NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE BY LIEUWE HOEKSTRA and JAN VAN RIJS and RONNY VAN RIJS and HENDRIK VAN RIJS v. HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord McCluskey Lord Kirkwood Lord Hamilton | Appeal Nos: C213/97 C212/97 C226/97 C254/97 OPINION OF THE COURT in NOTE OF APPEAL AGAINST CONVICTION and SENTENCE by LIEUWE HOEKSTRA, JAN VAN RIJS, RONNY VAN RIJS and HENDRIK VAN RIJS Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellants: Mr. Van Bavel, Gebbie; Anderson Strathern: Mr. Pen, McLaughlin; Anderson Strathern: Mr. Jahae, Gilday; Macafee: Dr. Sjöcrona, Nelson; Macafee
Respondent: F.J. McMenamin, Q.C., A.D.; Crown Agent
28 January 2000
The Background to the Appeals
On 29 July 1996 two vessels were boarded in the North Sea by officers of H.M. Customs & Excise. One, the "Ocean Jubilee", was boarded in territorial waters off the north coast of Scotland. The other, the "Isolda", was boarded on the high seas. The occupants of the Isolda were the present appellants, four Dutch nationals. They were arrested on suspicion of having committed crimes or offences against the law of the United Kingdom by shipping a cargo consisting of three tonnes of the drug cannabis resin, in bales, to a rendezvous in the North Sea at which the bales were to be, and were, transferred to the Ocean Jubilee, which was to transport them on to the United Kingdom. On 25 November 1996 the present appellants were brought to trial in the High Court of Justiciary on a charge of being knowingly concerned in the attempted fraudulent evasion of the prohibition in force with respect to the importation into the United Kingdom of cannabis resin under section 3(1) of the Misuse of Drugs Act 1971, contrary to the Customs & Excise Management Act, 1979, section 170(2)(b). There was an alternative charge against these appellants; it was departed from during the trial. There were five others (the British accused) facing charges on the same indictment, the Crown case being that their role included making and carrying out arrangements for conveying the drugs from the rendezvous at sea to the United Kingdom in order to complete and effect the fraudulent evasion of the said prohibition. Of the five, two, Gary John Hunter and Roderick McLean Senior, sailed the Ocean Jubilee to the rendezvous point in the North Sea where, according to the Crown case, the two vessels met and, over a period of about 23 minutes, the drugs were transferred from the Isolda. The Crown case against the other three, Roderick McLean Junior, Kenneth Corrigan and Brian Silverman, was that they assisted in the operation by making necessary preparations on the mainland of the United Kingdom in connection with the intended landing of the cargo there and its handling thereafter. Gary John Hunter, Roderick McLean Senior and Kenneth Corrigan faced an additional charge relating to the setting fire to the Ocean Jubilee when officers of Her Majesty's Customs & Excise attempted to board that vessel, and to related matters. The trial of all nine accused began at the High Court, sitting at Dunfermline, on 25 November 1996. In the course of the trial the Crown sought and was granted leave to amend the indictment, but the first alternative to the first charge remained, libelling a contravention of section 170(2)(b) of the Customs & Excise Management Act 1979. Roderick McLean Senior eventually pled guilty to this charge and another charge but only after all the evidence had been led; he did not give evidence. Kenneth Corrigan was acquitted by the jury. All the others were convicted by the jury on 20 February 1997. The trial diet was adjourned for sentence until 13 March 1997. At that adjourned diet Lieuwe Hoekstra, the first-named appellant, and Jan Van Rijs, the second-named appellant, were each sentenced to 14 years' imprisonment, backdated to 29 July 1996. Ronny Van Rijs, the third-named appellant, and Hendrik Van Rijs, the fourth-named appellant, were each sentenced to 10 years' imprisonment, also backdated to 29 July 1996. The other convicted accused also received long prison sentences.
The procedure in the Appeals
The four present appellants sought and obtained leave to appeal. For convenience, they may be referred to in this Opinion by name. Hendrik Van Rijs appealed against sentence only when he first sought and obtained leave to appeal. The British co-accused who had been convicted by the jury also appealed against conviction. Their appeals were dealt with separately and were disposed of in December 1998: cf. Hunter & Ors. v. H.M. Advocate 1999 S.C.C.R. 72. The appeals of Hunter and McLean Junior were refused. Silverman's appeal was allowed and his conviction quashed. The Crown were given authority to bring a new prosecution. They did so and Silverman was again convicted at the High Court sitting in Dunfermline on 24 March 1999.
The full details of the initial stages of the present appeal process are not narrated here, because the appellants, not being satisfied with the advice and services of those then representing them, ceased to be represented by them. They eventually engaged the services of other lawyers and, with the assistance of certain of the lawyers now acting for them, lodged proposed replacement Grounds of Appeal in or about May 1999. On 7 July 1999 the Court allowed those Grounds of Appeal to be substituted for the earlier Grounds and, on the understanding that the hearing of the appeals would be likely to take several weeks, appointed the appeals to be presented in stages, the first stage to be restricted to the particular Grounds specified in the court's interlocutor of 7 July 1999. In the period immediately prior to the date of the hearing of the first stage of the appeals various other procedural steps were taken on behalf of the appellants: the appellants lodged in the appeal process several Devolution Issue Minutes and Petitions to the nobile officium of the Court. In consequence, the eight days set aside for the presentation of the appeals so far as based on the Grounds specified in the interlocutor of 7 July 1999 were largely devoted to hearing submissions from the appellants' lawyers and from the Crown relating to the Devolution Issue Minutes and the Petitions.
At the hearing of the appeals, which commenced on 23 November 1999, each of the four appellants was represented by a Dutch advocate, and each Dutch advocate was assisted by a member of the Faculty of Advocates. All were instructed by Scottish solicitors. As the appeal hearing progressed certain of the matters raised in the Minutes and Petitions were resolved or not insisted upon. The Devolution Issue Minute of Lieuwe Hoekstra dated 12 November 1999, relating to the trial judge's alleged failure to give reasons for his decisions in relation to legal submissions made to him on 4 and 9 December 1996, was not insisted upon. The same appellant's Petition to the nobile officium of the High Court of Justiciary, dated 12 November 1999 and relating to the same matter, was also not insisted upon. None of the other appellants advanced this submission. It is accordingly unnecessary to narrate the facts and submissions relating to those matters. Additional Grounds of Appeal for Ronny Van Rijs and Hendrik Van Rijs were tendered in November 1999; as these raised no new matter we shall allow these new grounds (15 and 16) to be added to those already allowed.
The matters that remained live for the decision of the Court will be considered in this Opinion. They comprise the matters raised by the six remaining Devolution Issue Minutes. We shall also consider the Grounds of Appeal that were argued at this hearing. Although each appellant was separately represented, those appearing for the appellants had reached an understanding in terms of which each Dutch advocate would present one branch of the submissions and, to avoid repetition, the others would adopt those submissions insofar as relevant to their clients' Grounds of Appeal and Minutes. Junior counsel also presented submissions on a similar basis.
It is appropriate to begin by summarising the evidence admitted at the trial upon which the Crown sought and obtained the convictions of the four appellants and the four others. This summary is partly based upon that set forth in the Opinion of the Court in Hunter v. H.M. Advocate.
The evidence - a brief summary
The Crown case was that the operation to import the cannabis resin in to the United Kingdom was to be furthered by means of the transfer of those drugs at a pre-arranged rendezvous point in the North Sea from the Isolda, which had sailed from Cadiz, Spain, to the west of Ireland and north of Scotland, to the Ocean Jubilee, which had sailed from Wick crewed by McLean Senior and Hunter. No evidence was adduced to show when and how the drugs were loaded onto the Isolda. After the Ocean Jubilee had re-entered United Kingdom territorial waters carrying the drugs, she was boarded, with some difficulty, by customs officials and brought to a Scottish port for examination. The Isolda was boarded on the high seas on the same day. The movements of the two vessels had been the subject of surveillance operations by Officers and agents of H.M. Customs & Excise.
There was evidence that on 11 May 1996 McLean Senior went to Seville. He took with him a card which bore a code word 'Eric' and a reference to 'channel 8'. (The Crown maintained that the latter referred to a ship-to-ship radio communication channel and the former was the name used by him when later the two vessels were communicating). On 16 May 1996 Hunter also travelled to Seville. In early June, McLean Senior and McLean Junior, his son, travelled to an address in London from where two telephone calls were apparently made to Spain. One of these calls was to a person known as 'Alf', who the Crown suggested was the organiser of the venture. In London the McLeans were given a lift in a BMW motor car, which was later seen to be parked beside a Renault Espace vehicle, which was registered in the name of Silverman. On 12 June 1996 McLean Senior purchased the Ocean Jubilee in Milford Haven for the sum of £29,000 in cash, which was carried in a plastic bag. Hunter was present at the time of this transaction. McLean Junior had driven him and his father down to Wales. On 16 June 1996 the Ocean Jubilee, crewed by McLean Senior and Hunter sailed northwards from Milford Haven. On 18 June 1996 McLean Junior hired a Rover motor car which he drove to Ullapool on the following day. There he made contact with his father and Hunter. Thereafter the Ocean Jubilee sailed from Ullapool to Scrabster, while McLean Junior drove the Rover motor car to that port. On 20 June 1996 McLean Junior picked up his father and Hunter at Scrabster and drove them back to Edinburgh. On 25 June 1996 McLean Senior again travelled to Spain, apparently at short notice. When he returned from Spain he made arrangements about the hiring of a shed in Kirkcaldy. Meanwhile the Ocean Jubilee lay in Scrabster. Although she was ostensibly in need of repair, no work was done to her.
On 13 July 1996 the Isolda sailed from Cadiz, apparently stating Gothenburg as her destination. The crew consisted of the four present appellants. She proceeded on a course which took her out into the Atlantic and then round Ireland and Scotland. On 18 July 1996, while the vessel was still in the Atlantic, two sets of geographical co-ordinates were inserted into her navigation system. One was set for a point just off the Dutch coast and the other for a point in the North Sea, 59o north 1o west.
On the following day, 19 July 1996, McLean Senior travelled to London by train. At Kings Cross Station he had a very brief meeting with Silverman, and within minutes took the next train back to Edinburgh. On his return to Waverley Station in Edinburgh, he made a telephone call from a telephone box to Alf in Spain, and was overheard to say that everything had been sorted out or to use words to that effect. He then attempted to purchase sea charts. On 22 July 1996 McLean Senior hired a Skoda car for a period up to 29 July. On the same day he paid the initial rent for the shed at Kirkcaldy. On 23 July 1996 he and Hunter travelled back to Scrabster in the Skoda, which was driven by Corrigan. Corrigan then returned to Edinburgh. On 24 July 1996 McLean Junior took Corrigan to a depot where Corrigan hired a van for a period up to 31 July, using money provided to him by McLean Junior.
On 25 July 1996 McLean Senior and Hunter sailed from Scrabster on the Ocean Jubilee and remained at sea overnight. They apparently travelled to the vicinity of 59o north, 1o west. After some time in that area they returned to Wick. (The Crown referred to this journey as the practice run). On 25 July Silverman travelled from London to Edinburgh where he was met by McLean Junior who took him to the Lovat Hotel. On the following day Corrigan uplifted an industrial-weight trolley and took it in the Skoda car to the shed at Kirkcaldy. There he was apparently contacted by McLean Junior. From there he travelled to Wick where he collected McLean Senior and Hunter and drove them back to Edinburgh. On the same day McLean Junior apparently phoned Silverman, then Alf, then McLean Senior who at that time was still in Wick. In the course of this sequence of events he received a telephone call from the Isolda.
On 28 July Corrigan drove the Skoda to Inverness with McLean Senior as his passenger. At the same time Hunter drove his own car to Inverness. Thereafter all three travelled in the Skoda car to Wick where they all took part in the unloading of a number of items from the car into the Ocean Jubilee. The items taken to Wick included charts, bottles, a hose and white spirit. Later that day the Ocean Jubilee sailed from Wick with McLean Senior and Hunter on board, while Corrigan drove the Skoda car back to Edinburgh, and left it apparently for the use of Silverman near the Lovat Hotel. The Crown maintained on the basis of evidence led at the trial that in the early hours of 29 July the Ocean Jubilee and the Isolda came together in the North Sea and remained in the company of each other at sea for about 23 minutes, during which, it was inferred, the transfer of the cannabis resin took place. Later in the afternoon of that day both vessels were boarded. In the case of the Ocean Jubilee this was after her cargo had been set on fire by one or both of those on board by means of accelerants. Meanwhile Corrigan had hired a van and driven it to Inverness. In a newspaper in the van was what purported to be an invoice which bore to be dated 29 July. In handwriting was the name Robert Wiseman and the address 10 Friend Street, London and a telephone number with the message 'Telephone above number approx. one hour before delivery. Thank you'. It bore to record the sale by Tilcot U.K. to Wiseman Industries of London of '650 insulation boards (asbestos)' for the sum of £2,700 c.o.d. The type and style of boards were identified. Corrigan was detained in Inverness. On the same day Silverman and McLean Junior were detained in Edinburgh.
The Crown maintained that it had been intended that the Ocean Jubilee would put into Inverness with the cargo of cannabis resin and that it would be unloaded into the van which Corrigan had driven there. The cargo would then be taken to the shed at Kirkcaldy, and Silverman would drive to London with all or part of it. The invoice indicating a cargo of asbestos-related goods was designed to discourage close examination in the event of the van being stopped by any person in authority. There was evidence that the cargo of cannabis recovered from the Ocean Jubilee had a street value of £10 million.
