Transcript of Day One Preliminary Discussion of Devolution Issues

 Monday, 9th October, 2000






in terms of

Section 123 of the Criminal Procedure

(Scotland) Act 1995

MONDAY, 9th OCTOBER, 2000 MR. O’NEILL: My Lords, it was suggested I speak first on the basis of devolution notice received. The devolution issue was served by the Lord Advocate on the Third Respondent under reference to Rule 40.4 of the Act of Adjournal.

LORD PROSSER: We have the devolution matter before us.

MR. O’NEILL: Subsequently the Second Respondents have also been served notice.

LORD PROSSER: We have seen the Second Respondents and that we have seen this morning, but the lateness does not matter, from Miss Zelter we have seen another Minute on effectively the same lines, we have seen all three, and the kinds of issues they raise. I don’t know what you are suggesting at this stage.

MR. O’NEILL: I would therefore move the Devolution Minute, to argue the devolution issue which I say arises under Rule 40.4.

LORD PROSSER: Is that the position of the other two Respondents, that should be dealt with before we come to what I might call the merits. In that case I shall just say we have considered this with considerable care, not what the answers are on these matters, but the order in which we wish to be addressed. We have considered them separately and we have had time to discuss them together and what we see as the sensible approach is this, that in large measures the Minutes are concerned with the fairness of the proceedings in this matter and in particular one issue that arises is the question of notice of what the Crown’s argument will be. And of course another issue is what one may call the competency of the specification of the various questions. This was of course canvassed to some degree at an earlier hearing, arguing this is of great importance, what we may call the real issues in the case, which the Respondents have touched on before, ought to be the subject of a hearing, and we think that therefore the Court would adopt a broad approach in relation to the scope of the questions, in other words the scope which would permit the Respondents to raise the matters that they see as relevant, we think this would almost certainly work, however one might criticise the form of questions, this would work because the questions are not capable of merely a yes or no answers, a question like Question 2 might be answered with qualifications, conditions, it might be the answer is “Possession is legal, but not if” etc., and therefore we are not convinced avante it is necessary to deal with competency questions as with the scope of what could be covered in dealing with the matters raised on the Reference. We would expect as I have indicated the scope would allow of dealing with what has been called the real issues, but not in this event decide questions of the scope in advance, it is unlikely to be helpful and a better approach would be to start with these questions and see whether the form of submission is such that it would allow of a proper handling of what one would call the real questions, or what if I may say which are reformulated and discussed in Miss Zelter’s submission. The questions that want to be answered are formulated in various ways and as far as notice of the Crown’s position, again we don’t think it would be useful to deal theoretically with whether there is notice of what their argument might be, or to constrain oneself with what the precise scope might be of the argument they have lodged. We think a sensible approach is for the Crown to tell us, by making its submission on the matter, to tell us what the arguments are. It may then be, or it may in the course of that emerge there are points on which for example the Respondents might say, “We have not had fair notice of that”. It may be there will be a number of such matters where it is said they have not had fair notice of a particular point. But again it seems to us important not to embark upon theoretical discussion of matters which may not arise, or which if they arise are better discussed in the context of specific problems, one of notice. This Court is well accustomed to one side being able to say, “That has been sprung upon me, I have not had notice of that”, and that is usually a curable position by giving an adjournment or the like. And again we think it important one should be talking specifics, trying to find specific solutions, if there are any, in the proper context.

I haven’t dealt with all the points dealt with in the devolution issue, but it is very important to hear what the actual arguments are in the actual context of matters as they stand, to reserve questions of competency, to reserve questions arising under the Scotland Act devolution issues and to proceed now to the actual submissions, upon the questions as stated. The Respondents can raise these matters, along the lines of what I have called the very useful reformulation of questions or submit, alternative questions which seem to us to properly fall within what we would want to hear asked and answered by the Crown. Therefore, what we propose is the Advocate Depute, or Mr. Di Rollo embark upon the specific argument. I have said that at some length and I am of course willing to hear any submission from the Respondents why that course should not be adopted rather than embarking upon the devolution issues in any detail.

