Seven years for ex-solicitor

Drummond was sentenced at the High Court in Edinburgh

A former chairman and secretary of Dundee Football Club has been jailed for seven years for stealing thousands of pounds from a dying centenarian. Solicitor Andrew Drummond, 39, was supposed to be looking after the trust fund which paid Violet Cuthbert's nursing home bills. But instead he used his law firm's access to her bank accounts to siphon off 48,000 for his own purposes. Even when the old lady was virtually on her death bed in a Newport-on-Tay nursing home, Drummond was still taking her cash. The money was part of a total of nearly 84,000 which Drummond took from clients of Drummond, Robbie and Gibson, the law firm he ran from offices in Meadow Place Buildings in Dundee between March 1993 and June 1995.

Drummond took clients' money
Appealing for leniency, defence advocate Neil Murray QC told the High Court in Edinburgh that Drummond - who was struck off the Law Society's list of solicitors in November 1994 - was now a broken man. "This was not a situation where money was being taken to finance a life-style high on the hog," he said. "He is an individual who has fallen - prior to today's appearance - from professional grace. "He has fallen a seriously long way ... and to all intents and purposes, as far as his profession is concerned, there is no way he will ever be re-admitted into the profession to which he devoted himself and which he trained for for many years." But Lord Penrose said: "Clearly you are well aware I have no alternative but to impose a significant custodial sentence on you."

Referring to Drummond's attempts to dodge embezzlement charges by producing bogus letters and loan documents, the judge said he would be "well entitled" to add to the sentence - but considered that to be unduly harsh. An earlier trial heard how Drummond used some of Mrs Cuthbert's trust money to pay off massive rent arrears on his then boyfriend's debt-ridden gift shop. Drummond also used the old lady's cash to complete a pay-off to a former partner who had retired from the law firm. He was previously convicted of illegal sharedealing and related to his involvement with Dundee FC. He was fined 1,500.

He bought a 30% stake in the Dens Park club from a millionaire property developer in 1991. But Drummond used companies he controlled to try to disguise the size of his holding and avoid a legal responsibility to make a cash offer to other shareholders. The offence also resulted in an 8,000 fine by the Scottish Solicitors' Discipline Tribunal for professional misconduct.

    Drummond was found guilty at the High Court

    A former chairman and secretary of Dundee Football Club has been found guilty of embezzling almost 84,000 from clients of his law firm. Andrew Drummond's victims included a 100-year-old woman, who lost 48,000. The 39-year-old, who has since been struck off, also used siphoned off cash that his Dundee-based firm had won for council worker Ian Robb, 46, who was injured in an industrial accident. Drummond, from Dundee, had denied embezzling 84,000 from clients of Drummond, Robbie and Gibson, the law firm he ran between March 1993 and June 1995. The High Court in Edinburgh had heard how Drummond was supposed to be managing a trust fund which paid for centenarian Violet Cuthbert's nursing home bills.

    The court heard how Drummond took clients' money However, over two years Drummond, who the court heard was homosexual, took tens of thousands of pounds from the fund, even when she was dying. He used that money and the council worker's compensation to pay off massive rent arrears on his live-in partner's gift shop. At that time, Drummond and partner Robert Prentice were living together in a 250,000 house in Forfar. Drummond also used the pensioner's money to complete a pay-off to a former legal partner who had retired from his law firm. He told the court that some of the missing money had been honestly earned and other sums had been loaned to him.

    Tape-recorded statements
    However, the jury found him guilty of taking the money and of attempting to conceal what he had done by falsifying papers given to police and prosecutors. The jury also rejected Drummond's attempt to blame an ex-colleague, Ritchie Myles, for some of the embezzlements. Mr Myles had been brought out of retirement to keep the law firm going after Drummond was struck off the Law Society's list of practising solicitors in November 1994. He died in January.

    A former partner pointed the finger at Drummond
    Before he died, he had made tape-recorded statements to the police, accusing Drummond. The court heard how Mr Robb was awarded 10,000 after an accident at work but no money was handed over by Drummond. The compensation and interest went to pay back rent on the Tayside China shop in Dundee's Overgate, a business Drummond and Mr Prentice, 40, ran as partners. Drummond had previously appeared in the dock when his involvement with Dundee Football Club resulted in a conviction for illegal share dealing.

    Professional misconduct
    He had bought a 30% stake in the Dens Park club from a millionaire property developer in 1991. But Drummond used companies he controlled to try to disguise the size of his holding and avoid a legal responsibility to make a cash offer to other shareholders. He was fined 1,500 at Dundee Sheriff Court and also received an 8,000 fine from the Scottish Solicitors' Discipline Tribunal for professional misconduct. The tribunal ordered Drummond to be struck off after complaints about the way he handled his clients' business. The judge, Lord Penrose, ordered Drummond to be remanded in custody and delayed sentence pending background reports.

