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Cite as: 2000 GWD 40-1487, [2003] 1 AC 641, [2001] 2 WLR 779, 2001 SC (PC) 1, 9 BHRC 641, 2001 SLT 37, 2000 SCCR 1044, [2001] UKHRR 124, [2000] UKHL D1, [2003] AC 641

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    Montgomery & Ors v Her Majesty's Advocate and The Advocate General for Scotland [2000] UKHL D1 (19 October 2000)

    DRA Nos. 1 and 2 of 2000

    David Shields Montgomery Appellant
    v.
    (1) Her Majesty's Advocate and
    (2) The Advocate General for Scotland Respondents

    and

    Andrew Alexander Marshall Coulter Appellant
    v.
    (1) Her Majesty's Advocate and
    (2) The Advocate General for Scotland Respondents

    FROM

    THE HIGH COURT OF JUSTICIARY
    ---------------

    REASONS FOR DECISION OF THE LORDS OF THE
    THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL,
    of the 20th July 2000, Delivered the 19th October 2000
    ------------------

    Present at the hearing:-

    Lord Slynn of Hadley
    Lord Nicholls of Birkenhead
    Lord Hoffmann
    Lord Hope of Craighead
    Lord Clyde

    ------------------

    Lord Slynn of Hadley

    The High Court of Justiciary was asked to say that there cannot now be a fair trial of the two appellants for the murder of Surjit Singh Chhokar on 4th November 1998 because of the publicity which the alleged facts and the case have already received. It is said that to go ahead would be a breach of the appellants' right under article 6(1) of the European Convention of Human Rights and Fundamental Freedoms. The High Court of Justiciary refused that application.

    The facts are set out in the opinion of my noble and learned friend Lord Hope of Craighead which I have had the advantage of reading in draft.

    The question was treated before the High Court of Justiciary as a devolution issue within the meaning of paragraph 1 of Schedule 6 to the Scotland Act 1998 and the provisions of Chapter 40 of the Act of Adjournal (Criminal Procedure Rules) 1996 [S.I. 1996 No. 513 (s.47)] and the Act of Adjournal (Devolution Issues Rules) 1999 [S.I. 1999 No. 1346 (s.101)].

    That Court gave leave to appeal to the Judicial Committee of the Privy Council on the basis that it was a devolution issue and indeed it is only on that basis that Your Lordships have jurisdiction to deal with the matter. The question in the appeal is said in the statement of facts and issues to be this:-

    "Whether the acts of the Lord Advocate in the proceedings and in indicting the appellant on 2 July 1999, and in continuing with proceeding against him, are ultra vires of his powers under section 57(2) of the Scotland Act 1998, being incompatible with the rights to a fair trial accorded him under article 6 of the Convention."

    The answer to that question essentially depends on whether in all the circumstances a fair trial is possible.

    All parties before the Board prepared to argue the case on the assumption that it was a devolution issue and indeed all argued that it was. Questions were, however, raised at the hearing as to whether it was in truth a devolution issue. If it had been necessary finally to decide this issue it would have been no less necessary to have the matter argued in full with an amicus to assist with the arguments contrary to the assumption of the parties and to the opinion of the High Court of Justiciary.

    To have adjourned the matter to decide the issue would have resulted in the trial being deferred perhaps for a very substantial period.

    Since the matter has not been argued I prefer to express no concluded view on the question of principle or on the difficult issues which arise in connection with it. There is obviously great force in the considerations put forward by my noble and learned friend Lord Hope of Craighead that this is a devolution issue however strong the counter arguments as to the scope of article 6. I am not at the end of the day satisfied that the question before the Committee is not a devolution issue so that the Board is driven to refuse jurisdiction. I am therefore content to answer the question in this case on the basis of the leave given that this was a devolution issue. It is therefore appropriate to answer the question whether, contrary to the view of the High Court of Justiciary it should now be said that the risk that there cannot be a fair trial is a serious one so that the trial should not go ahead.

    Despite the forceful arguments on behalf of the appellants and the responsibilities imposed on the trial judge in the light of what has happened I am in agreement with the conclusion of Lord Hope of Craighead in Part B of his judgment and I too would dismiss the appeal.

    _________________________

    Lord Nicholls of Birkenhead

    I agree these appeals should be dismissed, for the reasons given by Lord Hope of Craighead in part B of his judgment. I add some observations only on the "devolution issue" point which has given rise to a measure of disagreement between your Lordships. Although raised at the hearing of the appeals, the issue was not argued. Nor, as matters have turned out, is the resolution of this point essential to the outcome of the appeals. So it is appropriate to explain my doubts rather than express a concluded, or even a provisional, view.

    The appellants founded their claim on statements made by the media following the acquittal of Ronnie Coulter in March 1999. Their contention is that a fair trial is not now possible. In all courts the parties have proceeded on the common footing that if a fair trial is still possible, the appellants' claim against the Lord Advocate must fail, but if a fair trial is no longer possible, the claim against the Lord Advocate must succeed. The devolution issue point raises the question whether the latter limb is necessarily correct. The point is one of interpretation of the Scotland Act 1998, read in conjunction with article 6(1) of the Convention and the powers and duties of the Lord Advocate in connection with criminal prosecutions.

    The initiation and continuation of this prosecution were acts done by the Lord Advocate as a member of the Scottish Executive. So much is clear. Moreover, I have no difficulty in envisaging there might be circumstances where the initiation or continuation of a prosecution by the Lord Advocate, or the manner in which he conducted a prosecution, would amount to an act of his incompatible with article 6 of the Convention. Where that is so, the act would be ultra vires. It would be, in law, beyond his powers: section 57(2) of the Scotland Act.

    Where I have more difficulty is in seeing that, in the present type of case, if a fair trial is not possible the Lord Advocate is to be regarded as having acted incompatibly with article 6 in initiating and continuing the prosecution. A claim by the accused that media publicity has foreclosed a fair trial seems to be, on its face, an example par excellence of a claim calling for adjudication by the court. If the prosecutor, in the person of the Lord Advocate, honestly considers a fair trial is possible, he ought not to be at risk of being held to have acted beyond his powers if he initiates a prosecution and then unsuccessfully resists a claim by the accused that media publicity has rendered a fair trial impossible. One might expect that, although the Lord Advocate has power to decline to start a prosecution, and power to discontinue a prosecution he has started, the fundamental protection for the accused in this type of case lies in the court, not on the shoulders of the prosecution. If the court considers a fair trial is not possible, the normal procedure in Scotland, as I understand it, is that the proceedings will be stopped in the trial court at a preliminary diet. But that is not to say that the Lord Advocate acted improperly in bringing the prosecution, which seems to be the conclusion inherent in the view that, because a fair trial is not possible, the Lord Advocate himself acted beyond his powers and incompatibly with the Convention. There may be a non sequitur here. The position has some similarity to the tendering of inadmissible evidence by the prosecution, a point considered by Lord Penrose in H.M. Advocate v. Robb 2000 J.C. 127.

    As already noted, in the events which have happened the point does not matter in the present case. In particular, the point does not raise a jurisdictional issue in the present case. The appellants pleaded their case in terms which raised a devolution issue within the meaning of paragraph 1 of Schedule 6 to the Scotland Act. The courts, including this Board on appeal from the High Court of Justiciary, have jurisdiction to decide this issue. One way the pleaded case could be decided, if the facts justified such a conclusion, was for the court to dismiss the claim on the footing that a fair trial was still possible. That is what has happened. The decision that a fair trial is still possible destroys one of the essential elements of the pleaded case. This is a proper decision, within the scope of the court's jurisdiction to decide devolution issues.

    Furthermore, the point may never need to be decided. In future the point may be bereft of practical importance, except perhaps in the context of rights of appeal, now that section 6 of the Human Rights Act 1998 has been brought into force and the courts are obliged to give effect to Convention rights, including article 6.

    ____________________

    Lord Hoffmann

    I have had the advantage of reading in draft the judgment of my noble and learned friend Lord Hope of Craighead and for the reasons which he gives in Part B, I agreed that these appeals should be dismissed. I also agree, or at any rate do not disagree, with a great deal of what he says in Part A. For the most part it deals with matters of Scottish criminal procedure of which I have no experience and on which I would hesitate long before expressing any opinion. But, as he foreshadows, I do have considerable doubt as to whether these appeals raise a devolution issue within the meaning of section 57(2) of the Scotland Act 1998. My reasons for holding this view can be quite shortly stated.

    The issue as pleaded is whether the acts of the Lord Advocate in indicting the appellants and continuing the proceedings against them are ultra vires his powers under section 57(2), which prohibits acts inconsistent with rights conferred by the Convention. The issue therefore divides into two questions: first, are the matters of which complaint is made acts of the Lord Advocate and secondly, are those acts incompatible with a Convention right? The first question is a matter of Scottish constitutional and procedural law. The Scottish courts have said on a number of occasions that the commencement and maintenance of the prosecution is an act of the Lord Advocate and I see no reason to disagree. The second question, however, involves identifying the Convention right which is said to be infringed and deciding, as a matter of construction, what kind of acts it forbids. There is nothing particularly Scottish about this second question. It turns upon the meaning and effect of the Convention as part of United Kingdom law, which must be the same in all parts of the country.

    In these appeals it is claimed that the acts of the Lord Advocate would infringe the right of the appellants under article 6.1 to a fair trial. The relevant part of the Article provides that "in the determination...of any criminal charge against him, everyone is entitled to a fair and public hearing." There is no dispute that, in principle, the appellants are entitled to a hearing before a tribunal which will not have been unfairly prejudiced by pre-trial publicity. It is because the appellants have failed to establish the likelihood of this state of affairs that I agree with my noble and learned friend that the appeals must in any case be dismissed. But even if the appellants had discharged this burden, it would not follow that a devolution issue had arisen. It arises only if the prospective infringement of their rights is by an act of the Lord Advocate. It is therefore necessary to identify the persons upon whom article 6.1 imposes a correlative obligation. Whom does it oblige to act in such a way as to ensure a fair and public hearing? If, as a matter of the construction of the Article, no obligation is imposed upon the Lord Advocate, then no complaint of an infringement of this particular Convention right can give rise to a devolution issue.

    In the jurisprudence of the European Court of Human Rights, the question of identifying the class of persons upon whom a Convention right imposes a correlative obligation has usually arisen in connection with the distinction between private individuals and the State. Generally speaking, the Convention does not impose obligations upon individuals in their relations with each other. So I think it would be difficult to argue that the right to a fair trial under article 6.1 had been infringed by the act of a private individual, such as a witness who did not turn up to give evidence. The State, on the other hand, may or may not be under an obligation to provide a remedy in such a situation. Thus the European Court, administering the Convention as an international treaty, adjudicates upon the obligations which it imposes upon the member States as States. It is not however concerned to distinguish, from the point of view of the imposition of the obligation, between the various organs of State. The question is whether a Convention right has been infringed by the State and it does not matter whether this is attributable to the acts or omissions of the executive, legislative or judicial branches of government.

    The Scotland Act 1998, however, raises a question on the construction of the Convention as part of United Kingdom domestic law which does not arise in its international form. It requires a decision on whether an infringement of a Convention right is attributable to a particular organ of government, in this case the Lord Advocate. Although this is not a question which can arise before the European Court, it is nevertheless a question of construction of the Convention.

    The short question, therefore, is whether the right to have a criminal charge "determined" at a fair and public hearing imposes a correlative obligation upon a prosecuting authority such as the Lord Advocate. As presently advised, I think that the short answer is that criminal charges are determined by courts and not by prosecutors. I do not express a concluded view because, in view of the opinion which I share with my noble and learned friend Lord Hope of Craighead upon the other issue in the case, it is not necessary for decision. And the point has not been argued because counsel who appeared before the Board were united in their submission that this was indeed a devolution issue. But I must say with respect that I do not think that any of them had addressed their minds to what seems to me the relevant question. It is therefore something which may need to be considered upon another occasion.

