George Nicolaou;Lech Garlicki;Ledi Bianku;Lord Justice Schiemann;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant, Mr William Frederick Ian Beggs, is a British and Irish national who was born in 1963 and is currently serving a sentence of life imprisonment in HM Prison Peterhead. He was represented before the Court by Ms R. Cameron, a lawyer practising in Edinburgh.

In the early hours of the morning of Sunday 5 December 1999, Mr Barry Wallace, then aged eighteen years, disappeared following a Christmas function organised by his employers. There was evidence that Mr Wallace had consumed a great deal of alcohol and, after leaving the function, had had an altercation with a friend, G.B., before the two youths made up and Mr Wallace left to go to a nightclub. The last sighting of him was at the entrance to the nightclub at around 1.30 a.m.

On 6 December 1999 members of the Central Scotland Police Underwater Search Unit discovered severed parts of a human body while on a training exercise in Loch Lomond. Further body parts were discovered on 7, 8 and 10 December 1999. On 15 December 1999 a human head was discovered at Barassie Beach in Troon. Some weeks later, on 8 January 2000, a human torso was recovered from Loch Lomond. DNA analysis revealed the body parts to be those of Mr Wallace.

Post-mortem examination revealed certain pre-mortem injuries, including bruising to, and fractures of, the underlying bones of the face; areas of extensive bruising around the anus and in the rectal mucosa; linear marks on the wrists and ankles consistent with these having been caused by the application of handcuffs; and a puncture mark on one of the arms, consistent with that having been inflicted by a needle. Pathologists were unable on the basis of the autopsy findings to determine any definite cause of death.

In the meantime, on 16 December 1999 the Procurator Fiscal in Kilmarnock sought and obtained a Sheriff warrant to search the home of the applicant.

On 17 December 1999 the police conducted a search of the applicant’s home while he was absent and discovered quantities of Mr Wallace’s blood, as well as other significant items. On the evening of 17 December 1999, upon hearing of the search of his home via the media, the applicant left Scotland.

On 21 December 1999 a warrant for the arrest of the applicant was issued by Kilmarnock Sheriff Court in the following terms:

“(1) On 5 or 6 December 1999 in Kilmarnock the precise locus being to the petitioner presently unknown [the applicant] did abduct Barry George Wallace ... apply handcuffs or similar implements to his wrists, bind his legs with a ligature and forcibly confine him against his will.

(2) On 5 or 6 December 1999 in Kilmarnock or elsewhere in Scotland the precise locus being to the petitioner presently unknown did assault said Barry George Wallace, dismember his limbs and cut his head from his body with a saw or similar instrument and by those means or by some other means to the petitioner presently unknown did murder him.”

On 28 December 1999 the applicant, having sought legal advice in the Netherlands, voluntarily surrendered to the Amsterdam Foreign Police Bureau (Vreemdelingepolitie). On 29 December 1999, the applicant appeared before a Police Court (Rechter Commisaris) in Amsterdam and was remanded in custody pending receipt of a formal extradition request from the United Kingdom authorities.

On 10 January 2000 a further warrant for the arrest of the applicant was issued by Kilmarnock Sheriff Court which narrated the terms of the previous warrant and continued:

“... being conscious of his guilt in respect thereof, did on 5 or 6 December 1999, remove the dismembered body of said Barry George Wallace from 2B Doon Place, Bellfield, Kilmarnock, and did attempt to conceal parts of said body in the waters of Loch Lomond, Stirlingshire, and, in particular, did attempt to conceal there the torso, two severed arms, a severed leg and two sections of leg and further, between 5 and 15 December 1999, both dates inclusive, at Barassie, Ayrshire, did attempt to dissociate the severed head of said Barry George Wallace from the other dismembered parts of his body, and did attempt to conceal it in the sea there, and all of this he did with intent to conceal the crimes of abduction and murder narrated above, to prevent the authorities from recovering evidence in connection with said crimes, and to avoid detention, arrest and prosecution in respect of said crimes, all with intent to pervert the course of justice and did attempt to pervert the course of justice.”

On 10 January 2000 an application for extradition was sent to the Scottish Executive and the Amsterdam Public Prosecutor. On 25 January 2000 a Principal Letter of Request was sent to the Home Office in London by the Crown Office in Edinburgh. On 21 February 2000 the Letter of Request was sent to the competent legal authorities in the Netherlands.

The applicant challenged his extradition on the grounds that he would not receive a fair trial in Scotland as a result of the extensive media coverage of the crime and that there was a risk to his well-being as a result of a death threat made against him following the media coverage.

On 28 March 2000 the extradition request was heard by the District Court of Amsterdam (Arrondissementsrectbank). On 11 April 2000 the court approved the extradition of the applicant in respect of the matters contained in the first petition of 21 December 1999 but declined to authorise extradition in respect of the second petition on the ground that the facts set out in it and averred to constitute the crime of attempting to pervert the course of justice would not be a crime under Dutch law and accordingly did not meet the test of double criminality.

On 25 April 2000 the applicant appealed to the Supreme Court of the Netherlands (Hoge Raad der Nederlanden). A procedural hearing was held on 13 June 2000. The Advocate-General delivered his opinion on 25 July 2000 advising the court to dismiss the applicant’s appeal.

On 26 September 2000 the Supreme Court upheld the decision of the Amsterdam District Court to extradite the applicant in respect of the matters contained in the first petition and refused the appeal.

On 14 November 2000 the Dutch Minister of Justice agreed to extradite the applicant to the United Kingdom on charges of murder and abduction. On 22 November the applicant lodged an application in the District Court of The Hague for review of the Minister’s decision. The hearing took place on 19 December 2000 and the court rejected the applicant’s motion by judgment of 5 January 2001.

The applicant was extradited to the United Kingdom on 9 January 2001.

On 10 January 2001 the applicant appeared from custody on petition before Kilmarnock Sheriff Court and was remanded in custody for one week pending inquiries.

On 17 January 2001 the applicant appeared before the Sheriff Court and made no plea or declaration. He was fully committed for trial and remanded in custody for 110 days.

On 14 March 2001 the Lord Advocate indicted the applicant for trial on charges of murder in the High Court sitting in Edinburgh on 17 April 2001. The indictment containing the following single charge:

“... on 5 or 6 December 1999 at 2B Doon Place, Bellfield, Kilmarnock you did assault Barry George Wallace..., place handcuffs on his arms and legs, struggle with him, punch him on the face, restrain him, puncture his arm with a needle or similar instrument and penetrate his hinder parts with your private member, all to his severe injury and you did murder him and further you did dismember his body and dispose of the dismembered parts in Loch Lomond, Stirlingshire, and in the sea at Barassie, Troon, Ayrshire.”

The applicant subsequently lodged two minutes. The first sought a finding that the extent of the pre-trial media coverage was such that it was impossible for him to receive a fair trial. The second challenged the validity of the extradition procedure and sought to have the averments of dismemberment and disposal of the body removed from the charge on the indictment.

On 29 June 2001, the applicant’s legal advisers argued a plea in bar of trial on the grounds of the two minutes lodged. Both minutes were refused by Lord Wheatley sitting in the High Court. However, he granted leave to appeal and the applicant duly lodged a note of appeal.

In his written opinion on the disposal of the minutes, Lord Wheatley discussed the extent of the media publicity in the applicant’s case. He noted that a very considerable degree of attention had been devoted in the media to the discovery of the body parts, particularly by newspapers in widespread circulation in Scotland. The applicant had been identified as a prime suspect well before a warrant had been sought for his arrest. His sexual character had been described in prejudicial terms. Analogous previous convictions had been disclosed, as was the fact that the applicant had been cleared on appeal of a previous murder on what was described as a technicality. Photographs of the applicant, including a photograph in which he appeared in handcuffs, were published. As to the nature and extent of the coverage, Lord Wheatley noted:

“5. ... It cannot be in doubt that the coverage of the story in certain newspapers in the period immediately after the disappearance of Barry Wallace was extremely prejudicial to, and damning of, the [applicant]. In respect of some of the stories, it could hardly have been more so. However, the character and extent of this coverage did appear to diminish significantly after the initial period of two or three weeks, although it by no means disappeared. This may have had something to do with the provisions of the Contempt of Court Act 1981, which only comes into effect once criminal proceedings have started. An order made under that Act was pronounced in respect of the present indictment on 21 April 2001, restricting the reporting of details of the case, and that order appears to have been observed ...”

