APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hodge Lord McEwan	[2012] HCJAC 20 Appeal No: XC424/10 XC435/10 XC402/10 XC406/10 OPINION OF THE LORD JUSTICE CLERK in THE APPLICATION UNDER SECTION 107(8) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by (1) WILLIAM HUGH LAUCHLAN and (2) CHARLES BERNARD O'NEILL Applicants; against HER MAJESTY'S ADVOCATE Respondent: _______

For the first Applicant: McVicar, Considine, sol advs; Capital Defence Lawyers

For the second Applicant: J Carroll, A Ogg, sol advs; Drummond Miller LLP; McClure Collins

For the Crown: Bain QC; Crown Agent

8 February 2012

[1] I agree with the Opinion that is to be delivered by Lord Hodge and with his conclusions. I therefore propose to your Lordships that we should dispose of these cases in accordance with Lord Hodge's conclusions.

[2] At the hearing in these applications the solicitor advocate for Charles O'Neill submitted that there was an appearance of bias in the procedural decisions made by Lord Hardie and Lord Brailsford in these cases and in the conduct of Lord Pentland at the trial.

[3] The appearance of bias, even where actual bias does not exist, is of itself sufficient to invalidate a judicial decision. For there to be public confidence in our legal system justice must be done and be seen to be done.

[4] If an appellate pleader should apprehend that there was an appearance of bias in the proceedings in the court below, for whatever reason, it is his duty to complain of the matter to this court courteously but fearlessly. It is the duty of the court in that event to be sedulous in considering the merits of the complaint.

[5] But the duty to complain of an appearance of bias arises only where there is reasonable cause to think that the proceedings lacked the appearance of impartiality that is essential to the proper administration of justice.

[6] I understood the solicitor advocate for Charles O'Neill to base his submissions on that question on his client's subjective reactions to the matters of which he complained. Those submissions, in my view, were misconceived. We have to apply an objective test by considering the reactions of a fair-minded and informed observer.

[7] Applying an objective test in that way, I cannot see how such an observer would conclude that on any of the points of complaint, there was any real possibility of bias.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hodge Lord McEwan	[2012] HCJAC 20 Appeal No: XC424/10 XC435/10 XC402/10 XC406/10 OPINION OF LORD HODGE in THE APPLICATION UNDER SECTION 107(8) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by (1) WILLIAM HUGH LAUCHLAN and (2) CHARLES BERNARD O'NEILL Applicants; against HER MAJESTY'S ADVOCATE Respondent: _______

For the first Applicant: McVicar, Considine, sol advs; Capital Defence Lawyers

For the second Applicant: J Carroll, A Ogg, sol advs; Drummond Miller LLP; McClure Collins

For the Crown: Bain QC; Crown Agent

8 February 2012

[8] This is an application under section 107(8) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") by William Hugh Lauchlan and Charles Bernard O'Neill who were convicted at the High Court in Edinburgh of certain sexual offences on 12 May 2010, and on 12 June 2010 of the murder of Mrs McG and attempting thereafter to defeat the ends of justice by disposing of her body at sea. Because the charges relating to the sexual offences had been separated from the charges of the latter two crimes, the trial took place in two parts in front of different juries.

[9] The charges in the first part of the trial of which the accused were found guilty were the following:

"(5) on an occasion between 1 June 2003 and 21 June 2003, both dates inclusive, the exact dates being to the Prosecutor unknown, at 10 Fleming Terrace, Irvine, you CHARLES BERNARD O'NEILL did assault IY, born 4 July 1988, c/o Strathclyde Police, Irvine, drug him, take hold of him by the body, tickle him, rub him on the body, pull him down onto a bed, remove his lower clothing and penetrate his hinder parts by means unknown to his injury.

(7) between 14 April 2004 and 20 April 2004, both dates inclusive, at a car park at Caprabo Supermarket, Avenida de Albir de Alfaz de Pi El Albir, Spain, within motor home the registration number of which is meantime to the Prosecutor unknown, you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL did assault DPW, born on 25 November 1989, c/o Fife Constabulary, Fife, detain him against his will within said motor home, struggle with him, repeatedly attempt to kiss him, remove your clothing in his presence, attempt to induce him to consume controlled drugs, conceal him within a locked wardrobe, urinate on him, hold him down, and attempt to pull down his trousers and have unnatural carnal connection with him: CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 16B;

(10) on various occasions between 10 December 2007 and 23 March 2008, both dates inclusive, the exact dates being to the Prosecutor meantime unknown, at 38 Mavisbank Avenue, Shieldhill, Falkirk, The Holmcliffe Hotel, Carshalton Road, Blackpool, The Palace Hotel, Prince Street, Peterhead, The Metro Inn, West Beancross Farm, Polmont, Falkirk, Whitehaven, the Lake District, Glasgow and Aberdeen and elsewhere in the United Kingdom, you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL having on at least one earlier occasion met or communicated with SA, born 6 September 2001, c/o Central Scotland Police, Falkirk, by means of the telephone directly or through his mother, PR or JG, both c/o Central Scotland Police, Falkirk, said SA being a person under 16 years of age, did while not reasonably believing that said person was 16 or over, intentionally meet said person and intend to engage during or after the meeting in unlawful sexual activity involving said person or in the presence of said person: CONTRARY to the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, Section 1."

[10] The charges of which the accused were convicted in the second part of the trial were as follows:-

"(2) on 21 June 1997 at 16A Waterside Street, Largs or elsewhere to the Prosecutor meantime unknown, you CHARLES BERNARD O'NEILL and WILLIAM HUGH LACHLAN having between 23 June 1994 and 21 June 1997 engaged in criminal sexual activity with R McG, born 15 December 1983, c/o Strathclyde Police, Pollok, then aged between 9 and 13 years, and knowing that A McG, his mother then residing there, was aware of such activity and believing that she intended to report such activity to the authorities did detain her against her will within said house at 16A Waterside Street, Largs, and thereafter assault said A McG, seize hold of her neck, compress her throat and did murder her and you did previously evince malice and ill will towards said A McG;

(3) between 21 June 1997 and 1 September 1997, both dates inclusive, at 16A Waterside Street, Largs and elsewhere in Ayrshire meantime to the Prosecutor unknown, having committed the crime libelled in charge (2) hereof and being conscious of your guilt in respect thereof you CHARLES BERNARD O'NEILL and WILLIAM HUGH LAUCHLAN did

(a) remove the body of A McG, now deceased, from said premises;

(b) transport said body to Largs Beach and conceal same under rocks there;

(c) thereafter recover said body and deposit same in a bin or similar container and transport same onto a boat; and

(d) deposit said bin or similar container and the body of said A McG into the sea,

and this your did with intent to conceal or destroy evidence in respect of said crime and with intent to defeat the ends of justice and you did attempt to defeat the ends of justice."

[11] Mr Lauchlan has been granted leave to appeal against his conviction for the sexual offences and on two grounds in relation to his conviction for murder and attempting to defeat the ends of justice (grounds 4 and 7). He has also been granted leave to appeal the punishment part of his life sentence. Mr O'Neill was granted leave to appeal concerning the sufficiency of evidence in relation to the sexual offences charges (but not charge 10). Otherwise the sifting judges refused him permission to argue his grounds of appeal. Mr Lauchlan and Mr O'Neill seek leave under section 107(8) to found on grounds of appeal which the sifting judges have ruled are not arguable.

