Scottish High Court of Justiciary Decisons

HIGH COURT OF JUSTICIARY
	[2010] HCJ 3 OPINION OF LORD KINCLAVEN in causa HER MAJESTY'S ADVOCATE Applicant; against WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL Respondents: _______

Act: Bain QC, AD; Crown Office

Alt: McVicar et Mulgrew, Solicitor-Advocates; Fitzpatrick & Co for First Respondent

Alt: Carroll et Ogg, Solicitor-Advocates; McClure Collins for Second Respondent

17 July 2009

[1] This is my decision in relation to the preliminary issues which were debated before me at a continued Preliminary Hearing in the High Court of Justiciary in Edinburgh on 29 June, 30 June, 2 July and 3 July 2009.

[2] Mr McVicar appeared for William Hugh Lauchlan, born 1 July 1976 ("the first accused"). He moved me to separate charges (2) and (3) from the subsequent charges on the indictment.

[3] Mr Carroll appeared for Charles Bernard O'Neill, born 23 July 1962 ("the second accused"). He moved me to dismiss charges (2) and (3) against the second accused on the basis of submissions relating to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention").

[4] Mr Carroll also moved me to separate charges (1), (2) and (3) from the remaining charges on the indictment.

[5] The Advocate Depute, on behalf of the Crown, opposed all of the defence motions.

[6] Helpfully parties provided me with various volumes of authorities and certain written submissions which were modified during the course of the debate.

[7] Mr Carroll addressed me in relation to Article 6(1). Mr McVicar then addressed met in relation to separation of charges - followed by Mr Carroll in relation to separation. The Advocate Depute replied on behalf of the Crown in relation to all the defence submissions. Mr McVicar and Mr Carroll then responded.

[8] At the conclusion of the debate I took the matters to avizandum and I continued the Preliminary Hearing until 17 July 2009 in order that I could take into account everything that had been said by all parties and give my decision.

[9] In outline, my decision is as follows:-

·       Firstly, I shall refuse the motion, made by the second accused, seeking dismissal of charges (2) and (3). I reached that conclusion essentially for the reasons outlined by the Advocate Depute. On the information before me, the "reasonable time" prescribed by Article 6(1) has not been exceeded in the circumstances of this particular case. In any event, I do not consider that dismissal of the charges is just or appropriate. Proceedings on this indictment should continue. At this stage, however, I do not consider it appropriate to dismiss the Devolution Minute. The decisions as to delay and any appropriate remedy should be left until the trial has taken place. I shall simply refuse the motion before me seeking dismissal of charges (2) and (3).

·       Secondly, in the exercise of my discretion and on special cause shown, I shall grant the motion on behalf of the accused to separate charges (1), (2) and (3) from the remaining charges on the indictment. It is just and appropriate to separate those charges - essentially for the reasons outlined by counsel for the accused. I appreciate that separation is an exceptional course. I have borne in mind the various factors relied upon by the Crown by way of opposition but I was satisfied that there was a material risk of real prejudice to the accused if the charges in this particular indictment were to be tried together.

[10] I would outline my decision in more detail as follows.

The Indictment

[11] There were 18 charges on the indictment (as now amended), namely:-

"(1) on 15 August 1996 on a road or other public place, namely the A886 and A884, Port Bannatyne Road, Rothesay, CHARLES BERNARD O'NEILL did assault [EM], c/o Strathclyde Police, Rothesay, repeatedly overtake a motor car, the registration number of which is meantime to the Prosecutor unknown, then being driven by her and in which [AMcG], now deceased, was a passenger, repeatedly stop in front of said motor vehicle whereby said [EM] had to repeatedly take evasive measures to avoid said vehicle driven by her being struck;

or alternatively

on 15 August 1996 on on (sic) a road or other public place, namely the A886 and A884, Port Bannatyne Road, Rothesay, CHARLES BERNARD O'NEILL did culpably and recklessly drive motor car registered number F206 DHS and repeatedly overtake a motor car the registration number of which is meantime to the Prosecutor unknown then being driven by [EM], c/o Strathclyde Police, Rothesay, and in which [AMcG], now deceased, was a passenger, repeatedly stop in front of said motor car whereby said [EM] had to repeatedly take evasive measures to avoid said vehicle driven by her being struck;

(2) on 21 June 1997 at 16A Waterside Street, Largs or elsewhere to the Prosecutor meantime unknown, you CHARLES BERNARD O'NEILL and WILLIAM HUGH LAUCHLAN having between 1 March 1993 and 21 June 1997 engaged in criminal sexual activity with [RMcG], born 15 December 1983, c/o Strathclyde Police, Pollok, then aged between 9 and 13 years, and knowing that [AMcG], his mother then residing there, was aware of such activity and believing that she intended to report such activity to the authorities did abduct her and detain her against her will within said house at 16A Waterside Street, Largs, and thereafter assault said [AMcG], seize hold of her neck, compress her throat and did murder her and you did previously evince malice and ill will towards said [AMcG];

(3) between 21 June 1997 and 1 September 1997, both dates inclusive, at 16A Waterside Street, Largs and elsewhere in Ayrshire meantime to the Prosecutor unknown, having committed the crime libelled in charge (2) hereof and being conscious of your guilt in respect thereof you CHARLES BERNARD O'NEILL and WILLIAM HUGH LAUCHLAN did

(a) remove the body of [AMcG], now deceased, from said premises;

(b) transport said body to Largs Beach and conceal same under rocks there;

(c) thereafter recover said body and deposit same in a bin or similar container and transport same onto a boat; and

(d) deposit said bin or similar container and the body of said [AMcG] into the sea,

and this you did with intent to conceal or destroy evidence in respect of said crime and with intent to defeat the ends of justice and you did attempt to defeat the ends of justice;

(4) between 22 May 2003 and 21 June 2003, both dates inclusive, at 75 Fleming Terrace, Irvine, you CHARLES BERNARD O'NEILL did assault [CH], c/o Strathclyde Police, Irvine and repeatedly touch his legs;

(5) on an occasion between 1 June 2003 and 27 June 2003, both dates inclusive, the exact dates being to the Prosecutor unknown, at 10 Fleming Terrace, Irvine you CHARLES BERNARD O'NEILL did assault [IY], born 4 July 1988, c/o Strathclyde Police, Irvine, drug him, take hold of him by the body, tickle him, rub him on the body, pull him down onto a bed, remove his lower clothing and penetrate his hinder parts with your private member and you did have unnatural carnal connection with him;

(6) between 22 May 2003 and 21 June 2003, both dates inclusive, you CHARLES BERNARD O'NEILL and WILLIAM HUGH LAUCHLAN at 75 Fleming Terrace, Irvine and during a journey between Irvine, Scotland and Benidorm, Spain, did conspire to commit the crimes of assault and sodomy against [CH], c/o of (sic) Strathclyde Police, Irvine, at various locations in Benidorm, Spain, the exact addresses meantime to the Prosecutor unknown, and in pursuance thereof when in Benidorm, Spain, between 22 June 2003 and 31 December 2003, you did assault said [CH], repeatedly kiss him, repeatedly touch his legs and buttocks, repeatedly take hold of his private member, repeatedly masturbate him, masturbate in his presence, repeatedly induce him to take hold of your private member, enter his bed together, repeatedly penetrate his hinder parts with your private members and have unnatural carnal connection with him, all to his injury: CONTRARY to the Criminal Procedure (Scotland) Act 1995, Section 11A;

(7) between 14 April 2004 and 20 April 2004, both dates inclusive, at a car park at Caprabo Supermarket, Avenida del Albir de Alfaz de Pi El Albir, Spain, within motor home the registration number of which is meantime to the Prosecutor unknown, you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL did assault [DW], born 25 November 1989, c/o of (sic) Fife Constabulary, Fife, detain him against his will within said motor home, struggle with him, repeatedly attempt to kiss him, repeatedly kiss him, induce him to suck your private member, remove your clothing in his presence, attempt to induce him to consume controlled drugs, conceal him within a locked wardrobe, urinate on him, hold him down, run baby oil on his hinder parts and attempt to penetrate his hinder parts with your private members and attempt to have unnatural carnal connection with him: CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 16B;

(8) between 10 December 2007 and 27 January 2008, both dates inclusive, at The Metro Inn, West Beancross Farm, Polmont, Falkirk and Room 1 Holmecliffe Hotel, Carshaton Road, Blackpool, you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL did assault [JG], born 21 January 1990, c/o Central Scotland Police, Falkirk, share a bed with him, handle his private member, cause him to shave same, induce him to consume controlled drugs and alcohol, induce him to handle your private parts, suck his private member, induce him to suck your private member, induce him to masturbate himself, penetrate his hinder parts with your private member and did have unlawful carnal connection with him;

(9) on 27 January 2008 at Glasgow Science Centre, North Quay, Pizza Hut, both Glasgow, you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL did conduct yourselves in a disorderly manner, threaten [JG], c/o Central Scotland Police, Falkirk, and commit a breach of the peace;

(10) on various occasions between 10 December 2007 and 23 March 2008, both dates inclusive, the exact dates being to the Prosecutor meantime unknown, at 38 Mavisbank Avenue, Shieldhill, Falkirk, The Holmecliffe Hotel, Carshalton Road, Blackpool, The Palace Hotel, Prince Street, Peterhead, The Metro Inn, West Beancross Farm, Polmont, Falkirk, Whitehaven, the Lake District, Glasgow and Aberdeen and elsewhere in the United Kingdom, you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL having on at least one earlier occasion met or communicated with [SA], born 6 September 2001, c/o Central Scotland Police Falkirk, by means of the telephone directly or through his mother, [PG], both c/o Central Scotland Police, Falkirk, said [SA] being a person under 16 years of age, did while not reasonably believing that said person was 16 or over, intentionally meet said person and intend to engage during or after the meeting in unlawful sexual activity involving said person or in the presence of said person: CONTRARY to the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, Section 1;

(11) between 19 and 20 January 2008, at the Palace Hotel, Prince Street, Peterhead, you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL did use lewd, indecent and libidinous practices and behaviour towards [SA], born 6 September 2001, c/o Central Scotland Police, Falkirk, induce his mother to leave him alone with you, induce him to sleep in the same room and in the same bed as you, undress in front of him and undress him, cuddle him, wrestle with him, bathe and touch his stomach;

