BEGGS v. THE UNITED KINGDOM

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 conviction by the jury and did not in itself give rise to any liability to the notification requirements in the 1997 Act.

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

(vii) Jury trial – reasons for decision

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

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

“203. [W]e consider that it is clear from the judgments and decisions to which we were referred that the ECtHR has consistently recognised that any need, for the purposes of a fair trial, for a court to give reasons is not absolute but depends on the nature of the judicial decision and the particular circumstances of the case and the procedure within which it is being processed. More specifically, in legal systems in which the prosecution of crime involves the participation of lay people, or non-professional judges, in what may broadly be termed a ‘jury’, the fact that, in returning its verdict, such a jury does not deliver an exposition of its reasoning does not in itself involve any infraction of Article 6. In that respect we refer to the passages, to which reference has already been made, in the decisions in Savic v Denmark; Snooks and Dowse v United Kingdom; and Papon (No. 2) in which the view taken is that the absence of any direct delivery of reasons by the jury itself may be offset by the discernability of the basis of the jury’s decision from the procedural framework in which the jury operates. We would also mention that, although we were not referred to the decision, in Gregory v United Kingdom (1998) 25 EHRR 577 the ECtHR, at para 44 of its judgment, acknowledged that ‘...the rule governing the secrecy of jury deliberations is a crucial and legitimate feature of English trial law which serves to reinforce the jury’s role as the ultimate arbiter of fact and to guarantee open and frank deliberations among jurors on the evidence which they have heard’.”

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

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

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

(viii) Late disclosure of a witness statement by I.C.

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

83. The Appeal Court noted at the outset:

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

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

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

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

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

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

(ix) Overall fairness

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

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

(d) The request for leave to appeal to the Supreme Court

(i) Refusal of leave by the Appeal Court

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

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

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

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

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

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

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

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

(ii) Refusal of leave by the Supreme Court

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

3. The opening of the applicant’s correspondence

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

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

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

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

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

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

B. Relevant domestic law and practice

1. The commencement of the trial

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

2. The taking of precognitions

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

3. The conduct of a jury trial in Scotland

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

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

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

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

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

4. Admissibility of hearsay evidence

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

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

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

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

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

5. Prejudicial publicity and contempt of court

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

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

6. The rule of specialty

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

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

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

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

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

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

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

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

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

...”

7. Devolution issues

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

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

COMPLAINTS

116. The applicant complained under Article 6 §§ 1, 2 and 3 about a number of aspects of the criminal proceedings, namely:

(i) the decision to seek a search warrant on the basis of information relating to matters with which he had never been charged or of which he had been acquitted;

(ii) the provision of information regarding the criminal investigation and his previous criminal convictions to the media;

(iii) that a virulent press campaign against him was permitted;

(iv) that he was tried by an unsequestered jury, from an area which had been exposed to pre-trial publicity, which was able to return a verdict by simple majority and without reasons;

(v) the failure to take specific measures during the trial to address the ongoing media campaign and ensure the impartiality of the tribunal;

(vi) that the prosecution invited the jury to draw adverse inferences from the applicant’s decision not to give evidence at trial;

(vii) the alleged violation of the rule of specialty following his extradition;

(viii) the alleged bias of the Appeal Court of the High Court of Justiciary and improper extra-judicial inquiry engaged in by its office holders;

(ix) the material misrepresentation and concealment by the United Kingdom authorities of the facts of the case from the Dutch authorities;

(x) the failure of the prosecution and the trial judge to specify clearly the charge against the applicant;

(xi) the failure of the prosecution to make proper disclosure during the trial and appeal proceedings;

(xii) the admission of the witness statement from K.P.;

(xiii) the actions of the Scottish Prison Service, including interference with his correspondence, his removal to a prison in the north of Scotland, and denial of telephone contact with his legal advisers;

(xiv) the refusal of the SLAB to grant legal aid for work necessary for his appeal; and

(xv) the failure of the Appeal Court to consider the various complaints of the applicant in the context of the trial as a whole.

117.  He alleged under Article 8 of the Convention that his home was placed under surveillance on 15 December 1999 in the absence of any lawful regulatory regime; that a search warrant was granted in the absence of any evidence implicating him in the crime; that information relative to the search was leaked to the media; that the carrying out of a search of his home on 17 December 1999 in the full glare of publicity gave rise to a violation of his rights; and that his legal correspondence had been opened by the Scottish Prison Service.

