FOURTH SECTION DECISION
Application no. 15499/10 William Frederick Ian BEGGS
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 16 October 2012 as a Chamber composed of:
Lech Garlicki, President, Nicolas Bratza,
Päivi Hirvelä, George Nicolaou, Ledi Bianku,
Zdravka Kalaydjieva, Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 16 March 2010, Having deliberated, decides as follows:
THE FACTS
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.
A. The circumstances of the case
1. Background facts
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.”
7. 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.
8. 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.”
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. The applicant was extradited to the United Kingdom on 9 January 2001.
2. Domestic proceedings
(a) Preliminary procedures
(i) Committal for trial and indictment
16. 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.
17. 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.
18. 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.”
(ii) The pre-trial minutes regarding publicity and extradition
19. 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.
(α) The High Court
20. 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.
21. 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 ...”
22. 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.”
23. 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.
24. 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.
(β) the Appeal Court
25. 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.
30. 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.”
26. 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.
(iii) Application for an order under the Contempt of Court Act 1981
27. 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.
28. 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.”
b. Trial proceedings
29. 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.
(i) Application regarding prejudicial reporting
30. 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.
31. 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 Attorney-General 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.”
32. 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”.
(ii) Objection regarding the admission of K.P.’s statement in evidence
33. 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 ...”
34. 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.”
(iii) Objection regarding the search warrant
35. 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.
33. 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.”
(iv) The charge to the jury
36. 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.”
37. 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.
38. 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.”
39. 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.
(v) The verdict and sentence
40. 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.
41. 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 ...”
(c) The appeal proceedings
42. 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.
43. 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.
44. 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.
45. The appeal against conviction was heard between 29 September 2009 and 9 October 2009.
46. 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.”
47. Further relevant extracts of the court’s judgment are summarised below.
(i) Publicity issues
48. 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.
49. 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.
50. 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.
25. 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.”
51. 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.
36. ... 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.”
52. 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.”
53. 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.
54. 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.”
55. 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.
56. 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.”
57. For these reasons the court rejected the ground of appeal relating to prejudicial publicity.
(ii) Admission of K.P.’s statement
58. 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.
59. 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.”
60. 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.”
(iii) The conduct of the prosecution
61. 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.
62. 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.”
63. This ground of appeal was accordingly rejected.
(iv) The search warrant
64. 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.
65. 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.”
66. 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 ...”
67. 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.
68. 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.
(v) Sufficiency of the evidence
69. 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.
70. 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.
(vi) The rule of specialty
71. 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.
72. 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.
73. 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.
74. 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.
185. 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 ...”
75. 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.”
76. 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.
191. 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.”
77. 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