William Hugh Lauchlan

(a) The murder charge: sufficiency of evidence

[12] Mr McVicar, solicitor advocate, submitted that the trial judge had erred in rejecting the submission on behalf of Mr Lauchlan of no case to answer under section 97 of the 1995 Act. The evidence against Mr Lauchlan was, he submitted, only circumstantial and there was no basis on which the jury could be satisfied that he was an actor in her death or was guilty art and part of her murder. At most the evidence supported his involvement in an attempt to defeat the ends of justice by disposing of Mrs McG's body.

[13] I consider that there is no substance in this submission and that the sifting judges were correct in their conclusion that this ground of appeal was not arguable. As the advocate depute submitted, while Mrs McG's body was never found, there was a strong circumstantial case against both accused in relation to her murder and the disposal of her body which contained ample corroboration.

[14] There was evidence that Mrs McG and her son, R McG, had met the accused in Rothesay and that over a period of three years the accused had groomed R McG and sexually abused him. Social workers gave evidence that the accused behaved as if they owned R McG and that Mr Lauchlan behaved in a domineering manner towards Mrs McG and R McG in care proceedings. In June 1997 Mrs McG and R McG had been staying in the flat at 16A Waterside Street, Largs, which Mr Lauchlan and Mr O'Neill occupied. There was evidence from, among others, Mr Colin Higgins, which showed that each of the accused hated and disparaged Mrs McG. There was evidence that Mrs McG had discovered that her son was being sexually abused and that the accused were concerned that she would report them to the police. R McG spoke of an incident at the tennis courts in Largs, two days before his mother disappeared, when Mr O'Neill had said to him that they would need to get rid of her or she would get the police on to them. Mr Greig McKelvie gave evidence of an argument in the flat on the night Mrs McG disappeared (20 June 1997). He heard her threaten to report the accused to the authorities for the sexual abuse of her son. She wanted to leave and return to Rothesay. Mr Lauchlan had the key to the front door of the flat and the door was locked to prevent her from leaving. After Mrs McG had gone to bed in a distressed state, R McG overheard the accused talking about getting rid of his mother and cutting her up.

[15] There was evidence of two telephone calls after 1 am on 21 June 1997 between a landline phone in the flat and the mobile phone which the two accused used. From that it could be inferred that one of the accused within the flat was in contact with the other who was elsewhere. Next morning, Mrs McG was not in the flat. Mr McKelvie returned to the flat and found that the two accused were not there and their car was not parked behind the premises. He came back later in the morning, by which time the two accused had returned. He asked where Mrs McG was and the accused replied that they had woken at 5 am to find the front door open and Mrs McG had disappeared. The two accused also told R McG that his mother had gone and that they did not know where. He noticed that their car was not parked in its usual position.

[16] The Crown case was that Mrs McG had disappeared that night and that she was never seen again. It was supported by evidence that she was a vulnerable woman of low intelligence who was very close to her family but who had had no contact with them after that night. The Crown submitted that it was very unlikely that she would have left the area to adopt a new identity without contacting her family. Mail addressed to her was left uncollected at her Rothesay flat. She did not claim benefits in her name after that date and her benefits book remained unused in her flat. It could be inferred that she did not return there after 21 June 1997. The police also led evidence of the unsuccessful enquiries which they made in an attempt to trace her. The Crown's case was that the two accused had acted in concert to murder Mrs McG and had later disposed of her body at sea.

[17] In about September 1997 the police arrested the accused after they discovered that they were harbouring R McG in their flat in Largs.

[18] There was evidence that both of the accused had access to a boat, the "Andola", at Largs Marina and that they had a key to the boat. There was evidence that the accused had been on the vessel at sea. A fisherman gave evidence that in 2005 he had caught in his nets a wheelie bin which contained a foul smelling bag at an area of the Firth of Clyde known as the Perch. He had cut free and returned the wheelie bin to the sea without opening the bag, which he had thought contained the carcase of an animal.

[19] The Crown led evidence of several incriminating statements. Mr Lauchlan asked Mr Chris Lewis if he were questioned to say that Mrs McG had not stayed in the Waterside Street flat. Mr Lewis also testified that Mr Lauchlan had said that she had fallen off the Rothesay ferry. Some years later Mr Lauchlan stated to Mr Keith Denneny that there had been a woman who was going to be a witness against him and Mr O'Neill and that they had got a boat, taken her out and fed her to the fish. Mr Graham Beckett spoke of a drunken conversation in Gran Canaria during which Mr Lauchlan said something about a woman who lived near to a place where a black bag was found in water.

[20] Ms Linda Buckley gave evidence that during a visit to Largs she heard Mr O'Neill ask her partner, John Hutton, how long it would take for a body dumped at sea to come ashore. She noticed that both accused were anxious and agitated and they spoke to her of moving to England. Mr Hutton had died by the time of the trial but in his police statement he was recorded as having said that Mr O'Neill had asked him "if a body fell in here, where would it finish up?" Colin Higgins said that Mr O'Neill admitted and boasted on many occasions that he had killed Mrs McG, that he spoke of her in the past tense and said that she was feeding the fish in the Firth of Clyde. Mr O'Neill had told him that Mrs McG's body had been disposed of in the Perch. Mr Higgins gave evidence that Mr O'Neill described Mrs McG as "a grassing bastard". He said that Mr Lauchlan was present when many of these statements were made and that he would tend to laugh when Mr O'Neill made them. Mr Higgins also stated that Mr O'Neill had said on one occasion that he would be surprised by the number of bodies out there in the Firth of Clyde. He also spoke of a remark by Mr O'Neill that the legal system of this country was stupid as, unlike in Australia, without a body there could be no crime.

[21] Mr John Molseed gave evidence that, when they were in prison together, Mr O'Neill had told him that Mrs McG had been strangled to stop her going to the police and that her body had been put somewhere down at Largs beach under a sewer pipe. Ms Joanne Young said that Mr O'Neill had told her about a woman who had been fed to the fish.

[22] It is correct that, as Mr MacVicar submitted, the evidence of Mr Molseed was not admissible against Mr Lauchlan and that it was the only evidence of the means by which Mrs McG was killed. But it is not necessary to prove the cause of death where there is a strong corroborated circumstantial case against both accused capable of showing their involvement in the murder. The evidence of a motive affecting both accused, of a shared plan to kill her, of Mr Lauchlan's detention of her in the flat on the night she disappeared, of the telephone calls in the middle of the night, of her disappearance and of Mr Lauchlan's incriminating statement to Mr Denneny was available to the jury and capable of supporting their verdict against him.

(b) The charge of attempting to defeat the ends of justice: sufficiency

[23] I am satisfied that there is no substance in the ground of appeal that the trial judge erred in rejecting the section 97 submission in relation to the charge of attempting to defeat the ends of justice. In my opinion, the evidence set out in paragraphs [14] to [19] above and Mr Lauchlan's reaction to the comments which Mr O'Neill made in his presence (paragraph [20] above) provided a corroborated case of his involvement in an attempt to hide Mrs McG's body after her murder. In particular, his involvement in the detention of Mrs McG, the late night phone calls, her disappearance, his access to the "Andola" and his self-incriminating statements, particularly his statement to Mr Denneny, combined to create a legally sufficient circumstantial case. This ground is not arguable.

