Transco Plc V. Her Majesty's Advocates
| Jurisdiction | Scotland |
| Judge | Lord MacLean,Lord Osborne,Lord Hamilton |
| Court | High Court of Justiciary |
| Date | 16 September 2004 |
| Docket Number | XC392/03 |
| Published date | 16 September 2004 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord MacLean Lord Osborne Lord Hamilton
| Appeal No: XC392/03 OPINION OF LORD MacLEAN in APPEAL under Section 74 of the Criminal Procedure (Scotland) Act 1995 by TRANSCO PLC Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellants: Jones, Q.C., J. Lake; Simpson & Marwick W.S.
Respondent: Mulholland A.D. Solicitor Advocate, Balfour; Crown Agent
16 September 2004
[1]Since your Lordship has dealt both in depth and detail with the submissions of the parties and I am in entire agreement with your Lordship's reasoning and conclusions, I wish to add only some observations of a more general character.
[2]The appellants' objection to trial by jury in this case, made in terms of Article 6 of the Convention, turns on the specific features of the case. The appellants do not maintain that trial by jury in criminal cases of itself would contravene Article 6 and lead to unfairness. On the contrary, the appellants accepted that the vast majority of jury trials in Scotland were Convention compliant. The competing submissions on behalf of the Crown and the appellants were, therefore, concerned with the anticipated consequences of a trial proceeding on the present indictment. The appellants were at pains to emphasise the complexities which would arise, while the prosecution sought to minimise these. To a large extent our decision depends, less on the numerous authorities cited to us and rather more on our assessment of the problems which might arise in the course of the trial and the ways in which these problems might be met.
[3]We were informed that the trial is expected to last between four and six months. That is not a wholly exceptional length of time for a jury to sit, although it must be recognised that for some jurors this would be a considerable imposition. I have no doubt that counsel would not wish to weary the tribunal but would prefer to advance their respective cases with as much expedition as possible. The issues raised in the trial may well be complex but the skills of advocacy can be applied to reduce or simplify such complexities. I do not think it greatly matters how many productions are lodged by either side. Much will depend upon their use in the course of the trial and upon the extent to which agreement is reached with regard to them. As for the recording of evidence, it will no doubt be for consideration whether Livenote can be usefully employed. In any event, it cannot readily be assumed that jurors will not take notes as the evidence unfolds. In my own experience it has become increasingly common for jurors, though not all jurors, to take their own notes.
[4]Much was also made of what was referred to as the split onus. If the Crown discharge the onus upon them of establishing a contravention of section 3 of the Health and Safety at Work Act 1974, it will be for the defence to establish on a balance of probabilities the defence of reasonable practicability. It is said that the jury will not know that such a defence is available to the appellants and, as the evidence is led, will not appreciate that some of it may be applicable to that defence. Opening speeches to the jury have never been part of Scots criminal procedure but I see no reason why the trial judge should not attempt to identify the relevant issues to the jury at the outset of the trial, in the course of which he can draw their attention to the defence of reasonable practicability. Throughout the trial he will have considerable responsibility to ensure that what is adduced in evidence before the jury is comprehensible and likely to be understood by them. At the end of the trial his charge to them, containing all the necessary legal directions, will be of crucial importance. In that connection, while there may be cases where it has been established that juries have erred in reaching their decision, or appear to have failed to follow the judge's directions, these cases are rare, and do not, in my opinion, detract from the presumption that juries will understand and properly apply a trial judge's directions.
[5]Following the Auld Report, sections 43 and 44 of the Criminal Justice Act 2003 have been enacted in England and Wales although they are not yet in force. While counsel for the appellants conceded that the Scots courts should not be overly influenced by changes in the law in England and Wales, he pointed out that it was introduced to remedy what was thought to be a defect in English procedure in relation to complex, lengthy trials. It has to be said that in Scotland there is no empirical evidence that juries are unable to absorb and understand complex issues, whether or not they arise in long trials.
