http://www.scotcourts.gov.uk/opinions/2005HCJ02.html
[2005] HCJ02
HIGH COURT OF JUSTICIARY
NOTE
by
THE HONOURABLE
LORD BRODIE
in Petition of
DOUGLAS FLEMING
for the Recovery of Documents
in causa
HER MAJESTY'S ADVOCATE
against
DOUGLAS FLEMING
___________
Petitioner: Shead, Richardson; Russel & Aitken
Respondent: Angela Graham, A.D., L. Brabender; Crown Agent
28 October 2005
Previous procedure
[1] The Petitioner in this application for the recovery of documents is Douglas Fleming. On 12 July 2005 he was served with an indictment at the instance of Her Majesty's Advocate charging him and a co-accused, James Cameron, with offences in relation to the importation and supply of controlled drugs. The Petitioner has been previously indicted in respect of substantially the same charges but with a different co-accused. The Petitioner and his then co-accused went to trial on an earlier indictment at Glasgow on 13 September 2004. On 28 September 2004 that trial was deserted simpliciter on defence motion. The Lord Advocate appealed that decision by way of Bill of Advocation. The order of the trial judge was recalled by the Appeal Court on 24 March 2005. The circumstances which led to the trial judge deserting the trial had to do with the use or possible use of a Remote Viewing Room (RVR) within the High Court building during the course of that trial and during adjournments (when the Petitioner's legal advisers were in court) at times when an audio-visual television link to the trial court was operational. These circumstances are narrated in more detail in the opinion of the Lord Justice Clerk on the appeal by way of advocation which is reported as HMA v Fleming 2005 SCCR 324.
[2] Following upon successful Crown applications to extend the 11 and 12 month periods provided by section 65(1) of the Criminal Procedure (Scotland) Act 1995, the Petitioner appeared at a preliminary hearing on 12 August 2005. This was continued until 26 August.
[3] The Petitioner and his co-accused appeared before me on 26 August. I heard parties. Mr Shead, on behalf of the Petitioner, explained that there were three preliminary issues (canvassed in four separate Minutes) which he wished to raise and which required to be determined before a trial diet could be appointed. One of these issues related to the unauthorised transmission of what occurred in the trial court to the RVR. In bar of trial and in terms of the relevant Minute (the "RVR Minute") the Petitioner contends that the fact that the unauthorised transmission had occurred amounted to a contravention of his rights as guaranteed by Articles 6(3)(c) and 8 of the European Convention on Human Rights (the "Convention"). He further contends that consequently he cannot receive a fair trial on the current indictment, that the conduct of the Lord Advocate in insisting in the prosecution is an abuse of process and that his act in so doing is ultra vires.
[4] The preliminary hearing was further continued to 31 August and then to 7 September and then to 3 October and then to 4 October, by which date I had heard argument on two of the preliminary issues. This left the RVR Minute. On 7 September I appointed the Petitioner to lodge a statement of facts and issues between the parties in relation to the unauthorised transmission point by 21 September and the Crown to lodge Answers thereto by 28 September. On 4 October 2005 I further continued the preliminary hearing until the following day with a view to determining further procedure. On 5 October I assigned 24 October 2005 and the subsequent four days as a diet of continued preliminary hearing for the purpose of leading evidence, if necessary, and assigned 17 October as a diet of continued preliminary hearing in order that the court could be updated as to progress in identifying the precise form that the hearing on 24 October should take and, in particular, the need for proof. I granted diligence for citation of witnesses and havers. On 17 October Mr Shead advised me that adjustments had been drafted to the previously lodged statement of facts and issues which would address the issues raised by the Crown in their Answers. Certain disclosures had been requested from the Crown which had not been forthcoming. The Advocate Depute advised that Mr Shead had requested sight of witness precognitions but that no explanation had been forthcoming as to why these were being sought.
The petition for recovery of documents
[5] The petition for recovery of documents was presented on 19 October 2005. It came before Lord Wheatley on Friday, 21 October 2005. Parties agreed that it was convenient that it be heard by me. By reason of the later than anticipated conclusion of a trial I was unable either to conduct the preliminary hearing fixed for 24 October on that date or hear this application. The petition accordingly called before me on 25 October 2005. I heard argument on 25 and 26 October.
[6] Petitioner avers inter alia:
"2. That a continued preliminary hearing has been fixed for 24 October 2005 to be heard by Lord Brodie.
3. That it is intended that the Court hear evidence in support of the Petitioner's plea in bar of trial.
4. That it is understood that the Crown conducted certain enquiries in the wake of the desertion of the petitioner's previous trial in September 2004.
5. That in order to prepare for the hearing [on 24 October 2005], it is necessary for the Petitioner's advisers to be given disclosure of material already requested in paragraph 3 of the petitioner's agents' letter to the Crown dated 15 September 2005 namely statements together with the working notes of those involved in the investigation and also drafts of statements and affidavits in respect of (i) all those known to have been in the Remote Viewing Room during the course of the petitioner's trial in September 2004 and (ii) all those spoken to by the Crown during the course of its subsequent investigation.
6. That it is in the interests of justice that the petitioner obtain this material. Such material is necessary for the proper preparation and presentation of the petitioner's defence."
It is the documents referred to in statement 5 that the Petitioner seeks to recover. Notwithstanding the more general reference to the Petitioner's defence their immediate purpose, as Mr Shead came to acknowledge, is for use at the preliminary hearing.
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