APPEAL COURT, HIGH COURT OF JUSTICIARY

Act: Shead, Advocate; R S B Macdonald, Dundee; Reilly, Advocate;

Lawson Coull & Duncan, Dundee; Lockie, Advocate; Muir Myles & Laverty, Dundee;

McDonald, Advocate; Whelan & Co, Arbroath; Kennedy, Advocate; Campbell Boath & Co, Dundee; Mayer, Advocate; Boyles, Dundee

Alt: Murphy, QC; Crown Agent

10 January 2007

The background circumstances:
[1] The six appellants have been indicted together on an indictment which contains a single charge in the following terms:

"On 28 May 2005 at Queen Street Railway Station, Dundas Street, West George Street, Buchanan Street, Gordon Street, Union Street, Argyle Street, Jamaica Street, Bridge Street, Eglinton Street and Bedford Street, all Glasgow, you did, whilst acting with others, form part of a mob of evilly disposed persons which acting of a common purpose did in particular at Bedford Street, Glasgow, conduct itself in a violent, riotous and tumultuous manner to the great terror and alarm lieges and in breach of the public peace and did shout, throw bricks and bottles or similar instruments, run towards a group of persons to the prosecutor meantime unknown, engage in fights, obstruct the flow of traffic and cause pedestrians and motor vehicles there to take evasive action."

[2] Following their indictment, the appellants lodged minutes raising preliminary pleas the essence of which was that, by choosing to indict them in the way chosen, the Lord Advocate had prejudiced their right to a fair trial by acting oppressively. The appellants had originally appeared on petition in Glasgow Sheriff Court on 31 May 2005, along with 23 other co-accused. In relation to five of those co-accused, the Crown had previously served a separate indictment libelling an identical charge. That indictment had proceeded to trial and all of the accused affected by it had been convicted. Thereafter the Crown had served the present indictment on the appellants. They understood that the Crown had served two further indictments libelling an identical charge against two groups of six individuals and intended to prepare a further indictment libelling an identical charge against another six individuals, all named in the original petition. It was contended that, by proceeding in this manner, there was a high risk of prejudice to the appellants where accused persons were indicted separately for the same offence. The appellants understood that the Crown intended to rely upon what was described as identical evidence to that led during the first trial, namely evidence from three police officers. The appellants contended that the Crown had now had a "full dress rehearsal" of their case and that the Crown witnesses had had the opportunity to consider their earlier evidence and might also have discussed the evidence that they had previously given together. It was also contended that, on account of the Crown having proceeded in such a manner, the appellants would not be in a position to call any of the other individuals named in the pending indictments as defence witnesses to be led during the trial. The appellants believed that their defence would be prejudiced by the separation of trials. It was contended that the essence of the crime with which the appellants had been charged, mobbing and rioting, required there to be evidence led that the accused were "acting of a common purpose". Accordingly, all of the individuals alleged to have been acting with this common purpose ought to be tried upon the same indictment. In these circumstances, the appellants had sought conjunction of all of the outstanding trials upon the same indictment.

[3] On 8 March 2006, when the case called for trial, these preliminary issues were raised. Thereafter submissions were made to the sheriff on the appellants' behalf. On 16 March 2006, after considering the submissions made to him, the sheriff rejected the contentions advanced. The sheriff concluded that he was entirely satisfied that the Crown had a right to prosecute as they had done, which was not subject to the control of the Court unless oppression, in the sense of a material risk of real prejudice could be demonstrated, which he held it had not. Following the announcement of the sheriff's decision, the appellants sought leave to appeal to this Court, which was granted.

[4] All of the appellants have lodged grounds of appeal in slightly different terms. However, the essence of these is that the sheriff has erred in rejecting the preliminary pleas advanced before him, which were essentially to the effect that the course selected by the Crown involved oppression and that the trials of all of the individuals who faced indictments containing the same charge should be conjoined.