In addition to the evidence summarised in the Court's opinion in Hunter & Ors. v H.M. Advocate there was evidence as to the activities and movements of the four Dutch accused and of the Isolda. Some of that evidence came from Lieuwe Hoekstra, and some from Ronny Van Rijs; the other Dutch accused did not give evidence. In particular, evidence was given by Hoekstra to the effect that he purchased the Isolda in Spain in June 1995 as an investment. He explained that the boat technically belonged to a limited company, Maddens Holdings Limited, and that he acquired the boat by buying the company. In buying it he had the advantage of receiving advice from his brother-in-law, Jan Van Rijs, whom he described as a specialist, an expert in boats. Hoekstra paid 240,000 guilders for it; he said that was the equivalent of £100,000 sterling. He expected to re-sell it, after doing some work to improve its condition, and to make a profit on the whole transaction. He knew nothing about sailing or about charts or tides. The plan, he said, was to do all the repairs that were necessary and then make a family trip and thereafter sell the boat. He described the movements of the boat after the purchase. It was taken after a few weeks to the Canary Islands because, he said, there was a purchaser who wanted to buy the boat, for $250,000. That proposed sale was not carried through, but Mr. Hoekstra was allowed to retain a deposit paid to him by the would-be purchaser. The deposit was $25,000, 10% of the agreed purchase price. Thereafter, in September 1995, he went on a cruise in it with his wife and family. In May or June 1996 he went to Cadiz with the boat. From there it went out for a trip with another prospective buyer. Some work had been done on the bilge pump and the engine when the boat was in the Canary Islands. Yet further work had to be done on the exhaust in Cadiz. By mid July it was ready for the planned family trip, to Gothenburg; Hoekstra said that the family had planned this trip in January. The four appellants were to sail to Gothenburg where, it was said, they were to be joined by their wives. The four appellants were all related to each other: Hoekstra and Jan Van Rijs were married to sisters; Ronny was the son of Jan; Hendrik's father was Hoekstra's cousin. They set out from Cadiz on a course plotted by Jan Van Rijs. That voyage via the Atlantic, west of Ireland and north of Scotland took them to a meeting with the Ocean Jubilee and later to their encounter with the officers of the Customs & Excise who boarded the vessel. As noted earlier, in the course of that voyage, on 18 July 1996, the co-ordinates 59N 1W were entered into the Isolda's navigational system. The meeting of the Isolda and the Ocean Jubilee was said to have taken place at approximately 59N 1W about 3.24 a.m. on 29 July 1996. The Ocean Jubilee was boarded about 3.15 p.m. later in the day and the Isolda about 3.30p.m. At the trial, the Crown led forensic evidence suggesting that there were then significant traces on the Isolda, and on the clothing of the appellants, of the materials on and covering the bales of cannabis resin that were found on the Ocean Jubilee by the Customs & Excise officers who boarded that vessel. The Crown also founded upon evidence that someone on the Isolda was in constant telephone contact with "Alf" during the voyage and that McLean Senior was similarly in touch with Alf over the same period. Additionally the Crown founded upon evidence pointing to telephone communications between the Isolda and McLean Senior in the period immediately preceding the meeting between the two vessels . In summary, the Crown founded upon evidence showing constant communication between the two vessels at sea and with Alf in Spain indicative of arrangements for the two vessels to meet at 59N 1W. There was evidence from Crown witnesses, which was challenged and disputed, that the two vessels met and were together for about 23 minutes, a period during which the Crown maintained the drugs were transferred. There was evidence that persons on board the Isolda had plotted a course for Holland and that by about the time of the meeting of the two vessels the appellants were intending to go to Holland, not to Sweden.
Hoekstra said in evidence that Jan Van Rijs had told him during the voyage that there was a "chance for the transporting of 12 bales of tobacco from the North Sea to Denmark", acknowledging that it would probably be "illegal". He said that he (Hoekstra) and the others had declined to take part in this proposed operation. Jan, he stated, had made repeated attempts, ultimately successful, to communicate by telephone with the person or persons with whom Jan had previously discussed this tobacco transporting idea. Jan then informed Hoekstra that it was cancelled: "It is over; it is not going to happen; it is over." That cancelled proposal then became the background to Hoekstra's evidence of an encounter in the North Sea after midnight (i.e. the night of Sunday 28 July and the early hours of Monday 29 July) between the Isolda and another vessel. Both Hoekstra and Ronny Van Rijs gave evidence of such an encounter. Hoekstra said in evidence that he had been asleep but was awakened by realising that the Isolda's engine was "stationary", "idle". He observed Jan in the wheelhouse quarrelling with someone on the other vessel, a person who spoke with a voice that Hoekstra (though he understood some English) could not understand "because of the accent". He also observed the silhouette of a ship about five or six metres away. The person with whom Jan was quarrelling was in the wheelhouse of that other vessel, which lay to the starboard. Hoekstra's evidence was that he heard Jan say to the man, in English, "It's not going through; we are not taking it." He gave further details of this alleged conversation. At that time Ronny and Hendrik were outside (i.e. on deck). After the other vessel had left the scene, Jan said to Hoekstra, "They have pressurised me to meet this man...I was forced to meet that man." Hoekstra stated in evidence that he had enquired no deeper into the matter of the meeting of the two boats. He said that he had no knowledge that anything was transferred between the two boats; the Isolda had carried no cargo at any time other than food and materials needed for the voyage. Ronny Van Rijs gave evidence that when the two vessels met in the North Sea he used his stockinged foot to try to push the Ocean Jubilee away from the Isolda.
It is also appropriate to note that, in evidence in chief, Hoekstra described the route from Cadiz as "a classical route" via the West of Ireland, the Shetlands and the Fair Isle. He at no point suggested that the Isolda sailed through Moroccan waters or was boarded by the Moroccan Navy. In re-examination he said, in terms, "The boat has never been in the neighbourhood of Morocco". This evidence is mentioned here because, as will be discussed later, it was submitted, by Mr. Jahae, on behalf of the appellants, that one reason for seeking full disclosure about the tracking device (see paragraph 3 of the Schedule to the Devolution Issue Minutes for the third and fourth-named appellants) was that the records of its use might shed light upon the matters referred to in Ground of Appeal No. 2 for the first two appellants and 3(b) for the other appellants.
For present purposes, we need not refer further to the evidence relied upon by the Crown. It is no part of our purpose at the present stage in these proceedings to rehearse or summarise all the evidence founded upon by the Crown or to assess the strength of the Crown case in any particular.
In our opinion it would be appropriate to deal first with the matter raised in Devolution Issue Minutes for all four appellants, namely the involvement in this case of Mr. Graham C. Bell, Q.C., Advocate-depute.
The Facts - Devolution Minutes - Graham C. Bell, Q.C., Advocate-depute
All four appellants lodged Minutes in accordance with Form 40.4A of the Act of Adjournal (Criminal Procedure Rules) 1996 as amended by the Act of Adjournal (Devolution Issues Rules) 1999 stating that they intended to raise a devolution issue within the meaning of Schedule 6 to the Scotland Act 1998. The Minutes were in similar terms and contained the following narrative:-
(1)that on 7 July 1999 there was a hearing before the Court of Appeal at which
Lieuwe Hoekstra and Jan Van Rijs appeared as unrepresented appellants, and Ronny Van Rijs and Hendrik Van Rijs appeared as appellants,
(2)that at the hearing each of the appellants was to present fresh Grounds of
Appeal, which were untimeous, to replace grounds previously lodged, the new Grounds of Appeal for Lieuwe Hoekstra and Jan Van Rijs being virtually identical in their terms, and the Notes of Appeal for the other two appellants being substantially identical,
(3)that the Grounds of Appeal were to be the subject of comment by the Lord
Advocate speaking through one of his deputes, as regards their nature and substance as directed by the Lord Justice Clerk at a previous procedural hearing heard by the Court of Appeal sitting at Edinburgh on 20 May 1999,
(4)that an Advocate-depute, who was a senior counsel, attended in court on the
morning of 7 July for the purpose of representing the Lord Advocate at said hearing,
(5)that prior to his appointment as an Advocate-depute the said senior counsel
had been counsel for the appellant Jan Van Rijs in respect of his appeal against his conviction on said charge of contravening section 170 of the Customs & Excise Management Act 1979, and had also been counsel for the appellant Hendrik Van Rijs in respect of his appeal against his conviction on the same charge,
(6)that in his capacity as counsel for Jan Van Rijs and for Hendrik Van Rijs said
senior counsel was privy to confidential information and instruction in respect of said appeal,
(7)that in his capacity as counsel for Jan Van Rijs said senior counsel considered
said information and instruction, consulted with Jan Van Rijs, gave a written opinion on matters concerning the Grounds of Appeal and provided draft Grounds of Appeal and in his capacity as counsel for Hendrik Van Rijs he met with him, tendered certain advice and is believed to have appeared in a representative capacity at a previous procedural hearing,
(8)that in the above circumstances the Lord Advocate's use of said senior counsel
as his depute was contrary to natural justice and to the Guide to the Professional Conduct of Advocates' Rules. Rules 8.1.1, 8.1.2, 8.2.4, 8.2.5, 9.4.2, 9.7.1, 9.8.1 and the Declaration of Perugia on the Principles of Professional Conduct of the Bars and Law Societies of the European Community (16.ix.1977) are referred to for their terms brevitatis causa,
(9)that in the above circumstances the actings of the said senior counsel, in his
capacity as the Lord Advocate's depute, were the actings of the Lord Advocate and were contrary to natural justice and to the Guide to the Professional Conduct of Advocates' Rules.
(10)that in the above circumstances, where the Grounds of Appeal for Lieuwe
Hoekstra and Jan Van Rijs are virtually identical, the Lord Advocate's actings have violated the right of each of these appellants to a fair hearing contrary to Article 6(1) of the European Convention on Human Rights, and the rights of the other two appellants to a fair hearing have similarly been violated.
Submissions in relation to all four Minutes were heard at the commencement of the Appeal Court hearing on 23 November 1999 before the court considered any of the Grounds of Appeal. At the hearing it was clear that certain facts relating to the minutes were not in dispute. Prior to the trial of all the accused, a preliminary diet was held on 15 November 1996 to consider an application that the trial, which had been due to commence on 18 November 1996, should be postponed for a week. At that diet one of the appellants, Hendrik Van Rijs, was represented by Mr. Graham Bell, Q.C. This application was not opposed and was granted, and the hearing was a purely formal one. Once the very restricted nature of the hearing on 15 November 1996 became apparent it was not submitted to us that Mr. Bell's involvement in that particular hearing had resulted in any subsequent violation of the right of any of the appellants to a fair hearing. The appellants were convicted, after trial, on 20 February 1997 and it was common ground that Mr. Bell, who had not taken part in the trial, subsequently advised the appellant Jan Van Rijs in relation to an appeal. In particular, Mr. Bell consulted with him in Shotts Prison on two occasions in 1997 and subsequently wrote a note confirming the advice which he had given on the prospects of success on an appeal. He also revised the Grounds of Appeal. On 1 January 1998 Mr. Bell was appointed an Advocate-depute.
On 20 May 1999 there was a procedural hearing before the Appeal Court at which Lieuwe Hoekstra and Jan Van Rijs appeared as appellants but were not represented. The other two appellants appeared and were represented. Each of the appellants tendered at the bar of the court proposed fresh Grounds of Appeal which were intended in each case to replace all the Grounds of Appeal previously lodged. The court continued the procedural hearing until Wednesday 7 July 1999 at 10 a.m. and indicated that at the continued hearing the court would consider inter alia whether, and to what extent, the proposed Grounds of Appeal tendered by each of the appellants were to be allowed to be received.
When submissions were made to us in relation to the Minutes by counsel for the appellants and by the Advocate-depute, it became apparent that there was a dispute as to exactly what had taken place on 7 July 1999 and the preceding day and in these circumstances we decided that the proper course was to hear evidence so that the facts could be ascertained and we could then consider the submissions of the parties in light of the established factual position. We heard evidence from Mrs. Rosemary Cameron, an unqualified assistant in the firm of Anderson Strathern, W.S., Edinburgh, Mr. Rory McNeill, a partner in that firm, Mr. Graham Bell, Q.C., Mr. Duncan Menzies, Q.C., the Home Advocate-depute, and Miss Gillian Climmie, a Crown Office solicitor. Although Lieuwe Hoekstra and Jan Van Rijs were unrepresented at the procedural hearing on 7 July, they were during this period being advised by Mr. Carroll of John Carroll & Co., Solicitors, Glasgow and Anderson Strathearn were their Edinburgh correspondents.
We do not propose to rehearse all the evidence which was led before us. We shall deal with the factual issues in relation to which there was a conflict of evidence and set out the material facts which we found to be established.
The Appeal Court hearing was due to commence at 10 a.m. on 7 July 1999. As we have said, Lieuwe Hoekstra and Jan Van Rijs were not represented but Mr. McNeill and Mrs. Cameron were there to advise them; Mr. Carroll was unable to be present on that day. Shortly before the start of the hearing Mr. Bell came into the courtroom. He had been instructed to appear at the continued procedural hearing on behalf of the Crown. At that point Mrs. Cameron, who was aware that Mr. Bell had previously advised Jan Van Rijs in relation to his appeal, approached him and asked if he was appearing for the Crown at the procedural hearing. Mr. Bell replied that he was and Mrs. Cameron drew his attention to the fact that he had earlier advised Jan Van Rijs, who was one of the appellants, in relation to his appeal. Mr. Bell then left the courtroom and arranged for Mr. Duncan Menzies, the Home Advocate-depute, to appear for the Crown at the procedural hearing, the start of which was delayed until Mr. Menzies arrived. When the appellants were brought in to the courtroom and the Appeal Court sat, the Crown was represented by Mr. Menzies and the court allowed the proposed fresh Grounds of Appeal for each of the appellants to be received, there being no opposition from the Crown. Indeed, in the course of the hearing, which dealt only with the admission of the new Grounds of Appeal and the procedure to be followed at the hearing of the first stage of the appeal, there was no dispute which had to be resolved by the court and, in particular, the Crown offered no opposition to any of the proposals made by the court and by the appellants. The appellants learned from their solicitors of Mr. Bell's attendance in the courtroom.
There was a conflict of evidence in relation to some aspects of the events which we have narrated and to certain related matters. Put shortly, Mr. Bell stated in evidence that he had represented the Crown at the hearing of the bail appeals that morning. He had been advised that he was to represent the Crown at a procedural hearing but was told that the purpose of the hearing was simply to fix a date for the hearing of the substantive appeals. He had not been given any papers for the procedural hearing but Miss Climmie had brought the papers to court with her. He did not expect to have to make any meaningful contribution at the procedural hearing and he did not even know the names of the appellants. After Mrs. Cameron spoke to him, outside the courtroom according to his recollection, he looked at the papers for the first time and saw the names on the folder, one of which was Jan Van Rijs. He then advised the clerk of court that there was a problem and the hearing was delayed until Mr. Menzies was found and arrived in court. Since Mr. Bell had become an Advocate-depute he had made a practice of checking papers which he received in case a previous client of his was involved and he could thus not appear for the Crown.
Mrs. Cameron gave evidence that she spoke to Mr. Bell in the courtroom and there asked him if he had remembered that he had advised Mr. Jan Van Rijs in relation to his appeal; Mr. Bell had replied that he had recognised the name when he had looked at the papers the night before. Mr. McNeill stated that he was in the courtroom for the procedural hearing. He saw Mr. Bell standing in the courtroom and Mrs. Cameron speaking to him but he did not pay very much attention and he did not hear what was said. He then saw Mr. Bell leaving the court and shortly afterwards Mr. Menzies appeared to represent the Crown. Miss Climmie, a solicitor in the Crown Office Appeals Unit, gave evidence that it was her recollection that Mr. Bell had received the papers prior to the hearing and that he had telephoned her to say that he could not appear for the Crown as he had previously acted for one of the appellants. She thought that he had telephoned her the previous afternoon but she could have been mistaken. On the morning of 7 July she had seen Mr. Bell in court and heard him telling Mrs. Cameron that he could not act due to his previous involvement. She did not know who would be appearing for the Crown but Mr. Menzies had appeared at the last minute. Mr. Menzies gave evidence that it was he who had represented the Crown at the hearing of the bail appeals that morning which began at 9.30 a.m. When he was told that he had to appear at the procedural hearing he just had time to change into wig and gown and go into court. When he arrived he found a substantial bundle of papers on the Advocate-depute's table. He only had the papers for a few minutes before the hearing commenced and nothing that he saw indicated that anyone had applied their mind to what was to be discussed that morning.
