter to trial within a reasonable period of time at a continued preliminary hearing on 3 and 4 October 2005. At that time I had an expectation of being able to determine not only the second but also the third preliminary issue within a relatively short period of time. I therefore did not issue a Note nor pronounce an interlocutor. On 11 July 2006 the Minuter lodged a further devolution Minute in which it was contended that (irrespective of what might have been the position in October 2005) the absence of prospect of a trial before September 2006 meant that for the Lord Advocate to continue with the proceedings would result in a contravention of the Minuter's rights under article 6. Mr Shead drew my attention to this further devolution Minute at the continued preliminary hearing on 17 July 2006. Despite the contention of the Advocate Depute that because the Crown was not in a position completely to justify such lapse of time as had occurred subsequent to October 2005, it was not appropriate to hear full argument, I invited submissions on the delay issue. I record these submissions, together with those made on 3 and 4 October 2005, and my decision on them, later in this Note.

[11] This issue arises out of events at the trial of the Minuter before Lord McEwan in Glasgow between 13 and 22 September 2004 to which I have already referred and which, as they were then understood, are narrated in the opinion of the Lord Justice-Clerk which is reported as HMA v Fleming supra. Put shortly, it would appear that during the trial there were transmissions of sound and vision to the Remote Viewing Room at times when the defence were not aware that this was happening. The Minuter is concerned to protect the confidentiality of any discussions with his legal advisers. He argues that because transmissions took place while such discussions were taking place there has been a violation of his rights as guaranteed by Articles 6 (3) (c) (c) and 8 of the European Convention on Human Rights and that therefore the Lord Advocate cannot proceed with the case, having regard to the terms of section 57 (2) of the Scotland Act 1998. That contention is advanced in a devolution Minute. The Minuter also contends, under reference to a separate Minute (with the result that two Minutes address this issue), that for the Lord Advocate to insist in this prosecution would be oppressive and unfair as a matter of common law and therefore the case should not be allowed to proceed.

A further issue: recovery of documents
[12] A preliminary hearing was fixed for 24 October 2005 and subsequent days for the purpose of resolving the third preliminary issue after the leading of such evidence as the parties wished. On 19 October 2006 a petition for the recovery of documents was lodged on behalf of the Minuter. In circumstances that are referred to later in this Note, I heard and refused this application. That decision was appealed by the Minuter. The appeal is yet to be heard.

[13] On 1 October 2002 the Minuter appeared in the Sheriff Court at Glasgow to answer a petition charging him, inter alia, with contraventions of Section 170(2) of the Customs & Excise Management Act 1979. He was committed for further examination and remanded in custody. On 8 October 2002 the Minuter appeared again. He was fully committed and remanded in custody, as were Martin Toner and Ian McLean, who had also appeared on petition.

[14] On 23 October 2002 a warrant was granted for the arrest of Finbar Matthew Brady.

[15] It was proposed to indict the Minuter to a special sitting of the High Court at Glasgow commencing on 23 January 2003. The indictment and notice of compearance were not served timeously by reason of an error on the part of the prison authorities. The Minuter was re-indicted to a sitting of the High Court at Edinburgh commencing on 3 February 2003. Four accused were named in that indictment: Mr Cameron, Martin Toner, the Minuter, and Ian Maclean. On 15 January 2004 an application to extend the periods of 80 and 110 days was refused.

[16] On 20 January 2003 the trial against the Minuter was adjourned to the sitting of the High Court at Glasgow commencing on 10 March 2003.

[17] On 21 January 2003 Crown counsel instructed that the Minuter be released from custody. As at that date the 12-month time-bar fell on 1 October 2003.

[18] On 6 March 2003 a Minute under Section 80 of the 1995 Act was called on behalf of the Minuter's then co-accused, Ian McLean. The contention on behalf of McLean was that the defence was not fully prepared. A grant of Legal Aid was being sought to allow a locus inspection in Antwerp and the further precognition of witnesses. On McLean's motion the trial was postponed to the sitting of the High Court at Glasgow commencing on 25 August 2003.

[19] On 4 July 2003 at a diet under Section 72 of the 1995 Act the trial was postponed on the motion of the Minuter until 6 October 2003. The 12-month time-bar in respect of the Minuter was extended, without opposition, until 17 October 2003.

[20] On 25 September 2003 the trial was adjourned to the sitting of 17 November 2003 on defence motion (although I was informed that as at that date parties envisaged that the trial would not begin until a date in January 2004). The 12-month time-bar in respect of the Minuter was extended, without opposition, to 31 January 2004.

[21] On 26 November 2003 the trial was adjourned on joint motion until 26 January 2004 and the 12-month time-bar was extended, without opposition, until 6 February 2004.

[22] On 26 January 2004 the case was called with a view to the Crown intimating a notice under section 67 of the 1995 Act.

[23] As at 5 February 2004 Finbar Brady had been apprehended in Holland and an order for his extradition made. When the case called on 5 February the Crown moved to adjourn the case to the sitting of 9 February 2004, it being the Crown's wish to try the then four accused together with Brady. That motion was granted, in the face of opposition on behalf of the Minuter, as was the motion to extend the 12-month time-bar in respect of the Minuter, again despite opposition, to 13 February 2004.

[24] On 11 February 2004 Brady appeared on petition in Glasgow Sheriff Court. On the same day the indictment against the Minuter was called and deserted pro loco et tempore. The time-bar in respect of the Minuter was extended until 14 May 2004. The Minuter had opposed both the motion to desert and the motion to extend. A warrant was granted to arrest Mr Cameron who had failed to appear.

[25] The Minuter was indicted to a sitting of the High Court at Glasgow commencing on 4 May 2004. The new indictment was directed against Mr Cameron, Toner, the Minuter and Brady. Ian McLean was listed as a Crown witness.

[26] On 30 April 2004 there was a hearing of a Minute under Section 80 of the 1995 Act at the instance of Finbar Brady. Brady's motion was to postpone the trial because he was not ready for trial. Without opposition to the respective motions, the trial was postponed to a sitting of 9 August 2004 and the time-bar in respect of the Minuter was extended until 11 August 2004.

[27] On 13 July 2004 Martin Toner died.

[28] On 3 August 2004 the Crown moved to amend the indictment by deleting reference to Toner and to Mr Cameron, who remained at large. A Crown motion for police officers to give their evidence from behind screens was granted. On an unopposed Crown motion, by reason of difficulties with witnesses coming from Belgium, the trial was adjourned until 6 September 2004. The 12-month time-bar in respect of the Minuter was extended until 10 September 2004. That motion was not opposed by the Minuter. The 110 day time-bar in respect of Brady was extended until 10 September 2004. On 10 September the time-bars were further extended to 13 September 2004, again on the unopposed motion of the Crown.

[29] The trial before Lord McEwan commenced on 13 September 2004. During the course of that trial, on 22 September, it came to the attention of counsel and agents acting for the Minuter that proceedings (including what had occurred during adjournments) had been or may have been relayed in sound and vision to the Remote Viewing Room within the High Court at a time when persons were present in that room. The matter was brought to Lord McEwan's attention. Following argument, on defence motion, Lord McEwan deserted the diet simpliciter on 28 September 2004.

