APPEAL COURT, HIGH COURT OF JUSTICIARY

Act: Shead, Jackson; Capital Defence Lawyers, Edinburgh

Alt: Stewart, Q.C., A.D.; Crown Agent

25 April 2007

The circumstances

[1] The appellant has been indicted to stand trial for the rape and murder of two young women. These offences are said to have been committed in October 1977. The appellant has lodged a devolution minute in which he contends that any trial of him for these offences would not be a fair trial before an independent and impartial tribunal and would thus infringe his right to such a trial as guaranteed by Article 6 of the European Convention on Human Rights and Fundamental Freedoms. For the Crown to insist in his prosecution on this indictment would, he contends, be ultra vires of the Lord Advocate under section 57(2) of the Scotland Act 1998. He seeks declarator to that effect. Declarator was refused by a single judge at a preliminary hearing. The appellant, with leave of that judge, appeals to this court under section 74 of the Criminal Procedure (Scotland) Act 1995.

[2] The appellant's contention is rested partly on the proposition that certain pre-trial publicity about him and about the circumstances of the offences is of such a character that a fair trial before an impartial tribunal cannot reasonably be expected. His minute also states that access to information on the internet (of a character gravely prejudicial to a fair trial) cannot realistically be controlled before or during any trial.

[3] The sequence of events which, it is alleged, resulted in the rapes and murders of the victims began in a public house, the World's End Public House, in the High Street, Edinburgh. In consequence the circumstances of their deaths have become known as "the World's End murders". For some time after their bodies were found, there was widespread publicity in the print media about their killing, but no one was apprehended. Interest was revived in the mid-1990s when against the background of advances in DNA technology there was fresh speculation in the print media that these, among a number of other unsolved murders, might be solved. This speculation continued until about 2004. It centred on the involvement of the appellant, not only in the two murders which form the basis of the present indictment but also as a possible suspect in four other murders of young women from different parts of Scotland.

[4] The appellant, who is now 61 years of age, has a very serious criminal record. In the early 1960s he received a lengthy prison sentence for lewd and libidinous practices and culpable homicide. In 1982 he was sentenced to life imprisonment for a catalogue of sexual offences, including rape. In 2001 he was sentenced to life imprisonment for offences of rape and murder, which had taken place in the early 1970s. There is clearly a thread of violent and sexual offending which runs through his previous convictions.

[5] The speculation in the print media in the ten years or so prior to 2004 included speculation that the appellant had committed, among other murders, the World's End murders. It made reference to his criminal record. Some of the relative articles included a photograph of the appellant as a young man. After the service on the appellant in March 2005 of a petition charging him with the present offences the print media speculation ceased.

[6] Also founded on by the appellant as prejudicial to his prospects of a fair trial before an impartial tribunal is a book entitled "Scotland's Killers from Manuel to Mitchell" published at the end of 2005. The author asserted at page 190 of the book that the appellant was responsible for the World's End murders. The prosecuting authorities took steps to remove it from sale. It was so removed in the course of 2006. Prior to that removal it had sold about 300 copies.

[7] Of most potential significance to the fairness of any trial of the appellant is the availability on the internet of material prejudicial to him. In the week prior to the hearing before the single judge a search, initiated on behalf of the appellant under the Google search engine with reference to his first name and surname, produced from United Kingdom sources a large number of entries, some of which clearly referred to the appellant. If the searcher then clicked on to the first of these entries, access was obtained to a site entitled "Murder, United Kingdom". On that site there was a clear and unequivocal claim that the appellant had been responsible for the World's End murders. There was also an indication that since May 2004 there had been over 1,300,000 hits on that site. Additionally, a search at that time under the heading "World's End murders" produced a number of other sites which linked the appellant to these murders and to other unsolved crimes. That material may be summarised as recycling many of the claims and speculations which had earlier appeared in the media, in particular in the print media, about the appellant's involvement in these murders, his previous convictions and his supposed links to other unsolved crimes.

