HIGH COURT OF JUSTICIARY AT EDINBURGH
LORD PROSSER
LORD REED
LORD ALLANBRIDGE
REPORT OF PROCEEDINGS
at a Preliminary Hearing in
PETITION
i.c.
THE LORD ADVOCATE
against
ANGELA ZELTER,
BODIL ULLA RODER and
ELLEN MOXLEY
Friday, 29th September, 2000
APPEARING:
Mr. D.A.Y. Menzies, Advocate Depute, with Mr. M. Jackson, for the Crown;
Ms. Zelter represented herself;
Mr. G.J.B. Moynihan, Q.C. appeared as Amicus Curiae;
Mr. I. Anderson, Advocate, with Mr. J. Mayer, Advocate, for the Respondent
Roder;
Mr. A.M. O'Neill, Q.C., for the Respondent Moxley;
Mr. C. Armstrong, Circuit Clerk of Justiciary.
FRIDAY, 29th SEPTEMBER, 2000
LORD PROSSER: Yes, Mrs. Walker, it's been pointed out to me you were present
before, you have been sworn in before so I won't repeat that. You are still
on oath. Yes, we're not sure what, perhaps you have come to update us on the
Crown's position.
THE HOME DEPUTE: I think, my Lord, that might be appropriate. As I understand
the matter, when it last came before your Lordships there was some suggestion
made on behalf of several of the... As I understand it on the last occasion
there was some suggestion on behalf of one or more of the Respondents that
the questions posed in the Reference might be amended and in particular the
Crown might consider amending.
LORD PROSSER: It is a little bit more than some suggestion, there is identification
of something specific that's missing, never mind any defects that were there.
THE HOME DEPUTE: The position, my Lords, is that consideration has been given
to that by the Crown and the Crown would wish to make no changes to the questions
before your Lordships.
LORD PROSSER: Very well. Well then, who wants to pick up the matter. I suppose
if I was to go in the ordinary order it would be you, Ms. Zelter, if you wanted
to say something at this stage or equally Mr. Moynihan, if you felt he should
say anything more. Indeed if there is anything to be said...
MS. ZELTER: I was wondering if Mr. Moynihan could go first.
LORD PROSSER: Well, I think the Court is quite content with whatever order
seems to be the Counsel's view.
MR. O'NEILL: My Lord, I would be happy to go first and reply at this stage.
My Lord, in the light of the Crown's position which is that having considered
the amendments to the questions that it does not wish to change them in any
way. My Lord, I have a Motion in relation to the question, a simple question
as to whether or not Article 6 of the European Convention of Human Rights
applies to these proceedings, Section 123 Proceedings. My Lord, the reason
for asking the Court to decide on that today is because from Monday the Court
will be required to apply such Convention Rights as are relevant to the matters
before it. Now in this case, in this Reference the Lord Advocate's position
as I understand it is that Article 6 does not apply to these Proceedings.
The position which they're taking as far as I can understand it is from a
fairly strict and narrow reading of the terms, the English terms of the Article.
Now my Lords, I challenge that, I say that's not the correct approach and
by looking at some of the case law the Court of Human Rights will make it
plain in my submission that Article 6(1) does apply to these Proceedings and
will apply to the Proceedings.
LORD PROSSER: Well, which, does apply today or will apply then?
MR. O'NEILL: Well, it does apply in the sense of it, it does apply now as
a matter of what European Convention says. As from Monday it will apply because
the Human Rights Act brings the Court directly into...
LORD PROSSER: Can you assist us with how does this tie in with matters we
have to decide today?
MR. O'NEILL: It is leading us quite squarely to those matters, my Lord, because
if the Court is with me and Article 6 does apply then a whole series of procedural
rights fall into place and the Lord Advocate is one party in a fair trial
in relation to the Respondents. Now the terms of what might be required in
terms of ensuring that there is a fair trial is a whole series of procedural
rights which I will go through but the point is if we find that Article 6
applies then there is a series of rules so we know what our situation is and
the Court knows what their situation is and we're all in a far clearer position.
LORD PROSSER: Well, again I'm still not, don't follow the generality may I
say, what you have said is somewhat material but what in particular would
you be asking us to do today. It always seems to me useful for the Court to
know what Order if anything is to be sought...
MR. O'NEILL: The only...
LORD PROSSER: At the end of any particular day's Hearing. Is there anything
you will be asking us to order today if we were with you?
MR. O'NEILL: I would ask the Court to make a formal finding that Article 6(1)
of the European Convention applies to the proceedings at present, the Section
123 Lord Advocate's Reference, the proceedings which are before your Lordship.
LORD PROSSER: Without any follow-up?
MR. O'NEILL: Without any follow-up because my suggestion will be if that is
the case, if Article 6(1) does apply contrary to what the Lord Advocate is
suggesting then various, as I say, rights and positions of the parties will
be able to be established more clearly.
LORD PROSSER: I follow that but I was trying to get at what particular practical
consequences would flow from it. So you are not asking for any specific finding
or any actual follow-up order.
MR. O'NEILL: No, what I would envisage however, my Lord, is if Article 6(1)
does apply then all parties to these proceedings, the Lord Advocate, the Crown
and the Respondents then have to determine in, through examination of the
case law and discussion thereof as to what precise procedural rights they
have.
LORD PROSSER: Yes.
MR. O'NEILL: What the position of fair trial and equality of arms means. It
would mean I suggest that the substantive hearing on the questions as currently
drafted could not go ahead on the 9th, 10th, 11th and 12th but in fact that
period could be usefully used for an examination of what Article 6(1) will
mean in the context of these proceedings of the rights and procedures which
therefore govern.
