Note Of Appeal Under Section 74(1) Of The Criminal Procedure (scotland) Act 1995 By Her Majesty's Advocate V. David Shields Montgomery And Andrew Coulter
| Jurisdiction | Scotland |
| Judge | Lord Johnston,Lord Eassie,Lord Justice General |
| Court | High Court of Justiciary |
| Date | 14 September 1999 |
| Docket Number | 557/99 |
| Published date | 29 November 2000 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Justice General Lord Johnston Lord Eassie | Appeal No: 557/99 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTE OF APPEAL UNDER SECTION 74(1) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by HER MAJESTY'S ADVOCATE Appellant; against DAVID SHIELDS MONTGOMERY and ANDREW COULTER Respondents: _______ |
Appellant: Menzies, Q.C., A.D., S. Murphy, A.D.; Crown Agent
Respondents: Welsh, Q.C., Johnston; Anderson Strathern: Davidson, Q.C., Monaghan; Ness Gallagher
14 September 1999
In this Crown appeal the respondents are David Shields Montgomery and Andrew Alexander Marshall Coulter. On 2 July 1999 they were served with an indictment containing a number of charges, including a charge in these terms:
"on 4 November 1998 at Garrion Street, Overtown, Wishaw, you DAVID SHIELDS MONTGOMERY and ANDREW ALEXANDER MARSHALL COULTER did while acting with Ronnie Coulter, 8 Caplaw Tower, Gowkthrapple, Wishaw assault Surjit Singh Chhokar, 65, Caplaw Tower, Wishaw seize hold of his body, struggle with him and strike him on the body and you DAVID SHIELDS MONTGOMERY and ANDREW ALEXANDER MARSHALL COULTER did strike said Surjit Singh Chhokar repeatedly on the body with a knife or similar instrument and a piece of wood and metal and you did murder him and you ANDREW ALEXANDER MARSHALL COULTER did previously evince malice and ill-will towards him".
The trial diet was fixed for 16 August 1999 in the High Court at Glasgow.
Rules 40.2 and 40.5 of the Act of Adjournal (Criminal Procedure Rules) 1996, which were added by the Act of Adjournal (Devolution Issues Rules) 1999, provide inter alia:
"40.2 (1) Where a party to proceedings on indictment proposes to raise a devolution issue he shall, not later than 7 days after the date of service of the indictment, give written notice of his intention to do so in Form 40.2A to the clerk of the court in which the trial is to take place; and a copy of the notice shall, at the same time, be served on the other parties to the proceedings and on the relevant authority.
...
(3)Where a relevant authority wishes to become a party to the proceedings as mentioned in paragraph 6 of Schedule 6 ..., he shall, not later than 7 days after receipt of the notice served under paragraph (1), give notice in Form 40.2B to the clerk of the court in which the trial is to take place; and a copy of such notice shall be served on the Lord Advocate and every other party to the proceedings.
40.5 (1) No party to criminal proceedings shall raise a devolution issue in those proceedings except as in accordance with Rule 40.2 ..., unless the court, on cause shown, otherwise determines."
On 9 July 1999, within the period of seven days specified by Rule 40.2 (1), the agents for both respondents gave written notice to the Lord Advocate of their intention to raise a devolution issue. The Advocate Depute who appeared before this court explained that the minute on behalf of Coulter was not actually lodged with the Clerk of Court until 12 July and the minute for Montgomery was not lodged until 14 July. While drawing attention to the fact that the minutes were lodged late, the Advocate Depute did not found on that failure since the Lord Advocate had received a copy of the notice within the period specified in Rule 40.2 (1).
The notices given by the respondents, which were in the form of minutes as envisaged by Form 40.2A of the Act of Adjournal, specified two issues which the respondents intended to raise, each of them arising out of events surrounding the trial of Ronnie Coulter who is the uncle of the respondent Coulter and is mentioned in the averments of assault in charge 3. As can be seen from that charge, the alleged murder was committed on 4 November 1998. The respondent Coulter appeared on petition, charged with the murder, at Hamilton Sheriff Court on 6 November; he was committed for further examination and released on the instructions of the procurator fiscal on 13 November. The respondent Montgomery appeared on petition, also charged with the murder, in the same court on 9 November; he was similarly committed until further examination and released on 13 November. Ronnie Coulter appeared on petition charged with the same murder, again in Hamilton Sheriff Court, on 10 November; he was committed for further examination and then fully committed on 17 November. The Crown went on to indict Ronnie Coulter on the charge of murder. The charge contained averments to the effect that Ronnie Coulter did "while acting with others" assault and murder the deceased. Before the trial the agents for Ronnie Coulter lodged a defence of incrimination, naming the respondents as the perpetrators. The trial began in the High Court at Glasgow on 2 March 1999 and on 9 March Ronnie Coulter was convicted of assaulting the deceased but was acquitted of the charge of murder. At the end of the trial, the judge commented critically on the fact that the Crown had not charged two other persons who appeared, from the evidence led, to have been involved in the fatal assault on the deceased. The Advocate Depute at the trial did not ask for an order under Section 4 of the Contempt of Court Act 1981 and the remarks were widely reported. The Lord Advocate replied in a public statement which was also widely reported in the press. The comments of the trial judge and of the Lord Advocate were discussed in the press.