Having considered the evidence which was led before us we are satisfied that it was Mr. Menzies who appeared for the Crown at the hearing of the bail appeals on the morning of 7 July; this was confirmed by documentation produced by the Crown. Mr. Bell's recollection on this matter was clearly mistaken; we think he was also mistaken in thinking that Mrs. Cameron first spoke to him before he entered the courtroom. Mr. Bell had been instructed by the Crown Office to represent the Crown at the continued procedural hearing and his attendance at court that morning was for the purpose of the procedural hearing, although we accept that he had understood that the hearing was to be purely formal and that there was to be no discussion of the merits of the various appeals. After Mrs. Cameron spoke to him he at once arranged for Mr. Menzies to take his place and he did not, in fact, appear for the Crown at any stage of the procedural hearing. Mr. Menzies was, quite understandably, not prepared for the hearing as he had not had an opportunity to peruse the papers. It was, to say the least, unsatisfactory that the Crown was represented by an Advocate-depute who had not been able to read the papers in advance but in the event no contentious issues arose and, as we have said, the Crown did not oppose any of the proposals which were put forward in relation to the conduct of the first stage of the appeal hearing.
The question arises as to how it came about that Mr. Bell, who had advised Jan Van Rijs in relation to his appeal, came to be instructed by the Crown for the procedural hearing. Mr. Bell was appointed an Advocate-depute on 1 January 1998. Prior to his appointment he had had a busy practice as defence counsel. When a counsel who has appeared regularly in the criminal courts on behalf of accused persons and appellants is appointed to be an Advocate-depute, it is clear that the Crown will not necessarily know, when instructions are being passed to him, if the case or cases in respect of which these instructions are given relate to an accused person, or an appellant, for whom the Advocate-depute had previously acted, particularly if he had not represented the client in court but had simply given advice in relation to a proposed appeal, as in the present case. The Crown Office deals with large numbers of cases each week and we do not consider that any fault can be attributed to Crown Office for instructing Mr. Bell to appear at the procedural hearing, as Crown Office would not have known that he had advised Jan Van Rijs in relation to his appeal following his conviction in February 1997. However, it would undoubtedly have been appropriate for the papers to be passed to him well in advance of the hearing so that if he did find that he had previously acted for one of the appellants he would have time to pass the papers on to another Advocate-depute who, in his turn, would have had a reasonable opportunity of reading the papers before the hearing and of deciding what the Crown's attitude was going to be in relation to the issues likely to be raised. In the present case, as we have said, there was a conflict of evidence as to when Mr. Bell received the papers. Miss Climmie said that he had them in advance of the procedural hearing and that she thought that he had telephoned her on the Wednesday afternoon (6 July) to tell her that he could not appear at the procedural hearing because of his previous involvement with one of the appellants - although, if that was the case, it is difficult to understand why Mr. Bell then went into the courtroom the following morning with the intention of representing the Crown at the procedural hearing. Mrs. Cameron said that he told her on the Thursday morning that he had read the papers the previous evening. Mr. Bell, on the other hand, said that he had been told to appear at the procedural hearing but that he had not seen the papers until he was in the courtroom prior to the hearing and that he had at once arranged for Mr. Menzies to take his place. In the particular circumstances of this case we do not consider that we need to resolve that particular conflict as the most important factors, from the point of view of the appellants, are that Mr. Bell, who had previously advised Jan Van Rijs, was instructed to appear for the Crown at the procedural hearing and on the morning of 7 July he came into the courtroom with the intention of doing so. He did not, in fact, appear for the Crown before the Court or in the presence of any of the appellants personally but the late change of counsel made it impossible for the new Advocate-depute, Mr. Menzies, to be as informed as he should have been at the hearing. However, there is no suggestion that Mr. Menzies' lack of preparedness resulted in any prejudice to any of the appellants.
We also heard evidence from Mrs. Cameron that on the Friday of the first week of the appeal hearing in November 1999 she had passed Mr. Bell in Parliament Hall and that he had told her that she would be hearing from his solicitors. Mr. Bell admitted that he had, indeed, made such a remark to Mrs. Cameron but explained that he had done so because he understood that she had been responsible for a formal complaint which had been made to the Dean of the Faculty of Advocates concerning his professional behaviour, it having been suggested that he had divulged to the Lord Advocate information which he had obtained in confidence from Jan Van Rijs relating to his appeal. We do not know the terms of any complaint which had been made to the Dean and, while we consider that the remark which Mr. Bell made to Mrs. Cameron was ill-advised, we accept his evidence that his concern at that time related to the complaint which had been made to the Dean of Faculty and which he regarded as a serious criticism of his professional integrity. In the circumstances we do not consider that the remark which he made has any material bearing on the issue which we have to determine.
We were also informed that John Carroll & Co. had written to the Lord Advocate expressing concern at the fact that Mr. Bell had been instructed to attend on behalf of the Crown at the procedural hearing on 7 July. A reply dated 29 October 1999 had been received from the Lord Advocate's private secretary which stated inter alia as follows:
"I can confirm that Graham Bell did not provide any advice to the Crown about this case or any other case in which he had previously been involved. Indeed, the Lord Advocate has commented that for anyone to suggest otherwise would be defamatory and a serious slur on Mr. Bell's professional integrity".
Mr. Bell gave evidence that he had not divulged any information which he had obtained from Jan Van Rijs to the Crown Office authorities and it was not put to him in cross-examination that he had, in fact, divulged any such information. We had no hesitation in accepting Mr. Bell's assurance that he had never at any stage divulged to the Crown any of the information which he had received in relation to Jan Van Rijs' appeal.
The submissions
It was submitted that the actions of the Crown had amounted to a breach of the appellants' right to a fair and impartial hearing under Article 6.1 of the Convention of Human Rights and that there had been a miscarriage of justice. Justice must not only be done but must be seen to be done. In this case each of the appellants had been convicted of being knowingly concerned in the attempted fraudulent evasion of the prohibition in force in respect of the importation of cannabis resin and sentenced to a long term of imprisonment. The appellants had been on their way to the courtroom on the morning of 7 July when they had been stopped and taken back to the holding room, although at that time they had not known what was happening. They had not been in court when Mr. Bell was there but they had been told by their solicitors that he had been present in court and that he had been instructed to appear for the Crown at the procedural hearing. The fact that Mr. Bell, who had a detailed knowledge of the merits of Jan Van Rijs' appeal, and had revised his Grounds of Appeal, had been instructed to appear for the Crown at the procedural hearing relating to the appeals of the appellants, had given them an understandable feeling that an injustice had occurred. The most important factor in the case was the impression which the whole affair had made on the appellants. The Crown had instructed counsel who had previously advised Jan Van Rijs and who had been provided by the Crown with all the information necessary for appearance at the procedural hearing and in that respect the Crown had shown disrespect to the appellants and to the court and this was a serious matter. To make matters worse, instead of apologising the Crown had adopted an aggressive attitude. The Lord Advocate had not replied timeously to letters from Mr. Carroll expressing concern at Mr. Bell's involvement in relation to the procedural hearing and the letter from the Lord Advocate's private secretary dated 29 October 1999 had constituted a threat as had Mr. Bell's remark to Mrs. Cameron. The attitude of Mr. Bell and the Crown had been unprofessional. If Mr. Bell had been instructed by the Crown for the procedural hearing in error, he could, and should, have appeared, explained the situation which had arisen and apologised. In a case of this kind appearances were all-important. It was natural for the appellants to think that Mr. Bell may have used against them the knowledge which he had acquired when he had consulted with Jan Van Rijs. Mr. Pen intimated that Jan Van Rijs stated that he had given Mr. Bell confidential information; but he (Mr. Pen) was not willing to disclose to this Court what that confidential information was. While the appellants were unable to point to any information which Mr. Bell had received from Mr. Jan Van Rijs and which he passed on to the Crown, what was important was the appellants' perception of what had happened. In the circumstances the trial of the appellants embraced the appeal process, as well as the original trial, and they would not now be able to receive a fair hearing. The defect in procedure had also affected Lieuwe Hoekstra whose Grounds of Appeal were identical to those advanced on behalf of Jan Van Rijs and also the other appellants who had similar Grounds of Appeal. What had taken place had harmed their case and the damage could not now be repaired. The appeal process had been vitiated and as a result the convictions should be quashed. It would not be appropriate to allow a new trial as the same problem would again arise. We were referred to Millar v. Lees 1991 S.C.C.R. 799, Hogg v. Normand 1992 S.C.C.R. 26, Anderson v. H.M. Advocate 1996 S.C.C.R. 114, Farouk v. Brown 1996 S.C.C.R. 891, McKie v. H.M. Advocate 1997 S.C.C.R. 30, Delcourt v. Belgium 17 January 1970, Series A, vol. 11, Artico v. Belgium 13 May 1980, Series A, vol. 37, De Cubber v. Belgium 26 October 1984, Series A, vol. 86, Hauschildt 24 May 1989, Series A, vol. 154 and Borgers v. Belgium (1991) 15 E.H.R.R. 92.
In reply, the Advocate-depute regretted that the Crown had not replied timeously to letters which had been written by Mr. Carroll but submitted that the events of 7 July had not had any adverse effect on the appeal process and the appellants had not suffered any prejudice. While it was understandable that the appellants were concerned at the fact that Mr. Bell had been instructed by the Crown to appear at the procedural hearing, their subjective concern was not determinative of the issue before the court. The whole matter had to be looked at objectively and in the circumstances of this case as disclosed by the evidence there was no objective justification for the appellants' concern (Nortier v. The Netherlands (1993) 17 E.H.R.R. 273, Bulut v. Austria (1996) E.H.R.R. 84). It was clear that Mr. Bell had not, in fact, appeared for the Crown at the procedural hearing as the hearing had been delayed until Mr. Menzies was able to be present. Mr. Bell had thought that the procedural hearing was to be purely formal, with the Crown not playing an active part, and once he had appreciated that he had, in his capacity as defence counsel, advised one of the appellants he had left the court and arranged for Mr. Menzies to appear for the Crown. Further, at the procedural hearing Mr. Menzies had not opposed the appellants' motion that their new Grounds of Appeal should be received nor had he opposed any other proposal relating to the conduct of the first stage of the appeal hearing. There was nothing sinister in the fact that Mr. Bell had been initially instructed and had entered the courtroom but he had taken no part in the procedural hearing. At that hearing no reference was made to the merits of any of the Grounds of Appeal. While certain criticisms could be directed at the lack of efficiency of the Crown's arrangements for representation at the procedural hearing, there was no evidence that Mr. Bell had ever disclosed to the Crown information that he had received from Jan Van Rijs, or that he had ever discussed with the Crown authorities any aspect of the merits of the Grounds of Appeal. Further, the appeal proceedings were under the control of the court. Mr. Bell's initial involvement with the case came after the trial had been concluded and the appellants had been convicted and he had taken no part in the appeal process. In the circumstances there was no justification for the suggestion that the conviction of the appellants had been vitiated by what had taken place on 7 July. The events established by the evidence had not tainted the appeal proceedings and had not resulted in any prejudice to the appellants. The Minutes should therefore be dismissed.
Decision
The conduct of the Crown in relation to this matter is open to serious criticism. Errors were made and were compounded by further errors. The events surrounding the instructing of Crown counsel to appear before the Court on 7 July 1999 are eloquent of poor administration. It is plain that a written instruction added to the papers by the Advocate-depute who appeared on 20 May 1999 had not been acted upon. In the event on 7 July 1999, no Advocate-depute appeared in Court properly instructed so as to be able to assist the Court in dealing with the future management of the appeals in the event that the proposed Grounds of Appeal or any of them were allowed to be received. These proposed Grounds were complicated and liable to occupy a substantial amount of court time for their disposal. It is highly regrettable that Mr. Bell, who had previously advised Jan Van Rijs in relation to his appeal, went into court on the morning of 7 July with the intention of representing the Crown at the procedural hearing. It is, of course, clear that counsel who has advised an accused who has been convicted of a criminal offence and is seeking to appeal should not, without the express consent of the appellant, appear as counsel for the Crown at any stage of the Appeal Court procedure dealing with that appeal. However, the fact of the matter is that, in the event, Mr. Bell did not appear for the Crown at the procedural hearing, his place being taken by Mr. Menzies. Further, at the procedural hearing matters of a purely formal and management nature were dealt with and there was no consideration by the court of the merits of the fresh Grounds of Appeal. At the procedural hearing the Crown did not oppose any motions made by the appellants. The court allowed the fresh Grounds of Appeal for each of the appellants to be received late and to replace the Grounds of Appeal previously lodged. The court also allowed the unrepresented appellants to provide to the court a skeleton of the arguments which they intended to present at the first stage of the appeal and sought a supplementary report from the trial judge in relation to the fresh Grounds of Appeal. The court appointed the first stage of the appeal to be restricted to the heads specified in the interlocutor of 7 July 1999 and noted that the first stage was expected to last for two weeks. The question which now arises for our determination is whether the events of 7 July 1999 had the effect of violating each appellant's right to a fair hearing in terms of Article 6(1) of the European Convention on Human Rights.
The Minutes do not contain any attack on the validity of the trial itself but it was submitted that the appeal procedure was, in effect, a continuation of, and an integral part of, the trial process and that in the circumstances the appellants could not now receive a fair hearing in the course of the appeal. The submission made on behalf of the appellants was based on the impression which they had gained when they learned that Mr. Bell had come into the courtroom on the morning of 7 July to represent the Crown at a procedural hearing which was to deal with inter alia Grounds of Appeal in relation to which Mr. Bell had previously advised Jan Van Rijs. It was suggested that they were entitled to take the view that an injustice had occurred and that they could not receive a fair hearing so far as their appeals were concerned, as counsel for one of the appellants, who had consulted with him and received information from him, had changed sides and was now appearing for the Crown.
The distinction which is drawn in European jurisprudence between subjective and objective assessment of the circumstances said to have cast real doubt on the fairness of proceedings is reflected in many cases in Scots procedure, both civil and criminal. In addition to the cases cited, reference may be made to the Opinion of the Court in Hogg v. Normand 1992 S.C.C.R. 26 in which Lord Murray observed that
"even without any actual unfairness, if the circumstances complained of are such as to create in the mind of a reasonable man a suspicion that justice is not impartial, a conviction cannot stand".