LORD PROSSER: So you wouldn't be asking for discharge of that period, you
are simply saying if we make no Order as it were then those allocated days
would be used for a quite different type of Hearing.
MR. O'NEILL: Indeed so, and I think they would very usefully be used because...
LORD PROSSER: I follow that but just making the point I think, what I would
like to do before we embark on that, having identified that I would like to
know the position of yourself and indeed other parties as to whether there
are other issues, which is other than the one you have raised, which require
to be looked at today because we parted on an intentionally rather informal
basis the last time as to quite what might come up today and I want to be
sure that we know what is here for disposal today. Just give me a moment to
follow that up.
MR. O'NEILL: Indeed, my Lord, yes.
MR. ANDERSON: My Lord, can I address one point in relation to Article 6 which
is relevant to the proceedings today. I appear for the Respondent Bodil Roder
and it deals with the issue of Article 6 of the European Convention of Human
Rights, not as it applies to the Court next week but as it applies at the
present moment to the Lord Advocate. This Court has already ruled in Brown
versus Selfridge under Section 40(1) the Lord Advocate has no powers to do
anything which contravenes Section 1 of the European Convention of Human Rights.
Now Section 1 includes Article 6(1). The point which is being made here is
that by framing the questions in the form they are presented to the Court
and by omitting reference to the use of threats of nuclear weapons the Crown
has somewhat agendously asked the question which is not relevant to the underlying
case and as such it is not possible to get a fair determination and, with
regard to the Respondent Roder or any of the other Respondents concerning
the underlying case.
LORD PROSSER: That is something that strikes me at the moment the kind of
point one would raise in argument when dealing with the case.
MR. ANDERSON: Well, my Lord, it goes to...
LORD PROSSER: Well, just give me a second.
MR. ANDERSON: Of course.
LORD PROSSER: The Hearing is plainly a Hearing on the whole Reference, that
leaves it open to anyone to raise questions of any appropriate kind when that
Hearing occurs. We're here at a Preliminary Hearing which, this is a continuation
essentially to deal with preliminary matters, not to have a major discussion
of issues as to whether the questions are legitimate and the like and just
before you embark on that, anyway you say that is a matter, what I was doing,
anyway you say that is a matter we should be looking at today.
MR. ANDERSON: Yes, I only raise it because if the Court is going to look into,
with respect, Article 6 of the case then it will flow naturally as to whether
the Lord Advocate has contravened that Article in bringing the present Reference,
omitting Reference in Article, Schedule 2, Part 1 to the use of nuclear weapons.
LORD PROSSER: So if we were going to embark on the matter which Mr. O'Neill
wants to deal with today it might be sensible also to deal with the matter
you have just described.
MR. ANDERSON: That is correct, my Lord.
LORD PROSSER: Also, well I think if we note that at this stage, I want to
identify what the possible issues are today.
LORD REED: Has the issue you require to raise been intimated to the Advocate
General?
MR. ANDERSON: It was intimated, we had a consultation at 12 o' clock today
and raised the matter of the competency of the Lord Advocate raising the present
Reference, that that would be raised at 2 o' clock.
LORD REED: So you have given intimation of the issue as required by the Act
of...(inaudible). MR. ANDERSON: Well, it's not a written notice as such, in
terms of Schedule 6 to the Scotland Act there has been no written notice of
that. My learned friend, Mr. O'Neill however, has given the Lord Advocate
written notice with regard to his intentions regarding Article 6(1) and I
only raise this issue because it might well flow from that.
LORD PROSSER: But it hasn't been formally intimated and is this a question
that also requires to be referred to us, I'm not sure about that or not.
LORD REED: If you want to seek leave to raise it then we're required to make
Orders including intimation of the Lord Advocate, to the Advocate General
also.
LORD PROSSER: I think we were told at the beginning of the Preliminary Hearing
last time that the Advocate Depute does appear, is this right Mr. Home Depute,
will be appearing on behalf of the Advocate General as well as the Lord Advocate?
THE ADVOCATE DEPUTE: No, my Lord, that is not the position and I do not...
LORD PROSSER: I don't know, I'm perhaps confusing it. This isn't the only
case that raises such a point and I must be confusing the matter. You are
not here in any way to speak for the Advocate General.
THE ADVOCATE DEPUTE: I'm not here to speak in any way for the Advocate General.
LORD PROSSER: Sorry, that's my error.
THE ADVOCATE DEPUTE: And it is my understanding the Advocate General has been
given no intimation of the issues raised.
LORD PROSSER: Well, I think that's what, that's what is said.
MR. ANDERSON: Well, I will just mention also that the issue does arise before
the Court, the Court is competent under Section 11, Schedule 6, to refer the
matter to the initial committee for determination.
LORD PROSSER: Yes, you are just identifying points that might have to be dealt
with today. That's the second one. Then what...
MR. MAYER: My Lord, I would remind the Court that...
LORD PROSSER: We seem to be working in a...(inaudible). You are content to
take things in this order, yes.
MR. MAYER: On the last occasion the Court continued the Petition to the noble
officium.
LORD PROSSER: Yes, with some reservations I think because effectively it was
acknowledged that there was another route available. But we did continue it,
yes.
MR. MAYER: I'm not sure it went that far but in any case the Court did continue
the matter and the whole Petition is still before the Court. It may be we'll
get to address the Petition today.
LORD PROSSER: I don't know what to say. I mean it was continued last time
because Mr. Moynihan had identified other ways in which points taken by you
in your Petition might be addressed. It seemed to follow as night follows
day if there were any ways then the noble officium would not be the appropriate
way. You asked leave to leave it open so we did but I'm not sure what you
are asking us to do today, you better identify that now if there is some point
you say would arise from that.
