Her Majesty's Advocate V. William Wilson And Peter Gerrard Cairns And David Wilson And Garry Connell Wales And Ronald Alexander Mccarlie And Timothy Harris
| Jurisdiction | Scotland |
| Judge | Lord Reed |
| Court | High Court of Justiciary |
| Date | 15 June 2001 |
| Published date | 07 August 2001 |
| HIGH COURT OF JUSTICIARY | |
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| OPINION OF LORD REED in the cause HER MAJESTY'S ADVOCATE Pursuer; against WILLIAM WILSON, PETER GERRARD CAIRNS, DAVID WILSON, GARRY CONNELL WALES, RONALD ALEXANDER McCARLIE and TIMOTHY HARRIS Defenders: ________________ |
Crown: Turnbull Q.C, A.D.; Crown Agent
First Accused: Stewart; Levy & McRae
Second Accused: Toner; Lockharts
Third Accused: Livingstone; Fleming & Reid
Fourth Accused: Bovey Q.C., Moir; O'Donnell Vaughan
Fifth Accused: Brady Q.C., Thom; Gillespie Gifford & Brown
Sixth Accused: A.P. Campbell Q.C., Brown; A. C. White
15 June 2001
[1]The six accused in the present case face a number of charges involving allegations of sexual abuse of two young children, a boy and a girl. The sexual abuse alleged includes rape and anal penetration. In particular, the first accused faces charges involving the rape and anal penetration of the girl (charges 1, 5, 7, 11 and 13 on the indictment), a charge of non-penetrative sexual abuse of the girl (charge 9), and charges involving anal penetration of the boy (charges 2, 6, 8, 10, 12 and 14 on the indictment). The fourth accused faces one charge of non-penetrative abuse of the girl (charge 9) and one charge involving anal penetration of the boy (charge 10). The other accused face similar charges.
[2]The accused have been indicted for trial in the High Court of Justiciary on 25 June 2001. On 11 May 2001 the Lord Advocate gave notice to the accused, under section 67 of the Criminal Procedure (Scotland) Act 1995, that at the trial he intended with the leave of the court to examine two witnesses who had not been included in the list of witnesses served on the accused along with the indictment. Those witnesses were Dr Jacqueline Mok, a consultant paediatrician at the Royal Hospital for Sick Children in Edinburgh, and Dr Helen Hammond, a consultant paediatrician at St. John's Hospital, Livingston.
[3]Thereafter two minutes were lodged on behalf of the fourth accused. One of these gave notice of intention to raise a devolution issue, the devolution issue being expressed in the following terms:
"That by seeking to do this [scil by seeking the leave of the court to examine Dr Mok and Dr Hammond] the Lord Advocate has violated the minuter's right to a fair trial under Article 6(1), 6(3)(c), 6(3)(d) of the European Convention on Human Rights. Specifically the minuter's right to confidentiality and the right to prepare his case without being directly or indirectly inhibited from carrying out full and proper preparations for his defence in the context of an adversarial system of justice."
The second minute gave notice, under section 72 of the Criminal Procedure (Scotland) Act 1995, that the fourth accused sought a preliminary diet to resolve the issue raised in the devolution minute. Minutes in similar terms were thereafter lodged on behalf of the first accused.
[4]The minutes came before me at a preliminary diet held on 8 June 2001. At the commencement of the hearing, counsel for the fourth accused (who was not the counsel who had been instructed for the trial and had been involved in the preparation of the defence) moved that I should make an order under section 4(2) of the Contempt of Court Act 1981 postponing the publication of any report of the hearing until the conclusion of the proceedings against the fourth accused. Addressing me in support of the motion, counsel referred me to an article published in the Scotsman on 28 May 2001. One of the cases mentioned in the article, in columns 4, 5 and 6, was the present case. The article indicated the attitude of that newspaper to the present case. It described the history of the case as "a story of delay and evasion". If jurors read an article suggesting a "cover-up", that impression would be reinforced at the trial by their exclusion from the proceedings when legal points were being discussed. The issues which the devolution notice raised could have been raised at the trial. In that event, they would not have been dealt with in the presence of the jury. Counsel mentioned that an order under the 1981 Act had been made by Lord Carloway at a previous preliminary diet held on 18 April 2001. Lord Carloway had then made an order that the publication of any report of that day's proceedings, insofar as it related to the preparation of the defence and indication of the nature of the evidence which it was proposed to lead at the trial, be postponed until the conclusion of the proceedings. Counsel explained that he would like to know at the outset of the hearing whether or not I was prepared to make an order under the 1981 Act, as my unwillingness to do so might affect his decision whether to proceed with the hearing at all: he might prefer to raise the matter at the trial, when he could be certain that it would not come to the attention of the jury.