In Lorimar v. Normand 1997 S.C.C.R. 582, where it was alleged that a justice who had heard the evidence in a criminal prosecution had not acted fairly, Lord McCluskey, delivering the Opinion of the Court, observed
"Accordingly, it is clear that this court is required to approach a matter of this kind objectively, and to form a judgment as to whether or not the circumstances complained of are such as to create in the mind of a reasonable man a suspicion that justice is not impartial".
However, as was stressed in that case, it is important that the objective observer has a sufficient understanding of the court procedures: at p. 584, the opinion contains the phrase, "Accordingly the objective observer would have noticed, assuming as we must that he had a sufficient understanding of the procedure that..." (emphasis added). There is no doubt that the appeal procedure is of a quite different character from that governing the trial itself. Criminal proceedings in Scotland are divided into two distinct chapters. The first chapter concludes with the conviction or acquittal, of the accused. If an accused person is convicted, the second stage begins when he applies for leave to appeal. Assuming that he obtains leave the new chapter begins on a wholly different basis from the chapter involving the trial itself. In the appeal, the appellant may bring under review any alleged miscarriage of justice all in terms of section 106 of the Criminal Procedure (Scotland) Act 1995. It is commonly, though not invariably, the duty of the court to review a conviction on the basis of Grounds of Appeal which specify alleged errors of law. These errors include, for example, misdirection by the trial judge, or an allegedly erroneous ruling in relation to the admission of evidence or to some procedural event: this list is, of course, by no means exhaustive. The objective observer, having noted what had happened on 7 July, would ask himself what effect these events could have on the appellants' prospects of receiving a fair hearing of their appeals. As the events took place more than two years after the jury returned its verdicts, the events could have no bearing upon the circumstances surrounding the trial itself. No one with any understanding of how the Appeal Court system works could suppose that, in dealing with questions of law of the general kind mentioned earlier, the Appeal Court could possibly come to know or be influenced by any information of a confidential character which an appellant had communicated to an individual, now an Advocate-depute, who had previously acted as his counsel and had advised him as to the formulation of his Grounds of Appeal. Nor was this a case in which such an individual had appeared or attempted to appear to resist any contention, substantive or procedural, which an appellant wished to advance in respect of his appeal.
While we can understand the appellants' concern on being informed that Mr. Bell had been instructed to appear for the Crown, their concern is not decisive of the issue before us unless that concern is objectively justified (Nortier v. The Netherlands, supra and Bulut v. Austria, supra). In the present case we consider that no informed observer who had knowledge of the Scottish appeal procedure could possibly have thought that the events of 7 July had conferred, or had been capable of conferring, on the Crown any advantage or that the interests of the appellants could thereby have been adversely affected. Mr. Bell did not, in fact, represent the Crown at the procedural hearing on 7 July. There was no evidence to suggest that he had passed on to the Crown any information that he may have received from Jan Van Rijs and there was no evidence to support any lack of professional integrity on his part. Further, a proper understanding of the appeal process in Scotland would make it clear that there was, in effect, no way in which any information which Mr. Bell had in relation to Jan Van Rijs' appeal could have been passed on to the members of the Appeal Court or could have disadvantaged any of the appellants in the presentation of his appeal on the basis of the Grounds of Appeal proposed on behalf of each of the appellants. On the whole matter we are satisfied that in the particular circumstances of this case the concerns of the appellants cannot be regarded as objectively justified and that there has not been a violation of Article 6(1). We shall therefore dismiss each of the Minutes.
The Disclosure Minutes
In two Minutes (in virtually identical terms and referred to as "the disclosure Minutes") lodged on behalf of the third and fourth appellants (Ronny and Hendrick Van Rijs) there is raised what is described as "a devolution issue" and which includes, in its statement of the grounds:
"(iii)That at trial no evidence was led by the Lord Advocate of the fitting of the tracking device, nor whether its fitting was lawful or otherwise, nor of details of its subsequent use.
(iv)That RONNY VAN RIJS has by means of letters from his agents dated 11 and 15 November 1999 (referred to for their terms brevitatis causa) requested the Lord Advocate to disclose certain information relating to the fitting of the device and subsequent use, but no such information has been disclosed.
(v)That once RONNY VAN RIJS was arrested, the vessel ISOLDA was seized and retained as a production for the trial. Evidence was led of the wrapping around the cannabis resin found on another vessel, the OCEAN JUBILEE. Evidence was led to suggest that jute fibres and yellow paint taken by police from the ISOLDA were similar to those on said wrapping. It was submitted in defence that the presence of both fibres and the paint could be accounted for by jute backed carpet and tins of paint on the ISOLDA.
(vi)That RONNY VAN RIJS has requested from the Lord Advocate by means of a letter from his agents dated 11 November 1999 property control sheets, being the log of articles removed from the ISOLDA after seizure. Said sheets would show that the aforesaid carpet and paint had been removed after seizure. The Lord Advocate has failed to provide disclosure of the evidence of the property control sheets.
(vii)That failure to disclose the above mentioned information is contrary to natural justice in that
A.at the trial the Lord Advocate was unfairly advantaged in that he had information which would tend to exculpate RONNY VAN RIJS, yet refused to disclose it.
B.that since the Lord Advocate has continued to refuse disclose the above information making it impossible for RONNY VAN RIJS to have the benefit of the information to present his appeal properly at the hearing on 23 November 1999."
The claim is thus advanced that the Lord Advocate's failure to disclose inter alia this information has resulted in a violation of each appellant's right to a fair hearing under Article 6 of the Convention. However, Mr Van Bavel, for Hoekstra, and Mr. Pen, for Jan Van Rijs, specifically adopted Mr Jahae's submissions on this disclosure issue. They were clearly relevant to their clients' Grounds of Appeal 2.
The relevant passage from Lieuwe Hoekstra's Ground of Appeal 2 is quoted in full below; it includes the passage:
"The appellant states that at the time the Isolda was allegedly carrying drugs it ran into mechanical difficulties and was found drifting at sea by the crew of a Moroccan Naval patrol vessel. The crew of the Moroccan Navy offered assistance and were invited aboard the Isolda and were able to move without restriction. The Isolda was, for all intents and purposes, subjected to as close an inspection as would have been the case had it been a formal inspection and no drugs were aboard. While repairs were being carried out the Moroccan Navy stayed in the vicinity of the Isolda and the appellant Lieuwe Hoekstra signed a log or other record of the Moroccan Navy thereby registering the occurrence."
In this respect, one purpose of recovering the tracking records would therefore appear to be to contradict the evidence given at the trial by Lieuwe Hoekstra and to introduce new material contradicted by that evidence.
The disclosure Minutes are related to certain of the Grounds of Appeal. It was, however, also submitted to us that if this Court were to order disclosure of material referred to in the Minutes (more particularly as specified in the "Schedule to the Devolution Issue Minute" - set out below - that was lodged by the appellants at the end of the hearing on 3 December 1999) it might be necessary or appropriate for the appellants to seek to amend the current Grounds of Appeal in the light of what was disclosed.
The Crown did not dispute that the Court had power under section 104(1), para. (a), of the Criminal Procedure (Scotland) Act 1995, to order production of any document or other thing connected with the proceedings. Nor did the Crown raise any question about the competency or timing of any of the Devolution Issue Minutes - though, as noted later, the Advocate-depute expressed some concern that no fair notice had been given to the Crown of the range of matters to be raised by the appellants in argument as regards disclosure. The disclosure Minutes by the third and fourth-named appellants did not specify precisely what information the Crown should be ordered to disclose, although reference was made to the terms of letters written to the Lord Advocate on behalf of the appellants asking for detailed information, including information about the fitting, lawfulness and use of the tracking device. As, in the course of the hearing of submissions, there were several formulations by those appearing for the appellants of details of material which the Crown should be ordered to produce or disclose, we invited the appellants' counsel to prepare a Schedule specifying under various heads the material which the Court should order the Crown to disclose. They prepared such a Schedule.
It was in the terms following:
Schedule to the Devolution Issue Minute
The appellants request that the Court order the Crown to disclose:
1.All documents pertaining to mutual legal assistance among all jurisdictions,
including Scotland and Spain, in relation to the affixing and use of any and all tracking devices relating to the Isolda.
2.All documents showing or tending to show the nature and contents of
communications intercepted by or on behalf of the authorities of all jurisdictions, relating to the Isolda or the accused or any of them at the trial, both before and after the affixing and use of the tracking device or devices.
3.All correspondence among all jurisdictions involved, actively or passively, in
relation to the tracking of the Isolda and communications interception.
4.All evidence seized by or known to the authorities, including registration
documents seized by HM Customs & Excise from the Isolda, relating to the registration of the vessel including those indicated on the property control sheets.
5.All correspondence among the authorities or other parties relating to the
registration of the Isolda.
6.Failing principals, copies of the above.
The European Convention on Human Rights ("the Convention"): the submissions
The submissions relating to disclosure began with references to the law of the Convention as developed in the jurisprudence of the Council of Europe Institutions (the Court and the Commission) and also to other material, including Treaty material and resolutions passed at international conventions, said to be relevant to the ascertainment of good common international practice in the fields of criminal investigations and court procedures. It was submitted that, in the context of a criminal trial, the criminal authorities, notably the prosecutor, had a duty to disclose to the defence all the material obtained by public authorities in the course of their investigations, being material that might be used to "construct" the truth as sought to be established by evidence at the trial. The defence had to be given effective means for learning what the investigating authorities had discovered in the course of their investigations. This duty derived from Article 6 of the Convention. That Article required procedural equality between the prosecution and the defence: this requirement was an aspect of the principle of "equality of arms" now widely recognised and applied in Convention jurisprudence. The Convention, it was argued, was directly applicable; and the appellants could invoke it in this appeal both in relation to the appeal itself, and also in relation to the trial. The Convention, it was submitted, was directly applicable to the trial even although the trial had resulted in verdicts in 1997 some two years before the coming into force of the provisions in section 57of the Scotland Act 1998, making certain provisions of the Convention directly applicable in certain circumstances. It was intended to argue in the appeal that the appellants' rights under Articles 5 (right to liberty and security of person), 6 (right to a fair trial) and 8 (right to respect for private and family life, home and correspondence) had been violated in the whole circumstances of and attendant upon this prosecution and continued to be violated throughout the appeal process. Articles 1 (obligation to secure Convention rights) and 13 (right to an effective remedy) were also referred to, although these are not included within Convention rights as defined in the Scotland Act 1998, section 126(1). It was to be submitted that at the material times the ketch "Isolda" fell properly to be regarded as the "home" ("domicile" in the French text) of the appellants for the purposes of the application of Article 8. The Convention rights relied upon had to be given a broad interpretation. Derogations from these rights were to be interpreted restrictively. Any violation of a Convention right had to be in accordance with the law. The concept of a fair trial in Article 6, it was submitted, included the appeal process; both the trial at first instance and the appeal process were part of the one "trial" within the meaning of the Article. The Crown had to be held responsible for every such violation of Convention rights before, during or since the jury trial and also in the appeal. The Lord Advocate could not, in the conduct of the appeal, act in a way that was incompatible with any of the Convention rights. The Crown's responsibility not to act in violation of the Convention did not begin only when the Scotland Act came into force; it was retrospective and covered the whole proceedings, including the jury trial and the investigations by the police and others, including Customs & Excise officers or agents, preceding the trial. The appeal court itself was directly bound to take account of Convention law even if that meant modifying or departing from traditional procedures and practices. The State had to ensure that the Convention rights were effective in relation to the victims of their abuse, denial or violation. By the time of the trial in 1996 Kaur v. The Lord Advocate 1980 S.C. 319 did not, it was submitted, correctly state the law of Scotland in relation to the applicability of the Convention. Disclosure of the whole background to and the results of the investigations was necessary for the purpose of ensuring a fair trial even although an accused person or appellant did not, and could not, know precisely what the investigating authorities had discovered. He was entitled to know what they knew. He was entitled to know how the case against him had been built up, including what material discovered on investigation had been omitted from the Crown's presentation of the case. Material that had not been disclosed and was not used by the Crown could nonetheless well be relevant to the defence case even if it was not material that was exculpatory in character. The approach of the Scottish courts, as seen in McLeod v. H.M. Advocate 1998 S.C.C.R. 77, did not go far enough to meet what European jurisprudence required; the approach in that case to the disclosure of exculpatory material was too narrow. The Crown could not be regarded as an independent body whose judgment should be accepted by the court in any respect; in adversarial proceedings the Crown was an interested party. In several recent Scottish cases it had been asserted that existing Scots law and procedure met the requirements of the Convention; that, however, would be true only if the courts applied Strasbourg jurisprudence.
Tracking Device
In the light of these general considerations it was necessary for the appellants to have full information relating to all the circumstances pertaining to the fitting of a tracking device (or devices) to the Isolda and its subsequent use, including what had happened to it and any records of the information it collected or transmitted. That information had not been disclosed prior to or during the trial. Although some information had emerged since the trial there had not yet been full disclosure. The trial judge was not only not fully informed about these circumstances: on the contrary, he was positively misled. Neither the trial court nor this court could properly judge the questions of the possible value of, or the admissibility of, vital evidence about the movements of the Isolda prior to the alleged transfer of drugs to the Ocean Jubilee without knowing the precise details both about the placing of the device on the Isolda and the communications between the various public authorities involved relating to the affixing and use of the tracking device. The appellants were entitled to have access to any records made of information from the tracking device and relating to the tracking of the Isolda. The use made by the authorities of the signals emitted by the tracking device during the last voyage of the Isolda were also, and separately, relevant and crucial, as were the records made of such signalling. The seriousness of the manner in which the Convention rights had been violated could be relevant; the concept of proportionality might apply. The Crown had been repeatedly invited by those acting for the appellants to produce the necessary information and material but had not done so: reference was made to the relevant correspondence relating to these requests, in 1998 and 1999, and to the court's interlocutor of 20 May 1999.
Property Control Sheets
Similar submissions were made in relation to the property control sheets. Distinct questions were raised in the Grounds of Appeal as to the possibility that there had been an unlawful seizure of a foreign vessel, the Isolda, in international waters. The disclosure sought under heads 4 and 5 of the Schedule was necessary to allow this matter to be properly developed. The Crown, however, intimated to the Court that there was no objection to disclosing this material, being the items referred to in paragraphs 4 and 5 of the said Schedule. We understand that material was handed over by the Crown to the appellants in intended satisfaction of these requests. Whether or not that handing-over exhausts the legitimate requirements of the appellants we do not yet know; no submissions were made to us about this; accordingly we need say no more about this aspect of the disclosure Minutes at this stage. In any event, the appellants submitted that as the necessary material had not been available to the defence at the trial, its production at this stage could not save the convictions. That is also a matter that does not arise for determination at this stage. We have not yet had full submissions as to whether or not there has been a miscarriage of justice in relation to the Grounds of Appeal associated with the disclosure issue.