Submissions for the appellants:

[5] When these cases came before us, counsel for the first named appellant, having outlined the background to the matter, said that the primary focus of his submissions would be on the matter of the conjoining of the trials to be held. He made clear that he did not intend to challenge the test for oppression set forth in McFadyen v Annan 1992 S.C.C.R. 186. It was submitted that the sheriff had been wrong to conclude that the contemplated trials of the remaining 24 accused should not be conjoined. Furthermore, he had failed to take into account relevant considerations relating to the practicalities of a trial involving such a number of persons. Indeed, the procurator fiscal had not put information before the sheriff regarding any alleged practical difficulties there might be in conducting a trial of 24 persons. No real explanation had been given to the sheriff for the Crown's decision to bring the accused to trial in batches of six persons. In short, the sheriff had not been given essential information necessary to make a proper decision on the matter. It was highly unsatisfactory that the same witnesses should give the same evidence repeatedly in a series of trials.

[6] In connection with his submissions, counsel relied upon H.M. Advocate v Clark 1935 J.C. 51, at pages 54-60. In that case it had been held that, while the Court would not, in ordinary circumstances, interfere with the discretion of the Crown, it was nevertheless within its power to disallow procedure which, in its opinion, might lead to a miscarriage of justice and accordingly that, as separate trials might in that case result in prejudice not only to the compearer, but also to the panels, the indictment as it stood should not be remitted to an assize. The case demonstrated that good practice involved the holding of a single trial where a number of persons were accused of acting with a common criminal purpose unless there were strong and cogent reasons to the contrary. Counsel also relied upon H.M. Advocate v O'Neill 1992 S.C.C.R. 130, in which it was held that the practice of convening all participants in a crime in one indictment was only a practice and not a rule of law which had to be applied unless the Crown could advance a good reason to the contrary. Although, in ordinary circumstances, the Court would not interfere with the discretion of the Crown, it was nevertheless within its power to disallow procedure which, in its opinion, might lead to a miscarriage of justice. The Crown's right to prosecute was not subject to the control of the Court, unless oppression in the sense of a material risk of real prejudice could be demonstrated. The case of H.M. Advocate v O'Neill showed that there could be circumstances in which there would be good reason for the Crown departing from the normal practice in indicting accused together in relation to a common criminal purpose. In that case an issue of sufficiency of evidence and the public interest prevailed. By contrast, in the present case, the Crown had never explained why they had chosen to follow the course of indicting the accused in batches. The case of H.M.A v Macleod & Others (1888) 1 White 554 showed that there might be circumstances in which it would be appropriate for the Crown to depart from the ordinary practice of a common indictment, as, for example, in that particular case, which involved mobbing and rioting. However, that course had been taken there because it was considered to be "in the interest of the panels".

[7] While conjunction of indictments had been sought before the sheriff, it was accepted that there might be cogent reasons why that course should not be followed. However, no such reasons had been advanced to the sheriff. On the matter of the competency of conjunction, counsel now accepted that that was something which the Court itself could not order, as appeared from what had been said in H.M.A v Clark by Lord Anderson at page 57. All that counsel could ask the Court to do was to desert the present indictment pro loco et tempore. It would then be for the Crown to frame an indictment against all the remaining 24 accused persons.

[8] Counsel for the second named appellant adopted the submissions just narrated, but made certain supplementary points. He agreed that the Court could not compel the Lord Advocate to frame an indictment in a particular way; it could simply prohibit the taking by the Lord Advocate of a course which could be shown to be objectionable. Counsel went on to draw our attention to the decision in H.M. Advocate v McWilliam 1994 S.C.C.R. 152. In that case two separate indictments had been framed. The sheriff had granted a motion to conjoin the two sets of proceedings. This Court had not commented adversely on the following of that course. However, in the circumstances of the present case, if there was concern over the competency of such a course the Court could desert the present indictment, thus forcing the Lord Advocate to follow a different course. Finally, counsel pointed out that the possibility of holding a trial of 24 persons in a large building adapted for that purpose had apparently not been explored.

[9] Counsel for the third, fourth and fifth named appellants adopted the submissions of counsel for the first and second appellants. Counsel for the sixth named appellant emphasised that the sheriff had not given proper reasons for his decision. The prospect of serious prejudice to the appellants emerged from a situation in which the same three witnesses might be required to give evidence upon the same topics on several different occasions. There would be no particular difficulty attached to the mounting of a trial of 24 persons in this case, since the issues involved were straightforward. The charge of mobbing and rioting was a simple charge. The only controversial issues likely to arise would be those of identification of the participants. In any event, the need to furnish the appellants with a fair trial should take precedence over issues of practicality.

