Applicant: Shead, McKenzie, Mitchell; John Pryde & Co., Edinburgh

Respondent: Mulholland, Q.C., Solicitor General, A.D.; Crown Agent

12 May 2011

Proceedings up to conviction
[1] The applicant was on 12 October 2001 convicted after trial of the murder of Barry George Wallace. The terms of the charge of which he was found guilty were:

"on 5 or 6 December 1999 at 2B Doon Place, Bellfield, Kilmarnock you did assault Barry George Wallace, 38 Cumbrae Drive, Kilmarnock, place handcuffs on his arms and legs, struggle with him, punch him on the face, restrain him, puncture his arm with a needle or similar instrument and penetrate his hinder parts with your private member, all to his severe injury and you did murder him and further you did dismember his body and dispose of the dismembered parts in Loch Lomond, Stirlingshire, and in the sea at Barassie, Troon, Ayrshire."

The applicant was sentenced to life imprisonment, a punishment part of twenty years being specified.

[2] Within a short period of the victim's death suspicion fell on the applicant. On 17 December 1999 a search warrant was obtained and executed in respect of his home address and on 21 December a petition warrant granted for his apprehension. By this time he had left Scotland for the Netherlands, where he was arrested and remanded in custody by the Amsterdam District Court. Extradition proceedings were initiated in January 2000. The application was heard by the Amsterdam District Court on 28 March. On 11 April it granted extradition in respect of the charges of murder and abduction. The applicant appealed against that decision. On 26 September the Supreme Court of the Netherlands upheld the decision of the District Court. The case was referred to the Dutch Minister of Justice who on 14 November authorised the extradition of the applicant, who then lodged an application for judicial review of the Minister's decision. On 5 January 2001 that application was refused. Four days later the applicant was returned to the United Kingdom. On 10 January he appeared on petition at Kilmarnock Sheriff Court and was remanded in custody. On 17 January he was judicially examined and again remanded in custody. On 14 March an indictment was served on him with a trial diet of 17 April 2001. The applicant lodged a number of minutes raising preliminary issues. These resulted in the postponement of the trial diet to 14 May. Shortly before that diet the applicant lodged two further minutes and sought a further postponement of the trial. Argument on these minutes was heard and refused by a single judge on 29 June. The applicant appealed that decision to the High Court, which heard his appeal on 7 and 8 August. On 17 August it gave its written reasons for refusing the appeal. A further application by the applicant was heard and disposed of (by the trial judge) on 17 September. On 18 September the trial began. It ran until 12 October 2001, as earlier stated. On that date the applicant was convicted and sentenced.

Initial steps to obtain leave to appeal
[3] On 17 October 2001 the applicant lodged intimation of intention to appeal against his conviction. On 20 December he sought an extension of the six week period for lodging a note of grounds of appeal, giving as reasons the volume of documentation and the pressure of work on his senior counsel. A six week extension was granted on 21 December. On 29 January 2002 the applicant made a further application for extension of time to lodge a note of grounds of appeal, giving as reasons that his senior counsel required further information and that transcripts of the evidence would also be required. On 30 January a further six week extension was granted. On 7 February a third application for extension of time to lodge a note of grounds of appeal was sought, the reason given being that it had been decided following consultation with the applicant that an appeal against sentence should also be taken. On 11 February a further five week extension was granted. On 8 March a fourth application for an extension of the time to lodge a note of grounds of appeal was made, the reasons given being that a transcript of certain evidence given at the trial was required; the applicant also wished to obtain an opinion from English counsel regarding pre-trial publicity and an expert opinion in respect of specialty in the extradition process. On 11 March a further extension of six weeks was granted. On 18 April a fifth application for extension of the time to lodge a note of grounds of appeal was sought, the reasons given being that transcripts of the relevant evidence had only just been received and that expert evidence was being sought. On 23 April a further extension of six weeks was granted. On 21 May a sixth application for extension of time to lodge a note of grounds of appeal was made, the reasons given being that it was more difficult to arrange consultations with the applicant who had been moved from prison in Edinburgh to Peterhead Prison. On 22 May a further extension of six weeks was granted.