MR. MAYER: Well, my Lord, I maintain the Motions contained within the Notes
as they're called, appended to the Petition. It seems from recollection of
what my learned friend Mr. Moynihan said on the last occasion, that he was
in accord with the substance if not the procedure, I think were his words,
but what I'm trying to...
LORD PROSSER: That seems to rather dispose of your procedure.
MR. MAYER: Yes.
LORD PROSSER: There is no room now for your procedure is there, or is there?
If so, please do identify. We'll come to questions later on but procedurally
it seems to me, although you kept it open, Mr. Moynihan had effectively pointed
out why that would not be the appropriate procedure now. Now is it the appropriate
procedure in your submission and if so on what basis?
MR. MAYER: It is today appropriate procedure.
LORD PROSSER: Then on what basis given that Mr. Moynihan has identified an
alternative route?
MR. MAYER: Well, it's not certain in my submission that any other route would
lead to the conclusions sought by the Motions in the Petition.
LORD PROSSER: It doesn't matter whether it leads to different conclusions,
it is whether it would be an appropriate context for considering issues of
that kind. It may be that they would have to be thrown out or succeed on anything,
we're not considering if they win or lose, we're simply considering is there
any context for considering matters of that kind. I would have thought it's
evident to the Court and so forth we're all aware of that but if you are saying
there is no other way in which you can raise matters then you better tell
us why and tell us in brief now.
MR. MAYER: Yes. Well, my Lord, Section 123 provides no mechanism for bringing
matters, preliminary matters before the Court. The usual procedure for adversarial
proceedings was attempted but failed at the...
LORD PROSSER: I don't want to embark on the whole matter of your notions of
what is adversarial proceedings and what is another kind of proceedings and
so on, but the fact is that a Preliminary Hearing was allowed in this case,
no-one suggested what we did the last time was incompetent, to have another
Hearing. This is a continuation of that Hearing and I don't understand an
argument that there is no preliminary mechanism really works once one has
got this far.
MR. MAYER: If I can put it in a nutshell, and it is this...
LORD PROSSER: That would be nice.
MR. MAYER: The Court can By Order put a Lord Advocate's Reference out for
Hearing on matters determined by the Court and the scope would be entirely
within the control of the Court. If Counsel wish to raise a preliminary point
outwith that scope there is no mechanism for doing so.
LORD PROSSER: It could always be raised at the actual Hearing.
MR. MAYER: One would need leave.
LORD PROSSER: There might be reasons for wanting to have done it earlier,
is that the point?
MR. MAYER: Well, yes indeed, my Lord.
LORD PROSSER: But you accept it could be discussed if the Court saw fit.
MR. MAYER: Indeed.
LORD PROSSER: At the actual Hearing.
MR. MAYER: Indeed.
LORD PROSSER: Yes.
MR. MAYER: But with a Petition to the noble officium. If the Court sees that,
of jurisdiction, then one would have a right to speak to matters in the Petition.
LORD PROSSER: It is normally a matter raised by the Petition of the noble
officium which cannot be raised by any other means and you have just acknowledged
this one could be raised by another means if the Court hears it at the actual
Hearing. I suppose that's why there is a Petition on noble officium.
MR. MAYER: The point, my Lord, would be one would be at the mercies of the
Court By Order Appointment and have no right in the matter and the point in
the presentation of the Petition of the noble officium was to have some right
to speak on matters contained therein.
LORD PROSSER: I think that's probably a summary of the point you say you think
we should be hearing.
MR. MAYER: Yes, my Lord.
LORD PROSSER: Well, we'll go on and then see if there are any matters as between
you two. Which one wants to...
MS. ZELTER: One of the things that was raised at the last Hearing was I wanted
a copy of the Interlocutor Sheets.
LORD PROSSER: Yes.
MS. ZELTER: That wasn't...
LORD PROSSER: Yes, I have seen a written note from you as well that raises
a number of points.
MS. ZELTER: That comes to the point about there not being a full recording
of these proceedings. I feel I need to have a recording of the proceedings.
LORD PROSSER: By that you mean a tape recording?
MS. ZELTER: A tape recording or a note taken. I mean last time I had a note
taken, a shorthand note taken as a volunteer, this time I was not able to
get a volunteer.
LORD PROSSER: I'm sure you know it is normal practice of the Court when one
is concerned with legal submissions not to record the proceedings but to have
as the record the notes by various parties for their own purposes.
MS. ZELTER: Yes, but I might not agree with those and I might want to go back
to what is contained in them, I might go back to them so that is.... The NGO
who has a public interest in this has put up £600 to have a shorthand note
taken and we have a shorthand writer here in Court, but I don't think that's
appropriate in a case that is a matter of immense public interest. I think
the Court should be recording this and I put the Motion that this Hearing
and all the future ones should be recorded please, and the other thing I want
to raise is we did talk about some expenses.
LORD PROSSER: Yes.
MS. ZELTER: And I have come to some agreement with the Crown about that.
LORD PROSSER: Is that something that is so much agreed we won't need to deal
with that?
MS. ZELTER: I think so. There has been some negotiation but that still needs
to be sorted out.
LORD PROSSER: If you are optimistic about that I think it probably follows
we won't be required to deal with that.
MS. ZELTER: It was just to formally write that down.
LORD PROSSER: I was wondering about that. Yes, it has been suggested that
the note taker is in fact taking a recording of what's going on just now.
Is that the position? (The Shorthand Writer replied in the affirmative).