(c) Prejudicial evidence

[24] Mr Lauchlan's third ground of appeal was that the trial judge erred in allowing the Crown to lead prejudicial evidence of the accused's sexual abuse of R McG. In my opinion that ground is not arguable. The evidence of prior sexual abuse of R McG was directly relevant to the charge of the murder of his mother and the attempt to defeat the ends of justice as it gave the accused a reason for killing her. The sexual abuse of R McG, the accuseds' knowledge that Mrs McG was aware of that abuse, and their belief that she intended to report it to the authorities set the scene for the murder and formed part of the charge. It also gave the context for the way in which the accused treated Mrs McG and R McG. In my view the trial judge was correct to repel the objections to the evidence of Mr Chris Lewis and R McG in relation to the sexual abuse of the latter. The Crown were also entitled to lead expert evidence of the effect of sexual abuse on a victim in order to allow the jury to assess carefully the credibility and reliability of R McG's evidence.

(d) Undue delay

[25] Mr McVicar submitted that the trial judge had erred in law in repelling the devolution minute which asserted that Mr Lauchlan's Article 6 rights had been breached by undue delay in the prosecution of the case. He submitted that the Appeal Court had erred in its determination of O'Neill v HM Adv (2010 SCCR 357). As a result of the decision of the Supreme Court in Ambrose v Harris (2011 SLT 1005), it was now clear that the starting-point in the assessment of a reasonable time under Article 6 was not, as the court had held in O'Neill, the stage at which an accused person appears in court on petition (in this case 5 April 2005) but was the earlier time (17 September 1998) when Mr O'Neill was interviewed by the police under caution in exercise of their powers under section 14 of the 1995 Act on suspicion of conspiracy to murder.

[26] It is clear that the trial judge did not err in law as he was bound by the decision of the Appeal Court. In any event, I do not consider that it is arguable that the Appeal Court erred in O'Neill because there is nothing in the judgments of the Justices of the Supreme Court in Ambrose that addresses the starting point in the assessment of a reasonable time under Article 6. For that reason this ground is not arguable. In paragraph 62 of his judgment in Ambrose Lord Hope discussed the autonomous concept of "charge" in Article 6 in a context in which the interrogation of a person by the police, at which he did not have access to legal assistance, could seriously prejudice his right to a fair trial at a later date, including his Article 6.3 right to such assistance. In Eckle v Germany ((1982) 5 EHRR1 at para 73) and in De Weer v Belgium ((1980) 2 EHRR 439, at para 46) the European Court of Human Rights adopted a test that a person is charged when he is substantially affected. Beyond the potential effect of self-incrimination at a police interview at the stage of the investigation of a possible crime, neither Mr Lauchlan nor Mr O'Neill was substantially affected in 1998 as neither was charged under domestic law and no further steps were taken against either of them.

[27] In Attorney General's Reference (No 2 of 2001) ([2004] 2 AC 72) a nine-member committee of the House of Lords laid down a general rule that time begins to run from the earliest time at which a person is officially alerted to the likelihood of criminal proceedings being brought against him. See the speech of Lord Bingham of Cornhill, with whom the majority concurred, at paras 27 and 28, in which he described the purpose of the reasonable time requirement as being to ensure that criminal proceedings, once initiated, are prosecuted without undue delay. Their Lordships thus drew a distinction between investigations to enable a decision to be made whether to charge a person on the one hand and the making of the charge on the other. As a general rule, the detention and questioning of a suspect at a police station is part of the investigative phase: see section 14(1)(b) of the 1995 Act. The approach in that case was adopted in Scots law in Spiers v Ruddy (2009 SC (PC) 1), in which Lord Hope stated (at para 21) that

"there is no difference between Scots law and English law as to the meaning that is to be given to Convention rights."

Article 6 may be engaged through the entitlement to legal assistance in order to protect a suspect from unfair police interrogation at a stage before the Crown is able to take a view on the likelihood of a charge (Cadder v HM Adv 2011 SC (UKSC) 13, Ambrose, supra). There may often be a considerable time lapse between the interview of a suspect and the existence of sufficient evidence to proffer a charge. It does not follow from the interview of a suspect that criminal proceedings have been initiated for the purpose of the reasonable time requirement.

[28] It is important in applying Convention concepts (a) to have regard to the substance of what the Convention is seeking to protect and (b) to take account of the particularities of the relevant legal system. It is not the task of the court to interpret the judgments of the European Court of Human Rights as if they were statutes. The substantive approach to Article 6 rights requires the court to look to the realities of the procedures in order to give effect to the purposes of the reasonable time guarantee (Stögmüller v Austria (1980) 1 EHRR 155, at para 5; Burns v HM Adv 2010 SC (PC) 26). In the circumstances of the latter case, the accused had clearly received official intimation of the likelihood of criminal prosecution at a stage before he was arrested on petition. The norm however remains that the starting point for the reasonable time requirement is when the accused is arrested and charged with an offence or is brought before the court on petition. Thus the engagement of Article 6 at the stage of a police interview in the context of a violation of Article 6.3 in conjunction with Article 6.1 has in my opinion no necessary bearing on the starting point of the reasonable time. Nor does it call into question this court's decision in O'Neill. Had the Supreme Court wished to hold otherwise, it would have made that clear in Ambrose.

[29] It is speculative to suggest that the passage of time had caused the loss of evidence of sightings of Mrs McG which would have been available if the Crown had been able to proceed more swiftly after 1998. The trial judge in his report stated that there was a great deal of evidence led of alleged sightings of Mrs McG after the date of her alleged disappearance which the jury appeared to have rejected as unreliable. In his Note for the Parole Board he recorded that none of that evidence seemed to him to be convincing. I consider that this ground of appeal is not arguable.

(e) Failure of trial judge to give a direction on prejudice caused by delay

[30] Having regard to the nature of the evidence in issue which the trial judge recorded in pages 16 to 18 of his report, a direction of this kind, which Mr McVicar did not seek at the time, would have encouraged the jury to speculate about evidence which had not been produced. For the reasons which the trial judge gave on page 18 of his report, I consider this ground of appeal not to be arguable.

Charles Bernard O'Neill

[31] Mr Carroll, solicitor advocate, lodged sixteen grounds of appeal and sought leave to argue those which the sifting judges have refused. I deal with each in turn. As Mr Carroll argued that the fairness of the trial should be assessed by reference to the aggregate of his complaints, I also consider that submission in paragraphs [92] and [93] below.

(i) "Unauthorised" surveillance

[32] Mr Carroll argued that Mr O'Neill suffered prejudice and was denied a fair trial because the police had carried out intrusive surveillance in the cell area of Kilmarnock Sheriff Court between 28 January and 27 April 2005 and that that surveillance included the recording of legally privileged discussions between the accused and his legal advisers. Further, several of the offences with which Mr O'Neill had been charged occurred before the enactment of the Regulation of Investigatory Powers (Scotland) Act 2000 ("RIPSA"). He submitted that Lord Brailsford erred in his decision at a preliminary hearing on 10 April 2010 in refusing to receive his devolution minute and to uphold his plea in bar of trial. Mr O'Neill had, he submitted, suffered further prejudice when the police refused his request to give an assurance that his communications with his lawyers would not be subject to eavesdropping in future. He submitted that Lord Pentland had misdirected himself when he held that he had no jurisdiction to give directions in relation to matters which occurred outside the trial. Mr O'Neill was subject to unusual restrictions in prison and was not allowed contact with the co-accused until after the first phase of the trial. As a result Mr O'Neill feared that his right to confidential discussions with his legal advisers was not being respected during the first phase of the trial. The acts of the Crown and the police had caused stress to Mr O'Neill.