[4] Eventually on 2 July 2002 the applicant lodged a note of grounds of appeal against conviction and sentence. This was an elaborate document. It set forth eight grounds of appeal against conviction, each ground being subdivided into a number of subparagraphs - ground 6 had 26 such subparagraphs - and a ground of appeal against the punishment part specified as part of the life sentence. The next stage was for the trial judge to prepare a report to the court giving his opinion on the case generally and on the grounds of appeal. That report was received on 28 November 2002. This was inevitably a detailed document. It ran to 28 pages. The papers were then placed before a single judge for consideration as to whether leave to appeal should be granted and, if so, on what grounds. Leave was on 21 December 2002 granted under section 107(1) of the Criminal Procedure (Scotland) Act 1995 but only in respect of certain of the grounds advanced, leave being refused in respect of the remainder. Detailed reasons were given for such refusal. That decision and reasons were intimated on 6 January 2003.

The misconceived procedure
[5] The applicant was dissatisfied with the restriction to the scope of the grounds of appeal which he was granted leave to argue. He sought and was granted time to consider legal advice. A period of eight weeks and later a further period of two weeks were allowed for that purpose. On 17 March 2003 the applicant's agents lodged an "appeal to the second sift", that is, an application to the High Court under section 107(4) of the 1995 Act. That application was misconceived, it truly being available only where leave to appeal, against conviction or against sentence, has been wholly refused. This misconception was held generally in the legal profession at the time. In the applicant's case this misconception led to a number of procedures, including an application to the nobile officium of the court. The misconception was ultimately dispelled when on 8 December 2004 the High Court ruled that, where leave to appeal is granted on a restricted basis and an applicant is dissatisfied with that decision, the appropriate resort is by application under section 107(8) of the Act. On 26 April 2005 the applicant made such an application. An oral hearing on that application took place on 28 October and on 25 November 2005 the application was granted.

Proceedings for recovery of documents etc.
[6] On 16 January 2006 proposed reformulated grounds of appeal were lodged. On 11 July these reformulated grounds were allowed to be received by the court. In the meantime the applicant had made and been granted a number of further applications for transcription of parts of the trial proceedings. By July 2006 it had become evident that the applicant also now wished to recover further documentation for the purposes of his appeal. A long process for recovery from various persons, including Strathclyde Police, then ensued. The applicant's first petition for recovery was lodged on 31 July 2006. Answers were lodged both by the Crown and by Strathclyde Police. On 23 August the Crown provided the applicant with certain documents. On 25 September the applicant sent to the Crown an amended petition for recovery of documents. On 10 October the Crown and Strathclyde Police were allowed 14 days to lodge answers to the amended petition. On 24 October the Crown lodged answers. On 26 October representatives of the parties had a lengthy meeting to discuss recovery of documents and related issues of disclosure. On 31 October the court was advised that productive meetings had taken place. On 3 November there was correspondence between the applicant's agents and the Crown in the course of which the former advised that an additional volume of materials related to the issue of pre-trial publicity would shortly be available. On 17 November such materials were provided. On 23 November the Crown sent to the applicant's agents copies of police statements for civilian witnesses who had given evidence at the trial. On 28 November the court appointed the petition for recovery of documents to proceed to a full hearing. On 11 December the applicant's agents requested the Crown to disclose a variety of documents not previously requested. On 21 December the Crown responded. On 7 February 2007 the court granted warrant for a fresh petition for recovery of documents - directed at documents held by the sheriff clerk at Kilmarnock and by the Scottish Ministers. On 27 February the Scottish Ministers advised that material falling within a call directed against them was available for disclosure. On 1 March a meeting took place between representatives of the applicant and of Strathclyde Police. On 2 March the court granted diligence for recovery of property held by the sheriff clerk at Kilmarnock and by the Scottish Ministers in respect of certain calls. On the same date the applicant withdrew the remainder of the fresh petition. Shortly thereafter the Scottish Ministers and the sheriff clerk respectively disclosed property which they had been ordered to disclose. On 14 March the applicant's agents wrote to Strathclyde Police and to the Crown advising that the amended petition (presented in September 2006) would be withdrawn on the undertaking that the Crown would voluntarily provide the information and documentation sought.

