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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Hoekstra & Ors v Her Majesty's Advocate  ScotHC 343 (23 January 2002)
Cite as:  ScotHC 343
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal Nos: C213/97
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEAL AGAINST CONVICTION AND SENTENCE
LIEUWE HOEKSTRA, JAN VAN RIJS, RONNY VAN RIJS and HENDRIK VAN RIJS
HER MAJESTY'S ADVOCATE
Appellants: Van Bavel, Gebbie; Anderson Strathern: Pen, McLaughlin, Kennedy; Anderson Strathern: Jahae, Gildea; Macafee: Sjöcrona, Nelson; Macafee
Respondent: F.J. McMenamin, Q.C., A.D., Blair; Crown Agent
23 January 2002
Grounds of Appeal 3 and 4
"The next thing my Lord as I can say this to your Lordship, the purposes of this assessment, if it is accepted that at some point in the ocean and I do say at some point in the ocean the Isolda came into contact with the Ocean Jubilee. It is certainly not accepted that the vessels were together for 20 minutes or more and my Lord I think it is fair to observe that when the Advocate Depute, I think I had him noted as saying 20 minutes or so, or words to that effect, that really wont do because as I understand the evidence it is going to be claimed that these two vessels were together for a specific period of time, I think from memory 23 minutes, it is not 20 minutes or so, it is specifically 23 minutes. It is certainly not accepted that the vessels were together for 23 minutes and it is certainly not accepted that they were ever in any way secured to each other and it is certainly not accepted that anything was transferred from the Isolda to the Ocean Jubilee. So that is very much at the heart of the defence case."
A little later, Mr. Findlay said this:
"Your Lordship is going to hear evidence and see some form of video recording of two vessels which it will be claimed are the Isolda and the Ocean Jubilee approaching each other and apparently coming into close contact with each other. There is then those 23 minutes period of time when they are supposed to be together and then the two vessels steam apart. Now that is the general scenario but the broad scenario is this, your Lordship will see on video tape two vessels coming close together and then there is a break in the video tape and the next thing your Lordship will see on the video tape is two vessels some distance apart and for some reason which certainly will have to be explored the crucial part of the whole case namely the transference of the drugs, according to the Crown those in the aircraft switched the camera off and there is no video record which has been produced, there are no photographs which have been produced of one second of the period of time when the boats are together and it is said that the drugs have been transferred. Now my Lord standing what I have already said to your Lordship, namely that it is most certainly not accepted that these two boats were together for 23 minutes, it's not accepted that any drugs were passed, that is clearly a matter in which I have a very strong interest in exploring in front of the jury doing both in a positive and negative way and your Lordship will know exactly what I mean by that."
"I have to say to your Lordship I haven't the slightest doubt that there was a bug on the Isolda, I haven't the slightest doubt that that bug or tracking device was placed on the Isolda when it was in Spain."
After a short interruption, Mr. Findlay continued.
"I haven't the slightest doubt that tracking device was placed on the Isolda in Spain and that the piece of equipment that was used off the Hebrides was some piece of equipment to pick up a signal from this tracking device which no doubt would have some particular signal that would identify, not the vessel it was on but would identify itself. In other words, the tracking device which would have a particular signal as I understand these things. Now my Lord, this raises a very serious question of law, apart from anything else and that is what that tracking device, assuming it was there, placed legally on the Isolda because if it was placed illegally on the Isolda then it raises the legal question as to whether or not what flows thereafter is tainted by the presence of that illegal act. If there was no warrant then the information was not recoverable. Now my Lord we perhaps should not get too drawn into technology but we should look at perhaps and it would be in my submission no different from an illegal phone tap, if there was an illegal phone tap, the information derived therefrom and the information derived from that down the line could be tainted by that initial illegal act but I do say to my Lord and it is certainly a matter I would wish to explore with this and the subsequent witness, I have not the slightest doubt there was a bug placed on the Isolda."
