In The Minute By Douglas Fleming In The Cause Her Majesty's Advocate V. James Cameron+douglas Colin Fleming
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2007] HCJ01 |
| Court | High Court of Justiciary |
| Date | 05 January 2007 |
| Published date | 10 January 2007 |
| HIGH COURT OF JUSTICIARY [2007] HCJ01 | |
| OPINION BY LORD BRODIE In the Minute by DOUGLAS FLEMING in the cause HER MAJESTY'S ADVOCATE against JAMES CAMERON AND DOUGLAS COLIN FLEMING ________________ |
Minuter: Shead, Richardson; Russel & Aitken, Solicitors
Crown: Grahame, AD, Brabender; Crown Agent
5 January 2007
Introduction
[1] The Minuter is Douglas Fleming. On 12 July 2005 he was served with an indictment at the instance of Her Majesty's Advocate charging him and his co-accused, James Cameron, with offences in relation to the importation and supply of controlled drugs.
[2] The Minuter has previously been indicted in respect of substantially the same charges but with a different co-accused, Finbar Brady. The Minuter and his then co-accused went to trial on that earlier indictment, before Lord McEwan and a jury, at Glasgow. The trial began in Court 3 in the High Court Building in the Saltmarket on 13 September 2004. Evidence was led until 22 September 2004 when those representing the Minuter discovered that there had been unauthorised transmission of the proceedings to a room in another part of the building (the Remote Viewing Room, otherwise the "RVR")
[3] On 28 September 2004 the trial was deserted simpliciter on defence motion. The Lord Advocate appealed that decision by way of a Bill of Advocation. The order of the trial judge was recalled by the Appeal Court on 24 March 2005. The decision of the Appeal Court is reported as HMA v Fleming 2005 S.C.C.R. 324.
[4] Following upon a successful Crown application to extend the eleven and twelve month periods provided by Section 65(1) of the Criminal Procedure (Scotland) Act 1995, the Minuter appeared at a preliminary hearing on 12 August 2005. This was continued until 26 August 2005.
[5] The Minuter and his co-accused appeared before me 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 and which required to be determined before a trial diet could be appointed. The first issue related to the competency of the indictment. The second related to delay in bringing the matter to trial. The third related to the unauthorised transmission of what had occurred in court to the RVR during the trial before Lord McEwan in September 2004 (the "RVR issue"). It was agreed by parties that before determining the RVR issue, I should determine the other two preliminary issues raised by the Minuter. I determined the preliminary issue as to the competency of the indictment in terms of my opinion dated 7 September 2005. For reasons that appear from my further opinion dated 7 September 2006 it was only on that date that I was able to determine the preliminary issue relating to delay. I determined the competency and delay issues by dismissing the respective Minutes. That left the RVR issue.
[6] The RVR issue is developed in two Minutes. One of these Minutes is a Devolution Minute, in terms of which it is contended that by virtue of Article 8 and Article 6(3)(c) of the European Convention on Human Rights, the Minuter was entitled to have the confidentiality of any discussions with his legal advisors protected and, further, that the fact that there was a transmission from the court to the RVR while these discussions took place constituted a violation of these rights. It is contended that in the circumstances the conduct of the police and the representatives of the Crown has had the result that a fair trial on the current indictment cannot be guaranteed. Moreover, it is contended that the conduct complained of represents an abuse of process with the result that no fair trial can take place. It is accordingly contended that for the Crown to continue with the prosecution would be for the Lord Advocate to act incompatibly with the Minuter's right to a fair trial, as guaranteed by Article 6(1) of the Convention, and that to do so would be ultra vires having regard to the provisions of Section 57(2) of the Scotland Act 1998. The other Minute is presented at common law, and under reference to Section 6 of the Human Rights Act 1998. Reference is again made to Articles 8 and 6(3)(c) of the Convention. It is the contention in the Common Law Minute that for the Crown to continue with the prosecution would be for the Lord Advocate to act oppressively and therefore the plea in bar of trial should be upheld.