(12) on 26 January 2008 at 38 Mavis Bank Avenue, Shieldhill, Falkirk and the Metro Inn, Beancross Farm, Polmont, Falkirk, you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL did conduct yourselves in a disorderly manner, induce [PR], c/o Central Scotland Police, Falkirk, to leave [SA], born 6 September 2001, c/o Central Scotland Police, Falkirk, alone with you and attempt to have custody and care of him overnight, place [CR], his maternal grandmother, c/o Central Scotland Police, Falkirk, in a state of fear and alarm for the safety of said [SA] and did commit a breach of the peace;

(13) on 27 January 2008 on journeys between Falkirk and Glasgow and Glasgow and Falkirk, you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL, did use lewd, indecent and libidinous practices and behaviour towards [SA], born 6 September 2001, c/o Central Scotland Police, Falkirk, and induce him to sit between the legs of you CHARLES BERNARD O'NEILL;

(14) on 27 January 2008 at Glasgow Science Centre, North Quay, Glasgow you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL, did conduct yourselves in a disorderly manner, remove [SA], born 6 September 2001, c/o Central Scotland Police, Falkirk from the care of his mother Paula Reid, c/o Central Scotland Police, Falkirk and did commit a breach of the peace;

(15) on 3 and 4 February 2008 at Metro Inn, West Beancross Farm, Polmont, Falkirk, you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL did use lewd, indecent and libidinous practices and behaviour towards [SA], born 6 September 2001, c/o Central Scotland Police, Falkirk, undress in front of him, wrestle with him, undress him and share a bed with him;

(16) between 15 February 2008 and 18 February 2008, both dates inclusive, at 38 Mavisbank Avenue, Shieldhall, Falkirk, on a journey from Falkirk to the Lake District in motor vehicle registered number E557 MBP and various loci in the Lake District, the exact location being to the Prosecutor unknown, you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL did use lewd, indecent and libidinous practices and behaviour towards [SA], born 6 September 2001, c/o Central Scotland Police, Falkirk, share a seat with him, undress in his presence, share a bed with him, take him into a wooded area and you CHARLES BERNARD O'NEILL did expose your private member and urinate in front of him;

(17) between 22 June 2003 and 18 February 2008, both dates inclusive, at 10 Fleming Terrace, Irvine, 38 Mavisbank Avenue, Shieldhall, Falkirk, the Palace Hotel, Prince Street, Peterhead, The Metro Inn, West Beancross Farm, Polmont, Falkirk and elsewhere meantime to the Prosecutor unknown you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL did have in your possession indecent photographs or pseudo photographs of children: CONTRARY to the Civic Government (Scotland) Act 1982, Section 52A(1) as amended;

and

(18) between 22 June 2003 and 18 February 2008, both dates inclusive, at 10 Fleming Terrace, Irvine, 38 Mavisbank Avenue, Shieldhill, Falkirk, the Palace Hotel, Prince Street, Peterhead, The Metro Inn, West Beancross Farm, Polmont, Falkirk and elsewhere meantime to the Prosecutor unknown you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL did take or permit to be taken or make indecent photographs or pseudo photographs of children: CONTRARY to the Civic Government (Scotland) Act 1982, Section 52(1)(b)."

The Minutes and Notices relating to Preliminary Issues

[12] It might be helpful to mention, for reference, some features of the procedural position which emerged during the hearing.

[13] There were numerous Minutes and Notices in this case relating to preliminary or devolution issues - seven for the first accused and six for the second accused.

[14] Two of those Minutes have already been dealt with ("Minute 1/7" and "Minute 1/6"). Those two Minutes challenged the competency of charges (2) and (3) and the competency of the Crown's application under section 65(3)(a) of the Criminal Procedure (Scotland) Act 1995, as amended, for extension of the 11 and 12 month time periods specified in section 65(1). Lord Pentland, in his opinion dated 14 January 2009, held that the Crown applications were competent. Thereafter, Lady Stacey dealt with the merits of the Crown's applications and granted extensions of one month for the reasons set out in her opinion dated 20 February 2009. I gratefully adopt Lady Stacey's summary and conclusions brevitatis causa. The Appeal Court subsequently affirmed Lady Stacey's decision on 5 June 2009.

[15] Six other Minutes were withdrawn during the course of the debate before me (namely Minutes 4/7 to 7/7 inclusive, and Minutes 4/6 and 5/6).

[16] I was also informed that two of the remaining Minutes (2/7 and 3/6) may require to be revisited in light of disclosure but those Minutes were not argued before me.

[17] In overview, the Minutes for the first accused can be outlined as follows:-

·       Minute 1/7 related to competency and has been dealt with by Lord Pentland;

·       Minute 2/7 raised a devolution issue which was not argued before me;

·       Minute 3/7 raised the question of separation of charges which was argued before me - to the extent of seeking separation of charges (2) and (3) from the remaining charges;

·       Minute 4/7 raised a question of competency in relation to charge (6) but that Minute was withdrawn;

·       Minute 5/7 was a Notice relating to charge (6) but that Notice was also withdrawn;

·       Minute 6/7 raised a question of competency in relation to charge (7) but that Minute was withdrawn;

·       Minute 7/7 was a Notice relating to charge (7) but that Notice was also withdrawn.

[18] The Minutes for the second accused can be outlined as follows:-

·       Minute 1/6 related to competency and has been dealt with by Lord Pentland;

·       Minute 2/6 raised the Devolution Issue relating to Article 6(1) which was argued before me;

·       Minute 3/6 raised devolution issues which were not argued before me;

·       Minute 4/6 raised a question relating to charge (6) but the Minute was withdrawn;

·       Minute 5/6 raised questions relating to charges (17) and (18) but the Minute was withdrawn;

·       Minute 6/6 raised the question of separation of charges which was argued before me - to the extent of seeking separation of charges (1), (2) and (3) from the remaining charges.

[19] In the result, there were three Minutes before me for determination:

·       Minute 3/7 for the first accused (separation of charges);

·       Minute 2/6 for the second accused (Article 6); and

·       Minute 6/6 for the second accused (separation of charges).

[20] It might also be helpful to set out the authorities and other documents relied upon by parties (which can also be referred to for their terms) before turning to the submissions of parties and my decision in relation to Article 6(1) and then separation of charges.

Article 6(1) ECHR

[21] Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the "Convention") provides that:-

"In the determination of his civil rights and obligations or 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 Human Rights Act 1998

[22] Section 6 of the Human Rights Act 1998, relates to "Acts of public authorities", and provides:-

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if -

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section 'public authority' includes -

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

(4) In subsection (3) 'Parliament' does not include the House of Lords in its judicial capacity.

(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

(6) 'An act' includes a failure to act but does not include a failure to-

(a) introduce in, or lay before, Parliament a proposal for legislation; or

(b) make any primary legislation or remedial order."

[23] Section 8 of the Human Rights Act 1998 relates to "Judicial remedies" and is to the following effect:-

"(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including -

(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

(b) the consequences of any decision (of that or any other court) in respect of that act,

the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(4) In determining -

(a) whether to award damages, or

(b) the amount of an award,

the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention.

(5) A public authority against which damages are awarded is to be treated

(a) in Scotland, for the purposes of section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 as if the award were made in an action of damages in which the authority has been found liable in respect of loss or damage to the person to whom the award is made;

(b) for the purposes of the Civil Liability (Contribution) Act 1978 as liable in respect of damage suffered by the person to whom the award is made.

(6) In this section - 'court' includes a tribunal; 'damages' means damages for an unlawful act of a public authority; and 'unlawful' means unlawful under section 6(1)."

The Scotland Act 1998

[24] Section 57 of the Scotland Act 1998, relates to "Community law and Convention rights", and provides inter alia:-

"(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law.

(3) Subsection (2) does not apply to an act of the Lord Advocate -

(a) in prosecuting any offence, or

(b) in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland,

which, because of subsection (2) of section 6 of the [1998 c. 42.] Human Rights Act 1998, is not unlawful under subsection (1) of that section."

[25] Section 103(1) of the Scotland Act 1998 also provides that:-

"Any decision of the Judicial Committee in proceedings under this Act shall be stated in open court and shall be binding in all legal proceedings (other than proceedings before the Committee)."

Authorities and Other Documents

[26] I was referred to a number of authorities and other documents.

[27] Mr Carroll referred me to the following list of cases in relation to Article 6(1):-

1.     Mejka v HMA 1993 SCCR 978, particularly at page 985A-E;

2.     Dougan v UK 1997 SCCR 56, at pages 56D to 57D;

3.     Ledonne [No. 2] v Italy (Application no. 38414/97) 12 May 1999 at paragraphs 17, 19 and 23;

4.     HMA v Hynd 2000 SCCR 644 at page 644C-E and the commentary at page 647B-C;

5.     Majaric v Slovenia (Application no. 28400/95) 08 February 2000 at paragraphs 33 to 40;

6.     Dyer v Watson 2002 SCCR 220 - which was also referred to by the Crown in relation to pages 220E to 222E, 240B to 241A (paragraphs 52 to 55), 250A-B (paragraph 96) and 268F-G (paragraph 164);

7.     Beglan Petitioner 2002 SCCR 923 at page 923B-D;

8.     Mellors v UK 2003 SCCR 407 at page 409E to 410E and the commentary at page 429D-E and 429G to 430A;

9.     R v HMA [2002] UKPC D3 at paragraph 101;

10. Eckle v Federal Republic of Germany (1982) 5 EHRR 1 at paragraphs 72 and 73. The Crown also referred to paragraph 73;

11. Unterschutz v HMA 2003 SLT 702 - both parties referred to page 287C to 288B, the Crown referred to 287F to 288B, and Mr Carroll referred to paragraph 15.