"Mr. Findlay claimed that evidence would show that a tracking device had been placed on one of the vessels in Spain and that the silent phantom systems had been used to establish that vessel's identity and position through the tracking device. He claimed that the placing of such a device might well be illegal and that that illegality might taint any evidence in respect of the vessel's activities which flowed from it and for these reasons it was crucial to the defence of his client that that information he sought be disclosed. The Advocate Depute in reply contended that Mr. Findlay's proposed attack on the Crown case in both respects was based on unwarranted assumptions. Mr. Findlay had no basis for saying that other systems had been used to keep observation when the vessels met nor that there was any illegality which could further the argument he anticipated. In short and with some hesitation I agree with the Advocate Depute that Mr. Findlay has failed to demonstrate that at this stage the disclosure of the information he seeks is crucial to the defence and outweighs public interest in maintaining its confidentiality. I say and lay stress on the phrase 'at this stage' because it may be that as the evidence develops Mr. Findlay will be able to establish such a basis and I would reconsider matters then. In the meantime I sustain the Advocate Depute's objection to the line of evidence."
"Mr. Findlay maintained his objection on the basis that Mr. Green used the signal from the tracking device to locate the Isolda but on the basis that information from that device led to him being sent to the general area in which it was found. In that context it has to be noted from the evidence of Mr. Green that the area he was sent to search extended to some 6,000 and more square miles of sea and that it constituted what he called a choke point through which many vessels had to pass including those making a westerly passage around the United Kingdom from Spain. In all these circumstances it is my opinion that the authorities in this country were fully entitled to take into account in the fight against the illegal importation of large quantities of dangerous drugs any intelligence that they were able to gain including information from a tracking device which may have been placed on a vessel without lawful authority in order to give them an indication as to where such a vessel might be found. Indeed they would in my view have been derelict in their duty had they chosen to ignore such important information, nor do I consider that the evidence gained by the use of such information for this to be ignored by this court. Mr. Green was sent out to search for a vessel about which the authorities had suspicions. He found that vessel through perfectly lawful means and in my opinion his evidence as to the locating of the ship is admissible as is all the evidence that flows from it. I therefore repelled the objection."
"There was concealment and disposal of evidence to the grave prejudice of the appellant's right to a fair trial and, in consequence thereof, a miscarriage of justice occurred. Following the arrest of the yacht Isolda and the appellants, members of Her Majesty's Customs & Excise secretly removed an electronic tracking device or bug that had been illegally placed upon the Isolda. The existence and use to which the device had been put was purportedly concealed from the Advocate Depute until some time during the trial of the appellants. The appellants have been denied access to the device and in consequence access to records of readings and signals emitted from the device. The conduct of the Crown in the form of H.M. Customs & Excise in removing the device and concealing the fact of its existence and use denied the appellants the opportunity of demonstrating by reference to records and readings that would have been made of signals that emanated from the device that the Isolda and vessel Ocean Jubilee were not in such close proximity and for the length of time alleged by Crown witnesses so as to facilitate the alleged transfer of some 3 tons of cannabis resin."
"On 5 December 2000 there was a concession by the Lord Advocate through his depute in court that the annexation of the tracking device or bug to the Isolda and its use for the purpose of surveillance of the appellants living there was illegal and contrary to Article 8.1 of the European Convention on Human Rights. All of the evidence in relation to the appellants relative to the events of 29 July 1996 being predicated upon said illegal acts, the conviction proceeding thereon is a miscarriage of justice."
"60. It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6.1 requires, as indeed does English law, that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused.
61. However, as the applicants recognised, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6(1). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.
62. In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. Instead, the European Court's task is to ascertain whether the decision-making procedure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused."
