APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hodge Lord McEwan	[2012] HCJAC 51 Appeal No: XC424/10 XC435/10 XC402/10 XC406/10 OPINION OF THE COURT delivered by LORD HODGE in APPEAL AGAINST CONVICTION AND SENTENCE by (1) WILLIAM LAUCHLAN and (2) CHARLES O'NEILL Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

For 1^st appellant: McVicar, Considine; Capital Defence

For 2^nd appellant: Carroll, Ogg; Drummond Miller

For respondent: Bain, QC; Crown Agent

19 April 2012

[1] Mr Lauchlan and Mr O'Neill have applied for leave to appeal to the Supreme Court against the decision of this court dated 8 February 2012 in an application under section 107(8) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). In that decision this court gave leave to appeal on some grounds but held that certain grounds of appeal which they wished to advance were not arguable.

Undue delay

[2] Mr McVicar on behalf of Mr Lauchlan sought leave to argue before the Supreme Court that the decision of that court in Ambrose v Harris (2011 SLT 1005) had the result that the starting-point in the assessment of reasonable time under Article 6 of the European Convention on Human Rights ("ECHR") was not, as the Appeal Court had held in O'Neill v HM Adv (2010 SCCR 357), the stage when an accused person appeared on petition but the earlier stage when the accused was interviewed by the police under caution in the exercise of their powers under section 14 of the 1995 Act. Mr Carroll on behalf of Mr O'Neill adopted Mr McVicar's submissions.

[3] We have decided to grant leave to appeal on this ground. We set out our reasoning in paragraphs [25] - [29] of this court's opinions but recognise that the issue raised is one which arises from statements in a decision of the Supreme Court on which that court may wish to provide further guidance.

Unauthorised surveillance

[4] Mr Carroll sought leave to appeal our decision (paragraphs [32] to [36] of the opinions) to refuse leave to appeal on ground 1 of Mr O'Neill's grounds of appeal which was concerned with the overhearing of legally privileged conversations through intrusive surveillance authorised under the Regulation of Investigatory Powers (Scotland) Act 2000. In his oral submissions seeking leave to appeal to the Supreme Court Mr Carroll sought to introduce a new ground, namely that the police had misled the Surveillance Commissioner as to the content of Mr O'Neill's answers when he was interviewed by the police. This was not part of his grounds of appeal which we considered. It was not apparent from the documents which we had before us that there had been any material irregularity in the authorisation and such an irregularity could not be established without a factual investigation. So far as we were able to ascertain, the material obtained from the surveillance had no bearing on Mr O'Neill's trial. We do not consider that the appeal from our decision is arguable.

The test for apparent bias

[5] Mr Carroll initially sought leave to appeal our decision that the court lacked the appearance of independence and impartiality, arguing that the test for apparent bias, which we cited at para [39] of the opinions, was in conflict with the approach of the Strasbourg court. He referred to Hoekstra v H M Adv 2000 SCCR 367. After discussion he did not insist in the point. We are satisfied in any event that it is not arguable.

Prejudicial Remarks, apparent bias and a fair trial

[6] In additional ground 15 of his grounds of appeal Mr O'Neill complained about the comments of the trial judge, Lord Pentland, at the end of the first phase of the trial. We expressed our views on this ground in paragraphs [81] to [88] of this court's opinions. Mr Carroll submitted that the challenge raised a devolution issue as the Lord Advocate had persevered with the prosecution in the face of what was evidence of an unfair trial.

[7] For the reasons which we stated in those paragraphs we did not think that the points which Mr Carroll raised were arguable. We adhere to that view. But we recognise that the splitting of the trial into two phases before two juries and the resulting presentation of previous convictions and the judge's remarks at the end of the first phase were very unusual circumstances. We are satisfied that it is appropriate to give leave to appeal on this ground.

Failure to desert trial after prejudicial events

[8] In his second ground 2 of the grounds of appeal Mr O'Neill argued that the trial judge had misdirected himself in law when he repelled a submission in the first phase of the trial that the trial diet should be deserted pro loco et tempore. We expressed the view that this ground was not arguable in paragraphs [43] to [46] of our opinions. Mr Carroll now seeks to argue that it raises a devolution issue because the Lord Advocate continued the prosecution thereafter. For the reasons which we have given we adhere to the view that the ground is not arguable and therefore consider the proposed appeal point, which is accessory to the point argued before us, is not arguable.

Directions on identification

[9] In ground 10 of his grounds of appeal Mr O'Neill asserted that the trial judge had misdirected the jury in the second phase of the trial by warning the jury of the fallibility of identification evidence. Mr Carroll argued that this had the effect of imposing a burden of proof on the accused. We rejected that argument in paragraphs [68] to [70] of our opinions. Mr Carroll now seeks to raise the matter as a devolution issue on the basis that the prosecutor exercised her discretion in moving for sentence following events which had rendered the trial unfair. To our mind the ground of appeal is a simple assertion of misdirection by the trial judge. We consider that there was no such misdirection and that the ground is not arguable.

Unfairness in leading evidence of a police interview: Salduz v Turkey

[10] In ground 11 of his grounds of appeal Mr O'Neill sought to assert that his right to a fair trial had been subverted by the leading of evidence of a comment at a police interview that he had experience on boats. We rejected the submission in paragraphs [71] to [74] of our opinions. In seeking leave to appeal Mr Carroll readily conceded that the evidence itself might not have affected the fairness of the trial but submitted that the court required to assess it together with all of his other criticisms of "procedural deficits and errors" in determining whether there was a fair trial. We addressed the cumulative effect of his challenges in paragraphs [92] and [93] of our opinions and on reflection adhere to that view. We do not consider the point to be arguable.

[11] We observe that, if, as Mr Carroll suggested, the Supreme Court had to adjudicate on all of the challenges in order to assess the fairness of the trial, this would significantly extend its jurisdiction in relation to Scottish criminal trials.

Conclusion

[12] We grant leave to both applicants to appeal to the Supreme Court on the issue of undue delay (Mr Lauchlan's ground 5 (2^nd Phase) and Mr O'Neill's ground 9) and to Mr O'Neill on ground 15 of his grounds of appeal. Otherwise we refuse leave to appeal.