LORD PROSSER: I think it's unfortunate because it is pretty wellknown, and
I'm sorry you didn't know, I think it is pretty wellknown that unauthorised
recording of Court Proceedings is in posh terms contempt, in ordinary terms
not on and it really should not be done. If we were asked for leave that is
another matter but it's not to be done without leave because it simply isn't
done.
MS. ZELTER: I'm sorry about that, I should have indicated...
LORD PROSSER: So I think it should be interrupted at this stage. So, you are
effectively just asking us that it be recorded from now and more particularly
what is the important point, perhaps the important point is you say it should
be recorded at the actual Hearing in a fortnight's time.
MS. ZELTER: I think because this again sets the whole framework for what's
going on that this Hearing should actually be recorded as well.
LORD PROSSER: I follow that but it's a much broader Motion you are making
to us in effect.
MS. ZELTER: I put forward to you in fact she does use her tape recorder as
a back-up, she doesn't use it for any other purpose.
LORD PROSSER: At the moment it shouldn't be on because we haven't been asked
leave for anything. We'll come to that. Yes, Mr. Moynihan.
MR. MOYNIHAN: The only remaining matter that I would ask your Lordship is
the question of expenses, the only remaining matter is the substantive argument
that was really dealt with by the learned Advocate Depute saying he would
not alter the question. I simply want to adhere to the position stated to
the Court on a previous occasion which is to object to the competency of the
question.
LORD PROSSER: That would be the one identified.
MR. MOYNIHAN: Yes, the principal question.
LORD PROSSER: I just, could I just try this on you? It seemed to me if the
Court, if the Crown were not adding a further question of the kind that you
wanted, that the one that is there which you criticise is as it were the best
peg on which to hang any discussion on the issue of the question you wanted
would have raised and therefore, one might be reluctant to deal in advance
with what is probably a question which at least opens up that area of thought,
because I thought where the Court has not got questions which satisfies the
Respondents I think one can take it the Court would be liberally minded as
it were when the actual questions are discussed, not to be too fussy, which
is precisely how one gets round such a question. So I don't know if you are
asking the question that is there should be looked at and struck out as incompetent
today or whether that is a matter which could be reserved for the actual Hearing.
MR. MOYNIHAN: That is precisely what I had in mind by saying this is an issue
for another date. In answer to your Lordship, and this is going back to my
friend Mr. Mayer's position, but not trampling on his toes, your Lordship
will know Ms. Zelter discussed on the last occasion that she herself is posing
a positive formulation of an alternative question.
LORD PROSSER: Yes.
MR. MOYNIHAN: Which the Lord Advocate Depute has indicated the Crown is not
minded to include in their evidence. Can I accept what your Lordship says
that question 2 as formulated provides a peg on which Ms. Zelter can argue
the substance of her question. My point of competency is that assuming your
Lordships were against Ms. Zelter's...
LORD PROSSER: Yes.
MR. MOYNIHAN: Against determining Ms. Zelter's question.
LORD PROSSER: As such.
MR. MOYNIHAN: On the merits, which is not part of the Reference, I would be
equally arguing at the conclusion of the case that your Lordships not answer
the Crown's question because it does not relate to the issue in the trial
which is more properly focused by Ms. Zelter's question. So I accept entirely
what your Lordship says that my attitude would, might free argument on the
issues without prejudice to the ultimate disposal of the case.
LORD PROSSER: That is the way my mind was working, yes. I think, I do want
to make it plain from what I have said that it's not to be taken there is
carte blanche to be arguing all sorts of things that are not within the question,
the Court would have to be satisfied it has a bearing on the issue, but of
course if the view is a question as formulated isn't right it may be possible
that we all say that, to say a certain amount about it by the other matter
but you are not asking we do anything today on that.
MR. MOYNIHAN: Absolutely not because it can't be isolated in the substance
of the argument. So I would intend to adhere to my position on earlier occasions.
LORD PROSSER: Does anyone want to come back on the broad question whether
we should today deal with any other matters that have been mentioned?
THE ADVOCATE DEPUTE: My Lord, I don't want to come back on that but there
is, there are a couple of preliminary points.
LORD PROSSER: I beg your pardon, I haven't really asked you if you adhere
on the issue.
THE ADVOCATE DEPUTE: Maybe by way of housekeeping it would be the Crown's
intention, and I indicated this informally to all my learned friends and Ms.
Zelter, that the Crown would wish to have two speeches and therefore it follows
no doubt if they wished that each of the Respondents and Ms. Zelter would
be entitled to two speeches.
LORD PROSSER: In any major case that certainly is the normal practice for
the Court to allow that.
THE ADVOCATE DEPUTE: By way of explanation my Lord - because it is felt appropriate
- with regard to question 2 the Crown's position is simply that there is no
such rule of Customary International Law so the Crown can be fairly short
in its initial formulation.
LORD PROSSER: Yes, there wouldn't be a lot of argument.
THE ADVOCATE DEPUTE: Indeed.
LORD PROSSER: Anyway, you want two speeches.
THE ADVOCATE DEPUTE: I want two speeches, but of course I accept that results
in the same right being accorded to others. The only other matter my Lord,
is we in recognising therefore there is a right for each Respondent to have
two speeches, I'm a little concerned that in the proceedings thus far today
my learned friends Mr. Anderson and Mr. Mayer have spoken separately but they
both represent the same Respondent as I understand it and it would accord
with normal practice if only one Counsel spoke in any one round of speeches
on behalf of the Parties.
LORD PROSSER: Normally a junior, the junior of the two would normally speak
first.
THE ADVOCATE DEPUTE: Yes.