[30] A Bill of Advocation was lodged by the Lord Advocate craving the Court to recall the decision to desert the trial simpliciter. Brady left Scotland and thereafter his whereabouts could not be ascertained. The appeal by way of advocation was heard on 16 February 2005. The Crown intimated that it did not insist in the Bill insofar as directed against Brady. Whereas the debate before Lord McEwan had proceeded on the basis of a statement of agreed facts, signed by the parties, and such further information as the trial judge had by then obtained, by the time of the hearing on the Bill of Advocation, as appears from the Opinion of the Court, delivered by the Lord Justice-Clerk, parties had come to differ acutely on the facts. Information was provided to the Court in the form of affidavits, presented both by the Crown and the Minuter. Counsel for the Minuter objected to the Crown referring to its affidavits or relying on any factual assertion that was at variance with the statement of agreed facts. The Court expressed the view that while the fuller information which had been submitted by the parties subsequent to the decision to desert would be material to any decision on a plea in bar of a re-trial, the essential question for it was whether the trial judge's decision was justified by the facts that were known to him at the time. The Court therefore invited the Crown to address it on that question, but only in relation to the decision to desert simpliciter. Having heard argument, the Court made avizandum.

[31] On 24 March 2005 the Court passed the Bill of Advocation recalling the decision and substituting an order for desertion pro loco et tempore.

[32] On 21 June 2005 an application was made directly to the Appeal Court for an extension of the 12-month time-bar. The competency of this was questioned, no indictment having been served since desertion of the trial. The Crown withdrew its application.

[33] The Minuter was served with a fresh indictment, directed against himself and Mr Cameron, on 12 July 2005 together with a notice citing him to appear to answer that indictment at a preliminary hearing on 12 August 2005.

[34] The Crown made an application further to extend the 12-month time-bar (until 12 September 2005). Consequential upon that application a further application was made to extend the period of 11 months provided by section 65 (1) (a) the 1995 Act, as amended. These applications were of course for retrospective extensions in the sense that they were made after the relevant periods as they stood as at the date of the applications had expired. Temporary Judge Matthews heard the applications on 8 and 9 August 2005. They were opposed by the Minuter. On 9 August 2005 Temporary Judge Matthews granted both applications. The Minuter appealed that decision.

[35] On 12 August 2005 the Minuter appeared at a preliminary hearing before Lord Macfadyen, together with Mr Cameron. No written record had been lodged on behalf of Mr Cameron. On behalf of the Minuter, Mr Shead intimated the possibility that the decision by Temporary Judge Matthews would be appealed. The preliminary hearing was continued to 26 August 2005.

[36] On 26 August 2005 both co-accused appeared at the continued preliminary hearing before me. I continued the hearing in relation to Mr Cameron until 31 August and allowed him and his counsel to withdraw. I then heard further from Mr Shead and the Advocate Depute. Mr Shead identified the three preliminary issues. It was agreed that the order that they should be dealt with was competency of the indictment, then unreasonable delay and finally the Remote Viewing Room (RVR). There was discussion as to how the RVR issue might be dealt with. Mr Shead envisaged the leading of evidence in some form or another. While accepting that evidence would probably be required, the Advocate Depute proposed that parties first be allowed to make submissions to the court, under reference to what appeared in the Minuter's two minutes. I heard argument on the first issue. That argument was continued at the continued preliminary hearing on 31 August 2005. At that continued preliminary hearing counsel for Mr Cameron advised that he was not yet fully prepared for trial. She moved for a further continuation of the preliminary hearing until 14 September 2005. The Advocate Depute moved to extend the 12-month time-bar until 12 September 2005 notwithstanding that it was understood that the decision by Temporary Judge Matthews was under appeal. Mr Shead expressed a reluctance to accede to an extension as it would be premature standing the unresolved first preliminary issue. I continued to the preliminary hearing to 7 September 2005.

[37] At the continued preliminary hearing on 7 September 2005, I made available what was headed up as an Opinion, indicating my intention to resolve the first preliminary issue by repelling the plea to the competency of the indictment made available to parties. Mr Shead, on behalf of the Minuter, sought leave to appeal. After consideration, I indicated that I would hear argument on all preliminary issues raised before issuing an interlocutor containing decisions on these issues, rather than put the Minuter in a position where he had to seek leave to appeal and then progress his appeals piece-meal. What was described as an opinion was therefore made available but no consequential interlocutor was pronounced. There was discussion on how the court should go about determining the RVR issue. I was reminded that the Appeal Court had proceeded on an agreed narrative of fact. The Advocate Depute advised me that affidavits had been prepared on the instructions of the Crown but they did not deal with everything. There might be controversial matters as between the parties (as there had been before the Appeal Court). It was difficult to see how such controversy might be resolved. The Advocate Depute accepted that there might have to be evidence of some kind but she adhered to the position that that should be preceded by legal argument. I understood Mr Shead to consider that there should be some sort of enquiry inquiry into the facts but I did not understand him to favour a procedure of enquiring into the facts that required the Minuter to begin the leading of evidence. It would therefore be fair to say that by appointing the Minuter to a lodge a statement of facts and issues between the parties by 21 September 2005 and appointing the Crown to lodge answers thereto by 28 September 2005 with a view to ascertaining what, if anything, the parties were in dispute about and thereby identifying the scope of any proof that might be necessary, I imposed on parties a procedure that neither had suggested and that neither favoured. On the unopposed application of the Crown, the time-bar in relation to the Minuter was extended to 7 October 2005 and the preliminary hearing continued until 3 October 2005 with a view to hearing argument on the second preliminary issue: unreasonable delay.

[38] Following the lodging of a Joint Minute in terms of section 75A of the 1995 Act the preliminary hearing originally fixed for 3 October 2005 in Glasgow was fixed for the same day in Edinburgh. Mr Cameron had been excused attendance. The argument on the second issue was heard on 3 and 4 October 2005. The preliminary hearing was then continued to 5 October 2005.

[39] On 5 October 2005 there was discussion about further procedure. The week beginning 24 October 2005 was identified as available for the leading of evidence if necessary and the hearing of argument on the third preliminary issue. A further preliminary diet was fixed for 17 October 2005 with a view to advising the court on progress and resolving any outstanding difficulties that were capable of resolution. It was envisaged (at least by me) that any necessary adjustment of the statement of facts and answers would be completed by that date. As the Minuter was not in attendance the application by the Crown to extend the time-bar to 31 October 2005 was continued until 6 October. That extension was granted on 6 October 2005, it not having been opposed.

[40] On 17 October 2005 I was advised by Mr Shead that the there had been no adjustment on behalf of the Minuter. There were three reasons for this: he wished to consider copies of the minutes of the trial before Lord McEwan which had been provided by the Crown; his instructing solicitor had only returned from holiday that day; and he had not received disclosure from the Crown, notwithstanding an approach on 15 September 2006 (an assertion, as I understood it, that the Crown had not discharged its duty of disclosure of information in its possession which would tend to exculpate the accused, as discussed in McLeod v HMA 1998 JC 67, Holland v HMA 2005 SCCR 417 at 436G to 440F and Sinclair v HMA 2005 SCCR 446 at 452E to 462B). In response, the Advocate Depute confirmed that she had arranged for the attendance of witnesses for the following week, although her position remained that the issue could be advanced, if not resolved, simply on the basis of legal argument, evidence being unnecessary. She said that she had hoped that there would have been adjustments admitting matters raised in the answers which she would not have thought were truly controversial. Copies of the trial minutes had been obtained by the Crown and passed to the representatives of the Minuter at the end of the previous week. In relation to disclosure, the Crown had made its position clear. It did not propose to disclose precognitions. No reason had been given for their disclosure. Those acting for the Minuter had been provided with the affidavits obtained by the Crown and they were free to precognosce the witnesses who had been identified, although she was not aware of what steps had been taken by them to do so. Having heard parties, I allowed parties proof of their respective averments, assigned Monday 24 October 2006 as a diet of proof and ordained the Minuter to lead.