[8] Mr. Shead for the appellant submitted that the relevant test was whether, in light of the prejudicial material, a fair trial could reasonably be expected (Beggs v H.M. Advocate 2001 S.C.C.R. 836, per Lord Coulsfield at paras. [3] - [4]). At common law the issue was whether, in the light of the prejudicial publicity, it would be oppressive to proceed to trial; it would be oppressive where the risk of prejudice was so grave that no direction of the trial judge, however careful, could reasonably be expected to remove it (Stuurman v H.M. Advocate 1980 J.C. 111, per Lord Justice General Emslie at page 122). Under the Convention the starting point was the appellant's right to a fair trial. That right was unqualified. It was not to be subordinated to the public interest in the detection and suppression of crime (Montgomery v H.M. Advocate 2000 SCCR 1044, per Lord Hope of Craighead at page 1106). In the present case the issue was whether there were adequate safeguards in place to ensure a fair trial. The degree of adverse publicity was similar to that described in Beggs. The single judge was not exercising a discretion (McGill v H.M. Advocate 1997 S.C.C.R. 230, per Lord Justice General Rodger at page 237). It was accordingly unnecessary for the appellant to meet the test for reviewing a discretionary decision. An element of judgment was involved; but what was being reviewed was essentially a matter of law, analogous to whether there was a sufficiency of evidence to warrant a conviction. When the position in respect of safeguards (present and absent) was considered cumulatively it could be seen that the single judge had erred in the conclusion at which he had arrived. In particular he had been unduly influenced by the Stuurman test; he had failed to recognise that this was an exceptional case; he had erred in concluding that what he described as "the more immediate and comprehensive safeguards" would be sufficient to avoid prejudicing the appellant's right to a fair trial. In Scottish practice "jury vetting" was not approved (Spink v H.M. Advocate 1989 S.C.C.R. 413). But, where necessary, the court could react by changing its practice (as in Pullar v H.M. Advocate 1993 SCCR 514; Pullar v United Kingdom 1996 SCCR 755). At present there was nothing which could be regarded as an adequate safeguard against a juror having access to prejudicial material on the internet. Contamination of a single juror was sufficient to contaminate the whole jury (McTeer v H.M. Advocate 2003 S.C.C.R. 282). The risk posed by internet access was not restricted to access by persons subsequently cited for jury service but extended to access had by empanelled jurors in the course of the trial. Practice in Scotland did not provide a safeguard against that risk. That risk could clearly lead to a trial being unfair (R. v Karakaya [2005] EWCA Crim 346, [2005] 2 Cr App R 5). It had been acknowledged and provided for in certain other jurisdictions. Reference was made to a Guide to Jury Deliberations, given to potential jurors in Queensland, and to R. v K [2003] N.S.W.C.C.A. 406 and R. v Scaf [2004] N.S.W.C.C.A. 37 (both from New South Wales), the latter of which took into account the views expressed in R. v Mirza, R. v Connor and Rollock [2004] UKHL 2, [2004] 1 AC 1118. Reference was also made to R. v Sherratt [1991] 1 S.C.R. 509, which demonstrated that wide-ranging safeguards, including jury vetting, were to be found in the Canadian courts. The court should grant a declarator that the Lord Advocate had no power to proceed to trial on the charges in the indictment, failing which it should lay down safeguards beyond those presently in place, sufficient to ensure that a fair trial could reasonably be expected.