The judge turned to consider the case-law of this Court and of the domestic courts. He accepted that adverse media or press publicity generally carried the serious risk of compromising or prejudicing the fairness of the hearing. In circumstances where the nature and extent of pre-trial publicity were such that it would be impossible for the trial judge to secure a fair hearing by means of appropriate directions to the jury, the court would require the proceedings against the accused to be discharged. He continued:

“12. In the present case I have no doubt that the test which the [applicant] has to satisfy has not been met. While there must be a potential risk that a jury will have been prejudiced against the [applicant] as a consequence of the publicity at the time it was published, and to a certain extent thereafter, I am satisfied that this risk is of a sort that is capable of being managed by the presiding judge during any trial. It is true that there has been an extensive degree of sensational coverage of this case. That is perhaps to be expected in view of the nature of the offence. It may be suggested that it is entirely unsatisfactory that newspapers can state openly that the [applicant] is guilty of the offence of murder, that he has previous convictions for analogous offences and that in effect he can be linked to serial killers and similar unsolved offences. However, this sort of reporting is not illegal and cannot be until criminal proceedings start against any accused. While therefore the impact of the prejudice from the media coverage may well have been severe during December 1999, I am satisfied that it has diminished considerably with the passage of time. It is now eighteen months since the discovery of the body of Barry Wallace. Although the media coverage was extensive and sensational, it was only one story in many covered by the same kind of approach in the newspapers concerned. Further, while the details of the disappearance and death of Barry Wallace and the discovery of his remains will no doubt remain in the minds of many, I was not persuaded by the [applicant’s] submissions that the link between the murder and the [applicant] has achieved the same endurance in the public consciousness. Further, the circumstances and character of a jury trial is such that jurors are compelled to examine the evidence presented to them exclusively and are not primarily influenced by recollections of what may have been reported in a sensational and essentially ephemeral manner some considerable time before. In the concentrated atmosphere of a court room, when the jury are required to focus on the evidence presented to them, the clear directions by the trial judge are, in almost every case, likely to be sufficient to secure a fair and unbiased hearing. The development of the jury system, the strict rules which apply to the presentation of evidence ... and the continuing evolution of judges’ directions to the jury are all designed to secure a fair hearing before an impartial tribunal. If this were not so, it would be necessary to abandon the principle of trial by jury.”

The judge was satisfied that allegations by the applicant that the police had put improper and prejudicial information in the media were without concrete support.

As to the applicant’s complaint that the rule of specialty in the context of extradition precluded the inclusion in the indictment of averments concerning events after the victim’s death, given that the Dutch authorities had refused to extradite him on the charge of perverting the course of justice, Lord Wheatley found against the applicant. He accepted that the indictment could not include any offence in respect of which extradition had not been granted, and that in the present case it therefore had to be restricted to abduction and murder. He considered the statement accompanying the extradition request, to the effect that death had been brought about by dismemberment or by cause unknown, to have been both reasonable and justified. He further observed that the applicant could face no separate penalty on a charge of perverting the course of justice under the indictment. Even without mention of dismemberment in the indictment, the murder charge would always be aggravated by the method of disposing of the body. He concluded that it was therefore appropriate to include the averments as to dismemberment and disposal.

The Appeal Court of the High Court of Justiciary (“the Appeal Court”) heard the appeal on 7-8 August 20. On 17 August 2001 it refused the appeal and issued a written opinion. On the question of the pre-trial publicity, it observed:

“29. ... [W]e should in the first place say that in our view there is no doubt that the publicity which followed the disappearance of Barry Wallace was extensive and highly prejudicial to the appellant ... It is not, in our view, necessary to go into the publications in particular detail or to recite the various pejorative epithets that were used in relation to the appellant. It is sufficient to note that the information published included statements that the appellant had previously been convicted of murder, that his conviction had been quashed ‘on a technicality’ and that he had also been convicted of assault. Moreover, the publications drew attention to the fact that there was some similarity in respect of the use of a razor or similar instrument between the circumstances of the appellant’s previous convictions and the supposed circumstances of the present case. This is just the kind of information which has led to the discharge or refusal of a prosecution, in the few cases in which that extreme course has been resorted to by the court. It is, of course, true that there are legal systems in which the court, and the jury, are permitted to know details of a person’s previous criminal record, but our practice has always set its face very strongly against any such disclosure. It is well known that even accidental disclosure of some minor previous conviction in the course of a trial may well lead to abandonment of the proceedings or at least of the particular indictment. In these circumstances, we have no doubt that publication of such information was very liable to prejudice the accused. Indeed, we would question whether any reporter or editor could have been unaware of the importance which the law of Scotland gives to non-disclosure of a previous criminal record. In these circumstances, if the trial had required to proceed within the normal period after the issue of a petition warrant, that is assuming a relatively quick arrest and a trial within 110 days, we would have grave doubts as to whether the prosecution could have proceeded with such a timescale. In the light of the pre-trial publicity, the Crown might have had to consider whether to release the appellant from custody and endeavour to bring the case to trial before the expiry of the twelve month time limit.

If the prejudicial nature of the information is the crucial matter to be put on one side ..., the matters to be placed on the other side can be succinctly referred to as the effects of the lapse of time and the process of trial. As has, again, been set out in previous authority, the legal systems which rely on adversarial proceedings and trial by jury are prepared to extend a high degree of trust, which is believed to be well merited, to the readiness of jury men and women to apply the law as it is stated to them and consider the case strictly on the evidence led at a trial. If this were not so, it is doubtful whether the continuance of the practice of jury trial could be justified. Further, as the cases show, it has been generally accepted, not only in the United Kingdom, that the effect of prejudicial press publicity tends to diminish with time. While the general public recollection may continue to hold some idea that a particular widely reported event has occurred and that there were some remarkable or sensational circumstances surrounding it, recollection of the details of such publicity is a very different matter. In the present case, the result of the delays which have occurred is that the vast bulk of the publicity is now more than eighteen months in the past. It is true that there were reports of the appellant’s return to Scotland which might have reminded a reader of the previous narratives, but such reports did not go into any detail in relation to what had previously been reported. They certainly did not repeat the materially prejudicial statements to which we have referred. Apart from the mere lapse of time, account is always taken of the trial process itself which by setting the evidence before the jury in detail and providing them with the expert analyses of counsel and the directions of the judge, is calculated to direct their attention to the evidence and away from any extraneous material.”

As regards the specialty argument and the inclusion in the indictment of an averment of dismemberment, the Appeal Court found that the argument before it had added nothing to the considerations which were before the trial judge, whose conclusions the Appeal Court upheld.

On 14 September 2001, the applicant pleaded not guilty to the charge. His counsel subsequently made a request for an order under section 4(2) of the Contempt of Court Act 1981 restricting the reporting of the trial. The request was refused by Lord Osborne for reasons set out in his written opinion dated 17 September 2001.

The judge noted that it had been held in the case of Galbraith v. HM Advocate 2001 SLT 465 that the power under section 4(2) of the Contempt of Court Act 1981 to make an order postponing publication of a fair and accurate report of the trial proceedings was confined to such a publication; it was not intended for use to prevent unfair or inaccurate reporting, which would be capable of being dealt with as a contempt under section 2 of the Contempt of Court Act 1981. The judge therefore held:

“...[I]n my judgment the question for me is whether ‘a fair and accurate report of’ the present trial ‘held in public, published contemporaneously and in good faith’ would create ‘a substantial risk of prejudice in the administration of justice in’ these ‘proceedings’. I have come unhesitatingly to the conclusion that it would not. Senior counsel for the accused himself said that he had ‘no problem’ with fair and accurate reporting; his concern lay elsewhere. That acceptance that fair and accurate reporting did not create a problem is plainly fatal to the motion which he made, since, as the Lord Justice General put it in Galbraith, section 4(2) is intended to deal with fair and accurate reports of proceedings which should nonetheless be postponed, not with material outwith the scope of such reports ...

Quite apart from the position taken up by senior counsel for the accused, in relation to the effect of fair and accurate reporting of the trial, I can see no basis at all in this case for concluding that fair and accurate reports of the trial, which will, after all, be held in public, could create a substantial risk of prejudice to the administration of justice in these proceedings. Indeed no case was cited to me in which a Court has held that such reporting could create such a risk in the proceedings themselves, as opposed to other proceedings.”

On 18 September 2001, the jury were called and sworn and the applicant’s trial commenced before Lord Osborne. He was represented by senior counsel.

The applicant’s counsel subsequently invited the court to summon publishers of specific allegedly prejudicial material which had been reported and published on the Internet as news in December 1999 but remained available on the Internet in the archives of the publications in which it had originally appeared.

On 21 September 2001 Lord Osborne refused the applicant’s motion, for reasons set out in his second written opinion. In his opinion, the judge referred to the factors identified by Lord Justice Schiemann LJ in AttorneyGeneral v. MGN Limited, one of which was the likelihood of the publicity coming to the attention of an actual or potential juror. Lord Osborne emphasised that in the present case, as he had been informed by the prosecution and as was not disputed by the defence, the action of entering the applicant’s name into a standard search engine on the Internet would not lead the searcher to the impugned materials. Instead the searcher would have to go to the website of a particular newspaper or broadcaster, and then search its archived material. The judge continued:

“25. Among the other factors referred to by Schiemann LJ is the focusing effect of listening over a prolonged period to evidence in a case. It appears to me that in the circumstances of the present case this is a factor of some importance. Furthermore, he considered that an important consideration was the likely effect of the judge’s directions to a jury. Likewise, I consider that this is a matter of great importance. At the commencement of the present proceedings I took pains to direct the jury that their ultimate decision would require to be based upon the evidence which they heard in the Court proceedings, and not upon any extraneous matter which might come to their attention. In due course, that direction will be repeated when the time comes for me to charge the jury. I have no reason to suppose that the jury in the present case will not follow that direction. The system of trial by jury depends upon confidence being placed in juries to follow directions which they are given.”

He was satisfied that the material in question had not been shown to be material which would create “a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”.