"Irregularities require to be excused and infringements of the formalities of the law in relation to these matters are not likely to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed. In particular, the case may bring into play the discretionary principle of fairness to the accused which has been developed so fully in our law in relation to the admission in evidence of confession or admissions by a person suspected or charged with crime. That principle would obviously require consideration in any case in which the departure from the strict procedure had been adopted deliberately with a view to securing the admission of evidence obtained by an unfair trick. Again, there are many statutory offences in relation to which Parliament has prescribed in detail in the interests of fairness a special procedure to be followed in obtaining evidence; and in such cases (of which the Sale of Food and Drugs Acts provide one example) it is very easy to see why a departure from the strict rules has often been held to be fatal to the prosecution case. On the other hand, to take an extreme instance figured in argument, it would usually be wrong to exclude some highly incriminating production in a murder trial merely because it was found by a police officer in the course of a search authorised for a different purpose or before a proper warrant had been obtained".
"While Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law. The court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It has only to ascertain whether Mr. Schenk's trial as a whole was fair."
" At their trial the appellants were represented by experienced counsel and solicitors. Before the trial they had an opportunity to investigate the case. Indeed the Advocate Depute explained to us that in advance of the trial the Crown had given the defence representatives the opportunity to attend at the Procurator Fiscal's office in Aberdeen to examine documentary and other evidence. In particular defence precognition agents had had an opportunity to examine the tracking device in 1996. On 2 November 1996 virtually all the solicitors and counsel had gone to a meeting at the Procurator Fiscal's office where the case was discussed and information was provided. Defence counsel had been to the Isolda on 18 September, 15 October and 27 November 1996. In October 1996 an officer of Customs and Excise had gone to the Procurator Fiscal's office in Aberdeen for the purpose of showing defence counsel and solicitors most of the material which Customs and Excise had, but which was not to be produced for the trial. Not all of the defence teams took up this opportunity.
"At the hearing the principal submission was advanced by Dr. Sjöcrona on behalf of all the appellants since there was said to be no difference in their positions, at least so far as this matter was concerned. In addressing us Dr. Sjöcrona did not advert to the specific heads of the petition setting out the documents being sought and he did not seek to justify the individual calls for recovery. He approached the matter on a global basis. To a large extent we shall follow that approach in dealing with the application".
"There followed a procedural hearing on 24 January 2001. At that hearing the court was advised by counsel on behalf of the appellants that its opinion bore to be based on a miss-statement of the submissions that had been made. It was then and is now submitted that there were manifest, material and significant differences between the submissions made and the account of them as set out in said opinion of the court. Neither the court nor the Advocate Depute representing the Crown disputed the challenge to the accuracy of the opinion. Neither did the court or the Advocate Depute dispute the submissions made by counsel for the appellants as to the materiality of the discrepancies. A motion for a hearing, founded on Scots and E.C.H.R. case law and jurisprudence was made by counsel for the appellants to consider discussion that the opinion be set aside by the court exercising its nobile officium. This was opposed as incompetent by the Lord Advocate per his depute with reference to section 124 of the Criminal Procedure (Scotland) Act 1995. The court upheld the submission of the Lord Advocate and refused the appellants the hearing so moved for as being incompetent in terms of section 124 of the Criminal Procedure (Scotland) Act 1995. There being no other court of appeal in Scotland and the interlocutor of 18 January 2001 being final and not subject to review the appellant is not able to have all of his grounds of appeal and matters concerning the case considered as a whole. In consequence thereof a miscarriage of justice has occurred."
Ground of Appeal 5
"I am an authorised enforcement officer under the United Nations Convention against illicit drugs trafficking in narcotic drugs. I am ordering you to stop and make ready for a boarding party. ..."
Thereafter the vessel Isolda had stopped. The witness then described how a boarding party had gone on board the Isolda and, sometime later, returned to the Searcher in company with a male person. A second male person was subsequently brought on board the Searcher from the Isolda. Thereafter a question was asked seeking details of the identity of the person or persons who had been brought from the Isolda, at which point objection was taken to the line of evidence. The nature of the objection and the subsequent submissions made in relation to it appear from page 8 in the transcript of proceedings for 17 December 1996 and in the transcript of proceedings for 18 December 1996. In summary, the argument at the trial was that the Crown were unable to prove by admissible evidence that the Isolda was in fact a British registered vessel or that it was in international waters at the time of boarding. On 19 December 1996 the objection was repelled by the trial judge and the evidence of Geoffrey Keith Pitts was resumed. The reasons given by the trial judge for his decision are to be found in the first transcript of proceedings of 19 December 1996. The evidence on which the Crown relied to show that the Isolda was a British registered ship is set out below. The resumed evidence of Mr. Pitts is to be found in the second transcript of proceedings of that date.