12. Gillespie v HMA 2003 SCCR 82 at page 82C-D and paragraph 28 (page 88F-G);

13. Guincho v Portugal (1984) 7 EHRR 223 at page 223 and paragraph 38 (page 233);

14. Renton & Brown, Criminal Procedure at paragraph 9-26.9 to 9-26.9.3;

15. Attorney General's Reference No 2 of 2001 (On Appeal from the Court of Appeal (Criminal Division)) [2003] UKHL 68, [2004] 1 All ER (HL) 1049, at paragraphs 11, 18-19, 23- 25, 27-29, 45, 47, 49, 109-110, 141, 148-151, 168 and 177-179;

16. Darmalingum v The State [2000] 1 WLR 2303 , 8 BHRC 662 at pages 662c to 663d and 670b-e;

17. Boolell v The State Privy Council Appeal No 39 of 2005 JC;

18. David Neill v HMA [2008] HCJAC 76;

19. Burns v HMA 2009 SCCR 127 at page 127C-G, at paragraphs 15 (page 131-2), 26 (page 134), 52 (page 138) and 54 (page 139);

20. Kudla v Poland (Application no. 30210/96) at paragraphs 131 and 148; and

21. Spiers v Ruddy 2008 SCCR 131 from page 131 to 142.

[28] Mr Carroll also provided me with the following list of authorities in relation to separation of charges:

1.     Renton and Brown Criminal Procedure at paragraphs 9-52 and 9-53;

2.     Reid v HMA 1984 SCCR 153;

3.     Toner v HMA 1995 SCCR 697;

4.     Brown v HMA 1992 SCCR 59;

5.     Jackson v HMA 1991 SCCR 206;

6.     HMA v Bickerstaff 1926 JC 65; and

7.     HMA v McGuiness 1937 JC 37.

[29] The Advocate Depute provided me with a composite list of documents relating to Article 6 and separation of charges (items 1 to 16 inclusive being the authorities relating to separation of charges):

1.     Hume ii. VII at pages 171 to 173;

2.     Alison ii 238;

3.     HMA v Bickerstaff 1926 SC 65 particularly at pages 75-76, 78, 79, 80 and 81;

4.     HMA v McGuiness 1937 JC 37 at page 38-39;

5.     Pollock v HMA 1974 JC 32;

6.     Davidson v HMA 1981 SCCR 371 at page 376;

7.     Reid v HMA 1984 SLT 391, particularly at page 392;

8.     HMA v Maitland 1985 JC 65;

9.     Brown v HMA 1992 SCCR 59 particularly at pages 64E to 65F;

10. Jackson v HMA 1991 SLT 370;

11. Toner v HMA 1995 SCCR 697;

12. Johnston v HMA 1996 SCCR 808;

13. Platt v HMA 2000 SCCR 620 at paragraph 12. Counsel for the accused also referred me to paragraphs 12 to 15 (page 624E-625B);

14. Mitchell v HMA 2008 SCCR 469 at page 475D-E and paragraph 15 (page 490D-E);

15. Excerpt from trial judge's report in Mitchell v HMA at paragraphs 100 to 107 (pages 62 to 67);

16. Nelson v HMA 1994 SCCR 192 at page 192, 197C-198A, 198E-F, 199B-F and 203C-D;

17. Robb v HMA 2000 SCCR 354 particularly the Crown concession at page 354F-G;

18. Reilly v HMA 2000 SCCR 879 at page 879D-G and paragraph 5 (page 881D-882B);

19. HMA v Shell UK Ltd., Expro Group Integrated Services Ltd., Expro North Sea Ltd. 2003 SCCR 598 at page 598F-G;

20. HMA v Robb 1991 SCCR 971 at pages 971E to 972B and 974F-G;

21. Timeline (17 pages prepared by the Crown) plus additional documents (21A, 21B, 21C, 21D and 21E);

22. Opinion of Lady Stacey (Unreported 20 February 2009);

23. Interviews of the Second Accused on 17 September 1998 (Transcripts: Crown Productions No 62, 63, 64, 65, 66, and 67) and on 5 April 2005 (Production No 68); and

24. Howarth v United Kingdom (Application no. 38081/97 21 December 2000) at paragraphs 20 to 24, 25, 29 and 30.

The Crown's Timeline

[30] The Advocate Depute also referred to a detailed "Timeline" charting events from 5 December 1996 until September 2008 when both accused were indicted in respect of [AMcG's] murder.

[31] That Timeline is produced as Document No. 21 on the Crown List.

[32] During the debate, the Timeline was also supplemented by various other reports and documents which I have added as Documents 21A to 21E inclusive. They relate to events on (a) 14 April 2004, (b) 31 May 2005, (c) 5 April 2005, (d) 7 April 2005 and (e) 11 April 2005 respectively.

[33] I propose simply to refer to those documents for their terms brevitatis causa.

The Opinion of Lady Stacey (20 February 2009)

[34] I also gratefully adopt and incorporate brevitatis causa the summary of the Crown's Timeline which was prepared by Lady Stacey when considering the question of time bar extension.

[35] Lady Stacey's opinion is produced as Document 22 on the Crown list.

[36] The Advocate depute referred me in particular to the submissions of the Crown at paragraphs [5] to [20] and to paragraphs [35] to [42] where Lady Stacey states, inter alia:

"[36] In my opinion the Crown and the police acted properly in continuing to investigate and review the information they had on the disappearance of [AMcG] between 1997 and 2008. I accept that the Crown decided in 2005 to place the respondents on petition because the Crown believed there to be a sufficiency against them. ... It is then for the Crown to investigate and complete its precognition, which is what the advocate depute submits was done. A decision was then made that there was no sufficiency against Mr Lauchlan and that the Crown did not wish to proceed against Mr O'Neill alone, especially in light of the quality of the evidence the Crown expected to lead. The question then becomes whether the Crown is prevented by the terms of section 65 from revisiting and reviewing the decision at a later date. ...

[38] It seems to me that the situation in this case is not similar to cases where the time limit provided by section 65 has been allowed to expire due to inadvertence. Rather the Crown deliberately did not proceed within the time limit but now seek to extend it retrospectively because circumstances have changed. ...

[40] In all the circumstances it appears to me that cause is shown for the possible granting of a retrospective extension. The cause is that evidence has now come to light which was not available within the time limit. The Crown expect to lead evidence from [Mr D] which would provide a sufficiency against Mr Lauchlan and so enable the Crown to proceed against both respondents. There is no real suggestion that this evidence should have been known sooner. I did not accept Mr Carroll's submission that the time line showed that the police and the Crown had treated this as a summary matter. There is now more evidence against Mr O'Neill then was previously available, in the form of further admissions. While it is correct to categorise it as more of the same type of evidence it is not simply more people speaking to the same admission, but rather more people speaking to further admissions.

[41] Moving to the second leg of the test, that is whether the court should exercise its discretion to grant the extension, on balance I am of the view that it should. I am influenced in this by the gravity of the charges. I accept that the Crown and the police should continue to review cases which are serious. The circumstances of this case where there is an allegation that [AMcG's] body has been disposed of at sea make for a difficult investigation. If that allegation is true then there may be no evidence available of a body, and so the Crown are obliged to consider carefully what evidence they can lead. I am persuaded that the new evidence of further admissions and the sufficiency thereby provided against Mr Lauchlan weigh in favour of the Crown being allowed an extension. There is in my opinion a relative lack of prejudice to the respondents. The passage of time affects both prosecution and defence. I accept that the death of witnesses may cause some difficulty but I understand that statements were given by the witness referred to which can be used in evidence.

[42] The Crown did not seek anything other than an extension of one month beyond the date of this decision and that therefore is the extension which will be granted."

The Issues

[37] There were two preliminary issues before me, namely:-

Issue No. 1 - which concerned Article 6(1), and

Issue No. 2 - which concerned separation of charges.

[38] I will deal with them in turn as follows.

Issue No. 1 - Article 6(1)

Devolution Minute for the Second Accused - Article 6(1)

[39] The Devolution Issue Minute for the second accused relating to Article 6 is Minute 2/6. It relates to charges (2) and (3).

[40] The background, as set out in the Minute, was as follows. The Minuter (the second accused) was brought before the sheriff at Kilmarnock on 5 April 2005 on a petition charging him with the crimes of murder and attempting to pervert the course of justice. He was committed to prison for further examination. On 12 April 2005 the Minuter again appeared before the sheriff at Kilmarnock in respect of said petition. He was committed to prison until liberated in due course of law. A devolution issue was raised, and thereafter argued before Sheriff McDonald at the Sheriff Court at Kilmarnock on 14 October 2005. Sheriff McDonald held that the raising of the devolution issue was premature. That decision was appealed under section 74 of the Criminal Procedure (Scotland) Act 1995, and heard before the High Court of Justiciary on 7 December 2005. That appeal was refused, and leave to appeal to the Privy Council refused, on the basis that the "devolution issue raised on behalf of the appellant had not been determined by a Court". The provisions of sections 65(1)(a) and (1A) came into operation in respect of that petition on 4 April 2006. On 10 September 2008 there was served upon the Minuter an indictment which purported to charge the Minuter, along with William Hugh Lauchlan per charges (2) and (3) on that indictment, with the offences of murder and attempting to defeat the ends of justice. A preliminary hearing was assigned in the High Court at Glasgow for 10 October 2008. Since then matters have been dealt with by Lord Pentland, Lady Stacey and the Appeal Court - as mentioned above.

[41] In developing his submissions in relation to Article 6(1) Mr Carroll directed me to the various authorities which I have already listed in detail above.

[42] Mr Carroll sought dismissal of charges (2) and (3).

[43] Essentially the argument was based on the following grounds, along the lines set out in the Minute, namely:-

(i) the crimes are alleged to have occurred between 20 and 1 September 1997.

(ii) at the High Court at Glasgow on 17 June 1998 the Minuter was convicted of various offences and was sentenced to eight years imprisonment. He was subsequently sent to the prison at Peterhead.

(iii) on 17 September 1998 the Minuter was detained at the prison by police officers under powers in terms of section 14 of the Criminal Procedure (Scotland) Act 1995 and removed to Queen Street Police Office in Aberdeen. This was in respect of the matters upon which charges (2) and (3) on the indictment have been framed.

(iv) the Minuter was interrogated by police officers in respect of those charges on 17 September 1998. The interrogation was conducted in a series of meetings between police officers and the Minuter and lasted several hours.

(v) the whole circumstances of the events of 17 September 1998 made it clear to the Minuter that he was a person who would be prosecuted in relation to the matters upon which he was interrogated. The Minuter was accused several times and in emphatic terms that he was responsible for the alleged death of [AMcG]. He was told by his interrogators (inter alia) that he had "killed her" and that he was "carrying this on his conscience". His interrogators told him that "there was no doubt whatsoever that (he was) involved in her death". The interrogators told the Minuter that they were in possession of evidence to support allegations that he had confined Allison McGarrigle against her will; that he stated to witnesses that "she's got to go", "she's got to disappear off the face of the Earth", and "she's got to get killed"; and that her body would have to got rid of by means including "cutting her up" and "dumping it in the water". Such allegations were made in terms by the interrogating officers many times and were frequently associated with statements of the police officers that they believed the evidence that they alleged was in their possession and that they had no reason to doubt it.

(vi) the interrogation of the Minuter, in terms recorded in transcripts taken from police tape recordings of the event, was intended to create in him a belief that he would be prosecuted for the alleged murder of [AMcG] and for attempting to pervert the course of justice by disposing of her body. Esto it was not intended to create such a belief it must have been or should have been clear to the police officers concerned that it was bound to do so.