On 26 September 2001 Lord Osborne rejected the applicant’s objection to the admissibility of a statement by a deceased witness, K.P. (anonymised for the purposes of this present judgment only), regarding the applicant’s sexual conduct, for reasons set out in his third written opinion. He considered that its admission would not violate Article 6 §§ 1 or 3 (d) of the Convention, noting that, unlike the position in other jurisdictions, the requirement of Scots law for the proof of a criminal charge by corroborated evidence was “a protection of very considerable importance”. As to the evidence contained in K.P.’s statement, the judge observed:

“29 ... Having regard to the nature of the statement of [K.P.], at best for the Crown, it might demonstrate only a propensity on the part of the accused to engage in homosexual sexual activity of the kind described in it. In the present case, the Crown will require to lead corroborated evidence of the crimes charged against the accused; it appears to me that the contents of the statement of [K.P.], while they may be of some assistance in the context of a circumstantial case, are unlikely to be able to carry the Crown very far ...”

The judge further referred to the safeguards present in section 259(4) of the Criminal Procedure (Scotland) Act 1995 (see paragraph 109 below) and to the fact that particular directions to the jury concerning the weight to be given to K.P.’s statement would be necessary. Finally, he noted that it was not said on behalf of the accused that the contents of the statement were untrue. He observed that if, as the evidence in the case unfolded, the significance of the evidence contained in the statement assumed greater importance in the prosecution case, it would be open to the accused to raise the matter again, adding:

“30. ... Indeed, the overall fairness or unfairness of the trial in relation to Article 6.1 of the convention could be considered in the context of an appeal. As I understand it, it is only in the context of a completed trial that a conclusive assessment of that matter can be made.”

On 3 October 2001 Lord Osborne ruled that the search warrant was granted in respect of the applicant’s home and refused an adjournment to allow the applicant to challenge its validity by way of bill of suspension, for reasons set out in his fourth written opinion. The case to be presented on behalf of the applicant in respect of the proposed challenge to the validity of the search warrant was that the police and Procurator Fiscal had no sufficient basis for seeking a warrant. The trial judge concluded:

“32. ... Having heard what has been said in defence of the warrant, it is clear and not disputed that certain material was placed before the sheriff which supported the granting of the application and ... I am not persuaded that there has been shown a prima facie case of invalidity of the warrant, such as might be raised in a bill of suspension.

In any event, whether an adjournment for the contemplated purpose is to be granted in the course of a trial is plainly a matter for the exercise of my own discretion. While there may be cases in which the granting of such an adjournment would be appropriate, I have not been informed of any case in which that course has actually been followed. In any event, the present trial has now been running for many days. It is far from clear how long an adjournment for the purpose of the bringing of a bill of suspension would require to be. Moreover, it is obvious that the granting of the adjournment for such an uncertain period would be highly disruptive, so far as the jury is concerned, in a trial which is plainly of importance. Having regard to the fact that the issue sought to be raised in a bill of suspension can, if appropriate, be raised in the course of any appeal which may follow any conviction in this trial, it appears to me that no injustice would be done to the accused by the refusal of the present motion.”

At the conclusion of the trial, Lord Osborne delivered his charge to the jury. As regards prejudicial publicity, his direction was as follows:

“Now, ladies and gentlemen, I have spoken about your responsibility to evaluate and assess the evidence and reach a decision in the light of the evidence. That is what you undertook to do when you took the oath at the start of this trial. So let me dwell for a moment upon what evidence is for this purpose. Evidence quite simply is the testimony of witnesses which is actually given in this Court including any documentary evidence or other material to which they may refer in the course of what they say which had been produced in the case. That, ladies and gentlemen, is the limit of it. That is what evidence is. Evidence does not include assertions or propositions or suggestions which have been put to witnesses in questions to them with which they did not agree. Furthermore, evidence does not include any extraneous material in any form which may have come to your attention concerning this case or to Mr Beggs or concerning Mr Beggs, the accused, from any source outside the four walls of this Court, whether it be in Press, on television or in any other way. Any such material as that should be completely ignored by you. That is not evidence. To pay heed to it would be quite simply a breach of the oath which you took at the start of theses proceedings to reach a decision in the light of the whole evidence in the case. So please, ladies and gentlemen, do bear these matters in mind when you come to deliberate.”

In respect of the allegation in the charge that the applicant had penetrated the victim with his private member, the judge explained to the jury that this amounted to an allegation of sodomy and gave them directions on the circumstances in which anal penetration amounted to a crime.

Regarding the evidence of the deceased witness, K.P., he said:

“... [W]hat I must impress upon you is that that material differs from the evidence given by a witness over there in the witness box. [K.P.] unfortunately could not do that and certain consequences flow from that. Because he is dead, evidence is competent and permissible of the things which he said before he died because that is the only now available material which there can be relating to what he said. However, you should understand that because he is now dead, because he has not been directly a witness in this case, you should approach his evidence in a different way from the way in which you would approach the evidence of a living witness. In the first instance, you have not had the opportunity if seeing [K.P] or hearing him giving his evidence. You have not had the opportunity of assessing his demeanour in the way in which you can assess the demeanour of other witnesses. Furthermore, he has not been put on oath in this Court in a formal way which is a matter of significance and more particularly he has not been cross-examined by the lawyers who have appeared in this case in the way that they have been able to cross-examine other witnesses. So these features mean that you should approach his evidence, the material which is in the statement which he is said to have made, with critical care and you should assess its weight in the light of the considerations which I have just mentioned.”

The judge also directed the jury that no adverse inferences could be drawn from the fact that, when charged following a caution in which he was told that he did not need to say anything, the applicant chose to accept the invitation to say nothing.

On 12 October 2001 the applicant was convicted of murder by majority verdict of the jury. He was sentenced to life imprisonment with a tariff (punishment part) set at twenty years, to run from 28 December 1999.

In passing sentence, Lord Osborne noted:

“... [Y]ou have been convicted of the crime of murder. Parliament has enacted that there is only one sentence which can be imposed in such a case which is imprisonment for life. Accordingly, that is the sentence which I impose ...

It is also my duty in terms of the Sex Offenders Act of 1997 to state that you have been convicted of a sexual offence to which Part 1 of that Act applies. Accordingly you are subject to the notification requirements contained in that Act ...”

On 2 July 2002 the applicant’s legal advisers lodged a formal note of appeal against conviction and sentence. The note contained eight grounds of appeal against conviction, each ground being subdivided into a number of subparagraphs, and one ground of appeal against the tariff part of the applicant’s sentence.

The grounds of appeal against conviction related to: publicity issues; the admission of the statement of K.P.; the conduct of the prosecutor at trial; the granting of the search warrant; the sufficiency of the evidence; the admissibility of evidence of the applicant’s travel to the Netherlands; the rule of specialty; and the compatibility of the jury trial with the Convention.

On 21 September 2009, following the disclosure process which took place during the appeal proceedings, the applicant lodged a further ground of appeal regarding non-disclosure in relation to a police statement, which had been noted by the police in December 1999, of I.C., a witness who had given oral evidence at trial. Subsequent to making her initial statement to the police, I.C. had been precognised, i.e. interviewed, by both the prosecution and the defence.

The appeal against conviction was heard between 29 September 2009 and 9 October 2009.

On 9 March 2010 the court handed down its judgment refusing all the grounds of appeal against conviction. It made some comment at the outset regarding the delay in the appeal process and observed:

“5. ... At a cost no doubt to the progress of the cases of other appellants, the court was able to arrange for the appeal to be heard over eight days in mid-October 2009.”

Further relevant extracts of the court’s judgment are summarised below.

Under this head, the applicant complained about prejudicial publicity both prior to and during his trial. He relied on Article 6 and complained in particular about the nature of the publicity; the alleged involvement of the authorities in the dissemination of information to the press; the failure of the court to control the publicity; the failure of the prosecuting authorities to control the publicity; the failure of the court to take steps to manage the trial in the light of the prejudicial publicity; and aspects of the Scottish jury system.

The Appeal Court referred at the outset to the opinion of Lord Wheatley in response to the applicant’s plea in bar of trial (see paragraphs 21-23 above) and to the fact that the matter had been considered on appeal (see paragraph 25 above). It also noted the terms of Lord Osborne’s warnings to the jury, both at the start of trial and in his charge to the jury (see paragraph 36 above). The court considered that in approaching matters of publicity, it was important to note the nature and, in particular, the timing of the potentially prejudicial publicity. It reviewed the submissions of the applicant’s counsel before Lord Wheatley as to the publicity which had occurred following the search of the applicant’s home, and quoted extensively the findings of the Appeal Court in its judgment in 2001 (see paragraph 25 above). It noted that roughly one year and eight months had elapsed since the publicity of which the applicant complained was published by the time that the Appeal Court gave its decision on 17 August 2001, and a further month ensued before the trial began.

As to the subsequent refusal of Lord Osborne to allow the section 4(2) motion (see paragraphs 27-28 above), the court said:

“24. Before us, ... counsel for the appellant, sought to question this decision by the trial judge on the basis that postponement of fair and accurate reporting of the trial proceedings was a potential safeguard and that with the benefit of hindsight the focus of trial counsel and the court was too narrow. However, on the court’s testing that assertion, what was submitted was that reading fair and accurate contemporaneous reports of the trial might revive in the minds of the jury some earlier press report which they might have read some 21 months earlier.