MISS ZELTER: I find that quite useful. I was wondering within what you said, whether the now question, which I don’t think I have had fair notice of, Point 4, Paragraph 3, about the Sheriff’s right to withdraw a charge from the Jury, and I want to know…

LORD PROSSER: I was going to raise that myself, this is the competency of what the Sheriff did.


LORD PROSSER: Thank you for drawing my attention to that, I was actually going to raise it.

MISS ZELTER: The other problem I see is the inter-relationship between fact and law and what is or is not allowed in bringing in new evidence. My evidence to the Court, we did not make threat to nuclear weapons, at Greenock I gave evidence to the opposite effect. At Greenock the Crown did not bother to bring any evidence to refute that detailed evidence on Trident and its effect. And in these proceedings I need to know whether we will be relying on evidence before Greenock Court, that is an assumption I have been preparing my answers on, or whether the Court will be allowing the Crown a second change as it were to bring in new evidence, that is the other point. And then I also submit the issues of fact should be admitted by both parties, or established to your satisfaction, which logically means the Court will have to enquire into the effects, and if so I submit it is fairer to allow expert witnesses to speak to what Trident consists of… (indistinct) in any case it makes sense that anybody answering the Lord Advocate’s questions, it merits enquiry into the effects of Trident, as to what UK policies are.

LORD PROSSER: You are running on a bit, I only want areas identified at this stage.

MISS ZELTER: That was it, and as every time I am still asking we should be allowed a court order that what goes on in this court is officially recorded, and I request once more the court rule that all proceedings be officially recorded, the proceedings are of the utmost public importance and will contain detailed legal argument and I ask that they should be recorded officially.

LORD PROSSER: If I can raise certain matters. Mr. Di Rollo, the argument that it was not competent for the Sheriff to acquit at that juncture did not appear to me to be a matter which was raised in the questions included in the Reference and I had therefore assumed… well I can see the argument on that, it is not actually a matter raised in the Reference, is it?

MR. MENZIES: No, my Lord, it is a matter which is by way of background but on which the Crown would not be seeking a ruling, it is there in the scope of argument merely to make the point the finders on fact in this case were the Jury.

LORD PROSSER: It is perhaps an example of the way in which individual questions may arise en route to dealing with the main ones, but I think, speaking for myself, I cannot at the moment see how we would wish to make a ruling, but you are not seeking a ruling, it is a general view. As far as the facts are concerned, it is not the Crown intention to seek new evidence at this stage.

MR. MENZIES: It is not.

LORD PROSSER: And as far as the Respondents leading evidence, that is a matter which was raised with a differently constituted Court previously and I think that therefore that was a matter we had taken into account when deciding we would prefer to get on to the actual case before the devolution issues. But of course, we are not leaving that, it would simply be like everything else rather, that area of consideration, whether it was necessary to widen matters, and therefore at the moment one should proceed upon the basis there is not going to be new evidence in this process. But again in deciding there cannot be, that which we are deciding is the order of things and if it appeared after hearing the Crown position there was any scope for renewing it, no doubt matters would be renewed. And so far as recording proceedings is concerned, that has been raised before and refused. It has been confirmed I think by us we don’t wish – this is of course in the context of there not being evidence – if there was evidence no doubt there would be need for recording, but so long as this is legal argument, simply legal argument and a fair amount of written material, we are not persuaded. I don’t think it is for this Court, the matter has been decided and I gather from my brethren it is not a matter which we would wish to raise again. Mr. Anderson.

MR. ANDERSON: Very briefly, my Lord, the question which is being argued now on behalf of Miss Rhoder, the Article 6 question relates not to the Court dealing with the case, there is no real objection to the procedure which will apply… (indistinct)… under Article 6(1) of the Scotland Act and framing the question in a very unfair manner. The point here my Lord is the position of Miss Rhoder is the Court cannot cure the defect… (indistinct)… the order of proceedings and as such the issue should be heard first because the Court may be considering a matter which the Lord Advocate has no power to bring to Court, that is the position of Miss Rhoder.