[33] I see no basis for the assertion that the surveillance was not authorised. The application for intrusive surveillance dated 26 January 2005, which was made under RIPSA, requested authority to monitor and record the conversations and movements of the two accused in the cell area at Kilmarnock Sheriff Court, when they were appearing without legal representation in relation to a matter other than the murder of Mrs McG. The application stated that there was "the distinct possibility that they [might] speak to a solicitor or discuss the tactics they may deploy in their defence. Any such communication may be considered subject to legal privilege and will be disregarded." The Chief Constable, in authorising the surveillance, stipulated that any product of the surveillance which had legally privileged information was to be secured and disregarded. The Surveillance Commissioner raised certain questions about this unusual application but, after receiving an explanation from the Chief Constable, accepted that explanation, approved the grant and instructed that care be taken both not to monitor discussion of the matter on which the accused were appearing in Kilmarnock Sheriff Court and to ensure that those investigating the murder did not have contact with those involved in the Kilmarnock case.

[34] Mr Carroll criticised Lord Brailsford for relying on McE v Prison Service of Northern Ireland ([2009] 1 AC 908), which he submitted could be distinguished because in that case authority was granted to monitor discussions with a legal adviser. In his report Lord Brailsford explained that he relied on the case as authority for the proposition that statutorily-authorised surveillance is not rendered unlawful when it obtains legally privileged information. I see no mistake in his so doing (McE, supra, Lord Hope at para 66, Lord Carswell at para 105 and Lord Neuberger at para 114).

[35] Mr Carroll spoke of Mr O'Neill being afraid of surveillance. But he did not assert that covert surveillance occurred after the authorisation expired on 27 April 2005. Nor did Mr Carroll, who had listened to the audio tapes of the surveillance, assert that the surveillance occurred when the accused appeared at Kilmarnock Sheriff Court on 5 April 2005 on petition in relation to the charges of murder and attempting to defeat the ends of justice or when Mr O'Neill appeared again on 12 April 2005. The Crown did not proceed further with the petition in 2005 because evidential difficulties emerged and it was not until 2008 that an indictment was served on the accused. Mr Carroll did not suggest that any material obtained through the surveillance in 2005 was used in the trial in 2010. While the police, in accordance with their normal practice, were not prepared to give any undertaking that further surveillance would not occur, I see no reasonable basis for a concern that the police would obtain authorisation under RIPSA for intrusive surveillance after they considered that they had sufficient evidence and the accused were placed on petition in 2005 in relation to the charges of murder and attempting to defeat the ends of justice. It is to be borne in mind that RIPSA and similar statutory provisions in the other jurisdictions of the United Kingdom were enacted to authorise and regulate surveillance so that it did not fall foul of Convention rights, including Article 8. One must have regard to the safeguards inherent in the procedure for authorising intrusive surveillance within the legislation. In my opinion it would have been fanciful to think that intrusive surveillance would be authorised as necessary and proportionate to one of the legitimate aims under Article 8.2 after the accused were charged with the murder of Mrs McG. Thus I see no reasonable basis for an apprehension that the accused could not speak freely to their legal advisers when preparing for the trial which took place in 2010. Mr O'Neill learned about the covert surveillance which had taken place in 2005 through Crown disclosure in September 2009. Even if, as Mr Carroll asserted, the police in 2005 were not as punctilious in the gathering and handling of material obtained by surveillance as their authorisation required them to be (and I express no view on whether that was the case), I do not see how the covert surveillance in 2005 had a bearing on the fairness of the trial in 2010. Further, I see no basis for the assertion that the police cannot use authorisations under RIPSA to investigate crimes which occurred before its enactment.

[36] I conclude therefore that this ground of appeal is not arguable. For completeness, I discuss the trial judge's treatment of the issue in paragraphs [44] - [47] below.

(ii) Bias: The court lacked the appearance of independence and impartiality

[37] Mr Carroll advanced several submissions in support of his ground of appeal that there was apparent bias. First, he submitted that Lord Hardie lacked the appearance of impartiality when at a preliminary hearing on 29 August 2009 he determined that a devolution minute dated 27 August 2009, which complained that the accused had been prevented from communicating with each other, had been lodged out of time. Lord Hardie had been Lord Advocate in 1998 when the police had interviewed Mr O'Neill in relation to the disappearance of Mrs McG. His prior involvement in the case, his refusal to receive the devolution minute and his suggestion that Mr O'Neill's solicitor advocate did not know how to proceed had created the impression that he lacked impartiality.

[38] In his report on this ground of appeal, Lord Hardie explained that it was not usual for the Crown Office or Crown counsel to be aware of investigations in a murder case before a person appeared on petition. Until then, the police would report the result of their investigations to the procurator fiscal who might direct them to undertake further investigations. He stated that he was not aware of any police investigations concerning Mr O'Neill or Mr Lauchlan in relation to the murder of Mrs McG while he was Lord Advocate. He also stated that the solicitor advocates who appeared on behalf of the accused at the preliminary hearing did not raise any concerns about his possible prior involvement in the case. He refused to receive the devolution minute late because Mr Carroll had not shown cause for its late receipt when Mr O'Neill had known for some time that he had been kept separate from Mr Lauchlan. Lord Hardie, aware that there were other means of addressing Mr O'Neill's concerns, had suggested that Mr Carroll should consult with Mr McVicar about taking steps without involving the High Court to ensure that the prison authorities would allow the accused to have contact with each other.

[39] On several occasions in the course of his submissions Mr Carroll asserted that certain events caused Mr O'Neill to have concerns about the impartiality of the court. But the test of apparent bias, as is well known, does not attempt to look into the mind of the judge or of a party to the proceedings. It is an objective test. In Porter v Magill ([2002] 2 AC 357), Lord Hope (at p 494 (para 103)) stated:

"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

(See also Millar v Dickson 2001 SLT 988, Lord Hope at para 65.) Applying that test to the circumstances of the preliminary hearing on 29 August 2009, I am satisfied that it is not arguable that the court lacked impartiality. The advocate depute confirmed that the Crown Office had had no involvement in a murder enquiry in relation to Mrs McG when Lord Hardie was Lord Advocate. In my view the cases of Rimmer, Petr (2002 SCCR 1) and Gilmour v HM Adv (2006 SCCR 626) to which Mr Carroll referred, fall to be distinguished. In the former Lord Hardie declined to act further in the case once he discovered that the Crown Office had petitioned in his name for a restraint order when he was Lord Advocate. In the latter Lord Marnoch recused himself because he had acted as an advocate depute at an advising in an earlier appeal and might reasonably be supposed to have discussed with Crown Office officials whether to seek authority to bring a new prosecution. In each of those cases Crown Office officials had been actively involved and there was a real possibility that the recusing judge also had been involved. In this case, by contrast, while Mr Carroll speculated about the possible involvement of the Crown Office, the advocate depute assured the court that there was no such involvement.