We are unable to accept this branch of the argument for the appellant. ... [T]he trial judge was undoubtedly correct in refusing the motion for postponement of fair and accurate reporting of the trial. There was no proper basis upon which he could have acceded to the motion made to him. Moreover, and perhaps more importantly, there is no suggestion in what was put before us that the allowance of the normal rule of reporting matters fairly and accurately resulted in fact in the realisation of the apprehension of trial counsel that the allowance of the contemporaneous publication of such fair and accurate reports would be the source of a repetition of the prejudicial material published prior to the proceedings becoming active. The apprehension upon which the motion was advanced not having materialised, we are unable to see how it could be contended that the refusal of this motion rendered the trial unfair. Moreover, we are unable to understand the suggestion, advanced by counsel for the appellant to us, that the reading by a member of the jury of a fair and accurate report of the day’s proceedings should prompt a mental reaction of recalling prejudicial material which would not derive from the hearing of the whole evidence on that and the previous days of the trial.”

Regarding Lord Osborne’s refusal to summon certain publishers to court (see paragraphs 31-32 above), the Appeal Court observed that it was accepted by both prosecution and defence that the impugned materials were archived material originally published before the criminal proceedings had become active on 21 December 1999 and that they could not be accessed by entering the applicant’s name into a standard Internet search engine. It noted that the applicant did not submit that Lord Osborne had erred but rather that the focus before the trial court had been too narrow. The Appeal Court referred to the applicant’s submission that warnings to the jury to ignore extraneous material were insufficient and that vetting or sequestration of the jury ought to have been carried out, and observed:

“35. ... [W]e start by accepting, as did the Appeal Court dealing with the pre-trial minute, that the articles appearing in the press and other broadcasting media in the interval between, on the one hand, the discoveries in Loch Lomond on 6 December 1999 and more particularly the search of the appellant’s flat on 17 December 1999 and, on the other hand, the criminal proceedings becoming active on 21 December 1999 were highly prejudicial to the appellant. But, as that Appeal Court recognised, in part at least as a result of the interposition of the extradition proceedings, the reality was that a substantial period of time had elapsed since the publication of the offending material in December 1999. In the event, the trial began some 21 months after the proceedings became ‘active’. It has, in our view, been consistently noted by the courts that the passage of time may assuage the effects of prejudicial media reporting ... We recognise of course that it is not a simple matter of measuring the extent to which time has elapsed. The nature of the prejudicial material and other relevant factors may come in to play. Further, as the courts have consistently recognised in the authorities to which we were referred, the discipline of the trial process is another important factor in the evaluation of whether the holding of a trial against a history of prejudicial publicity is unfair. Put shortly, the jury having been participant in an ongoing inquiry in which they have heard the actual evidence from a variety of classes of witnesses, it is that evidence which will be at the forefront of the mind of the jurors and which will predominate over any distant memory the jury might have of some earlier publicity.

... Lord Osborne’s observation was to the effect that whereas the court may be presented with an assembly of a number of prejudicial published articles, it is highly improbable that any potential juror would have read all of that material; there is thus a danger in overestimating the impact which prejudicial publicity may have had on any particular juror.”

The court noted that the trial judge had given the jury very clear directions in his charge on the need to decide the case only on the evidence and to set aside any extraneous material, referring specifically to items in the press, on the television or in any other source, and that similar instructions were given to the jury at the very start of the trial. It concluded:

“38. In our view these were all important factors or safeguards against any effect on the trial which might have emanated from what was published in the various organs of the media in the interval between 6 and 21 December 1999, and more particularly between 17 and 21 December 1999, since it was only on 17 December that the appellant was identified in the press. Certainly, in an era before the archiving of material in electronic form on internet websites, we consider that a court would not have difficulty in dismissing the contention that such prejudicial publicity in that short interval prior to the criminal proceedings becoming active inevitably, and without anything further, rendered a trial taking place some 21 months later unfair where the directions given by the trial judge in the present case had been so given.”

As to the additional “internet dimension”, the court reiterated that it was not suggested that, respecting the state of internet search engines in 2001, the information given to the trial judge as to access to archived material was flawed. The Appeal Court therefore accepted that at the time of the trial, in order to obtain access to the prejudicial archive material, a relatively determined search was required which involved, first, selecting a publisher’s website and then entering into a further search within that archived website. The court also observed that it was accepted by both counsel for the applicant and the prosecution that while in 2001 many people did have access to the Internet, the extent of familiarity with and use of the Internet was less than obtained in 2010.

The Appeal Court concluded:

“40. It is against that background of circumstances as they were in 2001 that we consider the suggestion, never formulated as a distinct proposition or submission, that to ensure a fair trial the trial judge, in 2001, was required, additionally to the other instructions which he gave at the start of the trial, to direct the jury to the effect that the jury members should not undertake any internet inquiries. It is to be observed, first, that the giving of such an additional instruction or direction to the jury was never suggested to the trial judge by either trial counsel ... Secondly, there may be intelligible reasons why that suggestion was not made. Whether such an instruction is a good idea is a matter of debate. As the Solicitor General related, in his recent personal experience, the giving of such a direction was seen as not being – or at least not always being – in the interests of the defence. Thirdly, the model directions culled from New South Wales and the bench book in use in the Crown Court in England and Wales to which we were referred by counsel for the appellant are not only not mandatory in those jurisdictions but also were not in force at the time of the appellant’s trial. They were introduced much later. The same, in our view, applies to the observations recently made by the court in Sinclair v HM Advocate [2008 SCCR 1 where the Appeal Court indicated that, in an appropriate case, the trial judge might give the jury a suitably framed direction about not actively seeking material about the accused on the internet]. The fact that some jurisdictions selected by counsel for the appellant have chosen one path does not indicate a universality of wisdom. There are no doubt others who may have chosen not to follow that particular path.”

In the circumstances the court was satisfied that the fact that the trial judge did not additionally and specifically instruct the jury not to undertake Internet searches did not involve any failing on his part. His primary instruction was to ignore any extraneous materials and to pay attention only to the evidence and in the view of the Appeal Court it was implicit in that instruction that the members of the jury should not seek out such extraneous materials.

As to the suggestion that the trial judge should have ordered that the jury members be sequestered for the entirety of the trial or should have arranged for them to be vetted, the Appeal Court noted:

“42 ... Although at one point trial counsel floated such a course as a possible motion which he might make, in the event no such motion was made, we think wholly understandably. The notion that the members of the jury should be sequestered in hotel accommodation every night and every weekend in conditions, even within the hotel, precluding access to the internet, is so disproportionate that it can readily be rejected. In reality, of which we think trial counsel would be very conscious, such sequestration of the jury might be likely to ‘backfire’ seriously against the accused. Secondly, it was suggested that the trial judge ought to have embarked on an exercise of jury vetting, by specifically questioning the members of the jury regarding their respective recollections of the media articles published some 21 months previously. Suffice to say that such a procedure is without any warrant in our law and is wholly inconsistent with our practice of jury selection. We are not in the least surprised that responsible trial counsel did not make any such suggestion to the trial judge, who, in our view, could not have acceded to such a suggestion were it to have been advanced.”

For these reasons the court rejected the ground of appeal relating to prejudicial publicity.

The applicant contended that the trial judge had erred in admitting the statement made by K.P. and that the admission had rendered his trial unfair.

The Appeal Court referred to Lord Osborne’s opinion on this matter (see paragraphs 33-34 above) and continued:

“55. ...[W]e agree ... that [K.P.’s] statement was simply one piece of circumstantial evidence to be considered along with many other pieces of circumstantial evidence. [K.P.] was relating what the appellant had told him of his habitual behaviour, preferences, and sexual interests ... Once all the evidence had been led, [K.P.’s] statement, if accepted by the jury and considered along with the other pieces of circumstantial evidence which they accepted, might assist them to some extent in drawing inferences about how and why the deceased, last seen in Kilmarnock town centre, and who had no previous connection with the appellant, and who did not normally go to places with strangers, might end up in the appellant’s company and in his flat. But, while accepting that the hearsay evidence was thus not irrelevant, in light of all the other evidence in the case, we agree with the Solicitor General that the appellant’s conviction cannot be said to have been based solely or to a material extent upon [K.P.’s] statement. The statement was simply one of many relevant pieces of circumstantial evidence.”

It further noted that the trial judge had given directions to the jury warning them to treat the evidence of K.P. with caution, for reasons which he carefully explained (see paragraph 38 above). The applicant had not sought to argue that the jury were misdirected. The court added:

“57. ... [E]vidence concerning the appellant’s sexual interests and his statement as to what had occurred on the night in question was also led from [B.]. Many other adminicles of circumstantial evidence were available to the jury to enable them to draw inferences and form a view. Thus the evidence of [K.P.’s] statement did not stand alone and was not thus a crucial element in the prosecution case. So we are unable to detect any sound basis upon which it would be open to us to hold that the admission of evidence from the police officer of what [K.P.] said to him, by reason of its being hearsay evidence, constituted a breach of any ECHR right of the appellant.”