[9] The advocate depute moved the court to refuse the appeal and to remit the case to a preliminary hearing already fixed for 1 May 2007. The single judge, it was submitted, had applied the correct test and had had regard to all relevant and to no irrelevant material. His decision should not be altered. It could not be said at this stage that it would be ultra vires of the Lord Advocate to proceed to trial. Although the single judge's decision-making power might not be discretionary in the fullest sense, a substantial element of judgement was involved. In Beggs v H.M. Advocate the court had looked at the issue de novo only after identifying a possible error of approach by the single judge. In the present case it was accepted that there was a problem, but not an insurmountable problem, in relation to prejudicial publicity on the internet. The Crown had, since the hearing before the single judge, been able to take certain steps to mitigate that potential prejudice. With the co-operation of the website owner a particular item of concern had been removed from it - that concerning the appellant on the "Murder, United Kingdom" site. Further steps were being taken in relation to other sites. There was an important distinction between (1) pre-trial publicity affecting potential jurors (against which traditional safeguards were broadly sufficient) and (2) "intra-trial" publicity and its effect on empanelled jurors. It was clear from the single judge's Opinion that he had been addressed only on (1), which he had fully and adequately dealt with. What particular steps should be taken in relation to instructing empanelled jurors (particularly with regard to past or prospective use of the internet) was essentially a matter for the trial judge. There might, in the circumstances of this case, be advantage in possible instructions being discussed with parties at a preliminary or other hearing before the trial judge in advance of the trial. As to whether any "balancing act" was required under the Convention, the Crown reserved its position. The right of an accused to a fair trial under Article 6 might require to be balanced against the rights of victims or their relatives to have effective proceedings brought against persons accused of serious crime. It might on the other hand be that victims' rights could be encompassed within the scope of a "fair trial". It could not be right that a person could avoid trial because the process had been tainted by his own notoriety. If there were to be any suggestion that the holding of the trial in Edinburgh (as against in some other place) was prejudicial to the appellant, it was for him to raise that issue as appropriate.

[10] In Montgomery v H.M. Advocate Lord Hope opined that a feature in the case of X. v Sweeney 1982 JC 70 (to which Lord Coulsfield had referred in the High Court) did not deprive the Stuurman test of its utility in the Article 6(1) context. Lords Slynn of Hadley, Nicholls of Birkenhead and Hoffman agreed with that part of Lord Hope's judgment. Lord Clyde did not opine on the applicability of the Stuurman test. In Beggs v H.M. Advocate the High Court (presided over by Lord Coulsfield) expressed the view that the test to be applied in the context of the Convention was that to be found in the Opinion of Lord Justice General Emslie in Stuurman, read in the light of the comments by Lord Justice General Rodger and Lord Hope in Montgomery v H.M. Advocate. In Stuurman Lord Justice General Emslie said:

"Each case will depend on its own merits, and where the alleged oppression is said to arise from events alleged to be prejudicial to the prospects of fair trial the question for the Court is whether the risk of prejudice is so grave that no direction of the trial Judge, however careful, could reasonably be expected to remove it".

Accordingly, there is built into the common law test the concept of a fair trial, a concept well recognised in the law of Scotland before the Convention was incorporated into domestic law. We find it unnecessary in this case to express any view on the matter raised and reserved by the advocate depute, namely, whether under the Convention there requires in some way to be brought into account the rights of victims of crime or their relatives. To the approved test in Stuurman we would add only this. The reference to "direction of the trial judge" should not be read narrowly but so as to encompass all instructions and advice which the trial judge may give to the jurors at the commencement or during the course of the trial. Additionally, it will be necessary to take into account safeguards inherent in the trial process itself and in the historical context in which it occurs, which may negative or militate against the influence of external prejudicial material. These will include, for example, the discipline of the jury listening to the evidence adduced in court and any lapse of time between the publication in question and the trial.

[11] In approaching the task of evaluation before him, the single judge said, at para. [28] of his Opinion:

[12] We find no error in that approach. It involved no "undue" reliance on the Stuurman test (by which we understand it to be contended that the subsequent observations in Montgomery had not been taken into account) and it encompasses safeguards going beyond those secured by "directions", in any narrow sense, given by the trial judge.