118. Under Article 13 he complained that the failure of the authorities to secure a fair trial and the failure of the Appeal Court to apply the case-law of this Court deprived him of an effective remedy.

119. Finally, relying on Article 14, the applicant complained that he was portrayed at trial and in the media as a sexual predator.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1, 2 AND 3 OF THE CONVENTION

120. The applicant made a large number of complaints under Article 6 §§ 1, 2 and 3 about a variety of matters in the context of the criminal proceedings against him. Article 6 provides, in relevant part, as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

121. It is appropriate at the outset to identify the various heads of complaint raised by the applicant in the numerous challenges to the fairness of his trial set out above. Having regard to the various matters raised and, where relevant, the scope of the particular complaint before the Appeal Court, the Court considers that his complaints to this Court can be examined under the following headings: (A) prejudicial publicity; (B) adverse inferences; (C) extradition and the rule of specialty; (D) the clarity of the charge; (E) disclosure; (F) absent witness evidence; (G) lack of reasons from the jury; (H) the approach of the Appeal Court; and (I) other complaints.

A. Prejudicial publicity

122. Relying on Article 6 §§ 1 and 2 of the Convention, the applicant made a number of complaints about publicity in the press and the media prior to his trial, as well as the failure of the trial judge to take appropriate steps to manage the publicity during his trial.

123. The Court reiterates that a virulent press campaign can adversely affect the fairness of a trial by influencing public opinion and, consequently, jurors called upon to decide the guilt of an accused (see Akay v. Turkey (dec.), no. 34501/97, 19 February 2002; Włoch v. Poland (dec.), no. 27785/95, 30 March 2000; and Priebke v. Italy (dec.), no. 48799/99, 5 April 2001). In this way it risks having an impact on the impartiality of the court under Article 6 § 1 as well as the presumption of innocence enshrined in Article 6 § 2 (see Ninn-Hansen v. Denmark (dec.), no. 28972/95, ECHR 1999‑V; and Anguelov v. Bulgaria (dec.), no. 45963/99, 14 December 2004). At the same time, the Court notes that press coverage of current events is an exercise of freedom of expression, guaranteed by Article 10 of the Convention. If there is a virulent press campaign surrounding a trial, what is decisive is not the subjective apprehensions of the suspect concerning the absence of prejudice required of the trial courts, however understandable, but whether, in the particular circumstances of the case, his fears can be held to be objectively justified (see Butkevičius v. Lithuania (dec.), no. 48297/99, 28 November 2000; and G.C.P. v. Romania, no. 20899/03, § 46, 20 December 2011).

124. The Court has previously identified some of the factors relevant to the Court’s assessment of the impact of such a campaign on the fairness of the trial. Such factors include the time which has elapsed between the press campaign and the commencement of the trial, and notably the determination of the trial court’s composition; whether the impugned publications were attributable to, or informed by, the authorities; and whether the publications influenced the judges or the jury and thus prejudiced the outcome of the proceedings (see Sutyagin v. Russia (dec.), no. 30024/02, 8 July 2008). The Court has regularly emphasised, in cases concerning the fairness of criminal trials, the importance of directions given to the jury regarding their approach to various matters arising in the case (see, as recent examples, Adetoro v. the United Kingdom, no. 46834/06, § 49, 20 April 2010; Szypusz v. the United Kingdom, no. 8400/07, § 84, 21 September 2010; and Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 150‑151, ECHR 2011). Thus to the factors identified above the Court would add, in the context of a trial by jury, the content of any directions given to the jury.

125. In the present case the Court refers to the consistent findings of the domestic courts to the effect that the publications and broadcasts which occurred between the initial discovery of body parts on 6 December 1999 and, more particularly the search of the applicant’s flat on 17 December 1999, on the one hand, and the initiation of the criminal proceedings on 21 December 1999, on the other hand, were highly prejudicial to the applicant (see paragraphs 21, 25 and 50 above). There is therefore no doubt that a virulent and prejudicial press and media campaign directed in particular against the applicant took place between 17 and 21 December 1999. It is therefore necessary to have regard to the above factors in order to assess whether the press and media campaign prevented the applicant from having a fair trial.