The applicant complained that the conduct of the prosecutor was such as to deprive him of a fair trial, as he had made frequent, deliberate, inappropriate and prejudicial comments both in the course of the evidence led before the jury and in his address to them at the conclusion of the trial to the effect that the applicant had been able to give evidence about matters which were relevant to the issues to be considered by the jury and that his silence was to be interpreted as proof of his guilt.

The Appeal Court examined the impugned acts and comments of the prosecutor. It observed that the posing of rhetorical questions was a recognised and legitimate oratorical technique in a criminal trial, and that the prosecutor had employed this technique frequently in his speech in relation to a variety of matters. On the argument made by the applicant, it concluded:

“68. ... It is important to appreciate that nowhere in the words spoken by the Advocate depute was there any reference to the appellant’s having had the opportunity of giving evidence to provide an answer to the Advocate depute’s rhetorical question and having failed to do so. The trial judge in his charge to the jury underscored the need not to draw any adverse inference from the appellant’s not having given evidence.”

This ground of appeal was accordingly rejected.

The applicant contended, inter alia, that the trial judge had erred in refusing an adjournment of the trial to enable him to seek the suspension of the search warrant on the grounds that it had been granted without adequate reasons.

The Appeal Court noted that in response to its request to the Sheriff who had granted the search warrant, the latter had produced a report dated 31 July 2006, in which he set out his recollection of the hearing. The Appeal Court observed that, unsurprisingly given the lapse of time, it was apparent from that report that the Sheriff could remember little of the detail of the hearing. It explained that with a view to overcoming this, the applicant’s lawyers had been supplied with a typed, essentially contemporaneous attendance note prepared by the Procurator Fiscal, summarising the material laid before the Sheriff. The Appeal Court quoted the terms of the attendance note in full. In relevant extract, it recorded the following:

“Sheriff Russell asked for justification and I informed him that the limbs and head which had been recovered were those of the missing Barry Wallace, and that the police had carried out a MO [modus operandi] profile with SCRO [Scottish Criminal Records Office]. The only suspect in Scotland turned out to be William Beggs, not only that, he lived in Kilmarnock.

The sheriff was advised of the information which the police had in relation to Beggs’ previous conviction at Kilmarnock High Court, where he had picked up and intoxicated a young boy, who awoke to find Beggs cutting his leg ... The sheriff was also advised of the English conviction for murder and for wounding, and the fact that in relation to the woundings, Beggs had cut his victims. He was also advised that the flesh on the limbs had been cut in a similar way before the bones had been cut.

Mr Andrew advised the sheriff that in addition to the background information given above, Beggs is known to have left this country and gone to Ireland, and it is suspected is still there, the inference being that he has fled from this jurisdiction. I further advised the sheriff that we also suspected that the dismembered parts of the body had been taken by Beggs, in his motor car, to the places where they were disposed of, and that he is known to have driven one motor car to Ireland, left it there and returned on foot.

Finally I moved the sheriff to grant the warrant on the basis that the intrusion into Beggs private life was relatively minor compared to the very serious crime under investigation, and therefore that the balance of the public interest lay in granting the warrant.”

The Appeal Court observed, having regard to the terms of the attendance note:

“94. ... In essence, the basis given for suspicion having fallen on the appellant was primarily information held by the police of previous convictions of the appellant and what might be termed police intelligence of other incidents in which there was information considered by the police as implicating the appellant but in which the evidence had been insufficient to allow prosecution. That was supplemented by such suspicions as were raised by the appellant’s movements to and from Northern Ireland ...”

In so far as counsel for the applicant sought to argue that it was illegitimate or inappropriate for the prosecuting authorities to have based suspicion on a police analysis of modus operandi, the Appeal Court rejected the suggestion, noting:

“95 ... In an appropriate case, the police and the prosecutor are, in our view, entitled to proceed upon the basis that information on a person’s criminal history and analysis of modus operandi places that person in the position of a suspect. Clearly, it is not necessary when seeking a warrant that the prosecuting authorities have evidence to establish guilt; the purpose of seeking the warrant to search the property or person of the suspect is with a view to getting evidence helpful to prove the suspicion, or from the suspect’s standpoint possibly eliminating him from that field of suspicion. In our view, the present case was one in which it was appropriate for the police and the prosecuting authorities to proceed upon the basis of previous criminal history (whether by court conviction or police intelligence) and a modus operandi analysis. Additionally, there was the information held respecting the appellant’s movements to and from Northern Ireland.

The Appeal Court therefore concluded that there was clearly a proper basis upon which the Procurator Fiscal sought the grant of the search warrant and that the Sheriff had not erred in exercising his discretion to grant it. In this regard, the court observed that it was apparent from the attendance note that the Sheriff was reminded of the need to balance the public interest in the investigation of crime against the private interest of protection against unwarranted interference in the applicant’s private life.

The applicant contended that the trial judge had erred in rejecting a submission on the sufficiency of the evidence regarding various aspects of the charge, including in particular the alleged penetration of the deceased’s hinder parts by the applicant.

The Appeal Court, having reviewed the evidence presented at trial, considered that there was an adequate evidential base upon which a jury could infer that penetration by the penis had occurred and that the victim had not consented. It therefore rejected this ground of appeal.

The applicant argued that he was convicted and sentenced in breach of the rule of specialty having regard to the terms of the indictment, and in particular the inclusion of references to dismemberment and sodomy; the leading of evidence which was put before the jury as criminal conduct; the basis upon which conviction was sought by the prosecution; the basis upon which the jury were charged; and the terms of his sentence.

As to the inclusion of the averment of dismemberment in the indictment, the Appeal Court referred to the opinion of Lord Wheatley (see paragraph 24 above) and the judgment of the Appeal Court agreeing with that opinion (see paragraph 26 above). It considered that the finality of that decision was not open to being re-visited in the appeal.

The applicant’s principal argument was directed at the inclusion in the indictment of the averment that the applicant “did assault [the deceased] ...and penetrate his hinder parts with your private member”, not argued before Lord Wheatley. According to the applicant, this alleged a separate crime of sodomy, not charged as such in the extradition request, and so the court had no jurisdiction to entertain this allegation of criminal conduct.

The Appeal Court first examined the scope of the specialty rule, observing:

“184. ... [T]he specialty principle prevents a State to which a person has been surrendered from prosecuting that person for an offence different in its essential nature from the charge, or any of the charges, upon which he or she was extradited. The rule does not however have any effect, or operate any restriction, upon the evidence which may be deployed by the prosecutor in proof of the commission of the criminal conduct in respect of which the person was surrendered; and that is so even if the evidence so deployed discloses or suggests the commission of a criminal offence for which extradition was not granted by the sending State.

We would add that these conclusions are, in our view, entirely consistent with the origins and rationale of the specialty rule. The rule is primarily one of international law. It is concerned with respecting the power of the extraditing State to refuse extradition and ensuring that in so far as that State has a discretion to refuse extradition, that discretion is not abused by the receiving State. Its principal purpose is thus to preserve comity between States, rather than effect a protection for the accused. Given that such is the primary purpose, it is in our view comprehensible that the rule should not be concerned with the nature of the evidence and procedure followed in prosecuting the extradition offence or whether the evidence tendered in the proof of that offence might also indicate the commission of some other offence or involve the commission of some lesser offence within the category of the extradition offence ...”

Turning to the inclusion of the averments of anal penetration in the indictment, the court observed that while the trial judge had treated them as amounting to an allegation of sodomy and had given the jury appropriate directions on that crime, it had reservations whether they were properly to be seen as averments of sodomy rather than incidents in the indecent or sexual assault to which the indictment referred. It did not see in the trial judge’s approach anything detrimental to the applicant’s position. It continued:

“188. ... [T]he fact is that the indictment did not include any charge of sodomy separate from the charge of assault and murder and thus no penalty separate from that imposed in respect of the murder could have been imposed upon the appellant in respect of the averment said to be an averment of sodomy.”

As regards the breach of specialty allegation, the court explained:

“190. In the judicial decisions to which we were referred respecting the specialty rule or principle there is recognition that in extradition cases, obviously, one cannot operate a narrow technical approach as to the juristic ingredients in a particular offence; a more ‘conduct based’ approach needs to be followed ... We consider that in principle that view is sound. As was pointed out by the Solicitor General, the first petition warrant upon which extradition was granted referred to the possibility of establishing the death by ‘some other means to the petitioner presently unknown’. At that point in time, the torso of the deceased had not been recovered and hence the procurator fiscal was ignorant of such details of the assault upon the deceased as might later be revealed by that examination. In the event, those details revealed evidence of forcible anal penetration. So, as part of the allegation of assault leading to death, those details were an inherent element of that assault. In other words they were part and parcel of the conduct founding the proof of the extradition charge. On the broader, conduct based approach required in the application of extradition law, we thus do not consider that the possibility that domestic law might technically, or, in the old-fashioned sense of the adverb, nicely, identify a part of the averments of the details of the assault upon the deceased as containing an averment of sodomy leads to any violation of the specialty principle.