[41] On 19 October 2006 a petition for the recovery of documents was lodged on behalf of the Minuter. On 21 October 2005 that petition called before Lord Wheatley. There was considered to be insufficient time for Lord Wheatley to determine the application and parties agreed that it was convenient that I hear it on 24 October. By reason of the later than anticipated conclusion of a trial I was unable either to hear the application or to conduct the preliminary hearing fixed for 24 October on that date. The petition accordingly called before me on 25 October 2005. I heard argument on 25 and 26 October, the preliminary hearing having been continued to 27 October. On 27 October I refused the application for reasons set out in my Note dated 28 October 2005.

[42] I further continued the preliminary hearing until 28 October 2005. After the preliminary hearing had called on 27 October, 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 1995 Act did not apply in the circumstances in which this application for recovery of documents had been made and determined and that therefore he did not require leave to appeal, should he be wrong about that, this was a case where leave should be granted. It was a matter of importance to the Minuter 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 v HMA (No 2) 1998 JC 67 and Maan Petitioner 2001 SCCR 172. In this case the court had effectively imposed a requirement for pleadings and the Minuter was accordingly particularly anxious to obtain the recovery of documents access to which 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 section 65 appeal. On 28 October, having regard to what had been said by Mr Shead, I granted leave to appeal. I granted the Crown application in terms of section 74(3) of the 1995 Act directing that a period of two months (ie up to 29 December 2005) should not count towards the 12-month time limit provided by section 65 (1) (b) of the Act in respect of both accused. The preliminary hearing was continued to 29 December 2005. In so deciding, I proceeded upon the view that it was not practicable to resolve the third preliminary issue at that stage, notwithstanding that it had been my intention to do so. The week that had been set aside for a hearing of the third preliminary issue had effectively been used up, one day by reason of the continuation of another trial, the rest by argument on the petition for recovery of documents which Mr Shead presented as a necessary (if late) step in his preparation. If Mr Shead was correct (contrary to my view) the Minuter would be denied a fair trial by reason of the intransigent attitude of the Crown. There was already an outstanding appeal and it was anticipated that it might be possible to have the appeal against my decision of 27 October (the "recovery of documents appeal") dealt with at the same time as the section 65 appeal. Mr Shead advised me that no indication had been given as to when the section 65 appeal would be heard.

[43] The section 65 appeal was fixed for 8 and 9 December 2005. It called on 8 December. Mr Shead addressed the Court on the transitional provisions and laid out the background. However, when it appeared that Mr Shead would be relying on the decision in Stenton v HMA 1998 JC 278 the Court determined to remit the case to a larger Court of five judges, as had been done the previous week in the appeal of Early. The recovery of documents appeal was also before the Court but the Court, Mr Shead and the Advocate Depute were all agreed that if the Crown was unsuccessful in the section 65 appeal then there would be no need for the Minuter to proceed with the recovery of documents appeal because that would be an end to the proceedings. The Court therefore decided that it would deal with the section 65 appeal first. Neither Mr Shead nor the Advocate Depute demurred.

[44] At the continued preliminary hearing on 29 December 2005 on the unopposed application of Crown, the time-bar in relation to both the Minuter and Mr Cameron was extended to 28 February 2006, the preliminary hearing being continued to 27 February 2006 pending outcome of outstanding appeals.

[45] The section 65 appeal was heard by a Court of Five judges together with the other remitted case on 12 January 2006. The Court made avizandum.

[46] Prior to the continued preliminary hearing on 27 February 2006, the Crown enquired as to when a decision of the section 65 appeal was anticipated. It got no date for this. On this basis, at the preliminary hearing the time-bar in relation to both the Minuter and Mr Cameron was extended to 27 March 2006 and the preliminary hearing was continued to 24 March 2006.

[47] At the preliminary hearing on 24 March 2006 it was still not known when the section 65 appeal would be advised. A motion was made on behalf of the Minuter to continue the hearing until 24 April. This was not opposed by the Crown. Neither was the consequential Crown motion to extend the time-bar until 25 April 2006.

[48] The continued preliminary hearing on 24 April 2006 came before Lord Carloway. On behalf of the Minuter, Mr Richardson moved that the preliminary hearing be further continued to a date at the end of May by which time a decision on the section 65 appeal was anticipated. Lord Carloway declined to do so. Rather, he continued the hearing until 2 May in order that parties might consider "where the case was going". Lord Carloway prepared a Note which was circulated to parties in order that, having checked its accuracy, it might be used as a basis for discussion of what should be done. While the terms of the Note are factual, Lord Carloway's concern over the multiplicity of preliminary hearing diets and the absence of progress in the case is clearly discernible. I understood from the Advocate Depute that in so far as issuing the Note promoted discussion between the parties, it was inconclusive in nature. When the case called on 2 May Mr Shead advised Lord Carloway that the section 65 appeal had not yet been decided. The Advocate Depute advised that on the basis of information provided to her by the Appeals Manager it appeared likely that an opinion would be issued by the end of May. Mr Shead indicated that he would not oppose a further continuation of the preliminary hearing into July but that he would oppose a further continuation. Lord Carloway suggested a continuation of the preliminary hearing until September with an extension of the time-bar until the end of September in that it seemed unlikely that there would be a trial fixed before then. He expressed his concern over the repeated and apparently unproductive preliminary hearing diets. Mr Shead resisted that suggestion. Lord Carloway invited the Crown to address him on how it was envisaged the case would proceed. The Advocate Depute responded by explaining that once the opinion on the section 65 appeal was issued and if it was favourable to the Crown, the Appeals Manager might be requested to fix a date for the hearing of the recovery of documents appeal before the end of the Summer Term (on 14 July 2006) with a view to thereafter moving as quickly as possible to a hearing of the RVR issue. Having heard the Advocate Depute, Lord Carloway, on the unopposed motion of Mr Shead on behalf of the Minuter, continued the preliminary hearing "until 17 July 2006 and three continuation days within the High Court of Justiciary sitting at Edinburgh to enable a hearing on the issues before Lord Brodie to be heard."

[49] The hope that the section 65 appeal would be determined by the end of May proved to be unfounded. It had not been determined by 17 July 2006 when the case called before me. No hearing had been fixed for the recovery of documents appeal. When it had become apparent that there was no prospect of determining the RVR issue during the week of 17 July, it was proposed to lodge a Joint Minute in terms of section 75A of the 1995 Act to adjourn or alter the diet of 17 July 2006 and three continuation days. However, inquiry of the Justiciary Office gave rise to a doubt as to whether what had been fixed was a diet of four continuous days beginning on 17 July or something else. The Advocate Depute, on 17 July, gave me a detailed account of the ultimately unsuccessful attempts made by her and on her behalf to ascertain definitively, first, when an opinion on the section 65 appeal would be issued and, second, just what had been fixed as the diet of 17 July 2006 and three continuation days. I consider it unnecessary to narrate that account in full.

[50] On 11 July 2006 a further devolution Minute addressing the issue of delay was lodged on behalf of the Minuter.