126. As to the lapse of time between the campaign and the trial itself, the Court notes that from 21 December 1999, when the criminal proceedings against the applicant commenced, to 18 September 2001, the date on which the jury were called and sworn, a period of one year and nine months elapsed. The Court, like the domestic courts (see paragraphs 22, 25 and 51 above), considers this lapse of time to be significant. No matter how prejudicial the reports which appeared in the press and the media in December 1999, by September 2001 these reports had faded into the past, long superseded by other stories. Further, at the time at which the reports appeared, the future members of the jury in the applicant’s case did not know that they would be involved in the trial process and are therefore highly unlikely to have paid any particular attention to the detail of the reports. Although the December 1999 reports were available in archived material on the Internet at the commencement of the applicant’s trial, the Court is persuaded for the reasons given by Lord Osborne and the Appeal Court on this question that the reports were not freely and easily accessible and that only a relatively determined individual would have accessed and read these reports at that stage (see paragraphs 31 and 53 above).

127. Although the applicant alleged that the authorities were responsible for leaking information to the press, the Court notes the finding of Lord Wheatley that this allegation is entirely without concrete support (see paragraph 23 above). There is nothing in the information provided to the Court by the applicant to suggest the contrary.

128. As to the content of the jury directions in the case, the Court observes that the jury were warned at the outset of the trial that they were required to decide the case on the evidence presented in court only (see paragraph 49 above). It refers in particular to the trial judge’s charge to the jury at the conclusion of the trial, the terms of which are reproduced above (see paragraph 36 above). In his directions, the judge warned the jury to disregard any extraneous material which had come to their attention and explicitly referred in this regard to material in the press and on television. There is nothing in the circumstances of the case to suggest that the jury could not be relied upon to follow the judge’s instructions and it is therefore reasonable to assume that the jury would follow the directions given (see the Court’s similar conclusion in Szypusz, cited above, § 85).

129. For these reasons, the Court concludes that the applicant has failed to demonstrate that the impugned publications influenced the jury, thus prejudicing the outcome of the proceedings and rendering his trial unfair. The present complaint must therefore also be declared inadmissible as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Adverse inferences

130. The applicant argued that the prosecutor had invited the jury to draw adverse inferences from his decision not to give evidence at his trial. He relied on Article 6 §§ 1 and 2 of the Convention.

131. The Court refers to the finding of the Appeal Court that there was no reference in the words spoken by the prosecutor to the fact that the applicant could have responded to the questions asked but had failed to do so (see paragraph 62 above). This conclusion does not appear to be manifestly unreasonable or in any other way arbitrary, and this Court therefore sees no reason to conclude differently (see Ebanks v. the United Kingdom, no. 36822/06, § 74, 26 January 2010). The Court further refers, as did the Appeal Court, to the direction of the trial judge to the effect that the applicant had been cautioned that he was not required to say anything and that, in these circumstances, no adverse inferences could be drawn from his decision not to answer the charge against him (see paragraph 39 above). There is accordingly nothing in the general framework of the criminal proceedings or in the specific conduct of the applicant’s case to suggest that his conviction was based solely or mainly on his silence or on his refusal to answer questions or to give evidence himself.

132. This complaint is therefore also manifestly ill-founded and must be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

C. Extradition and the rule of specialty

133. The applicant complained that the Scottish authorities materially misrepresented and concealed the known circumstances of the case from the Dutch authorities during the extradition procedure and alleged a breach of the rule of specialty as he was tried and sentenced in relation to matters which exceeded the terms of his extradition. He relied on Article 6 §§ 1 and 3 (a).

134. As to the allegation that the Dutch authorities were misled, the Court notes that the body parts of Mr Wallace were found over a period spanning approximately one month (see paragraph 2 above). At the time that the arrest warrant, appended to the first extradition request, was granted, his torso had not been recovered and as a result the Scottish authorities were not aware of the full extent of the trauma suffered by the victim (see paragraph 76 above). Further, even after a post-mortem examination had been carried out, it was not possible to identify the definite cause of death (see paragraph 3 above). In the light of these considerations, the Court turns to examine the contents of the domestic judgments on this question. It observes that Lord Wheatley considered the statement made by the Scottish authorities which accompanied the extradition request to have been both reasonable and justified (see paragraph 24 above). His findings as regards the extradition matter were upheld by the Appeal Court (see paragraph 26 above). There is therefore no evidence of any misrepresentation or concealment of known information from the Dutch authorities.