Submissions for the Crown:

[10] The Advocate depute indicated that he intended to deal with the details of the sheriff's decision, the practical aspects of the case, the authorities, and the conclusions which the Court should draw. He then proceeded to examine the details of the sheriff's decision, which were to be found at page 14 and following of his judgment. The terms of his decision revealed no error, it was submitted. One of the important features of the situation was that the sheriff had practical knowledge regarding the facilities that were available in Glasgow, where there was but one Sheriff Court building. It was, of course, the case that in Glasgow a large enough building could be identified to allow a trial to be held involving 24 accused persons, provided that suitable modifications to the building could be effected. However, what was practicable did not include what was theoretically possible. The real question was whether it was necessary for such arrangements to be made, no doubt at very substantial cost. In H.M. Advocate v Macleod, the Court contemplated that, in a case of mobbing and rioting, the numerous accused should be tried in batches. There was nothing inherently objectionable in such a course. In H.M. Advocate v Clark, Lord Justice Clerk Aitchison contemplated that where there was a large number of persons alleged to have acted in concert, as for example in a case of mobbing and rioting, it might not be practicable to bring them all to trial on the same indictment. Once again, the Court did not consider that the holding of separate trials in such a situation was inherently objectionable. Further, in H.M. Advocate v O'Neill, Lord Justice General Hope, as he then was, characterised the custom of bringing to trial all persons against whom concerted activity was alleged as a practice and not a rule.

[11] As regards the size of the batches of accused persons contemplated as being brought to trial in the present case, the Advocate depute said that there was no particular significance in them. There was no question of ringleaders being selected to stand trial together, or in any particular batch. The batches identified were of such a size that they could practicably be fitted into a jury court.

[12] The central issue in the contemplated trials was that of identification of those persons involved. There was no serious issue about whether there had been a serious disturbance on the occasion in question. The authorities relied upon by the appellants, in general, involved alleged crimes of dishonesty, where there were several persons accused. The nature of the present case was different. It did not involve a situation where there was a conspiracy, or plan, to commit some particular offence. The situation here was that mobbing and rioting had developed, involving a number of people. In the cases of H.M. Advocate v O'Neill and H.M. Advocate v Clark, identifiable prejudice was present. The trials in those cases would have involved examination of the actings of persons not named in the indictment. The same situation was not present here. In H.M. Advocate v McWilliam, the fourth person had not even been named. Accordingly, in those cases prejudice was readily identifiable. They could therefore be distinguished.

[13] It was appropriate to examine carefully the prejudice alleged to be inherent in the handling of the present case by the Crown. That prejudice was said to arise out of the circumstance that, if the accused were tried in batches, certain police witnesses would require to give evidence several times. As regards that suggestion, it was submitted, first, that in a case where the trials were to be conducted before juries, each jury would come afresh to hear the evidence of the witnesses concerned. They could, in the normal way, assess the credibility and reliability of those witnesses. A further consideration was important, if it were the case that the evidence of these witnesses altered in any material respect as between one trial and another; an immediate criticism of their evidence could be mounted on behalf of the accused, upon the basis that they had made prior inconsistent statements in their earlier evidence. It was wrong to assume that, in successive trials, the evidence of these witnesses could be expected to be upon exactly the same topics. As was recognised in Stirling v Herron 1976 S.L.T. (Notes) 2, while the witnesses would, no doubt, give evidence repeatedly on the general matter of the disturbance, they would require to give evidence about any participation on the part of the particular accused involved in each trial once only. The fact that the evidence of the common witnesses would be re-assessed afresh in each case was recognised as an important consideration by Lord Justice General Hope in H.M. Advocate v O'Neill at page 141. In all these circumstances no prejudice had been shown to be involved in the course selected by the Crown.