[40] Also readily distinguishable is Lord Bracadale's decision to recuse himself at a preliminary hearing in this case on 28 November 2008, because as Home Advocate Depute he had considered whether to institute a Crown appeal against the sentence imposed on the accused in 1998 for sex offences in which R McG was a complainer. Further, and in any event, Mr Carroll was able to raise the issues, which he had sought to raise before Lord Hardie, at a subsequent preliminary hearing as I discuss in the next paragraph. I see no basis for inferring from Lord Hardie's decision that he lacked impartiality. Nor can it be concluded that his decision led to an unfair trial.

[41] A further devolution minute and a plea in bar of trial were raised before Lord Brailsford on 6 April 2010, again challenging the surveillance operation which had recorded legally privileged discussions and the inability of the accused to communicate with each other. Lord Brailsford refused the application because he considered that it had no merit and commented that the two accused should be allowed an opportunity to discuss matters of common interest. In his report in response to the ground of appeal Lord Brailsford stated that it had been explained to him that in 2004 and 2005 the police had conceived a plan to keep the accused apart and to carry out surveillance on them when they met in Kilmarnock Sheriff Court. He noted that Mr Carroll had accepted that there was nothing unlawful about the plan. Lord Brailsford also reported that he was satisfied that the surveillance operation had been lawfully authorised under RIPSA and that the application had not been misleading. He therefore refused the application. Mr Carroll asserted in the grounds of appeal that the prison authorities had ignored Lord Brailsford's comments and that the restrictions imposed on the accused by the prison remained. But if that is so, that does not support a submission that Lord Brailsford lacked impartiality.

[42] Accordingly, the ground of appeal asserting that the court lacked the appearance of independence and impartiality is not arguable.

(iii) Error in not deserting the trial pro loco et tempore

[43] Mr Carroll also submitted that on 28 April 2010 the trial judge had erred in refusing his motion to desert the trial pro loco et tempore. The restrictions on the ability of the two accused to communicate with each other had given rise to a fear of unauthorised surveillance. At the start of the trial on 26 April 2010 security staff had conveyed Mr O'Neill in handcuffs past unempanelled jurors. Thereafter, during the trial one witness referred to a child having been taken into care because of contact with the accused and of Mr O'Neill's having been in prison and another spoke in referring to him, of having been "bummed by a paedophile". The trial judge had not instructed the jury to refrain from carrying out research on the internet in relation to the accused.

[44] The trial judge explained in his report that, when Mr Carroll on 26 April sought to have the trial deserted, the advocate depute had confirmed that the Crown had not instructed surveillance of the accused during the trial. The trial judge did not see any proper basis for an apprehension that Mr O'Neill would not be able to communicate with his lawyers in private. Further, after discussion, the advocate depute undertook to inform the authorities of the Crown's view that the two accused should be free to communicate with each other and on 28 April the trial judge ordered that the accused should be permitted to communicate with each other in court by passing notes via their lawyers. Mr McVicar and Mr Carroll expressed themselves content with that direction. On 28 April the trial judge refused another motion to desert the trial. He explained that he did not think the one instance of Mr O'Neill being seen in handcuffs before the trial began would cause the jury to make inferences against the accused. The witness's comment about Mr O'Neill having been in prison was elicited in cross-examination. The trial judge explained that the issue of whether the boy was taken into care was not explored in any detail and he saw it as being of marginal significance. He considered that he was able to deal adequately with the reference of Mr O'Neill having been in prison in his charge (pp 9-10). He considered that the witness who stated that he had been bummed by a paedophile was doing no more that encapsulating in his own words what he claimed had been done to him.

[45] The trial judge stated in his report that he had no recollection of Mr Carroll having raised any question of a direction not to consult the internet when he made this application that the diet be deserted. Mr Carroll in his oral submissions did not suggest otherwise. The trial judge explained that he had given the jury instructions at the start of the first phase of the trial not to carry out investigations of their own and to act as judges, not detectives. He saw no need for a specific direction about internet research in the first phase of the trial; his direction in his charge at the end of the second phase (p 48) was prompted by evidence about publicity in the media and the internet.

[46] I detect no error on the part of the trial judge in his decisions not to desert the first phase of the trial pro loco et tempore or in any failure to give a direction not to consult the internet. I do not think that this ground of appeal is arguable.

(iv) Misdirection in relation to charge 5: the exclusion of alibi

[47] Charge 5 had originally libelled that Mr O'Neill had committed a sexual offence on an occasion between 1 and 27 June 2003. Mr O'Neill had lodged a special defence of alibi because he was out of the country after 21 June, as had been agreed in a statement of uncontroversial evidence. Mr Carroll submitted that the complainer in charge 5 was not sure as to who had assaulted him or about the date when the alleged incident had occurred. The trial judge allowed the Crown to amend the charge to restrict the period to 21 June 2003. Mr Carroll submitted that in so doing the trial judge had misdirected himself in law as the amendment allowed the Crown to avoid the terms of the special defence of alibi.

[48] In my view the effect of the complainer's evidence was that the offence could have occurred in the period when Mr O'Neill was in the country and the statement of uncontroversial evidence in the third joint minute established that he was out of the country after 21 June 2003. I see no error in allowing the Crown to reduce the temporal latitude of the charge in the light of the agreed evidence in that joint minute. The amendment cured a discrepancy between the indictment and the evidence (see s 96(2)(c) of the 1995 Act). Nor do I see how the amendment caused any prejudice to the accused as it remained open to Mr Carroll to found on what he saw as the inadequacy of the complainer's evidence and submit that the Crown had not proved that the offence occurred while Mr O'Neill was within the jurisdiction. On pages 38 and 39 of his charge to the jury, the trial judge referred to the alibi and the third joint minute and directed the jury that if the complainer was assaulted after 21 June 2003 it could not have been Mr O'Neill who assaulted him. He gave that direction although he considered, as he stated in his report at pp.16-17, that the complainer had directly implicated Mr O'Neill as his assailant.

(v) Misdirection in rejecting the submission of no case to answer in relation to the sexual offences (Ground of Appeal 4)

[49] The sifting judges gave leave to appeal on this ground of appeal under exception of charge 10. As the sifting judges in Mr Lauchlan's case have granted leave to appeal on this ground, including on charge 10, I consider that it would be consistent with comparative justice if we were to grant Mr O'Neill leave to appeal on ground of appeal 4 without that restriction.

(vi) The charges of murder and attempting to defeat the ends of justice: sufficiency

[50] Mr Carroll submitted that, because of his criticisms of the adequacy of the "proof of life" report which the police had presented, the trial judge erred in refusing his submission under section 97 of the 1995 Act in relation to both the murder charge and the charge of attempting to defeat the ends of justice.

[51] I am satisfied that this ground is not arguable. In paragraphs [14]-[18] and [20] and [21] above I discussed the evidence which was before the jury in relation to both charges. That evidence amounted to a corroborated circumstantial case against both accused. Whether or not the enquiries recorded in the "proof of life" report were sufficiently extensive and exhaustive to support by themselves an inference that Mrs McG was dead was not the issue. Rather it was whether there was sufficient evidence from which the jury could infer that she was dead and that the accused had murdered her.

(vii) No reasonable jury would have returned a verdict of guilty in relation to the charges of murder and attempting to defeat the ends of justice

[52] Mr Carroll advanced no argument beyond the statement in the ground of appeal as he considered this and the immediately preceding ground of appeal to be interrelated. In my view the ground is not arguable as the evidence which I have summarised entitled the jury to return the verdict which they did.