    I accept that the Lord Advocate is "master of the instance" (dominus litis) and that his powers may be greater than those of any prosecutor in English law. But what he clearly does not have is power to determine the charge against the accused. He may, for example, tender inadmissible evidence. But the decision as to whether to admit that evidence as part of the material for determining the charge against the accused is a decision of the court. If the reception of the evidence makes the trial unfair, it is the court which is responsible. Of course events before the trial may create the conditions for an unfair determination of the charge. For example, an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of article 6.1 lies not in the use of torture (which is, separately, a breach of article 3) but in the reception of the evidence by the court for the purposes of determining the charge. If the evidence had been rejected, there would still have been a breach of article 3 but no breach of article 6.1.

    The acts of the Lord Advocate in bringing and maintaining the prosecution, tendering evidence and so forth, are likewise in my opinion capable of creating the conditions for an unfair determination of the charge but they cannot in themselves cause such an event and therefore infringe the provisions of article 6.1. I make it clear that I am confining myself to the provision of article 6.1 relied upon in this case. Article 6 confers upon the accused a number of rights additional to the right to a fair trial and some of these may be capable of being infringed by the prosecuting authority. If so, the question of whether acts of the Lord Advocate are inconsistent with such rights will raise a devolution issue. But my present view is that this cannot be said of the right to a fair trial.

    I do not think that anything I have said is inconsistent with the use of a preliminary diet, in accordance with the Scottish procedure, to determine a devolution issue. As I have said, a devolution issue may well arise in advance of or even possibly in the course of a criminal trial under some other provision of the Convention. Nor do I exclude the possibility that a court may give effect to its obligation under article 6.1 by entertaining a plea in bar, at a preliminary diet, that the continuation of the proceedings would be oppressive because a fair trial would be impossible. In such a case, the court hearing the preliminary diet is taking steps to prevent the trial court from acting in breach of article 6.1 But because in either case it is the court which is concerned, the proceedings raise no devolution issue.

    It remains to address some of the points which were raised in argument or are mentioned in the judgment of my noble and learned friend. The Advocate General of Scotland said that as far as she was concerned, the appellants had pleaded their case as a devolution issue. They had alleged that the Lord Advocate was acting inconsistently with their rights. But this does not seem to me to be enough. The allegations of a breach of article 6.1 by the Lord Advocate are in my opinion, irrelevant, or (in terminology with which I am more familiar) demurrable. They do not, even if true, amount in law to a breach of the Article by the Lord Advocate. My noble and learned friend says that support for the proposition that the right of the accused to a fair trial is a responsibility of the Lord Advocate can be found in the Scotland Act itself. I can find no such provision, apart from the fact that it contemplates that a devolution issue may arise in criminal proceedings. But, as I have pointed out, this is explicable on the basis that other provisions of the Convention may well give rise such issues.

    Finally, my noble and learned friend says that the view which he takes is within the margin of appreciation which the Strasbourg Court gives to the domestic legal systems of the contracting states. The doctrine of a "margin of appreciation" exists to enable the concepts in the Convention to be given somewhat different content in the various contracting states, according to their respective histories and cultures. But the present issue is not one which raises the question of the content which should be given to a Convention concept. It would not come before the Strasbourg Court at all. It is a purely United Kingdom question, brought into existence by the specific provisions for incorporating provisions of the Convention into the domestic laws of those parts of the United Kingdom having legislatures with devolved powers. As such, it involves simply the construction of United Kingdom legislation. I would be very reluctant, without further argument, to accept that the concept of a margin of appreciation should be employed to enable the same provision of the Convention to be given different meanings according to whether it has been incorporated into the law of one part of the United Kingdom rather than another.

    _____________________

    Lord Hope of Craighead

    This is an appeal under paragraph 13(a) of Schedule 6 to the Scotland Act 1998, with leave of the High Court of Justiciary, against a determination of a devolution issue by that court. It concerns the effects of pre-trial publicity on the appellants' right to a fair trial under article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). The issue in the appeal is described in the Statement of Facts and Issues in these terms:-

    "Whether the acts of the Lord Advocate in the proceedings and in indicting the appellant on 2 July 1999, and in continuing with proceedings against him, are ultra vires of his powers under section 57(2) of the Scotland Act 1998, being incompatible with the rights to a fair trial accorded him under Article 6 of the Convention."

    Background

    On 4th November 1998 Surjit Singh Chhokar was involved in an incident in a street not far from where he was living in Wishaw as a result of which he received fatal injuries. Shortly afterwards the appellants and Ronnie Coulter appeared on petition under section 34 of the Criminal Procedure (Scotland) Act 1995 charged with his murder. The appellants were committed for further examination. On 13th November 1999 they were released from custody. Ronnie Coulter also was committed for further examination, but on 17th November 1999 he was fully committed and was ordered to be held in custody until liberated in due course of law. The Crown then proceeded to indict Ronnie Coulter on the charge of murder.

    Prior to the trial Ronnie Coulter lodged a special defence of incrimination under section 78 of the 1995 Act in which he named the appellants as the perpetrators. On 9th March 1999 he was convicted of assaulting Surjit Singh Chhokar but was acquitted of his murder. The Crown did not move for sentence as he had already spent three and a half months in custody. After the verdict was returned the trial judge, Lord McCluskey, addressed remarks to the jury in which he criticised the Crown for not having brought the appellants to trial on the same indictment. As no order had been sought under section 4 of the Contempt of Court Act 1981 at any stage in these proceedings, his remarks were widely reported by the media. The Lord Advocate, Lord Hardie, then issued a public statement in which he criticised the trial judge for making these remarks. As a result a great deal of publicity was given to the case throughout Scotland both on radio and television and in the press.

    Much of that publicity was directed to the fact that a sharp disagreement had arisen in public between Lord McCluskey and the Lord Advocate. But publicity was also given to the fact that the appellants had not been brought to trial for the murder. The case was compared with that of the killing of Stephen Lawrence in London. It was implied that this was another case in which white youths were getting away with the murder of a member of a racial minority. A group calling itself the Chhokar Family Justice Campaign was formed for the purpose of campaigning for the appellants to be put on trial, and this generated further publicity. On 2nd July 1999 the appellants were served with indictments in which they were charged with the murder of Surjit Singh Chhokar. It was not until 26th August 1999 that the Crown sought and obtained an order under section 4 of the Contempt of Court Act 1981 prohibiting any further publicity until the conclusion of the appellants' trial.

    Devolution Issue - Introduction

    The issue in the appeal was raised by the appellants as a "devolution issue" under Chapter 40 of the Act of Adjournal (Criminal Procedure Rules) 1996 [S.I. 1996 No. 513 (S. 47)] which was inserted by the Act of Adjournal (Devolution Issues Rules) 1999 [S.I. 1999 No. 1346 (S. 101)]. The expression "devolution issue" is taken from paragraph 1 of Schedule 6 to the Scotland Act 1998. Part II of that Schedule applies in relation to devolution issues in proceedings in Scotland. Rule 40.2 of the Act of Adjournal provides that, where a party to proceedings on indictment proposes to raise a devolution issue, he shall give written notice of his intention to the clerk of court within seven days of service of the indictment, a copy of which notice is to be served on the other parties and on the Lord Advocate and the Advocate General. Rule 40.5(1) provides that no party to proceedings on indictment shall raise a devolution issue except in accordance with rule 40.2 unless the court, on cause shown, otherwise determines.

    Chapter 40 of the Act of Adjournal says nothing about the procedure for the hearing of devolution issues or about any appeals from such hearings. For this it is necessary to turn to Part VII of the Criminal Procedure (Scotland) Act 1995, which sets out the procedure for use in solemn proceedings where the prosecution is brought before the High Court or before the sheriff sitting with a jury on indictment in the name of Her Majesty's Advocate. As the Lord Justice General (Rodger) said at an earlier stage in this case in H. M. Advocate v. Montgomery 2000 J.C. 111, 115F, the inference is that devolution issues are to be conducted under the existing procedures. Section 72 (1) of that Act provides that the court may order a diet to be held before the trial diet, referred to in the Act as a "preliminary diet", where a person indicted for trial in the High Court gives written notice to the court and the other parties within the appropriate period that, in terms of subsection (1)(b), he intends to submit a plea in bar of trial or, in terms of subsection (d), he intends to submit that there is some point which could in his opinion be resolved with advantage before the trial. Section 73 sets out the procedure that is to be followed where a preliminary diet is ordered, and section 74 provides that a party may with the leave of the court appeal against a decision at a preliminary diet to the High Court. Section 79(1) provides that no such matters shall be raised or submitted by an accused, except by leave of the court on cause shown, unless his intention to do so has been stated in a notice under section 72(1) of the Act.

    The indictment in this case was served on 2nd July 1999. On 13th July 1999 the appellants gave notice to the Lord Advocate of their intention to raise a devolution issue. The notices which they gave were in the form prescribed by form 40.2A of the Act of Adjournal for minutes of notice of intention to raise a devolution issue. The court ordered that a preliminary diet be held into this matter before the trial diet. After some preliminary procedure which it is not necessary to describe, the minutes were amended and a hearing took place at a preliminary diet before Lord Kirkwood on 9th September 1999. Neither at that hearing nor at the hearing of the subsequent appeal by the Court of Appeal of the High Court of Justiciary was it suggested on behalf of the Lord Advocate or by the court that the issue which the appellants had raised was not a devolution issue and accordingly that the matter was not one to which Schedule 6 to the Scotland Act 1998 and Chapter 40 of the Act of Adjournal applied. We were informed that the advocate depute adopted a neutral position when the appellants sought leave from the High Court to appeal under paragraph 13 of Schedule 6 to this Board. There was no indication of any change of position on this matter in the printed cases which were lodged on behalf of the Lord Advocate and the Advocate General.

    Shortly before the hearing took place before the Board the parties were informed that their Lordships wished to be addressed on the question whether the issue which the appellants have raised about pre-trial publicity is a "devolution issue" within the meaning of paragraph 1 of Schedule 6 to the 1998 Act. This is a question which is of particular concern to the Judicial Committee, because its jurisdiction to hear appeals from the High Court of Justiciary is entirely dependent upon the provisions of that Schedule. Unless the issue raised is a devolution issue the Judicial Committee has no jurisdiction. The matter would fall to be regulated by section 124(2) of the Criminal Procedure (Scotland) Act 1995, which declares that every interlocutor pronounced by the High Court in the exercise of its power to hear appeals in solemn proceedings shall be final and conclusive and not subject to review by any court whatsoever. That subsection gives statutory effect to the decision of the House of Lords in Mackintosh v. Lord Advocate (1876) 2 App. Cas. 41 that no appeal lies to that House from decisions of the High Court of Justiciary.

    When the parties were invited to address the Board on this issue they were agreed that the matter which the appellants have raised is a devolution issue within the meaning of paragraph 1 of Schedule 6 to the 1998 Act. In the result their Lordships did not have the advantage of hearing any contrary argument. But the point is plainly one of fundamental importance to the exercise by the Judicial Committee of its jurisdiction under this Act. It is also a point which is of fundamental importance to the criminal justice system in Scotland, of which in the exercise of its jurisdiction under Part II of Schedule 6 to the Scotland Act 1998 the Judicial Committee of the Privy Council now forms part.

    I propose therefore devote the first part of my judgment (Part A) to an examination of this question, in order to try to demonstrate why as at present advised I too consider that the issue which has been raised is a devolution issue. I shall deal with the issue of pre-trial publicity in the second part (Part B).

