Transco Plc V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Hamilton,Lord Justice General,Lord Osborne |
| Court | High Court of Justiciary |
| Date | 14 January 2005 |
| Docket Number | XC857/04 |
| Published date | 14 January 2005 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Osborne Lord Hamilton
| [2005HCJAC1] Appeal No: XC857/04 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL under section 74 of the Criminal Procedure (Scotland) Act 1995 by TRANSCO plc Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Jones, Q.C.; Simpson & Marwick
Respondent: Mulholland, solicitor advocate, A.D.; Balfour; Crown Agent
14 January 2005
Introduction
[1]Arising out of a serious explosion with resulting fatalities which occurred on 22 Dec 1999 in Carlisle Road, Larkhall an indictment for trial in the High Court was served on the appellants in February 2003. The indictment contained a single charge, which was in elaborate terms stated in the alternative. The appellants were charged in the first place with culpable homicide. The appellants challenged the relevance of this part of the charge, and in due course that challenge was held on 3 Jun 2003 to be well founded (Transco plc v H.M.Advocate 2004 S.C.C.R. 1). Accordingly proceedings were confined to the alternative, which alleged contravention of sections 3 and 33(1) of the Health and Safety at Work etc Act 1974 (the 1974 Act). The appellants also challenged the trial of the case by jury on the ground that it did not provide sufficient procedural safeguards to satisfy the right to a fair trial. On appeal this challenge was held on 16 Sep 2004 to be not well founded (Transco plc v H.M. Advocate (No. 2) 2004 S.C.C.R. 553).
[2]The appellants have now challenged certain decisions of Lord Carloway at a preliminary diet on 29 October 2004. These were his rejection of the submission that he should not preside at the trial of the appellants or any pre-trial proceedings relating thereto, and the submission that a simultaneous transcription service using software such as LiveNote should be provided during the trial.
Presiding of Lord Carloway at the trial and pre-trial proceedings
The proceedings for production of the Main Report
[3]The issue relating to Lord Carloway requires to be considered against the background of the steps which the appellants took for the recovery of a report referred to as the "Main Report" by the Health and Safety Executive (HSE). This was submitted to the procurator fiscal at Hamilton in September 2000. It followed a considerable amount of investigation of the circumstances of the explosion. Its author was Mr Kenneth Staples, a hazards installations inspector. In January 2004 the appellants presented a petition for the recovery from the Crown of various documents including the Main Report. Following certain discussions the petition was withdrawn, and the Crown provided the appellants with a copy of section 7 of Part 1 of the Main Report. In September 2004 the appellants presented a Minute in which they sought the recovery of the whole of the Main Report. The appellants averred that Mr Staples had written the report in two parts so that the first might be released, but the second, which contained his recommendations, would not. They also averred that the contents of the report would have a bearing on the role of the HSE in relation to them prior to the incident, especially in regard to the defence of reasonable practicability. The appellants understood that Mr Staples had expressed the view that they should be prosecuted only for offences under the Pipeline Safety Regulations 1996 (the regulations), and not for a contravention of section 3 of the 1974 Act. This was information relevant to the preparation and presentation of the defence and ought to be disclosed by the Crown. The Crown opposed the production of the report, on the ground that it was confidential and formed the basis for the decision to proceed to the precognition of the case. The appellants had proceeded on an erroneous assumption: Mr Staples had not recommended that the appellants be prosecuted only in respect of a contravention of the regulations. The appellants had wrongly inferred from section 7, which was concerned with the question of reasonable practicability, that Mr Staples had not recommended prosecution for a contravention of section 3 of the 1974 Act.
[4]At the end of the discussion of the minute on 13 September Lord Carloway asked whether he could see a copy of the Main Report in order to reach a decision as to whether the Crown's opposition to its recovery was well founded. The Crown had no objection. Nothing was said as to the possible consequences of his doing so. In due course on 23 September Lord Carloway decided to order that that Part 1 of the Main Report should be produced by the Crown, but not to make the same order in regard to Part 2. About a week later he issued a note (Number One) in which he set out the reasons for his decision. It may be noted that there is no suggestion that Lord Carloway's decision, or his reasons for that decision, were erroneous.