LORD PROSSER: I appreciate the formulation, although it overlaps with my comments it is not clear apparently what might be covered by this question if it in fact turns out to be competent, then this question would raise the issues which for convenience I am calling the Zelter formulation, if you allow me to do that, then I think the point may be rather different and therefore again I think the feeling would be I don’t specifically deal with it, the point taken by your client about the Act and we will hear submissions afterwards on that.

MR. ANDERSON: If questions are unclear the Respondents’ position is the Court should not consider them, if there is any doubt the Lord Advocate… (indistinct)… there is one point my learned colleague Mr. Mayer reminds me, he has a petition to the nobile officium.

LORD PROSSER: We are not dealing with that Minute, we are dealing with matters that I have raised about procedure. Mr. O’Neill.

MR. O’NEILL: Obliged my Lord. I have noted what the Court has said my Lord but my position is that I think it is more appropriate that the devolution issue be heard before the Crown make its substantive case. My Lord, devolution issue raises three points, your Lordship noted two of them, first of all fair notice in relation to the arguments the Crown is going to be putting forward in support of its question. Now, my Lord, in my submission, that matter is not resolved by having the Crown now set out its substantive argument, that is not actually giving us fair notice.

LORD PROSSER: No, what I am suggesting is hear the Crown’s full argument first and then you would be able to identify any points on which you have not had fair notice and that would be curable by giving an adjournment, you would be able to argue about it more appropriately, having heard the Crown you say you have not had fair notice and you would therefore require time.

MR. O’NEILL: Indeed so. Secondly, on the competency of the specification of the questions or how broadly or narrowly they have to be considered by the Court. My Lord, in my submission that is a matter which can usefully be looked at prior to arguing questions and would help honing down issues.

LORD PROSSER: Of course it may usefully be looked at, but again, as I keep referring to, our analysis of documents it is very plain, and indeed any other formulation of why these are said to be important, we know what the argument about competency is and whether it matters is something which in a practical minded way we would rather look at in the context of actuality than any abstract way which may turn out to be quite pointless if the course of argument takes another form.

MR. O’NEILL: Finally, the third point which is being raised in the devolution issue for the Third Respondent is really a fundamental point which relates to the procedures to be adopted in the Lord Advocate’s reference, which relates to the question of the participation of the Respondents in the proper formulation of the questions which come before the Court.


MR. O’NEILL: My Lord, in that sense, if my argument is correct Article 6 gives us certain rights in that regard, then the manner in which the Lord Advocate has proceeded to date, which is to choose certain questions which refer to the Respondents, put them before the Court, and notwithstanding the objections raised by the Respondents on a number of occasions, refusing to change those questions at all. Now my Lord, I can understand up until the 2nd of October then that one might have thought that is a matter for the Lord Advocate and the Court can do nothing about that. But my submission is that given the full implication of the Human Rights Act since last Monday the Court has certain more substantive powers in fact to order the focusing and presentation of questions which can be done in conjunction with Respondents. So that is really fundamental to how this procedure has gone to date, the Respondents have been excluded from any participation in the formulation of those questions.

LORD PROSSER: If I may say so, that is a classic example of the situation in which it would be best to have open questions as they are and if it turns out that doesn’t enable, as I would hope, discussion of other issues, then it may be necessary to consider whether in a formal way questions could and should be added. But I note the point.

MR. O’NEILL: And the fourth point, my Lord, which does not arise from the devolution issue but arises from the procedure proposed by your Lordship is, the problem might be that if having heard the Crown case the devolution issue should remain alive and the matters are argued before the Court at that stage, then clearly there would have to be a decision from the Court one way or the other as to the devolution issue argument, either in favour of the Respondents or in favour of the Lord Advocate.

LORD PROSSER: Or they might be different on different areas, it may be that you had fair notice on one and not another and it may be felt there was additional information necessary on one point and not another.

MR. O’NEILL: Precisely, if there is then a decision of the Court on the question of devolution issues, having heard statements to the Court, and either the Crown, or perhaps even the Advocate General, or any of the Respondents are unhappy with any of the particular rulings, then it may be that leave to appeal the particular decision would then be sought of this Court.

LORD PROSSER: Of course, but that would also be so whatever order, at least one would have a practical issue rather than theoretical.