"The powers conferred on an enforcement officer by Schedule 3 to this Act shall be exerciseable in relation to any ship to which section 18 or 19 above applies for the purpose of detecting and the taking of appropriate action in respect of the offences mentioned in those sections".
The particular powers which appeared to be relevant to the circumstances of this case were to be found in paragraphs 2(1) and 4 of Schedule 3.
"An enforcement officer may stop the ship, board it and, if he thinks it necessary in the exercise of his functions, require it to be taken to a port in the United Kingdom and detain it there."
Paragraph 4 provides:
"If an enforcement officer has reasonable grounds to suspect that an offence mentioned in section 18 or 19 of this Act has been committed on a ship to which that section applies, he may
(a) arrest without warrant any one whom he has reasonable grounds for
suspecting to be guilty of the offence; and
(b) seize and detain anything found on the ship which appears to him to be
evidence of the offence."
Section 19 of the Act of 1990 provides as follows:
"(1) This section applies to a British ship, a ship registered in a state other than the United Kingdom which is a party to the Vienna Convention (a 'Convention State') and a ship not registered in any country or territory.
(2) A person is guilty of an offence if on a ship to which this section applies, wherever it may be, he-
(a) has a controlled drug in his possession; or
(b) is in any way knowingly concerned in the carrying or concealing of a
controlled drug on the ship,
knowing or having reasonable grounds to suspect that the drug is intended to be imported or has been exported contrary to section 3(1) of the Misuse of Drugs Act 1971 or the law of any state other than the United Kingdom."
It was submitted that the effect of the foregoing provisions was that, before an enforcement officer could act in terms of paragraph 4 of Schedule 3 to the Act of 1990, he had to have pre-existing knowledge of reasonable grounds to suspect that an offence mentioned in sections 18 or 19 of the Act had been committed on a ship to which that section applied. Because of the way in which section 19(2) of the Act was worded, that pre-existing knowledge of reasonable grounds to suspect extended to the issue of whether the ship concerned was one to which section 19 applied.
"An enforcement officer shall not be liable in any civil or criminal proceedings for anything done in the purported performance of his functions under this Schedule if the Court is satisfied that the act was done in good faith and that there were reasonable grounds for doing it."
This provision would cover the making of a genuine mistake. However, the primary submission was that the enforcement officers did consider their powers and acted with reference to them. Accordingly, the case of Leckie v. Miln could be distinguished. Mr. Pitts had in fact made reference to the Act of 1990 in his evidence, as the basis for the action taken. At no stage, either before or after the discussion of the objection, was he questioned further about that matter. It could properly be implied from the evidence which he gave that he had had the necessary reasonable grounds for suspicion. The final position adopted by the Crown was that it was accepted that section 19(2) of the Act had the effect of requiring that the "reasonable grounds to suspect" embraced not only the commission of an offence but the qualification of the ship. On the assumption that the position of the Crown on the whole matter was unsound, any irregularity in the procedure was excusable on the principle of Lawrie v. Muir 1950 J.C. 19. The question of whether any given irregularity ought or ought not to be excused depended, in each case, upon the nature of the irregularity and the circumstances in which it was committed. In the present case, if it were to be held that the enforcement officers did not have the necessary reasonable grounds to suspect in relation to the categorisation of the ship, the consequent irregularity ought to be excused, because it was not disputed that in fact the ship was a British ship. Accordingly, the irregularity was of a highly technical nature.
