14^th January 2009

Minuter (1^st Accused): Carroll; McGlennan, Solicitor Advocates; Liam Robertson & Co

Respondent: Ms L Cross, Solicitor Advocate; Advocate Depute; Crown Agent

Interested Party (2^nd Accused); Keegan, Solicitor Advocate; Fairbairns

28 August 2009

This case called before me in Glasgow High Court on 19 December 2008 for a Continued Preliminary Hearing in relation to the Crown's application under section 65(3)(a) of the Criminal Procedure (Scotland) Act 20051995, as amended ("the 2005 1995 Act") for extensions of the 11 and 12 month time periods specified in section 65(1) ("the time limits"). The Solicitor Advocates for each of the accused intimated, in line with Minutes previously lodged, that they wished to challenge the competency of the application. It was agreed by all parties that I should decide this question before hearing any argument on the merits of the application. Accordingly, the submissions I heard were restricted to that issue, as is this Opinion.

In the application the Crown seeks retrospective extensions of the time limits in respect of charges 2 and 3 on the indictment. Those are charges of the murder of Alison McGarrigle on 21 June 1997 and attempting to defeat the ends of justice by disposing of her body. I shall refer to those charges as "the time-barred charges". It was argued on behalf of both accused that the application was incompetent because the indictment was a nullity insofar as the time-barred charges were concerned. This argument was based on the fact that the accused had first appeared on petition in respect of the time-barred charges at Kilmarnock Sheriff Court on 5 April 2005. The indictment (containing 18 charges in all) was not served until 10 September 2008. Accordingly, since no preliminary hearing had commenced within 11 months of 5 April 2005 and no trial within 12 months of that date, the provisions of section 65(1A) of the 2005 1995 Act were engaged with the result that the accused were, in the words of that provision, "discharged from any indictment" as respects the time-barred charges and could not be proceeded against on the present indictment as respects these charges.

Mr McVicar for the first accused submitted that the time limits could not be extended because the time-barred charges were not competent charges and the Crown had no right to prosecute them. Under reference to Fleming v HMA 2006 SCCR 594 at paragraph [31], he contended that a pre-requisite for the competent exercise of the power contained in section 65(3)(a) of the 1995 Act was a live indictment. The present indictment, he said, could not be regarded as a live indictment insofar as it extended to the time-barred charges. He suggested that the correct (and only) course for the Crown to have taken in the circumstances of the present case would have been to apply to the Sheriff Court at Kilmarnock for extension of the time limits under section 65(3)(b) of the 2005 1995 Act. The essence of his submission was that because charges 2 and 3 were time-barred, they should be read as pro non scripto or fundamentally null. It was as if, Mr McVicar said, the time-barred charges did not exist at all. That being the case, I had no power to extend the time limits under section 65(3)(a) because that provision could only be operated in circumstances where the offences had been competently indicted.

Mr Carroll for the second accused adopted Mr McVicar's submissions and added some further arguments in support of the proposition that the Crown's application was incompetent (Mr McVicar in turn adopted these further submissions). Mr Carrol said that the charges fell to be read as having been incompetently libelled since, as he put it, the Crown had no right to libel them. He referred to

paragraph 9-03 of Renton & Brown's Criminal Procedure (6th edition) where a number of possible objections to the competency of charges were identified: these examples included a challenge based on the proposition that the provisions of section 65 of the 1995 Act had been breached. Since the bringing of the time-barred charges clearly entailed a breach of the time limits contained in section 65(1), the charges had to be treated, according to Mr Carroll, as having been incompetently brought. That being the case, the power to extend the time limits given in section 65(3)(a) simply could not be invoked since the time-barred charges were not competently before the Court.

In the course of the debate, Mr Carroll developed his arguments by founding on the absence in section 65(1A) of the 2005 1995 Act of any reference to the consequences set out in that particular provision being made subject to section 65(3); he sought to contrast this with the approach in section 65(1) which was expressly stated to be subject to subsection (3) of section 65. Mr Carroll ultimately argued that the fact that section 65(1A) was not stated to be subject to section 65(3) could only mean that the Scottish Parliament had intended, when passing the Criminal Procedure (Amendment) (Scotland) Act 2004 ("the 2004 Act"), to remove the Crown's right to apply for retrospective extensions of the time limits provided for in section 65(1) where the time limits had expired. He accepted (correctly in my view) that prior to the 2004 Act the time limits could have been retrospectively extended (I note that authority for this may be found in HMA v Mullen 1987 SLT 475). This interpretation of the effect of the 2004 Act was in accordance with what Mr Carroll described as the fundamental policy of protecting accused persons against unreasonable delays in the prosecution of criminal charges.