(viii) Breach of section 101(3) of the 1995 Act

[53] At the close of the first phase of the trial, when the jury returned verdicts in relation to the sexual offences, the Crown moved for sentence and tendered Mr O'Neill's previous criminal convictions. Those convictions included a conviction in the High Court in 1998 for sodomy and shameless indecency for which Mr O'Neill had been sentenced to imprisonment for eight years. Mr Carroll submitted that in so doing the Crown had breached section 101(3) of the 1995 Act. The charges were very serious and pertained to material evidence that was to be led in relation to the prosecution on the charges of murder and attempting to defeat the ends of justice.

[54] The Crown in accordance with normal practice moved for sentence after the jury returned their verdicts at the completion of the first phase of the trial on 10 May 2010. While it is unfortunate that this resulted in the disclosure to the trial judge of the previous criminal convictions of the accused, there was no breach of section 101(3) of the 1995 Act, which prohibits the laying of previous convictions before the presiding judge until the prosecutor has moved for sentence. The new jury, which heard the second phase of the trial, were not made aware of the convictions by this disclosure. In the circumstances I do not see how the trial could be viewed as unfair or that it could be argued that the disclosure to the judge alone gave rise to a miscarriage of justice. I do not consider that this ground of appeal is arguable.

(ix) Prejudice caused by the Crown's refusal to enter into a Joint Minute relating
to the sexual abuse of R McG

[55] Mr Carroll submitted that evidence of the prior sexual abuse of R McG by the accused was collateral to the murder charge and that it was unfair of the Crown to lead the evidence of that abuse which had been the subject of an earlier trial. The matter could, as the defence had proposed, have been agreed in a joint minute and the accused suffered prejudice by the leading of that evidence before the jury in the murder trial. He submitted that the trial judge had erred in law in holding that he did not have power to make the Crown agree facts which were not in dispute when the failure to do so would unnecessarily prejudice the accused.

[56] I do not think that the evidence can properly be described as collateral. It was an important part of the Crown case. See paragraph [24] above. The evidence of the prior sexual abuse was the subject of a debate in the second phase of the trial. In an attempt to minimise the oral evidence which had to be taken from R McG on that subject, the Crown disclosed the questions which they wished to ask him. They were the following:

"It is accepted by Mr Lauchlan and Mr O'Neill that they sexually abused you from the age of 10 until you were aged 13 years old.

That Mr Lauchlan sexually abused you on his own and with Mr O'Neill.

That Mr O'Neill sexually abused you on his own and with Mr Lauchlan.

That this sexual abuse happened regularly throughout this time and it involved oral and anal sexual intercourse.

Can I ask you now, looking back at this time did you come to accept that the sexual abuse was part of the relationship?

Did you consider it was normal?

Do you still consider it was normal?

How do you feel about the fact they sexually abused you in this way now?

Did you ever tell anyone about it at the time?"

[57] Mr Carroll submitted that the Crown had been wrong to assert that Mr O'Neill had accepted that his abuse of R McG had included anal penetration and that he had been prejudiced by that assertion. He stated that Mr Lauchlan alone had been convicted of sexual abuse of R McG which included anal intercourse. The advocate depute explained that Mr Carroll had not challenged the questions when they were debated and that those were the questions which she put to R McG on the subject. The Crown were not restricted in their questioning to the offences of which Mr O'Neill had previously been convicted but had stated what they had understood the position to be. Mr Carroll had thereafter cross-examined R McG to suggest that Mr O'Neill's abuse had not involved anal penetration but the witness had asserted that it did.

[58] I do not consider that it is significant whether or not the Crown were correct in their assertion that Mr O'Neill accepted that his abuse had extended to anal penetration. Mr Carroll in his grounds of appeal accepted that Mr O'Neill had been convicted of serious sexual offences in relation to R McG, including oral intercourse. Whether or not his sexual abuse of R McG involved anal penetration, the serious offences of which he was convicted and which he did not challenge gave him a strong motive for concealing his criminal activity. Mr Lauchlan also had that motive. I therefore did not see any material prejudice arising from this alleged inaccuracy.

[59] More generally I am satisfied that the Crown were entitled to lead the evidence of sexual abuse in the second phase of the trial as I have stated in paragraph [24] above. The trial judge informed the jury in his charge (at p 49) that the accused were not on trial for their admitted sexual abuse of R McG and that no adverse inference should be taken against them in relation to that criminal behaviour.

[60] The court has power to control the Crown's right to prosecute where it is shown that the Crown are behaving oppressively in the sense that they have created a material risk that the accused will not receive a fair trial (HM Adv v O'Neill 1992 SCCR 130). But I do not detect such oppression in this case.

[51] I am therefore satisfied that this ground of appeal is not arguable.

(x) Undue delay prejudicing a fair trial

[62] Mr Carroll submitted that as a consequence of delay since 17 September 1998 Mr O'Neill had suffered prejudice and had been deprived of a right to a fair trial. Material evidence which would have been available to him was no longer available. In particular a witness, Ms Naomi Dawson, who had sighted Mrs McG after the date when she was said to have disappeared, could not be traced. He also contended that a handbag containing personal effects which Mrs McG had left in a public house had been lost or disposed of by the police and that this evidence could have reinforced the evidence that Mrs McG had not died when the Crown contended she had. The fact that the handbag had been disposed of in accordance with normal procedure was not an answer (Natunen v Finland (2009) 49 EHRR 32, at paras 40-44).

[63] For the reasons which I set out in paragraphs [26] - [29] above I do not think that the starting point of the reasonable time requirement is 1998 or that it is arguable that it is so.

[64] The evidence of Ms Dawson was available in the form of three police statements which were admitted under section 259 of the 1995 Act. Ms Dawson, who was first interviewed by the police in May 1998, had identified photographs of Mrs McG as having been in the King's Arms Hotel in Dalry, where Ms Dawson worked as a barmaid, on 15 July 1997 when she had found a drawstring leather handbag near the jukebox. It appeared that a customer had left the bag. The bag contained loose change, lipstick, eyeliner, foundation cream and a bunch of keys. She stated that Mrs McG had been sitting in the vicinity of the pool table, near to where she later found the handbag. There had been over one hundred customers in the hotel that night. Ms Dawson handed the bag into Kilbirnie police station three or four days later when no one had come to claim the bag. Thereafter, when no one claimed the bag, the police sent it to be sold in accordance with their normal procedures. In his report the trial judge stated that there was no suggestion that the Crown were to blame for the loss of the evidence. He stated that at the time of the recovery and later disposal of the bag there had been no criminal investigation into Mrs McG's death but only a missing persons enquiry.

[65] Evidence suggesting that Mrs McG had been alive on 15 July 1997 might have cast reasonable doubt on the Crown case. It appeared from the statements that Ms Dawson's family had owned the public house for about ten months before they closed it in October 1997 and that at some time after that Ms Dawson left the area to live in Bedfordshire. But the jury had the benefit of Ms Dawson's police statements. The defence's complaint is that it lost the opportunity to assess the contents of the handbag. Mr Carroll spoke of the evidence having pointed to a "sustainable proposition" that Mrs McG's property had been found in the hotel long after she was said to have been killed and also in her possession on that day. In reply the advocate depute pointed out that Elizabeth Morton, the other barmaid whom the police interviewed, had not recognised photographs of Mrs McG as having been in the public house.