Ground of Appeal 2
"We are going to look at site objects but it is also a site visit. We are just going there to see, we are not going to hear anything told to us that will be part of the case. Do you follow what I mean? So it is not an investigatory exercise, it is just an exercise in having a look, so that the evidence as yet to come will be more understandable to you. I have made arrangements, as the Advocate depute said, that you will be conducted on your visit by Mr. Todd who is the court macer and he is an officer of the court and he will direct you as to what you can see and what you can't see and that is under my direction. You are perfectly free in the course of the visit to talk amongst yourselves and just pause for a moment because it is quite important. You can ask yourselves what is this we are looking at, what is it we are seeing and it really comes back to what I said at the outset of the case, you are perfectly free to talk about the case amongst yourselves. What is important is that there is no conversation between you and anyone else who is on this visit and I am really not talking to you at the moment - or - I am talking to everyone else in the court on this visit, that there has to be no conversation about what you see, about what you might overhear. Feel free to talk amongst yourselves, what you are looking at and what it amounts to and so on and that is your function. Mr. Todd can overhear it, of course, that is no problem but do not be party to any conversation that takes place amongst anyone else."
Ground of Appeal 6
"Now if you do take that view, if you take the view that the evidence shows that the cannabis came on the Isolda and met up with the Ocean Jubilee, what does that mean? In the first place it has implications for all of those on the Isolda, because in practical terms and in reality, if you come to that view you really are coming to the view that all of those on the Isolda are guilty because there is no possible way that such a cargo could be on the Isolda without them all knowing, it is far too bulky, it is far too big. Nobody on the Isolda has ever suggested that they knew the cargo was there, but that it was something else. Such a cargo could never be stored, or slipped in unnoticed onto the Isolda. All the evidence surrounding the Isolda, the bulk of the cargo that is on it the deception about the route, the telephone calls backwards and forwards to Alf and to the McLeans, taking that together demonstrates to you that all of them knew that the cargo was there and knew what it was.
That is before you even begin to ask yourselves about the smell of it. You saw for yourselves the cargo and it was all wrapped in large polythene bags and at the time, I don't known how close to it individually you were, but it will not have escaped your attention that the cannabis has a smell and 3 tons on board a yacht of the size of the Isolda will not be ignored. So we have looked then at what evidence there is and it tends to show us that the Isolda brought the cannabis."
"Each played a part in getting the vessel from Cadiz to the meeting point, each must, according to the Crown, have known of the presence of the cargo on board, it was far too big, far too bulky and perhaps even far too smelly for them not to have known what was, and I use this expression again, what was afoot and there was no suggestion from any of the crew of the Isolda that any other type of cargo was being transported. That then is the proposition of fact proposed by the Advocate depute."
It will be seen from the quotation of the speech of the Advocate depute and the passage just quoted from the judge's charge that reliance was placed by the Crown on a number of factors, including the size of the packages which constituted the cargo, their bulk and their smell. It is obvious from what was said by the Advocate depute that, in making the point which he did concerning the smell of cannabis resin, he appeared to be relying exclusively upon what the jurors might have perceived for themselves when inspecting the cannabis resin on the occasion of their visit to Rosyth. For the purposes of the present consideration, we are prepared to accept that argument was not legitimate, since the jury had been told, prior to their visit, that the visit was not intended to be of an investigatory nature in which evidence was gathered, but rather to enable the jury to better understand the evidence which they heard in the court. Against this background, one might have expected the trial judge to make that point in his remarks to the jury concerning the Crown's contentions although the judge is not required to deal with every argument on the facts. No such comment was made. It is to be observed, however, that what the judge said involved the phrase "perhaps even far too smelly". That choice of language indicates to our mind that no particular emphasis was placed by the trial judge on the consideration of smell and confirm that he was not adopting, or indicating to the jury that they should adopt, the Crown argument on this point. The other factors relied upon by the Crown, namely the size and bulk of the cargo were quite clearly the subject of evidence and supported the point being made by the Crown. In all of these circumstances, we consider that the passage complained of cannot be regarded as a material misdirection of fact.