    Part A Devolution Issues

    General Observations

    As this is the first case to come before the Board for hearing under paragraph 13 of Schedule 6 to the 1998 Act, I think that it is appropriate at the outset to make some general observations on the nature of the jurisdiction which the Judicial Committee is being called upon to exercise under that paragraph.

    The first point to notice is that the jurisdiction which is conferred upon the Judicial Committee for the determination of devolution issues by that paragraph is part of a much wider jurisdiction which extends across the entire system of devolution not only for Scotland but also for Wales and for Northern Ireland. Provision is also made in Schedule 6 to the Scotland Act 1998 for the determination of devolution issues arising under that Act in proceedings in the civil courts in Scotland as well as in proceedings in both the civil and criminal courts in England and Wales and Northern Ireland, under which references may be made and appeals will lie, with leave in the case of proceedings from the latter two jurisdictions, to the Judicial Committee. Similar provisions are contained in Schedule 8 to the Government of Wales Act 1998 and Schedule 10 to the Northern Ireland Act 1998, in each of which provision is made for the determination of devolution issues arising under those Acts in proceedings in Scotland and a parallel system is set out for the making of references and of appeals.

    The second point to notice, in contrast to this generality, is the unique nature of the provision for an appeal to the Judicial Committee from an interlocutor of the High Court of Justiciary. All the other courts in the United Kingdom from which appeals may be brought under Schedules 6, 8 and 10 to the Scotland, Government of Wales and Northern Ireland Acts are courts from which appeals lie to the House of Lords in non-devolution issues. That is not so in the case of the High Court of Justiciary. For almost three hundred years since the Union Agreement of 1707, known as the Treaty of Union, which preserved intact the Scottish legal system and the courts which administered it, the system of criminal justice in Scotland has survived as a self-contained and independent system. Its criminal laws and rules of procedure are entirely separate from those which exist in England and Wales and, based on the English model, in Northern Ireland.

    Its separate existence is due in large measure to the fact that, as I have already mentioned, no appeal lies to the House of Lords from the High Court of Justiciary. The result is that the judicial development of Scots criminal law has remained exclusively in the hands of the Scottish judges. But it is also due to the Parliamentary convention, which has existed ever since the Union in 1707, that legislation for Scotland in matters of criminal law and criminal procedure is dealt with separately from that for England and Wales and for Northern Ireland. This convention has now received statutory expression in Schedule 5 to the Scotland Act 1998 which identifies those matters which are excluded from the legislative competence of the Scottish Parliament and reserved instead to the Westminster Parliament. Thus, as I observed in Reg. v. Manchester Stipendiary Magistrate, Ex parte Granada Television Ltd. [2000] 2 WLR 1, 5B-C, although there is now much common ground between England and Scotland in the field of civil law, their systems of criminal law are as distinct from each other as if they were two foreign countries.

    The third point is that the Scottish system of criminal law is also quite unlike the systems of those jurisdictions of the Commonwealth from which appeals lie to the Judicial Committee. For the most part these systems are based on the English system, which continues to inform their practice and development of the criminal law. The Scottish system has never been involved in this dialogue. The result is that, while the Board has been able to draw extensively on English authorities and is accustomed to using the terminology of English law in its judgments in Commonwealth cases, this approach is entirely inappropriate to the exercise of its jurisdiction under Part II of Schedule 6 to the Scotland Act 1998. As I mentioned earlier, in the exercise of its jurisdiction under that Schedule the Judicial Committee now forms part of the Scottish legal system. It follows that members of the Judicial Committee whose background is in English law must now exercise the intellectual discipline of thinking themselves into the Scottish system of criminal law when sitting on references or appeals from the High Court of Justiciary, as members of the Committee whose background is in Scots law have always had to do of thinking themselves into the English system of criminal law when hearing appeals in criminal cases from the Commonwealth.

    The fourth point is that the High Court of Justiciary is the master of its own procedure. In Girvan v. Inverness Farmers Dairy 1998 SC (HL) 1, 21C-H, in a speech with which Lord Browne-Wilkinson, Lord Mackay of Clashfern and Lord Slynn of Hadley all agreed, I took the opportunity of explaining why the Court of Session is far better placed than the House of Lords can ever be to assess what changes in procedure or practice can appropriately be made and, if they were to be made, what would be their consequences. After describing the statutory background, I said at p. 21F:-

    "The Court of Session is thus well equipped to keep its own rules under regular review, and it has the ability to change or modify those rules with the minimum of delay by act of sederunt or practice note or by a decision of the court which can be reviewed, if necessary, by a larger court. By way of contrast, a decision by your Lordships on a matter of practice would lack the process of consultation which is needed to ensure general acceptability. It would also lack flexibility, as a decision of the House would be binding on the Court of Session and it would be very difficult to reverse except by legislation. The proper approach for this House to take therefore is to leave it to the Court of Session to decide what changes, if any, should be made to its own rules."

    The issue with which I was dealing in that passage was whether the House of Lords should recommend changes in the practice followed by the Court of Session in the conduct of jury trials based on changes of practice that had been introduced in England. In my opinion the same deference in matters of practice and procedure should be paid by the Board to the High Court of Justiciary when it is exercising its jurisdiction under Part II of Schedule 6 to the Scotland Act 1998. The High Court has power under section 305 of the Criminal Procedure (Scotland) Act 1995 to regulate the practice and procedure in relation to criminal procedure in the Scottish courts. It was in the exercise of that power that the Act of Adjournal (Criminal Procedure Rules) 1996 and the Act of Adjournal (Devolution Issues Rules) 1999 were made: see H.M. Advocate v. Dickson 2000 J.C. 93, 99D-E. A Criminal Courts Rules Council was established by section 304 of the 1995 Act with the function of keeping under general review the practices and procedures of the courts exercising criminal jurisdiction in Scotland and considering and commenting upon draft Acts of Adjournal. The stage in the proceedings at which a devolution issue is to be raised or referred is a matter for regulation by the High Court of Justiciary in the exercise its powers under section 305 of the 1995 Act: see paragraph 37 of Schedule 6 to the Scotland Act 1998.

    Procedure in the High Court

    The importance of the point which I have just mentioned was illustrated by an observation in the course of the hearing that the issue that has been raised in this case was one which should be dealt with in the trial court. For reasons which I must now explain, section 72 of the Criminal Procedure (Scotland) Act 1995 makes provision, where a party is indicted in the High Court, for the matters mentioned in that section to be dealt at a preliminary diet and not at the trial diet. The Act of Adjournal (Devolution Issues Rules) 1999 is based upon the assumption that the preliminary diet procedure will apply where devolution issues are raised in proceedings on indictment in the High Court: see rules 40.2 and 40.5.

    Prior to the coming into force of section 12 of and Schedule 4 to the Criminal Justice (Scotland) Act 1980 every indictment served on the accused under solemn procedure cited him to attend two diets. These were the first or pleading diet, the purpose of which was to ascertain whether the accused intended to plead guilty or not guilty and to provide a diet at which preliminary pleas and special defences could be intimated, and the second or trial diet. While it was occasionally possible to dispose of preliminary pleas at the pleading diet, in most cases the hearing of preliminary pleas had to be deferred until the trial diet before the jury were sworn. As practice developed and the taking of preliminary pleas became more frequent the expense and inconvenience of the procedure by which these matters were dealt with at the trial diet, especially to members of the public cited to attend that diet as potential jurors and witnesses, became obvious. So procedures were introduced by the 1980 Act to enable these matters to be dealt with at a preliminary diet to which jurors and witnesses were not cited. The rules which now apply in the High Court in terms of section 72 of the 1995 Act require notice of preliminary issues to be given within a specified time limit so that they may be dealt with at a preliminary diet, and that is the system which has been adopted for the consideration of devolution issues in that court. It follows that the issue raised in this case was in fact dealt with in the trial court, although it was dealt with, under the rules, not at the trial diet but at a preliminary diet which was ordered by the court under section 72 of the 1995 Act.

    For similar reasons care needs to be taken in applying the decision of the Board in Boodram v. Attorney-General of Trinidad and Tobago [1996] AC 842 to devolution issues raised in criminal proceedings under Schedule 6 to the Scotland Act 1998. The application in that case was made to the High Court for declarations that the applicant's rights under the Constitution of Trinidad and Tobago to a fair trial and due process of law had been infringed as a result of allegations made against him in the press and electronic media when he was awaiting trial on a charge of murder, and that all pending criminal proceedings against him should be stopped. The judgment of the Board was delivered by Lord Mustill who said at p. 855D:-

    "The proper forum for a complaint about publicity is the trial court, where the judge can assess the circumstances which exist when the defendant is about to be given in charge of the jury, and decide whether measures such as warnings and directions to the jury, peremptory challenge and challenge for cause will enable the jury to reach its verdict with an unclouded mind, or whether exceptionally a temporary or even permanent stay of the prosecution is the only solution."

    The point that needs to be emphasised is that under the Scottish system all matters relating to the criminal process require to be raised in the High Court of Justiciary. The Court of Session does not exercise any power of judicial review over decisions of that court. It has been recognised that the Court of Session and the High Court of Justiciary do not exercise a concurrent jurisdiction, but that they have exclusive jurisdiction in regard to all matters falling within their own spheres: see Law Hospital N.H.S. Trust v. Lord Advocate 1996 SC 301, 311. For this reason there is no opportunity in Scotland for the kind of satellite litigation by way of judicial review in the civil courts which in Reg. v. Director of Public Prosecutions, Ex parte Kebilene [1999] 3 WLR 972, 985F-G Lord Steyn said should rarely be permitted in the English criminal justice system.

    The preliminary diet system which I have been describing is the system which the High Court of Justiciary has devised for conducting the exercise which Lord Mustill said should be conducted in the trial court. In addition to the avoidance of the expense and inconvenience which would be incurred if discussion of preliminary matters could not take place until the trial diet, and the need to avoid unnecessary delays and interruptions in the hearing of trials in a system which insists upon the maintenance of very strict time limits (see section 65 of the Criminal Procedure (Scotland) Act 1995), there are further reasons why such a procedure would be particularly inappropriate in the case of preliminary matters which fall within the definition of devolution issues in paragraph 1 of Schedule 6 to the Scotland Act 1998.

    Paragraphs 9 and 11 of Schedule 6 set out a system for the reference of devolution issues which arise in the criminal courts to a higher court and from the High Court to the Judicial Committee. There is a separate system in paragraph 13 of the Schedule for an appeal to the Judicial Committee against a determination of a devolution issue by the High Court. It is unlikely that it would be practicable for a reference to be made under that system in a criminal case once the jury has been empanelled and the trial has begun. Section 91 of the Criminal Procedure (Scotland) Act 1995 provides that every trial under solemn procedure shall proceed from day to day until it is concluded unless the court shall see cause to adjourn over a day or days. The court could no doubt adjourn the trial and send the jurors home while the reference was being dealt with. But the time taken to conduct the reference would be bound to affect the jury's recollection of evidence heard before the adjournment and thus to call in question the fairness of the trial itself. Also, there is no provision for an appeal by the Crown against an acquittal in solemn proceedings. An acquittal which was based upon a wrong decision taken at the trial diet, for example on the view that an Act of the Scottish Parliament on which the prosecution was based was within its legislative competence, would not be capable of being corrected on appeal.