[7] On 23 May 2007 the court was advised that, although there had been discussion between the parties and further meetings were scheduled to take place, progress in relation to disclosure of documents had been slow. The court appointed a hearing of 8 days duration on the grounds of appeal. On 24 August warrant was granted on a yet further petition by the applicant for recovery of documents. On 20, 24 and 25 September answers to that petition were lodged respectively by the Crown, Strathclyde Police and the Royal Ulster Constabulary. On 17 October the court, on the application of the applicant, extended the time for adjustment of the petition and answers. On 6 November an amended petition for recovery of documents was lodged by the applicant. Shortly thereafter there became available the opinion of the court (issued on 21 November 2007 and subsequently reported at 2008 SCCR 154) in McDonald and Others v HM Advocate, where issues of disclosure were addressed. The parties in the present case sought time to consider the implications of that opinion. A provisional diet for the hearing of the petition for recovery of documents was set for March 2008. On 29 January 2008 the applicant lodged a further petition for recovery of documents, to which the Crown and Strathclyde Police lodged answers. Between 11 and 14 March the court heard submissions from counsel for the applicant in relation to recovery of documents. His submissions were not concluded by the end of that diet, which was continued to a further diet to be fixed. In April special leave was granted to the appellants in McDonald and Others to appeal the decision of the High Court to the Judicial Committee of the Privy Council. The continued diet fixed in the recovery petition was discharged to await the outcome of that appeal. The judgment of the Privy Council in McDonald and Others was issued on 16 October 2008. On 28 October the Crown disclosed certain further documents. On 6 May 2009 the applicant withdrew the outstanding petitions for the recovery of documents. His counsel informed the court that he had no objection to a full hearing of the appeal being fixed at that stage, on the basis that the hearing would be no sooner than the autumn of 2009, so as to allow time for further enquiries and preparation to be carried out on behalf of the applicant. The court accordingly appointed the appeal to a full hearing of 8 days' duration, to be fixed, as requested by the applicant's counsel, for the autumn of 2009. On 10 July the applicant informally sought disclosure by the Crown of seven statements taken by police officers from persons who were not named on the indictment as potential witnesses. On 24 July the Crown disclosed these statements. At the end of this lengthy disclosure procedure the only ground of appeal formulated in relation to non-disclosure (and lodged on 21 September 2009) was in relation to a witness named Irene Callaghan.

Disposal of the appeal
[8] Between 29 September and 9 October 2009 the court heard argument on the applicant's grounds of appeal, including that lodged on 21 September. At the end of the hearing it made avizandum. On 9 March 2010 it issued its judgment, refusing all the grounds of appeal against conviction. The opinion issued was detailed and comprehensive. It ran to 128 pages (222 paragraphs). At paragraph [5] the court noted that the insistence of those acting for the applicant in the lengthy process of seeking various orders for disclosure of documents and information from the Crown "has, so far as it is possible to tell, had little significant result but it has substantially delayed the hearing of this appeal".

[9] The applicant sought leave to appeal to the Supreme Court. That application was refused by the High Court on 27 May 2010. On 16 December the Supreme Court refused permission to appeal to it.

The devolution minute
[10] On 29 July 2010 the applicant lodged a devolution minute in which he contended that there had been a breach of his right under Article 6 of the European Convention of Human Rights to a hearing of the criminal charges against him within a reasonable time. Particular criticism was made in the minute of the Lord Advocate with regard to her disclosure of information. The applicant's outstanding appeal against sentence called before the court on 22 February 2011, when his counsel intimated that he did not intend to pursue the grounds stated in his note of appeal against sentence (that there had been a miscarriage of justice in selecting a punishment part of twenty years). The appeal against sentence was not, however, formally abandoned; nor was it then refused for non-insistence. Given the existence of the devolution minute, it was continued for fuller argument. Provision was made for written submissions to be lodged by each party. That was done. The case called for hearing on 7 April 2011.