[51] On 17 July 2006 four continuous days were available for a hearing on all or any of the preliminary issues not previously resolved. However, once I had been brought up to date on what had happened and what had not happened since the case had been last before me on 28 October 2005, it appeared that all that could be done was to hear Mr Shead on his second devolution Minute addressing the issue of delay with a view to determining that preliminary issue, under reference to the submissions that I had heard on 3 and 4 October 2005 and anything that parties might add to these submissions. Mr Shead was content that I do this. The Advocate Depute was not so content. She submitted, under reference to her difficulties in obtaining information, that it was inappropriate to hear full argument because it was for the Crown to justify any lapse of time and the Crown was not in a position to do this by way of a complete explanation as to the reasons why determination of section 65 appeal had taken the time it had. That the appeal had been remitted to a Court of five judges in order to resolve differences in the authorities was an indication that the matter was of particular importance and difficulty. She understood that considerable research had been required. Beyond that she would not be able to assist. Notwithstanding the position of the Advocate Depute, I decided to hear argument on the issue of delay with a view to determining it. This is a case that self evidently requires to be progressed. I considered it my duty to do what I could towards that end, something which has been my object since 26 August 2005. That I had not been very successful, despite my efforts, in my view merely underlined that duty. At the close of argument on the delay issue, I inquired of parties as to whether there was scope for achieving more and, in particular, moving on to the RVR issue. However, parties' position on that issue had not changed. Consistent with the importance that he attached to disclosure, Mr Shead wanted first to pursue the recovery of documents appeal. The Advocate Depute, for her part, remained willing to approach the RVR issue by way of going directly to legal submissions but was not prepared to depart from her stance that the Minuter had had disclosed to him everything to which he was entitled.

[52] The submissions advanced on behalf of the Minuter on 17 July 2006 were relatively succinct but Mr Shead, and the Advocate Depute when she came to reply to Mr Shead, referred to and adopted what had previously been submitted on 3 and 4 October 2005. I understood both to be agreed that the approach that should be taken was to look at the position as it was at 17 July 2006, taking into account the whole history since 1 October 2002, both before and after the serving of the current indictment, and having regard to how the section 65 and the recovery of documents appeals had been dealt with.

[53] Mr Shead began his submissions on 3 October 2005 by drawing my attention to the history of the case, as set out in a chronology prepared by the Crown and provided to the court (replicated above). In his submission time began to run with the execution of a warrant in relation to Mr Fleming on 27 September 2002, but if not then from his being remanded in custody on 1 October 2002. Identifying an end point was more problematic. It might be the date when the court came to consider the point. It might be the date when the trial was likely to take place.

[54] The domestic legislation provided that the Minuter's trial should commence within a period of 12 months from his first appearance on petition, in other words by 1 October 2003. Although that period had repeatedly been extended, on occasion at the instance of the Minuter, none of the extensions should be ascribed to fault on the Minuter's part. In large part they had been as a result of the Crown's reluctance to disclose relevant information, due to its erroneous understanding of the law. There had been applications at the instance of other accused, in which cases the extensions can be taken to have been in the interests of justice but, again, not by reason of fault on the part of the Minuter. It may be that none of the subsequent delay would have occurred had only the Crown served the indictment for the special sitting fixed for 23 January 2003. It was at that point that the case went off the rails.

[55] Mr Shead did not anticipate any dispute as to the relevant law where what was in issue was an accused's right, in the determination of any criminal charge against him, to a fair and public hearing within a reasonable time, as guaranteed by article 6 (1) of the European Convention on Human Rights. That was found, stated in the judgment of Lord Bingham in Dyer v Watson 2002 SC (PC) 89 at 108E. In any case in which it is said that the reasonable time requirement has been or will be violated, the first step is to consider the period of time which has elapsed. If the period that has elapsed is one that, on its face and without more, gives ground for real concern, two consequences follow. Firstly, it is necessary for the court to look into the detailed facts and circumstances of the particular case. Secondly, it is necessary for the state to explain and justify any lapse of time which appears to be excessive. Here, given the nature of the case, the fact that the Minuter was initially in custody and the fact that the Crown was apparently ready for trial in January 2003, a delay of more than three years after that date was clearly excessive. Mr Shead appreciated that there was a large number of cases at first instance and on appeal in which the reasonableness of particular periods had been considered but he invited me to look at the matter as one of impression. The Minuter had been facing a very serious allegation since September 2002. One would not expect that not to have gone to trial even two years later. Mr Shead then invited me to take the second step indicated by Lord Bingham: consideration of such explanation and justification as might be offered by the Crown. He again referred to the case as having gone off the rails at the point when the Crown failed to serve the indictment in time for the sitting on 23 January 2003. Disclosure had then become an issue. After some confusion, due to the Crown's erroneous understanding of its duty to disclose documents within its control, material was in fact released. Section 67 notices, adding very significant numbers of witnesses and productions, were intimated in February 2003 and January 2004. Further delay resulted from the Crown's insistence in trying Brady on the same indictment as the other accused. In so insisting, and having the then indictment deserted on 11 February 2004, the Crown had failed to have regard to its duties towards the then accused, including the Minuter. The trial in September 2004 was deserted over problems with Crown witnesses. Movement thereafter was slow. At least in retrospect it would have been wise not to indict Brady who was released from custody on 28 September 2004 and in respect of whom the Bill of Advocation was not insisted in. It is clear from the Court's decision on the Crown Bill of Advocation, reported as HMA v Fleming supra, that the Crown had been at fault in relation to the Remote Viewing Room, as it was in error in at first presenting an application for extension of the 12-month period directly to the Appeal Court with the result that instead of re-indicting in March 2005, a further three months were allowed to pass.

[56] Mr Shead invited me to find that there had been unreasonable delay that had not been adequately explained and justified. Ideally the trial should have commenced within 110 days of 1 October 2002. By February 2004 at the very latest there was nothing to prevent a trial proceeding. Everything that had followed after that was the result of flawed decision making by the prosecution authorities. He referred me to what had been said in HMA v Morton 2003 SCCR 305 at 308F to 309B. The remedy sought by Mr Shead was declarator that the Lord Advocate had no power to proceed further against the Minuter on the current indictment.

[57] On 17 July 2006 Mr Shead renewed the argument in support of his recent devolution minute. He adopted what he had said before. He referred me to the chronology, both to what had occurred prior to his last addressing me and to what had occurred after that. He made the point that it had originally been intended that both the section 65 appeal and the recovery of documents appeal should be heard in December 2005. Given its history this should have been seen as a priority case. As matters had transpired, the section 65 appeal had not been advised and the recovery of documents appeal had not yet been heard. This delay in the appeal process fell to be considered in the same way as delay in the previous procedure: by reference to the two stage approach set out by Lord Bingham in Dyer v Watson, having regard, of course, to the whole history of the case and the passage of time since 1 October 2002. In focusing on delay in the appeal process, Mr Shead explained that for the purposes of his argument, he was proceeding on the assumption that, as at October 2005 I had been satisfied by the Crown's explanation for the delay up to that point. Of course if I had not been satisfied then I would be of the view that, independent of what had happened since October, there had been unreasonable delay and the Minuter's rights in terms of Article 6 required that I grant declarator that the Lord Advocate did not have power to proceed further.