LORD PROSSER: And the senior of the two being second.
THE ADVOCATE DEPUTE: I don't make a Motion in respect of who should speak
first and who should speak second but what I would be unhappy about is Mr.
Anderson speaking immediately followed by Mr. Mayer in each round of the speeches
as they have today.
LORD PROSSER: Yes. Well, I wasn't really thinking. I heard you both today
but why were you both speaking today?
MR. ANDERSON: Well, my Lord, there has been a division of labour between the
two Counsel.
LORD PROSSER: Well, that may be, but what you have done is something the Court
would probably have said no to if we had been aware of it. I think as far
as we're concerned it's not the appropriate way. But, I think it is accepted
that should not happen, I think it is accepted you are the more senior of
the more junior and if there are two speeches one of you should speak in any
particular round.
MR. ANDERSON: Indeed so.
LORD PROSSER: Yes. (Following Deliberations).
LORD PROSSER: Yes. Well matters, starting... We seem to be doing the, working
backwards. The Court are satisfied it is appropriate there should be two speeches
on behalf of each party, the right to two speeches on behalf of each party
although obviously not a specific point, by the senior member of the two representatives.
On the point raised by Mr. Moynihan as Amicus Curiae we're satisfied that
the correct approach is as he has indicated, that question 2 stands and it
would be a question for the Court at the Hearing to consider not only how
that question is eventually disposed of by being answered or not answered
but whether it is for that Court to decide how relevant any arguments on what
can be said on the different issues are relevant to that question or any other.
So nothing need be done today in that respect. If I could move over these
points myself, for the moment. We're satisfied that the question raised by
Mr. O'Neill seeking a finding in relation to Article 6 today is not an appropriate
question to deal with in that way. Whether there is a need to answer questions
about Article 6 depends on matters which are specifically not raised today
as to whether there are specific orders that have been followed or specific
matters in which there was, seemed to be a breach of rights and we're not
prepared to deal with that today. That must be dealt with in the course of
the actual Hearing whenever that may seem to be the appropriate point. So
far as the matter raised by Mr. Anderson is concerned, we don't regard that
before us at the moment. It might be it would be convenient to deal with it
along with Mr. O'Neill's point but Mr. O'Neill's point is not being dealt
with today and we don't see that question raised by Mr. Anderson is before
us at present. So far as Mr. Mayer is concerned we're not disposed to dismiss
the Petition to the noble officium today but it appears to us that the questions
which it was apparently entitled to raise are questions which it would be
possible to deal with at the actual Hearing. So again we won't make any Order
in that respect today. So far as the matters raised by you are concerned,
Ms. Zelter, first of all you will of course get a copy of the Interlocutor.
Actually there are two because a separate one was made for the continuation.
There is a principal Interlocutor dealing with what we discussed, the question
of Amicus Curiae and Mr. Moynihan it seems, of course you will get a copy
of that and indeed the other one which simply I think continues the matters
from that until today. On the question of possible expenses we don't say any
more in the circumstances. The final matter I want to raise though is the
question of recording. I think this arose last time and it was suggested,
and I think it was my feeling at least that the matter had been disposed of
by the Lord Justice General and those sitting with him when they refused to
allow a Hearing, a recording of what was called the Hearing and it seemed
to me plain what was there referred to was not as it were the Hearing that
had just been completed but the Interlocutor was finished with that and was
a refusal to record the actual Hearing that had been fixed. Now if that is
so then it is not for us to interfere with that, if that has already been
dealt with, but I thought since we hadn't mentioned that so far today I should
mention it now. I don't know if you want to come back in any way on that,
Ms. Zelter. It seems to us it has been refused. I won't say anything of what
our view would be on the matter at the moment but I think it has been refused.
MS. ZELTER Well, to be honest I think it was refused, yes, but I think what
I raised was not in discussion...
LORD PROSSER: It wasn't.
MS. ZELTER: It was a public interest case etc., etc.
LORD PROSSER: Because it's probably the kind of matter on which at least if
there was some new consideration or at least new facts then probably the Court
would feel entitled to go back on it. But I'm aware it was not fully discussed
the last time and it was moved, is that right?
MS. ZELTER: No, it wasn't realised there was even discussion from...
LORD PROSSER: Well, in that case it's probably right for us to apply our minds
to that.
MS. ZELTER: Yes, I think so.
LORD PROSSER: Is that something anyone else would like to comment on?
MR. O'NEILL: Well, I would like to comment, and I would have thought, my Lord
asked me to raise some preliminary matters which I did then my Lord moved
on to other preliminary matters and made a ruling. In fact I haven't got round
to say my submission.
LORD PROSSER: We did because you said that's the point you wanted to raise
today, to deal with today.
MR. O'NEILL: Yes.
LORD PROSSER: But it seems to us that's not appropriate.
MR. O'NEILL: But the problem is, my Lord, I say that Article 6 rises, creates
a procedural structure under which these proceedings have to be conducted.
Now I try to raise that before the actual substantive Hearing so we can know
the conditions under which the substantive Hearing is to be conducted.
LORD PROSSER: Yes, you said that before.
MR. O'NEILL: Indeed so. I would understand if your Lordships were to continue
the question of the applicability of Article 6 and the substance of two matters
raised by my learned friends, learned friends Mr. Anderson and Mr. Mayer and
also Mr. Moynihan in discussions, I can explain those but those are all procedural
structural matters not going to the merits of the particular question and
certain questions have been raised as to whether that is the correct procedure.
Now we could use as I say the Hearing on the 9th to 14th usefully in that
way but what we can't do is carry on today's procedural points that are hanging
out there undecided on the basis of the European Convention.