(vii) the terms of the allegations against the Minuter equiparate with criminal charges of murder and attempting to pervert the course of justice within the autonomous meaning of the word "charge" in terms of the jurisprudence of the European Convention on Human Rights. Its autonomous meaning has to be understood within the meaning of the Convention and not solely within its meaning in domestic law. It may thus be defined as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence". The Minuter was, he contended, the subject of a charge within the meaning of Article 6(1) of the Convention and the circumstances thereby engage Article 6 of the Convention.

(vii) by reason of the constraints of the Scotland Act 1998 section 57(2), the Lord Advocate has no power to act in a manner which is incompatible with the Convention rights of the Minuter and therefore has no power to continue the prosecution against the Minuter where to do so would be incompatible with his Convention rights.

(viii) were the Lord Advocate to act in a manner which is incompatible with the Convention rights of the Minuter she would be acting unlawfully and contrary to the will of Parliament as set down in section 6(1) of the Human Rights Act 1998.

(ix) were the Lord Advocate to proceed with the prosecution in circumstances where she had no power to act in contravention of section 57(2) of the Scotland Act 1998, she would be acting unlawfully and unconstitutionally, and

(x) that in the circumstances the Minuter's rights under Article 6 of the European Convention on Human Rights cannot be accorded to him by reason of delay in these proceedings.

[44] In the course of his submission, Mr Carroll highlighted inter alia a number of features of the Timeline including events in September 1998 and various periods of apparent inactivity. In particular, he highlighted the detention and interview of the accused at Aberdeen Police Station on 17 September 1998. This was "accusation under caution" rather than interviewing, questioning or inquiry - suggested Mr Carroll. He also highlighted the entry for 5 November 1998 which referred to the missing person investigation being "stood down" due to lack of progress in tracing [AMcG]. The accused were eventually charged and appeared on petition for murder on 5 April 2005.

[45] In essence, Mr Carroll argued, having regard to the authorities listed above, that 17 September 1998 was the relevant date when time commenced for the purposes of Article 6(1); that section 57(2) of the Scotland Act 1998 provided that there was "no power" to proceed; and that having regard to the lapse of time charges (2) and (3) should be dismissed. Mr Carroll did not go so far as to suggest that there should be automatic dismissal but he submitted that dismissal would be appropriate in this case in the exercise of my discretion. No lesser remedy was appropriate in this case - in the interests of justice - so submitted Mr Carroll.

Submissions for the Crown - Article 6(1)

[46] In essence the Advocate Depute argued, having regard to the same authorities, that the relevant date when time commenced for the purposes of Article 6(1) was 5 April 2005 when the accused was charged; that in light of Spiers v Ruddy 2008 SCCR 131 there was power to proceed to trial; and that in the circumstances charges (2) and (3) should not be dismissed.

[47] The Advocate Depute began by posing the question "When for the purposes of Article 6(1), does a person become subject to a criminal charge in Scotland?" She sought to answer that question as follows.

[48] Article 6(1) of the European Convention on Human Rights provides that in the determination of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time.

[49] In Eckle v Federal Republic of Germany (1982) 5 EHRR 1 at paragraphs 73 and 74 the European Court of Human Rights sought to inform the individual jurisdiction as to how to interpret the autonomous concept of "charge" as "the official notification by the competent authority of an allegation that he has committed a criminal offence".

[50] In light of the various legal systems and procedures present within the member states of the convention it is obvious that the reasonable time period may be triggered in a range of different ways. However it seems clear from Eckle itself, and from common sense suggested the Advocate Depute, that the commencement of the period is not necessarily triggered by the making of a complaint by an individual to the police, nor necessarily triggered by the carrying out of investigation by the police.

[51] In Scotland the police have the power to charge individuals (in domestic terms). The process of charge is a regular feature of police procedure. The process of charge and arrest are interconnected. A whole range of functions can be undertaken by the police following upon arrest and charge, including search and fingerprinting. Statutory provisions also give rights to the arrested person at this stage, including the right to be brought before a court. The arrested person is notionally under the protection of the court from the point of charge on. All of this is indicative of the importance attached in domestic terms to the concept of charge. It leads to the view that the police ought properly to be seen as a competent authority in the sense that the term is used by the European Court in Eckle. It need not be thought that there is only one competent authority. The COPFS (Crown Office and Procurator Fiscal Service) and the police are components of the same law enforcement structure for these purposes.

[52] The purpose of charge, in domestic terms, is to give the individual concerned official notification of an allegation that he has committed a criminal offence. Accordingly in domestic terminology the word charge has the same meaning as to be taken from the autonomous use of the word in Article 6(1).

[53] As there is a valid and recognised distinction between investigation and notification and since in the Scottish jurisdiction it is the police who carry out such investigations interview by the police even under caution does not constitute "charge" in the sense in which that word is used in Article 6(1).

[54] Charge by the police ought to be seen as the normal starting point. However it may be that the circumstances of an interview under caution might equate to charge, and when making such an assessment each case will depend on its own facts and circumstances.

[55] In previous cases the Crown has conceded that the relevant period has commenced on the date upon which the accused was first informed by the police of the allegations made against him and he was interviewed under caution; Robb v HMA 2000 SCCR 354, Reilly v HMA 2000 SCCR 879 and Dyer v Watson & Burrows 2002 SCCR 220.

[56] In Robb v HMA the appellant presented a Devolution Minute in the Sheriff Court addressing the period of time which elapsed prior to trial. The Sheriff held (and it is assumed from the report the Crown argued) that the relevant period commenced on 30 September 1998, the date upon which the accused was detained, interviewed and charged. However on appeal the Crown position changed and it was expressly conceded that the relevant period commenced on 23 May 1993, the date upon which the appellant was first informed by the police of the allegations made against him and was interviewed under caution. In giving the opinion of the Court Lord Prosser made no comment on this concession and proceeded on that basis to hold that Article 6(1) had been breached.

[57] In Reilly v HMA, Lord Prosser again gave the opinion of the court and again held that the relevant period began when the appellant was interviewed under caution by the police. As in Robb it would appear that although this interview was under caution the accused was not charged. In this case it is worth observing that the appellant was eventually charged with embezzlement from the company of which she was a director. Long before the date of police interview she was dismissed and informed by the company's solicitors that the matter had been reported to the police. Again long before the police corresponded with the Procurator Fiscal ("the PF") about their investigation and sent out questionnaires to be completed by many hundreds of clients. All of this goes to the point which the court made that there is a difference for these purposes between investigation and notification. The distinction remains valid even if that investigation is being conducted by the police under the guidance of the Procurator Fiscal.

[58] The view that the reasonable time period commences at the date of the interview under caution appears to have been generally accepted (without detailed argument or real consideration) and indeed was even present in the case of Dyer v Watson & Burrows 2002 SCCR 220. In the opinion of Lord Hope of Craighead at paragraph 96 he states: "In this case it is accepted that the respondents were "charged" within the meaning of Article 6(1) on 28 January 1999 when they were detained and interviewed, the Sheriff's allegations ... were put to them and they were cautioned; See Howarth v UK" (2001 31 EHHR 861).

[59] This is the first reference to Howarth in the evolution of the domestic approach to the issue under consideration. Howarth is a case in which the applicant was convicted of conspiracy to defraud and theft in relation to a company take over. There were various procedures including a successful challenge by the Attorney General to the leniency of the sentence imposed at trial. The case is somewhat unsatisfactory - suggested the Advocate Depute. The applicant complained about the period between his original non-custodial sentence and the subsequent one. However under the heading of the "period to be taken into consideration" the European Court of Human Rights held that the proceedings in the case began on 17 March 1993, when the applicant was first interviewed by officers of the Serious Fraud Squad. Howarth is a short case and there is no analysis of the position and no explanation of whether or not the parties had competing propositions on the issue of when the relevant period commenced. Its importance however is that the applicant was interviewed by the officers of the Serious Fraud Squad on four occasions between March and July 1993. It was only on the last of these that he was charged (in the domestic sense). That, as Lord Hope appeared to recognised, is consistent with the approach currently taken by the Crown in Scotland. However, the impact, if any, of Howarth appears to have been diluted in light of the comments in the Attorney General's Reference no 2 of 2001 (see further below).

[60] What is the purpose of the protection provided? It is a right in relation to the determination of a criminal charge, and its purpose to avoid the person concerned remaining too long in a state of uncertainty about his fate. The protection afforded only arises in very narrowly defined circumstances, after "the official notification by the competent authority of an allegation that he has committed a criminal offence".

[61] In Unterschutz v HMA 2003 SCCR 287 (or Reilly) it did not matter that it was perfectly obvious to an accused that his affairs were being investigated by the authorities, in that case the Inland Revenue. Unterschutz had been interviewed under caution in the presence of his solicitors. Nor did it matter that by a later point the Inland Revenue was advancing allegations of criminal conduct on the accused's part. Nor did it matter that he was told there was no way of avoiding the matter being reported to the Revenue Solicitor for consideration of prosecution. What mattered was that the Inland Revenue were not a competent body in the sense in which that was used in Eckle in order to define the meaning of a person being the subject of a criminal charge.

[62] The same approach was taken in HMA v Shell UK Ltd 2003 SCCR 598. The accused were served with an indictment on 3 March 2003 arising out of an incident which took place on an offshore installation on 30 December 2000. As would always be the case in such situations the Health and Safety Executive (HSE) commenced enquiries immediately and notified the company in December 2001 that a report had been sent to the Procurator Fiscal. The company concerned were given no further notification until the service of the indictment. The Court again held that Article 6 protection did not commence until official notification had been given. In the circumstances this had not occurred until service of the indictment.

[63] This jurisprudence would appear to vouch the proposition that the protection afforded to an individual (of avoiding remaining in a state of uncertainty about his fate) does not arise merely because the authorities (in a general sense) have given him good reason to believe that he may be, or is likely to be, prosecuted.

[64] Why should interview under caution necessarily trigger the commencement of the relevant period? It is not unusual for the police whilst at the early stages of investigation to detain a suspect, interview him under caution and release him at the end period without charge. They may well also explain that the matter will be reported to the Procurator Fiscal for consideration. The whole concept of interview under caution proceeds upon the premise of suspicion that a crime might have been committed, either at all (by someone) or by the interviewee/detainee, rather than upon the premise that a settled view has been arrived at regarding proceedings.