Accordingly we do not consider that it can properly be said that the appellant was proceeded against and convicted, separately from the charge of murder, of a distinct charge of sodomy any more than it may be said that he was separately proceeded against and convicted of the discrete charge of assault. The appellant faced a single charge of murder, within which were contained as part of that charge the lesser allegations of assault, including the averment of anal penetration. Whether that be categorised as indecent assault or sodomy it remains a matter within the murder charge. These were lesser offences included within the charge of murder and for the reasons which we have endeavoured to indicate their inclusion did not offend against the international law principle of specialty. Further, in passing sentence, the trial judge stated that the appellant had been convicted of murder and he passed sentence for that offence. No separate penalty was imposed in respect of assault or indeed sodomy. The extract conviction, providing the warrant for the appellant’s imprisonment, records the conviction as being that of murder alone.”

Although, having passed sentence for murder the trial judge went on to say that the applicant had been convicted of an offence to which the Sex Offenders Act 1997 applied (see paragraph 41 above), without explaining the basis for that pronouncement, this did not alter the terms of the conviction by the jury and did not in itself give rise to any liability to the notification requirements in the 1997 Act.

The Appeal Court therefore found that no breach of the rule of specialty had occurred in the applicant’s case.

The applicant argued that the absence of reasons for the jury’s decision, in a case as factually and legally complex as his was, violated his Article 6 rights. He relied, inter alia, on the judgment of the Second Section of this Court in Taxquet v. Belgium, no. 926/05, 13 January 2009; a request for referral to the Grand Chamber was pending at the time.

The Appeal Court examined the general tenor of this Court’s caselaw on the need for reasons, putting to one side its recent judgment in Taxquet, and observed:

“203. [W]e consider that it is clear from the judgments and decisions to which we were referred that the ECtHR‘jury’, the fact that, in returning its verdict, such a jury does not deliver an exposition of its reasoning does not in itself involve any infraction of Article 6. In that respect we refer to the passages, to which reference has already been made, in the decisions in Savic v Denmark; Snooks and Dowse v United Kingdom; and Papon (No. 2) in which the view taken is that the absence of any direct delivery of reasons by the jury itself may be offset by the discernability of the basis of the jury’s decision from the procedural framework in which the jury operates. We would also mention that, although we were not referred to the decision, in Gregory v United Kingdom (1998) 25 EHRR 577 the ECtHR, at para 44 of its judgment, acknowledged that ‘...the rule governing the secrecy of jury deliberations is a crucial and legitimate feature of English trial law which serves to reinforce the jury’s role as the ultimate arbiter of fact and to guarantee open and frank deliberations among jurors on the evidence which they have heard’.”

As to the impact of Taxquet, the court referred to an analysis by Judge Indreberg, giving the lead judgment of the Norwegian Supreme Court in the case of A. v. The Public Prosecution Authority, 2009/397, 12 June 2009, and agreed with her that Taxquet was not to be read as imposing a requirement that a jury supply reasons for its verdict. In the applicant’s case it observed:

“207. Just as in any other jury trial in Scotland, the verdict returned by the jury in the present case is not returned in isolation. It is given within a framework which includes, in particular, the speeches to the jury by those advocating the prosecution and the defence and the directions given to the jury by the trial judge. It is not suggested that the address by the trial Advocate depute in this case did not set out clearly the nature of the Crown case and the evidence which the Crown invited the jury to accept and acceptance of which was necessary if the jury were to return a guilty verdict. Nor is it suggested that the address by defence counsel did not clearly present to the jury the basis upon which it was contended that guilt was not established and that the appellant should be acquitted. It is also not suggested that the trial Judge’s charge to the jury did not adequately identify all the matters which the Crown had to establish, or fail to analyse or describe the necessary elements or ingredients in the offence. Accordingly, from that framework and also from the evidence in the case, the basis of the conviction is discernable. With a jury verdict thus placed in such a framework, we do not consider, having regard to the case law of the ECtHR to which we were referred, that the fact that a jury does not supply reasons involves an infraction of the fair trial requirements of Article 6 of the Convention.

We would add that in the submission as initially presented and also in the ground of appeal, it is suggested that the circumstances of the present case were somehow so complicated or unusual that the normal procedures or framework within which a jury verdict is returned did not suffice. We do not agree with that suggestion. The indictment contained a single charge and, while no doubt a number of legal issues arose in the trial and required to be dealt with by the trial judge, the matters for the jury were not in our view extraordinary or particularly complex ... Further, we would add that the fact that the Crown case was largely circumstantial clearly does not take this case out of the ordinary.”

The applicant contended that the fact that the witness statement by I.C. was first placed in the hands of his lawyers in September 2009 prevented him from calling the witness or making use of the information in the statement in the cross-examination of other witnesses.

The Appeal Court noted at the outset:

“213. It is plain that the drafter of the Note [of appeal] proceeds under a serious misconception. [I.C.] was included as a witness on the list annexed to the indictment, and so could have been called by the defence, had it not been that, of course, she was in fact called by the prosecution and cross-examined by the defence. Further, while her police statement might in theory afford scope for cross-examination on the basis of a prior inconsistent statement, it could not be deployed as a tool of crossexamination of other witnesses, as the drafter seems to have thought.”

The court nonetheless heard submissions from counsel on the basis that the non-disclosure had prevented cross-examination of I.C. during the trial on the basis of a prior inconsistent statement. It noted:

“214. ... As matters emerged in the argument before us, the only possible differences between what the police noted as being [I.C.’s] account and her ultimate evidence was that in the former she is recorded as having said that she noted blood at the left side of the deceased’s mouth following a punch to the deceased’s face by [G.B.]; that apart, she saw no other injuries to the deceased; and that, following the cessation of the fight or altercation, the deceased began to punch his own head – something which he had done before when drunk.”

The court observed that I.C. had been precognosed by both sides and that the results had essentially been the same; and that I.C.’s evidence at trial did not materially depart from the precognitions. It continued:

“219. ... So it is perhaps unlikely that [I.C.] would readily and persuasively accept the accuracy of the police officer’s note of the interview; and were she not to do so, evidence from the police officer to contrary effect, if accepted, would not of course establish the truth of the statement, but might damage her reliability and thus impede the defence in its invocation of the evidence of [I.C.] as undermining the Crown contention. But more importantly, were [I.C.], on being presented with the terms of her statement as noted by the police officer, to have accepted that she did see some blood at the mouth of the deceased, following a punch from [G.B.], and that at some point shortly thereafter the deceased, having got up from the ground, began to punch himself in accordance with a proclivity seen by the witness on previous occasions when drink had been taken, we are unable to see how those additional matters materially assist the defence contention that the serious facial injuries, including the fractures of the underlying bone structures, were caused prior to the deceased’s entry to the appellant’s flat. Were the jury to take account of those additional matters, that account would have to be taken not only in the context of all of the rest of [I.C.’s] evidence, but also the wider context of all of the other evidence respecting the [G.B.] encounter and events preceding and succeeding, including the evidence of his seeking entry to the Club in an uninjured state; and, of course, the medical evidence. We therefore have grave difficulties in seeing how, realistically, disclosure of the police note of the interview could have possibly affected the outcome of the trial or given a real possibility of a different outcome ...”

The Appeal Court was therefore satisfied that the absence of the police statement from the defence file, an absence, it noted, which was also shared by the prosecution, did not result in material prejudice to the applicant or in the trial being unfair.

The applicant’s counsel urged the Appeal Court not only to consider each ground of appeal separately but to look at them as a whole to decide whether the trial had been fair.

The Appeal Court gave the submission consideration but was not persuaded, looking at the grounds jointly and collectively, that a miscarriage of justice had occurred.

On 27 May 2010, the Appeal Court refused leave to appeal to the Supreme Court on four grounds of appeal identified which, the applicant contended, raised human rights issues.

In respect of the first ground of appeal regarding the rule of specialty, the Appeal Court found that no devolution issue arose (see paragraphs 114-115 below).

As regards the second ground of appeal in respect of prejudicial publicity, leave was refused on the basis that it did not raise a matter of general public importance.

Leave to appeal was also refused in respect of the third ground of appeal based on the absence of reasons from the jury. The Appeal Court indicated that it was for the Supreme Court to decide whether leave should be granted on this ground.

Finally, the Appeal Court refused leave to appeal on the basis of the non-disclosure of the statement by I.C. It noted:

“11. ... As is stated in the Note [of appeal], for whatever reason, the members of this court understood from the submissions that [I.C.] had given evidence at the trial whereas it appears that, while she was listed as a witness at an earlier stage in the proceedings and while she was precognosed by both the Crown and the defence, she did not in fact give evidence. However, the real issue raised by this additional ground of appeal was whether, to the extent that the police statement contained any details different from or additional to what had been ascertained by precognition, the defence were materially prejudiced and that issue is unaffected by the misunderstanding ...”

As to the applicant’s submission that for the purposes of deciding whether to grant leave it was important to consider the various complaints “in the round”, the Appeal Court said:

“12 ... For our part we do not consider that this is a proper approach. In our view in considering an application for leave to appeal to the Supreme Court of the United Kingdom, it is necessary to identify and formulate a specific issue or specific issues which properly constitute a devolution issue or issues.”

On 16 December 2010 the Supreme Court refused the applicant’s application for leave to appeal against conviction.

On a number of occasions, starting in about February 2003, letters from the applicant’s legal advisers were opened by prison officers at Peterhead. Although the applicant received official apologies and assurances that it would not happen again, the incidents continued.

