In The Devolution Minutes By Douglas Fleming In The Cause Of Her Majesty's Advocate V. James Cameron And Douglas Fleming
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2006] HJC 07 |
| Court | High Court of Justiciary |
| Date | 07 September 2006 |
| Published date | 28 September 2006 |
| HIGH COURT OF JUSTICIARY [2006] HJC 07 | |
|
in the Devolution Minutes by DOUGLAS FLEMING In the cause HER MAJESTY'S ADVOCATE against JAMES CAMERON and DOUGLAS FLEMING ______ |
For the Minuter: Shead, Richardson; Russell & Aitken, Solicitors
For the Crown: Angela Graham AD; Crown Agent
7 September 2006
Introduction
[1] The Minuter is Douglas Fleming. On 12 August 2005 he appeared at a preliminary hearing at Glasgow to answer an indictment charging him and his co-accused, James Cameron, with contravention of Section 170(2) of the Customs & Excise Management Act 1979 and Section 4 (3) (b) of the Misuse of Drugs Act 1971. The allegations relate to the period between 1 September 2000 and 27 September 2002. The Minuter was represented by Mr Shead, Advocate and Mr Richardson, Advocate. The preliminary hearing was continued to 26 August 2005. On 26 August 2005 Mr Shead, on behalf of the Minuter, explained that there were three preliminary issues (canvassed in four separate Minutes) which he wished to raise. All of them required to be determined before a trial diet could be appointed. What then followed, at a number of continued preliminary hearings, were attempts to determine these issues expeditiously and effectively. It is a matter of no satisfaction that so unsuccessful was I in my attempts, that when the case called before me on 17 July 2006, after many intervening hearings, none of the preliminary issues had yet formally been determined.
[2] This Note is concerned with the issue of delay, as canvassed before me first, on 3 and 4 October 2005 and again on 17 July 2006. Before turning to the argument it will be necessary to set out the history of the case in some detail, both the history before and after 12 August 2005, but first, in order to provide a context and to explain the procedure that has been followed, it is convenient briefly to summarise the three issues, of which delay is one, introduced by way of Minute and listed by Mr Shead at the hearing on 26 August 2006. I shall also mention a further issue, the raising of which has had an impact upon the progress of the proceedings.
The three preliminary issues
The first preliminary issue: competency of the indictment
[3] This issue arises from the Minuter having first appeared on petition on 1 October 2002 and yet, for reasons to which I shall return, having only been served with the present indictment on 12 July 2006 citing him to attend the preliminary hearing on 12 August 2006.
[4] The Crown required to apply for extension of the 11-month (until 12 August 2005) and 12-month periods (until 12 September 2005) provided, respectively, by paragraphs (a) and (b) of section 65 (1) the Criminal Procedure (Scotland) Act 1995, as amended by the Criminal Procedure (Amendment) (Scotland) Act 2004. These applications, which were opposed, came before Temporary Judge Matthews QC. On 9 August 2005 Temporary Judge Matthews he granted both applications. That decision was appealed by the Minuter. During the hearing before me on 17 July 2006 this was referred to as the "section 65 appeal". The section 65 appeal was heard in January 2006 and advised on 30 August 2006. The neutral citation of the decision of the Appeal Court is in Fleming v HMA [2006] HCJAC 64. As at the date of the most recent hearing before me, it was not known when the section 65 appeal would be determined.
[5] The contention for the Minuter before me was that because he had been cited to a preliminary hearing and not to a trial diet at a duly constituted sitting, the indictment with which he had been served was incompetent, having regard to the terms of the transitional provisions contained in the Criminal Procedure (Amendment) (Scotland) Act 2004 (Commencement, Transitional Provisions and Savings) Order 2004, SSI 2004/405.
[6] I heard argument on the competency of the indictment on 31 August 2005. On 7 September 2005 I made an Opinion available what is headed up as an Opinion but perhaps more properly should be regarded as a Note, in which I indicated, for the reasons there set out, that I proposed to repel the preliminary plea to the effect that the indictment is a nullity or otherwise incompetent. However, for reasons to which I shall return when narrating the procedural history of the case, I did not pronounce an interlocutor formally repelling the plea.
[7] In determining the section 65 appeal the Appeal Court gave its opinion on this preliminary issue. It held the indictment to be competent.