[66] In my view while it is unfortunate that the evidence was lost, that does not mean that Mr O'Neill suffered material prejudice. This case is very different from the destroyed phone intercepts in Natunen v Finland which the defence had sought to demonstrate the context of the phone conversations on which the prosecutor was relying. The bag, which was found in the King's Arms Hotel, may or may not have belonged to Mrs McG. Ms Dawson stated that she had no knowledge of its ownership. It was disposed of at a stage when the police had not opened a murder enquiry. Further, it is not clear when Ms Dawson, who had moved to England by 1998, ceased to be traceable. I therefore do not see how the prejudice, if any, caused by the lost evidence can be attributed to any delay in prosecuting the case.

[67] I conclude that this ground of appeal is not arguable.

(xi) Misdirection in relation to eye witness identification

[68] Mr Carroll submitted that the trial judge misdirected the jury in his charge (at pp 82-84) when he directed the jury to be cautious about the reliability of eye witness evidence which identified Mrs McG. This direction, he submitted, was appropriate in relation to Crown evidence of identification of an accused where the burden of proof is on the Crown to establish guilt. Although the trial judge gave directions on the burden of proof, this direction was apt to confuse the jury by giving the impression that there was a burden on the defence in the special area of identification evidence. [69] I do not agree with Mr Carroll's description of this part of the trial judge's charge and I see no misdirection on this issue. The trial judge at p 82 of his charge correctly directed the jury that it was for the Crown to prove beyond reasonable doubt that Mrs McG died on 20 or 21 June 1997. He then stated that the jury had heard

"a good deal of evidence from witnesses who said that they saw [Mrs McG] alive at various times later, and in some cases a good deal later than the date on which the Crown alleges that she was murdered... If you accept any of that evidence or if any of it leaves a reasonable doubt in your minds about whether [Mrs McG] died at the time alleged by the Crown then acquittals must ensue."

He then made familiar observations about the evaluation of identification evidence before reminding the jury that it was for the Crown to prove that Mrs McG was not alive after the date of the alleged murder and that the accused did not need to prove anything. He repeated his direction that if any of the sighting evidence caused the jury to have a reasonable doubt as to whether Mrs McG was killed on the date which the Crown alleged, they would require to acquit the accused. In my view the trial judge was entitled to draw to the jury's attention the known fallibility of identification evidence which exists whichever side calls the identifying witness. By including those observations in his directions he did nothing which was likely to mislead or confuse the jury on the burden of proof.

[70] For those reasons I consider that this ground of appeal is not arguable.

(xii) Unfairness through leading evidence of a police interrogation: Salduz v
Turkey

[71] Mr Carroll submitted that the Lord Advocate had acted incompatibly with Mr O'Neill's Convention rights by leading evidence of his answers at a police interview on 5 September 2008 at which he had not had the benefit of legal assistance. In particular the Crown were able to rely on his statement to the police that he had had experience on boats, which was relevant to the means by which he was accused of disposing of the body of Mrs McG. The trial judge erred in failing to instruct the jury to disregard that evidence.

[72] In my opinion the evidence from the police interview played only a minor role in the Crown case. Once one has regard to Mr O'Neill's self-incriminating statements about disposing of Mrs McG at sea and the evidence that he and Mr Lauchlan had access to the "Andola", his statement in the police interview that he had had experience on boats in the past added very little to the circumstantial case which the Crown had made against him in relation to the charge of attempting to defeat the ends of justice. The advocate depute referred the court to the evidence of Greig McKelvie that both accused had access to the "Andola" and that Mr O'Neill had told him that he had had the boat out. She also referred to the evidence of Chris Bradford, who said that Mr Lauchlan had a key to the boat and that Mr O'Neill had said he had access to the boat and could use it at any time, and of Chris Lewis, who spoke of the ease with which people could take boats out of Largs Marina. In my view it cannot be said that there was not sufficient evidence for the conviction without the evidence of that comment in the police interview or that there was a real possibility that the jury would have arrived at a different verdict if they had not had that evidence before them (Cadder v HM Adv 2011 SC (UKSC) 13, Lord Hope at para 64; McInnes v HM Adv 2010 SLT 266, Lord Hope at para 20).

[73] The direction which the trial judge gave was a well established direction in relation to police interviews which was widely used before the decision of the Supreme Court in Cadder v HM Adv. That decision was issued several months after the trial had ended. While with hindsight it falls to be categorised as a misdirection, it is one without any consequence because it did not give rise to a miscarriage of justice.

[74] This ground of appeal is therefore not arguable.

(xiii) Misdirection in relation to Detective Constable Benson's opinion evidence (Ground of Appeal 12)

[75] This ground of appeal asserts that the trial judge misdirected himself in law in asking D C Benson to express an opinion on the conclusion which the police had drawn from the "proof of life" report" because the witness was not qualified to give opinion evidence.

[76] The sifting judges expressed the view that DC Benson's answer was properly admissible. Further, the trial judge in his charge (at pp 50-51) informed the jury that none of the police evidence amounted to expert testimony and (at pp 81-82) reminded them that the defence criticised the adequacy of the investigations narrated in the report and contended that the Crown had not proved that Mrs McG was dead. But as the sifting judges in Mr Lauchlan's appeal have allowed a similar ground of appeal to proceed, I consider that in the interests of comparative justice this court should give leave to Mr O'Neill to found on this ground of appeal.

(xiv) Prejudice caused by Crown staff aligning themselves with prosecution
witnesses

[77] Mr Carroll submitted that the Crown counsel had caused unfairness in the trial by aligning the Crown with the prosecution witnesses during the submissions to the jury and the trial judge's charge. He suggested that the advocate depute had instructed a representative of the Crown, who until then had been engaged with counsel in the well of the court throughout the trial, to sit with members of Mrs McG's family. A reasonable observer would, he submitted, see that as the Crown officials aligning themselves with prosecution witnesses, including R McG whom Mr O'Neill had incriminated in the murder. By so doing the Crown had tacitly communicated support for those witnesses at a critical stage of the proceedings to the prejudice of the defence. Had there been a need to support the family of Mrs McG, victim support officials should have been asked to assist.

[78] The advocate depute challenged the accuracy of the factual contentions underlying this ground of appeal. She explained that the Crown official was Mr John McClelland, a precognition officer, who had sat in the well of the court only intermittently when the Crown junior was absent or when asked to listen to the evidence of particular witnesses. He had only rarely been in the well of the court. After she had completed her submissions to the jury, the advocate depute had asked him to approach Mrs McG's family to instruct them to be quiet during the defence submissions. She was unaware for how long he may have sat close to them after she made her request. She thought that it was speculative to see that as conveying tacit support by the Crown for the prosecution witnesses. Subjectively that had been far from her mind.

[79] It is not apparent to me that a reasonable juror, if he observed the official speaking to and sitting with the former witnesses in the public gallery, would have interpreted his presence as support for those witnesses rather than an attempt to keep them quiet. In any event I do not consider that the presence of the precognition officer with those witnesses in the public gallery created a material risk of a miscarriage of justice.

[80] The ground of appeal is not arguable.

