Her Majesty's Advocate V. William Hugh Lauchlan+charles Bernard O'neill
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2010] HCJ 3 |
| Court | High Court of Justiciary |
| Date | 17 July 2009 |
| Published date | 23 October 2012 |
| 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 200 9 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,...
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