Her Majesty's Advocate V. Thomas Mcginley
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Neutral Citation | [2006] HCJ 09 |
| Court | High Court of Justiciary |
| Date | 30 October 2006 |
| Published date | 31 October 2006 |
| HIGH COURT OF JUSTICIARY [2006] HCJ 09 | |
| OPINION OF LORD BRAILSFORD in the cause HER MAJESTY'S ADVOCATE against THOMAS McGINLAY ___________ |
30 October 2006
[1] The trial in this case commenced on 19 September 2006 against Andrew Beaton, Ian McGinlay and Thomas McGinlay ("TM"). All three were charged with the murder of Gerard Canning in Hood Street, Clydebank on 21 March 2005. TM was represented by Mr Boag-Thomson, Q.C. and Mr Maclaughlin, Advocate. On 9 October, the fourteenth day of the trial, both Andrew Beaton and Ian McGinley pled guilty to charges of assault. Mr Boag-Thomson sought, and was granted, an adjournment to allow the former co-accused to be precognosced on behalf of TM. Both before and after the adjournment Mr Boag-Thomson moved that the court should, in the interests of justice, desert the trial pro loco et tempore. On both occasions I refused that motion. After I had refused that motion for the second time Mr Boag-Thomson indicated that for professional reasons neither he nor Mr Maclaughlin could continue to represent TM. I interject to observe that as a result of information I have subsequently heard in the course of the protracted and difficult proceedings that have followed Mr Boag-Thomson's departure it has become apparent that Mr Boag-Thomson was well justified in declining to act further for TM.
[2] Following Mr Boag-Thomson's withdrawal an adjournment was sought, and granted, to enable alternative counsel to be instructed. After a delay of three days Mr Lamb, Q.C. and Mr Smart, Advocate appeared on behalf of TM on 12 October. Initially Mr Lamb moved me, the third occasion such a motion had been made on behalf of TM, to desert the trial diet. I heard argument and again refused the motion. Mr Lamb then moved me for time to prepare for trial. He initially requested transcripts of all evidence heard to date. Whilst it is not a normal part of Scot's criminal procedure to provide parties with transcripts of evidence during trial I perceived no objection in principle to this course. Enquiry by my clerk with the agency which transcribes court tapes revealed however that it takes three days to transcribe one day's court evidence. Even allowing for Mr Lamb's concession that he did not require all the evidence transcribed and would be content with transcripts of the evidence of three witnesses the task of preparing transcripts would have required approximately ten days. I considered that to be an unwarranted and unnecessary delay. As an alternative, and following argument and discussion on the point, I indicated to Mr Lamb that the court was prepared to make available to him tapes of the evidence of the witnesses he had identified. 12 October, the date of this stage of proceedings, was a Thursday. The proposal I made was an adjournment until Tuesday 17 October, that is four clear days in which to listen to the tapes and prepare to continue the trial. Having made the necessary arrangements with the court administration I indicated that the courtroom, tapes and recording equipment would be made available to Mr Lamb and Mr Smart over the weekend of 14-15 October. He would be able to hear the tapes, repeating them or parts of them as often as he wished. Only my macer would be present. I also reminded Mr Lamb that in addition to this facility he would have available to him the notes of evidence made by Mr Maclaughlin who had been present throughout all the evidence thus far heard and the notes taken by or on behalf of his instructing agent. I was also informed that the Crown had informally offered to make available to Mr Lamb the Crown junior's notes. I was of the opinion that armed with all that information, and given the timescale I suggested Mr Lamb would be properly able to conduct the defence of TM. Mr Lamb accepted that position and accordingly I adjourned until Tuesday 17 October.
[3] When the court re-convened on 17 October Mr Lamb informed me that TM had dispensed with his services and those of his junior Mr Smart. Following their departure the court was addressed by TM. He indicated that he did not wish to represent himself but considered that he regarded Mr Lamb as improperly prepared to conduct his defence. In particular at consultation the previous afternoon, 16 October, Mr Lamb had been unable to deal with certain points arising from the evidence that he, TM, had put to him. TM's position was that only by having transcripts of all the civilian witnesses so far led in evidence, the evidence of the police officer who had interviewed a witness Joseph Bradley and the paramedic witness could someone be adequately prepared to defend him. I asked him if he was making a motion for the tapes of the witnesses he had identified to be transcribed. He indicated he was. At that stage I retired to consider the position.
[4] I formed the view that I was faced with a difficult point in the law relating to criminal practice. An accused person had dispensed...
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