[6]It was maintained on behalf of the appellants that procedural safeguards had to be put in place if the appellants were to have a fair trial in this case. The only way in which it could be tried before a judge alone was in summary proceedings. The Crown, however, deemed the issues raised in this case of such importance that they took solemn proceedings against the appellants. That course is perfectly understandable but it has the inevitable result that the case must be tried by a jury. There are no other procedural means within our legal system as it presently stands for any other course to be followed. If the appellants were well-founded in their submission that it was necessary that safeguards should be introduced, the law would have to be changed, and there would be no prosecution in this case unless that were done. That, as it seems to me, is what the appellants advocate. And, as the Crown pointed out, no case has been cited to us in which a trial set down before a jury had been withdrawn from it prospectively because of the anticipated complexity of the evidence or its length, except where there was an alternative provision to try it either way - that is, with or without a jury.
[7]I accept what was said by the court in Heasman v. J.M. Taylor & Partners 2002 S.C. 326 and later in H.M. Advocate v. M (R) 2003 S.C.C.R. 632 with regard to the fairness of a jury trial in considering rights under Article 6 of the Convention. The test is whether prospectively it can be said that such proceedings would necessarily be a breach of the accused's Convention rights or that they would inevitably result in the proceedings as a whole being unfair in the Convention sense. Since I am unable to affirm that in this case, I agree that this appeal should be refused.
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord MacLean Lord Osborne Lord Hamilton
| Appeal No: XC392/03 OPINION OF LORD OSBORNE in APPEAL under Section 74 of the Criminal Procedure (Scotland) Act 1995 by TRANSCO PLC Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellants: Jones, Q.C., J. Lake; Simpson & Marwick W.S.
Respondent: Mulholland A.D. Solicitor Advocate, Balfour; Crown Agent
16 September 2004
The Background
[8]On 22 December 1999, a serious explosion occurred in Carlisle Road, Larkhall. A dwellinghouse situated at No. 42 Carlisle Road was completely destroyed. Other dwellinghouses situated nearby were seriously damaged. The occupants of the dwellinghouse at No. 42 Carlisle Road, Andrew Findlay, Janette Findlay, Stacey Findlay and Daryl Findlay received injuries in the explosion, as a result of which they died. The appellants are a company incorporated under the Companies Acts, having their registered office at 123 The Strand, London. They were formerly known as British Gas Plc, as BG Plc and as BG Transco Plc. It is understood that, since at least 24 August 1986, they have been engaged in the business of being a public transporter of gas under the Gas Act 1986, as amended. They have been responsible for the transmission and distribution of gas in the area of Larkhall, among others.
[9]There has been served upon the appellants by the respondent an indictment containing a single charge in elaborate terms. Originally, that charge contained two parts which were stated as alternatives. In the first alternative part, following upon a lengthy narrative of alleged knowledge on the part of the appellants, alleged facts and events and alleged failures, the allegation was made that:
"... in December 1999, the said medium pressure 10 inch ductile iron main was used and operated by you to distribute gas to the said houses in Carlisle Road and elsewhere in Larkhall when it was extensively corroded, not in good repair or working order and leaking, and, on 22 December 1999, quantities of gas which had escaped from said medium pressure main, migrated under the ground and entered the under floor void forming the foundations of the house at No. 42 there, accumulated to form an explosive gas cloud, ignited and exploded, as a result of which said house at No. 42 was completely destroyed, adjoining properties were damaged and the said Andrew Findlay, then aged 34 years, Janette Findlay, then aged 37 years, Stacey Findlay, then aged 13 years and Daryl Findlay, then aged 11 years, received injuries from which they died then and there, and you did kill them."
[10]In the second alternative part of the charge mentioned, the respondent alleged that:
"Between 24 August 1986 and 22 December 1999, both dates inclusive, (hereinafter referred to as 'the period of time') at your business premises hereinbefore referred to, at Carlisle Road, Larkhall and elsewhere in the United Kingdom, being an employer and having a duty in terms of section 3 of the Health and Safety at Work Act 1974 and section 18 of the Gas Act 1986 to conduct your undertaking as a public gas transporter (under the said Gas Act, as amended and the Licence granted thereunder), in such a way as to ensure, so far as it was reasonably practicable, that the persons who were not in your employment but who may be affected thereby were not exposed to risks to their health or safety and, in particular that members of the public were not exposed to...
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