[58] Mr Shead turned to consider what had occurred since October 2005. On 8 December 2005 the Crown had been asked whether it had a position on the proposal to discharge the appeal hearing. It indicated that it did not. Its position was therefore neutral and therefore it should be called on to provide an explanation for the delay that had occurred. According to Mr Shead, it had been for the Crown to disclose all material, including that bearing on use of the Remote Viewing Room, by June 2005 when the Minuter was indicted. Had it done so that would have obviated the need to present a petition for the recovery of documents and such delay as may be attributable to that. Mr Shead did not accept that there had been any fault on the part of the defence in not bringing the petition in August 2005 but even if the defence were to be considered to have been at fault that was now entirely irrelevant in that parties were still awaiting a diet for the recovery of documents appeal (for which the court had granted leave). Thus any delay on the part of the defence is neither here nor there because had the defence acted more expeditiously the proceedings would have been no further forward. Mr Shead invited me to view what had happened since October 2005 in the light of what had happened before. As far as the impact of the Minuter exercising a right of appeal was concerned, unless it could be said that he had abused the court process, then no consequential delay should be attributed to him. When there has been a history of delay it was incumbent on the authorities to expedite matters. The court, so Mr Shead submitted, had an obligation to exercise what he described as a dynamic function in the supervision of its processes. Looking to the performance of the public authorities and having regard to what had been said by the Advocate Depute, it was Mr Shead's submission that the delay from October 2005 remained unexplained. Expedition had been called for. There had been an absence of expedition as there had been an absence of explanation. The state had to be so organised as to guarantee the subject's Article 6 rights. Pressure of business was not an adequate explanation for excessive delay.

[59] Mr Shead referred me to what had been said by the European Court of Human Rights in Mellors v United Kingdom 2003 SCCR 407 at 409D to E, Massey v United Kingdom 16 November 2004 and Howarth v United Kingdom 21 September 2000; and to what Lord Hope had said in Mills v HMA 2002 SCCR 860 at 861.

Submissions for the Respondent
[60] On 4 October 2005 the Advocate Depute moved me to refuse the devolution Minute that was then before the court. On 17 July 2006 she made the same motion in relation to the further Minute that had been lodged on 11 July. Agreeing with Mr Shead, she said the test that the court should apply in such a case was that found in the judgment of Lord Bingham in Dyer. If the time period, on its face and without more, gave grounds for real concern, then the court should look at the facts and it was for the state to justify the delay. There were three areas which called for particular inquiry: the complexity of the case, the conduct of the accused, and the manner in which the case had been dealt with by the administrative and judicial authorities. Here, submitted the Advocate Depute, the passage of time was not such as to give grounds for real concern. The case was exceptional. It had been brought to trial on 13 September 2004. Up to that point there had been no issue taken as to delay. The case was complex. The first indictment had been directed against four accused. It alleged contravention of the Customs & Excise Management Act 1979 and the Misuse of Drugs Act 1971 in relation to Class A drugs. The charges covered a three-year period and referred to a number of addresses in Scotland, England, Belgium, Colombia, Antigua and Holland. Included among the witnesses were persons resident in England and abroad. The matter was ready for trial in February 2004, it being the Crown's wish to involve the accused Brady that had led to the motion to adjourn at that stage. The fact that the relevant domestic legislation prescribed trial within 12 months was relevant but not determinative: Dyer v Watson supra at 132H, and it was the case that it was not uncommon for extensions of time to be granted on cause shown (as envisaged by the statute) with the result that trials often did not take place within 12 months. When regard was had to the nature of the charges, the type of case, the number of accused and the fact that the trial was in fact commenced in September 2004, this was not a situation which gave grounds for concern. In the event that I was not with her on that submission, the Advocate Depute invited me to consider the facts of the case under reference to the chronology and the complaints that had been made by Mr Shead. The Crown accepted that it was responsible for the failure to serve the first indictment timeously, although the failure had actually been on the part of the staff at HM Prison, Barlinnie. A fresh indictment had been served by 31 December 2002. Four section 67 notices had been served. A significant number of documents had been seized, in large part from the Minuter, his solicitor, his accountant and his wife, which were later lodged as productions. Thus, many of the items introduced as productions by section 67 notice were the Minuter's own documents. Moreover, before they were lodged as productions, the Crown had given the Minuter's representatives the opportunity to attend at Paisley Police Office to examine these documents. They had done so on 26 February and 17 March 2003. In response to what Mr Shead had said about failure in disclosing documents, the Advocate Depute accepted that there had been discussion and correspondence about the making available of surveillance logs, over and above the 37 that had been lodged as at February 2003. The matter had originally been raised by Martin Toner's agents but those representing Ian Maclean and the Minuter became involved. The Scottish Drug Enforcement Agency expressed its concern over sensitive material contained in logs. A petition had been lodged for recovery of surveillance logs, business records and a Mappin & Webb card. It was directed both against the Crown and the Scottish Drugs Enforcement Agency as havers. It called on 22 July 2003. The motion for commission and diligence was continued on three occasions for the purpose of discussion. Eventually some but not all of the surveillance logs were ordered to be produced together with the business records and the Mappin & Webb card. This information should not be understood as indicating that the Crown had acted unreasonably. The representatives of the Minuter had had access to the business records and the Mappin & Webb card in February and again in March of 2003 and as far as the surveillance logs were concerned, there was the security issue raised by the SDEA that required to be resolved. Moreover, when the petition for recovery called, the Advocate Depute provided the Minuter's counsel with a summary of what of relevance was contained in the logs which were in the hands of the Crown. The obligation on the Crown was, in any event, only in relation to material that would tend to exculpate the accused: Holland v HMA supra at 436G to 337A. The test was objective. Over and above these considerations, the Advocate Depute advised that there were other issues to do with defence preparation that were causing delay in 2003. There were problems with Legal Aid in relation to locus inspections in Antwerp and the further precognition of witnesses. The Crown motion to adjourn on 5 February 2004 in order to allow Brady to be tried on the same indictment as the other accused arose from ties that he was seen as having with Martin Toner and the Minuter. Evidence about this would have to be led from Belgian police officers. An interpreter would be required and special arrangements would have to be made in order to conceal the identity of these officers. If Brady were to be tried alone there would be a duplication of effort but, importantly, the view had been taken that it would be in the interests of justice if all the accused were tried on the same indictment, rather than being proceeded against at two separate trials. When that indictment was served there was a Minute of Postponement at the instance of Brady in April 2004 and then there was a Crown motion to postpone on 3 August 2004 by reason of difficulties in bringing over Belgian witnesses. That application was not opposed by the Minuter. Thus, the decision to proceed against Brady resulted only in a relatively short delay. As far as the events in relation to the RVR which led Lord McEwan to desert the diet in September 2004 were concerned, the Advocate Depute referred me to what appeared in the Answers on behalf of the Crown to the Statement of Facts in the Remote Viewing Room Minute. It was accepted that a member of staff of the Procurator Fiscal had requested transmission to the RVR on three occasions, the third request being on the day before the defence became aware of the facts. Had the trial judge deserted pro loco et tempore, it would have been open to the Crown immediately to restart the trial. However, the judge had deserted simpliciter and the Appeal Court indicated, when the matter was brought before it on the Bill of Advocation that it was appropriate that the Crown should challenge the trial judge's order in the way that it had done. The Crown had been successful on the issue of desertion and it had been intended to make a section 65 application for extension of the 12 month period at a continued hearing in the appeal process. However, when that was brought before the Appeal Court on 21 June 2005, it was accepted, when the point was raised for the first time, that this was not competent. There followed a meeting with a law officer at which it was decided to re-indict and to apply for a retrospective extension of time both in relation to the 12-month period and the recently introduced 11-month period. That decision was made on 23 June 2005. On 24 June 2005 the Minuter's agents were approached with a view to them obtaining instructions to accept service on behalf of the Minuter because he was shortly due to go on holiday. An attempt was made to serve on 8 July but the Minuter had by then gone on holiday. The indictment was served on 11 July 20062005, citing the Minuter to attend at a preliminary hearing on 12 August 20062005. Extension of the 11-month period was granted by Temporary Judge Matthews on 8 August 20062005. Once the decision had been taken to re-indict matters had proceeded with a minimum of delay. This was not a case in which there had been excessive delay, whether the matter was looked at as at 4 October 2005 or 17 July 2006. There had been no breach of the Minuter's Article 6 rights.