[65] In the Attorney General's Reference No 2 of 2001 [2003] UKHL 68 two points were referred to their Lordships for opinion. The first was whether the decision of HMA v R was correct. Not surprisingly it was to that question that most of the concern was addressed. However, the second question was in these terms: - "In the determination of whether for the purposes of Article 6(1) of the Convention, a criminal charge has been heard within a reasonable time, when does the relevant time period commence?"

[66] At paragraph 29, (following analysis at paragraphs 26 to 28) Lord Bingham states:-

"the relevant time period commences at the earliest time at which the defendant is officially alerted to the likelihood of criminal proceedings against him, which in England and Wales will ordinarily be when he is charged or served with a summons".

[67] Earlier, at paragraph 27, Lord Bingham had pointed out that regard must be had to what the purpose of the reasonable time requirement was, namely to ensure that criminal proceedings once initiated are prosecuted without undue delay and to preserve defendants from the trauma of awaiting trial for inordinate periods.

[68] At paragraph 28 his Lordship went on to give examples of events which would not meet his definition. He points out that arrest will not normally mark the beginning of the period and explains that interview under caution would not normally trigger the commencement of the period. In this regard he draws out some implicit criticism of the case of Howarth.

[69] At paragraph 45, Lord Hope of Craighead stated:

"I have nothing to add to what Lord Bingham has said on the second point of law as I agree with everything which he has said about it."

[70] It was recognised that Lord Bingham was addressing this question from the point of view of English law. However, it was to be remembered from Dyer that Lord Hope saw Howarth as vouching the proposition that the relevant period commenced at the point of interview under caution. It was difficult to reconcile Lord Hope's view in Dyer (that the time commenced at interview) with his acceptance of Lord Bingham's explanation that neither interview under caution nor arrest would normally trigger the commencement of the time period.

[71] Lord Rodger similarly agreed with what had been said by Lord Bingham in relation to this point in the Attorney General's Reference. Looking back at Dyer it is possible to see a hint of a question about the validity of the concession made as to the commencement point. At paragraph 164 (on page 268 of the SCCR report) he says this:

" ... the investigation got under way in July 1998. The respondents were made aware of it the same month and their notebooks were taken from them. But it was not until 28 January 1999 that the respondents were detained under section 14 of the 1995 Act and were interviewed on tape. It was accepted in the appeal court - and the point was not re-opened before the Board - that for the purposes of article 6(1) this was the moment the respondents were charged with perjury."

[72] The case of Burns v HMA 2008 SCCR 127 looked at the issue of the competent authority and the time from which the guarantee of a fair trial within a reasonable time would run. In this case the English police had interviewed the accused and at interview it was explained to him that the police would be recommending that he would be charged with offences. Thus it was considered that the time ran from this stage in the proceedings. However, the court also re-inforced the comments of Lord Bingham in the case of Attorney General's Reference (referred to above) continuing to support the reasoning at paragraphs 26 to 29.

[73] In the present case the position adopted by the Crown is that the accused was given "official notification" on the 5 April 2005 when he was detained and interviewed under caution and officially charged with the crimes of murder and disposing of [AMcG's] body. The transcript of this interview is Crown Production No 68 (in Document 23 on the Crown list).

[74] It is accepted that the accused was interviewed by the police in 1998. He was interviewed during the stage of the missing person's enquiry. The police requested that the Procurator Fiscal at Kilmarnock prepare a release letter in respect of the accused and this was done. Subsequently the accused was detained on the basis that they were suspected of the crime of conspiracy to murder and was taken to the police station at Aberdeen on the 17 September 1998. He was interviewed and at the outset of the first interview it was explained to him that he was going to be asked questions about the disappearance of a woman by the name of Allison McGarrigle, Interview 1, 10:53 to 11:37 (Production 62). In this interview the accused gave "no comment" responses. At page 5 the accused stated "you would be just as well charging me" to which the officers responded that "were speaking to you it's as simple as that". In this interview the accused was asked about [AMcG] and [RMcG], what the living arrangements were at Waterside Street and who frequented the property. In Interview 2, 11:40 to 12:24 (Production 63), the accused was asked further questions about [AMcG] and specific statements he was alleged to have made about her. In particular he was asked about the night of the argument and her subsequent disappearance. Again the accused gave a "no comment" response. In Interview 3, 12:28 to 13:02 (Production 64), the accused was again asked to comment on statements allegedly made by him and gave "no comment" responses. In Interview 4, 14:19 to 15:03 (Production 65), the accused was again asked to comment on statements allegedly made by him and gave a "no comment" response. In Interview 5, 15:11 to 15:56 (Production 66), the accused was again asked to make comments on statements allegedly made by him and gave "no comment" responses. In Interview 6, 16:05 to 16:31 (Production 67), the accused again makes no comment. At this stage of the interview the officer did suggest the accused killed the deceased (page 2). However, the accused was never charged.

[75] In the event that the time is said to run from the time of the accused's interview, and the court is of the view that this gave ground for real concern, the Advocate Depute submitted that on an analysis of the facts of this case it is clear that there is a reasonable explanation for the time that has passed since the accused's police interview and these proceedings have been brought within a reasonable time

[76] The whole background circumstances are detailed in the Opinion of Lady Stacey dated 20 February 2009, at paragraphs 5 to 23 and 35 to 43 (Document 22 on the Crown list).

[77] The Timeline produced (Document 21 on the list) further explains what has happened.

[78] Dyer v Watson & Burrows provides guidance on the three areas which call for particular enquiry. On enquiry, having regard to the background explained, it is clear that the reasonable time period has not been breached and that this has been a long running and difficult enquiry in respect of which the evidential landscape has developed from 1998 through to 2008. The recent involvement of Operation Aspen has uncovered evidence of further admissions. The case has now been assessed by the Crown as one that should be prosecuted in court.

[79] In the event that it is considered that there has been a breach of the reasonable time requirement that does not necessarily lead to a dismissal of the proceedings. Spiers v Ruddy 2008 SCCR 131 brought the position in Scotland in line with the position in England and provides that even in the event of a breach of the reasonable time requirement the Lord Advocate does not act incompatibly with a person's Convention right by continuing to prosecute. The position in England is as reflected in the Attorney General's Reference No 2 of 2001 at paragraphs 23 - 25.

[80] In the present case there were no circumstances which produced such prejudice as would justify bringing proceedings to end. Certain witnesses had died and certain videos had been lost but there was other evidence available. There was nothing exceptional about this case. There would be a fair trial.

Decision in relation to Article 6(1)

[81] Having regard to the circumstances, the authorities and the submission (which I have outlined above), I have reached the following conclusions in relation to Article 6(1).

[82] The test for determining when a person has been made the subject of a criminal charge for the purposes of Article 6(1) depends on the definition of "charge" which is an autonomous concept for the purposes of the Convention.

[83] As was stated in Eckle v Federal Republic of Germany (1982) 5 EHRR 1, at paragraph 73:

"In criminal matters, the 'reasonable time' referred to in Article 6(1) begins to run as soon as a person is 'charged'; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened. 'Charge' for the purposes of Article 6 (1) may be defined as 'the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence' a definition that also corresponds to the test whether 'the situation of the [suspect] has been substantially affected'."

[84] Applying these principles to the facts of this particular case, I consider that the date put forward by Mr Carroll on behalf of the second accused (17 September 1998) is not the appropriate starting point.

[85] In my opinion, applying ECHR principles in a Scottish context, the relevant start date for the purposes of Article 6(1) is when the second accused was formally charged (in the domestic Scottish sense of that word) on 5 April 2005.

[86] The interview on 17 September 1998 (Crown Productions No. 62, 63, 64, 65, 66 and 67) which was founded upon by Mr Carroll does not contain or amount to an "official notification" of an allegation of murder. In any event the situation of the second accused was not "substantially affected".

[87] The fact of the matter is that the second accused was not formally charged at that stage. Indeed the second accused said to DC1 (on page 5, line 3, of Crown Production 62): "You're going to charge me in't you. You'd be as well just charging me and taking me to court." but that did not happen - at least not at that stage.

[88] Interviewing the second accused, even at considerable length, did not materially alter that situation.

[89] The second accused was not charged for the purposes of Article 6(1) until 5 April 2005 (Crown Production 68) which is the date suggested by the Crown.

[90] There can be no doubting the extreme importance of Article 6(1) for the proper administration of justice. However, in the circumstances of this particular case, I am satisfied that the Crown have provided a satisfactory explanation for the lapse of time.

[91] I have considered the period which has elapsed, the detailed circumstances of the case which were provided to me, and the Crown's explanations for the lapse of time. I have borne in mind the complexity of the case, as well as the conduct of the accused and the manner in which the case has been dealt with by the authorities.

[92] Mr Carroll also submitted that no lesser remedy than dismissal of charges (2) and (3) is appropriate. I do not agree.

[93] There may well be situations in which the acts of the Lord Advocate should be struck down by the court, leading to the dismissal of a prosecution, but this is not one of those cases.

[94] Mr Carroll submitted, in support of his motion, that the decision in Spiers v Ruddy 2008 SCCR 131 was wrong. I cannot agree. I prefer the Crown's approach. In any event I am bound by the decision of the Privy Council

[95] In Spiers v Ruddy Lord Bingham of Cornhill, having considered the cases relied on, said (at paragraphs 15 and 16):

"15. None of these cases concerned the situation where delay jeopardises the fairness of a forthcoming trial or where, for any compelling reason, it is not fair to try an accused at all. It is axiomatic that if an accused cannot be tried fairly he should not be tried at all, and where either of these conditions is held to apply the proceedings must be brought to an end.

16. The cases concerned a situation where there has (or may have been) such delay in the conduct of proceedings as to breach a party's right to trial within a reasonable time but where the fairness of the trial has not been or will not be compromised. The authorities relied on and considered above make clear, in my opinion, that such delay does not give rise to a continuing breach which cannot be cured save by a discontinuation of proceedings. It gives rise to a breach which can be cured, even where it cannot be prevented, by expedition, reduction of sentence or compensation, provided always that the breach, where it occurs, is publicly acknowledged and addressed. The European Court does not prescribe what remedy will be effective in any given case, regarding this as, in the first instance, a matter for the national court. The Board, given its restricted role in deciding devolution issues, should be similarly reticent. It is for the Scottish courts, if and when they find a breach of the reasonable time provision, to award such redress as they consider appropriate in the light of the Strasbourg jurisprudence.

