HER MAJESTY'S ADVOCATE v. DAVID BAIN

[1] On 10 May 2001 I refused an application made on behalf of the accused in the present trial to have the leading of certain evidence held to be ultra vires of the Crown under section 57(2) of the Scotland Act 1998; and I repelled an objection to the leading of that evidence. I indicated at the time that I would issue my reasons later. I do so now.

[2] The indictment which the accused faces contains six charges, of which the most serious is a charge of murder. That charge is in the following terms:

[3] The present trial commenced before me in the High Court at Glasgow on 3 May 2001. The Crown had given notice prior to the trial that they intended to apply to have certain statements taken by police officers from a deceased witness, Naseem Faisal Haq, admitted as evidence at the trial under section 259 of the Criminal Procedure (Scotland) Act 1995. On 8 May 2001 the Advocate Depute sought to introduce the evidence of the statements, and objection was taken by Mr Findlay on behalf of the accused.

[5] Mr Findlay initially raised this point under reference to the Human Rights Act 1998, on the basis that it was the duty of the court not to act incompatibly with the accused's Convention rights and therefore not to admit the evidence. Mr Findlay also raised the issue under the common law, but recognised that this was merely a different way of expressing the same point.

[8] The Advocate Depute next submitted that the devolution issue was being raised too late: Mr Findlay had failed to show cause why the court should allow the issue to be raised in the middle of the trial. I disagree. For the reasons explained in such cases as McKenna , I do not consider that the issue has been raised unreasonably late. Indeed the more difficult question is whether the issue has been raised too early to be decided. As was said in McKenna at page 172D-E: