[1] The first accused, George Bryceland (date of birth 6 February 1961) is charged with being concerned in the supplying of cannabis resin, ecstasy, and cocaine at various periods between 10 December 2000 and 10 December 2001; attempting to pervert the course of justice; and a contravention of section 2 of the Road Traffic Act 1988. The second accused Rosemary Lynch (date of birth 25 May 1966) is charged with possession of heroin and cannabis resin. Both accused are charged together with being concerned in the supplying of ecstasy and amphetamine between 13 November and 10 December 2001. The second accused is also charged with a contravention of section 23(4)(a) of the Misuse of Drugs Act 1971.

[2] I do not propose to rehearse the procedural history of the case in any detail. Suffice it to say that many adjournments have been sought and granted. Some were at the instance of the first accused (although not the second accused), and some were at the instance of the Crown. There have been many extensions of the 110 day period in relation to the first accused.

[3] On Monday 7 October 2002, when the trial was about to begin, defence counsel and the Advocate Depute became aware for the first time that the principal indictment in Edinburgh High Court (which had been lodged in court, and copies served on the two accused) had been destroyed by a member of Crown Office staff. That destruction had apparently taken place on the basis of a mistaken view that a duplicate indictment existed.

[4] On Tuesday 8 October 2002, the Advocate Depute presented a petition to the nobile officium, craving that:

[5] In moving the court to grant the prayer as set out in paragraph 9 of the petition, the Advocate Depute pointed out that the principal indictment had been properly lodged in terms of section 66(5) of the Criminal Procedure (Scotland) Act 1995. Copies had been properly served on both accused. For the purposes of the debate, defence counsel were willing to accept that the terms of the indictment were known. The accused and their advisers had come prepared to meet the indictment. Substitution of the certified copy would cause the accused no prejudice.

[6] The Advocate Depute referred to the statutory provision relating to substitution of a certified copy complaint in summary proceedings, namely section 157 of the Criminal Procedure (Scotland) Act 1995, and to the unreported decisions of a bench of three judges in H.M.A. v. Fox, and H.M.A. v. Wilson, noted in Renton & Brown, Criminal Procedure, in the commentary on section 65 of the 1995 Act at page A-281 of the first volume of legislation, under the heading "Loss of principal petition or indictment".

[7] The Advocate Depute explained that the Crown were anxious to retain the diet. It was in the public interest that the case against both accused should proceed. There had been numerous previous delays. The witnesses, some 74 in number, had been cited to attend this particular diet. The Advocate Depute moved the prayer of the petition, as set out in paragraph 9.

[8] Mr. Shaffer, Q.C., on behalf of the first accused, opposed the petition. He accepted that it was not possible to spell out prejudice to the first accused caused by the absence of the principal indictment. But the real issue was one of competency:

[9] Firstly, there was no precedent for what the Crown sought to do. In H.M.A. v. Fox, and H.M.A. v. Wilson, the circumstances were very different. The clerk of court (and not the Crown, as in the present case) had been the cause of the disappearance of the indictment. In Fox and Wilson, the clerk had lost the principal indictments. In the present case, the destruction of the principal indictment had been at the hands of the Crown. The matter was one of fundamental importance. The lodged principal indictment was the master-copy or the yard-stick for all other copies. Reference was made to Hume, ii. 245; Alison, ii. 313; and Macdonald, 257, 262.

[10] Secondly, it was submitted that the Advocate Depute had founded on section 157 of the 1995 Act. But the very fact that parliament had in the 1995 Act chosen to provide a statutory remedy for summary proceedings, but not for solemn proceedings, militated against the Advocate Depute's argument, and emphasised the importance of the principal indictment in solemn proceedings. Reference was made to the dicta of Lord Morison in Robertson v. H.M.A., 1995 S.C.C.R., pages 169 et seq.

[11] Thirdly, counsel submitted that the Advocate Depute could re-indict both accused. Accordingly this was not a case where there was no alternative remedy. Admittedly there might be inconvenience for witnesses, and there might be difficulties about the 110 day period in respect of the first accused; but this was not a case for the exercise of the nobile officium.

