Montgomery & Ors v Her Majesty's Advocate and The Advocate General for Scotland

Factual and Procedural Background

On 4 November 1998 the Deceased was fatally injured during an incident in The City. Shortly afterwards two individuals (now “Appellant 1” and “Appellant 2”) and a third man (“Individual A”) appeared on petition, charged with murder. The Crown chose to indict Individual A alone. At his March 1999 trial Individual A lodged a special defence incriminating the Appellants, was convicted only of assault, and was released because of time already served.

The trial judge publicly criticised the prosecution for not trying all suspects together. The Lord Advocate responded in the press, provoking extensive nationwide media coverage that compared the case with other high-profile racist murders. Amid continuing publicity, the Lord Advocate served indictments on the Appellants on 2 July 1999. A statutory reporting restriction was not obtained until 26 August 1999.

The Appellants lodged minutes raising a devolution issue under Schedule 6 to the Scotland Act 1998, arguing that further prosecution would breach their right to a fair trial under Article 6(1) of the European Convention on Human Rights (“ECHR”). After a preliminary diet, the High Court of Justiciary rejected the challenge. Leave was granted to appeal to the Judicial Committee of the Privy Council, which heard the matter as Montgomery & Others v. Her Majesty’s Advocate & The Advocate General for Scotland on 20 July 2000 (reasons delivered 19 October 2000).

Legal Issues Presented

1. Whether extensive pre-trial publicity rendered a fair trial impossible, contrary to Article 6(1) ECHR.
2. Whether, in light of that publicity, the Lord Advocate’s acts in indicting and continuing proceedings were ultra vires under section 57(2) of the Scotland Act 1998 as being “incompatible” with Convention rights.
3. Whether the question above was properly a “devolution issue” within paragraph 1(d) of Schedule 6 to the Scotland Act 1998, thereby giving the Privy Council jurisdiction.

Arguments of the Parties

Appellants’ Arguments

• The volume, tone and racial dimension of media coverage created an objectively justified fear that any jury would lack impartiality.
• Time alone could not dissipate the prejudice; comparisons with other notorious cases entrenched adverse public sentiment.
• Judicial directions to disregard publicity would be ineffective, so the only remedy compliant with Article 6 was to stay the prosecution.
• Because a fair trial was impossible, the Lord Advocate’s decision to indict and persist was ultra vires, making the matter a devolution issue.

Respondents’ Arguments

• The High Court’s preliminary-diet procedure and the trial judge’s powers (jury empanelment, warnings, directions and evidence control) provided sufficient safeguards.
• The lapse of time, diversity of publications and jurors’ focus on live evidence would neutralise any residual prejudice.
• Even if a fair trial ultimately proved impossible, that would not of itself render the initial decision to prosecute “incompatible” with Article 6, so no devolution issue arose.

Table of Precedents Cited

Court's Reasoning and Analysis

Jurisdiction. Although some Law Lords doubted that the complaint truly constituted a devolution issue, the Board accepted jurisdiction because (a) the High Court of Justiciary had so certified and (b) all parties had proceeded on that footing. A final ruling on the point was considered unnecessary for disposing of the appeal.

Compatibility with Article 6. The Board applied the objective test from Pullar v. UK: whether fears of partiality are objectively justified. It followed the Scottish Stuurman test in evaluating:

• the elapsed time since major publicity (about 17 months before any trial);
• the dilution of impact across numerous publications and broadcasts;
• the “focusing effect” of listening to live evidence over several days; and
• the trial judge’s arsenal—random jury selection, challenges, mid-trial instructions, and emphatic directions that verdicts be based solely on admissible evidence.

The Board considered empirical research and the collective judicial experience that juries obey such directions. While acknowledging “real though not negligible” risk, it held that careful judicial management would “remove any legitimate doubt” about impartiality.

Ultra vires claim. Because a fair trial remained possible, the Lord Advocate’s decision to prosecute was not incompatible with Article 6. Consequently, the acts were not ultra vires under section 57(2).

Holding and Implications

Appeals DISMISSED.

The murder trial against the Appellants may proceed in the High Court of Justiciary. The judgment confirms that extensive publicity, even if critical or emotive, will not automatically bar prosecution where domestic procedures (preliminary diet, jury vetting, and strong judicial directions) can secure impartiality. While leaving open theoretical questions about the scope of devolution issues, the decision sets no new precedent on that point and leaves the broader constitutional debate for another day.