Transco Plc v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 14 January 2005 |
| Neutral Citation | 2004 SCCR 1 |
| Docket Number | No 22,No 8,No 5 |
| Date | 14 January 2005 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Justice-General (Cullen of Whitekirk), Lord Osborne, Lord Hamilton
Justiciary - Procedure - Solemn procedure - Fair trial - Judge reading part of health and safety report not disclosed to accused - Whether judge should preside over trial - Whether apparent bias
Justiciary - Procedure - Solemn procedure - Recording of proceedings - Simultaneous transcription service - Criminal Procedure (Scotland) Act 1995 (cap 46), secs 93, 94
Section 93 of the Criminal Procedure (Scotland) Act 1995 provides for the recording of proceedings at the trial of a person tried in solemn proceedings. Section 94 of the 1995 Act provides that transcripts of the record of proceedings may be made available to certain persons.
A massive gas explosion completely destroyed a dwellinghouse, killing all four occupants. The appellants were a company having certain functions and responsibilities for the transmission and distribution of gas in the area. In relation to the explosion and the deaths of the four individuals, the appellants were served with an indictment in which they were charged with a contravention of the Health and Safety at Work etc Act 1974 (cap 37). The appellants presented a minute seeking recovery from the Crown of a report prepared by the Health and Safety Executive. The appellants averred that the report had been written in two parts so that the first part might be released but the second, which contained recommendations, would not. The Crown opposed the production of the report, on the grounds that it was confidential and formed the basis for the decision to proceed to the precognition of the case. The single judge asked to see a copy of the report. He ordered production of Pt 1 of the report, which he considered set out the detailed findings in fact resulting from the investigations and tests carried out by the Health and Safety inspectors, and which was not confidential. He refused to order production of Pt 2, on the grounds that it was a confidential communication to the procurator fiscal concerning whether and what legal proceeding should be taken. The appellants presented a further minute in which they sought a direction that the single judge should not preside over their trial or any pre-trial proceedings relating thereto. They also sought an order that a record by means of a simultaneous transcription service should constitute the official record of the proceedings. The single judge refused both applications. The appellants appealed. They argued that the single judge's views about the evidence and their culpability might be coloured, even unconsciously, by his reading of the report and that this would be relevant to sentence in the event of conviction. As regards the simultaneous transcription service the appellants argued that its use had been suggested by the bench in an earlier appeal hearing as one of a number of procedural safeguards which would operate to protect the appellants' Art 6 right to a fair trial.
Held that: (1) it was of critical importance to determine whether there was an objective basis for a fair-minded and informed observer reaching a conclusion of apparent bias (para 22); (2) the appellants were not denied access to significant factual material available to the prosecution and the court, and, as would be plain to any fair-minded and duly informed observer, the trial judge's approach to sentence would be based not on material which prior to the trial had come to his notice for another purpose but on the evidence led at trial and the submissions on the evidence, and the appellants had accordingly failed to demonstrate an objective basis for the fears which they expressed (para 24); (3) the intention of parliament in enacting secs 93 and 94 of the 1995 Act was to provide at public expense an official record of the proceedings at trial for the purpose of such a record being available, if appropriate, for use in the course of any appeal under the statute, it was clearly not the legislative intention that the record be made for the purpose of its use in the course of the trial, and accordingly it was not open to the court to direct that the record under sec 93 of the 1995 Act be made by means of a imultaneous transcription or any equivalent service (paras 32, 33); (4) no ruling had been made in the earlier appeal hearing that a simultaneous transcription service should be the means of officially recording the trial proceedings (para 34); and appeal refused.
Observed the fact that the use of a system was not what was contemplated by the statutory provisions did not of itself preclude an arrangement being made whereby such a system might be used on an extra-statutory and supplementary basis (para 36).
Transco plc was charged on indictment at the instance of the Rt Hon Colin David Boyd QC, Her Majesty's Advocate, with, in the first alternative, culpable homicide and, in the second alternative, a contravention of secs 3 and 33(1) of the Health and Safety at Work etc Act 1974, following a gas explosion which destroyed a dwellinghouse killing all four occupants. The appellants presented a minute of notice under sec 72 of the Criminal Procedure (Scotland) Act 1995 (cap 46) challenging the competency and relevancy of the charge of culpable homicide. They presented a minute of notice under sch 6 to the Scotland Act 1998 (cap 46) on the grounds that trial before a jury would breach their right to a fair trial under Art 6(1) of the European Convention on Human Rights and Fundamental Freedoms. A hearing in respect of the minutes took place before a single judge of the High Court (Lord Carloway) at a preliminary hearing, on 3 to 7 and 11 March 2003. On 21 March 2003, the single judge refused to dismiss the indictment. The appellants appealed to the High Court of Justiciary.