[12] Finally, Mr. Shaffer observed that the Advocate Depute had not attempted to justify the bringing of the application before a single judge, rather than a bench of three.

[13] At a later stage in the debate, Mr. Shaffer emphasised that he did not accept all the procedural facts as narrated or as averred in the petition by the Advocate Depute, particularly the facts averred in paragraph 4.

[14] Mr. Lindhorst, Advocate, on behalf of the second accused, adopted Mr. Shaffer's arguments. He also indicated that while he accepted the factual matrix narrated by the Crown for the purposes of the debate, he reserved his position generally in relation to the facts narrated by the Advocate Depute.

[15] Counsel wished it to be noted that the second accused had at all times observed appropriate procedures in relation to applications for a change of bail address. She had always attended court when required. No delays or adjournments could be attributed to the second accused.

[16] Counsel then challenged the competency of a single judge hearing the petition to the nobile officium. Sir Gerald Gordon, in paragraph 34-04 of Volume 1 of Renton & Brown, Criminal Procedure, offered no authority vouching his statement that "A single judge of the High Court may entertain an application to the nobile officium". The case of BBC petitioners, 2000 S.C.C.R. 533 was a somewhat unusual case. The rule and practice was that matters such as the present should be heard by a bench of three. That proposition was born out by H.M.A. v. Fox and H.M.A. v. Wilson, both decisions of a bench of three, and by Express Newspapers plc, 1999 S.C.C.R. 262 (with particular reference to an authority therein cited, H.M.A. v. Lowson, (1909) 2 S.L.T. 329). No precedent had been cited by the Crown supporting the proposition that the present petition could be heard by a single judge.

[17] Turning to the substantive argument, counsel submitted that in terms of statute, and in particular sections 64 and 66 of the 1995 Act, the trial could only proceed upon the indictment which had been lodged in court. Reference was made to Wilson v. Carmichael, 1992 S.L.T. 541, which dealt with the statutory precursor of section 157 of the 1995 Act. Counsel submitted that parliament had clearly chosen to treat summary matters, being of lesser importance, differently from solemn matters. The Advocate Depute was attempting to circumvent the terms of the statute. The court could not grant an application to the nobile officium if to do so would conflict with statutory intention. Reference was made to Stair (1981 reprint) IV, 3, 1, at pages 811-812; Anderson v. H.M.A., 1974 S.L.T. 239; McGettigan, petitioner, 1996 S.L.T. 76. Counsel submitted that what the Crown sought in the present case was in direct conflict with the statutory provisions.

[18] Moreover, counsel submitted, the Advocate Depute had an alternative remedy: he could serve fresh indictments on the accused. Further, the circumstances of the present case could not be described as extraordinary and unforeseen. If the Crown carelessly lost the principal indictment, it was not unforeseen that there might be difficulty at the trial. Reference was made to Alison, ii, 23, paragraph 13. Guidance as to what were extraordinary circumstances suitable for the application of the nobile officium, and what were not, could be found in authorities such as Anderson v. H.M.A., 1974 S.L.T. 239; McBride, petitioner, 2002 G.W.D. 1-19; Draper, petitioner, 1996 S.L.T. 617; McGettigan, petitioner, 1996 S.L.T. 76; Neil Gordon Anderson, petitioner, 1997 S.C.C.R. 734. The Crown were not entitled to try to preserve the present diet when the difficulty had been caused by their own fault. Moreover the crimes alleged in the cases of H.M.A. v. Fox and H.M.A. v. Wilson had been particularly serious: in Wilson, there had been an assault and rape of a very young girl; in Fox, an assault with a hammer and a stabbing with a knife. In the present case, the Crown could not pray in aid charges of such a serious nature.

[19] Finally, counsel submitted that if the Crown prosecution were to proceed on the basis of some purported copy indictment, that would render any proceedings null and void ab initio, as it would be in contravention of Article 6 of the European Convention on Human Rights, parliament having set up certain statutory provisions for the protection of accused persons.