The second preliminary issue: unreasonable delay in bringing to trial
[8] I have already observed that the Minuter first appeared on petition on 1 October 2002. He was then remanded in custody. He appeared again on 8 October 2002 when he was fully committed and again was remanded in custody. However, an application to extend the 80 and 110 day time limits having been refused, he was released from custody on 21 January 2003. After a procedural history to which I shall return, he went to trial on 13 September 2004 at Glasgow High Court, together with his then co-accused, Finbar Matthew Brady. That trial was deserted on 28 September 2004 in circumstances which had to do with the use or possible use of the Remote Viewing Room (RVR) within the High Court building during the course of the trial and during adjournments. The trial judge deserted the trial simpliciter. The Lord Advocate appealed against that decision by way of Bill of Advocation. On 24 March 2005 the Appeal Court recalled the order of the trial judge and substituted an order for desertion pro loco et tempore. That decision is reported as HMA v Fleming 2005 SCCR 324. In his opinion the Lord Justice-Clerk explained that there was no need to grant the Crown express authority to re-indict. The power to re-indict was implied in the substituted order. The Lord Justice-Clerk further observed that it would be for the Lord Advocate to decide, in the light of available information, whether or not to re-indict. If he did decide to re-indict, if he was to proceed to trial he would require to apply for, and obtain, an extension of time under section 65 of the 1995 Act. On 21 June 2005 an application was made directly to the Appeal Court for an extension of the 12-month period. The competency of this was questioned, no indictment having been served since desertion of the trial. The Crown withdrew its application. It then made the application for extension which was granted by Temporary Judge Matthews.
[9] Notwithstanding the extensions of the time-bar, it is the contention of the Minuter, having regard to the history of these proceedings, that the Lord Advocate has no power further to insist with this prosecution in that to do so would be incompatible with the Minuter's right to a fair trial within a reasonable period of time, as guaranteed by Article 6 (1) of the European Convention on Human Rights.
[10] I heard argument on the issue of delay in bringing the Minuter to trial within a reasonable period of time at a continued preliminary hearing on 3 and 4 October 2005. At that time I had an expectation of being able to determine not only the second but also the third preliminary issue within a relatively short period of time. I therefore did not issue a Note nor pronounce an interlocutor. On 11 July 2006 the Minuter lodged a further devolution Minute in which it was contended that (irrespective of what might have been the position in October 2005) the absence of prospect of a trial before September 2006 meant that for the Lord Advocate to continue with the proceedings would result in a contravention of the Minuter's rights under article 6. Mr Shead drew my attention to this further devolution Minute at the continued preliminary hearing on 17 July 2006. Despite the contention of the Advocate Depute that because the Crown was not in a position completely to justify such lapse of time as had occurred subsequent to October 2005, it was not appropriate to hear full argument, I invited submissions on the delay issue. I record these submissions, together with those made on 3 and 4 October 2005, and my decision on them, later in this Note.
The third preliminary issue: the Remote Viewing Room: unfairness and oppression
[11] This issue arises out of events at the trial of the Minuter before Lord McEwan in Glasgow between 13 and 22 September 2004 to which I have already referred and which, as they were then understood, are narrated in the opinion of the Lord Justice-Clerk which is reported as HMA v Fleming supra. Put shortly, it would appear that during the trial there were transmissions of sound and vision to the Remote Viewing Room at times when the defence were not aware that this was happening. The Minuter is concerned to protect the confidentiality of any discussions with his legal advisers. He argues that because transmissions took place while such discussions were taking place there has been a violation of his rights as guaranteed by Articles 6 (3) (c) (c) and 8 of the European Convention on Human Rights and that therefore the Lord Advocate cannot proceed with the case, having regard to the terms of section 57 (2) of the Scotland Act 1998. That contention is advanced in a devolution Minute. The Minuter also contends, under reference to a separate Minute (with the result that two Minutes address this issue), that for the Lord Advocate to insist in this prosecution would be oppressive and unfair as a matter of common law and therefore the case should not be allowed to proceed.
A further issue: recovery of documents
[12] A preliminary hearing was fixed for 24 October 2005 and subsequent days for the purpose of resolving the third preliminary issue after the leading of such evidence as the parties wished. On 19 October 2006 a petition for the recovery of documents was lodged on behalf of the Minuter. In circumstances that are referred to later in this Note, I heard and refused this application. That decision was...
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