17. I do not think section 57(2) of the Scotland Act warrants any distinction between the law in Scotland and the law in England and Wales as declared in Attorney General's Reference (No 2 of 2001), to which I would give effect. In a situation such as this the same principles should apply on both sides of the border and it is now clear that Attorney General's Reference (No 2 of 2001) gives better effect than R to the Strasbourg jurisprudence. Once it is accepted that a breach of the reasonable time requirement does not give rise to a continuing breach, it ineluctably follows that the Lord Advocate does not act incompatibly with a person's Convention right by continuing to prosecute him after such a breach has occurred."

[96] Lord Hope of Craighead, who sets out his views in paragraphs 19 to 23, said this (in his concluding sentence):-

"But if termination of the proceedings is held not to be the appropriate remedy, steps must be taken to ensure that Mr Ruddy still has the benefit of the reasonable time guarantee that is afforded to him by the Convention right".

[97] Lord Rodger of Earlsferry, who sets out his views in paragraphs 24 to 27, said inter alia (at paragraph 26):

"... expediting proceedings can indeed prevent the 'continuation' of any violation of Article 6(1). ... Since the prosecutor is not in continuing breach (of Article 6(1)) in such circumstances section 75(2) of the Scotland Act 1998 has no application."

[98] Lord Hope of Craighead (at paragraph 19), Lord Roger of Earlsferry (at paragraph 24) Lord Mance (at paragraph 28) and Lord Neuberger of Abbotsbury (at paragraph 29) all agreed that the Board should, for the reasons given by Lord Bingham, answer the second issue as proposed by the Lord Advocate.

[99] In short, the decision in Spiers v Ruddy makes two things clear:-

·       Firstly, that it would not be incompatible with the accused's right to a determination of the criminal charges against him within a reasonable time for the Lord Advocate to continue to prosecute him on those charges following the lapse of a reasonable time, in circumstances where a fair trial remains possible and there is no other compelling reason why it would be unfair to try him; and

·       Secondly, that the Lord Advocate does have power to do so.

[100] That decision also reflects the views of the dissenting minority in R v HMA, at paragraphs [17] and [18], who saw grave dangers to the administration of justice and the maintenance of public confidence in it if a breach of the reasonable time requirements were automatically to lead to termination of the proceedings, even though a fair trial was possible.

[101] In Attorney General's Reference (No 2 of 2001) Lord Bingham of Cornhill said inter alia:

"The first point of law ...

23. ... the Strasbourg jurisprudence gives no support to the contention that there should be no hearing of a criminal charge once a reasonable time has passed. It is of course true that the European Court examines cases retrospectively and never prospectively, and it cannot quash convictions. But it is significant that in its interpretation and application of the Convention it has never treated the holding of a hearing as a violation or a proper subject of compensation. ...

24. If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant's Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant's Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant's Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time. ..

25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor's breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant's Convention right. ...

The second point of law ...

27. As a general rule, the relevant period will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him. This formulation gives effect to the Strasbourg jurisprudence but may (it is hoped) prove easier to apply in this country. In applying it, regard must be had to the purposes of the reasonable time requirement: to ensure that criminal proceedings, once initiated, are prosecuted without undue delay; and to preserve defendants from the trauma of awaiting trial for inordinate periods. The Court of Appeal correctly held (at p 1872, para 10 of its judgment) that the period will ordinarily begin when a defendant is formally charged or served with a summons, but it wisely forbore (pp 1872-1873, paras 11-13) to lay down any inflexible rule.

28. The interviewing of a person for purposes of a regulatory inquiry in England and Wales will not meet the test laid down above: Fayed v United Kingdom (1994) 18 EHRR 393, 427-428, para 61; IJL, GMR and AKP v United Kingdom (2000) 33 EHRR 225, 258-259, para 131. Nor, ordinarily, will time begin to run until after a suspect has been interviewed under caution, since Code C made under section 66 of the Police and Criminal Evidence Act 1984 generally requires the charging process to be set in train once an interviewing officer considers that there is sufficient evidence to prosecute a detained person and that there is sufficient evidence for a prosecution to succeed. In Howarth v United Kingdom (2000) 31 EHRR 861 the European Court held that the period had begun with the first police interview of the defendant, but only 41/2 months separated that interview from the charge and attention was largely focused (p 865, para 20) on the passage of time between sentence and final determination of a reference by the Attorney General under section 36 of the Criminal Justice Act 1988. Arrest will not ordinarily mark the beginning of the period. An official indication that a person will be reported with a view to prosecution may, depending on all the circumstances, do so.

Conclusion

29. The opinion of the House on the two points referred by the Attorney General is to substantially the same effect as that of the Court of Appeal. The following summary should be read with the paragraphs of this opinion in which the matters are discussed:

'(1) Criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article 6(1) of the Convention only if (a) a fair hearing is no longer possible, or (b) it is for any compelling reason unfair to try the defendant.

(2) In the determination of whether, for the purposes of article 6(1) of the Convention, a criminal charge has been heard within a reasonable time, the relevant time period commences at the earliest time at which a defendant is officially alerted to the likelihood of criminal proceedings against him, which in England and Wales will ordinarily be when he is charged or served with a summons.'"

[102] I can see no basis for my concluding that Spiers v Ruddy is wrong. On the contrary, it supports the Crown's position that the proceedings against the second accused should continue and that Mr Carroll's motion for dismissal should be refused.

[103] This is not a case where delay jeopardises the fairness of a forthcoming trial or where, for any compelling reason, it is not fair to try an accused at all.

[104] The motion made to the court on behalf of the second accused is for dismissal of charge (2) and (3). Having regard to the authorities and the principles outlined above, I shall refuse that motion. I have reached that conclusion essentially for the reasons outlined by the Advocate Depute. The "reasonable time" prescribed by Article 6(1) has not been exceeded in the circumstances of this particular case. In any event, I do not consider that dismissal of the charge is just or appropriate or required by Article 6(1) or by section 57(2) of the Scotland Act 1998. Proceedings should continue - and they should do so expeditiously.

[105] If Spiers v Ruddy is wrong, as Mr Carroll suggests, then perhaps the time has come for Parliament to revisit the wording of the Scotland Act.

[106] Having refused the motion to dismiss the charge against the second accused, I am not mined to dismiss the Devolution Minute - as was done by the learned Sheriff in Burns v HMA [2008] UKPC 63. Instead I propose to follow the course suggested by Lord Roger of Earlsferry in Burns when he said (at paragraph 28):-

"In light of Spiers v Ruddy (PC), however, an unreasonable delay does not prevent the Crown from proceeding to trial. The decisions, as to whether there has been any such unreasonable by the Crown in this case and, if so, as to the appropriate remedy, should therefore be left until the trial has taken place."

[107] In the result, I shall simply refuse the motion seeking dismissal.

[108] I now turn to the second issue before me - relating to separation of charges.

Issue No. 2 - Separation of Charges

The Submissions for the First and Second Accused on Separation of Charges

[109] The Preliminary Issue Minute for the first accused relating to the separation of charges is Minute 3/7.

[110] The Preliminary Issue Minute for the second accused relating to separation is Minute 6/6.

[111] Both Minutes follow broadly similar lines and Mr Carroll adopted the submissions of Mr McVicar.

[112] In the result, Mr McVicar and Mr Carrol moved me to separate:-

·       charges (1) (assault alternatively culpable and reckless conduct), (2) (murder) and (3) (attempt to defeat the ends of justice) from

·       the subsequent charges on the indictment.

[113] The Minutes outlined the arguments very briefly along the following lines. It was unfair to the Minuters that they face trial on an indictment with this particular accumulation of charges. The charges in issue were unrelated in evidence, time and character. It would be necessary for the Crown to adduce evidence of previous convictions of the Minuters. In addition the accumulation of charges may prevent legitimate lines of defence being led. The charges should be separated. The Minuters will suffer a material risk of real prejudice if the indictment remains as it stands.

[114] The Minutes were expanded upon during the course of submissions.

Submissions for the First Accused - Separation of Charges

[115] The submissions for the first accused were along the following lines.

[116] Mr McVicar referred to Renton and Brown's Criminal Procedure, at paragraph 9-52, where the learned authors note:-

"Where there is more than one charge the accused may move the court to order that the counts be tried separately. It is in the discretion of the court to grant or refuse the motion. The test to be applied in every case is whether it is fair to the person or persons accused to put a particular accumulation of charges in one indictment. The motion should only be granted where there is a material risk of real prejudice to the accused if the charges were to be tried together."

[117] Mr McVicar also referred to his draft note of argument (which had been lodged previously) and he modified his submissions to focus on what he described as the real risk of prejudice to the first accused if charges (2) and (3) were not separated from the subsequent charges on the indictment.

[118] There was no dispute that charges (1), (2) and (3) could and should be tried together in their present terms.

[119] It was not argued (despite previous indications the documents to the contrary) that charge (2) had special status or should stand alone simply because it was a murder charge.

[120] Nor was it suggested that the Crown were precluded from proceeding to trial in relation to charges (1), (2) and (3), as libelled.

[121] The central submission for the defence was that, having regard to charge (2) as libelled, the accused would be prejudiced in relation to the subsequent charges if all charges were tried before the same jury.

[122] It is worth bearing in mind the terms of charge (2) which (with emphasis added) reads as follows:-

"(2) on 21 June 1997 at 16A Waterside Street, Largs or elsewhere to the Prosecutor meantime unknown, you CHARLES BERNARD O'NEILL and WILLIAM HUGH LAUCHLAN having between 1 March 1993 and 21 June 1997 engaged in criminal sexual activity with [RMcG], born 15 December 1983, c/o Strathclyde Police, Pollok, then aged between 9 and 13 years, and knowing that [AMcG], his mother then residing there, was aware of such activity and believing that she intended to report such activity to the authorities did abduct her and detain her against her will within said house at 16A Waterside Street, Largs, and thereafter assault said [AMcG], seize hold of her neck, compress her throat and did murder her and you did previously evince malice and ill will towards said [AMcG]."

[123] The real risk of prejudice arose from the relatively unusual averment in charge (2) to the effect that the accused had previously "engaged in criminal sexual activity". That averment related to criminal sexual activity which had, as a matter of fact, resulted in conviction. The Crown had made the averment to give fair notice of the Crown's position in relation to motive for the murder (as they were admittedly entitled to do) but, unless the charges were separated, the fact of previous criminal sexual activity would be before the jury and would prejudice the accused's trial in relation to subsequent charges (set out above) which also concern allegations of criminal sexual activity. That was the core submission for the first accused which was sufficient to justify separation.