In September 2003 the applicant lodged a petition for judicial review in respect of the opening of his privileged correspondence by prison staff, arguing a violation of Article 8 of the Convention.

On 5 September 2003, in the context of the judicial review proceedings, the Scottish ministers gave an undertaking not to open, or have the applicant open in the presence of prison staff, the applicant’s privileged correspondence or correspondence from the Complaints Commissioner sent to HM Prison Peterhead. The judge refused the applicant’s motions for interim interdict (injunction) and interim declarator, noting the terms of the undertaking. The applicant appealed.

While the applicant was detained in HM Prison Edinburgh, his letters were once again opened, the undertaking of the Scottish ministers applying only to mail sent to HM Prison Peterhead. On 19 May 2004, the Scottish ministers extended their undertaking to cover HM Prison Edinburgh.

On 26 November 2004 a prison officer at Peterhead opened a letter from the Complaints Commissioner to the applicant in the latter’s presence. It transpired that the staff responsible for sorting and delivering mail did not understand that the undertaking applied to correspondence with the Complaints Commissioner.

The applicant sought a contempt of court order against the Scottish ministers for the breach of the undertaking. On 15 March 2005, judgment was handed down in the appeal and the court found the Scottish ministers in contempt of court.

Pursuant to section 65(1) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”), the trial of an accused on indictment must commence within a period of twelve months of the first appearance of the accused on petition in respect of the offence. However, in respect of an accused in detention, section 65(4)(b) provides that the trial must commence within 110 days.

A general practice exists in Scotland of prosecution and defence lawyers taking statements from witnesses before the trial commences and preparing a written record of the witnesses’ evidence. These statements are knows as precognitions. Precognitions are inadmissible as evidence at trial but allow lawyers on both sides to know in advance what will be the oral evidence of the witness during the trial.

Scots criminal law distinguishes between summary and solemn procedure. In the former the trial takes place before a judge sitting alone. In the latter, which is reserved for more serious offences, the trial takes place before a judge and a jury of fifteen members on the basis of an indictment.

By section 97(1) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”), immediately after the close of the evidence for the prosecution, the accused may intimate to the court his desire to make a submission that he has no case to answer both: (a) on an offence charged in the indictment; and (b) on any other offence of which he could be convicted under the indictment.

If the trial judge rejects a submission of no case to answer, the defence case is presented. The prosecution and defence then address the jury. The presiding judge then charges the jury. The role of the presiding judge in charging the jury was restated by the Lord Justice General in Hamilton v. HM Advocate (1938) JC 134:

“The primary duty of the presiding judge is to direct the jury upon the law applicable to the case. In doing so it is usually necessary for him to refer to the facts on which questions of law depend. He may also have to refer to evidence in order to correct any mistakes that may have occurred in the addresses to the jury, and he may have occasion to refer to the evidence where controversy has arisen as to its bearing on a question of fact which the jury has to decide. But it is a matter very much in his discretion whether he can help the jury by resuming the evidence on any particular aspect of the case.”

The jury may return one of three verdicts: one of guilty and two alternative acquittal verdicts of not guilty or not proven. No reasons for any of the three verdicts are given by the jury. However, by section 106(3)(b) of the 1995 Act, there is a right of appeal in respect of any alleged miscarriage of justice, which includes a miscarriage based on the jury having returned a verdict which no reasonable jury, properly directed, could have returned.

Section 259 of the 1995 Act sets out a number of exceptions to the general rule in Scots law that hearsay evidence is inadmissible in criminal proceedings. One such exceptions arises where the witness who made the statement is dead.

Section 259(4) provides that where evidence of a statement made by, inter alia, a person who has subsequently died:

“(a) any evidence which, if that person had given evidence in connection with the subject matter of the statement, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;

(b) evidence may be given of any matter which, if that person had given evidence in connection with the subject matter of the statement, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and

(c) evidence tending to prove that that person, whether before or after making the statement, made in whatever manner some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself.”

Pursuant to section 2(2) of the Contempt of Court Act 1981 (“the 1981 Act), a publication which creates a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced may constitute a contempt of court tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.

Section 4(2) of the 1981 Act allows the court, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in the proceedings before it, or in any other proceedings pending or imminent, to order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.

At the relevant time the Extradition Act 1989 applied to the extradition proceedings. Section 18(1) of the Act provided:

“Where any person is returned to the United Kingdom by a foreign state in pursuance of extradition arrangements, he shall not, unless he has first been restored or had an opportunity of leaving the United Kingdom, be triable or tried for any offence committed prior to the surrender in any part of the United Kingdom, other than–

(a) an offence in respect of which he was returned; or

(b) any offence disclosed by the particulars furnished to the foreign state on which his return is grounded; or

(c) any other offence in respect of which the foreign state may consent to his being tried.”

Article 14 of the European Convention on Extradition 1957 deals with the principle of specialty and provides

“1. A person who has been extradited shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited, nor shall he be for any other reason restricted in his personal freedom, except in the following cases:

a. when the Party which surrendered him consents ...;

b. when that person, having had an opportunity to leave the territory of the Party to which he has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it.

Section 57(2) of the Scotland Act 1998 provides that the Scottish Executive (of which the Lord Advocate is a member) has no power to act in a manner incompatible with the Convention.

A devolution issue is an issue raised under Schedule 6 to the Scotland Act concerning whether a legislative provision or an administrative act passed or taken under the Scotland Act 1998 is within the powers of the Scottish Parliament or the Scottish Executive. Notwithstanding the general rule in Scots Law that the Appeal Court is the final court of appeal in criminal matters, a devolution issue can be appealed to the Supreme Court.


Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient

The applicant, who was born in 1968, is currently in custody in Fresnes Prison.

In an order of 5 April 2002 an investigating judge at the Versailles tribunal de grande instance committed the applicant for trial in the Yvelines Assize Court on counts of rape classified as a repeat offence, unauthorised entry into the country following expulsion and illegal entry or residence by a foreign national in France.

On 23 April 2003 the Yvelines Assize Court found him guilty as charged and sentenced him to twelve years' imprisonment. On the same day the Assize Court ruled on the civil claims and awarded the victim, who had joined the proceedings as a civil party, the sum of 15,000 euros (EUR) in damages. The prosecution was represented by B.

Both the applicant and the prosecution appealed.

On 23 July 2003 the Criminal Division of the Court of Cassation assigned the appeal to the Hauts-de-Seine Assize Court. The prosecution was once again represented by B.

The hearing before the Court of Appeal took place on 1 and 2 June 2004.

On 2 June 2004 the hearing was adjourned for the first time between 1.15 p.m. and 2.15 p.m. When it resumed, the President of the Assize Court ordered the photograph album in the case file to be shown to the parties, the jury and the other judges, then announced the questions the court and the jury would have to answer. Counsel for the accused objected to the wording proposed. The President called the civil party, the advocate-general, the defence and the accused, and the court then withdrew to deliberate. The hearing resumed at 2.40 p.m. Counsel for the applicant then filed submissions requesting that the court take formal note that unlawful communication within the meaning of Article 304 of the Code of Criminal Procedure had taken place between certain members of the jury and the advocate-general during the adjournment when the court had withdrawn to deliberate, leaving the jury in the courtroom. The President heard evidence from the applicant's and the civil party's lawyers, the advocate-general and the accused. The court, composed in this instance of only the judges, withdrew to deliberate and then delivered the following judgment:

“The Court, having deliberated without the jury's assistance,

Having regard to the conclusions submitted by Mr G., counsel to Redouane Farhi;

Having regard to Articles 315 and 316 of the Code of Criminal Procedure,

Considering that, as the judges composing the court were not personally in a position to confirm what may have happened in their absence, the court cannot put it on the record;

Further considering that the evidence adduced and discussed inter partes has revealed no violation of the provisions of Article 304 of the Code of Criminal Procedure ...”

In a judgment of 2 June 2004 the Assize Court of Appeal sentenced the applicant to fifteen years' imprisonment and eight years' social and judicial guidance, with the obligation to undergo treatment and not to approach the victim, her mother or her brother. Ruling on the civil claims, it ordered the applicant to pay the victim EUR 15,000 in respect of damage suffered prior to 23 April 2003 and EUR 4,000 in respect of damage suffered thereafter.

In a subsequent appeal on points of law the applicant relied on Article 6 § 1 of the Convention, asserting that it imposed “an obligation on every national court to check whether, as constituted, it is 'an impartial tribunal' within the meaning of that provision where, as in the instant case, this is disputed on a ground that does not immediately appear to be devoid of merit”, and that “in refusing the defence's request for a formal note to be made in the record that certain jurors had communicated with the advocate-general during an adjournment, without ordering an investigation to establish the facts and, if appropriate, taking the action requested by the defence” the Assize Court had infringed the provisions of that Article.

On 16 February 2005 the Criminal Division of the Court of Cassation dismissed the appeal on points of law, holding, inter alia:

“The record of the proceedings states that the accused's lawyer filed submissions requesting formal note to be taken that unlawful communication, within the meaning of Article 304 of the Code of Criminal Procedure, had taken place between certain jurors and the advocate-general while the court was adjourned.