In my opinion, the competency arguments advanced on behalf of the accused are misconceived and must be rejected. In considering the arguments it seems to me to be helpful to recall the process of statutory amendment which has resulted in section 65(1) to (3) of the 2005 1995 Act coming to be expressed in their present terms.

The 12 month time limit for non-custody cases was first introduced by section 14(1) of the Criminal Justice (Scotland) Act 1980 ("the 1980 Act") in implementation of a recommendation made by the Thomson Committee (Criminal Procedure in Scotland (Second Report) October 1975, Cmnd. 6218, paragraphs 15.08 and 15.09). Section 14(1) created a new section 101(1) of the Criminal Procedure (Scotland) Act 1975 ("the 1975 Act"). This established an entirely new limit on the period which could elapse between first appearance on petition and the commencement of the trial in solemn procedure. If the trial did not commence within that period of 12 months the consequence was stated to be that "the accused shall be discharged forthwith and thereafter he shall be forever free from all question or process for that offence". This language was very similar to that which already appeared on the statute book in regard to the consequences of breach of the 110 day rule - see section 43 of the Criminal Procedure (Scotland) Act 1887 and section 101(3) and (4) of the 1975 Act.

The 12 month time limit was restated by section 65(1) of the 1995 Act which provided:

"Subject to subsections (2) and (3) below, an accused person shall not be tried on indictment for any offence unless the trial is commenced within a period of 12 months of the first appearance of the accused on petition in respect of the offence; and, failing such commencement within that period the accused shall be discharged forthwith and thereafter he shall be forever free from all question or process for that offence."

In section 14 of the 1980 Act and in section 65 of the 1995 Act provision was made for the 12 month time limit to be extended on cause shown (as had been recommended by the Thomson Committee). The relative application had to be made to "the Sheriff or, where an indictment has been served on the accused in respect of the High Court, a single judge of that court" (see proviso (ii) in section 101(1) of the 1975 Act, as introduced by the 1980 Act; and also section 65(3) of the 1995 Act). It can be seen from each version of the 12 month provisions that their common structure entailed firstly, a statement of the prohibition against prosecution on indictment where the trial was not commenced within 12 months of first appearance on petition; then a declaration to the effect that if the time limit was breached the accused was to be discharged and forever free from all question or process for the relative offence; and finally, the conferring of a power on the court to extend the time limit on cause shown. In relation to the power of extension, this was conferred on the Sheriff or, where a High Court indictment had been served, on a single judge of that court. The language of this set of provisions seems to me to be clear and straightforward. In particular, in High Court cases a single judge of that court was to have power to extend the time limit on cause shown. In any other case (i.e. cases indicted in the Sheriff Court and those cases in which an indictment had not been served) the Sheriff was empowered to extend the time limit on cause shown. I can see nothing in either version of the 12 month rules, as contained in the 1980 or the 1995 legislation, to support the view that where the 12 month period had already expired before the service of a High Court indictment, the power to extend the time limit on cause shown was to be available only to the Sheriff and that in such circumstances the High Court was not to have the power to extend the time limit. The clear purpose of and the policy behind both sets of provisions was, as it seems to me, to contrary effect and the intention clearly was to allow the Sheriff or, where a High Court indictment had been served, a single judge of the High Court to have power to extend the 12 month period on cause shown.

The next stage in the statutory history came with section 6 of the 2004 Act. This amended section 65 of the 1995 Act in order to take account of the introduction of mandatory preliminary hearings in High Court cases as had, of course, been recommended in the 2002 Report by Lord Bonomy ("Improving Practice: 2002 Review of the Practices and Procedures of the High Court of Justiciary"). For present purposes it is sufficient to note that instead of being cited to a trial diet in the High Court, an accused was now to be required to attend a preliminary hearing within 11 months of his or her first appearance on petition. Section 6 of the 2004 Act provided inter alia as follows:

"(1) Section 65 (prevention of delay in trials) of the 1995 Act is amended as follows.