    For these reasons the decision to require that notice of an intention to raise a devolution issue be given in terms of rule 40.2 of the Act of Adjournal and to provide by rule 40.5 that no party to proceedings on indictment shall raise a devolution issue other than in accordance with rule 40.2 except with the leave of the court was, in my opinion, based on sound reasons of policy. It was essentially a matter for the judges of the High Court of Justiciary in the exercise of the power which was given to them by paragraph 37(a) of Schedule 6 to the Scotland Act 1998 to prescribe the stage in the proceedings at which a devolution issue is to be raised. Because issues raised as devolution issues may, in Lord Mustill's words in Boodram v. Attorney-General of Trinidad and Tobago [1996] AC 842, 855D, persuade the judge in the trial court that a permanent stay of the prosecution is the only solution in Scottish terminology, that the trial should be deserted simpliciter the judges of the High Court were entitled to take the view that it was desirable that the opportunity for taking that decision should be taken at a preliminary diet, and not at the trial diet which potential jurors and witnesses had been cited to attend. As Lord Osborne said in H.M. Advocate v. Dickson 2000 J.C. 93, 100H-I, in regard to the question whether Chapter 40 of the Act of Adjournal was incompatible with article 6 Convention rights, there is plainly a public interest in securing the expeditious and orderly administration of criminal justice.

    The jurisprudence of the Strasbourg Court

    It is appropriate to consider at this point how the procedural route for the determination of devolution issues which the Scottish judges have chosen stands up to scrutiny in the light of the jurisprudence of the European Court of Human Rights ("the Strasbourg Court").

    Article 13 of the Convention provides:-

    "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

    This article has been omitted from the articles of the Convention which are set out in Schedule 1 to the Human Rights Act 1998. It is not one of the "Convention rights" within the meaning of section 1 of that Act. Section 126 of the Scotland Act 1998 provides that the expression "the Convention rights" for the purposes of that Act has the same meaning as in the Human Rights Act. The reason which was given for that omission in Parliament was that there was no need to give effect to article 13 through national legislation, as sections 7 to 9 of the Human Rights Act were intended to provide the remedial structure for the giving of effect to the Convention rights in our domestic law. The same thing can be said of section 57(2) of and Schedule 6 to the Scotland Act 1998, bearing in mind that paragraph 37 of Schedule 6 leaves it to the rule-making bodies to make provision for the procedure to be adopted in proceedings in which a devolution issue is to be raised.

    It is the obligation of states which have ratified the Convention to secure to everyone within their jurisdiction the rights and freedoms protected by the Convention: Young, James and Webster v. United Kingdom (1981) 4 E.H.H.R. 38, 52 para. 49. The case law of the Strasbourg court indicates that the means which are to be employed to protect a person's Convention rights are left to the discretion of the domestic legal systems of the contracting states. In Vilvarajah v. United Kingdom (1991) 14 E.H.H.R 248, 291, para. 122 the court said:-

    "Article 13 guarantees the availability of a remedy at national level to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Its effect is thus to require the provision of a domestic remedy allowing the competent 'national authority' both to deal with the substance of the relevant Convention complaint and to grant appropriate relief. However, article 13 does not go so far as to require any particular form of remedy, contracting states being afforded a margin of discretion in conforming to their obligations under this provision."

    A similar statement as to the affording of a margin of discretion in this matter to the domestic legal systems of the contracting states is to be found in Chahal v. United Kingdom (1996) 23 E.H.H.R. 413, 472, para. 145. In Imbrioscia v. Switzerland (1993) 17 E.H.H.R. 441, 455, para. 38 the court observed that article 6(3)(c) leaves to the contracting states the choice of the means of ensuring that the right mentioned in that paragraph of the article is secured in the judicial systems.

    In the present case the Convention right which is under scrutiny is the right to a fair trial which is enshrined in article 6(1). As Lord Mustill pointed out in Boodram v. Attorney-General of Trinidad and Tobago [1996] AC 842, 853H-854D, the right itself is undisputed. He described his approach to the constitutional issue raised in that case in this way at p. 855B-D:-

    "Properly analysed, the real gist of the applicant's complaint is that the adverse publicity will prejudice, not the existence of the right, but the exercise of it. Whether this complaint is well founded is a matter for decision and if necessary remedy by the ordinary and well-established methods and principles of criminal procedure which exist independently of the Constitution, and which the newspapers and broadcasts could not even purport to abrogate. Provided that the safeguards remain in place, and are made available to the applicant in the trial court, and if necessary on appeal, he has the benefit of the fair trial process to which he is entitled."

    But there may be more than one way to ensure that the right to a fair trial under article 6(1) is exercised. One approach, which is that indicated by Lord Mustill, is to regard this as a matter for the trial court itself. In Enslin, Baader and Raspe v. Federal Republic of Germany (1978) 14 D.R. 64, 112-113, para. 15 the European Commission of Human Rights said in regard to a complaint that the fairness of the trial had been impaired by a press which had been fuelled by statements by the government that the fairness of the trial and the upholding of the presumption of innocence was a direct responsibility only of the court trying the charge. Another, which is that adopted by the Scotland Act 1998, is that the responsibility for the protection of the right to a fair trial lies in the first instance, although not exclusively, with the prosecutor. I consider that this approach, which as I mention below is consistent with the view that has always been taken in Scots criminal law about the functions of the Lord Advocate, is within the margin of discretion which is given to the domestic legal systems under the Convention as explained, for example, in Imbroscia v. Switzerland, p. 455, para. 38.

    I wish to stress, in response to the point made by my noble and learned friend Lord Hoffmann in the last paragraph of his judgment, that in expressing this view I am referring to the obligation of the United Kingdom under article 13 of the Convention to provide an effective remedy to secure the right to a fair trial. I am not to be taken as suggesting that the concepts which are expressed in article 6(1) are to be given a different meaning in Scotland from those which they may have elsewhere.

    The system under the Scotland Act 1998

    The system which has been chosen by the Scotland Act 1998 for the enforcement of the substance of the Convention rights listed in Schedule 1 to the Human Rights Act 1998 is based on section 57(2) of the Scotland Act, which provides:-

    "A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law."

    The impact of this provision is very wide, embracing as it does all members of the Scottish Executive, the entire spectrum of their power to make subordinate legislation and to do other acts, all the Convention rights and the whole of Community law. For present purposes it is enough to extract from it the proposition that the Lord Advocate, who is a member of the Scottish Executive (see section 44(1)(c)), has no power to do an act which is "incompatible" with the right of the accused to a fair trial under article 6(1) of the Convention.

    It should be noted that this fetter on the powers of the Lord Advocate is not restricted by the statute to provisions in the Convention which impose a correlative obligation upon him. I would hold that it is sufficient for the purposes of section 57(2) that the Convention right imposes a correlative obligation on the State. Accordingly the effect of the subsection is that no member of the Scottish Executive can act in a manner which is incompatible with the obligation which the State owes to the individual. The essence of the word "incompatible" is that there is an inconsistency between one thing and another. It is in this sense that the word "compatible" is used in section 3(1) of the Human Rights Act 1998. This approach to its meaning in the context of section 57(2) would enable it to be given a consistent meaning wherever it appears in the Scotland Act: see, for example, section 29(2)(d) in regard to the legislative competence of the Scottish Parliament. Thus the question is, as I see it, not whether article 6(1) imposes a correlative obligation on the Lord Advocate but rather whether it imposes an obligation on the State which conflicts with, or is inconsistent with, the act of the Lord Advocate. I would also hold that this fetter on the power of the Lord Advocate extends not only to acts which give rise to a present and immediate incompatibility but also to acts which will inevitably lead to an incompatibility in the future. This approach would be in keeping with the well-known observations of Lord Wilberforce in Minister of Home Affairs v. Fisher [1980] AC 319, 328E-329A. That "acts" for this purpose include the acts of the Lord Advocate as prosecutor is made clear by section 57(3). It provides that, in the particular circumstances which it describes, subsection (2) of that section does not apply to an act of the Lord Advocate "in prosecuting any offence."

    In H.M. Advocate v. Scottish Media Newspapers Ltd. 2000 S.L.T. 331, 333C the Lord Justice General (Rodger) said that the effect of section 57(2) is that, subject to section 57(3), the Lord Advocate cannot move the court to grant any remedy which would be incompatible with the Convention. Elaborating on this approach in H.M. Advocate v. Robb 2000 J.C. 127, 131C-E Lord Penrose said:-

    " the Lord Advocate has it in his power to initiate an occurrence by taking action which is within his sole control. It is for the Crown to decide what evidence to lead or to omit, as it is for the Crown to decide whether to call a case or not. In each case the court has functions which are triggered by the initiative the Lord Advocate takes. The particular functions and the court's powers differ depending on the nature of the occurrence. But there is nothing in the differences which bears on the question whether one example of what the Lord Advocate does is an 'act' while the other is not. There is, in my opinion, no justification for giving the word 'act' a restricted meaning. In particular, I consider that the word is apt to encompass all actions taken or avoided in the course of the prosecution of offences."

    In Brown v. Stott 2000 S.L.T. 379, 397C the Lord Justice General said that, when effect was given to the accused's Convention rights, the procurator fiscal had no power, either under statute or at common law, to lead evidence of her reply obtained under the powers of compulsion in section 172 of the Road Traffic Act 1988.

    This approach to the relative positions of the Lord Advocate and the court requires further explanation, as it has no counterpart in the English system. The fundamental rule on which the system of criminal justice in Scotland is based is that the Lord Advocate is, as it is put, "the master of the instance". Hume, Commentaries on the Law of Scotland Respecting Crimes (1844), vol. II, 134 states:-

    "The Lord Advocate is master of his instance in this other sense, that even after he has brought his libel into court, it is a matter at his discretion, to what extent or effect he will insist against the pannel; and he may freely, at any period of the process, before return of the verdict, nay after it has been returned, restrict his libel to an arbitrary punishment, in the clearest case even of a capital crime."

    Three examples may be given of the application of this rule in practice. The first, which is indicated by the passage which I have quoted from Hume's Commentaries, is that the court has no power to pronounce sentence where the verdict is guilty unless the prosecutor, who acts under the authority of the Lord Advocate, moves for sentence: Hume, vol. II, 470, 471; Paterson v. H.M. Advocate 1974 J.C. 35. It was the fact that the advocate depute did not move for sentence after Ronnie Coulter was found guilty only of having assaulted Surjit Singh Chhokar, with the result that the judge had no alternative but to direct his release from custody, that led to the making of the remarks in this case that generated such publicity.

    The second example is that which is to be found in sections 118 and 119 of the Criminal Procedure Act 1995, which deal with the situation where the Appeal Court is of the view that a verdict of guilty by the trial court should be set aside and there should be a new trial. The way in which this form of disposal is expressed in the statute is that the court may "grant authority" to bring a new prosecution. The Court does not, as in England under section 7 of the Criminal Appeal Act 1968 as amended by section 43 of the Criminal Justice Act 1988, "order" that there shall be a new trial. The question whether or not a new prosecution should be brought is a matter which lies entirely within the discretion of the Lord Advocate. The third example may perhaps best be illustrated by the fact that all applications to the courts of summary jurisdiction in criminal matters are made by the procurator fiscal, who acts on the authority of the Lord Advocate, and not by the police. It was this difference between the Scottish and English systems that provided the basis for the decision as to the lawfulness of the Scottish search warrant in Reg. v. Manchester Stipendiary Magistrate, Ex parte Granada Ltd. [2000] 2 WLR 1.

    Against this background I consider that it was appropriate for the Scotland Act to direct attention, as it does in section 57(2) read with section 57(3) when it is setting out the basis for the system by which effect is to be given to the Convention rights, to the acts of the Lord Advocate in the prosecution of offences. The court is, of course, not a member of the Scottish Executive. As it is a public authority, the rule that it is unlawful for it to act in a way which is incompatible with a Convention right is to be found in section 6(1) of the Human Rights Act 1998. At common law also, as Lord Penrose noted in McKenna v. H.M. Advocate 2000 J.C. 291, 295D, the court has an obligation to ensure that a trial is fair irrespective of the accused person's Convention rights. On either approach, a failure by a court to ensure that the accused receives a fair trial lies outside the scope of the Scotland Act. But the approach which that Act has taken is that the right of the accused to receive a fair trial is a responsibility of the Lord Advocate as well as of the court. Accordingly it was anticipated that the question might be raised before the trial took place, as a "devolution issue" under Schedule 6, whether the act of the Lord Advocate in prosecuting the offence was incompatible with article 6.1 of the Convention. In my opinion this approach to the enforcement of the right to a fair trial under that article falls within the margin of appreciation which the Strasbourg Court gives to the domestic legal systems of the contracting states.