[20] Counsel reserved his position in relation to further procedure.

[21] In reply, the Advocate Depute invited the court to take the view that practice required only "quasi-appeal" petitions to the nobile officium to be heard by a bench of three judges. All other matters could competently come before a single judge, even although for practical purposes such petitions were often added to the Appeal Court roll and therefore in fact came before three judges.

[22] The Advocate Depute also invited the court to regard the circumstances which had arisen as truly extraordinary and unforeseeable. A junior member of the Crown Office had been under the impression that there was a duplicate of the indictment, and had then destroyed the principal indictment.

[23] The Advocate Depute also submitted that there was no other remedy by which the Crown could achieve the commencement of the trial in the current sitting. Seventy-four witnesses had been cited to the diet. The contents of the indictment were very serious, involving Class A drugs. It was expected that evidence would be led indicating that approximately £1 million may have been the product of dealing in these drugs.

[24] In relation to Article 6 of the European Convention on Human Rights, the Advocate Depute emphasised the Crown's compliance with section 66(5), and the lack of prejudice to the accused if the current application were granted.

[25] In my view, Express Newspapers plc, 1999 S.C.C.R. 262 confirms firstly, that it is competent for a single judge in the High Court to hear an application to the nobile officium (cf. the view expressed by Sir Gerald Gordon in paragraph 34-04 of Volume 1 of Renton and Brown); and secondly, that it is for the High Court, which includes a single judge, to determine the appropriate quorum in any particular case.

[26] In this case, it is my decision that the matter can competently be determined by a single judge. The issue is clearly one of importance, but I deem it to be of a class of business which can be dealt with by a single judge.

[27] I should add that the question of quorum was not apparently expressly dealt with in the cases of H.M.A. v. Fox, and H.M.A. v. Wilson. There is certainly no reported ruling that an issue such as has arisen in this case must be decided by a bench of three.

[28] In this case I am satisfied that -

Firstly, the circumstances which have arisen are extraordinary and unforeseen.

[29] Secondly, there is no principle or rule of law which has been cited to me to the effect that the nobile officium cannot be prayed in aid in cases of inadvertence, even by those responsible for the inadvertence.

[30] Thirdly, in view of the decisions of the bench of three judges in H.M.A. v. Fox, and H.M.A. v. Wilson, it is competent to allow a certified copy indictment to be received in substitution for the missing principal indictment.

[31] Fourthly, it is in the interests of justice that the present trial diet, to which all the witnesses have been cited and in relation to which considerable expense has presumably already been incurred, should be preserved - particularly bearing in mind (i) the procedural history of the case, with various adjournments at the instance of the first accused and the Crown, and also (ii) the fact that both the defence and the Crown were on this occasion prepared and ready to go to trial.

[32] Fifthly, in the context of preserving the present trial diet, there is no other remedy available to the Crown. There is no provision such as section 157 of the 1995 Act, applicable in summary cases. I should add that the difference between summary and solemn proceedings in this context might be thought to be explicable by the more serious nature of solemn proceedings, making it appropriate that a prosecutor should come before the court (for example, in a petition to the nobile officium) to explain why the substitution of a certified copy indictment is necessary. Rather than flying in the face of statutory intention, the present petition may well reflect the intention of parliament: cf. dicta of the court in Wilson v. Carmichael, 1974 S.L.T. 541, at page 543L.

[33] Sixthly, little or no prejudice would be suffered by the accused as a result of the substitution of the certified copy indictment in place of the former principal indictment, fair notice having been given to the accused of the case against them.

[34] Seventhly, in relation to Article 6 of the European Convention on Human Rights, the accused's interests are sufficiently protected by the supervision of the court in this nobile officium procedure.

[35] In all the circumstances, I shall grant the prayer of the petition as set out in paragraph 9. I am satisfied that it is appropriate that the certified copy be signed by any Advocate Depute invested with the authority of the Lord Advocate, and that it is not necessary that it be signed by the Advocate Depute who signed the original principal indictment.