"Mr. Hoekstra asserted that he was only made aware of any ulterior motive for the voyage by Jan Van Rijs late in the cruise and that is of course the plan, as he spoke, to uplift some tobacco at sea and take it to Denmark. According to him he immediately expressed disapproval of such a venture and maintained an attitude of wishing nothing to do with it. He spoke, however, of the meeting with another vessel at sea and the conversation between Jan Van Rijs and someone on board the other boat. No cargo had been carried on the Isolda and nothing was transferred to the other boat."
In our view, this passage clearly puts before the jury the position of the first named appellant in relation to the part played by tobacco in the purpose of the voyage. Between pages 9 and 11 of that particular transcript, the trial judge deals with the position taken up on behalf of the second appellant. Once again, we consider that this passage adequately summarises the contentions made on his behalf; it should of course be borne in mind that he did not give evidence. Between pages 11 and 12 of the same transcript, the trial judge deals with the position of the third appellant, who did give evidence. At page 12 the point is made that this appellant also had explained that he thought that a certain conversation which he had overheard was related to the taking of some tobacco into Denmark, a proposition which he was against. Finally, the position of the fourth appellant was dealt with by the trial judge at pages 12 to 13 of the same transcript. This appellant had not given evidence. We are not persuaded that the trial judge's treatment of this appellant was in any way inadequate. On the whole matter, we do not consider that this particular submission that the trial judge failed adequately to put the defence case before the jury is soundly based.
Ground of Appeal 7
"Ladies and gentlemen a few further matters before I leave the evidence in Charge 1. Firstly, you have heard evidence and indeed on occasions tape recordings of interviews between the Customs & Excise and the accused. All of these interviews were conducted under caution, that is to say that the Officers who were conducting the interview explained at the outset to each of the accused that they did not require to answer any questions, they did not require to answer any questions, but that any questions they did answer, any explanations they did give, would be tape recorded and perhaps noted and be available to be given in evidence against them. That is to say they were given their rights under the law as suspects to remain silent and not to incriminate themselves by what they said.
Now despite that caution in the course of these interviews some of the accused, at least, made certain statements about their involvement in the events of May to July 1996. I have already explained to you the legal significance of such statements. However, since what was said to the Customs & Excise Officers by some, at least, of the accused was relied on by the Advocate Depute and to some extent by other defence counsel, I should of course point out to you that in considering the credibility of any of the evidence given to you in court, by those accused, you are perfectly entitled to take into account the fact that an accused said something different when interviewed, or chose not to mention certain allegations, the truth of which he now maintains. Similarly, I explained to you when the transcripts were read out, the purpose of the judicial examination before the sheriff. That is a judicial procedure which may be invoked soon after an arrest and which gives an accused, at such an early stage, the opportunity to state any defence which he may have to the charge, or charges against him. If he fails, or declines, to do so ladies and gentlemen and then advances such a defence at the trial some time later, you may take that into account in assessing his credibility. In other words you are entitled to take the view that since he did not advance the defence, when given the opportunity to do so, so shortly after the event, but advances the defence now, he may have concocted it in the time which he had to do so. So much for charge 1."
"I should of course point out to you that in considering the credibility of any of the evidence given to you in court, by those accused, you are perfectly entitled to take into account the fact that an accused said something different when interviewed, or chose not to mention certain allegations, the truth of which he now maintains".
We are clearly of the opinion that the words which we have emphasised were quite inappropriate in the context. Section 24(8) of the Criminal Law (Consolidation) (Scotland) Act 1995 provides that:
"A person detained under subsection (1) above shall be under no obligation to answer any question other than to give his name and address, and an officer shall so inform him both on so detaining him and on arrival at the Customs Office or other premises."