    Is the issue raised a "Devolution Issue"?

    I can now return to the substance of this point, in order to set out the position which I suggest should be adopted.

    Paragraph 1 of Schedule 6 to the Scotland Act 1998 provides a definition of the expression "devolution issue" for the purposes of that Schedule which consists of a list of six questions. That which is relevant to the present case is set out in sub-paragraph (d) in these terms:-

    "a question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights or with Community law."

    Although there is no cross-reference to section 57(2), this part of the definition is plainly intended to enable questions to be raised as devolution issues about the lawfulness of actions of members of the Scottish Executive in the light of the restrictions which that subsection places upon their competence. The word "functions" is evidently used to cover both the making of delegated legislation and the doing of "acts". Just as the scope of section 57(2) is very wide, so also is the scope of the definition of the corresponding "devolution issue". With this in mind paragraph 2 of the Schedule provides:-

    "A devolution issue shall not be taken to arise in any proceedings merely because of any contention of a party to the proceedings which appears to the court or tribunal before which the proceedings take place to be frivolous or vexatious."

    It is not suggested that paragraph 2 applies in this case. What is suggested is that the issue which the appellants have raised about pre-trial publicity is not a devolution issue because no causative link exists between the act of the Lord Advocate and an infringement of the appellant's right to a fair trial. This is because the fairness or otherwise of the trial in which the criminal charge against them is to be determined is a matter which is under the control of the court alone, not the prosecutor.

    The question whether or not a question which the accused wishes to raise is or is not a devolution issue may have to be addressed at various stages in the system which has been laid down by Schedule 6. The first stage comes, in the case of a prosecution in solemn proceedings, at the stage of the service of the indictment. This is because rule 40.2 of the Act of Adjournal requires a party who wishes to raise a devolution issue to do so not later than seven days after the service of the indictment and to serve a copy of the notice on the Lord Advocate and the Advocate General. At this stage the question is primarily one which is concerned with procedure the giving of notices and so on. The second stage comes when a court, other than one consisting of two or more judges of the High Court of Justiciary, is considering whether or not to refer a devolution issue arising in proceedings before it to the High Court under paragraph 9 of the Schedule. The third stage comes when consideration is being given under paragraph 13 of the Schedule whether the High Court of Justiciary should give leave to appeal to the Judicial Committee or whether the Judicial Committee itself should give special leave. At the second and third stages the primary question is translated into one as to the power of the High Court or the Judicial Committee, as the case may be, to give leave.

    At each of these stages it is permissible for the court to ask the question whether the issue that the accused wishes to raise is truly a devolution issue. As the Lord Justice-Clerk (Cullen) indicated in Paton v. Ritchie 2000 JC 271, 273C-D, the minute of notice must contain sufficient detail to enable the court to determine whether a devolution issue has arisen. At the first stage the importance of that question will lie in the fact that, if the issue is a devolution issue, Chapter 40 of the Act of Adjournal will apply to it. If the procedure laid down by rule 40.2 has not been followed, rule 40.5 will apply and the party will not be permitted to raise the issue except on cause shown. At the second and third stages however the importance of the question will lie in the fact that a reference may only be made or leave to appeal given if the issue is a devolution issue. The question at these stages, as I have said, relates to the power of the High Court or the Judicial Committee, as the case may be, to hear the reference or give leave. It can be answered by examining the facts and circumstances contained in the Minute of Notice in order to see whether they contain relevant averments to show that a devolution issue has been raised. If there are no such averments the reference or the application for leave may be refused as incompetent.

    Several cases have arisen in which the High Court has had to examine this question at the second and third stages that is, at the stage of an application for a reference and for leave to appeal to the Judicial Committee. For example, in British Broadcasting Corporation, Petitioners (No. 2) 2000 S.L.T. 860 an application was made to the High Court for review of the decision by Lord Macfadyen to refuse an application which was made to him under the nobile officium for consent to broadcast by television the proceedings in the trial of two men accused of the blowing up of a civilian aircraft over Lockerbie. The High Court refused the petition for review. It also refused to grant the petitioners request for the matter to be brought before the Judicial Committee either by way of a reference under paragraph 11 or by way of an appeal under paragraph 13 of Schedule 6 on the ground that the case did not raise a devolution issue. Lord Kirkwood made this observation at p. 866L:-

    "In my opinion it is not sufficient for a party simply to aver that a devolution issue has arisen. The court must consider whether, in light of the particular circumstances of each individual case, it has been demonstrated that a devolution issue does relevantly arise."

    He noted at p. 867D-E, on examining the facts, that although the Lord Advocate had supported an application to allow a restricted broadcasting of the proceedings for relatives, it had been the court that had made the decision to grant the application and that there had been no "act" or "exercise of a function" in that regard by the Lord Advocate.

    In the present case however there is no doubt that the issue which has been raised relates to an "act" within the meaning of section 57(2), or to "the exercise of a function" within the meaning of paragraph 1 of Schedule 6. The indictment which was served on the appellants proceeds in the name of the Lord Advocate. It is his acts in initiating and continuing with the proceedings that have put in issue the question whether they can receive a fair trial in the determination of the charge which he has brought against them. That question will remain in issue if, as he proposes to do, he maintains the indictment against them when the diet is called at the trial diet.

    On these facts I would hold that the question which has been raised in this case is a devolution issue and that, as this appeal has been brought with the leave of the High Court of Justiciary, the Judicial Committee is bound to examine the question and to answer it. The act of the Crown in having a case called at the sitting of the High Court at which the trial is to take place is a proposed exercise of a function of the Lord Advocate within the meaning of paragraph 1(d) of Schedule 6 to the Scotland Act 1998. And, as Lord Penrose explained in H.M. Advocate v. Robb 2000 J.C. 127, 131B-E, the leading of evidence at a criminal trial is also an exercise of the Lord Advocate's function as head of the prosecution system in Scotland: see also Brown v. Stott 2000 S.L.T. 379. His proposed exercise of these functions in circumstances where it is said that, as a result of the pre-trial publicity, the appellants cannot receive a fair trial raises a question as to whether these acts are incompatible with the appellants' rights under article 6.1 of the Convention.

    In my opinion it is sufficient, for the minute of notice to pass the test of relevancy as to whether a devolution issue has been raised, that a question has arisen whether the Lord Advocate's proposed act, or the proposed exercise of his function, is incompatible with the Convention right whether his proposed act as a member of the Scottish Executive is inconsistent with the obligation to ensure a fair trial which is imposed on the State by the Convention. The fact that a negative answer may be given to that question for example, on the ground that the measures which the court itself can take, in the particular circumstances of the case, will ensure that the criminal charges against the appellants will be determined by an independent and impartial tribunal - does not mean that it does not raise a devolution issue within the meaning of paragraph 1 of the Schedule.

    Before I leave this part of my judgment I should like to add these observations. It is, of course, a matter of concern to the Judicial Committee that it should not be drawn too readily into matters of criminal law and procedure which are best handled by the courts in Scotland. It is not however open to it to rewrite the provisions of Schedule 6 to the Scotland Act which have created this novel jurisdiction. That jurisdiction has to be accepted on the terms under which it has been given. The safeguard against its improper use lies in the requirement for leave which is built into paragraphs 11 and 13 of the Schedule. Experience to date, based upon the decisions of the High Court of Justiciary to which I have referred and the Judicial Committee's own experience of dealing with a number of applications for special leave, suggests that this requirement is proving to be a valuable safeguard.

    It should also be recognised that the method which has been selected by the Scotland Act and in Chapter 40 of the Act of Adjournal for ensuring that the Convention rights of the accused are protected, which enables the matter to be tested before the case goes to trial by examining the acts of the prosecutor, has clear advantages. These have been designed to preserve the efficient running of the criminal justice system in Scotland, despite the heavy demands that have been made upon it by the devolution system. I believe that it would be undesirable for that system to be disturbed unless there were clear reasons for doing so.

    Part B - Pre-Trial Publicity

    Introduction

    Mr. Ogg Q.C. for the first appellant Montgomery submitted that the two questions that had to be addressed on the merits of his argument that the acts of the Lord Advocate were incompatible with his client's right to a fair trial under article 6 of the Convention were these: first, was the pre-trial publicity of such a nature that there was an objectively justified fear that the jury would not be impartial; and second, if so, can it be predicted now that the safeguards which were available would not be effective to remove the effects of the publicity.

    At the preliminary diet Lord Kirkwood said at p. 41:-

    "It seems to me that there would, indeed be a risk of injustice if the minuters went to trial before an uninstructed jury. The question in this case is whether the risk of prejudice resulting from all the publicity will be so grave that even careful directions by the trial judge could not reasonably be expected to remove it."

    In the Appeal Court the Lord Justice General (Rodger) said at pp. 67-69 that he recognised that the appellants might have an objectively justified fear that some at least of those called to serve as jurors might not be entirely impartial, but that having regard to the way in which the trial would be conducted a jury could be expected to act impartially despite the prejudicial publicity. Lord Coulsfield said at p. 74:-

    "Having regard to all the circumstances, I do, as I have said, agree that in this case the risk is not such as cannot be met by suitable directions by the trial judge but I also think it necessary to say that, in my view, this is not a case in which the pre-trial publicity has given rise to no risk of an unfair trial: I only say that there is a risk which can be met."

    Mr. Ogg submitted that, in taking the view that the effects of the publicity were not so overwhelming that they were incapable of being met by the relevant safeguards, the Appeal Court underestimated the potency of the publicity. He said that its residual impact on the notional juror in this case was likely to be far greater than in the ordinary case where a complaint of pre-trial publicity has been made. Mr. O'Grady Q.C. for the second appellant Coulter said that, as it was impossible to assess the effectiveness of the safeguards, they did not provide the guarantee to which the appellants were entitled that they would receive a fair trial.

    The facts

    Their Lordships were provided with volumes containing photocopies of the various reports and articles which have appeared in the press since 10 March 1999 when publicity was first given to the remarks which Lord McCluskey made at the end of the trial of Ronnie Coulter and they were shown a video recording of the reports which have appeared on television news broadcasts by BBC Scotland and Scottish Television. The bulk of this material relates to the period between that date and 26th August 1999 when further publicity was prohibited by the order made under section 4 of the Contempt of Court Act 1981. The articles which had appeared by the time the case was heard by the Appeal Court were said to have numbered in all about 181. A number of articles appeared in the press subsequently during the period from 28th November 1999 to 18th February 2000 regarding the activities of the Chhokar Family Justice Campaign. On 10th January 2000 a public demonstration was held outside Parliament House within sight of those entering the court building, including potential jurors, which also attracted publicity in the press and on television.

    The Lord Justice General (Rodger) set out in his opinion at pp. 6366 some of the more significant passages from the articles which appeared in the press in order to give a flavour of what they contained. I do not need to repeat this exercise. It is sufficient to say that the volume of the material is very considerable, and the tabloid and broadsheet newspapers and television broadcasts in which it appeared have a wide circulation throughout Scotland. When account is taken of the types of the print media involved and the times of day when the television news items were broadcast, it can be assumed that the coverage which has been given to this case was observed and absorbed at one time or another by most of the adult population in Scotland during the relevant period. Various themes were developed as one story followed upon another. One of these was the public dispute between Lord McCluskey and the Lord Advocate. Another was the similarity which was believed to exist with the Stephen Lawrence case. The suggestion was made that the murder was the product of a racist attack and that the issue of race hung over the fact that the killers of Surjit Singh Chhokar had not been brought to trial and convicted. After the appellants were indicted on 2nd July 1999 articles appeared which linked their indictment to the campaign for justice by the deceased's family. A report was published containing a comment by the deceased's father that two of his son's murderers had been let off and that the third had been found guilty only of assault.

