First Appellant: Bell QC, O'Rourke; Capital Defence

Second Appellant: Bell QC, O'Rourke; Paterson Bell

Respondent: Mackay AD; Crown Agent

27 November 2009

[1] Following our decision to refuse their appeals, the appellants have applied for leave to appeal to the Supreme Court under paragraph 13 of Schedule 6 to the Scotland Act 1998. We have decided that the applications should be refused in hoc statu. Our reasons for reaching that conclusion can be briefly stated as follows.

[2] First, it is not ordinarily appropriate in our view for leave to be granted by this court prior to trial, since a risk then arises that the Supreme Court may be called upon to consider the case on more than one occasion. That risk exists because, if leave is granted prior to trial and the appeal does not result in the termination of the proceedings, it may subsequently be necessary for leave to be granted on a second occasion after the trial has been completed and any subsequent appeal to this court has been heard.

[3] The present case illustrates the problems which may arise if leave is granted prior to trial. There are three other accused besides these appellants. All the accused submitted a plea in bar of trial on the ground of entrapment, which was in each case refused after a lengthy preliminary hearing at which evidence was led. The other accused did not appeal against that decision. The trial is due to begin on 1 March 2010. It is possible that the appellants may be acquitted. In the event that they are convicted in restricted terms, it is possible that that may have a bearing on the issue of entrapment. That is in part because the issue of entrapment, so far at least as it was argued on behalf of the appellant Jones, is directed only towards a specific element in one of the charges which he faces. Although the plea was argued on a wider basis on behalf of the appellant Doyle, it is likewise possible that a conviction in restricted terms may bear on the issue of entrapment, particularly since the alleged entrapment occurred some time after the conspiracy is alleged to have been formed and, to some extent, acted upon. It is possible that other matters may arise at the trial which bear on the issue of entrapment, particularly since evidence has yet to be led before the jury, and the evidence given at the preliminary hearing did not include any given by the appellant Doyle. Furthermore, it is possible that other matters may arise at the trial, or in a subsequent appeal to this court, which the appellants may also wish to bring under consideration in any appeal to the Supreme Court. In particular, it is possible that other matters may arise which have a bearing on the compatibility of the proceedings with the Convention right under Article 6 of the European Convention on Human Rights, that being the nature of the devolution issue which forms the subject matter of the proposed appeal. It is also possible that the other accused may appeal to this court after trial, in the event that they are convicted. They may raise the issue of entrapment in any such appeal. They may subsequently seek leave to appeal to the Supreme Court. It may be appropriate for any appeals by those accused, and by the present appellants, to be considered together.

[4] Secondly, we would in any event be disinclined to grant leave to appeal to the Supreme Court in a case where it is not apparent that the proposed appeal raises an arguable point of law of general importance, but turns on the application of undisputed legal principles to particular facts. In the present case, the appellants accept that the relevant principles of Scots law are in substance the same as those of English law, as established by the House of Lords in the case of R v Looseley [2001] 1 WLR 2060, and that those principles are compatible with Convention rights, as the House of Lords held in that case. The majority of this court have likewise reached that conclusion, and it is not the intention of the appellants to challenge that conclusion in any appeal to the Supreme Court. The subject matter of the proposed appeals, as explained to us, concerns the application of those principles to the facts found by the judge at first instance: in particular whether, on the facts as found, the conduct of the undercover officer, Craig, was so seriously improper that the prosecution of the appellants would bring the administration of justice into disrepute. Where no question of law arises, and the issue is the application of the law to the facts, it does not appear to us that it would ordinarily be appropriate for this court to grant leave to appeal.

[5] Thirdly, any appeal to the Supreme Court at this stage would have significant implications for the trial of the remaining accused, and for any trial of the appellants themselves. The trial has already been substantially delayed by preliminary procedure. It is set down to begin on 1 March 2010. We understand that it is expected to last about seven weeks. If leave to appeal is granted, the appeal is unlikely to be heard and decided prior to that date. The consequence is that the Crown will have to apply for an adjournment of the trial. We are informed by the Crown that it has been made clear that any such application will be opposed on behalf of the other accused. The result will be either the further adjournment of a trial which has already been delayed, or the separation of the trial of the appellants from that of the other accused. Neither of these alternatives can be regarded as satisfactory. There would of course be no trial of the appellants if they were to be successful before the Supreme Court, and the Crown would require to consider the implications of any decision of that court in relation to the prosecution of the remaining accused. The cases of the five accused are however different on their facts, so far as the question of entrapment is concerned, and a successful appeal by these appellants would not necessarily result in the termination of all proceedings. On balance, the administration of justice would in our view best be served by proceeding with the trial of all the accused without any further avoidable delay.

[6] By refusing the appellants leave to appeal in hoc statu (that is to say, in the present circumstances), we leave open to the appellants the possibility of renewing their applications at a later stage, when this court will be in a position to consider the question whether leave should be granted in the light of all the relevant circumstances as they then appear.