135. As to the applicant’s contention that his conviction and sentence exceeded the terms of his extradition, the Court points out that he has not provided, in his application, specific details of this allegation. It will therefore examine the argument presented to the Appeal Court in 2010, namely that the inclusion in the indictment of an averment of sodomy was in violation of the rule of specialty.

136. The Court reiterates at the outset that it was for the domestic courts in the first instance to interpret and apply the relevant provisions of domestic and international law, including the requirements of the rule of specialty, subject to the review of this Court (see Woolley v. the United Kingdom, no. 28019/10, § 81, 10 April 2012). It will therefore turn to consider the conclusions of the Appeal Court on the question of compliance with the rule of specialty in the applicant’s case and examine whether those conclusions were, in the circumstances, reasonable and free from arbitrariness.

137. In this regard, the Court observes that the Appeal Court considered in some detail the applicant’s challenge to his conviction on the basis of the specialty rule. It emphasised, first, that the rule was primarily one of international law and that its principal purpose was to preserve comity between States, rather than effect a protection for an accused (see paragraph 74 above. See also Woolley, cited above, § 83 in fine). Turning to the specific complaint in the applicant’s case, the Appeal Court considered it important to underline that the indictment contained no separate charge of sodomy: the applicant faced a single charge of murder. It emphasised that no penalty separate from that imposed upon the applicant in respect of the murder could have been imposed in respect of the alleged averment of sodomy, and none was so imposed (see paragraph 75 above). It considered the details of forced anal penetration to have been part of the allegation of assault leading to death, and thus part and parcel of the conduct which lay at the basis of the extradition charge (see paragraph 76 above). It further noted that the extract conviction recorded the conviction as being that of murder alone. It concluded that no violation of the rule of specialty had occurred (see paragraph 78 above).

138. The Court considers that had the applicant been convicted of a charge of sodomy, his complaint of a breach of the rule of specialty might well have merited closer examination within the context of Article 6 in order to consider whether his complaint was justified and if so what impact, if any, this had on the fairness of his subsequent trial. However, in the present case it is clear that the applicant faced a single charge of murder and was convicted of this single charge. The Court therefore sees no reason to disagree with the findings of the domestic courts on the question of the rule of specialty. It follows that this complaint is manifestly ill-founded and must be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

D. The clarity of the charge

139. The applicant complained that the prosecution and trial judge had failed clearly to specify the charge against him as regards the allegation of sodomy, and that this failure had deprived him of his rights to challenge the admission of K.P.’s statement and his rights under Article 6 § 3 (a) of the Convention.

140. The Court has already found it clearly established that there was no separate charge of sodomy against the applicant (see paragraph 138 above). He faced a single charge of murder, and the particulars of how that murder was carried out formed part and parcel of the murder charge. The Court is further satisfied that the terms of the indictment were clear and that the applicant and his legal advisers could be in no doubt as to the nature and cause of the charge he faced.

141. This complaint is therefore also inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

E. Disclosure

142. The applicant alleged that the late introduction of further witnesses on the indictment list and the failure of the prosecution to disclose the fruits of their inquiries, including closed-circuit television footage, deprived him of a proper opportunity to investigate the case against him and resulted in a violation of Article 6 § 3 (b) of the Convention.

143. The Court recalls at the outset the terms of Article 35 § 1 of the Convention, which provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted ...”

144. It observes that with the exception of a complaint regarding the late disclosure of a statement by I.C., the applicant did not seek to raise this ground of challenge in the context of his domestic appeal. The applicant has accordingly failed to exhaust domestic remedies in respect of this complaint, except in so far as he maintains his complaint regarding I.C.’s statement. The Court will therefore examine only this latter complaint.

145. The Court has previously indicated that it is a requirement of fairness under Article 6 § 1 that the prosecution authorities disclose to the defence all material evidence for or against the accused (see Edwards v. the United Kingdom, 16 December 1992, § 36, Series A no. 247‑B). However, even where a failure to disclose material evidence has resulted in a flaw in the trial process, this defect may be remedied if the evidence is subsequently considered by a Court of Appeal in the context of an appeal against conviction (see Edwards, cited above, §§ 36-37 and 39).

146. In the present case, the Court observes that the witness I.C. made her statement to the police in December 1999 (see paragraph 44 above). In that statement, she mentioned that she had noted blood at the left side of the deceased’s mouth and that he had begun to punch himself in the face (see paragraph 84 above). It appears that this statement was not disclosed to either the prosecution or the defence (see paragraph 86 above). However, I.C. was subsequently precognosed by both sides. The results of those precognitions were essentially the same, and it appears in particular that she failed during the precognition process to mention having seen blood at Mr Wallace’s mouth or that he had begun to punch himself (see paragraphs 84-85 above). The Court considers that the question therefore arises whether the undisclosed 1999 statement was material evidence for or against the accused.