(2) In subsection (1), for the words from 'the trial' to 'that period' substitute-

(a) where an indictment has been served on the accused in respect of the High Court, a preliminary hearing is commenced within the period of 11 months; and

(b) in any case, the trial is commenced within the period of 12 months, of the first appearance of the accused on petition in respect of the offence.

(1A) If the preliminary hearing (where subsection (1)(a) above applies) or the trial is not so commenced.

(3) In subsection (2), after '(1)' insert 'or (1A)'.

(4) In subsection (3), for the words from 'the sheriff' to the end substitute-

(a) where an indictment has been served on the accused in respect of the High Court, a single judge of that court may, on cause shown, extend either or both of the periods of 11 and 12 months specified in subsection (1) above; or

(b) in any other case, the sheriff may, on cause shown, extend the period of 12 months specified in that subsection."

From this it can be seen that the approach taken in drafting section 6(2) of the 2004 Act was to divide the earlier statement of the 12 month rule into two parts in order to take account of the introduction of the new time limit of 11 months in High Court cases. The first part was to appear as the new section 65(1); this would contain the 11 and 12 month rules which were stated to run (as had until then been the case with the 12 month rule) from the first appearance of the accused on petition in respect of the offence. The second part of the new rule was now to be found in section 65(1A); this would express, in the same language as had been used in the 1980 and 1995 legislation, the consequences of failure to comply with the time limits. The statement of the courts' power to extend the time limits also had to be amended to take account of the new 11 month rule; this was done in section 6(4) of the 2004 Act, which amended section 65(3) of the 1995 Act.

From this examination of the terms and effect of sub-sections (1) to (4) of section 6 of the 2004 Act it is clear, in my opinion, that their purpose was to reformulate the time bar rules in solemn cases where the accused was on bail so as to introduce a new 11 month time limit from first appearance on petition in High Court cases until the commencement of the new mandatory preliminary hearing. There is nothing to suggest that the intention was, as Mr Carroll argued, far more fundamental than this and reflected a deliberate decision to remove the Crown's right to apply for a retrospective extension of the time limit in any case in which the time limit had expired before service of a High Court indictment. In my view, it is clear that the purpose of adding section 65(1A) was to express the new (and somewhat more elaborate) rules in an orderly and sensible manner so that they could be easily understood and applied. Apart from the introduction of a new 11 month time limit to reflect the reform of High Court procedure in respect of mandatory preliminary diets, the broad structure of the statutory scheme remained unaltered. I accordingly reject Mr Carroll's submission that one effect of section 6 of the 2004 Act was to remove the Crown's right to apply for a retrospective extension of the non-custody time limits.

For completeness, I note that certain further minor amendments were made to sub-sections (2) and (3)(b) of section 65 by the Criminal Proceedings etc. (Reform) (Scotland) Act 2007. For present purposes, nothing turns on these alterations.

That leaves the argument advanced by Mr McVicar and Mr Carroll to the effect that the High Court has no power to extend the time limits because the indictment contained charges which were (admittedly) time barred at the time it was served and the indictment must, therefore, be treated as a nullity quoad those charges. In my judgment, this argument is misconceived. It seems to me that the charges are not null; it would be more accurate to describe them merely as being time barred. Aside from the fact that the charges are brought out of time, there is no suggestion that they are, in form and in content, anything other than competent and relevant charges. Fleming v HMA (supra) lends no support to the proposition advanced on behalf of the accused; the short passage relied on by Mr McVicar (in paragraph [31]) was concerned with the effect of transitional provisions contained in the Criminal Procedure (Amendment) (Scotland) Act 2004 (Commencement, Transitional Provisions and Savings) Order 2004 (SSI 2004 No. 405) and had nothing to do with the point in issue in the present case. In my opinion, the statutory power of extension exists to allow the court to override the time limits where the court is satisfied that it is appropriate so to do. Looking at the statutory scheme as a whole, it seems to me that the power of extension conferred on the High Court "where an indictment has been served" contemplates the possibility that such an indictment may contain charges that are time-barred. On that analysis, there is no basis for the proposition that the High Court is not empowered retrospectively to extend the time limits where they have elapsed before service of an indictment. There may, I suppose, be a superficial sense in which the effect of the expiry of the time limit could be said to make it no longer competent for a prosecution to be brought, but to characterise the position in that way tends to ignore the possibility of the time limit being set aside on cause shown after it has expired. The argument for the accused breaks down, in my opinion, because it treats the expiry of the time limit as having irretrievable effect, whereas the true position is that it is merely provisional in the sense that it is subject to extension by the court even after it has expired.