[13] Having made his evaluation of the various classes of material said to be prejudicial to a fair trial, the single judge said:

[14] The availability of the internet and its increasingly wide use by members of the public, including potential and serving jurors, presents a challenge for the administration of justice. While news reported and opinions expressed in the press or broadcasting media on a daily basis are themselves ephemeral, the internet provides ready access to historical material, including media items. At one time a person seeking reported information about a past event or about a particular individual would require to spend significant time, and possibly expense, in retrieving it from a public library or similar institution; now such information can be accessed by the pressing at home of a few controls on a computer. Moreover, persons with interests in particular fields, including criminal investigations and criminal histories, may choose to set up websites which provide links to historical and other materials. Such materials, if accessed by a juror or jurors, may in some circumstances be potentially highly prejudicial to the fairness of the trial of an accused.

[15] The dangers have been acknowledged and addressed in other jurisdictions. In Queensland, Australia statutory provision has been made to the effect that a person who has been sworn as a juror in a criminal trial must not inquire about the defendant until the trial is over. "Inquire" is defined as including "(a) search an electronic database for information, for example, by using the internet; and (b) cause someone else to inquire". The prohibition is backed by criminal sanction, including the possibility of imprisonment. In R. v K. the New South Wales Court of Appeal recommended that legislation along these lines should be introduced into that State.

[16] In this jurisdiction there is no such legislation but, as the single judge recognised, the chances of selected jurors actively seeking in the course of the trial material on the internet about the circumstances of the murders and about the appellant may require to be managed by the court. That, if appropriate, can be done at the outset of the trial or immediately before the jurors disperse at the end of the first day or at any other suitable time, by a suitably framed instruction by the trial judge. While the possibility remains that a juror or jurors might disobey that instruction, the whole jury system depends on there being trust between judge and jury, including an understanding that jurors will not deliberately disobey the instructions on law or procedure which they are given by the trial judge.

[17] It is possible that a person or persons cited for jury service may some time prior to the commencement of the trial have used the internet and, accidentally or deliberately, have come upon information about the police investigation or about the appellant. Such a person may find himself or herself empanelled on the jury. It is customary (in the light of Pullar v H.M. Advocate) for judges at the outset of the trial, before evidence is led, to tell the jurors that if any of them knows the accused or the victim on any charge or if there is any other good reason why he or she should not serve on the jury, that juror should so advise the clerk during the short adjournment which commonly precedes the leading of evidence. In appropriate cases, and this may be such, a reference to knowledge acquired by use of the internet might usefully be added to that instruction. This is no more than a development of existing practice in the context of technological advances.

[18] We regard it as inappropriate to be any more prescriptive than we have been in the observations made above. Much will depend on the particular circumstances which exist at the commencement of the trial and as it progresses. The particular safeguards which are appropriate to the particular trial in its own time and context are best determined by the trial judge. In the course of the discussion it was suggested that there would be advantage in parties, in advance of the trial diet, making representations to the trial judge as to the terms in which he might instruct the jurors as regards any past or prospective use of the internet. In the circumstances of this case we agree that this would be advantageous - in particular, to enable the trial judge to make informed decisions in the light of such assistance. A further diet appointed under section 72(9) of the Criminal Procedure (Scotland) Act 1995 for that purpose would appear to be an appropriate mechanism. R. v Scaf (where suggested directions are discussed) and the other Australian material might usefully be considered.

[19] We are quite satisfied that, in accordance with the safeguards which are available, it can reasonably be expected that the appellant's trial will not be rendered unfair by prejudicial material coming at a significant time to the knowledge of one or more of the jurors at his trial. Being so satisfied, we must refuse this appeal. We shall then remit the case to the preliminary hearing fixed for 1 May 2007.

[20] We would only add that the discussion before us focused on the guarantee of a "fair trial" rather than of an "impartial tribunal" under Article 6. The authorities referred to have the same focus. It may be that, where prejudicial material potentially affecting the judgment of jurors is in issue, the better focus is on the requirement for an impartial tribunal. However, the difference in focus makes no difference to the general principles or to the result.