The Court refused that request on the grounds that it could not make a record of things alleged to have happened in its absence, and the evidence adduced and discussed inter partes had revealed no violation of the provisions of the above-mentioned Article 304.

That being so, there was no ground for appeal.

On the one hand the judges composing the court were not personally in a position to confirm what may have happened in their absence.

On the other hand, considering that the evidence adduced and discussed inter partes had revealed no violation of the provisions of Article 304 of the Code of Criminal Procedure, the court used its unfettered discretion without infringing the provisions of the law or the convention on which the accused relied.

It follows that the ground of appeal cannot be accepted. ...”

The relevant provisions of the Code of Criminal Procedure provide:

“The trial jury shall be formed of nine jurors when the Assize Court rules at first instance and twelve jurors when it rules on appeal.

The court shall make a ruling ordering, before the drawing of the list of jurors and separately from it, the drawing by lot of one or more additional jurors who shall attend the hearing.

Where one or more of the nine jurors are prevented from following the hearing up to the delivery of the Assize Court's judgment, they shall be replaced by the additional jurors.

The replacement shall be made in the order in which the additional jurors were drawn by lot.”

“The president shall give the following address to the jurors while they stand bare-headed: 'You shall swear and promise to examine with the most scrupulous attention the charges which will be brought against ...; to betray neither the interests of the accused nor those of society which accuses him, nor those of the victim; to refrain from communicating with anyone until after your finding; to heed neither hatred nor malice, nor fear nor affection; to remember that the accused is presumed innocent and that he has the benefit of the doubt; to decide according to the charges and defence arguments following your conscience and your innermost conviction, with the impartiality and resolution that befit a free man of integrity, and to preserve the secrecy of deliberations, even after the end of your service.'

Each juror being called individually by the president shall answer, raising his hand: 'I swear it'.”

Where an event likely to infringe the rights of one of the parties occurs during the trial, the party concerned may ask the Assize Court - composed in this instance of only the judges - to “take formal note” of it. This is the party's only means of having it recorded. The Court of Cassation cannot entertain complaints that have been raised if no application was made to the Assize Court to take formal note of them and they were not entered in the record of the trial (Court of Cassation, Criminal Division, 23 December 1899, Bulletin criminel (Bull. crim.) no. 380; 24 July 1913, Bull. crim. no. 365; 12 May 1921, Bull. crim. no. 211; 31 January 1946, Bull. crim. no. 40; 5 May 1955, Bull. crim. no. 28; 21 November 1973, Bull. crim. no. 427; 22 April 1977, Dalloz-Sirey 1978, p. 28).

The Assize Court may refuse to take formal note of events that are alleged to have occurred outside the hearing. It has full discretion to decide whether or not to order an inquiry to establish the facts (Court of Cassation, 16 March 1901, Bull. crim. no. 85; 16 January 1903, Bull. crim. no. 23; 5 August 1909, Bull. crim. no. 422; 8 February 1977, Bull. crim. no. 48). In a judgment of 14 January 1988, however, the Court of Cassation held that the content of the impugned judgment should enable it to assess whether the impugned communication was such as to influence the jurors' opinion (Court of Cassation, Criminal Division, 14 January 1988, Dalloz-Sirey 1988, p. 206).


The applicant is a Norwegian citizen, born in 1953 and resident at Fyllingsdalen. Before the Court he is represented by Mr Nils E. Tangedal, a lawyer practising in Bergen. The respondent Government are represented by Mr Frode Elgesem, Attorney, Office of the Attorney General (Civil Matters), as Agent.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 9 December 1992 the applicant and W were arrested on suspicion of having handled 5.5 tonnes of salmon stolen by J. (on 7 December). On 10 December 1992 the police searched the premises of the company owned by the applicant and W. and detained them on remand. They both confessed to the offence on 21 and 22 December 1992 respectively. The applicant also confessed to having been in possession of narcotic tablets. Both suspects were then released.

When the applicant was later convicted, it was established that he had supplied the narcotics to J. The latter had requested the drugs to calm him down before committing the theft which the applicant had instigated and planned. The applicant did not appeal against this part of the City Court’s judgment.

On 24 August 1993 J. was convicted of the theft committed on 7 December 1992.

In the meantime, on 8 January and 17 February 1993, the police interrogated the applicant as a suspect with respect to certain offences related, inter alia, to the book-keeping of his and W.’s company. The applicant confessed to these offences on 8 January 1993. W. had made a confession earlier on 17 December 1992. In May and June 1993 the police heard five further persons and obtained additional material from the Hordaland Tax Authority (fylkesskattekontoret).

On 15 July 1993 the police interrogated the applicant as a suspect in relation to an illegal sale of alcoholic beverages carried out by H. On being further interrogated on 20 October 1993, the applicant also confessed to this offence. W. was apparently suspected of a different transaction concerning alcoholic beverages and it appears that he also confessed.

H. was convicted of the illegal sale of alcoholic beverages committed at the end of 1994 or at the beginning of 1995.

On 3 May 1995 the Bergen Police Department sent the case-files of the applicant and W. to the Hordaland Prosecution Authority with an apology for the fact that no action had been taken for about a year due to a backlog of pending investigations and the priority given to other cases. The Public Prosecutor replied on 19 May 1995 that the delay in question was unacceptable.

On 29 May 1995 the applicant and W. were formally charged and summoned to appear before the Bergen Court of Examination and Summary Jurisdiction (forhørsrett). After a hearing on 16 August 1995, the latter concluded that it did not have jurisdiction to determine the charges since the applicant’s confession had not been without reservation. Under the particular procedure applying to summary proceedings before this court, an unreserved confession was a prerequisite for its jurisdiction.

On 5 September 1995 the applicant and W. were summoned to appear before the Bergen City Court (byrett) which heard the case from 12 to14 December 1995. The applicant pleaded guilty to the charges except for those related to the evasion of value added tax (VAT) and book keeping. By judgment of 21 December 1995, the City Court acquitted the defendants of the charge concerning negligent book-keeping but convicted them of having handled stolen goods, of having been in possession of narcotic tablets, of having made use of and sold the alcoholic beverages illegally sold to them, and of having attempted to avoid paying VAT on their company's transactions.

The City Court rejected the defendants’ argument that Article 6 § 1 of the Convention had been violated on account of the length of the proceedings. It observed that the period to be taken into consideration, which started with the defendants’ arrest in December 1992 and ended with the judgment in the instant case, amounted to 3 years. Under any circumstances, the delay was too short to run counter to this provision. It was therefore not necessary to consider further the period of inactivity in question. However, in sentencing, the court held that considerable weight (“vesentlig vekt”) must be attached to the fact that the case had become old and that the accused could not be blamed for this. The time element must - the court reasoned - have caused prejudice to the defendants and the imposition of a sentence so long after the commission of the crime would be particularly burdensome, given their work and/or social situation. The City Court sentenced the applicant to 7 months’ imprisonment, of which 3 months were suspended with 2 years’ probation. (W. was sentenced to 5 months’ imprisonment, of which 3 months were suspended with 2 years’ probation.)

Both the prosecution and the defence appealed to the Gulating High Court (lagmannsrett). The applicant appealed against the conviction on the VAT offence, invoking an error of law, and against the sentence, pleading that he was not guilty as described in the indictment. On 25 September 1996, after a hearing, the High Court upheld the earlier conviction, having found aggravated circumstances relating to the VAT conviction. The High Court rejected the defence’s allegation of a violation of Article 6 of the Convention, subscribing to the City Court’s reasoning and conclusions, and referring to the Supreme Court’s case-law, notably the 1996 decision mentioned three paragraphs below. The High Court, whilst recalling the aggravated nature of the VAT conviction, decided nevertheless, in view of the time element, not to increase the sentences imposed by the City Court.

The applicant sought leave to appeal to the Supreme Court (Høyesterett).

On 9 January 1997 the Appeals Selection Committee of the Supreme Court (kjæremålsutvalg) refused the applicant leave to appeal against the sentence imposed. As regards the alleged violation of Article 6 of the Convention, the Committee noted that the High Court had taken the length of the proceedings into account in sentencing.

In a decision of 8 February 1996 concerning, inter alia, the issue of sentencing in another case, the Supreme Court rejected a claim by a convicted appellant that the requirement of an effective remedy under Article 13 of the Convention had not been met where the duration of the proceedings had been taken into account in sentencing. It did not accept his view that Article 13 required the court to decide whether the Convention had been violated. In the view of the Supreme Court, it would be sufficient if it appeared from the reasoning that the convicted person’s submissions regarding the length of proceedings had been considered and had been taken into account in sentencing. The Norwegian rules on sentencing were so flexible that it would always be possible to have due regard to delays in the proceedings. Even for the most serious offence, it was possible to impose a suspended sentence or conditionally to postpone the issue of sentencing. In sentencing it was also possible to have regard to delays which were not serious enough to violate Article 6 § 1 of the Convention. The distinction between relatively modest and very serious delays could not be defined precisely. For sentencing it was not important where exactly the limit was drawn. Normally, the matter would be considered as a whole on the basis of a variety of factors. Opinions would differ as to where to draw the limit. It was therefore of little interest, and even superfluous, to attempt to draw such limits when it did not affect the outcome.