The Crown's Response (Disclosure)
The Crown expressed concern at the raising of various matters of which no notice had been given either in the Grounds of Appeal or in the Minutes. The appellants had chosen not to present at this stage their arguments in support of the Grounds of Appeal said to be related to the Minutes; but on behalf of the Crown it was to be submitted that the Crown were not in breach of Article 6 of the Convention. The Advocate-depute founded particularly upon McLeod v. H.M. Advocate, supra as governing the approach to be taken by this Court on questions of the fairness of our procedures; that case had been decided against the background of a full consideration of relevant Convention law. In the present case, it was clear that the Crown did not rely at the trial upon evidence obtained by the use of a tracking device on the Isolda; although it had been conceded then, and the concession was repeated now, that such a device had indeed been placed on the Isolda and that signals emitted earlier from it may have played a part in an officer of Customs & Excise being able on 27 July 1996 to give instructions that a particular sea area be searched by aerial surveillance for the Isolda; that sea area lay to the north west of Scotland and extended to about 7,200 square miles. No Crown witness had any knowledge of the use of the tracking device or gave evidence of the making, recording or use of signals from it. The trial judge, whose duty it was to rule on issues of admissibility of evidence, had been invited by the Crown to do so, and had done so, upon that basis and upon the express basis that the tracking device had been placed on the Isolda without lawful authority or warrant. It was explained that the Crown had not been in a position to adduce evidence at the trial of the circumstances in which the tracking device had been placed in or on the Isolda, in Spain.
There was, it was submitted, no departure from the principle of equality of arms or of the principles inherent in McLeod v. H.M. Advocate. There had been no attempt by or on behalf of any of the nine accused, before or during the trial, to use well-established procedures to recover the material now sought by the appellants. It was too late to try to recover this material now. The device itself, it was now acknowledged, had been removed from the Isolda by a U.K. Customs & Excise officer and returned to Spanish officers. It would be contrary to the public interest to disclose details of the placing, use and character of the tracking device because the use of such devices was necessary in the fight against serious crime, and such disclosure would simply aid criminals to escape detection. All the information that the appellants could possibly need was contained in the evidence of Santos Martin who gave evidence on 18 March 1999 in the second trial of Silverman. The appellants had obtained a transcript of that evidence, had lodged it in the present appeal process and referred to it in their Grounds of Appeal as providing a justification for further disclosure. No further disclosure was required; the Crown's information was that contained in Santos Martin's evidence.
The Related Grounds of Appeal for the third and fourth appellants
In relation to the disclosure issue, we should note that the Grounds of Appeal for the third and fourth appellants include 3(a) which is in the following terms:
"3(a)That the learned trial judge erred in law in admitting evidence of information obtained from a tracking device placed without lawful authority on the said vessel Isolda. This was despite exception being taken to the line of evidence by Mr. Donald Findlay Q.C. on 4 December 1996, as transcribed on page 67 et seq. In the extract of proceedings for that day (sic). This error in law has resulted in a miscarriage of Justice. This appears to be a device fitted illegally to the ship, of which it would seem the Crown had no prior knowledge, a device not lodged as a production, and one which according to the evidence was used by Her Majesty's Customs & Excise in their surveillance of the vessel. The allowing of such evidence resulted in a miscarriage of justice. The existence of such a device should have been disclosed to the defence, in order that investigations could be made to ascertain if that device could yield exculpatory information as to the relative position in time and distance of the Isolda and Ocean Jubilee."
This, apart from the last sentence, raises an issue of admissibility of evidence.
We were referred by both sides to passages contained in the submissions made at the trial to the trial judge regarding the admissibility of evidence which, it was then submitted, depended upon an investigation which was tainted by illegality. The illegality, it was submitted for the appellants, derived from the fact that a tracking device had been placed clandestinely in or on the Isolda before it departed from Cadiz on 13 July 1996. The placing of the device had been effected without the knowledge and permission of anyone on the Isolda and without legal warrant granted by any responsible authority in the place where it had been done. It was submitted that, even although the Crown was not attempting to lead evidence of any signals or the like from the tracking device, it was clear that the operation, spoken to by Crown witnesses at the time, of locating and observing the Isolda in the sea areas to the west and north of Scotland had been rendered possible, or at least greatly facilitated, by the monitoring of signals from the device. The results of such monitoring had obviously been used to guide the pilots of the aircraft which located, shadowed and observed the Isolda. In substance, what was submitted at the trial in support of the objection to the admissibility of the evidence is what is now submitted on behalf of the appellants. The main difference now is that the arguments presented to this court, unlike those presented to the trial judge, include the important submission that various articles of the Convention, including particularly Article 8 and Article 6, apply directly and must be given effect to by this court in considering the appeals and matters properly incidental to them. We note that the arguments presented to the trial judge included a specific acknowledgement that Article 8 was not directly applicable in Scots law at the time when the trial was being conducted. It should also be noted that the Crown did not, either at the trial or in the course of these appeals, rely directly upon Article 8.2 or attempt to submit that any interference by a public authority with the exercise of the Article 8.1 right was, in so far as established at the trial, "in accordance with the law". It is thus not the position of the Crown in these appeals that the placing on the vessel of a tracking device was "in accordance with the law" in terms of Article 8 of the Convention.
The disclosure issue in relation to the disclosure Minutes is whether or not this Court should order the Crown to disclose the material specified in the Schedule. In the light of what has already been said, we need say no more at this stage about the material specified under heads (4) and (5) of the Schedule. The remaining heads, (1), (2) and (3), relate to the tracking device (or devices) on the Isolda. (There was no suggestion at the trial or in the course of the appeals that any tracking device had at any stage been fixed to the Ocean Jubilee).
We were urged to decide the matters raised by the disclosure Minutes in advance of dealing with the substantive Grounds of Appeal related to the matters sought to be disclosed. That invitation proceeded on the basis that the Grounds of Appeal would not, or might not, be able to be argued fully unless the material sought by the disclosure Minutes was available. This was perhaps unfortunate, because the underlying issues are important and are very closely connected in some respects with the disclosure issues. However, we have no choice but to deal with the disclosure issues in advance of the related Grounds of Appeal.
Discussion
It is not necessary at this stage to refer in any detail to the evidence relating to the tracking device, its provenance or the use made of it. The debates at the trial ranged over many points not all of direct relevance to the central arguments about admissibility. At least at the beginning when such arguments were presented, the trial judge was not given accurate information by the Crown about the provenance or use of a tracking device. Eventually, but only after the judge had made one ruling on the matter in favour of the prosecution, the Advocate-depute conducting the trial acknowledged that he had unknowingly but innocently misinformed the trial judge about this matter when these issues were first discussed in the absence of the jury. Even as the debates later developed, the Advocate-depute did not, and asserted that he could not, disclose the whole circumstances regarding the provenance or use of the tracking device. (It was not until 11 January 1997 that John Gordon of the Customs & Excise stated in evidence that he believed that the tracking device had been planted on the Isolda by officers of Spanish Customs, and that that had been done in Spain and possibly in Cadiz). The Crown did not in the course of the debates before the trial judge accept that any onus lay upon the prosecution in relation to evidence objected to as inadmissible on the ground that it was tainted by illegality attending the circumstances in which that evidence had been obtained.
However, there can be no room for doubt that a tracking device was in fact placed on the Isolda, but that that was not done in the Scottish jurisdiction, and that it was probably done within Spanish jurisdiction. It is equally clear that this Court must accept that no legal warrant or justification was produced at the trial for the placing of such a device on the Isolda, wherever that was done. The Court, when it comes to consider the admissibility question, must accordingly assume that the tracking device was placed clandestinely on the Isolda without permission or lawful warrant wherever it was done and that when the Isolda entered Scottish waters the device was on the vessel and was transmitting a signal or beacon which could assist in predicting the probable route of the vessel, and also enable someone who knew or came to know the unique signal emitted by the device to know that the vessel emitting the signal was in fact the Isolda. The Court must also proceed upon the basis that some use was made of the tracking device, in that signals sent by it from the Isolda were picked up, and information derived therefrom was relayed to those whose job it was to search visually and by other means for the Isolda to the west and north of Scotland. No witness who gave evidence in the course of the trial claimed to have relayed to the persons who were doing the physical search in Scottish waters information obtained from the signal emitted by the tracking device; but it is evident that those witnesses who did the searching and surveillance received information, described as "intelligence", which enabled them to know the sea area in which to look for the Isolda. That intelligence-gathering must have included receiving signals from the Isolda and thereby monitoring its course to some extent.
In general terms, this Court should not order the Crown to disclose new material in the course of an appeal against conviction unless the Court is satisfied that the material to be disclosed is likely to be of value for the purpose of evaluating the Grounds of Appeal and determining whether or not there has been a miscarriage of justice. The Court may be prepared to consider ordering the production of new material which is shown to be of potential importance even if it is not material which is, on a strict reading, relevant to an existing Ground of Appeal, provided that, in that case, the material sought could provide the basis for a new or amended Ground of Appeal which the appellant should, at this late stage, be allowed to advance. In giving consideration to these issues in the present appeals the Court must bear in mind that it is now almost three years since the convictions and that considerable indulgence has already been shown to the appellants in relation to the advancing of new Grounds of Appeal. The Grounds of Appeal now before this Court are, as has been pointed out, not grounds for which leave was obtained under section 107 of the 1995 Act and they are entertained, though lodged very late, only by leave of the court. Furthermore, they have been added to, with the Court's permission, at the appeal hearing itself.
It is accordingly of importance to examine the existing Grounds of Appeal to see whether or not the material sought in the Schedule is likely to assist the court to evaluate those grounds. At the same time, of course, it has to be borne in mind that the material might warrant some alteration to the existing grounds.
In the case of the appeals by Hoekstra and Jan Van Rijs, the Ground of Appeal to which the material sought - relating to the tracking device - might relate is Ground 2. That is in the following terms:
"2...There was concealment and disposal of evidence by the Crown to the grave prejudice of the appellant.
Following the arrest of the yacht Isolda and the appellant, members of Her Majesty's Customs & Excuse secretly removed an electronic device that had been illegally placed upon the Isolda. The existence and use to which the device had been put was apparently concealed from the Advocate-depute until some time during the trial of the appellant. The appellant has been denied access to the tracking device and, in consequence, access to records of readings and signals emitted from the device. The conduct of the Crown, in the form of H.M. Customs & Excise, in removing the tracking device and concealing the fact of its existence and use denied the appellant the opportunity of demonstrating by reference to records and readings that the Isolda and vessel Ocean Jubilee were not in such close proximity, and for the length of time alleged by Crown witnesses, so as to facilitate the alleged transfer of some 3 tonnes of cannabis resin.
In a subsequent trial, of the former co-accused Brian Silverman additional evidence was led by the Crown on the matter of the said tracking device. This additional evidence involved witnesses and facts previously concealed from the appellant at his trial. It dealt with the alleged movements of the yacht Isolda and the appellant and has since alerted him to the existence of evidence that was not heard at his trial, there being a reasonable explanation for same. In the second trial of the former co-accused Brian Silverman evidence was lead from a Santos Martine that indicates that the tracking device was placed aboard the Isolda without authority and use was made of it to trace and follow the yacht. It was alleged that the Isolda had sailed south from Spain to the coast of Africa near Morocco and drugs were taken aboard. It was the Crown's position that these drugs were those subsequently found aboard the Ocean Jubilee. The appellant states that at the time the Isolda was allegedly carrying drugs it ran into mechanical difficulties and was found drifting at sea by the crew of a Moroccan naval patrol vessel. The crew of the Moroccan navy offered assistance and were invited aboard the Isolda and were able to move about without restriction. The Isolda was, for all intents and purposes, subjected to as close an inspection as would have been the case had it been a formal inspection and no drugs were aboard. While repairs were being carried out the Moroccan navy stayed in the vicinity of the Isolda and the appellant Lieuwe Hoekstra signed a log or other record of the Moroccan navy thereby registering the occurrence."
It is clear that this Ground does not raise any issue as to the admissibility of any evidence. On the contrary, it founds upon the circumstance that the Crown allegedly had "access to records of readings and signals emitted from the device" but the defence did not have such access. This, it is suggested in the written Ground, had, as one of its results (the other is referred to later), that the defence were denied the opportunity of demonstrating by reference to those records (assuming they existed) that the two vessels were not in such close proximity (and) for the length of time alleged by Crown witnesses, so as to enable the cargo of cannabis resin to be transferred. The same point is raised by the remaining appellants in their Ground of Appeal, No. 3(a).
Decisions
In relation to this matter we should have been sympathetic to a motion to order the Crown now to disclose all the documentary evidence in their possession of records of readings and signals from any tracking device on the Isolda when it was in the sea area where it was alleged to have been in close proximity to the Ocean Jubilee, i.e. in the vicinity of 59° north, 1° west, at any time between midnight on 28 July 1996 and 6 a.m. on 29 July 1996 - provided that there was reason to believe that such readings had been taken and a record of them made. We should have considered such a motion favourably because we consider that, if the defence had known before the trial that such a tracking device had been used and had been able to satisfy the court that it was likely to have produced information on the two matters of proximity and timing, and if the defence had been going to challenge any evidence adduced by the Crown directed to these two matters (and the defence at the trial did challenge such Crown evidence) then the court would have been likely to grant an order for production of these records. It is quite clear that if there were thought to be in existence, and accessible to the Crown, documentary or other material obtained from a tracking device that might show that, contrary to the evidence of Crown witnesses, the two vessels did not meet, or were not in sufficient proximity for a sufficient period of time to allow for the transferring of 3 tonnes of cannabis resin, then that would plainly be material that was exculpatory in character because it would directly contradict evidence relied on by the Crown. It would have been the duty of the Crown to disclose that information to the defence: McLeod v. H.M. Advocate. It is not easy to envisage any successful public interest objection to the production of such material: at that stage, the existence and use of the tracking device would ex hypothesi be known to the defence and therefore already in the public domain. However, counsel for the appellants did not in oral argument suggest that such material was sought with a view to supporting this aspect of Ground of Appeal 2. Whether counsel refrained from making such a motion because it was now recognised that no information from a single tracking device on the Isolda could possibly yield useful information as to the character or duration of the encounter between the two vessels we do not know. The matter was simply not raised, and the Advocate-depute accordingly made no submissions about it. There is nothing that has been presented to us to suggest that any records of, or made from, the tracking device would shed any light on this matter. The Schedule does not contain any specification of such records relating to the character and duration of the encounter between the two vessels. In these circumstances, we do not propose ex proprio motu to order such disclosure.