Thus the law confers a right upon a detained person under section 24 to decline to answer any question "other than to give his name and address". In this respect, the position of such a person is the same as that of a person detained under section 14 of the Criminal Procedure (Scotland) Act 1995. Furthermore, in the legislation pertaining to detention, there is no counterpart to the provisions of section 36(8) of the Criminal Procedure (Scotland) Act 1995, which applies to judicial examination. In these circumstances, we conclude that it was wrong for the trial judge to use the words "or chose not to mention certain allegations", in the passage quoted. It appears to us that the use of those words would have indicated to the jury that a declinature on the part of an accused person interviewed by Customs & Excise officers to answer questions put to him by them would create a basis upon which the jury would be entitled to reach an adverse conclusion as to the credibility of such an accused person. Such a direction is plainly in conflict with the provisions of section 24(8) of the Criminal Law (Consolidation)(Scotland) Act 1995 and, indeed, with what the trial judge himself had correctly said in the first paragraph of the passage in the charge which we quoted. In these circumstances we conclude that the use of the words concerned did involve a misdirection on his part.
"However, since what was said to the Customs & Excise Officers by some, at least, of the accused was relied on by the Advocate Depute and to some extent by other defence counsel, I should of course point out to you that in considering the credibility of any of the evidence given to you in court, by those accused, you are perfectly entitled to take into account"
the matters, including the objectionable words, with which we have already dealt. Thus the direction which we consider was justifiably criticised was given in relation to the consideration by the jury of the credibility of evidence given in court by certain accused only. It appears to us that the accused concerned were those who had given evidence and whose statements to Customs & Excise officers were relied upon by the Advocate depute or defence counsel. Of the four appellants, only the first and third named appellants gave evidence. Accordingly the trial judge's misdirection could not apply to the second and fourth named appellants, who did not. The next question, then, is whether anything said in the course of interviews by the first and third named appellants was relied upon by counsel. In the course of argument before us, it was not suggested that any reliance had been placed upon anything said in the course of his interview by the third named appellant, which is not surprising, having regard to the fact that, in the course of his interview he simply declined to answer questions other than to identify himself. So far as the first named appellant is concerned, there was very limited reliance upon what he had said in the course of his interview with Customs & Excise officers in respect that he had agreed that he had had authority to sail the vessel Isolda. However, that matter was not at all in controversy at the trial and, indeed, it was the subject of evidence by the first named appellant himself. It appears to us that, in the light of these circumstances, the direction under consideration was formulated as being applicable to the position of accused persons other than the present appellants. Examination of the transcripts of the speech of the Advocate depute of 11 and 12 February 1997 confirms us in this view. At p. 80 et. seq. of the transcript of 11 February, 1997, the Advocate depute discussed discrepancies between the evidence of Gary John Hunter and the content of his interview with Customs & Excise officers extensively. A similar exercise was undertaken in relation to Kenneth Corrigan, as appears from pp. 100 to 107 of the same transcript; in relation to Roderick McLean, Junior, as appears from p. 6 et. seq. of the transcript of 12 February, 1997; and in relation to Brian Silverman, as appears from p. 38 et. seq. of the same transcript. The Crown did not rely on anything said by the first and third named appellants, except to the limited extent indicated above, nor on any failure on their part to give any statement or explanation. In all these circumstances, we have come to the conclusion that no miscarriage of justice in relation to the present appellants has occurred as a consequence of the misdirection which we consider did occur in the manner which we have explained.
"In other words you are entitled to take the view that since he did not advance the defence, when given the opportunity to do so, so shortly after the event, but advances the defence now, he may have concocted it in the time which he had to do so. So much for charge 1."
It is quite evident from this passage and its context that the language concerned, which has been criticised, is applicable only to an accused person who gave evidence and the credibility of whose evidence was therefore in issue. Thus, whatever may be said about this particular part of the charge, it can possess no significance in relation to the second and fourth named appellants, who did not give evidence. The criticism advanced in relation to this passage was concerned rather with what the trial judge had not said than with what he had said. What he did say was that the jury were entitled to take the view that, if a defence had not been advanced at judicial examination but was subsequently advanced in evidence, the accused "may have concocted it in the time which he had to do so." The criticism was that the trial judge made no mention of other possible explanations for silence in regard to that particular defence at judicial examination, such as, for example, the reception of legal advice to maintain silence.