The appeal in respect of the minute of notice under sec 72 of the 1995 Act was heard before the High Court of Justiciary, on 20 May 2003 and the eight ensuing days. At advising, on 3 June 2003, the court (Lord MacLean, Lord Osborne and Lord Hamilton) allowed the appeal and dismissed the first alternative charge as irrelevant: 2004 JC 29.
The appeal in respect of the minute of notice under sch 6 to the Scotland Act 1998 was heard before the High Court of Justiciary, on 10, to13 February 2004. At advising, on 16 September 2004, the court (Lord MacLean, Lord Osborne and Lord Hamilton) refused the appeal: 2005 JC 44.
In September 2004 the appellants presented a minute seeking recovery of a health and safety report from the Crown. At a hearing on the minute, on 13 September 2004, the single judge (Lord Carloway) sought a copy of the report. On 23 September 2004 the single judge ordered that Pt 1 of the report should be produced by the Crown, but not Pt 2. The appellants raised the question of whether the single judge should recuse himself. Thereafter they presented a further minute in which they sought a direction that the single judge should not preside over their trial or any pre-trial proceedings relating thereto. They also submitted that a simultaneous transcription service using software such as LiveNote should be provided during the trial. Following a hearing on the minute, on 14 and 15 October 2004, the single judge refused the applications, on 29 October 2004, and granted leave to appeal. The appellants appealed.
Cases referred to:
Barrs v British Wool Marketing BoardSC 1957 SC 72; 1957 SLT 153
Bradford v McLeodUNK 1986 SLT 244; 1985 SCCR 379
Davidson v Scottish Ministers (No 2)SC 2003 SC 103; 2002 SLT 1231
Edwards and Lewis v UKUNKUNK (2003) 15 BHRC 189; [2003] Crim LR 891
Errington v WilsonSCUNK 1995 SC 550; 1995 SLT 1193; 1995 SCCR 875
Hauschildt v Denmark (1989) EHRR 266
JRL (Re), ex p CJLUNK (1986) 161 CLR 342
Jasper v UKHRCUNK (2000) 30 EHRR 441; [2000] Crim LR 586
Johnson v JohnsonUNK (2000) 201 CLR 488
Law v Chartered Institute of Patent AgentsELR [1919] 2 Ch 276
Media, Entertainment and Arts Alliance and Theatre and Managers Association, ex p Hoyts Corp Pty LtdUNK (1993) 119 ALR 206
Porter v MagillUNKELRWLRUNK [2001] UKHL 67; [2002] 2 AC 357; [2002] 2 WLR 37; [2002] 1 All ER 465
Public Utilities Commission of the District of Colombia v Pollak (1952) 343 US 451
R v Acton Youth CourtWLR [2001] 1 WLR 1828; [2001] EWHL Admin 402
R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2)ELRWLRUNK [2000] 1 AC 119; [1999] 2 WLR 272; [1999] 1 All ER 577
R v HUNKELRWLRUNK [2004] UKHL 3; [2004] 2 AC 134; [2004] 2 WLR 335; [2004] 1 All ER 1269
R v Liverpool Justices, ex p ToppingWLRUNK [1983] 1 WLR 119; [1983] 1 All ER 490
Transco plc v HM AdvocateSCUNK 2004 JC 29; 2004 SLT 41; 2004 SCCR 1
Transco plc v HM Advocate (No 2)SCUNK 2004 JC 44; 2004 SLT 995; 2004 SCCR 553
The appeal was heard before the High Court of Justiciary comprising the Lord Justice-General (Cullen of Whitekirk), Lord Osborne and Lord Hamilton, on 22 and 29 November and 6 December 2004.
At advising, on 14 January 2005, the opinion of the Court was delivered by the Lord-Justice General (Cullen of Whitekirk)-
Opinion of the Court-
[1] Arising out of a serious explosion with resulting fatalities which occurred on 22 December 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 June 2003 to be well founded (Transco plc v HM AdvocateENR). Accordingly proceedings were confined to the alternative, which alleged contravention of secs 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...
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