The nature of the application made
[11] In opening his submissions for the applicant Mr Shead made his position plain: this was not, he insisted, an appeal against sentence under the 1995 Act, albeit the remedy sought from this court was a reduction in the punishment part which had been specified; it was an application to the court under the Human Rights Act 1998 independent of the 1995 Act. Such an application had been made, it was said, in Gillespie v HM Advocate 2003 SCCR 82 (where a reduction in sentence had been granted) and, under reference to the Scotland Act 1998, in Mills v HM Advocate 2002 SCCR 860 (where the Privy Council had considered the various forms of redress which might be available). A remedy of reduction in sentence by reason of delay had been granted in cases where there had been no appeal against sentence: Cameron v HM Advocate (10 February 2010, unreported) and Niall McDonald v HM Advocate

(17 July 2008, unreported). Reference was also made to Shepherd v Procurator Fiscal, Dornoch (17 March 2011, unreported) and Cairns v HM Advocate (18 March 2011, unreported).

The statutory provisions
[12] Mr Shead did not take us to the Human Rights Act; but it is important to see what it provides. The relevant provisions are as follows:

"6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

A "public authority" includes a court and any person certain of whose functions are functions of a public nature (section 6(3)).

"7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may -

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

(2) In subsection (1)(a) 'appropriate court or tribunal' means such court or tribunal as may be determined in accordance with rules; ...

...

(6) In subsection (1)(b) 'legal proceedings' includes -

(a) proceedings brought by or at the instigation of a public authority; and

(b) an appeal against the decision of a court or tribunal.

...

(9) In this section 'rules' means -

...

(b) in relation to proceedings before a court or tribunal in Scotland, rules made by the Secretary of State for those purposes,

...".

"8(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just or appropriate."

"9(1) Proceedings under section 7(1)(a) in respect of a judicial act may be brought only -

(a) by exercising a right of appeal;

(b) on an application (in Scotland a petition) for judicial review; or

(c) in such other forum as may be prescribed by rules.

...

(5) In this section -

...

'rules' has the same meaning as in section 7(9)."

[13] The Scottish Ministers in exercise of the powers conferred on them by sections 7 and 9 of the Human Rights Act 1998 made the Human Rights Act 1998 (Jurisdiction) (Scotland) Rules 2000 (SSI 2000/301). Rule 3 provides:

"... the appropriate court or tribunal for the purposes of section 7(1)(a) of the Act is any civil court or tribunal which has jurisdiction to grant the remedy sought."

Rule 4 provides:

"(1) The Court of Session is prescribed for the purposes of paragraph (c) of subsection (1) of section 9 of the Act in cases where proceedings in respect of the judicial act in question could not, at any time since the date of that act, have competently been brought under paragraph (a) or (b) of that subsection."

Discussion of the appropriate mode of redress
[14] It is plain from these provisions that the scope of the facility to bring proceedings under the 1998 Act in furtherance of section 7(1)(a) is limited by the definition of "appropriate court or tribunal" in section 7(2). That definition in turn, by force of the relevant rules, limits the courts and tribunals to civil courts and tribunals. Thus, there is no facility to bring proceedings under section 7(1)(a) in any criminal court. Consistently with this, section 9, in relation to an allegedly unlawful judicial act, envisages civil proceedings. On the other hand, under section 7(1)(b) a person who claims that a public authority has acted in a way which is made unlawful by section 6(1) may rely on the Convention right or rights concerned "in any legal proceedings". "Legal proceedings" as defined by section 7(6) are not restricted to civil proceedings. They may include certain proceedings in a criminal court (see Beck, Petitioner 2010 SCCR 222, at paras [30]-[32]). But they import that the legal proceedings in question are still in dependence and that reliance is placed on the Convention right or rights in those proceedings during their dependency.

[15] Where a person who has been convicted in criminal proceedings complains that his right to determination of the criminal charge or charges against him within a reasonable time has been infringed, he may, in these proceedings, seek a remedy. In Mills v HM Advocate Lord Steyn at para [16] said that in criminal proceedings the remedies available could include an order for discontinuance of a prosecution, quashing of the conviction, reduction of the sentence, monetary compensation or a declaration. At para [23] he added:

"The actual disposal of his appeal by the High Court of Justiciary was carefully considered and reasoned ... A reduction of the sentence by nine months was a just disposal in the spirit of article 6(1)."