LORD PROSSER: I think what you're...
MR. O'NEILL: And at some time, at some time be expected to prepare to answer
questions which on strong factors are not the appropriate questions which
should be asked.
LORD PROSSER: I think that's probably much what you said before but you asked
for no follow-up nor identified a specific matter on which you found, so I
think...
MR. O'NEILL: Well, with respect...
LORD PROSSER: If you just let me finish, Mr. O'Neill, really. So far you don't
seem to have added to what you said before. You didn't seek any specific Order
and you didn't identify any specific argument that would be necessary or appropriate.
MR. O'NEILL: Well...
LORD PROSSER: And so far as we're concerned, having heard what you said before
and having heard it repeated now thus far, our position is we're not prepared
to have an argument on the general question of whether Article 6 applies when
we do not know whether it will bite in any particular way as you have suggested
resulting in a specific finding or requiring a further Order. Now I don't
know if my brethren feel anything new has been said yet.
MR. O'NEILL: Well...
LORD PROSSER: So I think as far as we're concerned the question of whether
it bites in some way that matters is a question that can arise in the course
of the Hearing.
MR. O'NEILL: Indeed, my Lord, and one of the questions as to how it might
bite in practice is a question of fair notice and equality of arms and the
general approach which should be taken. These are matters...
LORD PROSSER: Of course it...
MR. O'NEILL: Which will have an impact on procedure. So all I was trying to
do is actually have a look at on what basis...
LORD PROSSER: I appreciate that.
MR. O'NEILL: The Lord Advocate is not willing to accept Section 6(1) applies.
LORD PROSSER: I appreciate that's what you say. It is useful and we have considered
that submission and decided it would not be useful to be considered in the
abstract but it can be raised as such points that are raised in the course
of the proceedings if you want to say something that has not been a matter
of fair notice and so forth, that will be open to you.
MR. O'NEILL: Then in that case my Motion today would be to continue this until
Monday until the Human Rights is in force.
LORD PROSSER: Of this month?
MR. O'NEILL: Well, from Monday the Human Rights is in force.
LORD PROSSER: Of course it is.
MR. O'NEILL: So the procedural points which I wish specifically to raise can
be raised prior to any Hearing on the merits .
LORD PROSSER: If there is specific points you would then no doubt be making
them, if there were specific points, and we're not going to have a second
go when I don't think there is any help to the Court in doing it that way.
MR. O'NEILL: Well, in fairness I was given an opportunity to make introductory
remarks, I was not given an opportunity to look at any case law at all.
LORD PROSSER: Yes you were because we've identified the question, you won't
be discussing that today, but you were specifically asked if you were seeking
any follow-up Order once you had been heard and you said no and you were asked
if you were going to make any particular specific finding and you said no
and as far as I'm concerned on that basis you were seeking to make submissions
today on the subject of a purely general finding that Article 6 applies and
that's what we have decided.
MR. O'NEILL: Well, I apologise...
LORD PROSSER: And we're not going to deal with it now.
MR. O'NEILL: ...for a misunderstanding in that case. I would just like to
say really that Article 6 applies and certain consequences flow from therein
in terms of a fair trial.
LORD PROSSER: Obviously consequences may flow from it but you haven't asked
for any other finding and you said you didn't want any particular finding.
I asked you specifically if you wanted any particular finding and you said
no.
MR. O'NEILL: No, my Lord, I suggested there could be a specific finding discussed
once all parties had considered...
LORD PROSSER: Do you want specific rights today, am I right you did not ask.
Can you confirm you did not want a specific finding today? As far as I'm concerned
you were answering questions from me first, you did say you did not want any
specific finding today.
MR. O'NEILL: Well, my Lord, I withdraw that. That's a misunderstanding on
the basis of...a misunderstanding of your Lordship's question.
LORD PROSSER: Well, dealing with matters that were asked of us before, the
matters asked of us before remain as they were and we're not prepared today
to hear you on the question of whether Article 6 applies and any matter is
therefore, I don't think it requires continuation. Of course it remains open
to raise matters then because all we're deciding is whether I hear you on
that matter today.
MR. O'NEILL: Well, my Lord, apologies if there seems to be a misunderstanding,
no doubt down to me, and the Court has apparently ruled on that. I would ask
the Court's indulgence to allow me to look at a number of cases briefly.
LORD PROSSER: No, you identified for us what you have asked us to resolve
today.
MR. O'NEILL: Okay, well...
LORD PROSSER: Are you now saying you are going to want something other than
a general finding?
MR. O'NEILL: Yes, my Lord, I was.
LORD PROSSER: What's that?
MR. O'NEILL: My position is first of all these proceedings constitute...
LORD PROSSER: No, I'm asking you what you want at the end of the day. What
order are you going to seek? What finding are you going to ask for?
MR. O'NEILL: I would ask that standing that the proceedings fall within Article
6(1) that the Court Order that a full statement of argument be produced on
behalf of the Crown for the Court.
LORD PROSSER: Sorry, a full statement of argument?
MR. O'NEILL: Yes, in terms of fair notice and submissions that are to be put.
All we have at the moment is questions of the relevancy and competency which
are disputed.
LORD PROSSER: The Court has already ordered that skeletal arguments be, has
it not?
MR. O'NEILL: Well, I think the Court has ordered there be an exchange of argument.
Well, my position is...
LORD PROSSER: Well, let's just have that. I think it is not just an exchange
between parties, is it. Lodge skeletal arguments, and that's apparently why
we had this Hearing today.
MR. O'NEILL: Indeed, my Lord.