    A detailed study of these reports and articles is, as the Lord Justice General observed at p. 67, a somewhat artificial exercise since no juror would be likely to have read and seen them all nor would any juror have been likely to have concentrated upon them in the same way as we were invited to do. Mr. Ogg accepted that this was so. He directed his argument instead to what he described as the residual impact which this sustained coverage would have had on the mind of the notional juror. He submitted that what was required in this case was an exercise of risk assessment such as that described by Schiemann L.J. in Attorney General v. MGN Ltd. [1997] 1 All ER 456, 461a-c:-

    "(8) In making an assessment of the likelihood of the publication coming to the attention of a potential juror the court will consider amongst other matters: (a) whether the publication circulates in the area from which the jurors are likely to be drawn, and (b) how many copies circulated.

    (9) In making an assessment of the likely impact of the publication on an ordinary reader at the time of publication the court will consider amongst other matters: (a) the prominence of the article in the publication, and (b) the novelty of the content of the article in the context of likely readers of that publication.
    (10) In making an assessment of the residual impact of the publication on a notional juror at the time of the trial the court will consider amongst other matters: (a) the length of time between publication and the likely date of trial, (b) the focusing effect of listening over a prolonged period to evidence in a case, and (c) the likely effect of the judge's directions to the jury."

    As this passage indicates, it is the effect of the publication in this case, the series of publications on the mind of the notional juror at the time of the trial that has to be considered. And the risk assessment exercise requires account to be taken of the factors, including the measures available to the trial judge, that may be expected to reduce the residual impact.

    The test

    The common law test, which is applied where pre-trial publicity is relied upon in support of a plea of oppression, is whether the risk of prejudice is so grave that no direction by a trial judge, however careful, could reasonably be expected to remove it. The question was first expressed in these terms by Lord Justice General Emslie in Stewart v. H.M. Advocate 1980 J.C. 103, 109. In that case the question was whether there was a substantial risk of prejudice to the accused where an attempt had been made to interfere with a juror during the trial and the other jurors knew of the attempt. He adopted the same wording when he was describing in Stuurman v. H.M. Advocate 1980 J.C. 111, 122 the special circumstances in which the High Court of Justiciary has power under the common law to intervene to prevent the Lord Advocate from proceeding upon an indictment:-

    "The special circumstances must indeed be such as to satisfy the Court that, having regard to the principles of substantial justice and of fair trial, to require an accused to face trial would be oppressive. Each case will depend on its own merits, and where the alleged oppression is said to arise from events alleged to be prejudicial to the prospects of fair trial the question for the Court is whether the risk of prejudice is so grave that no direction of the trial Judge, however careful, could reasonably be expected to remove it."

    That was a case where the basis for the plea of oppression was pre-trial publicity. The same test was applied in X. v. Sweeney 1982 JC 70, where the Lord Advocate's decision not to prosecute three youths for rape had received wide publicity and it was contended on their behalf that it would be oppressive for authority to be given for them to be prosecuted privately by the alleged victim. In Mcfadyen v. Annan 1992 J.C. 53 the same test was applied by a court of five judges in a case where a complaint was objected to on the ground of undue delay; see also Normand v. Rooney 1992 J.C. 93, which was another case in which undue delay was alleged.

    In the present case the issue which has been raised is not that of oppression under the common law but of incompatibility with the appellants' right to a fair trial under article 6 of the Convention. Two question then arise. The first is what guidance is to be found as to the relevant test in the jurisprudence of the Strasbourg Court. The second is whether the test which was laid down in Stewart and in Stuurman for use in cases of alleged oppression can also be applied in cases of alleged incompatibility with the Convention right.

    The Strasbourg jurisprudence

    The appellants' argument is based on the first sentence of article 6(1) of the Convention, which states:-

    "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

    The point which is taken is that the acts of the Lord Advocate are incompatible with the rights set out in that sentence in respect that no jury which may be empanelled to try the case can be expected to be impartial due to the residual effects of the publicity, against which it can be said even at this stage there are no effective safeguards.

    The jurisprudence of the Strasbourg court indicates that a distinction is to be drawn between a subjective and an objective approach to the question of impartiality: De Cubber v. Belgium (1984) 7 E.H.H.R. 236, 243 para. 24; Hauschildt v. Denmark (1990) E.H.H.R. 266, 279 para. 46. It is not suggested that the issue in this case is capable of being solved by the application of the subjective test, which involves ascertaining the personal conviction of a given judge in a given case. It is not the practice in Scotland for members of the jury to be questioned about their personal convictions or any knowledge which they may have gleaned from reports in the media before being sworn to try the case: Spink v. H.M. Advocate 1989 S.C.C.R. 413, per Lord Justice General Emslie at p. 416; Pullar v. H.M. Advocate 1993 J.C. 126. The question is one which has to be resolved by means of the objective approach. As the Court put it in para. 24 of its judgment, this involves determining whether sufficient guarantees have been offered to exclude any legitimate doubt as to the judge's impartiality. In Remli v. France (1996) 22 E.H.H.R. 253, 271, para. 46 the court said that what was decisive was whether the fear that a particular judge lacks impartiality can be objectively justified. In Gregory v. United Kingdom (1997) 25 E.H.H.R. 577, 593 para. 45 the court again said that an objective test must be applied, and added that it must be ascertained whether sufficient guarantees exist to exclude any legitimate doubt in this respect.

    Of particular significance in this case are the observations which the Court made in Pullar v. United Kingdom (1996) 22 E.H.H.R. 391, as that was a case in which it examined the issue of impartiality with regard to a criminal case which had been tried by a Scottish jury (for a report of the Scottish proceedings, see Pullar v. H.M. Advocate 1993 J.C. 135). At p. 402, para. 30 the Court said:-

    "It is well established in the case law of the court that there are two aspects to the requirement of impartiality in article 6(1). First, the tribunal must be subjectively impartial, that is, no member of the tribunal should hold any personal prejudice or bias. Personal impartiality is to be presumed unless there is evidence to the contrary. Secondly, the tribunal must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect."

    Commenting further on the principle that a tribunal shall be presumed to be free of personal prejudice or partiality at p. 403, para. 32, the court said:-

    "It reflects an important element of the rule of law, namely that the verdicts of a tribunal should be final and binding unless set aside by a superior court on the basis or irregularity or unfairness. This principle must apply equally to all forms of tribunal, including juries.
    Although in some cases, not least the present, it may be difficult to procure evidence with which to rebut the presumption, it must be remembered that the requirement of objective impartiality provides a further important guarantee."

    At pp. 404-405, paras. 37-41 of its judgment in Pullar the court applied these principles to the facts of the case. The argument was directed to the fact that the jury which convicted the appellant included an employee of a key prosecution witness. That the question is one of fact and degree, taking account of the available safeguards, emerges clearly from what the court said in paragraphs 37-38 and 40-41:-

    "37. It is recalled that P's misgivings as to the impartiality of the tribunal were based on the fact that one member of the jury, F, was employed by the firm in which the prosecution witness, M, was a partner. Understandably, this type of connection might give rise to some anxiety on the part of an accused. However, the view taken by the accused with regard to the impartiality of the tribunal cannot be regarded as conclusive. What is decisive is whether his doubts can be held to be objectively justified.
    38. The principle of impartiality is an important element in support of the confidence which the courts must inspire in a democratic society. However, it does not necessarily follow from the fact that a member of a tribunal has some personal knowledge of one of the witnesses in a case that he will be prejudiced in favour of that person's testimony. In each individual case it must be decided whether the familiarity in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal
    40. In addition, regard must be had to the fact that the tribunal offered a number of important safeguards. It is significant that F was only one of 15 jurors, all of whom were selected at random from amongst the local population. It must also be recalled that the sheriff gave the jury directions to the effect that they should dispassionately assess the credibility of all the witnesses before them, and that all of the jurors took an oath to a similar effect.
    41. Against this background, P's misgivings about the impartiality of the tribunal which tried him cannot be regarded as being objectively justified."

    These passages indicate that the decisive question is whether the doubts which the appellants have raised about the impartiality of the tribunal can be held to be objectively justified, and that in a case which is to be tried under the solemn procedure the "tribunal" includes not only the jury but also the trial judge. Thus the question is not confined to the residual effect of the publicity on the minds of each of the jurors. Account must also be taken of the part which the judge will play in order to ensure, so far as possible, that the appellants will receive a fair trial. An examination of the measures which he can take under the system which has been laid down for the conduct of criminal jury trials forms an important part of the whole exercise.

    The Advocate General referred to a number of cases in which the European Commission on Human Rights has held that, in certain cases, a virulent press campaign can adversely affect the fairness of a trial by influencing public opinion, complaints based on extensive press publicity before and during the trial were nevertheless manifestly ill-founded within the meaning of article 27(2) of the Convention and declared them to be inadmissible: Application No. 1476/62, X. v. Austria; Application No. 3444/67, X. v. Norway; Application No. 7542/76, X. v. United Kingdom. But it did not seem to me that these cases, each of which turned on its own facts, were of any direct assistance.

    Reference was also made to Application No. 17265/90 Baragiola v. Switzerland (1993) 75 D.R. 76. In that case the Commission observed, at p. 120, that, while particular importance should be attached to the freedom of the press because of the public's right to information, a fair balance must nevertheless be struck between that freedom and the right to a fair trial guaranteed by article 6 of the Convention and that a restrictive interpretation of article 6(1) would not correspond to the aim and purpose of that provision. As I understand these observations, however, they were intended to emphasise the point that primacy must be given to the right to a fair trial. Article 6, unlike articles 8 to 11 of the Convention, is not subject to any words of limitation. It does not require, nor indeed does it permit, a balance to be struck between the rights which it sets out and other considerations such as the public interest. In so far as the Baragiola case may be taken as suggesting that in the application of article 6(1) a balance must be struck between the right of the individual to a fair trial and the freedom of the press or the public's right to information, I would be inclined not to follow it on the ground that this suggestion is inconsistent with the wording of the Convention. The suggestion is not, so far as I am aware, supported by any other authority.

    The "Stuurman" test

    Although the Strasbourg jurisprudence indicates clearly that it is appropriate to have regard to the available safeguards, it does not lay down in any precise way the test which is to be applied in order to determine whether these safeguards can be relied upon to fulfil the requirement that the impartiality of the tribunal can be objectively justified. In the Court of Appeal the Lord Justice General (Rodger) said at p. 69 that, taking a cross-bearing by applying the Stuurman test, he would have reached substantially the same result if the appellants had chosen to advance their argument under the cover of a plea of oppression. Lord Coulsfield however expressed some doubts on this point at pp. 72-73.

    There appear to be two reasons for doubting the utility of the Stuurman test, in the circumstances of the present case, as a means of solving the question which has been raised about the tribunal's impartiality. The first relates to the wording of the test itself, as it relates only to the effect of directions to be given by the trial judge. The second relates to the question raised by Lord Coulsfield as to whether a test which was designed to deal with cases of oppression is appropriate for use in the article 6 context, in view of dicta which indicate that the concept of oppression involves a balancing exercise which is not appropriate in the context of the article 6 right to a fair trial.