[124] In addition, it was suggested that the evidence in relation to charge (2) would come from witnesses who would disclose the record of the accused and in two cases would speak to alleged "jailhouse confessions". These were allegedly made when the accused was in Peterhead prison which is widely known to house convicted sex offenders. The jury cannot be given information about the general character of the accused or his previous offending. Mr McVicar also referred me to section 266(4) of the Criminal Procedure (Scotland) Act 1995 and to the practice whereby the Crown serve two parallel indictments to avoid disclosing previous offending (for example in certain road traffic and firearms cases involving previous convictions) . If the jury were to be advised of the previous conviction or offending of the accused he would not receive a fair trial. The two groups of charges were not connected in time, circumstance or character - at least not in a way that assisted the Crown. The material risk of real prejudice could not be remedied by direction from the trial judge. The accumulation of charges was unfair and the only solution was to separate - so argued Mr McVicar.

Submissions for the Second Accused - Separation of Charges

[125] Mr Carroll adopted the submissions made by Mr McVicar in relation to separation of charges.

[126] Mr Carroll's position was outlined along the following lines.

[127] The test to be applied in determining whether to separate charges is whether it is fair to the accused to put a particular accumulation of charges in one indictment (Renton and Brown paragraphs 9-52 and 9-53). The motion should only be granted where there is a material risk of real prejudice to the accused if the charges were to be tried together (Reid v HMA 1984 SCCR 153 and Toner v HMA 1995 SCCR 697). It is not enough for an accused to contend the prejudice arises merely because the charges in an indictment are different kinds of crime committed at different times in different places and circumstances (Reid v HMA ibid.). All the circumstances of the case, including the accused's proposed line of defence, may be relevant, and the court is not limited to considering only the nature and relationship of the charges (Brown v HMA 1992 SCCR 59 and Toner v HMA ibid.). Similarity in motivation and method is not a ground for trying offences together when there is no evidential link between them (Jackson v HMA 1991 SCCR 206). Offences which are successive stages of the same course of criminal conduct are properly tried together but if the charges are less closely allied prejudice may arise if they are tried together (HMA v Bickerstaff 1926 JC 65 and Renton and Brown 9-52). It is the duty of the court, particularly in murder cases, to prevent prejudice of this kind to an accused and if there is a risk of this kind to separate the charges (HMA v McGuiness 1937 JC 37). It was not suggested that charge (2) fell into a special category simply because it was a murder charge. Charge (2) caused the prejudice in relation to other subsequent charges.

[128] In respect of charges (1) to (3) on the indictment it was accepted that these charges are linked in time and circumstances and should be tried together. It was submitted that no link exists between these three charges and the remaining charges on the indictment (other than one of prejudice). The libel of the first three charges extends from 15 August 1996 to 1 September 1997. The next date relating to the charge (4) is 22 May 2003. The dates in the remaining charges cover the period from 22 May 2003 to 18 February 2008. There is accordingly no link in time between charges (1) to (3) and the remaining charges on the indictment.

[129] Charge (2) narrates, at lines 31 and 32 of the indictment, that the second accused "having between 1 March 1993 and 21 June 1997 engaged in criminal sexual activity with [RMcG]" thereafter murdered his mother in the belief that she intended to report the activity. The second accused pled guilty on 17 June 1998 to inter alia shameless indecency and a contravention of section 4(3)(a) of the Misuse of Drugs Act 1971 relating to [RMcG]. The second accused was sentenced to a cumulo sentence of 8 years imprisonment. [RMcG] has been included in the Crown list of witnesses in the present case. It was submitted that charge (2) as libelled prejudices the second accused as he is unable to challenge the narration that he engaged in sexual activity towards [RMcG] standing his conviction in 1998 and in particular his plea of guilty. Any attempt to challenge that or explore matters with the witness [RMcG] will result in the disclosure of his previous conviction which is highly prejudicial to the second accused standing the sexual nature of the conduct libelled in the remaining charges. In addition the Crown can found on the fact that no challenge is taken to that part of the libel in charge (2). The inability of the second accused to challenge that narration will result in the jurors forming a view as to the Minuter's acceptance of "criminal sexual activity" towards a boy then aged between 9 and 13 years which will have a prejudicial effect on their consideration of charges (4) to (18) on the indictment. In addition if the jury formed an adverse view of the Minuter's credibility regarding charge (2) and find him guilty of the murder charge the jury could hardly fail to be prejudiced against the Minuter by the reference to criminal sexual activity towards [RMcG] and the offence in charge (2) in their consideration of the remaining charges.

[130] Although there is a reference in charge (2) to criminal sexual activity as the motive for the offence the character of charges (1) to (3), those charges are not similar to the remaining charges on the indictment in respect that the first three charges are not charges of a sexual nature. The circumstances of charges (1) to (3) are also not related to the remaining charges on the indictment. Charges (1) to (3) are not successive stages of a course of conduct and are not closely allied to the remaining charges.

[131] In the course of his submission, Mr Carroll also pointed to the difficulties which would arise if the second accused sought to dispute or challenge the averment of "criminal sexual activity". The fact of previous conviction was likely to be referred to even under the most skilful of cross examination of Crown witnesses. In any event it was the evidence of offending (rather than the fact of conviction) that gave rise to the prejudice. The charges should be separated.

Submissions for the Crown - Separation of Charges

[132] The principles to be applied by the court when considering a motion for separation of charges were not in dispute. They were outlined by the Advocate along the following lines.

[133] The principles are to be found in an examination of the case of Bickerstaff v HMA 1926 JC 65 and Reid v HMA 1984 SLT 391. These essentially follow the view of the institutional writer, Hume. II at page 173, referred to in Alison II at page 238. Other cases, Brown v HMA 1992 SCCR 63 and Jackson v HMA 1992 SLT 370 show a reinforcement of these principles and point to examples of ways in which they ought to be applied.

[134] I should add that the Advocate Depute also submitted that the approach taken in McGuinness v HMA 1937 JC in relation to murder charges was not consistent with these principles nor with other aspects of modern practice. For completeness, I will record the Advocate Depute's submissions (below) but, as emerged during the debate, the accused in the present case did not seek to advance any argument based on McGuiness. That particular argument can be put to one side for present purposes.

[135] In HMA v Bickerstaff 1926 JC 65 (a full bench decision) the accused was charged with (1) indecent assault upon a young girl and (2) indecent assault of another young girl. Both offences were said to have occurred on the same day and in the same town. The Crown argument is at page 71 where it is recorded that; "the crimes libelled were both of the same class and were closely associated in point of time and locality. Evidence on one charge might accordingly be relevant evidence upon the other".

[136] At page 75 the Lord Justice General, "saw the circumstances as an example of the principle that offences which were so closely connected in time, circumstances and character ought properly be tried together. In light of the recognition that these charges were so clearly connected this case may not provide much assistance in answering the broader question of how one approaches a case in which there is less of a connection or none at all". At page 78 the Lord Justice Clerk saw the question as always being one of circumstance and referred to the course being suggested as highly exceptional.

[137] At page 79 Lord Hunter acknowledged that the court had the right to separate charges if on the face of the indictment it appeared that there be a prejudice to the accused. However he went on to explain that the case before him was no ground for separation because crimes charged were so connected in time and in their nature to justify their association under one indictment. Implicit in what Lord Hunter says is that even if the Court is of the view that there might be a degree of prejudice to the accused the Court still ought to refuse the motion if the crimes charged are interconnected as to justify their association. This is in fact implicit in what the Lord Justice General said because the normal rule in practice is to charge all matters together. Accordingly crimes which are closely connected would fall under the normal rule.

[138] Lord Sands at page 80 thought that separation would have been entirely contrary to practice. Charges are separated very rarely and only in exceptional circumstances.

[139] Accordingly, as the Advocate Depute pointed out, one can see in the judgments recognition that there are two separate principles operating in tandem. The normal rule of practice is that all outstanding charges ought to be brought together in the one indictment. Even where there may be a degree of prejudice to the accused the motion for separation ought not to be granted if there is "an appropriate connection" between the various charges.

[140] In that full bench decision, concerning a charge of murder, the Advocate Depute noted that there was no suggestion that murder cases ought to be treated differently from any other. The emphasis throughout the decisions is what is perceived to be the normal practice, that separation of charges would be a highly exceptional step.

[141] The Advocate Depute also referred to Hume and Allison.

[142] In the case of Reid v H M Advocate 1984 SLT 391 the court comprised Lord Justice General Emslie, Lord Justice Clerk Wheatley and Lord Dunpark. In that case the accused faced a charge of rape in October 1983 and charges of theft by housebreaking and wilful fire-raising perpetrated in February 1984. The trial judge refused a motion for separation of charges.

[143] The submission for the appellant was that the jury's assessment of the accused would be bound to be affected by an adverse view of his credibility on charge (1) and that accordingly he would suffer prejudice. The submission also included the proposition that the Crown did not suggest that the evidence in relation to charge (1) had any relevance to the remaining charges (page 392).

[144] The Court began by emphasising how it had always been part of our practice to try all outstanding matters against the accused at one time (page 392). The test they posed was this "It is only where a material risk of real prejudice to the accused can be demonstrated that a trial judge will normally be justified in granting a motion for separation of charges".

[145] The court went on to point out that it will not do to suggest that such a risk arises merely on account of charging different kinds of crimes committed at different times in different places. The most important comment, according to the Advocate Depute, is the following: "If in any case it appears prima facie that it might be prejudicial to an accused to stand trial on a number of charges at the same time it will be open to a trial judge to refuse a motion for separation of charges if it should also appear that the charges are connected in time, place and circumstances or that the evidence in relation to one charge, for example, may be relevant in relation to other charges"

[146] One sees here a contradiction of the suggestion that there is a requirement on the part of the Crown to remove any risk of prejudice. Accordingly, so argued the Advocate Depute, unless there is a reason in principle for treating murder any differently from other cases the approach in McGuinness would seem to be flawed.

[147] It is worth examining the case of Davidson and Another v HMA 1981 SCCR 371. Lord Justice General Emslie delivered the opinion of the court. In this case the two accused faced a charge of armed robbery together and a separate charge of breaking in to lockfast places along with another accused. No link was obvious from the report and in this case. The Court emphasised that it is a matter for the trial judge, pointing out that the Court of Appeal will only interfere if a palpable miscarriage of justice has taken place. The circumstances can be seen by reading the rubric at page 371 and then by looking at page 376 of the report. It is of interest to note, according to the Advocate Depute, that the court accepted that a degree of prejudice can be the consequence of a failure to separate and that such prejudice can be tolerated.

