APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Nimmo Smith
Appeal Nos: XC799/06, XC800/06 and XC801/06
OPINION OF THE COURT
delivered by LORD NIMMO SMITH
under section 74 of the
Criminal Procedure (
PAUL DANIEL STEVENSON, SCOTT GEORGE RANKINE and WILLIAM DANIEL STEVENSON
HER MAJESTY'S ADVOCATE
Act: Shead, McKenzie; Hunter & Robertson,
Alt: K. Stewart, A.D.; Crown Agent
appeals arise from events which are alleged to have taken place at an address
appellants were originally indicted for trial on these charges in the
 Prior to the
commencement of the trial it was discovered that certain labelled productions,
namely a brick, a shovel, a brush and a broom ("the implements") were missing.
It appears that they had been destroyed approximately six months previously,
having been mistaken for rubbish which was being cleared out from the police
station where they had been stored. The Crown
moved the court to desert the diet pro
loco et tempore and to extend the time-bar.
These motions were opposed by the appellants who argued that the case
should be deserted simpliciter. On 16 October the Crown motion to desert the
diet pro loco et tempore was granted
and the motion to extend the time-bar was refused. On the same date an indictment was served on
the appellants citing them to a trial diet on
The first plea: competency
 The first
preliminary plea was to the effect that proceedings on the most recent
indictment were incompetent as the date fixed for the first diet was less than
15 clear days after the date of service of the indictment, contrary to the terms
of section 66(6)(a)(i) of the Criminal Procedure (Scotland) Act 1995 ("the 1995
Act"). Before this court it was argued
on behalf of the appellants that the first diet was a peremptory diet and as
such provided a procedural safeguard for the protection of the accused. The failure to give the appellants the period
of notice provided for by section 66(6) of the 1995 Act rendered the indictment
incompetent. Counsel for the appellants
urged us to follow the approach adopted in
"The interest to be protected is not that of the individual appellant but of the whole body of the public, and we cannot adopt the view that the requirements of solemn criminal procedure are only obligatory if and so far as any deviation may be thought to have adversely affected the individual immediately in question. Were it once admitted that it was a question of facts and circumstances in each case whether a serious deviation from regular procedure should be ignored, the anchor of the entire system would drag"
 In H.M. Advocate v McDonald and Others 1984 SCCR 229, the respondents were cited to a trial diet in the High Court on an induciae which was one day shorter than it should have been. The questions which the court of five judges in that case had to decide were whether, because the period between service of the indictment and the trial diet was less than 29 clear days in terms of sections 75 and 111A of the Criminal Procedure (Scotland) Act 1975 ("the 1975 Act"), the proceedings at the trial diet were fundamentally null, regardless of the wishes of the respondents, and whether the objection to the citation could be stated by the respondents at the trial diet when they had failed to give notice of the objection within 15 days of the service of the indictment in terms of sections 76(1)(a) and 108(1) of the 1975 Act.
"As to the first of these questions the answer is to be found by asking whether an objection of invalid citation - want of due citation - can be waived by an accused."
He then cited examples of situations which the law regarded as involving fundamental nullity even where the accused had concurred or acquiesced, and went on,
"Invalidity of citation, however, has never had in our law the consequence that proceedings at a trial diet fall to be regarded as incompetent and fundamentally null because, while invalidity of citation is open to objection by an accused, it is an objection which can be waived."
 In the course of their submissions, counsel for the appellants argued that the court's decision on the question of fundamental nullity in McDonald was obiter. We reject this submission. The court required to decide that question before it could decide the question of the competency of the objection at the trial diet.
 In Kerr v Carnegie 1998 SCCR 168 the complainer, who was charged on summary
 Kerr v Carnegie was followed in Hogg v H.M. Advocate 1998 SCCR 338, in which an appellant charged on indictment with three charges was not called upon to tender a plea in respect of each of those charges at the first diet in terms of section 71(6) of the 1995 Act. In relation to one of the charges he had lodged a special defence of alibi, the words of which, in accordance with the normal form, incorporated a plea of not guilty. In rejecting the argument that the proceedings were rendered null as a result of the failure to call upon the appellant to tender a plea, Lord Justice General Rodger said that the purpose of the first diet in Sheriff Court solemn procedure was similar to that of an intermediate diet in summary procedure. It was administrative in character and not specially conceived in favour of the accused.
 Counsel for the appellants again argued that the statement in Hogg that the proceedings were not rendered null by the fact that the appellant had not tendered a plea to two of the charges at the first diet was obiter. Again we do not agree. It was the de quo of the decision.
 More recently, the effect of defects in procedure on the validity of subsequent proceedings was considered in the case of Robertson v Higson 2006 SC (PC) 22. Although that case was principally concerned with the question of acquiescence on the part of the appellants tried and/or sentenced on summary complaint by temporary sheriffs prior to the decision in Starrs v Ruxton, certain passages in the opinions of members of the Judicial Committee of the Privy Council and in the High Court of Justiciary throw fresh light on the meaning of the expressions "fundamental nullity" and "fundamentally null".