In relation to the other matter raised in Ground of Appeal No. 2 for Hoekstra and Jan Van Rijs, namely the assertion that
"the appellant (Hoekstra) states that at the time the Isolda was allegedly carrying drugs it ran into mechanical difficulties and was found drifting at sea by the crew of a Moroccan naval patrol vessel etc. etc.",
we cannot envisage any circumstances whatsoever in which the appellants would be able to persuade the court to allow them to submit new evidence in support of a Ground of Appeal to the effect that the Isolda was boarded by members of the Moroccan Navy, given the absence of any evidence of Hoekstra on oath at his trial that the vessel was boarded by members of the Moroccan Navy. It is abundantly clear that if the appellants, or any of them, had wanted to advance the argument that the Isolda had been found drifting at sea by a Moroccan Navy vessel and that the crew of the vessel would be able to vouch that there were no drugs on board on that occasion, then that evidence could have been adduced. The appellants must have known whether or not the Isolda was boarded by members of the Moroccan Navy. Their knowledge of that matter (if it occurred) depended upon their own observation, not upon the results of covert surveillance of which they knew nothing. Although the circumstances and results of the surveillance itself were not known to the appellants, there was nothing whatsoever to prevent them from leading evidence to show that the Isolda, after leaving Cadiz on 13 July 1996, was boarded by the Moroccan Navy. That would be "evidence which was not heard at the original proceedings": section 106(3) of the 1995 Act. So, in this respect, would be any evidence obtained from records generated by the tracking device of an encounter between the Isolda and the Moroccan Navy. This Court could not countenance, other than in quite exceptional circumstances (and none are suggested here), the receiving of additional evidence in support of such a Ground of Appeal to contradict the evidence given on oath by Hoekstra at the trial. We note that the same point about the alleged boarding by the Moroccan Navy is also advanced for the third and fourth appellants under head 3(b). We record elsewhere the fact that, in advancing submissions on behalf of the first named appellant in relation to Ground of Appeal No. 6, which is to the same effect as additional Ground of Appeal 15 for the third and fourth named appellants, it was argued that the third and fourth named appellants had relied upon evidence given by the first appellant, Hoekstra. (These Grounds of Appeal we consider later).
In relation to the admissibility issue raised by Ground of Appeal 3(a) for the third and fourth-named appellants, the appellants have chosen not to advance arguments in support of this Ground at this stage. We should, therefore, refrain from making any observation which might be construed as anticipating the debate on that Ground. It is plain, however, from the transcripts produced to us that, apart from the submission now advanced as to the direct applicability of Article 8, the main issues relating to admissibility were ventilated in argument at the trial. The Crown founded upon the fact that it was the defence, not the prosecution, that brought out in evidence the fact that there was a tracking device on the Isolda (John Gordon's evidence came late in the trial). The prosecution made no attempt whatsoever to introduce evidence directly derived from the tracking device. The Crown did not seek to bring out any evidence to show that the signalling by the tracking device enabled persons unknown to guide aircraft to the sea area where the Isolda was sailing. Questions were raised as to the possible application to the question of illegality of the laws obtaining in the jurisdiction within which the tracking device was fitted. The defence ventilated the question of fairness. The matter of the onus in relation to the existence, use and provenance of the tracking device was discussed. It was stated on behalf of the defence that the defence had no knowledge that the tracking device had been placed on the Isolda or that it had been used or that its signals had been detected by Customs & Excise officers or agents or others. The question of admissibility was fully discussed under reference to the relevant Scots law and the House of Lords case of Regina v. Khan [1996] 3 W.L.R. 164. It was also submitted, on behalf of the then accused, that in the absence of precise information as to the circumstances in which the tracking device came to be on the Isolda, the defence were unable to make submissions as to whether or not the illegality was "trivial" or of such seriousness that it could not be excused, applying the tests found in Lawrie v. Muir 1950 J.C. 19 and other such cases in Scotland.
The important question at this stage is whether or not the ordering of disclosure of the material now sought is necessary for the purpose of enabling this Ground of Appeal to be properly advanced. It is not necessary to examine such material in order to show that the device was placed on the Isolda without lawful warrant because that is conceded for the purpose of this case. Equally the argument must proceed upon the basis that those who gave directions to the witnesses who located the Isolda off the north of Scotland and kept it under observation were assisted by intelligence which made some use of signals from the tracking device to follow its course to the rendezvous area. The Crown does not claim to found upon compliance with treaties relating to co-operation between public authorities concerned in dealing with transnational crime. In Lawrie v. Muir the Lord Justice-General delivering the Opinion of the whole Court said,
"Irregularities require to be excused, and infringements of the formalities of the law in relation to these matters are not lightly to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed. In particular, the case may bring into play the discretionary principle of fairness to the accused which has been developed so fully in our law in relation to the admission in evidence of confessions or admissions by a person suspected or charged with crime. That principle would obviously require consideration in any case in which the departure from the strict procedure had been adopted deliberately with a view to securing the admission of evidence obtained by an unfair trick."
As we are not asked at this juncture to consider the Grounds of Appeal raising directly the question of admissibility it would be inappropriate to say anything about unfairness or the other matters which might be relevant in order to be able to apply the Lawrie v. Muir tests. However, we see no reason to suppose that all the matters relevant to the application of the relevant tests (including any inferences appropriately to be drawn where no evidence has been adduced by the Crown of the particular circumstances under which the conceded irregularity was committed) cannot be properly considered by the Court without details of the kind now sought by the appellants. The duty of a trial judge in considering an objection to the leading of evidence is to consider all the arguments which are advanced to him in relation to the objections taken. In the present case, given the concessions by the Crown relating to the tracking device and the other material placed before him, the trial judge had all that he needed to take decisions about admissibility. Whether or not the decisions that he took were correct is not a matter upon which we should express any view in advance of the submissions which are to be made in relation to the related Grounds of Appeal.
Furthermore, it may be open to the Lord Advocate to argue in this Court, notwithstanding the provisions of section 57 of the Scotland Act 1998, that the trial judge was, in 1996, right to admit the evidence, and that, in so arguing, he (the Lord Advocate) would not be exercising a function in contravention of any of the Convention rights, admissibility being a question for the domestic law: Schenk v. Switzerland. We express no opinion on these matters which remain to be fully argued.
Certain of the submissions made to us were to the effect that disclosure as sought should be ordered so that the appellants and their advisers could now scrutinise the whole investigatory antecedents (however remote) of the interception of the Isolda so that these might be investigated for any irregularities. No order for such a purpose would in our view be justified. To do so would be inconsistent with the ratio of McLeod v. H.M. Advocate, by which we are bound. We shall therefore refuse to order the Crown to disclose the material referred to in heads 1, 2 and 3 (and of head 6 in so far as related to them) of the "Schedule to the Devolution Minute".
Ground of Appeal 1 (first and second appellants) and 9 (third and fourth appellants) - the "site visit".
The Facts
Among the items listed as label productions for the trial were large quantities of cannabis resin (amounting in total to about 3 tonnes in weight), the ketch "Isolda" and the lifeboat "Ocean Jubilee". The two vessels were, as at December 1996, at Rosyth Naval Base, a few miles from the courtroom at Dunfermline. The cannabis was at that time stored in a warehouse in Aberdeen. On 11 December the Advocate-depute, in the absence of the jury but in the presence of all the accused, proposed to the court that the jury should have the opportunity of viewing the cannabis and the two vessels. It was proposed that for that purpose the cannabis be transported from Aberdeen to Rosyth and that it and the vessels be viewed by the jury on a day to be arranged. Counsel for the various accused (who were nine in number) had no objection to that proposal.
On 23 December the Advocate-depute intimated to the court that 30 December would be a suitable date for the proposed visit. The Ocean Jubilee (which had been badly damaged by fire at about the time of its detention) was housed in a hangar at the Base. The Advocate-depute stated to the court that, having regard to its condition, he did not propose that the jury be invited to board the Ocean Jubilee; he indicated, however, that any alternative proposal might be considered. The cannabis would be brought to the same hangar at Rosyth for viewing by the jury there. The Isolda was berthed at a quayside at the Base. Its overall length was about 18 metres and its internal accommodation comprised inter alia restricted living and sleeping areas and an engine space, all linked by narrow passages and stairs. In view of its size the Advocate-depute proposed that the jury should board the Isolda in three groups of five jurors each. Counsel for the various accused, who were again all present, were then heard by the court on the Advocate-depute's proposal. None objected to it. Certain matters of detail were raised and resolved in relation to the arrangements and the instructions appropriately to be given to the jury in respect of them. The trial judge made it clear that the accused, their counsel and their solicitors would be expected to be present at the Base, though not necessarily on the vessel. No objection was taken to that arrangement. Given the size and nature of the Isolda, it would plainly have been impossible for the judge, the fifteen jurors, the nine accused and their legal representatives, the clerk and macer and appropriate security officers to be present all at the same time on the Isolda, far less in any particular part of it.
By 30 December arrangements were in place for the jurors to view the cannabis, the Ocean Jubilee and the Isolda at the Rosyth Base. On that day the Advocate-depute intimated to the court, in the presence of the jury and all the accused, that transport had been arranged to take all relevant persons there. He renewed his proposal that, so far as concerned the Isolda, the jurors be invited to look round it in groups of five. He proposed that each group should be accompanied and directed by the court macer, an officer of the court (Administration of Justice (Scotland) Act 1933 section 24(7)). No objection was taken on behalf of any of the accused to those proposals. The trial judge then instructed the jury as to the purpose of their visit. He said -
"...we have a term for this sort of thing, in our parlance, a site visit. We are going to look at site objects but it is also a site visit. We are just going to see, we are not going to hear anything told to us that will be part of the case. Do you follow what I mean? So it is not an investigatory exercise, it is just an exercise in having a look, so that the evidence as yet to come will be more understandable to you...".
He then gave them certain instructions in relation to their visit.
The site visit took place later that day. The accused, their counsel and their solicitors as well as the judge, the jurors, the clerk and the macer travelled to the Base. As well as viewing the other items, the jurors viewed the Isolda in the manner arranged, namely, five at a time accompanied by the macer boarding it and viewing its external and internal accommodation. The accused were at that time in a bus on the quayside, the weather being such as to make it inappropriate that they be required to stand in the open air. Inevitably when the jurors were in the internal parts of the Isolda they were out of the direct sight of the accused. The accused were at such times unable to see (or to smell) exactly what any juror below deck on the Isolda was at that time seeing (or smelling).
The Arguments
Dr. Sjocrona for the appellants submitted that the trial judge was fundamentally in error in permitting this procedure. It was impossible, he argued, for the appellants to know what the jurors had seen or not seen or smelled or not smelled or what discussion they had had when below deck on the Isolda. The clerk of court had not accompanied them and no record had been made of their observations there. The trial judge had no right to delegate to the macer the supervision of the jurors' visit. The only proper place for the leading of evidence was in the courtroom in the presence of the accused. It was impossible to suppose that the jurors were not influenced by what they had observed or not observed while below deck. This was particularly important when a point subsequently arose at the trial as to whether certain jute-backed carpets and certain tins of yellow paint had been present on the Isolda at the time of its detention. The trial judge had also in his charge to the jury made observations about the smell of cannabis. Scots law required that all evidence be taken in the presence of an accused (Aitken v. Wood 1921 J.C. 84, per Lord Justice-General Clyde at p. 86; Brims v. MacDonald 1993 S.C.C.R. 1061). The case law of the European Court of Justice was to the same effect (Barbera, Messegue and Jabardo v. Spain, 6 December 1988, Series A No. 146 (11 E.H.R.R. 360) at para. 78; Brandstetter v. Austria, 28 August 1991, Series A No. 211 (15 E.H.R.R. 378) at paras. 66 and 67; Mantovanelli v. France, 18 March 1997, 1997 - II 424 (24 E.H.R.R. 370) at para. 33). It was also important that proceedings should be in public (Diennet v. France, 26 September 1995, Series A No. 325 (21 E.H.R.R. 554) at para. 33). The procedure acceded to by the trial judge infringed that principle.
The Advocate-depute submitted that the proceedings had been regular. The possibility of the jury visiting the vessels and the cannabis had been canvassed on several occasions in open court. No objection to the arrangements had been made. A judge had a discretionary power to adjourn to the locus to allow the jurors to view it (Rodden v. H.M. Advocate 1994 S.C.C.R. 841 at pages 845-6). The trial judge had made it plain to the jurors that they were going to the Base for no other purpose than to look at objects, namely the cannabis and the two vessels (which by reason of their size could not be brought into the courtroom), so that evidence led before them in the courtroom would be more understandable to them. They had been given appropriate instructions. As to the circumstance that at times the jurors on their visit would be out of sight of the accused, there was an analogy with jurors being allowed, after their retiral, to view productions in the privacy of the jury room. That procedure likewise was subject to the control and instructions of the trial judge. In such circumstances the jurors' observations and reactions inevitably took place outwith the presence of the accused. Reference was made to Renton & Brown - Criminal Procedure (6th edition) para. 18-87; Bertram v. H.M. Advocate 1990 S.C.C.R. 394; Martin v. H.M. Advocate 1989 S.C.C.R. 546; Hamilton v. H.M. Advocate 1980 J.C. 66; Boyle v. H.M. Advocate 1990 S.C.C.R. 480. (The court drew attention to Carroll and Santini v. H.M. Advocate 1999 S.C.C.R. 617). No unfairness had occurred by reason of the site visit. There had been no miscarriage of justice.
Decision
Section 92(1) of the Criminal Procedure (Scotland) Act 1995 provides -
"Without prejudice to section 54 of this Act, and subject to subsection (2) below, no part of a trial shall take place outwith the presence of the accused".
Section 54 concerns proceedings in respect of which a question arises as to whether an accused is insane; section 92(2) concerns circumstances in which the accused has so misconducted himself that a proper trial cannot take place unless he is removed. The general principle behind section 92(1) has been part of the law of Scotland since at least the passing of the Criminal Justice Act 1587. The principle is expressed in Hume on Crimes vol. II page 404 as follows:
"...no evidence is lawful or competent on either side, but that which is taken (as we say) in face of judgment, - in open court, before the parties, and the assize who are charged with the pannel: A rule which is grounded in the soundest reason, and most substantial justice. Not only because it would be iniquitous, that either party should privily communicate any thing to the assize; but because it is only by observing the words, manner, nay aspect and countenance of the several witnesses, that the assize can fully judge of the credit that is due to them...".
Although expressed in the language of its day, the meaning of that paragraph, so far as relevant for present purposes, is clear - the taking of evidence must for the reasons stated take place in open court before the parties (including the accused) and the jurors (or the judge or judges) charged with reaching conclusions on the evidence. Thus, in Aitken v. Wood the conviction was quashed when the complainer, who had given evidence in court of injuries allegedly sustained to her arm on being assaulted by the accused, was called by the magistrates (one of whom was a medical man) into their private room and her arm there examined outwith the presence of the accused and the parties' representatives. Lord Justice-General Clyde at page 86 said:
"The examination of the arm was just a means of taking evidence additional to that which was presented at the proof".