    As regards the first reason, it will be recalled that the test was originally formulated in Stewart v. H.M. Advocate 1980 J.C. 103. That was a case where, close to the end of a long trial, one of the jurors was approached by a person claiming to be the brother of one of the accused, who offered her a bribe. She attempted to raise the matter with the trial judge the next day. The trial judge, due to a misunderstanding of the nature of her concern, told her to discuss the matter with the other jurors and to tell him if she still thought that it was important. She was seen later by both the clerk of court and the trial judge, when the true nature of her concern was revealed to them. She told them that she had discussed the matter with the other jurors. The only way in which a possible miscarriage of justice could be averted was by means of a direction by the trial judge. He directed the remaining members of the jury to put any information which they may have been given out of their minds when considering the evidence and what their verdicts were to be on that evidence. In that context the test was directed to the only issue in the case, which was whether the direction was a sufficient safeguard.

    In Stuurman v. H.M. Advocate 1980 J.C. 111 the test was applied to a case of pre-trial publicity. The directions which the trial judge gave to deal with this matter were not said to have been defective in any way. The argument was that no direction by the trial judge, however careful, could reasonably be expected to remove the risk of prejudice to the fair trial. The reasons which the Lord Justice General (Emslie) gave for rejecting this argument at p. 123 were these:-

    "The publications occurred almost four months before the trial diet was called. In considering the effect of these publications at the date of the trial the Court was well entitled to bear in mind that the public memory of newspaper articles and news broadcasts and of their detailed contents is notoriously short and, that being so, that the residual risk of prejudice to the prospects of fair trial for the applicants could reasonably be expected to be removed by careful directions such as those which were in the event given by the trial Judge."

    This passage indicates that, when the test is being applied in practice, all the circumstances of the case require to be taken into account. It is only by having regard to all the circumstances that it can be determined whether the directions by the trial judge can reasonably be expected to remove the prejudice. This point is illustrated also by its application in McFadyen v. Annan 1992 J.C. 53. The three matters to which Schiemann L.J. referred in paragraph (10) in Attorney General v. MGN Ltd [1997] 1 All ER 456, 461B the length of time since publication, the focusing effect of listening to evidence over a prolonged period and the likely effect of the directions by the trial judge are all taken into account in practice in the application of the Stuurman test in cases of alleged oppression due to pre-trial publicity. Applied in this way the test is, in my opinion, well suited for use in the context of a complaint which is made under article 6(1) of the Convention. It fits in well with the approach which the Strasbourg court took to this matter in Pullar v. United Kingdom (1996) 22 E.H.H.R. 391.

    The other reason for doubting its utility is based largely on passages from X. v. Sweeney 1982 JC 70 which, as Lord Coulsfield pointed out at pp. 72-73, suggest that when the test is applied a balancing exercise has to be performed between the risk of oppression and the public interest that justice should be done and should be seen to be done. In the common law context a balancing exercise of this kind has been applied in practice for many years. Its origin can be traced back at least as far as a series of cases dealing with the admissibility of evidence irregularly obtained. In the seven judge case of Lawrie v. Muir 1950 JC 19, 26 Lord Justice General Cooper said:-

    "From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground."

    In H.M. Advocate v. Hepper 1958 J.C. 39, 40 Lord Guthrie observed that the Lord Justice-Clerk, Lord Thomson, had repeatedly pointed out in recent years that the problem is always to reconcile the interest of society in the detection of crime with the requirement of fairness to an accused person.

    In X. v. Sweeney the issue was whether the massive publicity that had been given to criticisms of the Lord Advocate for not prosecuting the respondents in a case of alleged rape made it impossible for them to receive a fair trial if they were to be prosecuted by the alleged victim privately. The Lord Justice General (Emslie) said at p. 85 that, while he had not forgotten the public interest in securing a fair trial of accused persons, the public interest in the administration of justice and the detection and trial of alleged perpetrators of crime was matter to which great weight had to be given as the crimes alleged were of a particularly serious and horrible nature. At p. 92 Lord Avonside said, in regard to the public interest that justice should be done and be seen to be done and the interest of the respondents, the interest of justice must be paramount. Lord Cameron, while concurring in the result, appears to have taken a different view as to where the balance lay. He said at p. 87 that, while there was a public interest of paramount and permanent importance in the detection and suppression of crime, it was of equal importance that those charged with crime should receive a fair and impartial trial. Nevertheless it is clear that in that case the public interest that justice should be done which is what much of the publicity in the present case also has been about played a significant part in the decision.

    In my opinion this feature of the case of X. v. Sweeney does not deprive the Stuurman test of its utility in the article 6(1) context. It is sufficient, in order to preserve its integrity for this purpose, that it should be recognised that in the application of article 6(1) to the facts of the case there is no such balancing exercise. The right of the accused to a fair trial by an independent and impartial tribunal is unqualified. It is not to be subordinated to the public interest in the detection and suppression of crime. In this respect it may be said that the Convention right is superior to the common law right.

    It needs to be emphasised, as was pointed out in Pullar v. United Kingdom (1996) 22 E.H.H.R. 391, that the rule of law lies at the heart of the Convention. It is not the purpose of article 6 to make it impracticable to bring those who are accused of crime to justice. The approach which the Strasbourg court has taken to the question whether there are sufficient safeguards recognises this fact. It does not require the issue of objective impartiality to be resolved with mathematical accuracy. It calls instead for "sufficient" guarantees or safeguards and for the exclusion of any "legitimate doubt": Pullar v. United Kingdom, pp. 402-403, 405 paras. 30, 40. Account is taken of the fact that certainty in these matters is not achievable. That said, however, the only question to be addressed in terms of article 6(1) of the Convention is the right of the accused to a fair trial. An assessment of the weight to be given to the public interest does not come into the exercise. Provided this point of principle is recognised, I see no reason why the Stuurman test should not continue to be used in this context. The logical justification for doing so is that it directs attention to the effectiveness of the principal measures short of deserting the diet pro loco et tempore which the tribunal itself can provide. The likely effect of any warnings or directions given to the jury by the trial judge, in the light of the other circumstances of the trial, will in most cases be the critical issue.

    The result in the present case

    I am not persuaded that the judges in the court below were in error in their assessment of the effect of the publicity that has been given to this case and of the question whether, despite that publicity, the jury can be expected to act impartially. Recent research conducted for the New Zealand Law Commission suggests that the impact of pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal: Warren Young, Neil Cameron and Yvette Tinsley, Juries in Criminal Trials; Part Two, Chapter 9, para. 287 (New Zealand Law Commission preliminary paper no. 37, November 1999). The lapse of time since the last exposure may increasingly be regarded, with each month that passes, in itself as some kind of a safeguard. Nevertheless the risk that the widespread, prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury cannot be regarded as negligible. The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdict.

    The judges in the court below relied on their own experience, both as counsel and as judges, of the way in which juries behave and of the way in which criminal trials are conducted. Mr. O'Grady submitted that there was no basis upon which one could assess the likely effect of any directions by the trial judge. He said that this was something that was incapable of being proved. But the entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence.

    The Scottish judges are not alone in proceeding upon this assumption. In the Supreme Court of Canada, in Reg. v. Corbett [1988] 1 S.C.R. 670, 692, Dickson C.J. said that jury directions are often long and difficult but that the experience of trial judges is that juries do perform their duty according to law. In R. v. Vermette (1988) 50 D.L.R. (4th) 385, 392 La Forest J., under reference to the Corbett case, said that dicta in that case underlined the confidence that may be had in the ability of a jury to disabuse itself of information that it is not entitled to consider. In the High Court of Australia, in The Queen v. Glennon (1992) 173 C.L.R. 592, 603 Mason C.J. and Toohey J. said that the law proceeds on the footing that the jury, acting in accordance with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence and that to conclude otherwise would be to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge. In the Irish High Court, in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476, 496 Hamilton P., drawing upon his experience as counsel and as a judge, said that he shared in the confidence that his legal system has in juries to act with responsibility in accordance with the terms of their oath, to follow the directions given by the trial judge and a true verdict give in accordance with the evidence. I consider that the judges in the court below were entitled to draw upon their experience, and I see no reason in the light of my own experience to disagree with their assessment.

    For these reasons the answer which I would give to the devolution issue is that the acts of the Lord Advocate which are complained of in this case are not incompatible with the appellants rights under article 6(1) of the Convention, as the careful directions which the judge may be expected to give to the jury in the course of the trial will be sufficient to remove any legitimate doubt that may exist at this stage about the objective impartiality of the tribunal. I would dismiss the appeal.

    Further procedure

    Counsel for the appellants invited the Board, if it was minded to allow the appeal, to desert the diet simpliciter. In my opinion however the terms of any order that falls to be made in the light of the disposal of an appeal under paragraph 13(a) of Schedule 6 to the Scotland Act 1998 by the Judicial Committee is a matter for the High Court of Justiciary: see rule 40.11 of the Act of Adjournal (Criminal Procedure Rules) 1996. Under the procedure laid down by that rule it is for the High Court of Justiciary to fix a diet for the purpose of disposing of any matter in consequence of a judgment of the Judicial Committee on an appeal under that paragraph. In the light of their Lordships' decision to dismiss the appeal, however, the fixing of a diet for that purpose will not be necessary. It should be noted that their Lordships have ordered that the publication of the proceedings in this appeal be postponed until the conclusion of the trial, without prejudice to the order which was made by the High Court of Justiciary in terms of section 4(2) of the Contempt of Court Act 1981 on 28th September 1999.

    _________________

    Lord Clyde

    On 2nd July 1999 the two appellants in this appeal were indicted by the Lord Advocate for trial in the High Court of Justiciary. The indictment set out four charges, of which one, involving both of the appellants, was a charge of the assault and murder of one Surjit Chhokar. In reference to the assault, but not to the murder, it was alleged that the appellants were acting with Ronnie Coulter. Ronnie Coulter had already undergone trial under an indictment which charged him while acting along with others who were not named, of the murder of Surjit Chhokar. At that trial Ronnie Coulter presented a special defence of incrimination in which he blamed the present appellants. On 9th March 1999 Ronnie Coulter was convicted of assault but not of murder. At the close of the proceedings the trial judge publicly voiced his concern that the Crown had proceeded against Ronnie Coulter alone when it appeared that more than one person had participated in the assault which preceded Chhokar's death. The Lord Advocate then made a public response criticising the observations made by the trial judge. The public exchange between two prominent figures not surprisingly attracted a considerable measure of attention in the public press and broadcasting channels. Considerable publicity was subsequently given to demands by interested parties that those who had killed Chhokar should be brought to trial.

    After the indictments were served on the appellants they lodged Minutes seeking to raise a devolution issue within the meaning of Schedule 6 of the Scotland Act 1998. Their complaint was directed essentially at an alleged breach of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. At the outset there were a variety of particular points which they sought to argue in that connection. They pointed to the publicity which had followed upon the earlier trial, noting the failure of the Lord Advocate to restrict adverse or prejudicial publicity and the failure of the Advocate-Depute to ask the trial judge to impose reporting restrictions under the Contempt of Court Act. They pointed to the further publicity which the Lord Advocate had himself attracted by engaging in public comment. They founded upon the failure of the Lord Advocate to bring all three persons to trial together and the change which had been made in the formulation of the charge as now laid against the appellants, omitting any reference to Ronnie Coulter as participating in the act of murder. However, as the case has developed the point of the appellants' complaint has become focussed upon the extent of the publicity.

    In seeking to raise the matter as a devolution issue under the Scotland Act 1998 the appellants have based their case upon section 57(2) of the Act. Under that provision the Lord Advocate, being a member of the Scottish Executive, has no power to do an act so far as it is incompatible with any of the Convention rights. Subsection (3) of that section, while it excludes certain acts of the Lord Advocate which are not of relevance to the present case, makes it clear that the word "act" may include an act of the Lord Advocate "in prosecuting any offence". It has already been held by Lord Penrose in H.M. Advocate v. Robb 2000 J.C. 127 that it includes all actions taken or avoided in the course of the prosecution of offences. Schedule 6 of the Act lays down the procedures for the raising of "devolution issues" and defines that expression for the purposes of that Schedule. It appears that the case defined in paragraph 1(d) of the Schedule, "a question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights " may cover a case of the doing of an act under section 57(2).