MR. O’NEILL: From the practical point of view, if leave was granted of this Court, or extraordinary leave granted by the Committee, that leaves procedural matters being argued against a factual background of the Crown’s substantive case, and decided, and then it requires reconvening of, it would have to be this particular court, this particular bench, to hear such matters as may be determined after such appeal has been made. Simply from a practical point of view my Lord it would perhaps make more sense to clarify procedural points which can be taken if need be and then to come back to substantive issues.

Finally my Lord, Miss Zelter made two motions in relation to the questions, first of all facts, the possibility facts may be open and I would support her approach in that, it may well be as things develop factual matters may develop, I appreciate that is a matter which should be considered once the Crown case is heard.

LORD PROSSER: All we are putting forward is the order in which things may be done, not disposing of them.

MR. O’NEILL: The final point Miss Zelter has asked on a number of occasions regarding the recording of the proceedings in this court. Now I know your Lordships have ruled on the matter before, what has not been ruled on is the question in the context of the convention of human rights.

LORD PROSSER: This Court is now bound by the directive, we appreciate that, of course we appreciate the rules we are now subject to.

MR. O’NEILL: I would support Miss Zelter’s motion at this stage for recording of the matters my Lord, and I do that on the basis of the two convention rights which are relied upon directly before the Court, first of all Article 6 which provides that court hearings should be in general held in public, I don’t know if your Lordship needs the particular provision.

LORD PROSSER: I don’t feel at the moment in the need to read Article 6, that should become apparent.

MR. O’NEILL: The point being made, the convention has to give, has to make real the rights, there is a right generally to public participation in the hearing.

LORD PROSSER: What is the particular submission, is it that all hearings require recording, or something specific to this.

MR. O’NEILL: No my Lord.

LORD PROSSER: Tell us what the specific point is.

MR. O’NEILL: That if a motion for recording of the matter is made this Court has to have very strong reasons as to why it should not be met, and Article 6 sets out various reasons as to why the proceedings should not be heard in public.

LORD PROSSER: We are not talking about in public, if this isn’t a public hearing I don’t know what is.

MR. O’NEILL: But I widen the notion public to this, participation by those people who are not able to be hear actually physically present but who are… and this case is attracting widespread public interest.

LORD PROSSER: What the public are interested in are the issues which we wish to get to, and I hope we are going to do, if you would say what your submission is in relation to recording I would be grateful.

MR. O’NEILL: That is my submission, recording of the matter allows full public participation.

LORD PROSSER: So in a case where there is wide interest, and not everyone of course would be able to get to court, then the requirement of a public hearing entails that there should be a recording of the entire procedure, formally.

MR. O’NEILL: No my Lord, it is consistent with the protection of Article 6 rights, in terms of Article 6 one may order there should not be a public hearing for particular reasons.

LORD PROSSER: I can’t order a public hearing, convention orders a public hearing, this is a public hearing, and you say it is not unless we record.

MR. O’NEILL: What I say is the absence of recording means it is not as public as it might be, and there is as I say wider interest.

LORD PROSSER: So that would be a matter for our discretion as it were.

MR. O’NEILL: Yes my Lord, or rather, argument put forward in relation to whether particular cases should be or not. Arguments like this were put forward to the nobile officium for recording, the particular point raised in the Petition was Article 6 rights that there may be… to receive and impart information and ideas, and certainly restrictions can be put on that, and it could be said the inability on the part of the Respondents properly to record the proceedings might well be a restriction on their part to receiving and imparting information on particular procedures.

LORD PROSSER: Is that video recording.

MR. O’NEILL: No, simply audio recording.

LORD PENROSE: If the public have to have full participation don’t they have to see what is going on.

MR. O’NEILL: The only motion is that there is purely audio recording.

LORD PROSSER: Right then, Advocate Depute, or Advocate General, do you have any submission?

MR. MURPHY: Nothing my Lord.