[5]In that note Lord Carloway states that Part 1 extended to 43 pages, exclusive of appendices. It contained general information on the nature and extent of the investigations, and a summary of the HSE's conclusions of fact, including a statement of the legal obligations said to be incumbent on the appellants under regulations 8 and 13 of the regulations and section 3 of the 1974 Act, together with a discussion on whether those obligations had been performed. Reference was made to the appellants' awareness of the unsuitability of ductile iron as a gas conduit, their prioritised rolling programme of mains replacement in the context of the defence of reasonable practicability under section 3 of the 1974 Act and the apparent fact that on the appellants' drawings the particular pipe involved in the incident was not shown as ductile iron but as polyethylene, the very material which was being used as a replacement. Part 1 then contained a short account of the corporate history of the appellants, and substantial detail as to the circumstances of the explosion. The latter included information about the incident site, the services to it, the sequence of events, the investigations and tests carried out, together with their results, and the HSE's findings on the cause of the explosion based on all of this material. The report also considered the appellants' safety systems, especially their mains replacement and maintenance policies and record keeping over a period of some years prior to the incident. It examined their approach to the corrosion of ductile iron mains before reaching a number of conclusions as to the cause of the accident relative to the appellants' systems, especially that of maintenance. It then dealt, in section 7, with preventative measures which might have been taken, and ended with some short sections on advice previously tendered by the HSE, broad references to the legislation and general references to photographs.
[6]Lord Carloway observed in his note that Part 1 did not provide the comfort which the appellants hoped that it might in regard to a breach of section 3, and in particular in regard to the question of reasonable practicability. However, he considered that it was clear that it set out the detailed findings in fact which resulted from the investigations and tests carried out by the HSE inspectors, although some, and perhaps all, of this material might be available and already produced in another form. It was apparent that the author was not merely making a report to the procurator fiscal, but was, at least partly for the purposes of the HSE, recording the findings of the HSE investigation. Part 1 was not a confidential communication to the procurator fiscal about potential criminal proceedings, and, so far as he could discern, it did not contain any privileged material which ought to be kept confidential for fear of jeopardising the proper administration of justice. On the contrary, it was an important summary of the position of the HSE. It appeared to be a valuable tool capable of setting a framework of what was presumably the essence of the Crown case. As such and because it was the work of the principal statutory investigative body, having an unique privilege in carrying out the investigations, it was in the interests of justice that it should be disclosed to the defence. Thereafter the Crown produced a copy of Part 1, along with a contents sheet, a list of witnesses, the appendices, a list of the appendices, and a summary.
[7]As regards Part 2 of the Main Report, Lord Carloway stated: "Part 2 of the report (some 10 pages) deals with "legal considerations", notably whether the minuters had, in the view of the HSE, breached regulations 8 and/or 13 of the 1996 Regulations and/or section 3 of the 1974 act. A brief analysis of the evidence in that regard is carried out. The issue of culpable homicide is also considered, albeit primarily in an English law context". He stated as his reasons for refusing to order its production: "Part 2 is a confidential communication to the procurator fiscal concerning whether and what legal proceeding should be taken. As such, it is essentially irrelevant to any potential defence. The HSE's views on this matter will not assist in the preparation or presentation on (sic) any defence to the charges which the Crown ultimately decided to bring. Such views are inadmissible. In the interests of the proper administration of justice, it is also important that the HSE should feel free to make confidential recommendations or suggestions to the procurator fiscal concerning the potential prosecution of persons for offences under the various safety regimes which they supervise. No doubt there may be exceptions and it would be inappropriate to state that all such reports should in all circumstances remain undisclosed. In this case, however, the minuters have not satisfied the test of demonstrating that it would be in the interests of justice that Part 2 be disclosed or that its disclosure would serve a proper...
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