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Cite as: [2007] ScotHC HCJAC_72, 2008 GWD 1-13, [2007] HCJAC 72, 2008 SLT 404

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Macfadyen

Lord Marnoch

[2007] HCJAC72

Appeal No: XC858/03

OPINION OF THE COURT

delivered by LORD OSBORNE

APPLICATION FOR LEAVE TO APPEAL TO THE PRIVY COUNCIL

Under Paragraph 13 of Schedule 6 to the Scotland Act 1998

MICHAEL JOHN MURPHY

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Clancy Q.C., Shead; McSparran & McCormick, Glasgow

Alt: Mackay, A.D.; Crown Agent

12 December 2007

The background circumstances

[1] The appellant was convicted on charges (2), (3), (5), (8), (9), (11), (12), (13), (14) and (16) in the indictment which he faced. His conviction on 20 June 2003 followed a trial. Details of these charges are to be found in paragraph [2] of the Opinion delivered by myself, dated 9 October 2007, in the subsequent appeal against conviction. The grounds upon which that appeal proceeded are set forth in paragraph [4] in that Opinion. The submissions for the appellant and for the Crown in the appeal are summarised in paragraphs [5] to [32] of the same Opinion. The appellant's appeal was refused by a majority of the Criminal Appeal Court, being Lord Osborne and Lord Macfadyen; Lord Marnoch dissented.

The present application

[2] On 29 November 2007 there came before this Court an application on behalf of the appellant for leave to appeal to the Privy Council under paragraph 13 of Schedule 6 to the Scotland Act 1998. The application was supported by senior counsel for the appellant, who had assisted the Court by furnishing it with a Note, the purpose of which was to give a brief outline of the argument intended to be presented for the appellant to the Privy Council, should leave to appeal be granted. We refer to the terms of that Note, which is appended to this Opinion.

[3] In supporting his application, senior counsel referred to the material in his Note. He summarised the point which he submitted was fit for consideration in the Privy Council by saying that the right to a fair trial enshrined in Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms extended to the preparation of a defence on the part of an accused person. The present appellant had been prejudiced by having been brought to trial so many years after the events to which the allegations against him related. He had been disadvantaged in comparison with the position of the Crown, in respect that the Crown's case relied upon persons who had been pupils at the approved school, of the staff of which the appellant had been a member. Those persons were now in middle-age. Defence evidence would have been potentially available from other members of the staff of the school at the material time. However many of those persons were dead or otherwise unavailable. It had been a part of the appellant's defence that the electrical generating device referred to in certain of the allegations against him had not been capable of being used as a weapon in an assault. That device had been discarded and was unavailable at the time of the trial. It was not being suggested that there was some arbitrary temporal cut-off point in relation to criminal proceedings; however, it had to be recognised that the greater the gap of time between the dates of the alleged crimes and the date of trial, the more difficult it was for an accused person to defend himself. In all the circumstances, it was submitted that leave to appeal should be granted.

[4] The Advocate depute on behalf of the Crown contended, first, that the contemplated appeal would be incompetent and, second, that, esto it was competent, in any event, leave to appeal should not be granted. Developing the first point, he drew our attention to paragraph 13 of Schedule 6 to the 1998 Act which provides:

"An appeal against the determination of a devolution issue by - (a) a court of two or more judges of the High Court of Justiciary (whether in the ordinary course of proceedings or on a reference under paragraph 9), .... shall lie to the Judicial Committee, but only with leave of the court concerned or, failing such leave, with special leave of the Judicial Committee."

The Advocate depute submitted that, in the present case, there had not been a "determination of a devolution issue" by this court. Two devolution issue minutes had been lodged in the course of the present proceedings. One of these raised an issue relating to the effect of sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995, as amended. The other, which bore a date 17 January 2003, contained a contention in the following terms:

"(g) The proceedings on indictment are incompatible with Article 6 of the European Convention on Human Rights which provides 'in the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...'. The period which has elapsed between the alleged offences and any hearing is great. Further, a period of two years approximately elapsed between the date the allegations became known to the Crown and the date a first (indictment) was served on the minuter (June 2000 - 13 June 2002). It is submitted that for the Crown to proceed in these circumstances is in breach of the requirement to proceed within a reasonable time. It is further submitted that having regard to the age and gravity of the alleged offences, the Crown cannot offer and the Minuter cannot receive a fair hearing."