LORD PROSSER: So in essence it's not a matter of ordinary full argument and
indeed I would emphasise that the Court says "We want a skeletal argument",
that means bones and not flesh.
MR. O'NEILL: Now, but on the matter of fair notice if Article 6(1) does apply
then we as Respondents on the basis of equality of arms have to be given notice
by the Crown as to what their position is precisely on these precise questions.
LORD PROSSER: The question of whether you have had fair notice is a point
you would raise once we see what notice you have had of the point.
MR. O'NEILL: Indeed.
LORD PROSSER: And have you had none?
MR. O'NEILL: At the moment there is no Order of the Court to give us notice
to allow us to prepare our case. At the moment all the Court has ordered is
there be simultaneous lodging of a statement of arguments, which does not
give fair notice if Article 6 applies.
LORD PROSSER: Well it might raise..
. MR. O'NEILL: If Article 6 applies there are certain things that might follow.
LORD PROSSER: Well, we'll consider that once we see what parties have put
in.
MR. O'NEILL: Well, that's one point. The other point, my Lord, is that if
Article 6 applies to these proceedings that it should be noted that the Lord
Advocate's position is it does not and he is therefore proceeding on the basis
it does not apply, that the whole question of the proper interpretation of
Section 123 comes into play because in the provisions of Section 3 of the
Human Rights Act it requires that if at all possible the, any statutory provision
whenever passed be construed and applied in a manner which is compatible with
the convention rights and in my submission Article 6 will apply.
LORD PROSSER: You seem to be... I appreciate that, Mr. O'Neill.
MR. O'NEILL: Yes.
LORD PROSSER: So you would be wanting an Order as it were widening the existing
Order because of the fair notice point.
MR. O'NEILL: Yes.
LORD PROSSER: And make certain observations upon the basis upon which the
Lord Advocate is apparently proceeding which no doubt was heard on his behalf
and no doubt arguments can be put in which would be impossible to decide whether
or not he has applied.
LORD REED: What do you mean by legal arguments?
MR. O'NEILL: Indeed, my Lord, if I can refer to two cases on that.
LORD PROSSER: No, absolutely not at this stage until you, you tell me you
are embarking on flesh without bone if you allow me to say so.
MR. O'NEILL: Well...
LORD PROSSER: We have already noted your arguments that you consider the sort
of things that require notice we have in Court isn't what the skeletal arguments
put for the Crown are, they may or may not mean what you say they should mean,
and we're not going to start to try to draft in advance arguments from either
party or decide in advance whether they will or will not meet the entitlements
of the other party in relation to fair notice or anything else.
MR. O'NEILL: But at the moment what the Court has ordered is there will be
an exchange of simultaneous...
LORD PROSSER: Not exchange, it has already been pointed out.
MR. O'NEILL: A simultaneous lodging of, so it's, the Respondents are required
to prepare for a case in which they do not know the position the Crown is
taking. That cannot in itself be fair notice no matter how skeletal or fleshy
the arguments are put in. All we have at the moment is questions, we do not
know the arguments the Crown will put in. We cannot prepare, we cannot be
seen to be given fair notice if we prepare our cases simultaneously with the
Crown's preparation of the case.
LORD PROSSER: That is a point you would be entitled to take with the Court
that hears the matter at the Hearing and if the Court were satisfied you had
not had fair notice no doubt the Court will take appropriate steps.
MR. O'NEILL: Indeed, my Lord, but I'm asking to save the period set down and
allow these fairly large procedural questions to be raised.
LORD PROSSER: We appreciated that I think at the start and I think others
did when you spoke to us first. You are trying to be helpful but unfortunately
what we see as helpful isn't what you see as helpful.
MR. O'NEILL: The problem being my Lords, if one just leaves a Hearing on the
substance of the merits standing and say we're not considering procedural
points, then again we're not being given fair notice or a fair opportunity
to prepare our case because we're having to prepare a case on procedural arguments
not knowing whether the Crown will take them on board and simultaneously we're
having to prepare a case the Court may reject on specific points. So again
we're not being given a fair opportunity to prepare our case because we don't
know the procedure under which we're supposed to be acting, but what we do
know is the procedure under which we're acting at present is the Crown has
given us no notice of what position they're adopting.
LORD PROSSER: The procedure under which you're acting is a matter of law,
it will be a matter for you as any party approaching a Hearing to decide what
the legal position is and what the arguments may be.
MR. O'NEILL: Yes, indeed my Lord, but as from Monday this Court will require
under Section 6(1) to act in a manner which is compatible with convention
rights.
LORD PROSSER: Yes.
MR. O'NEILL: The convention rights say there has to be fair notice and matters
of that sort then the Court has to take that on board and attempt to construct
a procedure in a manner in which is compatible with the convention rights.
Now I say at the moment the procedure is not compatible with the convention
rights on grounds of primarily the fair notice point. Now if that is the case
then the Court will have to create such procedure as is compatible with the
convention rights. Under Section 3 it has a duty of interpreting primary legislation
but also a duty of, in so far as insubordinate rules of legislation or rules
of Court are not compatible with the convention rights to act in a manner
which is compatible despite that.
LORD PROSSER: Thank you.
MR. O'NEILL: So my Lord, as I say we need to know what the procedure is, we
can't simultaneously argue and prepare that procedural point and the human
rights point specifically.
LORD PROSSER: You said that.
MR. O'NEILL: And the one case which I would rely upon is Delta against Belgium
and I have a copy here for your Lordship.
LORD PROSSER: Can you say it vouches the propositions you have been putting
to us?
MR. O'NEILL: It certainly vouches the proposition that Article 6(1) applies
in the proceedings and further...