In the following paragraph he expressed his agreement with the order which Lord Hope of Craighead proposed and with his reasons on all aspects of the case. In para [28] Lord Hope said:

"... [On 10 May 2001] the appellant was allowed to lodge a further ground of appeal in which he alleged that there had been a breach of his rights under article 6(1) because of the delay in the hearing of the appeal. The court heard his appeal on this further ground on 31 July 2001. On 1 August 2001 it held that the appellant had established that there had been a breach of his article 6(1) right by the Lord Advocate which fell within section 57(2) of the Scotland Act 1998. His appeal was allowed, and his original sentence of detention was reduced by a period of nine months."

At para [56] he added:

"I would hold therefore that the decision of the High Court of Justiciary to reduce the appellant's sentence by nine months in order to compensate him for the effects of the delay was an appropriate and sufficient remedy."

Lord Nicholls of Birkenhead, Lord Mackay of Clashfern and Lord Scott of Foscote all agreed with both Lord Steyn and Lord Hope.

[16] It is quite clear that when Lord Steyn and Lord Hope each referred to the appellant's "appeal" they were referring to his appeal against sentence. It is also plain that the High Court of Justiciary treated the complaint about delay as an aspect of the appeal against sentence (see Mills v HM Advocate 2001 SCCR 821 at paras [14]-[15]). The same treatment is evident with respect to the case of John Cochrane, dealt with by the High Court at the same time (see paras [21]-[23]).

[17] There is accordingly no warrant for the proposition that in Mills either the High Court or the Privy Council dealt with the complaint about delay otherwise than as an aspect of an outstanding appeal against sentence. A careful consideration of Gillespie v HM Advocate furnishes a like conclusion. Although the appellant's appeal in that case was initially against his conviction only, the Lord Justice Clerk, delivering the opinion of the court, records at para [16] that on 17 December 2001, while the appeal against conviction was outstanding, the court "received the present ground of appeal against delay". On 10 January 2002 it announced that the outstanding ground of appeal against conviction was refused and that the court "continued consideration of the present ground of appeal to await the decision of the Privy Council in Mills v HM Advocate". At para [21] the court noted that counsel for the appellant accepted that "if there had been undue delay in this case, that did not justify the quashing of the conviction ..., since the delay had not affected the outcome of the appeal. The appropriate remedy was for the court to allow a reduction in the appellant's sentence." (Until the decision in Mills it was arguable that undue delay would normally result in quashing of the conviction). Having considered the merits of the argument on delay and the issue of remedy the court observed at para [37]:

"We consider that a just and sufficient remedy in the circumstances would be to allow the appeal to the extent of reducing the punishment part of the appellant's life sentence by a period of six months."

It is accordingly again plain that the contention based on delay was addressed and determined by reliance in appellate legal proceedings on a Convention right. There is no suggestion that any such contention could or should be dealt with independently of such a subsisting process.

[18] The Solicitor General in his response pointed out that, although the applicant had lodged a devolution minute addressing delay, there was ample authority for the view that a devolution issue does not have an existence separate from the process in which it is taken (Walls v Brown 2009 SCCR 711 at para [14]; Russell v Thomson 2011 SCCR 77 at para [15]). In the latter case the court observed:

"[A devolution minute] requires to be linked to the grounds of appeal raised. ... The note [of appeal] defines the scope of the appeal. If the appellant had wished to pursue any of the many matters contained in his devolution minute, he should have included them in his note of appeal. If he had failed to do that, he should have applied to the court to allow that note to be amended to include them."

We agree with these observations. In fairness to Mr Shead, it should be added that he did not suggest that the devolution minute had, as such, any free-standing character. A like dependency applies to reference procedures (HM Advocate v Touati 2001 SCCR 392 at para [6]).

[19] On occasion the court has entertained contentions of unreasonable delay where the appellant has appealed against conviction only, no ground of appeal against sentence having been received. One such case was Cameron - although there may there have been a specialty in that the appellant was there on interim liberation and the contention of a remedy for unreasonable delay arose as a response to the Crown's motion for warrant to return him to custody. The same was true in Shepherd, and in Cairns. In any event the issue of principle raised in the present proceedings was not raised in any of these cases. In Niall McDonald the complaint of delay was heard and dealt with in the context of an additional ground of appeal against sentence, which ground the appellant had originally been refused leave to lodge but for which leave was later granted. There is nothing in any of these decisions which prevents this court as presently constituted from addressing the issue of principle.