    Mr Drummond faces four charges
    A former chairman and secretary of Dundee Football Club has appeared in court charged with embezzling more than 84,000 from a firm of solicitors.

    Andrew Drummond, 39, made no plea at the High Court in Stirling. Mr Drummond is accused of embezzling 52,571 from the Dundee firm of Drummond, Robbie and Gibson between 1 March and 30 November 1993. He is also charged with embezzling 31,625 while acting as the manager of the company, between 1 January and 30 June 1995. It is further alleged that between 30 November 1994 and 6 July 1995, he practised as a solicitor or held himself out as entitled to practise, without a certificate in force, contrary to the Solicitors (Scotland) Act.

    The alleged offences are said to have occured at Drummond, Robbie and Gibson's offices in Dundee and elsewhere in Scotland. Mr Drummond faces another charge of attempting to pervert the course of justice, by the hands of his own lawyer, producing fabricated documents to avoid prosecution for embezzlement. The case was continued for two weeks at the request of his advocate, Hugh Irwin.

    A JURY finds DRUMMOND guilty ,he takes an appeal before his legal pals at the APPEAL COURT they uphold the appeal but instead of returning the case for a jury to consider on the technical hitch they conspired to get him off with ,they dismiss his case and let him walk free.

    The Scottish Legal system has NEVER been shown so despicable as a lawyer who embezzled 84,000 from 6 dead clients walks FREE. One of his living clients over 100 years of age .

    Here is ONE of the many legal parasites defrauding and getting off and free to carry on their fraudulent ways. The message to the rest of the crooks is carry on ,we wont jail you even if you get caught. Below the judgements which went out just before Christmas to ensure it received very little impact in the media .



    18 December 2002,
    Lord Justice General+Lord Cameron of Lochbroom+Lord Marnoch

    Lord Justice General
    Lord Cameron of Lochbroom
    Lord Marnoch
    Appeal No: C681/00

    delivered by LORD MARNOCH


    Appellant: I. Duguid, Q.C., Hamilton; Gilfedder McInnes

    Respondent: G. Hanretty, Q.C., A.D.; Crown Agent

    18 December 2002

    [1] In this case the appellant was convicted of two charges of embezzlement and a third charge of attempting to pervert the course of justice. He has lodged a Note of Appeal containing a number of grounds but this court is presently concerned with only the first of these which is in the following terms:"(1) A material part of the proceedings took place outwith the presence of the appellant, contrary to the Criminal Procedure (Scotland) Act 1995 Section 92. More specifically, on or about 7 August 2000, during the course of the appellant's evidence at trial, legal debate regarding the admissibility of evidence took place before the Court. The appellant was removed from the Court room for the duration of this debate. There was no question of the appellant being subject to Section 92(2) of the 1995 Act. These circumstances constitute a material breach of said Section 92(1)."

    [2] To this ground, however, the court, at the outset of the hearing, allowed the following supplementary ground to be added:"Senior counsel for the appellant, in the course of the trial proceedings, outwith the presence of the appellant himself, acted entirely without the instruction or authority of the appellant. He stated that he (senior counsel) was 'content to put on record that I do not take any point with regard to competence on that matter.' (Page 74 of transcription of the evidence-in-chief of the appellant). Counsel had neither consulted with the appellant nor had he taken instructions from him upon said matter. In any event, the provisions of Section 92, as aforementioned, were not waved (sic) by the appellant. Representation of the appellant was accordingly defective. Justice was not seen to be done."Somewhat remarkably, the "matter" referred to was left unspecified but, by reference to the transcript, it became clear that it was the fact that the appellant was removed from the court during the "legal debate".

    [3] The precise circumstances which gave rise to the "legal debate" are not important, it being sufficient to say that the trial judge appeared to have some concern that questioning of the appellant on an issue raising sharp questions of credibility was in danger of proceeding on a false premise. The trial judge himself intervened in order to clarify matters and the first thing he did was to invite the jury to retire. It appears that the appellant at that point was also ushered from the witness box to a corridor outwith the court room. A few minutes later the trial judge is recorded as observing that the accused was "missing part of the trial". Unfortunately this is immediately followed by an inaudible part of the tape. However, counsel for the appellant then volunteered that "it was probably better that he (the appellant) be not here unless any suggestion be made with regard to his being influenced" and he followed this up by saying, in terms, that he did not take any point with regard to "competence" The "legal debate" then continued, during which the trial judge is recorded as saying, inter alia, as follows:"Well, I don't intend to seek to establish precisely what the evidence was by having the tapes replayed. That is not my purpose. My purpose is simply to give you a warning because I did anticipate that we had reached this point that if you take a particular line with the jury I will have to be critical of it on my own notes and that could be damaging."