[14] The Advocate depute went on to submit that, in any event, it would be incompetent for the Court to order the conjunction of indictments. All of the authorities before H.M. Advocate v McWilliam had recognised that a decision as to the persons to be included in a particular indictment was a matter for the Crown, not the Court. It was, of course, recognised that the Court could order separation of trials, in appropriate circumstances. It was true that in H.M. Advocate v McWilliam, the sheriff had ordered the conjoining of indictments, although the Crown had appealed against that decision, but had lost. It appeared from the report of the case that the issue of competency was not argued. In these circumstances H.M. Advocate v McWilliam was, in this respect, of dubious authority. That circumstance was of little practical importance because, if the Court were to consider that prejudice would be involved in following the course selected by the Crown in this case, what it could do would be to decline to allow the indictment against the present appellants to go to trial. If that were the decision of the Court, plainly the Crown would require to think again as to its approach to the case. However, there was no prejudice justifying such a course. In all these circumstances, these appeals ought to be refused.

[15] Counsel for the first and second named appellants replied.

Decision:

[16] The appellants in these appeals have raised two objections to the course which the Crown have chosen to follow. In the first place, it has been contended that that course has involved a departure from the proper course of indicting in a single indictment all persons against whom concerted criminal activity is alleged. In the second place, it has been contended on their behalf that the course followed by the Crown here of seeking to conduct several trials against batches of accused persons would result in real and material prejudice in the circumstances of this case.

[17] Dealing with the first of these objections, plainly it has been recognised for many years that, in the absence of some good reason to the contrary, the participants in the commission of some alleged crime should be convened under the same indictment. In that connection we refer to what was said by Lord Murray in H.M. Advocate v Monson (1893) 21 R. (J.) 5; 1 Adam 114. However, it has been recognised that it is competent to proceed in another way. In this connection we draw attention to the observations of Lord Justice Clerk Aitchison in H.M. Advocate v Clark at page 55, where he said:

"There are many cases in which two or more persons may be concerned in the commission of a crime in which the Crown may be justified, for one reason or another, in not proceeding against all the persons concerned although libelling all has having acted in concert. A typical instance is where one of the persons concerned has absconded and cannot be found. Again, the incapacity of a conspirator from age or illness to stand trial may be a sufficient reason for not indicting him although he is named as a conspirator in the indictment. Or again, the number of persons acting in concert may be so large, as, for example, in a case of mobbing and rioting, that it may not be practicable to bring them all to trial on the same indictment. I am unable, therefore, to agree to the view that the course followed by the Crown is in any way incompetent."

[18] In that case the Court went on to decline to remit an indictment to an assize in which one of several conspirators was not included, upon the ground of identifiable prejudice. Commenting on H.M. Advocate v Clark at page 140 in H.M. Advocate v O'Neill, Lord Justice General Hope said:

"As Lord Justice Clerk Aitchison pointed out in Clark at page 55, there is no doubt that in the ordinary case the Court will only with the greatest reluctance interfere with the discretion of the Crown. But its power to do so is beyond question, and in all these cases where oppression is alleged, or where it is suggested that there is a material risk of grave prejudice to the accused, the ultimate decision must rest with the Court. That, it seems to me, is the true ratio of Clark, which is accurately reflected by the rubric of the report in that case - that, while the Court would not, in ordinary circumstances, interfere with the discretion of the Crown, it was nevertheless within its power to disallow procedure which, in its opinion, might lead to a miscarriage of justice."

Against this background, we cannot conclude that there is any inherent impropriety in the course which the Crown intends to follow in bringing to trial the appellants and other persons alleged to have been involved in the incident of mobbing and rioting concerned. The Crown have explained that its purpose in bringing to trial the remaining 24 accused, including the appellants, in batches of six accused is justified by the practicalities of the situation. While it might be possible to mount a trial of 24 accused persons in a suitably adapted building which might be able to be identified, the Crown considers that the only practicable course is to mount successive trials of six accused persons in each case in existing court buildings. We are unable to say that the decision to proceed in that way is, in itself, unreasonable.