(xv) Lack of impartiality by the trial judge

[81] Mr Carroll submitted that the trial judge appeared to lack impartiality in the second phase of the trial. At the conclusion of the first phase he had described the accused as "dangerous and evil sexual predators of the worst kind." Thereafter he had to make decisions on challenges to the admissibility of evidence concerning the criminal offences in relation to R McG and on submissions about the fairness of the trial because of delay and the loss of evidence. Mr Carroll also submitted that the trial judge had resisted a motion to adjourn to obtain medical assistance from a nurse when Mr O'Neill developed a severe headache. He had informed the trial judge of Mr O'Neill's tendency to suffer from migraine headaches since suffering a road traffic accident some years before. The prison escort was aware of Mr O'Neill's difficulties and had requested that a nurse attend to him. Although he was informed that the nurse would be available within thirty minutes, the trial judge was reluctant to allow the adjournment, enquired at length of Mr Carroll as to the state of his instructions and suggested that he could continue while the accused awaited the medical attention. The trial judge also stated that he would call for a report from the prison authorities on the matter and that he wished to know the nature and extent of the medication required. This "aggressive and disproportionate" questioning, Mr Carroll submitted, caused Mr O'Neill anxiety. There was a short adjournment, during which the nurse gave Mr O'Neill medication, and, when the trial resumed, the judge stated that the court would sit late to compensate for the lost time.

[82] Mr Carroll contrasted the judge's behaviour towards Mr O'Neill with his willingness to allow an adjournment when Detective Constable Wilkie appeared to faint while giving evidence. He questioned Mr Carroll whether there was any need to question the witness further, what questions were to be asked and whether the evidence could be agreed.

[83] Another manifestation of the alleged lack of impartiality, which Mr Carroll advanced, was the distinction between the accused which the trial judge made in selecting the punishment parts in their life sentences. There was, he submitted, no evidential basis for the distinction between the two accused in relation to culpability or background. I discuss that contention in paragraph [90] below.

[84] He submitted that the appearance of the absence of impartiality undermined Mr O'Neill's confidence in the administration of justice.

[85] In his supplementary report the trial judge explained that he had kept his comments at the end of the first part of the trial to a minimum but that he considered that, because the jury had faced a difficult and unpleasant task, it was appropriate that he should address the accused. He considered that the charges of which the accused had been convicted and their previous convictions justified his comments. He observed that at no stage did Mr Carroll raise any objection to his presiding over the second phase of the trial.

[86] In my view the comments would not have caused the fair-minded and informed observer to suspect that a judge would lack impartiality in the second phase of the trial which concerned crimes of a radically different nature.

[87] In his supplementary report the trial judge set out his account of the circumstances in which he granted an adjournment to allow a nurse to give medication to Mr O'Neill. He prepared that account after listening to the tape recording of the exchange. Suffice it to say that that account does not support the view that the questioning was disproportionate or aggressive. In relation to the episode involving DC Wilkie the trial judge explained that the witness became incoherent and obviously unwell in the witness box and required to be taken to hospital and that his enquiries were in the context that Mr Carroll had indicated that his cross-examination was to be brief. The advocate depute informed the court that DC Wilkie had to be kept in hospital overnight and was able to complete his evidence on the following day.

[88] I am not persuaded that there is any substance in this ground of appeal which, like several of Mr Carroll's submissions, appears to be predicated on the subjective perception of Mr O'Neill rather than the established objective test of apparent bias. Further, the exchanges did not take place in front of the jury and it was not submitted that they gave rise to a miscarriage of justice. (See Murray & O'Hara v HM Adv 2009 SCCR 624.) This ground of appeal is not arguable.

(xvi) Appeal against sentence

[89] Mr Carroll submitted that the trial judge erred in fixing the punishment part of the life sentence at thirty years. Such a sentence had historically been reserved for murders of the most horrific kind, including multiple killings and killing by firearms. The trial judge should also have taken into account in his sentence the inordinate delay in the determination of the criminal charges and the anxiety that that delay had caused the accused. Such delay merited a reduction of sentence in just satisfaction. Mr Carroll also, as stated above, submitted that there was no basis in the evidence for distinguishing between the two accused in their sentences for those offences.

[90] The trial judge in his report explained that in fixing the punishment part he took into account the ruthless and chilling way in which the accused planned and executed the murder of Mrs McG and the disposal of her body, their substantial criminal records involving lengthy terms of imprisonment and, in the light of those records and the other charges of which they had been convicted, his assessment that they were ruthless and unrepentant individuals with no respect for the law or the values of a civilised society. He explained that he fixed Mr O'Neill's punishment part at four years more than Mr Lauchlan's because he had been convicted of one charge on which Mr Lauchlan had not appeared and because Mr O'Neill appeared to be the more dominant personality.

[91] In my opinion the period which elapsed between the killing of Mrs McG and the trial resulted in large measure from the difficulty which the Crown faced in obtaining the evidence to charge the accused after they had covered their tracks by disposing of Mrs McG's body. I see no basis for making any allowance because of delay and observe that Mr Carroll did not suggest otherwise in his plea in mitigation. Nonetheless, while the circumstances of the offence clearly merited a very significant punishment part, and there is a basis for making a distinction between the two accused, I consider that the appeal against the punishment part is arguable.

Consideration of grounds of appeal in aggregate

[92] I am not persuaded that Mr Carroll has shown a good reason why he should be given permission to rely on grounds of appeal other than those allowed by the sifting judges and by this court, because of any interrelationship between the grounds of appeal or otherwise (Beggs v HM Adv 2006 SCCR 25 at para [5]).

[93] Matters might have been different if there had been evidence of illegal surveillance which undermined the fairness of the trial, as Mr Carroll asserted. He contended that the irregularities were so gross, persistent, prejudicial and irremediable that the trial was unfair and he referred to Donnell v HM Adv (2009 SCCR 918). Once one excludes as unvouched Mr Carroll's leitmotif of persistent danger of illegal surveillance and the inferences which he drew of bias on the part of judges who did not recognise the unfairness that that created, there is no connection between the various grounds of appeal which give them a cogency in aggregate which they lack individually. Rather they relate to episodes in a trial which lasted from 26 April to 10 June 2010 and each complaint must be viewed in that context. In Donnell v HM Adv Lord Clarke cited the judgment of Lord Bingham of Cornhill in Randall v R (Cayman Islands) ([2002] 1 WLR 2237, at p 2251 para 28) where he stated:

"[I]t is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice."

Those words are apposite in this case.

Conclusion

[94] In my opinion this court should grant Mr O'Neill leave to argue his ground of appeal 4 (paragraph [49] above) and ground of appeal 12 (paragraphs [75] and [76] above) in the interests of comparative justice and also his appeal against sentence (paragraph [91] above. Otherwise I consider that the court should refuse Mr Lauchlan and Mr O'Neill leave to found on grounds of appeal which the sifting judges have rejected as not arguable.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hodge Lord McEwan	[2012] HCJAC 20 Appeal No: XC424/10 XC435/10 XC402/10 XC406/10 OPINION OF LORD McEWAN in THE APPLICATION UNDER SECTION 107(8) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by (1) WILLIAM HUGH LAUCHLAN and (2) CHARLES BERNARD O'NEILL Applicants; against HER MAJESTY'S ADVOCATE Respondent: _______

For the first Applicant: McVicar, Considine, sol advs; Capital Defence Lawyers

For the second Applicant: J Carroll, A Ogg, sol advs; Drummond Miller LLP; McClure Collins

For the Crown: Bain QC; Crown Agent

8 February 2012

[95] I am in full agreement with Lord Hodge. I have nothing further to add.