[7] In my opinion dated 7 September 2006 I summarise the history of the proceedings against the Minuter both before and after 26 August 2005. As appears from that summary, a continued preliminary hearing on the RVR issue was originally fixed for 24 October 2005. That hearing did not proceed. An alternative hearing was eventually fixed for 30 October 2006 and subsequent days. That hearing proceeded. It took the form of a hearing of evidence on which I then heard submissions. It was completed on 27 November 2006. It is convenient to note why the hearing took the form it did. When, on 23 September 2004, Lord McEwan heard the defence motion to desert the trial simpliciter the parties tendered a signed statement of agreed facts. The debate then proceeded on the basis of that statement and such further evidence as Lord McEwan had by then obtained. However, by the time the Bill of Advocation challenging Lord McEwan's decision to desert simpliciter came before the Appeal Court, parties had come to differ acutely on the facts: HMA v Fleming supra at 332F. The Crown had had sworn and lodged eleven affidavits from persons involved in the use of the RVR. The Minuter had lodged an affidavit from the senior counsel who defended him at the trial, Mr Derek Ogg QC. In his Answers, the Minuter denied certain material averments in the Bill and made further detailed averments that went beyond the statement of agreed facts that had been before Lord McEwan. The Appeal Court did not attempt to resolve this difference. At paragraph 22 of his opinion (supra at 333B) the Lord Justice Clerk explained:
"We considered that while the fuller information now submitted by the parties would be material to any decision on a plea in bar of a re-trial, the essential question for us was whether the trial judge's decision was justified by the facts that were known to him at the time. We therefore invited the advocate depute to address us on that question, but only in relation to the decision to desert simpliciter."
[8] When the matter came before me it appeared that the parties were still at issue on what were the facts which were material to a determination of the RVR issue. Nor were they at one as to how to go forward. I understood Mr Shead, on behalf of the Minuter, to favour some sort of inquiry which should be conducted by the Crown. The Advocate Depute, on the other hand, was of the view that the issue could be determined (or at least refined) by a debate on the Minutes. Neither course commended itself to me. As I understood the matter, determination of the RVR issue would require a determination, insofar as material, of what had or may have occurred between 13 and 22 September 2004 at the trial before Lord McEwan. Accordingly, if parties were not at one about the material facts, they would have to be found by the court. It was the Minuter who contended that the circumstances were such that there should be no further trial. It therefore seemed to me to be appropriate that he should set out the facts upon which he relied and, if they were not admitted, that he should have the opportunity to prove them: cf HMA v McGill 1997 SCCR 230 at 237D and Brown v HMA 2002 SCCR at 684 at 690B. Accordingly, on 7 September 2005 I appointed the Minuter to lodge a statement of facts and issues between the parties in relation to the RVR issue by 21 September and the Crown to lodge Answers thereto by 28 September. On 4 October 2005 I further continued the preliminary hearing until the following day with a view to determining further procedure. On 5 October I assigned 24 October 2005 and the subsequent four days as a diet of continued preliminary hearing for the purpose of leading evidence, if necessary. As I have already indicated, for reasons which are explained in my opinion of 7 September 2006, that hearing did not take place until 30 October 2006.
The facts
[9] I heard the evidence of the following witnesses: Eileen McGhie, Administrative Officer, Crown Office and Procurator Fiscal Service ("COPFS"), Office Manager, Crown Office (West); James Lynn, DCS, Clerk of Court; Colin Armstrong, former Court Manager, Glasgow High Court; Carol Anne Airlie, Administrative Officer, COPFS; Barclay Williams, Head of Security, Glasgow High Court; Detective Inspector John Cuddihy; Detective Inspector William Miller; John Deeney, Precognition Officer, COPFS; Mary Frances Ralston, Advocate, Crown Assistant; Joanne Cunningham, Procurator Fiscal Depute; Brian McConnachie QC, Advocate Depute; Derek Ogg QC, counsel for the Minuter at the trial; Chief Inspector (formerly Detective Chief Inspector) Richard Casey; and Catriona Bryden, Senior Principal Procurator Fiscal Depute and former High Court Manager, Crown Office (West). At the end of that evidence Mr Shead moved that I further adjourn the hearing in order that attempts could be made to secure the attendance of two further witnesses, the undercover Belgian police officers known only as "Mac" and "Mike". That motion was opposed by the Advocate Depute. I refused Mr Shead's motion for the following reasons. To adjourn the hearing would have resulted in a further lapse of time in a case which originally had come before me in August 2005 and where the Minuter has already complained of delay. It was uncertain as to whether the witnesses would be available and, even were they to be available, what they would have to say. A substantial amount of evidence had been led as to the use of the RVR at the trial in September 2004. If the apprehended mischief was the risk that the...
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