[19] We turn now to deal with the second contention advanced on the part of the appellants to the effect that there was a material risk of real prejudice to them in the course which the Crown had chosen to adopt. The basis of this argument was that the three police witnesses who had given evidence in the first trial of five accused persons would require to give evidence again in the trial of the appellants and in succeeding trials. Thus, the first trial could be seen as a "dress rehearsal" for the appellants' trial, which had conferred upon the prosecutor an advantage at the expense of the appellants. In order to evaluate this submission, it is appropriate to consider the nature of the evidence which these witnesses might give in the appellants' trial. In the first place, we understand that they would give evidence about the general nature of the incident which has given rise to the indictment, of a serious disturbance, characterised as mobbing and rioting. In the second place, the witnesses would be likely to give evidence identifying the appellants as having been involved in that incident. While we recognise that evidence regarding the general nature of the incident, which may not be seriously disputed, would be given in the appellants' trial for the second time, any evidence that these witnesses might give identifying the appellants as participants in that incident would obviously be given in their trial for the first and probably the only time. Thus the repetition of evidence already given in the first trial would occur only in relation to the incident generally, a matter not said to be controversial. So far as the evidence of identification is concerned, that evidence would be unique to the appellants' trial. In these circumstances, we are not persuaded that there is any material difference between these witnesses testifying in the appellants' trial and of police witnesses giving evidence of identification in any trial. In relation to the controversial matters, there is no question of evidence having been rehearsed.

[20] In any event, even if the situation existed that evidence might be given for a second time in the appellant's trial on a controversial matter, we are not persuaded that that state of affairs would give rise to the prospect of serious prejudice to the appellants. As was pointed out by Lord Justice General Hope in H.M. Advocate v O'Neill at page 141, in relation to a similar argument advanced in that case:

"The credibility and reliability of all the witnesses will be for the jury to assess, but it will open to the sheriff to remind them that those witnesses who gave evidence in the previous trial have had that advantage and that the jury should take this into account in their assessment of their evidence."

Indeed, one might point out that where witnesses have given evidence in a trial which they require to repeat in a second or subsequent trial, the evidence of those witnesses may be critically examined by reference to what they have said on oath on the first occasion. That puts those witnesses in a more unfavourable position than they would have been had they been giving evidence on the topic in question for the first time. For these reasons, we are not persuaded that there is any material risk of prejudice to the appellants arising from the circumstance that three police witnesses may give evidence in their trial, who have already given evidence in the trial of the first five accused to be tried.

[21] Before us there was some discussion as to the possibility of the Court "conjoining" the indictment which the appellants faced with the indictments now brought against the remaining 18 accused persons. It was pointed out that indictments were conjoined by the sheriff in H.M. Advocate v McWilliam, without unfavourable comment in this Court. Having regard to the view which we have taken, it is not necessary for us to decide whether such a course is competent. However we note that in H.M. Advocate v McWilliam, no submission was made to the sheriff that the course which she decided to follow was incompetent. The issue of the competency of the course taken, it appears, was not raised in this Court either. In these circumstances, we cannot regard that case as authority for the view that the conjoining of indictments by the Court is a competent course. We feel bound to say that we are of the opinion that it is not. As was pointed out by Lord Anderson in H.M. Advocate v Clark, at page 57:

"The powers of the Lord Advocate as regards the instance of an indictment and the procedure at the trial are undoubtedly wide, but they are not absolute. It may be that the Court cannot compel the Lord Advocate to follow a procedure which they believe to be right, but I have no doubt that they can prevent him from pursuing a procedure which they adjudge to be wrong, and this, the Court is always entitled, and indeed bound, to do where it is shown that, by abuse of procedure, an accused person is so prejudiced in his defence that a miscarriage of justice may ensue. As I consider that the proposed procedure of the Crown is bad, I am of opinion that we can interpel the trial of this case from proceeding, and I think we ought so to do."

Thus, in appropriate cases, the Court may order the separation of trials of persons who, in the first instance, have been made subject to a single indictment. Equally, it can refuse to remit for trial an indictment on which it considers that some additional accused person should have been arraigned, as was done in H.M. Advocate v Clark. However, we consider that the Court could not competently order that two or more indictments, framed by the Crown, should be tried together in a single trial.

[22] In all these circumstances, the appeals are refused.