Her Majesty's Advocate v. Fleming & Anor [2005] ScotHC HCJAC_27a (24 March 2005)

Her Majesty's Advocate v. Fleming & Anor [2005] ScotHC HCJAC_27a (24 March 2005)

While the use of the RVR without the knowledge of the judge or defence justified desertion of the trial due to risk of prejudice, there was no evidence of actual prejudice or that confidential communications were overheard. Therefore, desertion simpliciter was not justified; desertion pro loco et tempore was the...

Source-derived case information.

Parties
Applicant: Her Majesty's Advocate; First Respondent: Douglas Colin Fleming; Second Respondent: Finbar Matthew Brady
Jurisdiction
Scotland
Judgment Date
24 March 2005
Procedural Posture
Bill of Advocation (criminal Appeal) / Appeal Against Trial Judge's Order of Desertion Simpliciter
Outcome
Appeal allowed in part; trial judge's order of desertion simpliciter recalled and substituted with desertion pro loco et tempore.
Legal Topics
Fair Trial, Abuse of Process, Article 6 ECHR, Article 8 ECHR, Desertion Simpliciter, Desertion Pro Loco Et Tempore, Confidentiality of Defence Communications, Remote Viewing Room (rvr)
Criminal Law Human Rights Law Criminal Procedure Fair Trial Abuse of Process Article 6 ECHR Article 8 ECHR Desertion Simpliciter +3 more

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Summary, issues, holding and outcome

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Parties

Her Majesty's Advocate

Applicant

Douglas Colin Fleming

First Respondent

Finbar Matthew Brady

Second Respondent

Procedural Posture

Bill of Advocation (criminal Appeal) / Appeal Against Trial Judge's Order of Desertion Simpliciter

Legal Issues

  1. 1 Whether the use of a Remote Viewing Room (RVR) during trial without knowledge of the judge or defence prejudiced the fairness of the trial
  2. 2 Whether desertion simpliciter was justified or whether desertion pro loco et tempore was the appropriate remedy
  3. 3 Whether Articles 6 and 8 ECHR were breached

Ratio Decidendi

While the use of the RVR without the knowledge of the judge or defence justified desertion of the trial due to risk of prejudice, there was no evidence of actual prejudice or that confidential communications were overheard. Therefore, desertion simpliciter was not justified; desertion pro loco et tempore was the correct remedy, allowing for the possibility of a fair retrial.

Court Disposition

Appeal allowed in part; trial judge's order of desertion simpliciter recalled and substituted with desertion pro loco et tempore.

Orders

  • Recall the order of desertion simpliciter against the first respondent.
  • Substitute an order deserting the trial pro loco et tempore against the first respondent.