Mr McVicar and Mr Carroll argued that the Crown should have applied to the Sheriff to extend the time limits. If it were correct that the application had to be made to the Sheriff, this would mean that the practice adopted by the Crown in the present case of incorporating a number of charges, some time barred and others not, in a single High Court indictment and then seeking a retrospective extension of the 11 and 12 month time limits from a High Court judge would not be possible. The Advocate Depute told me that in the present case the Crown's position was that all the offences charged in the indictment constituted stages in what she described as a single protracted course of criminal conduct. In this connection she referred to Reid v HMA 1984 SLT 391 in which the Lord Justice-General (Lord Emslie) observed (at page 392) that it had for centuries been the practice to try all outstanding charges against an accused on a single indictment at the same time. The approach taken by the Crown in the present case in libelling the time-barred charges along with a series of other charges in a single High Court indictment seems to me to be prima facie legitimate and appropriate. I would be reluctant to reach a decision which had the effect of putting difficulties in the way of such an approach unless a correct construction of the legislation drove me to such a conclusion.

In my opinion, a proper interpretation of the relevant legislation does not support the arguments advanced on behalf of the accused on the nullity point. The true position, in my view, can be quite simply stated as follows. Where any High Court indictment has been served, the power to extend the 12 month period (and now the 11 month period) lies only with a single judge of that court. In any other case (i.e. where no High Court indictment has been served) the power to extend is vested in the Sheriff. This approach is, to my mind, sensible and appropriate. It would be surprising if the application lay to the Sheriff (and, according to the argument for the accused, only to the Sheriff) in a case where a High Court indictment had been served after the time limits had elapsed. The argument advanced on behalf of the accused would, if it were sound, tend to undermine the simple and straightforward scheme for extending the non-custody time limits which has operated since the 1980 Act. In my opinion, the position is clear; in a case where a High Court indictment has been served, including an indictment which contains charges that are time barred, power to extend the time limits is vested in a single judge of the High Court and not in the Sheriff.

For these reasons, I reject all the arguments advanced by Mr McVicar and Mr Carroll challenging the competency of the Crown's application to extend the time limits. The next stage will be to consider the merits of that application and the remaining grounds of opposition to it which the accused have taken in a number of Minutes and Notices.

[1] A continued preliminary hearing in terms of section 72 and 72A of the Criminal Procedure (Scotland) Act 1995 was held on 21 August 2009 when the Minute lodged by the first accused James Purves was further considered. I was advised that several of the matters dealt with in the Minute had been resolved and in particular that the hearing would proceed as an evidential hearing only in respect of paragraphs D, E and F of the Minute. For reasons fully explained in the record separately prepared by the Depute Clerk of Justiciary there is now no requirement for me to deal further with points E and F, this matter having been resolved to the satisfaction of all parties and accordingly I deal only with the matter raised in paragraph D of the Minute.

[2] The evidential hearing took place on 24 August with submissions on 25 August, when I continued the matter until 28 August for preparation of this Note. In the course of the evidential hearing there was a recurring issue in relation to disclosure of evidence by the Crown to both accused in respect of certain matters connected with the point raised in the Minute and in other areas of evidence, but it was my decision in the course of the hearing that issues of disclosure could not be dealt with in the context of the evidential hearing on the admissibility of evidence, and I understand this position to be accepted and that parties will, if they see fit, deal with disclosure as a separate and self-standing matter in the weeks prior to the start of this trial currently scheduled for 7 September 2009.

Friedl v Austria, Series A, No 305-B (1995), 21 EHRR 83.

[14] I heard the evidence of the officers who carried out the surveillance and to a limited extent I have seen entries from the surveillance logs which are productions in this case. I was thus able to establish as a matter of fact that the surveillance which they carried out was visual surveillance only and that it dealt with evidence about the ordinary actions of individuals who were observed by them to be present in various public places in Edinburgh. There was no surveillance which involved intrusion into any private place nor indeed through the windows of any property, although there was surveillance of persons within a motor car travelling on the public road. Indeed this car was followed for many miles to the north of England where further actions were observed with the eventual result that there was a lawful search and drugs were found. This whole matter is well covered in the cases referred to above and I was properly directed to those by both parties in submission.