 Lord Hope of Craighead, after referring to cases in which, although the proceedings had been affected by what was described as a fundamental nullity, the court refused to suspend the proceedings, said at paragraphs  and :
"What these cases tell us, as Lord Macfadyen was right to point out in the High Court of Justiciary, is that the question whether acquiescence is available or is excluded is not to be determined by asking whether the decision in question was invalid or was a fundamental nullity ... The determining factor is the nature of the defect itself. Is it of such a kind that the court has no alternative, irrespective of how the accused has reacted to it, but to set aside the sentence or to quash the conviction.
 I do not think that we need to consider what kinds of defects there might be, outside the class of cases which have already been recognised, that might fall into the category of defects that are incurable. I agree with Lord Macfadyen that there are no unequivocal criteria by which to recognise that kind of nullity... As the Lord Advocate said, the expression 'fundamental nullity' has no absolute meaning. It all depends on whether the court is willing to grant the remedy sought."
"Several of the judges below pointed out that it is impossible to extract from the authorities criteria by which to identify what counts as a fundamental nullity. This is because the term 'fundamental nullity' is conclusionary in nature: it is used to describe those defects for which the court will always supply a remedy. On a slightly modified version of Lord Macfadyen's analysis, ... it is clear that in the case of some defects which prima facie justify suspension the conviction or sentence will be allowed to stand if the person entitled to challenge it acts in such a way as to give rise to an inference that he has accepted or acquiesced in it; in the case of other defects the court will suspend the conviction or sentence even if the complainer has accepted or acquiesced in it. As Lord Macfadyen ... commented, the policy of the law determines into which category a defect falls.
 Into which category, then, does the defect in the present proceedings fall? In principle, if suspension is to be permitted despite the complainer's acquiescence, the defect must be sufficiently serious to overcome the policy of the law in favour of upholding convictions and sentences which the complainer has accepted and which have been treated as valid for a considerable period."
"There are, in my opinion, no unequivocal criteria by which to recognise a nullity that cannot be overcome by implied consent. I do not consider that any common thread can be seen as running through the cases. It is, it seems to me, a matter of the policy of the law in each case whether the defect should be regarded as of such a nature or of such gravity as to be incapable of being overlooked, even if the accused may be taken to have consented to its being overlooked."
 In the present
case the question of acquiescence does not arise since the appellants have been
alive to the defect in citation from the beginning and took the point at the
first opportunity. They were represented
at the first diet on
 Although Lord Justice General Emslie's statement in McDonald and Others v H.M. Advocate that invalidity of citation had never had the effect of rendering proceedings at a subsequent trial diet incompetent was made in the context of waiver by an accused of his right to object, it is clear from the later cases that, where questions of waiver and acquiescence do not arise, defects in citation will not have the effect of rendering subsequent procedure incompetent where there is no prejudice or injustice to an accused. As in Kerr v Carnegie it is relevant to the question of prejudice to consider the purpose of the provisions of section 66(6) relating to the first diet. As was pointed out in Hogg v H.M. Advocate the purpose of the first diet is similar to that of the intermediate diet in summary procedure. It is not specially conceived in favour of the accused but is of an administrative nature directed to pre-trial preparation. In Kerr v Carnegie the intermediate diet was omitted altogether but the court nevertheless held that subsequent procedure was not rendered incompetent.
 In the present case a first diet took place. The appellants were not prejudiced or disadvantaged. In these circumstances we are clearly of the view that the shortened induciae did not represent a defect in procedure sufficiently grave to have the effect of rendering subsequent procedure null. The appeals on this ground accordingly fail.
The second plea: oppression
 This plea arises from the loss of the implements. The plea is to the effect that each of the appellants is severely prejudiced by the loss of these objects to such a degree that they cannot receive a fair trial, no direction by a sheriff can cure the deficiency in the evidence, and accordingly the actings of the Crown in re-indicting the appellants without including these objects as labelled productions are unfair and oppressive. As we have said, the sheriff repelled this plea in hoc statu.
 It is convenient at this point to give a brief account, in chronological order, of the authorities to which reference was made before us. In Maciver v Mackenzie 1942 JC 51 Lord Justice General Normand, in a passage applied in Tudhope v Stewart 1986 JC 88, said at page 54 that the test of whether articles required to be produced was whether the real evidence was essential for proving the case against the accused, and not for the purpose of testing the credibility of the Crown witnesses.
 Maciver v Mackenzie was referred to in
 Anderson v Laverock was of course decided before the incorporation of the European Convention on Human Rights into our domestic law in 1998, but it can be seen from the Commission decision in Jespers v Belgium (1981) 27 D.R. 61 that the application of Article 6 of the Convention leads to a similar result. At paragraphs 55 to 58 the Commission referred to the principle of "equality of arms", expressing the view that the "facilities" referred to in Article 6, paragraph 3(b), which everyone charged with a criminal offence should enjoy, include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings. It was the right of the accused to have at his disposal, for the purposes of exonerating himself or of obtaining a reduction in his sentence, all relevant elements that had been or could be collected by the competent authorities.