Ground of appeal 8
"Said conduct raised a suspicion in the mind of the appellants, who are Dutch nationals, as it would have in the mind of any ordinary, informed observer that the proceedings were manifestly unfair and that justice was not impartial and that a miscarriage of justice occurred".
It is also stated that the Lord Advocate's use of Mr. Bell as his depute was contrary to natural justice and to the Guide to the Professional Conduct of Advocates. His actings in his capacity as the Lord Advocate's depute were the actings of the Lord Advocate and were contrary to natural justice and to the Guide. The ground further states:
"In particular, it raised a reasonable perception in the minds of the appellants that confidential information provided to the said senior counsel in the course of their defence would be used to advance the position of the Crown and against the interests of the appellants"
"In the above circumstances the Lord Advocate's actings and the actings of said senior counsel for and on behalf of the Lord Advocate had violated the appellant's right to a fair hearing contrary to Article 6.1 of the European Convention on Human Rights (ECHR). There has not been a fair and impartial hearing. Justice has not been done and seen to be done. Accordingly there has been a miscarriage of justice".
"1. Directed the solicitors instructed by each of the four appellants forthwith to submit to this court, with copies being sent to Crown Office, a written explanation for the delay in presenting grounds of appeal;
2. Directed that any further proposed grounds of appeal must be intimated in writing to Justiciary Office, Edinburgh and copied to Crown Office within 21 days of this date;
3. Indicated that at the next procedural hearing, the court will consider -
(a) whether and to what extent the proposed grounds of appeal tendered by
each of the appellants at the bar of court today are to be allowed to be received;
(b) the order of presentation to the court of any such grounds of appeal;
(c) the amount of time required by each of the appellants to present such
(d) any arguments by the appellants as to whether written submissions on
the grounds of appeal to be advanced are to be lodged prior to the hearing of the appeal on those grounds;
(e) further if necessary, the question of legal representation by counsel on
behalf of the first and second named appellants, and whether any action need be taken by this court to ensure such representation".
"Thus, a criminal charge is not really 'determined' as long as the verdict of acquittal or conviction has not become final. Criminal proceedings form an entity and must, in the ordinary way, terminate in an enforceable decision".
One obvious example of the application of this proposition in practice is the way in which an appeal court can take action to avoid what otherwise would have been a breach of Article 6.
"Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6(1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect".
In determining the presence or absence of impartiality the courts in Scotland have applied the test of a reasonable suspicion or apprehension of bias (as in Bradford v. McLeod), whereas in England the courts have applied the test of a real likelihood, in the sense of a real possibility, of bias on the part of the tribunal (R. v. Gough  AC 646). Lord Bingham of Cornhill observed in Lockabail Limited v. Bayfield Properties  1 All ER 65 at page 74 that in the overwhelming majority of cases the application of the two tests would lead to the same outcome. He added:
"Provided that the court, personifying the reasonable man, takes an approach which is based on broad commonsense, without inappropriate reliance on special knowledge, the minutiae of court procedure or other matters outside the ken of the ordinary, reasonably well-informed member of the public, there should be no risk that the courts will not ensure both that justice is done and that it is perceived by the public to be done".
"The court recalls that under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent. In this context importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice".
Consideration of the appearances once more brings the court to consider what a reasonable well-informed member of the public would have thought of what happened. As in cases where the impartiality of a judge is in question, the standpoint of the accused is important but is not decisive. What is decisive is whether there is objective justification for the complaint of lack of fairness (Hauschildt v. Denmark (1989) 12 EHRR 266 at para. 48; Nortier v. The Netherlands (1993) 17 E.H.R.R. 273 at para. 33).
"There has been inordinate and unconscionable delay in the proceedings that has denied the appellants' their right to a fair hearing before an impartial tribunal within a reasonable time contrary to Article 6.1 of the European Convention on Human Rights. The grounds of appeal having been lodged and the subsequent delays not being attributable to conduct of the appellants but to the failure to ensure a hearing before a properly constituted and impartial quorum of the High Court of Justiciary within a reasonable time a miscarriage of justice has occurred."