[61] When renewing her submissions on 17 July 2006 the Advocate Depute took me over the chronology of events subsequent to October 2005 in detail. I have reproduced above what was stated to me. She emphasised, in a detail that I have not thought necessary to reproduce, the steps taken by the Crown, including the steps taken by her personally, to inform itself as to the likely progress of the section 65 appeal. While the Crown had been not been entirely successful in obtaining the information in order to give chapter and verse, it had done what it could. The appeal was in relation to a matter of great practical importance going beyond the instant case. It could must be taken to be a question of difficulty given the remit to a larger court. It was understood that considerable research had been required.

[62] On 4 October 2005 I gave Mr Shead the opportunity to respond to what had been said by the Advocate Depute in her speech, as I did again, in relation to the position as it had by then developed, on 17 July 2006. On 4 October 2005 Mr Shead pointed out that the police had made no record of the documents that they had seized from the Minuter. This was in contrast to the practice adopted in England. A large number of business documents had been taken that had neither been inventoried nor copied. Even if in a general sense the documents had been familiar to the Minuter, in the context of preparation for trial the terms of a particular document might or might not be of importance. Therefore, in discharge of the Crown's obligations, they had to be disclosed. By way of example, the Mappin & Webb card was of importance but it having been requested, it was four months before it was handed over to the defence. On any view there had been difficulties over recovery. As the Advocate Depute had explained the petition for recovery had been found to be justified notwithstanding the intimation that it would be robustly resisted. Originally material was said not to exist. It did not matter which was the public authority that was being obstructive. It was sufficient if there was obstruction on the part of some public authority. That the court had made an order was an indication that the Crown had failed to implement its obligations. Mr Shead accepted that the SDEA concern over security was relevant. He could not remember exactly by what mechanism that concern had been addressed. He accepted that it would be proper to assume that what was called for in the petition were surveillance logs in their entirety as opposed to excerpts from logs or information in an otherwise redacted form. It was now tolerably obvious that if the legitimate defence request for disclosure had been dealt with earlier progress to trial would have been more rapid. It was, as Mr Shead put it, an accident of history that the trial did not take place in February 2004. That it did not was the result of a series of decisions by the Crown. Had even the Mappin & Webb card been handed over earlier it is likely that the trial would have taken place by February 2004, rather than a pre-trial issue being discussed in October 2005 (or July 2006).

[63] As Mr Shead had anticipated parties were agreed that the correct approach for the court to follow was that to be found in Lord Bingham's judgment in Dyer v Watson supra at 108E. It is convenient to set out what Lord Bingham said:

[64] Clear as Lord Bingham's statement of the applicable law is, its application is not free from difficulty. An immediate problem is identifying a terminus ad quem for period of time under consideration or, avoiding the use of Latin, the date upon which the Minuter's trial should be taken as likely to take place, assuming that he succeeds in none of the pleas and contentions put forward on his behalf which are designed to avoid that eventuality. The section 65 appeal has now been advised but the recovery of documents appeal remains to be heard, as does the hearing on the RVR minute. I leave aside the possibility of an appeal against my decision on the competency of the indictment, given the authoritative determination of that issue by the Court in the course of deciding the section 65 appeal. In the circumstances I propose to proceed on the assumption that if a trial of the Minuter is fixed it is unlikely to be for a date much before the end of 2006.

[65] On the assumption that I am making, the Minuter will pass the fourth anniversary of his appearing on petition before the present indictment is brought to trial. That period "on its face and without more" appears to me to give grounds for real concern that the Minuter may be denied the fair and public hearing "within a reasonable time" to which he is entitled. The assiduous efforts of Mr Shead might suggest that the Minuter does not in fact want such a hearing. The Minuter appears to be one of these accused, identified by Lord Rodger in Dyer v Watson supra at 135C, whose interest in invoking their Article 6 right is not to benefit from its fulfilment but to benefit from its breach. Mr Shead's motion that I grant a declarator to the effect that the Lord Advocate has no power to proceed further in respect of this indictment insofar as directed at the Minuter would rather confirm this. I will return to a consideration of the conduct of the Minuter's defence to this and previous indictments but that his object is to avoid rather than accelerate a trial of itself does not matter. He is entitled to be tried within a reasonable period of time and once there is no prospect of that happening, the result of the inter-relationship as between section 57 (2) of Scotland Act 1998 and the Convention means that he effectively becomes entitled not to be tried at all: Dyer v Watson supra at 135H; HMA v R 2003 SLT 4.

[66] The Advocate Depute urged me not to find what I am taking as a period of at least four years to be such as to give grounds for real concern that there has been or will be an unreasonable delay. She gave reasons for her submission, which I have recorded above, relating to the nature of the case. I do not dispute that at some point in the decision making process I should have regard to the nature of the case and all the features that the Advocate Depute drew to my attention. However, I am not persuaded that Lord Bingham had such a detailed consideration in mind when he referred to the period as "one which, on its face and without more, gives grounds for real concern" (and see also Lord Rodger, supra at 134D). In Dyer Lord Bingham was able come to a view on that matter simply by having regard to the period of time, the fact as to whether the accused was an adult or a child and the fact as to whether or not the accused was in custody. What he appears to have done is to form a general impression on the broadest outline of the case and then, but only where the general impression required him to do so, looked at the detail more meticulously. Whether I am right about that or whether in considering whether there is cause for concern the court should go a little further into the circumstances, may not matter very much. What is uncontroversial is that before finally concluding that there has been unreasonable delay the court must look into all the facts and circumstances in detail and require the contracting state, through its representative, the prosecutor, to explain and justify any lapse of time which appears to be excessive. In determining what it should make of the state's explanation and justification, the court will pay attention to the three areas indicated by Lord Bingham on the basis of his review of the European jurisprudence as calling for particular inquiry: the complexity of the case, the conduct of the accused, and the manner in which the case has been dealt with by the administrative and judicial authorities: Dyer v Watson supra at 108G to 109E. The court will bear in mind that the right to a trial within a reasonable period of time is an important one. It will also bear in mind that the threshold of unreasonable or excessive delay is a "relatively high threshold": Dyer v Watson supra, Lord Hope at 115C. Importantly, it will bear in mind that "the only norm applied by the [European Court of Human Rights] is its conception of what is reasonable in the particular circumstances of the case": Dyer v Watson supra, Lord Rodger at 132D. There may be an infringement of the reasonable time requirement in the absence of specific prejudice but absence of prejudice is a relevant consideration: Dyer v Watson supra, Lord Rodger at 131C adopting what was said by the Court in Gibson v HMA 2001 JC 125 at 129F.