[20] We are accordingly satisfied that, if an appellant in criminal proceedings seeks to maintain that his right to a determination within a reasonable time of the charge or charges against him has, in breach of Article 6(1) of the Convention, been infringed and that a remedy should be afforded to him by the criminal court, he should do so by focusing that contention in a ground of appeal. Ordinarily that will be in a ground of appeal against sentence - if reduction in sentence is the remedy sought. If the delay complained of arises in, or mainly in, the appellate proceedings themselves, it will not be practicable to submit such a ground at the outset of these proceedings. But it will or should be evident to any person concerned about such delay to identify and formulate it in good time before the proceedings are otherwise concluded. Leave can then be sought to expand any existing ground of appeal against sentence to include the complaint or, if there is otherwise no appeal against sentence, leave can be sought to lodge such an appeal out of time. There is no difficulty about the court affording a remedy of reduction of sentence within its existing powers. The court is in use when dealing with appeals against sentence to take into account relevant circumstances which have occurred since sentence was passed. In appropriate circumstances the court can award just satisfaction for any infringement of Article 6(1) by exercising its power to reduce the sentence originally passed.

[21] In these circumstances Mr Shead's argument founded on a supposed application under the Human Rights Act 1998 unrelated to the appellate provisions of the 1995 Act is misconceived. Although encouraged to do so, he resisted the suggestion that his arguments on the merits of delay might be presented in the form of an amended ground of appeal against sentence or by seeking leave of the court under section 110(4) of the 1995 Act to found his argument on an aspect not contained in any note of appeal. In these circumstances we have no alternative but to refuse his application as incompetent. His existing ground of appeal against sentence not being insisted on, it also must be refused.

The delay
[22] It would not, however, be in the interests of justice if we were to leave this case without making some observations on the merits of the complaint of undue delay. The narrative of events given earlier, although extensive, is only a summary. From the chronology tendered by the Crown, which was not challenged, it appears that additionally there were many communications between the parties and hearings before the court, particularly in the period over which there were issues concerning the recovery of documents and other information. That said, and whether one takes as the commencement of the relevant period the date when the applicant's home was searched under warrant (17 December 1999) or the date when he appeared on petition before the sheriff at Kilmarnock (10 January 2001), the period until the final disposal of his appeal, in so far as insisted in, (16 December 2010) is such as to give grounds for real concern (Dyer v Watson 2002 SCCR 220, per Lord Bingham of Cornhill at para [52]). It runs to about ten, possibly eleven, years.

[23] No complaint is made about the period up to conviction and sentence on 12 October 2001. Part of that period elapsed because the applicant fled to the Netherlands and resisted measures to extradite him to Scotland. Once he was returned to Scotland in January 2001, proceedings moved reasonably expeditiously having regard to the complexity of the issues, including the issues raised by the applicant in defence. The length of the trial was commensurate with the nature of the issues raised.

[24] Mr Shead's first complaint was in respect of delay arising in the proceedings which ultimately (on 25 November 2005) resulted in leave being granted to appeal against conviction and sentence without qualification. He did not rely on the earlier part of that period (to 2 July 2002) when the applicant ultimately lodged grounds of appeal. That time was largely the result of applications made by the applicant for extensions of time, which given the complexity of the issues may well have been justified. The complexities may also explain, at least in part, the time taken by the trial judge to produce his report. Matters thereafter proceeded reasonably expeditiously to a decision (on 21 December 2002) by the single judge on the application for leave to appeal. It was thereafter that time passed, which, in retrospect, might have been better occupied. The single judge had refused leave to appeal in respect of certain of the stated grounds. The applicant was dissatisfied with that decision and wished leave on all the grounds stated. But he set about seeking to secure this by what turned out to be the wrong legislative route. He can hardly be criticised for doing so, since the route which he took was that generally regarded at that time by the legal profession as appropriate. The judges who considered his application to the High Court under section 107(4) of the 1995 Act fell into the same error. However, the basic explanation for the error was the problematic character of the relevant legislation. It was only after that had been addressed and elucidated on 8 December 2004 that matters could proceed on the right basis. This two-year excursion was unfortunate but it was attributable to the state of the legislation for which neither of the relevant public authorities, the Crown and the court, is responsible.