[148] In this case and the case of Reid the emphasis is on the norm and the correct order of analysis. The starting point is not to question why various charges are brought together, nor is the starting point a search for an evidential or other connection between the charges by way of justification. The starting point is for the accused to identify the way in which he will be prejudiced by facing trial on the particular accumulation of charges. If this is the correct approach, as a matter of law and the test is as described in the case of Reid, it cannot be said that there is a different test for cases which involve murder and those which do not.

[149] In Brown v HMA 1992 SCCR 59 the court stated that it was "important from this to note that charges will be separated only in exceptional circumstances and then only upon a consideration of the risk of prejudice to the accused. And it is only if the risk of real prejudice to the accused is so material, or so obvious or so grave that the granting of a motion for separation of charges is likely to be justified. This can be seen from LJG Emslie's comments on this point in Reid. Now there is no doubt that a test which is described in these terms will not be easily satisfied".

[150] Reference was made to Jackson v HMA 1992 SLT 370.

[151] The Advocate Depute then turned to look at the single judge decision McGuinness to see where it stands against the train of appeal court authority from Bickerstaff through to Brown. In HMA v McGuiness 1937 JC 37 the accused was charged with two assaults on 3 October 1936, the second of which included the use of a knife. He was also charged along with another of two further assaults on 25 October both of which also included the use of weapons including a knife. One of these assaults included the charge of murder. Counsel for the accused moved for a separation of the first two charges on the basis that (page 38); "the two groups of charges were unconnected and it would to the prejudice of his client if they were tried together in respect that the jury would approach the second group of charges, especially the charge of murder, with evidence as to the charges of assault present in their minds." The Advocate Depute suggested that this was precisely the sort of proposition that Lord Emslie said just would not do as a basis for suggesting that there existed a material risk of prejudice.

[152] In McGuiness the charges were in certain aspects connected in circumstances and character but was not prepared to accept that the evidence led in charges 1 and 2 was relevant to charges 3 and 4 and he did not press the contention that the charges should be tried together. At page 38 trial judge LJC Aitchison, who was not a judge in Bickerstaff, says that the law is as set down in Bickerstaff and that the test is: "whether it is fair to the person accused to put a particular accumulation of charges in one indictment". This is not a test that is apparent from the face of any of the opinions in Bickerstaff but might be lifted from part of what LJG Clyde said. Certainly it is not consistent with the test set down in Reid and reinforced in subsequent cases.

[153] The trial judge in McGuinness goes on (at page 39) to set out the following reasoning: "Wherever murder is charged I am quite clear that it is the duty of the Court to prevent any risk of prejudice which might arise if the whole of the charges in the indictment were tried together. If there is any risk of prejudice it is the clear duty of the court to separate the charges".

[154] The Advocate Depute asked "Where does this jurisprudence for special treatment in murder cases come from?" It is not from Bickerstaff. Why can the court not satisfy all duties owed by direction?

[155] The selection of murder cases as requiring special treatment is inconsistent with our general understanding of the concept of a fair trial. The Court's duty is to secure a fair trial. The Court does not secure fair trials and especially fair trials. Nor has the Court ever countenanced the notion that in non-murder cases an accused is open to being denied a fair trial because of an accumulation of charges, even where those charges are not interconnected. Indeed in Reid there was an evidential link between charge 1 and the others. If the approach in McGuinness was correct why would this not be the case whenever the suggestion of prejudice arose? Why would it be limited to prejudice arising out of an accumulation of charges?

[156] The courts are familiar with the suggestion that prejudice to an accused can arise in a number of ways. For example - cases involving pre-trial publicity. If the approach of the trial judge in McGuinness was the correct one might expect that his test would be replicated in the test relating to pre-trial publicity prejudice.

[157] Equally it can happen that during the course of a trial something is said by a witness, without invitation, about the accused's character or previous record. The proposition is usually that the accused has been prejudiced by this comment. However, the court does not proceed to apply the broad test contemplated by the trial judge in McGuinness. The emphasis in such situations is on the question of whether the accused can still receive a fair trial. But it is not as simple as saying that if there is any risk of prejudice the court must desert the diet. One sees this clearly in the case of Platt v HMA 2004 SCCR 468 at 472.

[158] The issue of separation was also looked at recently in the case of Mitchell v HMA 2008 SCCR 469. The appropriate section from the trial judge's report is also produced (Document 15 on the Crown list).

[159] In summary, in this case, the Crown contended:

1.     that no prejudice has been identified by the accused;

2.     that this case should be dealt with in the normal way in that all outstanding charges should be tried together;

3.     that, in the event that this court considers it necessary, the Crown further contends that there is an evidential link between all the charges on the current indictment; and

4.     that the motions for separation ought to be refused.

[160] As noted above, although this case in one which includes the crime of murder, it was not suggested by the accused that this case should not be approached differently to any other case where there is an accumulation of charges on indictment.

Decision in relation to Separation of Charges.

[161] An important feature of this particular indictment is charge (2) as libelled.

[162] When considering the wording of charge (2) it might be helpful to bear in mind the case of Nelson v HMA 1994 SCCR 192. In that case Lord Justice General delivered the opinion of the court of 5 judges and said (at page 203C-D):-

" ... the rule may more appropriately be restated in these terms. The Crown can lead any evidence relevant to the proof of a crime charged, even though it may show or tend to show the commission of another crime not charged, unless fair notice requires that that other crime should be charged or otherwise referred to expressly in the complaint or indictment. This will be so if the evidence sought to be led tends to show that the accused was of bad character and that other crime is so different in time, place or character from the crime charged, that the libel does not give fair notice to the accused that evidence relating to that other crime may be led, or if it is the intention as proof of the crime charged to establish that the accused was in fact guilty of that other crime."

[163] Nelson v HMA explains the way in which charge (2) has been framed - so as to give fair notice. However Nelson does not deal with the situation in the present case which involves a question of separation of charges in relation to an indictment which contains charge (2).

[164] In relation to that question, separation of charges, there was no real dispute as to the test to be applied which can be traced back to Hume and HMA v Bickerstaff 1926 JC 65 as outlined above.

[165] Reid v HMA 1984 SLT 391 also provides a useful outline of the principles to be applied when considering the question of separation. In particular Lord Justice General Emslie, who delivered the opinion of the court, said inter alia (at page 392):

"We have no hesitation in refusing this appeal. The risk of prejudice to the appellant is neither so obvious nor so grave that the trial judge's refusal to grant the motion was a palpable failure of justice. In our opinion the trial judge erred in not the slightest respect in refusing to exercise his discretion in favour of the appellant and we are fully persuaded that his reasons for his decision were perfectly sound reasons which commend themselves to us. For centuries it has been the practice to try all outstanding charges against an accused on a single indictment at the same time. It is pointed out in Hume, ii, 172: 'This is allowed, not only for the sake of doing justice as expeditiously, and with as little expense and trouble as may be to the public, but also (provided it is kept within certain bounds) for the advantage of the pannel; that he may be relieved of a long confinement, and of the anxiety and distress, which would attend a series of successive trials.' It is only where a material risk of real prejudice to the accused can be demonstrated that a trial judge will normally be justified in granting a motion for separation of charges and, let it be said at once, it simply will not do for an accused to contend, as was done in this case, that such a material risk of real prejudice arises merely because the charges in an indictment are of different kinds of crime committed at different times in different places and circumstances. If that proposition were to be accepted it would have to be accepted also that several charges of crimes of the same kind, e.g. theft by housebreaking committed at different times and places and in different circumstances must carry an even greater risk of prejudice and should never be tried together. Experience however shows that under proper directions juries are well able to consider each charge in an indictment separately and to demonstrate by their verdicts that they have done so. We have only to add that if in any case it appears prima facie that it might be prejudicial to an accused to stand trial on a number of charges at the same time it will be open to a trial judge to refuse a motion for separation of charges if it should also appear that the charges are connected in time, place and circumstances or that the evidence in relation to one charge, for example, may be relevant in relation to other charges."

[166] The position is summarised in Renton and Brown's Criminal Procedure at paragraph 9-52 as follows:-

"Where there is more than one charge the accused may move the court to order that the counts be tried separately. It is in the discretion of the court to grant or refuse the motion. The test to be applied in every case is whether it is fair to the person or persons accused to put a particular accumulation of charges in one indictment. The motion should only be granted where there is a material risk of real prejudice to the accused if the charges were to be tried together."

[167] The dispute in this case centres around, not the test, but what the outcome should be when it is applied to this particular indictment - containing charge (2).

[168] As mentioned above, the accused did not argue that a different (less onerous) test might be applied when considering a charge of murder. To that extent the Advocate Depute sought to rebut an argument that she was not required to meet and I shall leave that question to one side. It was common ground that the court was entitled to have regard to the nature of the charges in issue.

[169] I should also record that the Advocate Depute was prepared to give an undertaking that at trial the Crown would not seek to adduce evidence of the fact of conviction (as opposed to evidence of offending).

[170] I have taken into account everything that has been said on behalf of the accused and the Crown and I have reached the following conclusions.

[171] I shall grant the motion to separate charges (1), (2) and (3) from the remaining charges on the indictment.

[172] It is just and appropriate to separate those charges - essentially for the reasons outlined by counsel for the accused.

[173] I appreciate that separation is an exceptional course. I have borne in mind the various factors relied upon by the Crown by way of opposition but I was satisfied that there was a material risk of real prejudice to the accused if the charges in this particular indictments were to be tried together.

[174] Charge (2) as libelled is likely to prejudice charge (4) onwards. Charge (2) includes an averment that the accused "engaged in criminal sexual activity" for which the accused have already been convicted. Subsequent charges relate to criminal sexual activity.

[175] In many cases showing a link between charges can assist the Crown in resisting separation - if the link justifies their association- but that is not the position in relation to this particular indictment. On the contrary, it is the link between the averment of "criminal sexual activity" in charge (2) and the later charges of criminal sexual activity which gives rise to prejudice in relation to those other later charges.

[176] The undertaking given by the Crown not to seek to adduce evidence of the fact of conviction (as opposed to evidence of offending) does not meet the underlying concern - which relates to the averments and the evidence of offending which form an integral part of charge (2).

[177] The problems and the prejudice anticipated in this case could not be dealt with adequately by the trial judge during the course of the trial or by directions to the jury.

[178] I can see no satisfactory alternative to granting the motion for separation in relation to this indictment.

[179] Accordingly, charges (1), (2) and (3) will be separated from the remaining charges.

[180] I am grateful to parties' representatives for their assistance.