William Lauchlan & Charles O?Neill v. Her Majesty's Advocate [2012] HCJAC 51

Criminal Note of Appeal Against Conviction and Sentence:- The appellants have applied for leave to appeal to the Supreme Court against the decision of the appeal court dated 8 February 2012 in an application under section 107(8) of the Criminal Procedure (Scotland) Act 1995. The court granted leave to appeal on some grounds but held that certain grounds of appeal were not arguable. Here the appellants appealed agains the refusal of leave to appeal in relation to some of those grounds. In relation to the issue of undue delay it was submitted on behalf of the first appellant that following the Supreme Court judgement in Ambrose v Harris (2011 SLT 1005) the starting point in the assessment of reasonable time under Article 6 of ECHR was not the stage when an accused person appeared on petition but when the accused was interviewed by the police under caution in the exercise of their powers under section 14 of the 1995 Act. On behalf of the second appellant it was submitted that leave to appeal ought to be granted on ground 1 which was concerned with the overhearing of legally privileged conversations through intrusive surveillance authorised under the Regulation of Investigatory Powers (Scotland) Act 2000. It was further submitted that leave to appeal ought to be granted in respect of comments of the trial judge, at the end of the trial which raised a devolution issue as the Lord Advocate had persevered with the prosecution in the face of what was evidence of an unfair trial. In addition it was submitted that the trial judge had misdirected himself in law when he repelled a submission in the first phase of the trial that the trial diet should be deserted pro loco et tempore and that a devolution issue was raised because the Lord Advocate continued the prosecution thereafter. It was further submitted on behalf of the second appellant that the trial judge had misdirected the jury in the second phase of the trial by warning the jury of the fallibility of identification evidence and here sought to raise the matter as a devolution issue on the basis that the prosecutor exercised her discretion in moving for sentence following events which had rendered the trial unfair. Here the court considered whether any of these grounds were arguable and whether leave to appeal should be granted.