    [4] Shortly thereafter the appellant was brought back to the witness box and before the jury returned the trial judge addressed him directly in the following terms:"Mr. Drummond, simply to explain to you what has been going on and why before the jury comes back. I have a different note of the evidence than perhaps is available to Mr. Murray and my anxiety was that this line should not be pursued without him being fully aware of that so we have discussed what the position is but you should know to that extent what has been doing on."

    [5] For the sake of completeness we should perhaps record that in his Report to this court the trial judge explains the position as follows:"I thought it necessary to ask the appellant to leave for his own sake. It could have been disadvantageous for him to listen to the discussion of what notes parties had about a matter on which he was giving evidence at a time when he was in the middle of his own evidence, since there was a risk that deliberately or otherwise, he would have reacted to that to his disadvantage."

    [6] We note in passing that in his Report the trial judge suggests that what took place outwith the presence of the accused might not, at least technically, have been part of the "trial" for the purposes of section 92 of the 1995 Act. However, this suggestion was not taken up by the Crown and we are clearly of opinion that what transpired was indeed part of the trial within the meaning of that section which is in the following terms:

    "(1) Without prejudice to section 54 of this Act [Insanity in bar of trial], and subject to subsection (2) below, no part of a trial shall take place outwith the presence of the accused.

    (2) If during the course of his trial an accused so misconducts himself that in the view of the court a proper trial cannot take place unless he is removed, the court may order -

    (a) that he is removed from the court for so long as his conduct makes it necessary; and

    (b) that the trial proceeds in his absence,but if he is not legally represented the court shall appoint counsel or a solicitor to represent his interests during such absence...."

    [7] In the hearing before us Mr. Duguid, Q.C., for the appellant, commenced by submitting that in this case a "very serious irregularity" had taken place and that, justice having not been seen to be done, there had inevitably been a miscarriage of justice. However, in the course of the ensuing debate, Mr. Duguid did not peril his submission on "justice not having been seen to be done" and concentrated increasingly on what came to be described as an irregularity "of a quite fundamental nature". Mr. Duguid frankly accepted that he was unable to demonstrate any actual, as opposed to "potential", prejudice to the appellant. The Advocate depute demurred to the suggestion that this was a case in which justice had not been seen to be done and pointed out that all that had transpired had been in full view of the public and that there was, moreover, a transcript of the taped proceedings which now showed to all concerned, including the appellant, exactly what had transpired. In the absence of actual or imputed prejudice there was no miscarriage of justice and the appeal should be refused.

    [8] Section 92 of the 1995 Act has a long pedigree replacing, as it did, section 145 of the Criminal Procedure (Scotland) Act 1975, which in turn had been substituted for section 10 of the Criminal Justice Act 1587. That section declared and ordained, inter alia, that:"in all tyme cuming the haill accusatioun ressoning writtis witnesses and utheris probatioun and instructioun quhatsumeuer of the cryme salbe allegit ressonit and deducit to the assyse in presence of the pairtie accusit in face of iudgement and na utheris wayes."

    [9] However, even without reference to this statute, Hume is clear regarding the principle involved. In volume 2 of his Commentaries, at p. 269, he says this:"Let us now suppose, that the accused is absent at calling the libel, but the prosecutor appears and insists. With one exception, which was introduced in evil times, in cases of treason, it has been our invariable custom, that no sort of proceeding can here take place, as for trial of the crime libelled. It is considered, that unless the accused is present to take charge of his own interest, there can be no security for doing full justice to his case; for pleading all his defences, bringing forward all his evidence, stating all objections to the evidence on the other part, and still less for taking advantage of all those pleas and grounds of challenge, which may arise in the course of the proceedings in the trial. Besides (though this is certainly an inferior consideration,) the Judges ought not to be called on to apply or declare the law, except in circumstances which afford the means of carrying their sentence into effect. On these grounds, the peremptory rule has long been settled, of requiring the personal presence of the pannel in every step, from first to last, of the trial, with the exception only of continuations of the diet; so that if he even withdraw at the last stage of all, after a verdict of guilty has been returned against him, still the court cannot proceed to apply the sentence of the law."Later in his work, at pps. 404-405, with reference to the 1587 Statute, Hume observes that "under this excellent law the pannel enjoys, in the first place, full security against all private insinuation of evidence to the assize, during the time of their continuance in court".Moreover, he says, the consequence of an attempt to make such an insinuation "is not in the loss of the particular conviction only, but of all right of prosecution on the matter of this libel, for the future".