    As the Advocate General pointed out, anyone seeking to raise a devolution issue must plead themselves into such an issue. In the present context that requires identification of the act which the Lord Advocate has done and of its incompatibility with some Convention right. From the terms of the Minutes it may not be altogether clear what the alleged act was. Acts by the Lord Advocate prior to 20th May 1999, when at least parts of the Scotland Act came into effect, including his public response to the trial judge, presumably cannot be directly founded upon but may form part of the background material. The decision to separate the trials may also face the same difficulty. But in any event the argument that that decision somehow infringed the right to a fair hearing under article 6 of the Convention has been rejected by the Appeal Court and has not been revived. The only act or acts now complained of are the serving of the indictment and the persisting in the prosecution. In Starrs v. Ruxton 2000 JC 208 the High Court recognised that the act of a procurator fiscal in continuing a prosecution was an act of the Lord Advocate. The same point was accepted before the Appeal Court in Buchanan v. McLean 2000 S.L.T. 928.

    Two preliminary points may be mentioned at this stage. Firstly, the argument for deserting the diet simpliciter could have been presented at common law without invoking the Convention through the medium of the Scotland Act. In that event the standard to be applied would have been that of oppression (Stuurman v. H.M. Advocate 1980 J.C. 111, 122). While the factors which may fall to be considered in deciding the issue against the standard of oppression may well be the same as those to be considered in the context of article 6, there may be a question whether the standard of oppression may impose a higher threshold for the accused than that of a fair hearing. No complete uniformity of view on the point appears from the judgments delivered in the earlier stages of the case. Such a difference of standard may well make the Convention a more attractive basis for argument than the older Scottish view. But the existence of such a possible difference has not been matter of debate in the appeal before us and I would prefer not to express any concluded view upon it.

    Secondly, another point of distinction between the Scottish common law and the Convention is that, as the Appeal Court recognised, the latter approach cuts across the idea that the interest of the public that justice should be done should not only be brought in as a balancing consideration to the interest of the accused, but may indeed, as was said by Lord Avonside in X v. Sweeney 1982 JC 70, 92, be paramount. A question arises whether a different balancing exercise requires to be undertaken under the Convention in that weight may also require to be given to the importance of the freedom of expression. The Commission observed in the Application No. 17265/90 by Baragiola v. Switzerland (1993) 75 D.R. 76, 120, while particular importance should be attached to the freedom of the press "a fair balance must nevertheless be struck between that freedom and the right to a fair trial guaranteed by Article 6 of the Convention". But they then recognise the prominent place which the right holds in a democratic society and state that a restrictive interpretation of it would not correspond to the aim and purpose of that provision. The right expressed in article 6(1) is unqualified, except for the provision for the exclusion of the press and public from a trial. I understand the passage in the Baragiola case to mean, not that the interests of the accused and the interests of the public in receiving information are to be weighed against each other in the decision whether a trial is or is not fair, but that the freedom of the press is not a factor which can restrict the unqualified right of a person to a fair trial. But a final view on that matter is not necessary in the present case.

    There can be no doubt that the issue which has been raised in the present appeal, even if it was held to be unsound in law or unmeritorious in fact, is a "devolution issue" for the purposes of Schedule 6 of the Scotland Act 1998. That expression is defined in paragraph 1 of that Schedule and the definition includes in subparagraph (d) "a question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights or with Community law". The Lord Advocate is a member of the Scottish Executive. By virtue of section 126(1) the word "functions" includes powers and duties. The serving of an indictment and the pursuit of a criminal prosecution are within the functions of the Lord Advocate. He has purported to exercise those functions and he is proposing to continue to do so. Whether the exercise is or is not compatible with any of the Convention rights then remains as a devolution issue. That it is not in fact incompatible with such rights, or that it does not fall within the scope of any of the rights, does not disqualify the dispute from being a devolution issue. If I understand paragraph 2 of Schedule 6 correctly, it is specifically recognising that frivolous or vexatious contentions could, but for that provision, be advanced to support argument on a devolution issue, presumably on the side of the party making the challenge. It appears that the purpose of that paragraph is specifically to exclude a case to the extent that it is supported by frivolous or vexatious contentions from qualifying as a devolution issue, which otherwise it would have done. As matter of competency, as distinct from relevancy, the appellants' application seems to me to be competent. It was then necessary for the appellants to raise the matter not later than seven days after the service of the indictment in terms of rule 40.2 of Criminal Procedure Rules. The point then falls to be resolved at a preliminary diet.

    But while the application is technically competent, I have some doubts about its relevancy. That is to say, while it plainly raises a devolution issue for the procedural purposes of the Scotland Act 1998, there is to my mind a question whether the act complained of can be said to be incompatible with the particular Convention right founded upon, namely that set out in article 6. That provides that "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ". The problem here is one of defining the scope of article 6. It is not a matter of the construction of the Scotland Act, except in so far as the Convention rights are prescribed as the standard to be observed under that Act. The question is whether the bringing of the charge, or even the persisting in it, can constitute an act by the Lord Advocate incompatible with article 6. It could be argued that the Article is dealing essentially with the securing of justice in the resolution of disputes. In particular, in the context of criminal matters, it is concerned with the process of determining a charge, not with the making of a criminal charge in the first place. The Article starts from the premise that a charge has been brought and is concerned to secure that the determination of that charge is achieved through a fair and public hearing as is more fully set out in the Article. It is concerned with the determination of the charge, not with the bringing of the charge. The requirement that the hearing be "within a reasonable time" predicates that there has been a charge from the date of which the reasonableness of the time can be measured. The minimum rights specified in article 6(3) are rights for "everyone charged with a criminal offence". Article 6(1) will bite as soon as a charge is brought and it will continue to affect the whole course of the subsequent proceedings concerning that charge. But it seems to me that there is a real question whether the bringing of a charge, which may be seen as a pre-condition for the Article to apply, can itself fall within the scope of the Article. And if the existence of a charge is a pre-condition, then the insistence in the charge after it has been brought may also be outside the scope of the Article. There may be a further question whether the acts complained of may be challenged under some other Article of the Convention than article 6.

    On the other hand it could be argued that such an approach is too precise and technical a construction of the Article. In the present case both of the appellants appeared on Petition. That may satisfy the autonomous concept of a charge for the purposes of article 6. The hypothesis then is that a fair trial subsequently becomes impossible. By serving an indictment in such circumstances and thereafter setting in motion the machinery for a criminal trial the Lord Advocate may be seen to be to be requiring the appellants to undergo what is ex hypothesi an unfair trial. It is to be remembered that in Scotland the Lord Advocate is "master of the instance". "It is for the Crown to decide whether or not a prosecution is to take place, subject only to a very limited right of private prosecution and to a very rarely exercised power in the court to stop a prosecution once it has begun, on the ground that it is oppressive" (Renton & Brown's Criminal Procedure, 6th ed. (loose leaf) 1996). The accused can of course raise a complaint about the insistence of the prosecution by way of a preliminary plea in bar of trial. Thus in H.M. Advocate v. Little (1999 S.L.T. 1145), where the point was raised as a devolution issue, a long delay between the making of a charge against the accused and the service of an indictment was held to be contrary to article 6(1) of the Convention. Where the circumstance which gives rise to the unfairness is not of the prosecutor's own making it may still be appropriate to regard his act in prosecuting as a cause of the unfairness in circumstances where it can be predicted that no fair trial is possible.

    It is, however, unnecessary to express any concluded view on the relevancy of the present complaint, and I would prefer not to do so. The doubts which I have expressed about the relevancy of the case, doubts which may in any event be misplaced, have not been shared by any of the parties before us, nor have they been explored by either of the courts below. Furthermore a detailed review of the developing jurisprudence in Scotland would be required if the matter was to be explored in depth. It appears that that the problem of pre-trial publicity may well already have been seen as falling within the scope of section 57(2) and article 6(1) (see for example Paton v. Ritchie 2000 JC 271 at 274-275). Moreover, when the complaint started there were direct allegations of actings by the Lord Advocate beyond the bringing of the prosecution. It was only later that the issue has come to be confined to the serving of the indictment and the continuing with the prosecution. If there is an issue of relevancy which requires determination here it has not been focussed in the Scottish courts and in light of the terms of the originating minutes the point might well have been obscured. I would proceed to decide the present case on the substance of the point raised for decision by the parties and assume, without the expression of any final view, that it has not only competently but also relevantly been raised in the present process.

    The issue for determination is whether the Appeal Court were correct in holding that despite the considerable pre-trial publicity which has followed upon the trial of Ronnie Coulter the appellants may still receive a fair hearing before an impartial jury. Despite the powerful arguments which counsel for the appellants presented I have not been persuaded that the Appeal Court were in error in so holding. It can certainly be accepted that the publicity here has been extensive. We have been shown a number of excerpts from television broadcasts and a substantial quantity of items from the public newspapers and other publications have been put before us. There must have been many members of the public who through one means or another became aware of the concerns raised by the first trial and its verdict. The Lord Justice General (Rodger) accepted that the publicity given to the remarks by the trial judge and the response by the Lord Advocate was such that a significant number of those ballotted into the jury would be generally aware of the background. As a matter of first impression from the quantity and intensity of the publicity it is not difficult to recognise that some fear could reasonably be held that at least objectively a jury might be seen as lacking a due impartiality.

    But I have not been persuaded that the situation is one where despite the most careful directions by the trial judge a fair hearing can be said to be impossible. The passage of time must be seen to have dimmed recollection of detail. The greatest quantity of the publicity occurred during the period immediately following the earlier trial and while echoes of it still continue references have become more spasmodic. A strong point was made by the appellants that the name of the victim had passed into the currency of those concerned to campaign against racism and that, whether justifiably or not, a parallel had been drawn with the case of Stephen Lawrence. Each of those factors may well serve to perpetuate a recollection of the matter or to bring it back more vividly to the mind of a juror. On the other hand, at least according to the Crown, this was not a racially motivated assault and on that approach the focus of some of the publicity may not be so directly relevant.

    While there has been some mention of the names of the appellants the focus of the publicity has not been concentrated on them personally, but rather on the necessity to bring to trial those, whoever they were, who were involved in the assault and have not been brought to trial. In so far as there may be any dispute on the identification of the appellants as the assailants it does not seem to me that the publicity has created serious prejudice upon the fair resolution of that issue. While it is perfectly proper to ask publicly that the person or persons who are responsible for a murder should be identified and tried for that crime, it does not follow that when persons are brought to trial there is such a consequent prejudice against them whoever they may be that a fair hearing is impossible.

    The Lord Justice General recognised that in the circumstances of this case particular care will have to be given by the trial judge in warning the jury of the dangers of partiality and directing them to proceed upon the evidence which will be led in the trial and upon that evidence alone. Their concentration upon the evidence as the trial proceeds can be expected to become the principal pre-occupation in their minds. It will be on the basis of the evidence led in the case that counsel will make their submissions to the jury. The directions of the judge to them will no doubt reinforce the recognition on their part that consistent with the oath which they have taken they must put aside anything they may have heard about the case in the past outside the court, confine their attention to the evidence which they have heard, and base their verdict solely upon that evidence.

    While I have expressed my own view on the substantial issue I doubt whether it is necessary to go as far as that. It was not suggested that the Appeal Court had erred in any matter of law or principle. The matter is one of assessment and appraisal of the prospects of a fair hearing in the circumstances of the case. That task is one where this Committee must give all due weight and respect to the experience of the judges in Scotland who will be better placed to form a view on such a matter. In the absence of any error in principle I do not consider that it would be right to interfere with their assessment of the situation.

    I agree that the appeal should be dismissed.

    [D1]


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