[5]In reply, the Advocate Depute observed that the risk of prejudice to the administration of justice was focused by counsel for the fourth accused upon the article published in the Scotsman. It was unrealistic to expect that jurors would recognise the present case from the article. There would have been no need for any order under the 1981 Act in respect of that article. The position would be the same in respect of any future article which discussed the case in the same general way.
[6]I considered that I could not properly take a decision on the motion until the conclusion of the hearing, as it would only be then that I knew what material had emerged which might require to be protected from publication. I indicated however to counsel that I was not persuaded in limine that an order under the 1981 Act was likely to be appropriate. As the court recently made clear in British Broadcasting Corporation, Petitioners, 2 May 2001, section 4(2) contains two requirements for the making of an order. The first is that publication would create "a substantial risk of prejudice to the administration of justice" and the second is that postponement of publication "appears to be necessary for avoiding" that risk. It was not immediately apparent to me that publication of a report of the hearing would give rise to a substantial risk of prejudice to the administration of justice. In particular, I was not so persuaded on the basis of the article to which my attention was drawn. That article was a feature article, rather than a news report, concerned with the treatment by the legal system of the victims of child sexual abuse. The article was concerned with the ways in which a focus upon the rights of accused persons, and in particular their right to have charges against them determined within a reasonable time, could conflict with the interest of victims to have their abuser convicted and sentenced. The article seemed to me to be legitimate reporting of a matter of public interest. It did not contain any details which would enable jurors readily to identify the present case as being one of those discussed. It appeared to me to be unrealistic to suppose that that article could conceivably influence a jury's verdict. It was not immediately apparent to me that the matters discussed at the present hearing were likely to be so sensitive that any report of those matters would create any risk of prejudice to the administration of justice. Even if there were such a risk, it seemed to me that it would be likely to be possible to eliminate the risk by the usual directions to a jury, and if necessary by giving the jury special directions tailored to deal with the particular circumstances. The motion was not renewed at the conclusion of the hearing, but it would be fair for me to proceed on the basis that it was not departed from. Having listened to the various matters discussed, I remained of the view that there was no basis for making the order requested in the circumstances of this case.
[7]In relation to the substance of the present matter, each of the minutes on behalf of the first and fourth accused contains the following averments:
"That on 7 May 2001 acting on confidential instructions from agents acting on behalf of the minuter, Dr Jacqueline Mok and Dr Helen Hammond attended at [a hospital] and carried out a medical examination of [the boy and the girl]. The purpose of instructing the said doctors was to obtain advice and guidance in relation to the further preparation and conduct of the defence, including inter alia the conduct of cross-examination by defence counsel at trial. In order to properly instruct the said doctors information, in the form of defence precognitions and documents, was imparted to them. The said doctors were expressly instructed as advisers and were informed of and accepted an obligation to retain, as confidential, all of the information and findings obtained as a result of their instructions. No decision had been made to cite the said doctors as defence witnesses and no such citation has occurred."
Addressing me on behalf of the fourth accused, counsel informed me that Crown productions 12 and 13 were reports by Dr Charles Shepherd, a paediatrician. These reports were to the effect that upon examination of the girl she was in a condition consistent with the kind of abuse alleged against the accused. Dr Mok was a lead paediatrician in child protection at the Royal Hospital for Sick Children in Edinburgh. She was identified as a potential expert in relation to the present case. An informal approach was made and, as a result, counsel for the fourth accused (i.e. counsel instructed for the trial) consulted with Dr Mok on 18 April 2001. The purpose of the consultation was to discuss her involvement as an expert in the defence case. At the consultation senior counsel explained to Dr Mok that she would be in receipt of confidential information, and she agreed to keep such information confidential. Senior counsel then explained to Dr Mok the accused's defence and focused on aspects of the Crown case which concerned the defence,...
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