MR. MENZIES: In relation to my learned friend Mr. O’Neill’s submission, when he spoke he drew attention to a possible problem, namely if devolution issues remain live, having heard the Crown case, there would then have to be a determination, or determinations, and I merely draw to the Court’s attention that that may result in some disruption of the proceedings, but that of course is obvious, there are no doubt… (indistinct)… in favour of proceeding in the way in which your Lordship suggested. With regard to the renewed motion in support of recording, this is in my submission clearly a public hearing, the Crown does not accept, as is apparent, does not accept the argument, but I don’t wish to get into the argument at this stage, but even if Article 6 does apply, contrary to what my submission would be, these are public proceedings, this is a hearing in public, not only are members of the public able to be present, and in fact are present, but there are also members of the press present, and the argument which was touched on by my learned friend, as he says himself, it is similar to the arguments advanced by the BBC and others in the Lockerbie trial, in support of their application to televise that, and I merely draw attention to the fact that that was unsuccessful.

LORD PROSSER: There were allowances, am I right, for closed circuit relay, not merely at the site but I think in America.

LORD KIRKWOOD: In London and Washington.

LORD PROSSER: And those were specifically exclusive to particular locations where it was thought there would be a particular group with a specific interest.

MR. MENZIES: Indeed my Lord it was, and I am open to correction but I think that order had been made at an earlier stage and the BBC then sought to expand on that procedure.

LORD PROSSER: That’s right.

MR. MENZIES: It had been made in the context of the trial preparations, so the Crown’s position remains as it has been thus far, recording is not required of these proceedings.

LORD PROSSER: We are satisfied of course there are arguments for and against, and we proceed upon the basis that there are no arguments the other way, but we are satisfied nothing that has been said alters our view the most appropriate and useful procedure would be the one I outlined at the beginning and we would turn to the Crown argument under reservation of the right of the Respondents to raise issues in the ordinary way and that seems to be appropriate. The only matter we haven’t dealt with Mr. Anderson, was the point of the Petition to the nobile officium by your client and which you suggested you would want your Junior rather than yourself to address us on, but our view is the effect of the nobile officium which was left open with Mr. Mayer’s request which was before us, in any event it is outwith this hearing now and if there is any matter arises in relation to it… (indistinct)…

Mr. Di Rollo, perhaps I raise this in case it is not known to anyone else, it was agreed at the last procedural hearing there would be two speeches and therefore it is for the Advocate Junior to open.

MR. DI ROLLO: Of course my Lord. What I would first of all wish to do is identify the documents which need to be referred to. Clearly there is the Reference itself on behalf of the Lord Advocate, there is the Sheriff’s Report which is a 138 page report and there is then also the Indictment which your Lordships should also have. And in addition to that my Lord, there are four transcripts of evidence, some of the proceedings at the Sheriff Court at Greenock have been transcribed, first of all there is the transcript of the closing stages of the trial which deals with the submission made as I understand it at the end of the evidence in the case, so that is one of the transcripts.

LORD PROSSER: Those three days are in a single volume.

MR. DI ROLLO: That’s right, and there are three other transcripts which have been transcribed, the evidence respectively of Professor Boyle, of Rebecca Johnston and Professor Rogers, those were three experts called on behalf of the Defence. So my Lord, obviously the other bundle of documents which I will be concerned with arises out of what I have to say and are obviously a list of authorities which the Crown have lodged and copied all the authorities referred to in the five notes of argument and your Lordships should have that.

LORD PROSSER: I would like to check, over the weekend what I had was one Crown volume called devolution issues which we won’t be needing.


LORD PROSSER: And other one which essentially I think the Crown prepared which was democracy issues on devolution, we won’t need that.

MR. DI ROLLO: That’s right.

LORD PROSSER: So I can essentially put aside the volumes I had at the weekend, is that right?

MR. DI ROLLO: That’s right.

LORD PROSSER: And now in a large blue volume.

MR. DI ROLLO: Mine is black but what you should begin with is a case of Ward against Robertson.

LORD PROSSER: Ward against Robertson, yes, that is essentially what you have prepared.

MR. DI ROLLO: That is the Crown authorities but there may be some other authorities which have been referred to, the other sets of documents which your Lordships should be aware of and obviously are notes of arguments lodged on behalf of each of the parties to the case, the Crown note of argument and then a note of argument on behalf of each of the parties represented, and Miss Zelter.