147. The Court refers in this regard to the observations of the Appeal Court in its judgment of 9 March 2010. It concluded that even if the statement had been disclosed and its contents put to and accepted by I.C. during oral evidence at trial, it was difficult to see how this would have assisted the defence contention that the injuries were inflicted prior to Mr Wallace’s entry into the applicant’s flat (see paragraph 85 above). The jury, taking account of the statement, would also have taken account of the other evidence in the case, including witness testimony as to his uninjured state outside the nightclub where he was last seen alive and the medical evidence. In the circumstances, the Appeal Court had “grave difficulties” in seeing how disclosure could possibly have affected the outcome of the trial (see paragraph 85 above).

148. The Court is therefore not persuaded that the evidence in question was “material” in the applicant’s case. In any event, it is satisfied that any defect in the trial process caused by its non-disclosure was remedied by the subsequent procedure before the Appeal Court. In this respect, the Court notes that in assessing this ground of appeal, the Appeal Court, in its judgment of 9 March 2010, mistakenly thought that I.C. had given oral evidence at trial (see paragraph 85 above). This mistaken view was subsequently acknowledged by the same court when considering the applicant’s request for leave to appeal to the Supreme Court on 27 May 2010 (see paragraph 93 above). However, it was satisfied that the real issue raised, namely whether the defence were materially prejudiced by the non‑disclosure, was unaffected by the misunderstanding.

149. The Court therefore finds this complaint to be inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

F. Absent witness evidence

150. The applicant contended that the decision to admit evidence in the form of a statement from K.P. violated his rights pursuant to Article 6 § 3 (d) of the Convention.

151. As the Court has consistently underlined, the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports of Judgments and Decisions 1997‑III; Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR 2010; and Al-Khawaja and Tahery, cited above, § 118).

152. The Grand Chamber has recently examined the requirements of Article 6 § 3 (d) in the context of absent witnesses in the case of Al‑Khawaja and Tahery, cited above. It reiterated that the guarantees in paragraph 3 (d) are specific aspects of the right to a fair hearing set forth Article 6 § 1 which have to be taken into account in the assessment of the overall fairness of proceedings. In making this assessment, the Court will look at the proceedings as a whole having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted and, where necessary, to the rights of witnesses (at § 118 of its judgment).

153. As to the content of Article 6 § 3 (d), the Grand Chamber explained that it enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see Al-Khawaja and Tahery, cited above, § 118).

154. The Grand Chamber set out two requirements which flow from the general principle identified. First, it has to be established that there was a good reason for the non-attendance of the witness. Second, even where there was a good reason, where a conviction is based solely or to a decisive extent on statements made by a person whom the accused has had no opportunity to examine, the rights of the defence might be restricted to an extent incompatible with the guarantees of Article 6. Accordingly, when the evidence of an absent witness is the sole or decisive basis for a conviction, sufficient counterbalancing factors are required, including the existence of strong procedural safeguards, which permit a fair and proper assessment of the reliability of that evidence to take place (see Al-Khawaja and Tahery, cited above, §§ 119 and 147).

155. The Court observes at the outset that K.P.’s death made it necessary to admit his witness statement if his evidence was to be considered. The admission of hearsay evidence in the event of the death of the witness is permitted in Scotland pursuant to section 259 of the 1995 Act (see paragraph 108 above).

156. As to whether the evidence was sole or decisive, the Court’s starting point is the judgments of the domestic courts. In his third written opinion, Lord Osborne considered that while K.P.’s statement might be of some assistance in the context of a circumstantial case, it was unlikely to take the prosecution very far (see paragraph 33 above). The Appeal Court, for its part, agreed that the statement was only one piece of circumstantial evidence to be considered along with many other pieces, and was not a crucial element in the prosecution case (see paragraphs 59-60 above). It concluded that the applicant’s conviction could not be said to have been based solely or to a material extent upon the statement (see paragraph 59 above).

157. The Court sees no reason to depart from the conclusions of the trial judge or the Appeal Court on the question of the sole or decisive nature of K.P.’s statement. It therefore concludes that the statement of K.P. was neither sole nor decisive evidence in the case against the applicant.