[25] Mr Shead's second complaint was in respect of the period which elapsed between the presentation of the applicant's first petition for recovery of documents (on 31 July 2006) and the date (28 October 2008) when the Crown disclosed the final documents sought. Over that period the applicant lodged three separate petitions (each subsequently adjusted or amended) for recovery of materials from the Crown and others. The substantive hearing on his appeal could not take place until these petitions were disposed of or withdrawn. In the event all these petitions were withdrawn, the only executive orders made under any of them being those against the sheriff clerk at Kilmarnock and the Scottish Ministers on 2 March 2007. These orders were promptly complied with. It is no doubt true that the bringing of these various petitions may to some extent have been instrumental in the disclosure of information; but what is more material is whether this exercise was in the event justified. As recorded in para [8], the appeal court which heard the applicant's substantive appeal concluded that, in so far as it was possible to tell, the recovery process had had little significant result. Effectively, it caused only delay in disposal of the appeal. This delay can thus be substantially attributed to the applicant and his advisers. Mr Shead said that the Crown was at fault in not producing certain documentation until the decision of the Supreme Court was issued in the case of McDonald and Others. But, while the principles of disclosure have been clear since McLeod v HM Advocate 1998 SCCR 77, the practical application of them was, as appears from Lord Hope's judgment in McDonald and Others at paras [20]-[32], an evolving process. At para [33] Lord Hope noted that the Solicitor General had offered the Board his assurance that senior managers of the Crown had addressed the problems identified in judicial decisions from Holland v HM Advocate 2005 SCCR 417 onwards; Lord Hope accepted that assurance. Without attempting to demonstrate their materiality to the issues in the appeal, Mr Shead made a general assertion that the Crown had failed to disclose witness statements. But it seems plain that by at least November 2006 (a few weeks after the lodging of the first petition for recovery of documents) the Crown had, with one exception, disclosed the police statements of all the civilian witnesses who gave evidence at the trial. The exception was a police statement given in December 1999 by Mrs Irene Callaghan. This was, it seems, disclosed only in July 2009. It formed the basis of an additional ground of appeal. This ground was discussed (at paras [210]-[220]) in the opinion of the court which heard the substantive appeal. That court concluded (at para [219]):

"We therefore have grave difficulties in seeing how, realistically, disclosure of the police note of the interview could have possibly affected the outcome of the trial or given a real possibility of a different outcome. We are accordingly satisfied that the absence from the defence file of the police note of the interview with Mrs Callaghan (an absence also shared, we understand, by the trial Advocate depute) did not result in material prejudice to the appellant or in the trial being unfair."

While the non-disclosure earlier of Mrs Callaghan's statement may have been an oversight by the Crown, there is no reason to conclude that that oversight caused or materially contributed to the time spent on the recovery exercise. We are accordingly not persuaded that there was any material failure of disclosure by the Crown which resulted in significant delay in the appellate process.

[26] Mr Shead did not suggest that the Crown or the court had otherwise significantly contributed to the delay in that process, which given the complexities involved would inevitably have taken a substantial time to complete. In these circumstances we are not persuaded that the applicant's Article 6 right to determination of the charges against him within a reasonable time has been infringed. Much of the time was spent in pursuing grounds of appeal which were unmeritorious. We would add that, in contrast with other cases, there is no suggestion that the applicant had suffered any anxiety or other adverse effect by reason of any delay.

Coda
[27] For completeness we should mention one final matter. The hearing of this application was scheduled for Friday 1 April 2011 but, because of pressure of other business, was unable to proceed on that day. The court was anxious, given the passage of time which had already occurred, that the hearing should not be postponed longer than was essential. It fixed on the following Thursday, 7 April, for hearing the matter. There was originally some uncertainty as to whether both preferred counsel would be available on that day, but that was in due course resolved by accommodating the other commitments of the applicant's counsel. Both counsel were fully heard on the afternoon of 7 April, the court sitting late to complete the hearing.