In Brims v. MacDonald, where a question arose at the trial as to the credibility and reliability of a police constable's evidence about whether a bend in the road was or was not blind, the sheriff took it upon himself during a break in the trial to visit the locus privately in order to make his own observations. The High Court observed at p.1065:
"...the sheriff, by going to the locus in order to determine whether the evidence of Constable Duncan regarding the blindness of the bend should be accepted, was in effect taking evidence, and that meant that part of the proceedings were being carried out outwith the presence of the complainers [the accused]".
The making of a site visit by the court (as a whole) is a competent, albeit relatively rare, procedure under Scots law. Its object is not the taking of evidence but the affording of an opportunity to the ultimate fact-finders to observe directly the general physical environment of a location so that evidence previously or subsequently led in court about it or events said to have occurred at it may more readily be understood. For the purposes of a site visit during a jury trial the whole court, namely, trial judge, jurors, court officials, prosecutor and accused and their legal representatives adjourn to the locus. Whether or not in any particular case it is in the interests of justice that a site visit take place is a matter for the discretion of the trial judge, having heard the parties (Rodden v. H.M. Advocate). If such a visit is to take place, the trial judge, having considered any representations made to him by the parties, will determine the particular arrangements to be made for it. He will also direct the jury as to the purpose of the visit, as the trial judge did in this case.
A feature of this case is that in the course of the visit to Rosyth Naval Base the jurors viewing the Isolda were at times outside the direct sight of the accused. That was inevitable and clearly foreseeable if the jurors were to be permitted to view its internal accommodation. No objection was taken to this arrangement when it was discussed in the courtroom prior to the visit. The assumption must be that this arrangement was then perceived by the accused and their representatives to be in the interests of the accused. That the jury should have a general but direct impression of the restricted and limited accommodation on board the Isolda might well be of importance to the defence in a case such as this where the allegation (disputed by the defence) was that the vessel had carried a substantial and bulky cargo. If Dr. Sjocrona's argument were correct, it would be incompetent and improper in any circumstances to allow a jury to visit and view a location which involved any confined spaces such that any juror might at any point of time, albeit briefly, be out of sight of any of the accused - even in circumstances where the defence had specifically requested it and it was very important for the defence that the jurors have a direct impression of that location. Such a rule would, in our view, be a denial of justice. Of course, care must be taken before a site visit is authorised to ensure that the jurors understand its limited purpose; the arrangements for it must also be carefully considered. However, no valid criticism can, in our view, be made of the trial judge in these respects. With regard to the judge's reference to the smell of cannabis, that occurred at a point when he was, in his charge to the jury on 19 February 1997, summarising the Crown's contentions against the Dutch accused and in particular how, according to the Crown, each of them must have known of the presence of a cargo of cannabis on board the Isolda. He said - "It was" (according to the Crown contention) "far too big, far too bulky and perhaps even far too smelly for them not to have known what was...afoot...". That reference was wholly unrelated to anything which any juror may have smelled while on board the Isolda during the site visit in December 1996.
There is, to some extent at least, an analogy with the examination by a jury after their retiral of productions previously spoken to in evidence in open court. Whether any such item is made available to the jury in their private room is subject to the discretion of the trial judge (Hamilton v. H.M. Advocate at p. 69). In some circumstances the private viewing by the jury in places other than their room of items previously spoken to in evidence may be unobjectionable (Carroll and Santini v. H.M. Advocate) - in that case a video film replayed in the courtroom in the absence of the trial judge and the parties. Sensations of sight, sound and touch etc. experienced by individual jurors under such arrangements are of their very nature not within the presence of the accused. Yet, again it may be in the interests of justice, not least of justice to the accused, that in particular situations such facilities be granted.
We have considered the authorities in Strasbourg jurisprudence cited to us by Dr. Sjocrona. None of these, in our view, conflicts with the principles of Scots law or warrants a different approach to the issue in this case. In Barbera, Messegue and Jabardo v. Spain the conclusion of the majority of the Court that there had been a violation of Article 6(1) was based primarily on the fact that very important pieces of evidence were not adequately adduced and discussed at the trial and under the watchful eye of the public (para. 89). That evidence was principally of a person (Mr. Martinez Vendrell) who had made incriminating statements against the accused and whose evidence was regarded as vital (paras. 85-6); the statements by the accused themselves and used against them were also regarded as having been obtained in unsatisfactory circumstances (para. 87); the defence was unable to challenge in a fully effective manner the identification and relevance of real evidence (weapons, documents etc.) relied upon by the prosecution as evidence (para. 88). These circumstances are very remote from those of the present case. In Brandstetter v. Austria the Court held that the applicant's complaint in respect of certain defamation proceedings was well-founded (para. 69). It rejected his complaints in respect of certain other proceedings (paras. 54 and 63). His complaint in relation to the defamation proceedings was that a submission made by the public prosecutor to the Vienna Court of Appeal and relied on by it had not been communicated to him and its existence was not known to him (para. 64). The European Court of Human Rights held that the practice in force in Austria at the relevant time did not sufficiently ensure that appellants were aware that a submission on which they should comment had been filed by the prosecutor (para. 67). In these circumstances it held that there had been a violation of Article 6(1). In Mantovanelli v. France the parents of a young woman who had died following certain medical procedures brought civil proceedings for damages against the hospital authority. The Administrative Court on the application of Mr. and Mrs. Mantovanelli appointed an expert to carry out certain enquiries and to report. There were admitted irregularities in the procedure followed in preparing the expert medical report - in particular, neither Mr. and Mrs. Mantovanelli nor their counsel had been informed of the dates of the interviews conducted by the expert, who had also in his report referred to documents which they had not seen (para. 30). The Court of Human Rights (by a narrow majority) held that Mr. and Mrs. Mantovanelli, despite being able to make submissions to the Administrative Court on the content and findings of the report, had not in the circumstances considered as a whole had a real opportunity to comment effectively on it; they could only, it was held, have expressed their views effectively before the expert report was lodged (para. 36). The circumstances of both Brandstetter and Mantovanelli are far removed from those of the present case. The relevant test in this context is whether the accused can participate effectively in the conduct of his case (Stanford v. The United Kingdom, 23 February 1994, Series A No. 282 para. 26; Thompson v. The United Kingdom, 16 December 1999, para. 85). That test was, in our view, satisfied here.
In Diennet v. France proceedings had been brought against a medical practitioner for professional misconduct. Under the then applicable national rules these proceedings were held in private (though those rules were subsequently changed). In upholding the applicant's complaint of a breach of Article 6(1) the Court emphasised the importance of the principle that court hearings be, in general, held in public. It observed (para. 33):
"This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained".
Observations to a similar effect were made by the Court in Barbera, Messegue and Jabardo v. Spain at para. 89. Dr. Sjocrona sought to rely on these principles in the present case. We observe firstly that any exclusion of the public from attendance at the site visit to Rosyth Naval Base forms no part of the appellants' Grounds of Appeal. More importantly, however, the submission is, in our view, misconceived. The whole evidence at the trial was led in the courtroom at Dunfermline, where also were heard the submissions of counsel and the judge's directions to the jury. The public had access to that courtroom. The circumstance that the place where the jury viewed objects too large to be produced in the courtroom (including a very substantial amount of controlled drugs) was a secure establishment in no way, in our view, involved an infringement of the principle that there should be public scrutiny of the administration of justice.
There was a suggestion by Dr. Sjocrona in the course of argument that the appellants, of whom three are Dutch nationals whose native language is not English and for whom interpreters were provided, had not, when the arrangements for the site visit were discussed in court, understood what was to happen. There was also a suggestion by him that some form of objection to the arrangements had been taken by them at the quayside. Neither of those complaints is contained in any Ground of Appeal presently before us; nor was it suggested to us that these alleged concerns had been raised before the trial judge. In these circumstances it would be inappropriate to say anything further about them other than to refer to paras. 30 and 31 of the Court's judgment in Stanford v. The United Kingdom.
Within Ground of Appeal 9 for the third and fourth appellants is a complaint that the Isolda when inspected by the jury "was not exhibited as an unadulterated production". It is alleged that certain items, namely, jute-backed carpets and tins of yellow paint said to have been on the Isolda at the time of its detention had been removed prior to the visit by the jury on 30 December 1996. A similar complaint by the first and second appellants is made in Ground 1 of their Grounds of Appeal. These matters are said to be material to certain evidence given by the first appellant in the course of his cross-examination by the Advocate-depute on 29 January 1997. In our view these matters, whatever their possible significance for other Grounds of Appeal, have no relevance to the issue of the competence or propriety of the jury being permitted to visit the Isolda in the way that they were on 30 December 1996. The purpose of that visit was not for the jurors to carry out an investigation of the contents of the Isolda, far less for them to look for and note the presence or absence of items such as jute-backed carpets or tins of yellow paint. The presence or absence of particular items on board the Isolda at any time was a matter for the evidence which the jury heard in the courtroom in the immediate presence of all the accused.
In these circumstances Ground 1 for the first and second appellants and Ground 9 for the third and fourth appellants fall to be rejected.
Grounds of Appeal 6 (First and Second appellants) and 15 (Third and Fourth appellants)
In Ground of Appeal 6 for the first and second appellants it is claimed that the trial judge misdirected the jury in several respects. First it is claimed that he "misdirected the jury as to inferences that may be drawn by reference to interrogation of suspects by Customs & Excise, the nature of the caution and inferences to be drawn by what was or was not said under caution". In addition, it is said that "the trial judge's directions confused the quite separate processes of interrogation by Custom & Excise and judicial examination". Next, under reference to Dempsey v. H.M. Advocate 1995 J.C. 84, it is asserted that the trial judge "failed to properly distinguish between those former accused who gave evidence and those who did not." The trial judge is also criticised for failing "to exercise restraint in his comments that a defence may have been 'concocted'." The additional Ground of Appeal (15) for the third and fourth appellants repeats these criticisms and adds that in giving directions as to the evidential value of "anything that was said or not said at judicial examination, the Judge fails to direct the jury in relation to advice which may have been given by a solicitor". This Ground of Appeal also criticises the wording used by the judge when saying that suspects had a right "to remain silent and not to incriminate themselves" because that way of putting it implied that if they spoke they would be likely to incriminate themselves. Finally it is asserted that " the trial judge fails to take cognisance of the fact that not only the accused, but also the Crown did not disclose their positions at the outset of proceedings, as it is quite clear from the evidence as extracted that the Crown did not disclose the existence of a tracking device, and the position of the Crown case changes as it progresses. In singling out the appellant the learned trial judge unfairly charges the jury in relation to the attitude which they should take."
Although it was stated at the bar that certain of the appellants thought that the transcripts of their judicial examinations were not placed before the jury, we note that there is no reference to such a complaint in any of the Grounds of Appeal. The Book of Adjournal records that nine transcripts of judicial examination of the accused were read to the jury by the Clerk of Court on day 34 of the trial. We proceed on the basis that the Book of Adjournal accurately records what happened.
It is appropriate to begin by referring to what the trial judge said. (The criticised passages begin on page 18 of the transcript of proceedings for 19 February 1997). In the first passage he reminded the jury that they had heard evidence, including tape recordings, relating to interviews between officers of Customs & Excise and the accused persons. He reminded the jury that all such interviews had been conducted under caution and he explained what that meant. He added that those interviewed were told of their rights under the law "to remain silent and not to incriminate themselves by what they said." The trial judge's charge continued in the following terms:
"Now, despite that caution, in the course of these interviews some of the accused at least made certain statements about their involvement in the events of May to July 1996. I have already explained to you the legal significance of such statements. However, since what was said to the Customs & Excise Officers by some, at least, of the accused was relied on by the Advocate-depute and to some extent by other Defence Counsel, I should of course point out to you that in considering the credibility of any of the evidence given to you in Court, by those accused, you are perfectly entitled to take into account the fact that an accused said something different when interviewed, or chose not to mention certain allegations, the truth of which he now maintains. Similarly, I explained to you when the transcripts were read out, the purpose of the judicial examination before the Sheriff. That is a judicial procedure which may be invoked soon after an arrest and which gives an accused, at such an early stage, the opportunity to state any defence which he may have to the charge, or charges against him. If he fails, or declines, to do so, ladies and gentlemen, and then advances such a defence at the trial some time later, you may take that into account in assessing his credibility. In other words you are entitled to take the view that since he did not advance the defence, when given the opportunity to do so, so shortly after the event, but advances the defence now, he may have concocted it in the time which he had to do so." (In quoting from the typed transcript we correct minor obvious errors of transcription).
It is important to observe that both in relation to the Customs & Excise interviews and in relation to the appearances at judicial examination the trial judge was indicating to the jury that they might find assistance from these sources in considering or assessing the "credibility" of evidence or of witnesses. Thus, in relation to the Customs & Excise interviews, the words he used were
"...in considering the credibility of any of the evidence given to you in Court by those accused you are perfectly entitled to take into account the fact that an accused said something different when interviewed, or chose not to mention certain allegations, the truth of which he now maintains."
In relation to the judicial examinations, again the emphasis is on the assistance that the jury might find in assessing a witness's credibility, if they had heard evidence that he proffered in court, consisting of material supporting his defence, but including material that he had not disclosed at an earlier stage.
Counsel who presented this submission to us on behalf of all four appellants intimated that these Grounds of Appeal raised what he described as "a fair trial point", with particular reference to the matter referred to in the last passage in Ground of Appeal 15, being that quoted earlier. The first point to be argued, however, was that there was a fundamental difference between the interrogating of a suspect by officers of Customs & Excise and the questioning of an accused under judicial examination procedure. The statute governing questioning by Customs officers was section 24(8) of the Criminal Law (Consolidation)(Scotland) Act 1995. That provision, it was submitted, was in significantly different terms from section 36(2) of the Criminal Procedure (Scotland) Act 1995, the corresponding statutory provision relating to judicial examination. He maintained that section 36(2) was there for the purpose of eliciting a possible defence to the charge or charges. Section 24(8), it was submitted, had no such purpose. Having regard to the differences in the respective statutory provisions it was submitted that the trial judge, notably by using the word "Similarly" in the passage quoted, had equiparated two things that were not at all the same. This, it was submitted, was clearly wrong. Reference was made in that context to Dempsey v. H.M. Advocate 1995 J.C. 84 and to David Crawford v. H.M. Advocate 1999 S.C.C.R. 674. In relation to the latter case, counsel drew attention to the passage at page 678B where it was said:
"Against that background his [the trial judge's] inaccurate account of the evidence about the complainer considering photographs, the relationship of that with a similar exercise in respect of Culbertson [a witness], and the fact that all of this was asserted shortly after the jury were directed to have regard to inconsistency between the appellant's evidence in court and what he said to investigating police officers amounted to a material misdirection on a crucial issue for the jury" (emphasis added).