[67] In the present case, to the extent to which it is in her power, the Advocate Depute has provided an explanation (in the sense of a detailed account of what happened and why) for a delay that in my view called for explanation because on its face and without more, it gives grounds for real concern. I use the formulation "to the extent to which it is in her power" because I understood her to feel a degree of embarrassment in being unable to say more about that element within the period of delay that was due to the administrative and judicial authorities. As I have already indicated, the Advocate Depute was concerned because, despite her best efforts, she considered that she was unable to provide a full explanation as to the reasons why determination of section 65 appeal had taken the time it had. I shall have to return to that particular matter but, more generally, a delay which, in the opinion of the court, requires to be explained is, prima facie, excessive. I take from Dyer that mere explanation, however detailed, will not be enough to displace the court's prima facie impression. What is of interest is the nature of the explanation. For the court not to be confirmed in its initial impression, the explanation must be a reasonable explanation and, to the extent that this is different, the delay must be justified. The court therefore has to make an evaluation, having regard to all the facts, including those bearing on the complexity of the case and the conduct of the parties. In doing so it will attach particular weight to any instances of inactivity or other fault on the part of the prosecuting, administrative or judicial authorities. The Advocate Depute's concern that her explanation, although as full as she was able to make it, would not be sufficient is therefore understandable, and indeed Mr Shead sought to found on what might be seen as her concession that she had not been able to explain what he said was delay on the part of the judicial authorities in determining the section 65 appeal.

[68] Mr Shead was critical of the relevant authorities. At one point in his earlier submissions he referred to what he described as four important staging posts in the course of the history of the case: (1) the failure to serve the indictment timeously in December 2002; (2) the difficulties attributable to the Crown's attitude to disclosure which subsisted until at least August 2003; (3) the derailment of the progress of the case against the Minuter by virtue of the decision to include Brady in the same indictment (served on 11 February 2004); and (4) the slow movement on the part of the prosecution following the desertion of the trial on 28 September 2004 in circumstances where the desertion was the result of activities for which the Crown was responsible. All these matters were indicative of fault on the part of the Crown. When he came to renew his submissions on 17 July 2006 Mr Shead turned his criticisms upon the administrative and judicial authorities by reason of their slowness in arranging a hearing of and then determining the section 65 appeal. The Crown was, as I understood Mr Shead's submissions, complicit in appeal related delay by stating a position of neutrality in relation to the discharge of the recovery of documents appeal on 8 December 2005. It was in any event for the Crown to explain delay, as the representative of the state. This it had not done. Any delay attributable to the defence was irrelevant because even if it had acted more expeditiously, the case would have proceeded no faster.

[69] Mr Shead did not, however, dispute the Advocate Depute's description of the case as a complex one. I agree with that assessment for the reasons given by the Advocate Depute. That is inter-connected with the decision to indict Brady together with the other accused. While Mr Shead may say, with the benefit of that valuable tool, hindsight, that it would have been wise not to have indicted Brady, who was released from custody on 28 September 2004 and thereafter is understood to have left the country, that does not mean that the decision made in about February 2004 to proceed against Brady together with the other then accused was wrong or that it indicated a failure to have proper regard to the Minuter's interests. Where practicable, it is generally thought to be both economical and conducive to achieving the ends of justice where a number of persons are alleged to have acted together in committing an offence that they be tried together. In this particular case I am persuaded, having regard to the factors pointed to by the Advocate Depute, that the decision to include Brady on the same indictment as the Minuter was a reasonable one and certainly not one that indicates fault on the part of the Crown. I consider that the Advocate Depute was entitled to say, as she did, that in any event the delay due to the involvement of Brady was not very significant. The trial diet fixed for 4 May 2004 was postponed at Brady's instance. Difficulty with Belgian witnesses led to a further postponement but the trial was commenced on 13 September 2004. Applications for extension of the 12 month time-bar were opposed on behalf of the Minuter when made on 5 February and again on 11 February 2004, as was the Crown motion to adjourn made on 5 February and the Crown motion to desert pro loco et tempore made on 11 February, but otherwise applications for extension and motions to postpone were not opposed. On occasion it was the Minuter who made the application. Thus for the greater part of the time, the Minuter has acquiesced in postponements and extensions or at least accepted, to use the expression used by Mr Shead, that they were in the interests of justice. As the Advocate Depute pointed out, no complaint was made of contravention of Article 6 (1) prior to the commencement of the trial in September 2004.

[70] The complexity of the case does not, of course, explain the failure to serve the indictment in time for the special sitting of 23 January 2003. That was an error, albeit made by prison staff and not the Crown, but hardly of the most culpable nature or long-lasting effect. It was quickly remedied. In any event, whether McLean would have been ready for trial on 23 January, at least if the first section 67 notice was allowed, would seem doubtful. He sought and was granted a postponement of the trial diet of 10 March 2003.

[71] Mr Shead repeatedly asserted that time was lost in 2003 by reason of the Crown's failure properly to implement their duty to disclose documentary material. As I have narrated, this was challenged by the Advocate Depute. She also pointed out that other matters were occupying parties' attention at about this time. On the information before me, which, in the absence of any averment on the matter in the Minute, depended entirely upon what I was told during the parties' oral submissions (a matter to which I shall return) I am unable to come to a firm conclusion as to what extent Mr Shead's assertions were well founded. I see force in the submission that it is not a complete answer to a request for access to material seized from the Minuter that it was originally his material and that therefore he should know what it contained, but, according to the Advocate Depute, what might have been reasonable opportunities for access to this material were given to the Minuter's representatives. Neither the Crown position (on behalf of the SDEA) nor the defence position seems to have been completely vindicated in relation to disclosure of surveillance logs. Parties were at issue and eventually that issue was determined. Looking at the whole history of the case up to the commencement of the trial on 11 September 2004, it appears to me that whereas preparation of what was a complex case took time, there was no excessive delay. As appears from Dyer (and see in particular Lord Rodger supra at 133E to 134C) there are cases that will require more preparation than others and preparation takes time. Proper preparation, both by the Crown and the defence, is a necessary component of a fair trial. No doubt the case against the Minuter might have been brought to trial earlier. I accept that that is suggestive of delay, at least in a sense. It does not follow that such delay as there was is to be regarded as unreasonable. In the period under consideration I have not discerned either inactivity or significant fault on the part of the relevant authorities.

[72] I turn to the desertion of the trial on 28 September 2004 and what followed thereafter. Mr Shead asserted that it was plain that desertion of the trial had been the result of fault on the part of the Crown. The Crown accepted that in that it had conceded that it had been proper for Lord McEwan to desert, the only issue being as to whether desertion should have been simpliciter or pro loco et tempore. I accept that the acts that led to the trial being deserted were those of employees of the Procurator Fiscal Service and, to a lesser extent, a clerk of court. It does not in my opinion follow that in any very material sense there was fault on the part of the Crown or other relevant authority. In that I may yet have to make a determination on what occurred after having heard evidence, I do not propose to take the matter further. It appears to me inappropriate to do so. At present I would simply refer to what was said by the Lord Justice-Clerk in HMA v Fleming 2005 SCCR 324 at 336A and in Fleming v HMA [2006] HCJAC 64 at paragraphs 14 and 15. The relevant authorities may bear responsibility for the first trial not being brought to a conclusion. On the basis of the information presently before me it goes no further than that. It cannot even be said that the Crown is responsible for the delay consequent on the need to appeal Lord McEwan's decision by Bill of Advocation. It was the defence that moved Lord McEwan to desert simpliciter. Had the desertion been pro loco et tempore, as the Appeal Court decided it should have been, it would have been possible immediately to proceed to another trial. This is not to criticise the defence. It is entitled to take such points in the interests of the accused as may be responsibly arguable, whether by way of preliminary plea, at trial, or on appeal. However, the way the defence conducts the case obviously may have an impact on the time it takes. As Lord Bingham said in Dyer v Watson supra at 108I, albeit in the context of procedural time-wasting by the accused and subject to the caution that this does not entitle the prosecuting authorities themselves to waste time unnecessarily and excessively, a "defendant cannot properly complain of delay of which he is the author".