In the minutes which were sent to the Lord Advocate on 9 July the respondents indicated that they intended to raise two issues arising out of those events. The first, set out in paragraph 1 of the minutes, was to the effect that, by failing to move for an order under the Contempt of Court Act, the Lord Advocate's Depute had failed to protect the respondents from the risk that the trial judge's comments would prejudice their right to a fair trial in any proceedings which might subsequently be raised in the Lord Advocate's name. By virtue of Sections 44(1) and 57(2) of the Scotland Act 1998 ("the 1998 Act"), the Lord Advocate has no power to do any act which is incompatible with inter alia the rights contained in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. On behalf of the respondents it was said that in the circumstances there had been a breach of the respondents' right to a fair trial as enshrined in Article 6. Paragraph 2 of the minutes contained a related argument to the effect that, by engaging in public comment, the Lord Advocate had attracted further publicity to the circumstances of the case and had in that way breached the respondents' right to a fair trial.
On 10 August 1999 Lord Cowie ordered that the minutes should be considered on 12 August when he continued consideration of the notices until 26 August 1999 and, by reason of a minute lodged by both respondents, postponed the trial diet to the sitting of the High Court at Glasgow on 13 September. On 20 August the respondent Montgomery lodged with the Clerk of Justiciary and served on the Lord Advocate and the Advocate General a further document bearing the inelegant title "Addition to Minute"; on 23 August the other respondent lodged a similar document, though service on the Advocate General was not effected until 24 August. These documents in effect sought to amend the minutes which had been served in July by adding a further paragraph containing another argument. This argument also was based on Article 6 and alleged that the failure of the Lord Advocate to bring the respondents to trial along with Ronnie Coulter constituted a breach of the respondents' rights under that Article. Reference was made to the publicity surrounding the trial of Ronnie Coulter and to the fact that the Crown had required to change the allegation relating to Ronnie Coulter: whereas the indictment on which he went to trial alleged that Ronnie Coulter committed the murder along with others, Charge 3 on the present indictment avers that, along with the respondents, Ronnie Coulter assaulted the deceased - but not that he murdered him.
On 26 August the continued hearing on the respondents' minutes was held before Lord Abernethy. As the presiding judge records in his report to this court, at the start of the hearing the Advocate Depute made a submission to the effect that the Addition to Minute was incompetent. Having heard counsel for the respondents, the presiding judge decided that it was in the interests of justice to allow the hearing on the devolution issues to proceed on the basis of both the Minute and the Addition to Minute in each case. Since, however, the period of seven days allowed by Rule 40.2 (3) for the Advocate General to decide whether she wished to become a party to the proceedings had not elapsed in the case of the Additions to Minute, the presiding judge further continued consideration of the minutes until 1 September and granted the Crown leave to appeal against his decision. On 1 September Lord Osborne again continued consideration of the minutes and additions, this time until 9 September, in view of the fact that the Crown had marked an appeal to this court.
From the narrative which we have given it emerges that at no stage in the proceedings so far have the merits of the devolution issues set out in the various documents been discussed. Nor were they discussed before this court. We therefore express no view about them; we are concerned only with the procedural issues which have arisen.
We must first clarify the nature of the hearing in the court below. The order for that hearing was pronounced by Lord Cowie and the minute recording his order reads
"Lord Cowie, having considered the foregoing Minute of Notice intending to raise a devolution issue within the meaning of the Scotland Act 1998, orders that a resolve the matters contained therein to be heard on 12 August 1999 at 10 am within the High Court of Justiciary at Edinburgh."
The minute is not actually coherent, the...
To continue reading
Request your trial