In the earlier paragraphs of the minute, the appellant outlined the difficulties which he perceived he faced in connection with his contemplated trial.

[5] These minutes came before Lord Bonomy at a preliminary hearing. In his Opinion he refused each of the minutes before him. In paragraphs [43] to [47] of that Opinion, Lord Bonomy gives his reasons for refusing the remedies sought in the minute to which detailed reference is being made. In particular, in paragraph [46], Lord Bonomy expressed the view that he was satisfied that it would be possible at a trial to direct the jury adequately to avoid any risk of prejudice.

[6] When the matter had come before this court in the appeal against conviction, senior counsel for the appellant had made submissions concerning the ground of appeal contained in paragraph 2 of document 1B. It had been contended that the appellant had not had the benefit of a fair trial. However, senior counsel had made it clear that he was not seeking to challenge the decision made by Lord Bonomy, in which he had rejected the appellant's plea in bar of a trial, which had been a plea of oppression. The Advocate depute contended that what had in fact been done in the hearing of the appeal before us had been the advancing of criticisms of the directions given by the trial judge. The determination of the merits of those submissions was not the determination of a devolution issue. The only devolution issue relating to these matters had been determined by Lord Bonomy and his decision on that matter was not being challenged.

[7] In reply, senior counsel for the appellant said that the Crown's position depended upon the formalities of minutes. He agreed that he had not challenged the decision of Lord Bonomy in this regard, as appeared from paragraph [17] of the Opinion delivered by myself following the appeal. In seeking to support the conviction before this court, the Lord Advocate's representative had acted in a manner which was incompatible with Article 6 of the Convention.

The decision

[8] It is quite clear that this court can grant leave for an appeal to the Judicial Committee of the Privy Council and that such an appeal can be brought only if there has been "a determination of a devolution issue" by this court. Further, it is evident from rule 40.2 of Act of Adjournal (Criminal Procedure Rules) 1996 that, if a party to criminal proceedings on indictment wishes to raise a devolution issue, that issue must be focussed in an appropriate minute, which requires to be served on the Lord Advocate and the Advocate General for Scotland. In the present case the only such minute relevant to the present matter that was lodged was that to which we have already referred, in which the contention was advanced that there could not be a fair trial in the circumstances of this case. The contention in that minute amounted to a plea in bar of trial. That plea was rejected by Lord Bonomy and a trial subsequently took place. What was contended in the appeal before us was that the trial had been unfair and oppressive in the particular circumstances, having regard to inadequate directions by the trial judge. Senior counsel for the appellant expressly disowned any intention to contend that Lord Bonomy's decision was unsound. In these circumstances we have reached the conclusion that the decision of this court determining the criminal appeal did not involve "a determination of a devolution issue". It therefore follows that the present application for leave to appeal is incompetent, as would be the contemplated appeal. Accordingly we refuse the application for leave as incompetent.

[9] In any event, even if, upon some basis which we cannot discern, it were thought that there had been "a determination of a devolution issue" beyond that of Lord Bonomy, which was not attacked, we would not have been prepared to grant leave to appeal. In our opinion, the issues ventilated in the appeal before us were essentially matters relating to the evidence which was or was not available in the present case and to the directions given by the trial judge to the jury in relation to that evidence. We would not have considered that an appeal relating to such matters could appropriately have been taken to the Privy Council.

APPENDIX

NOTE BY SENIOR COUNSEL

for the APPELLANT

in the cause

MICHAEL MURPHY

against

HER MAJESTY'S ADVCOATE

The purpose of this Note is to give a brief outline of the argument for the appellant in the prospective appeal to the Privy Council should leave to appeal be granted.

The general proposition is that the appellant was denied a fair trial within the meaning of Article 6 of the European Convention on Human Rights by virtue of the passage of time which elapsed between the conduct libelled and the trial, a period of between thirty four and forty two years. The particular prejudice to the appellant founded on in the appeal is the loss of potentially exculpatory evidence through no fault of the appellant. The argument featured in the original ground of appeal and in Supplementary Ground of Appeal - see paragraph [4] of Lord Osborne's Opinion.

The main focus is on the electricity generating device which is said to have been a weapon used to inflict assaults in five of the ten charges of which the appellant was convicted. This branch of the appeal was dealt with only by Lord Osborne - see paragraphs o [56] of his Opinion.