[73] Mr Shead criticised a lack of expedition ("slow movement") on the part of the Crown subsequent to 28 September 2004. I do not appear to have been provided with the date on which the Bill of Advocation was lodged but a procedural hearing in relation to the Bill took place on 16 November 2004. That is not suggestive of unreasonable delay. The Court advised its decision on the Bill on 24 March 2005. Thereafter three months were lost by reason of the Crown's erroneous assumption that a section 65 application could be considered by the Appeal Court when there was no indictment in existence. That, as the Crown came to accept on 23 June 2005, was an error and perhaps a surprising one, but the question is whether there has been excessive delay, not whether the performance of the prosecution has been optimal: Dyer v Watson supra Lord Rodger at 132G.

[74] Looking at matters in October 2005 when the Article 6 (1) point was first argued before me, having regard to the Crown's explanation and the factors that I am required to take into account by virtue of the decision in Dyer,. I would not have been persuaded that there would be a breach of the Minuter's Convention rights by reason of the Lord Advocate insisting in the prosecution and I would have dismissed the Minute then before me. I must make it clear that although I have looked at shorter periods within the period that commenced on 1 October 2002, it is the whole period starting with that date that I have had regard to, rather than a series of periods within that whole period.

[75] That cannot of course conclude my consideration of the matter. Mr Shead has presented a further Minute and has extended his complaints to the performance of the Appeal Court, sitting as a Court of five judges, in not having advised the section 65 appeal as at 17 July 2006. I would not understand Mr Shead's position to have been any different had he known that that appeal, and incidentally an authoritative decision on the first preliminary issue, would be advised, as it was, on 30 August 2006.

[76] Before going further I would reiterate an earlier point. The way in which the case has been conducted on behalf of the Minuter has contributed to the length of the time that it has taken. As I understood Mr Shead's submission, he maintained that that this fell to be left out of account unless the way in which the defence had conducted the case had amounted to an abuse of process. I disagree. The conduct of the defence and its consequences are matters to which I must have regard: Dyer v Watson supra at 108H. Just as the Minuter's motion to desert simpliciter, as opposed to pro loco et tempore, and then his opposition to the Crown Bill of Advocation meant that time was taken up, so have his taking of the three preliminary issues and his taking of the section 65 appeal and his very late presentation of an application for recovery of documents had their impact on the progress of the case. That last application had the result that the planned hearing on the Remote Viewing Room issue did not go ahead. The Minuter has appealed my decision refusing recovery of documents. That will take up more time. I do not say that there is anything necessarily wrong in the Minuter conducting his case in this way. At least if the timing of the application for recovery of documents is laid to one side, I am not suggesting that this is procedural time-wasting of the sort referred to by Lord Bingham. However, it seems fairly clear that the Minuter's more recent strategy is to attempt to avoid trial. It has not, as yet, achieved that outcome. The Minuter has so far been universally unsuccessful on the points that he has taken. That does not mean that the strategy is illegitimate, far less an abuse of process, but it remains the fact that Mr Shead, on behalf of the Minuter, is complaining that the case has not yet been brought to trial, while at the same time taking steps that will inevitably push the trial date further into the future. Mr Shead took the section 65 appeal and the recovery of documents appeal and agreed that it was inappropriate that either be heard on 8 December 2005. He nevertheless felt able to complain that the Appeal Court had not advised the section 65 appeal (which required a consideration of conflicting authorities by a Court of five judges) sooner than it did. There is no question but that the Minuter is entitled to exercise his rights of appeal, but the way in which the case has been conducted on behalf of the Minuter provides part of the context in which Mr Shead's argument that because of the time the case had taken it should have been given greater priority in consideration of the appeal (cf Massey v United Kingdom supra) falls to be considered. A difficulty about this argument is that I do not know upon what basis I am being asked to conclude that the priority given to the Minuter's appeal and the time taken in advising it were other than entirely appropriate in all the circumstances. I certainly get no help from the sparse averments in the Minute. This paucity of averment seems to me to have consequences for the development of the Minuter's argument. Simply by reference to the elapse of time from the Minuter appearing on petition, he has satisfied me that this is a case which gives cause for concern and therefore it is for the Crown to explain and justify the position. The Minuter may then argue, as he has done, on the basis of what is plain from the Crown's explanation and justification that the explanation is unreasonable or insufficient or points to inactivity or fault on the part of the relevant authorities. However, he has no supporting averments (which, if necessary, would provide a basis for the leading of evidence) to take his argument further, for example by contending that there had been a failure, either by the administrative or judicial authorities, to accord this case its proper priority in competition with other cases on appeal: Gibson v HMA 2001 JC 125supra at 129E. If I am wrong about that and, in contrast to what was said by Lord Prosser in Gibson v HMA supra, it is open to the Minuter to argue that in the present case there was a failure by the relevant authorities properly to prioritise the case, it may not very much matter. I have nothing more than Mr Shead's assertion that, given that the section 65 had not been advised in July 2006, there had been some sort of failure, perhaps in prioritisation, on the part of the judicial authorities. Pressure of business, he said, was irrelevant. Neither of these propositions appear to me to be self evident. The Minuter's case is one case in the caseload of the Court. Its progress, as with that of other cases, will be a function of resources, individual diligence (including the diligence of legal representatives) and prioritisation. I heard no complaint distinctly articulated by Mr Shead in relation to resources (other than his allusion to pressure of business) or in relation to individual diligence. As far as prioritisation is concerned there is nothing before me to suggest that this case has not been given its proper priority. I would refer in this connection to what was said by Lord Prosser, giving the Opinion of the Court in Gibson v HMA supra at 129E:

[77] As far as pressure of business is concerned that may be an inadequate explanation where delay is endemic due to inadequacy of resources. However, I would not expect an efficient and properly resourced judicial authority not to be busy and that has consequences for the time that it will take for a particular item of business to be completed. I would again refer to what was said by Lord Prosser in Gibson v HMA supra, at 129A

[78] Were I to look at the time taken to determine the section 65 appeal in isolation I do not consider the period to be one which, on its face and without more, gives cause for concern, and therefore I would not go further. However, what I have to do is to look at the whole period from 1 October 2002 until a notional trial date in late 2006. As I have already indicated, I do think that that period amounts to an elapse of time that, prima facie, gives grounds for concern and therefore requires to be explained and justified. The Crown has provided an explanation and, to the extent that that is different, a justification. Part of that explanation is that the section 65 appeal was at avizandum between 12 January and 30 August 2006. Having considered that explanation and justification in the light of the whole circumstances and history of the case I do not consider the relatively high threshold of unreasonable, in the sense of excessive, delay to have been crossed and therefore I do not consider that this is a case where the Minuter's rights in terms under of Article 6 (1) of the European Convention on Human Rights will be contravened by the Lord Advocate continuing with this prosecution.

[79] I would propose to dismiss the relevant Minutes.