APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
 HCJAC 27
Appeal No: XC903/06
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
NOTE OF APPEAL
under section 74 of the
Criminal Procedure (
ANGUS ROBERTSON SINCLAIR
HER MAJESTY'S ADVOCATE
Act: Shead, Jackson; Capital Defence Lawyers, Edinburgh
Alt: Stewart, Q.C., A.D.; Crown Agent
 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 (
 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.
 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
 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.
 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.
 Also founded
on by the appellant as prejudicial to his prospects of a fair trial before an
impartial tribunal is a book entitled "
 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 "
The submissions of parties
 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.  - ). 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 (
 The advocate
depute moved the court to refuse the appeal and to remit the case to a
preliminary hearing already fixed for
"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
"The outcome in each case will always depend upon an examination of its particular facts and circumstances, but where the alleged oppression arises from events said to be prejudicial to a fair trial, the question for the court is whether the issue of prejudice is so grave that no directions by the trial judge, however careful, could reasonably be expected to remove it. In other words the court will only require the indictment to be deserted if it is established, in the circumstances of the case, that the nature and extent of pre-trial publicity is such that it would not be reasonable to expect that the trial judge could secure a fair trial by means of appropriate directions to the jury. These special circumstances must be such as to satisfy the court that, having regard to the principles of substantive justice and a fair trial, to require an accused to face trial would be oppressive. This matter must be considered in all the circumstances of the case in the light of the degree and timing of pre-trial publicity in the media, the real and quantifiable coverage and availability on the internet, and the extent of the distribution of any other material. The issue also has to be considered against the background of the warning and advice given by clerks of court and judges at the outset of the trial, the process and immediacy of the trial itself in front of the jury, and the directions available to the judge in the course of his charge".
 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
"I have accordingly concluded that the more immediate and comprehensive safeguards, described earlier, will in all but the most exceptional cases, (of which this is not one), be sufficient to avoid prejudicing an accused's right to a fair trial. The chances of selected jurors actively seeking such material on the internet in the course of the trial may require to be managed by the court, but again I have no doubt that this can be achieved. I am therefore satisfied that individually and cumulatively all these sources of pre-trial publicity or publicity which may be available to jurors during a trial, are not such as would justify the desertion of proceedings in this case".
The safeguards to which the single judge there refers are those noted at para.  of his Opinion. Subject to an observation which we shall hereafter make about possible access by potential jurors to internet material in advance of the trial, the safeguards referred to are in our judgment such that a fair trial may reasonably be expected. As to the judge's reference to the present case not being exceptional, we do not understand him to mean that the material is not highly prejudicial; rather that the safeguards available are such that a fair trial can reasonably be expected and that the case is accordingly not such that the court should take steps to prevent it proceeding. The judge also notes in that paragraph that steps may require to be taken against the chances of the selected jurors actively seeking material on the internet in the course of the trial.
 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.
 The dangers
have been acknowledged and addressed in other jurisdictions. In
 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.
 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.
 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 (
 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
 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.