158. In any event, the Court is satisfied that there were sufficient counterbalancing factors to compensate for any difficulties caused to the defence by the admission of K.P.’s statement. In particular, the trial judge considered a challenge to the admissibility of the statement before it was read, and provided detail reasons for his refusal to uphold the challenge. He identified the need for directions to the jury as to the weight to be given to the statement and indicated that if in the course of the trial it emerged that the statement assumed greater importance in the prosecution case than anticipated, the matter could be considered again. He further observed that it was not said on behalf of the applicant that the contents of the statement were untrue (see paragraphs 33-34 above). It should be noted in this regard that K.P.’s identity, anonymised for the purposes of the present decision, was known to the applicant and it was therefore open to him to lead evidence to challenge its reliability if he wished to do so. In due course, careful directions were given to the jury by the trial judge in his summing up, warning them of the need to approach K.P.’s statement with critical care and identifying the various restrictions on the defence which resulted from K.P.’s absence at trial (see paragraph 38 above). They would have left the jury in no doubt as to the limitations of K.P.’s testimony and the extent to which they could rely on it. The applicant did not argue that the jury had been misdirected on this matter.

159. In the Court’s view, these factors, when taken with the strength of the other prosecution evidence in the case, meant that the jury were able to conduct a fair and proper assessment of the reliability of K.P.’s statement. It is accordingly satisfied that there is no appearance of a violation of Article 6 §§ 1 or 3 (d) and that this complaint must be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4.

G. Lack of reasons from the jury

160. The applicant complained about the absence of reasons from the jury. In its judgment in Taxquet v. Belgium [GC], no. 926/05, § 83-84, ECHR 2010, the Grand Chamber observed that the jury existed in a variety of forms in different States and that the institution of the lay jury could not be called into question. It further concluded that the Convention did not require jurors to give reasons for their decision and that Article 6 did not preclude a defendant from being tried by a lay jury even where reasons were not given for the verdict. Nevertheless, it held that the accused and the public must be able to understand the verdict that had been given (at § 90 of its judgment). The Grand Chamber continued:

“92. In the case of assize courts sitting with a lay jury, any special procedural features must be accommodated, seeing that the jurors are usually not required – or not permitted – to give reasons for their personal convictions ... In these circumstances likewise, Article 6 requires an assessment of whether sufficient safeguards were in place to avoid any risk of arbitrariness and to enable the accused to understand the reasons for his conviction ... Such procedural safeguards may include, for example, directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced ..., and precise, unequivocal questions put to the jury by the judge, forming a framework on which the verdict is based or sufficiently offsetting the fact that no reasons are given for the jury’s answers ... Lastly, regard must be had to any avenues of appeal open to the accused.”

161. That judgment was applied by the Court in the Scottish context in its decision in the case of Judge v. the United Kingdom (dec.), no. 35863/10, 8 February 2011. It is particularly significant that, in its decision in Judge, the Court considered the judgment of the Appeal Court in the applicant’s case (see paragraphs 80-81 above), observing:

“36. The Court considers that, in the present case, none of the features which led the Grand Chamber to find a violation of Article 6 in Taxquet are present in the Scottish system. On the contrary, as the Appeal Court observed in Beggs ... in Scotland the jury’s verdict is not returned in isolation but is given in a framework which includes addresses by the prosecution and the defence as well as the presiding judge’s charge to the jury. Scots law also ensures there is a clear demarcation between the respective roles of the judge and jury: it is the duty of the judge to ensure the proceedings are conducted fairly and to explain the law as it applies in the case to the jury; it is the duty of the jury to accept those directions and to determine all questions of fact. In addition, although the jury are ‘masters of the facts’ ... it is the duty of the presiding judge to accede to a submission of no case to answer if he or she is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused’s conviction ...

37. These are precisely the procedural safeguards which were contemplated by the Grand Chamber at paragraph 92 of its judgment in Taxquet ...”

162. As in the case of Judge, the present applicant has not sought to argue that the various safeguards identified were not followed at his trial. In particular, the Court has already found that the charge contained in the indictment was clear (see paragraph 140 above). It must, therefore, have been clear to the applicant that, when he was convicted by the jury, it was because the jury had accepted the prosecution evidence and, by implication, rejected his version of events.