However, as was pointed out to counsel, that passage does not at all support the view that drawing the jury's attention to any such inconsistency amounted to a material misdirection. That was a case in which the trial judge misdirected the jury by giving them an inaccurate and misleading account of the evidence relating to a crucial issue, that of identification. Accordingly, as noted in the Opinion of the Court at page 675B, "The appellant appealed against his conviction on the ground that the judge misdirected the jury by misrepresenting the evidence on the crucial question of the identification of the appellant as the person who stabbed the complainer". A careful examination of the submissions made to the court in that case indicates that counsel for the appellant, Crawford, did not even suggest that the trial judge's invitation to the jury " to have regard to inconsistency between the appellant's evidence in court and what he said to investigating police officers" amounted to a misdirection. Counsel for the appellant was referring to that particular direction only because it was part of the background or context in which the passage that she did submit was a misdirection - the passage relating to identification evidence - appeared. Furthermore, Crawford was a case in which the accused had not chosen to remain silent when questioned by the investigating police officers but chose to give them an account of matters; that account, however, was inconsistent with the evidence that he later gave in court. Accordingly Crawford affords no support for the submission advanced. Dempsey was a case in which the presiding sheriff clearly misdirected the jury by passing comment on the accused's failure to indicate in his judicial examination that he had been acting in self-defence. However, since the accused had not given evidence at the trial itself, that comment amounted to a clear breach of what was then section 20A(5) of the 1975 Act (now re-enacted, but after amendment, in section 36(8) of the Criminal Procedure (Scotland) Act 1995). Counsel was not able to persuade us that this decision had anything whatsoever to do with the matter brought under consideration by the Grounds of Appeal which he was advancing in the present appeals. These Grounds relate to how the jury might use other material to assess the credibility of an accused who has given evidence before the jury.
It was submitted that what the trial judge said in the present case in relation to assessing the credibility of those accused who chose to give evidence had a bearing upon the cases of those accused who had chosen not to give evidence, because the two of the present appellants who had not given evidence had relied to some extent on the evidence of Mr. Hoekstra; accordingly, if there was found to be a misdirection in relation to Mr. Hoekstra that, it was submitted, would affect them. If there was a misdirection in respect of those who gave evidence, there would equally be a misdirection and possible miscarriage of justice in respect of the others who had relied upon that evidence to any extent.
Section 24 of the Criminal Law (Consolidation) (Scotland) Act contains, in addition to the subsection referred to by counsel for the appellants, various provisions to which the court drew attention - in relation to the detention and questioning of a person when an officer has reasonable grounds for suspecting that that person has committed a relevant offence punishable by imprisonment. These provisions include subsection (6) which permits an officer to put to a person detained under subsection (1) "without prejudice to any existing rule of law as regards the admissibility in evidence of an answer given,...questions...in relation to the suspected offence". Section 36(1) of the Criminal Procedure (Scotland) Act 1995 permits the prosecutor at judicial examination to question the accused "in so far as such questioning is directed towards eliciting any admission, denial, explanation, justification or comment which the accused may have as regards anything to which subsections (2) to (4)...apply". (The word "admission" was added, to section 20A of the Criminal Procedure (Scotland) Act 1975, by section 10 of the Criminal Justice (Scotland) Act 1995.) Subsection (2) begins, "This subsection applies to matters averred in the charge..." The differences in wording between the provisions in section 24 and those in section 36 of the two Acts seem to relate principally to the fact that in the situation to which section 24 relates the person is detained as a suspect and may be questioned about "the suspected offence", whereas in the situation to which section 36 relates the person is facing questioning after there is a charge against him. This is an important distinction. But, in our view, both statutes permit the questioner to put questions to a person, a suspect in one case, an accused in the other, relating to the accusations which that person faces. In both situations the questioning affords the person questioned an opportunity to admit, deny or, if he chooses, to explain or justify his participation in the events which have led to his detention or arrest. In neither situation would our courts admit evidence of answers given under unfair pressure or hostile cross-examination. In each set of circumstances the person has first to be reminded of his right to silence. If he chooses to exercise that right but later goes into the witness box and advances an account of matters which, if true, he would have been able to advance when first questioned then he would expose himself to legitimate cross-examination as to why he had not, on the earlier occasion, given the account which he subsequently gave in court from the witness box. The jury would certainly be entitled, in assessing the reliability of the evidence that they heard in court, to have regard to the circumstance that that account had not been given earlier, along with any explanation given by the witness in his evidence as to why he had not given that account earlier. It is commonplace for an accused who does choose to answer the questions put to him at the stage of investigation and/or judicial examination, and in doing so gives an exculpatory account containing allegations of facts and circumstances that may be able to be investigated at once, to give evidence to the jury in similar terms and to point to and found upon his openness on the first occasion when he was questioned and the consistency of his position from the first occasion to the last ( in the witness box) as bolstering his credibility as a witness. This is a relevant consideration when considering the credibility and reliability of the evidence given by him in court. It could hardly be improper for the jury, if a suspect has remained silent on the first occasion on which he was questioned, to have regard to that silence when assessing his evidence as given in court and, to reflect on any explanation tendered in court as to why he did not refer to exculpatory facts and circumstances when he first had the opportunity and when their prompt investigation might have helped to shed light on their truth and relevance. Of course, he may explain in court that he was exercising his right of silence on that earlier occasion and may add that he was doing so on legal advice. The jury would have to take that into account. But it would be open to the jury to have regard to what happened and what was said or not said when they came to assess the credibility and reliability of the evidence heard from the witness box and to decide what inferences to draw from all the evidence. If an accused person goes into the witness box and, for the very first time, advances publicly a factual account and exculpatory explanation of the circumstances that might otherwise infer criminal guilt, then the jury, particularly where some of the newly revealed facts and circumstances can no longer be thoroughly investigated, may consider that the evidence given in court is less convincing than it might have been had that account been given at an earlier opportunity, whether in the course of an interview by the police, or in the course of a statutory interview or judicial examination. When a jury hears a detailed account put forward publicly for the first time by an accused in the course of the trial they are entitled to consider the possibility that that account might have been thought up between the time of first questioning following detention or arrest on the one hand and the presentation of the defence in court on the other. If the jury are entitled to consider such matters in assessing credibility and reliability, as we consider they are, then it is difficult to see why it should be a misdirection for the trial judge to tell them that they are so entitled. As has been seen, the trial judge in this case said to the jury, "...you are entitled to take the view that since he did not advance the defence, when given the opportunity to do so, so shortly after the event, but advances the defence now, he may have concocted it in the time which he had to do so."
Apart from the misconceived reference to David Crawford v. H.M. Advocate, counsel for the appellants presented no argument and referred to no authority in support of any submission to the effect that a judge is not entitled to remind a jury that an accused exercised his right of silence when questioned before the trial and to tell them that they may have regard to that matter when assessing his credibility if he has chosen to enter the witness box and to proffer there an explanation that he did not proffer when questioned earlier. We emphasise that we are not concerned here with a situation in which it was suggested to the jury that the exercise by an accused of his right to silence when facing questions pre-trial could itself yield some positive inference of guilt. (We note, however, that in Fox v. Paterson 1948 J.C. 104 the Lord Justice-General (at page 109) suggested that a suspect's silence at the earlier stage might be a criminative circumstance for the purposes of the application of the doctrine of recent possession. The same was said by Lord Justice General Clyde in Wightman and Another v. H.M. Advocate 1959 J.C. 44 at p. 46. These dicta are referred to below.). The only point here under consideration arising out of the present Grounds of Appeal is whether or not the jury when assessing the evidence given in the witness box by an accused person can take into account his decision, when questioned pre-trial, not then to disclose facts and circumstances, known to him then, and which, when he elects to give evidence in court, he claims show or tend to show that he is not guilty of the charge he faces.
No English authority was referred to. The recent English cases have been concerned with the application of section 34 of the Criminal Justice and Public Order Act 1994 which does not apply in Scotland. It may, however, be of some interest to note that when this section (then Clause 32) was being debated in the House of Lords the then Lord Chief Justice, Lord Taylor of Gosforth, gave the following example,
"A man is found in your back garden with a bag of tools. Asked by a policeman why he is there, he says nothing. At trial he suggests for the first time that his employer sent him to do some joinery and he mistook the address. Why should he not have said that to the policeman when it could have been checked out? What is unfair about making a comment about his failure to do so to the jury?". (The Parliamentary Debates, House of Lords O.R. Vol. 555, Col. 520.)
We consider that that example is useful in assessing the matter before us. We also observe that in Murray v. United Kingdom 1996 22 E.H.R.R. 29 the Court, when considering the application of the Criminal Evidence (Northern Ireland) Order 1988, did not hold that there had been any violation of Article 6(1) and (2) of the Convention arising out of the drawing of adverse inferences on account of the applicant's silence.
There is, we recognise, a distinction between the inferences that may legitimately be drawn from a person's silence when he is questioned as a suspect and his silence when formally charged. As the Lord Justice General (Clyde) said in Wightman:
"It may well be that a failure by the occupier of premises to give an explanation or to say anything when challenged by the police at an early stage in an investigation into the finding of recently stolen property on his premises may constitute a criminative circumstance - see Cryans v. Nixon 1955 J.C. 1; Fox v. Patterson 1948 J.C. 104, per the Lord Justice-General (at p. 109). But that is not the situation here. Here the circumstance founded upon arose after the case had got beyond the stage of mere investigation and after the applicants had each been cautioned and charged with the offence. Quite different considerations apply when that has taken place, and it is now well settled, as was said by the Lord Justice-General in Robertson v. Maxwell, 1951 J.C. 11 (at p. 14): 'It has been stated in this Court more than once that no legitimate inference in favour of a prosecutor can be drawn from the fact that a person, when charged with crime, either says nothing or says that he has nothing to say. He is entitled to reserve his defence, and is usually wise if he does so.' This observation, with which I agree, removes from the sphere of criminative circumstances answers which the applicants may have made after they had been cautioned and charged with this particular crime."
Section 36(8) of the Criminal Procedure (Scotland) Act 1995 contains a statutory change to the common law position as explained in Wightman. That subsection provides that -
"An accused may decline to answer a question under subsection (1) above; and, where he is subsequently tried on the charge mentioned in that subsection or on any other charge arising out of the circumstances which gave rise to the charge so mentioned, his having so declined may be commented upon by the prosecutor, the judge presiding at the trial, or any co-accused, only where and in so far as the accused (or any witness called on his behalf) in evidence avers something which could have been stated appropriately in answer to that question."
The result is that, at least in this respect, the position of a suspect who is interrogated by officers in exercise of their powers under the Criminal Law (Consolidation) (Scotland) Act 1995 and who subsequently gives evidence at his trial is not materially different from the position of a person charged who appears before the sheriff for judicial examination and later gives evidence at his trial. In each instance, provided that the person gives in court an account of factual matters that he has not given on the earlier occasion, there is room for legitimate comment upon the decision of the suspect or person charged to exercise his right of silence on the earlier occasion. It is a circumstance relevant to the assessment of the reliability and credibility of his evidence as given on oath to the trial court.
It is also, in our view, a misunderstanding of the trial judge's use of the word "Similarly", in the passage in his charge which has been quoted earlier, to suggest that he was thereby implying that the position of a suspect being questioned by Customs & Excise officers was the same as the position of an accused before the sheriff at judicial examination. There are some obvious differences which the jury would clearly understand from the way in which this material was presented to them. All that the trial judge was doing at this point was using the word "Similarly" as an adverbial link between the two situations in which the appellants faced questioning about the events in which they were said to have become involved. There was, in our view, no risk that the jury would be confused in any material respect.
We can see no reason at all why, in this context, the trial judge should have differentiated expressly between the position of those who had given evidence and the position of those who had not. As we have sought to make clear, the judge was dealing simply and solely with the jury's possible approach to consideration of the credibility and reliability of evidence that they had heard from the mouths of those who entered the witness box.
In relation to the suggestion that the trial judge should have drawn the jury's attention to the circumstance that before or during questioning the accused who were being questioned may have been given legal advice, we are of the clear view that the trial judge had no duty to remind the jury of every fact or possible factual consideration that might arise. They heard all the evidence that parties wished to place before them about the circumstances in which the accused were questioned. The judge did not have to go through all that evidence in detail. Whether or not he should do so was a matter within his discretion in the light of what he saw to be the matters in issue in the trial. A trial judge has to be careful not to patronise the jury or to risk confusing them by going into unnecessary and repetitive detail about such matters.
As was noted earlier, the use by the trial judge in the passage already quoted of the word "concocted" was criticised. In our view that is an acceptable synonym for fabricating a story or making up a false explanation of incriminating circumstances which had been discovered by the police investigation.
Counsel advanced the further submission (see Ground 15 for the third and fourth appellants) to the effect that, because the trial judge had, in the absence of the jury, heard more than one explanation advanced by the Crown in relation to an entirely different matter, namely the possible presence on the Isolda of a tracking device surreptitiously planted there without the knowledge of the crew, the trial judge should have expressly referred to this matter in his charge in order to show the jury that even the prosecution and those assisting them could be inconsistent in relation to matters of evidence. The rationale of this argument escapes us. It appears to proceed upon a wholly unsustainable notion that the jury's consideration of the credibility and reliability of evidence given on oath before them should somehow be affected by circumstances that shed a poor light upon the quality of the Crown's preparation of the prosecution case. But the Crown is not like a witness whose credibility and reliability are in issue. The Crown does not give evidence as a witness does, on oath. The credibility and reliability of the Crown as prosecutor is not in issue in the way that the evidence of witnesses is.
In any event, if the trial judge did misdirect the jury in relation to how they might approach possible differences between evidence given in court and statements made or withheld at some earlier stage then he has misdirected the jury. If he has not misdirected the jury in that regard then he has not done so. The fact that outwith the presence of the jury the Crown has revealed errors in its understanding or investigation in connection with a matter unconnected with post-detention interviews of the accused can not have any bearing on the directions given to the jury about their assessment of the evidence they have heard.
It has been said repeatedly that a judge's charge to a jury should be assessed not "on isolated passages" but "on its general tenor"; see, for example, Lord Justice General (Normand) in Scott (A.T.) v. H.M. Advocate 1946 J.C. 90 at page 97. Looking at the judge's charge in relation to how the jury were entitled to approach the credibility of those accused who gave evidence in court and who had appeared for questioning on earlier occasions, we consider that the jury could not have been misled by what the trial judge said. In our opinion, there is no basis in the passages criticised for suggesting that a miscarriage of justice has occurred.
These Grounds of Appeal must be rejected.