[15] The Advocate depute argued that even if the directed surveillance authorisation was found to be invalid, it did not follow necessarily that this rendered inadmissible the evidence of observation of police officers in respect that the observation by them of individuals or events in public places would not in any event have required the authority of RIPSA authorisation. She referred me in particular to in the case of Connor which was a "pre-RIPSA" Appeal Court decision in which the European authorities on ECHR article 8 rights were fully discussed and also the most recent decision in Henderson which was of course a post-RIPSA case in which it was conceded by the Crown that no RIPSA authorisation existed.

[16] Mr Carroll for the first accused argued that the fact that observations of suspected persons took place in public did not remove from the Crown the obligation for such observation to have RIPSA authorisation. He argued that the terms of the Friedl v Austria and A v France cases presented clear authority for a view that there was a breach of the accused's article 8 rights and that the "good faith" test applied in subsequent Scottish appeal decisions should be applied with great care. He was not able to direct me to any Scottish authority indicating that observation of suspected persons by police in the circumstances which pertained in the present case, had led to a finding that the fruits of such observation were inadmissible.

[17] I therefore proceeded on and considered carefully all of the authorities referred to above. I found in particular, that the Appeal Court decision in Gilchrist, deals with a situation which is closely similar to the current case in that there was a log with several entries dealing with observations of the movement and conduct of individuals in the public streets of Leith and eventually a detention search and a finding of drugs. There had been RIPSA authorisation but that had failed to meet appropriate tests and there was a concession before the Court that it was invalid. Accordingly the decision which the Appeal Court required to reach was whether these happenings in the public streets involved any infringement of Gilchrist's rights under article 8, and whether the admissibility of the drugs seizure would fall into question as a result. The opinion of the Court in this connection explained at paragraph [21] of the Opinion and includes the following:

"That was done in a public place. The event was there to be observed by anyone who happened to be in the vicinity whatever the reason for their presence might be. It was in fact observed by police officers. They had reason to suspect that criminal activity was taking place. They therefore detained the appellants. On further investigation it was found that the bag contained controlled drugs. That sequence of events did not involve the obtaining of private information about the appellant.... Nor did it involve any lack of respect for the appellant's private life. What was done did not in our opinion amount to an infringement of the appellant's rights under article 8."

[18] Turning now to the case before me, there was nothing in the evidence which suggested any activity in the current case which involved any lack of respect for private life or any infringement of article 8. The observations of individuals were perhaps slightly wider than those in Gilchrist in respect that a motor vehicle was followed for a considerable distance, but I did not consider that this should be regarded as being significant or that it would cause me to consider that Gilchrist should be distinguished. The observations appear to be very much in the ordinary line of police observations of suspects in drug-related matters and again there was no suggestion made that any other view should be taken. The surveillance in both Friedl and A v France were far removed from the circumstances of the present case and these cases were considered and dealt with by the Appeal Court in Connor v HM Advocate referred to above. Additionally at paragraph [8] of Connor their Lordships point out that article 8 does not lay down rules on the admissibility of the evidence and that ECHR, while guaranteeing the right to a fair trial, understands and accept that admissibility is primarily a matter for regulation under national law. Having considered all of these matters carefully I found that I was happy to follow the ratio of the decisions which were disclosed in the cases referred to. I was therefore entirely satisfied that no question of inadmissibility of evidence arose in this case as a consequence of the surveillance carried out, even if it did not have the authority of RIPSA.

[19] On the basis of the limited factual evidence which I heard, I cannot, I think, proceed further in the way that the Court has proceeded in some of the reported cases, since I have no further information which would allow me to consider whether Lawrie v Muir, a full bench decision on admissibility of evidence obtained irregularly, would apply in this case. It is however self-evident that even if there was a breach of an article 8 right or there had been some irregularity in the way that evidence was obtained it would not in any sense be inevitable or automatic that the evidence would be inadmissible. That decision would require to be made after hearing other evidence about the full circumstances in which the evidence was obtained and regard would have to be had to the relative importance of the public interest as well as the protection of the individual accused.

[20] Accordingly, I find that paragraph D of the Minute upon which this evidential hearing was set down does not on any level support an argument that evidence in this case should not be admitted and on the basis of the matters referred above I will refuse the Minute and declare evidence which flows from surveillance under the terms of Crown Production No 42 in this case to be admissible in evidence.