LORD PROSSER: Can you help us again? You have said it, I don't think needs
vouching, I don't think we need to go down that...
MR. O'NEILL: I think it does need vouching...
LORD PROSSER: If you just wait till I talk to Lord Reed please. Now of course
we don't need vouching of that, we're prepared to approach the matter on the
basis accepting veritas, we don't need to apply our minds to that for submissions.
So there is no need to vouch that. We're prepared to approach the matter on
the assumptions.
MR. O'NEILL: My Point is then 6(1) does accept...
LORD PROSSER: We're prepared to proceed on the basis this is right.
MR. O'NEILL: Yes, indeed my Lord. I suppose one would need vouching then for
the procedure which follows given that Article 6(1) applies.
LORD PROSSER: We have heard your submissions on that.
MR. O'NEILL: No I don't think you have heard in terms of giving case law,
in terms of vouching, in terms of actual procedure.
LORD PROSSER: We know the issue you want to discuss today and we have heard
further arguments as to what we should do and I think you have not to embark
upon that unless and until we decide we want to hear you on that today or
whether these are matters for the future. I also point out we do not know
what notice you received or, nor do we know what notice we have received.
I don't want this to turn into the beginning of you eventually insisting on
being heard on a matter we have decided already that you should not be heard
on the general. We have now heard your arguments, we did hear it on the specific
Order that you want which is an Order for full specific argument covering
that point. So I think we're now considering whether or not that's a matter
which we feel we should deal with today. We'll not embark on it today.
MR. O'NEILL: The other point being full specific evidence over sufficient
time and depending how full that argument is for us to consider it may not
be sufficient time.
LORD PROSSER: That would obviously open up all sorts of possibilities. Thank
you.
MR. ANDERSON: My Lord, might I address the Court on the issue of leave to
serve notice on the Crown with regard to the contention that the Lord Advocate
is not competent under Section 44 of the Crown proceeding, of the Scotland
Act, to bring a Reference...
LORD PROSSER: You want me to...
MR. ANDERSON: Serve written notice in terms of the Act, my Lord.
LORD PROSSER: Yes.
LORD REED: Are we discussing Section 44 or what...
MR. ANDERSON: It is Section 44, if I'm correct. The Court indicated there
had been not sufficient notice to the Crown on this issue.
LORD PROSSER: Well, that's right. You have to, I know you say you had the
informal context but you'd have to go through formal routes wouldn't you to
get it to the Court.
MR. ANDERSON Exactly, which is an issue that has arisen.
LORD PROSSER: And you say the correct route is to ask leave of us today.
MR. ANDERSON: To serve on the Crown the relevant Minute pursuant to the Act.
LORD PROSSER: If you refer us to a specific provision.
LORD REED: I think there is a provision.
THE ADVOCATE DEPUTE: Is it Section 44 of the Scotland Act?
MR. ANDERSON: That's right, Schedule 6, part 1.
LORD PROSSER: Sorry, what's Section 44 got to do with it? That's a mistake,
it's not Section 44.
MR. ANDERSON: Well, my Lord, the Court itself refers to Section 44 in its
previous judgment and said the Lord Advocate cannot act...
LORD PROSSER: Section 44 is just about the definition of the Scottish Executive
and including the Lord Advocate and Solicitor General.
MR. ANDERSON: Yes. Section 44, and as such as a member of the Executive we
have no power to...
LORD PROSSER: I'm trying to get the procedural provisions, what is the procedural
provisions you are evoking?
MR. ANDERSON: The actual procedural provisions that I'm evoking are actually
Schedule 6 to the Scotland Act, part 1.
LORD PROSSER: Yes. No, sorry, what was it you want before us, what we're talking
about is which provision of the Act of... (inaudible)...you are concerned
with. Basically the underlying statutory... It was suggested it may be 40(5).
So, you're meant to have this done as it were prima facie on the rules of
40(2)(3) and (4) unless the Court goes down, otherwise determines. You should
not, if you're asking for some procedure to be followed you really must identify
for us what it is.
MR. ANDERSON: My Lord, I apologise to the Court.
LORD PROSSER: I just want to get it, what are you asking me to do?
MR. ANDERSON: My Lord, I'm asking the Court to permit service of the Notice,
relevant Notice on the Crown indicating there is a devolution issue flowing
here.
LORD PROSSER: Yes, what is the provision you are evoking in asking to do that?
MR. ANDERSON: My Lord, I have not...
LORD PROSSER: In that case you should have, it's not for us to find out whether
there is a procedure you might evoke and whether you can have leave or not.
Now, Mr. O'Neill, we note what you say and no doubt the Crown note what you
say but in relation to the specific Order that you now seek as in relation
to the finding you previously stated we don't propose to do that today and
just leave you to decide how you deal with that in the initial period or indeed
before. Has anybody...?
MR. MOYNIHAN: If I could perhaps say Ms. Zelter is, as a result of the exchange
that has been going on, she is unclear what your Lordship is proposing to
do about tape recording of the proceedings.
LORD PROSSER: Yes, I'm very sorry, that is a matter to decide in light of
what happened the last time. I think we should have a word about whether we
should take a different view, I'm sorry. (following deliberations).
LORD PROSSER: Advocate Depute, since you didn't say anything about the point
of recording I'm assuming you as it were are neutral on that point. Anyway
we have considered the matter and as I have already noted the normal practice
when one is concerned with legal argument is not to have a verbatim record
in the form of a recording of the proceedings and we're not prepared to depart
from the view that was earlier taken and the Motion for such a recording should
be refused.
Certified as Correct
Shorthand Writer