 The leading Scottish case to which reference was made is McFadyen v Annan 1992 JC 53, in which a Full Bench held that, in cases of alleged oppression, the question for the court was whether there was such prejudice to the prospects of a fair trial that it would be oppressive to require the accused to face trial, the test of oppression being the same in such cases as in any other situation. In solemn proceedings, the court required to ask whether the risk of grave prejudice to the prospects of the accused receiving a fair trial was so grave that no direction by the trial judge to the jury could be expected to remove it.
 Reference was made to other cases in which objects had not been lodged as productions. In McKellar v Normand 1992 SCCR 393 the appellant was charged with the reset of a bed and a blanket, neither of which was produced at her trial. The court held that while it was good practice for items which were the subject of a charge of this kind to be produced if it was convenient to do so or, failing production, for labels relating to them to be produced in their place, the question was always whether, in the absence of the items or labels, injustice was likely to result to the accused, which was not the position in that case.
 In McQuade v Vannet 2000 SCCR 18 a tape recording taken from CCTV cameras which covered the locus had been deleted. The appellant took a plea in bar of trial on the ground that the destruction of the video record prevented a fair trial taking place. It was held that the sheriff correctly repelled the plea on the ground that any prejudice was possible rather than actual and could not be said to be grave until more was known about it. If, having heard the relevant evidence, the sheriff was persuaded at trial that the prejudice was so grave that he could not arrive at a fair verdict, he could desert the diet. In Rose v H.M. Advocate 2003 SCCR 569 a similar situation, involving the deletion of a tape recording, arose. The appellant lodged a devolution minute on the ground that the absence of the video tape created a material risk of his not receiving a fair trial, contrary to his entitlement under Article 6 of the Convention, since it deprived him of the opportunity to fortify the credibility and reliability of a witness who had seen the tape recording. It was held that the correct question at the pre-trial stage was not whether there was a material risk of the appellant not receiving a fair trial, but whether the circumstances were such that he could not receive a fair trial. Since there was no agreement as to what could be seen on the tape recording, and whether it would have supported the defence and undermined the evidence of the complainer, this was not a case in which it could be affirmed before the trial that for the proceedings to continue against the appellant would involve a breach of his right to a fair trial under Article 6.
 Finally, reference was made to Sinclair v H.M. Advocate 2005 SC (PC) 28, a case which related to the failure of the Crown to disclose police statements which could have been used to undermine the credibility and reliability of a Crown witness. At paragraph 33 Lord Hope of Craighead said:
"First, it is a fundamental aspect of the accused's right to a fair trial that there should be an adversarial procedure in which there is equality of arms between the prosecution and the defence. The phrase 'equality of arms' brings to mind the rules of a medieval tournament - the idea that neither side may seek an unfair advantage by concealing weapons behind its back. But in this context the rules operate in one direction only. The prosecution has no Convention right which it can assert against the accused. Nor can it avoid the accused's Convention right by insisting that the duty does not arise unless the accused invokes it first. Secondly, the prosecution is under a duty to disclose to the defence all material evidence in its possession for or against the accused. For this purpose any evidence which would tend to undermine the prosecution's case or to assist the case for the defence is to be taken as material. ...".
 Before us, it was accepted by their counsel that the appellants had to satisfy us that they could not receive a fair trial in the absence of the implements as labelled productions. It was submitted that this was so, because the disappearance of the implements gave rise to a serious and incurable difficulty. It deprived each of the several appellants of the opportunity to prove unambiguously by scientific examination that traces of their DNA were absent from productions on which the Crown would have relied for conviction. Now the presiding sheriff could only direct the jury as to the possibility that, if the productions had been examined for DNA or made available to the defence, such evidence might have been forthcoming. This would altogether lack pungency as compared with what the defence might have been able to say had the Crown analysed the productions for DNA or disclosed to the defence that they were being offered the opportunity to have such an analysis carried out for the several appellants. The loss or destruction of these productions meant that the defence were permanently deprived of that opportunity, and thus the appellants could not be guaranteed a fair trial. It was also suggested that, had the implements been available for examination by a defence medical expert, an opinion could have been expressed as to whether they were respectively capable of causing the complainers' injuries.
 The Advocate Depute pointed to the fact that the three complainers had been listed as Crown witnesses, and indicated that the Crown had not had tests carried out on the implements. This led counsel for the appellants to submit that the failure of the Crown to explore the possibility that the implements did not bear the DNA of all or any of the appellants, and thus to seek evidence which might have led to the exculpation of the appellants, constituted a breach of the appellants' rights under Article 6 of the Convention.
 In our opinion
the sheriff correctly decided to repel the plea in hoc statu. It seems to us
to be quite impossible to affirm at this stage that the appellants cannot
receive a fair trial. The appellants
founded strongly on
 The defence will have all the usual opportunities during the course of the trial to make submissions about and to exploit the loss of the implements. The significance of that loss will require to be assessed by the sheriff in the context in which it is raised, and appropriate decisions made then. We are not to be taken to be expressing any view about these issues in advance of the trial: it is sufficient that in our opinion it is impossible to say at this stage that the appellants cannot receive a fair trial or that the requirements of the law cannot otherwise be complied with. For these reasons the appeals on this ground also fail.