The points which could be made in an appeal to the Privy Council and, which, it is respectfully submitted merit leave to appeal, are as follows:[

(1) Lord Osborne held that the trial judge did not need to make specific directions about the effect of the passage of time and the loss of potential sources of evidence - paragraph [55]. This is contrary to the approach taken by the Privy Council in Holland v. HMA 2005 SC (PC) 3 where Lord Rodger emphasises the importance of adequate directions as a device to ensure a fair trial - see paragraphs [39] to [43], [58] and [62].

Lord Osborne's assertion is also inconsistent with the Scottish common law authorities which stress that the primary safeguard against possible oppression through for example, the passage of time, is adequate directions - see McFadyen v. Annan 1992 JC 53 at page 60 and Sturman v. HMA JC 111, LJG Emslie at page 122.

At paragraph [53] Lord Osborne says-

"One must pose the question of what directions the trial judge might reasonable have been expected to give."

The answer offered to this question on behalf of the appellant in oral submission in respect of the electricity generating device was that the trial judge could and should have directed the jury that they should be mindful of the fact that the device was no longer available and that accordingly through no fault of his own the appellant had lost the opportunity of demonstrating that it was incapable of generating a painful charge or of being used in the manner described by some of the complainers. This latter point refers to evidence from at least one of the complainers that the device was wired up to the fence of a tennis court from which the complainer received the painful shock.

(2) Lord Osborne says at paragraph [54] that "between pages 17 and 20 of [the trial judge's] charge, the jury were given clear and forceful directions concerning the problems which were seen to have arisen from the antiquity of the events which had given rise to the prosecution."

The directions referred to by Lord Osborne concern only the reliability of childhood memories of the complainers. It concerns therefore only the quality of the Crown evidence and not the absence of potential exculpatory material. There is not question, therefore, of these directions addressing the particular difficulty raised by the appellant. An additional criticism of Lord Osborne's approach is that if, by implication, directions about this aspect of the passage of time were appropriate then so were directions of the sort that the appellant contended for.

(3) In dealing specifically with the loss of the electricity generating device Lord Osborne said at paragraph [51]

"This was simply one of a kind of common situations where real evidence, like a weapon used in an assault is not available."

With respect his Lordship is completely missing the point here for the following reasons:

(a) Loss here is down to the passage of time (34 to 43 years) and the device was lost in circumstances outwith the appellant's control, he having gifted it to a family on his retirement. The typical situation where the weapon is not available is where the perpetrator has disposed of it or otherwise concealed it.

(b) The issue here is whether this device was capable of being used in the commission of an assault. That is very different from a case where a victim is stabbed or shot and therefore the commission of a crime can clearly be established without production of the weapon.

(4) On the other two types of evidence lost, namely independent witnesses who lived and worked at the school and contemporary and other medical records, Lord Osborne says that it is pure speculation as to whether these sources might have revealed evidence favourable to the appellant.

That is correct insofar as it goes but misses the point again. It is the loss of opportunity to discover evidence which might be favourable which is objectionable from the appellant's point of view faced as he is by positive evidence from complainers who purport to speak to assaults happening all those years ago. Lord Osborne does not address the proposition that the loss of this opportunity deprived, or played a part in depriving, the appellant of a fair trial or at least merited a discretion from the trial judge favourable to the appellant.

There is a subsidiary issue as to whether the Scottish common law test for oppression is unduly onerous insofar as it places the onus on the appellant to show that evidence which has been lost through passage of time would have been of assistance to the appellant in undermining the Crown case or supporting a positive line of defence. It is submitted that in the context of Article 6 that test is too onerous because it places an impossible burden on the accused in most situations where evidence has been lost.

(5) Much of the appeal in the High Court was taken up with the identification point which was not, of itself, presented as an Article 6 issue. In an appeal to the Privy Council, however, the issue of identification in the present case and in particular whether there was a sufficiency of evidence on identification and whether the trial Judge gave adequate directions about identification, can be raised and considered. There is a direct analogy with the case of Holland v. HMA where the Privy Council held that the problem about identification there, inadequate direction from the trial Judge, contributed to the final analysis that the accused had been denied a fair trial in terms of Article 6.

Ronald Clancy

Advocates Library,

Parliament House,

Edinburgh.

27 November 2007