163. The Court is accordingly satisfied that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

H. The approach of the Appeal Court

164. Relying on Article 6 § 1 of the Convention, the applicant complained that the Appeal Court had demonstrated bias against him by commenting on the cost in terms of progress in other appeals of hearing his appeal against conviction (see paragraph 46 above), and had further failed to consider the entirety of the proceedings in assessing their fairness.

165. The Court recalls that it is of fundamental importance in a democratic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned, in the accused. To that end it has constantly stressed that a tribunal must be impartial from an objective as well as a subjective point of view (see Hanif and Khan v. the United Kingdom, nos. 52999/08 and 61779/08, § 138, 20 December 2011). As to whether the court was impartial from an objective point of view, this Court must examine whether in the circumstances there were sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the tribunal bearing in mind that the misgivings of the accused, although important, cannot be decisive for its determination (see, mutatis mutandis, Hanif and Khan, cited above, § 140)

166. In the present case, the Court does not consider that the comments of the Appeal Court give rise to any objectively justified or legitimate doubts regarding its impartiality. It is clear from its detailed consideration of the numerous grounds of appeal, in the context of a comprehensive and thorough judgment running to 128 pages, that the court considered carefully each of the applicant’s challenges and there is no indication in that judgment of any lack of impartiality.

167. The Court further notes that at the conclusion of its judgment, the Appeal Court addressed a submission of the applicant’s counsel to the effect that it was required to consider whether the grounds of appeal jointly and collectively disclosed that a miscarriage of justice had occurred, even if no ground standing alone was sufficient to warrant the allowance of the appeal (see paragraphs 87-88 above). The Court therefore finds that the Appeal Court did consider the entirety of proceedings and that the applicant’s complaint in this regard is unsubstantiated. The Court is further satisfied that, taken cumulatively, the matters discussed above did not render the applicant’s trial unfair.

168. The applicant’s complaint about the approach of the Appeal Court must therefore be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

I. Other complaints

169. The applicant complained that a search warrant had been granted on the basis of information relating to events in respect of which he had never been charged or had been acquitted. He relied Article 6 §§ 1 and 2 of the Convention.

170. In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds no appearance of a violation of Article 6 of the Convention arising from this complaint. It therefore declares it inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

171. The applicant also complained that the actions of the Scottish Prison Service and the SLAB resulted in a violation of Article 6 § 3 (c) of the Convention in his case.

172. The Court notes that the applicant failed to raise either of these grounds before the Appeal Court. It is accordingly satisfied that he has failed to exhaust domestic remedies as regards these complaints, and declares them inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

II. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION

173. The applicant complained under Article 8 about the surveillance of his home, the granting of the search warrant, the alleged leaking of information to the media and the carrying out of a search at his home.

174. The Court observes that while the applicant raised certain of the above matters in the context of the criminal proceedings, he failed to lodge any separate domestic proceedings in respect of his complaints under Article 8 of the Convention, with the exception of his complaint about the opening of his correspondence. The criminal proceedings were not the appropriate forum in which to raise, and seek remedies for, his Article 8 complaints, separate from any potential issue arising under Article 6. In so far as his complaints are, in reality, directed at the fairness of his subsequent trial, the Court has already examined them in the context of its assessment under Article 6 of the Convention, above.

175. As regards the applicant’s complaint about the opening of his legal correspondence, the Court observes that the applicant commenced judicial review proceedings in 2003 and appears to have received a judgment in his favour in 2005. In so far as he complains about the opening of his correspondence before that date, his complaints have clearly been lodged with the Court outside the six-month period permitted by Article 35 § 1, which provides in relevant part:

“1. The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken.”

176. In so far as he complains about his correspondence being opened after that date, he has failed to demonstrate to the Court that he sought to commence judicial review proceedings in respect of this complaint, or explain to the Court why he did not commence such proceedings.

177. The complaints under Article 8 must accordingly be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

178. The applicant contended that the failure of the authorities to secure a fair trial and the failure of the Appeal Court to apply the case-law of this Court deprived him of an effective remedy.

179. The Court considers that, since his substantive complaints are manifestly ill-founded and not arguable, his complaints under Article 13 are also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

180. Finally, relying on Article 14, the applicant complained that he was portrayed at trial and in the media as a sexual predator.

181. In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols arising from this complaint. It therefore declares it inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş AracıLech Garlicki
Deputy RegistrarPresident

Full & Egal Universal Law Academy