    [10] In the course of the hearing we were referred to a number of much more recent authorities but, perhaps not surprisingly, all were clearly distinguishable on their facts. Most involved the leading or taking of evidence outwith the presence of the accused. There are, however, three which we find helpful on the wider issue of principle. The first is Aitken v. Wood 1921 J.C. 84. In that case at the conclusion of the evidence the magistrates called the complainer into their retiring room in order to examine her injuries. In delivering the leading opinion of the court the Lord Justice General (Clyde) said:"This procedure, however well intended, and however harmless it may have been in this particular case, strikes at the principle - deeply rooted in the criminal law of Scotland - that no proceedings in a criminal trial, and particularly no proceedings connected with the taking of evidence, can go on outwith the presence of the accused. The examination of the arm was just a means of taking evidence additional to that which was presented at the proof. The taking of such evidence, in the absence of the accused, is plainly an irregularity which vitiates the proceedings; and there is therefore nothing for it but to quash this conviction."

    [11] The next case to which we make reference is that of Brims v. MacDonald 1993 S.C.C.R. 1061. That was a case in which the sheriff, in the course of a summary trial, went and viewed for himself the locus of the alleged offence. Although the sheriff stated that his decision would have been the same even had he not viewed the locus the court suspended the conviction. In delivering the Opinion of the Court the Lord Justice Clerk (Ross) described what had occurred as a serious irregularity and stated that "as in the case of Aitken v. Wood we have come to the conclusion that it vitiated the proceedings."

    [12] Both the foregoing cases involved summary procedure and, whether in terms of section 75 of the Summary Jurisdiction (Scotland) Act 1908 or sections 442 and/or 454(2) of the Criminal Procedure (Scotland) Act 1975, the court had a choice of viewing the matter in issue as involving either, on the one hand, incompetency or oppression or, on the other hand, prejudice and a miscarriage of justice. It is clear to us that in each case the court chose the former route.

    [13] The case which is perhaps most directly in point is that of Cunningham v. H.M. Advocate 1984 J.C. 37, a case in which the giving of directions to the jury by the court through the clerk of court, after the jury had retired, was held to be a breach of section 145(1) of the Criminal Procedure (Scotland) Act 1975. At p. 44 the Lord Justice Clerk (Wheatley) expressed the view that it would all depend on circumstances whether a breach of section 145(1) would give rise to a "miscarriage of justice" which by then had effectively become the only ground of appeal in solemn proceedings. It was possible, he said, that the contravention could be "so academic or lacking in materiality that it could not be said that any miscarriage of justice resulted from it." Lord Hunter and Lord Robertson, however, took a different approach and, whether or not consciously reflecting the passage in Hume's Commentaries, both judges described the provisions of the section in question as "peremptory". Moreover, it is clear from the Opinion of Lord Robertson that he regarded a breach of such provisions as being, in effect, an end of the matter. For instance, at p. 50, having said that the convictions could not stand, he goes on to say that it is "therefore not necessary to examine in great detail ... the exact happenings which occurred after the jury had been enclosed." And, later in his Opinion, having reached the view that it could not be certain that a miscarriage of justice had not been perpetrated, he goes on to comment: "This underlines the necessity for section 145(1) being complied with." Later still, he narrates a submission on behalf of the appellant that since there had been a miscarriage of justice the result should be a quashing of the convictions and acquittal. Lord Robertson, however, responds as follows:"I do not agree with this result. The reason for the setting aside of the convictions is that there was a breach of section 145(1) of the Act ... The reason has nothing to do with the merits of the case ... I would set aside the convictions ... and grant warrant to bring a new prosecution ... if so desired."

    [14] It is interesting that Lord Robertson says all that he does in the context of an appeal which was necessarily based, as is the present appeal, on an alleged "miscarriage of justice". In our view, however, this simply serves to emphasise that that phrase, which now encapsulates the single test in both solemn and summary appeals, must on occasion be given a somewhat extended meaning. It must, for instance, now cover all the various situations which in the past, under summary procedure, were viewed in terms of incompetency and/or oppression, including those referred to above. In this connection we are of opinion that the current editors of Renton and Brown's Criminal Procedure are well-founded in suggesting, at para. 29-14: "In certain circumstances, the only proper conclusion will be that the appeal should be upheld and the conviction quashed." The text goes on to give examples of "fundamental irregularities" where, it is suggested, that should be the necessary result. These include situations where the trial court acts in excess of jurisdiction, where the diet is not properly constituted, and where the verdict is one which was not open on the indictment.

    [15] In our opinion a breach of what is properly described as a "peremptory" provision of the common law or statute will generally give rise to a "fundamental irregularity", with the necessary result that any ensuing conviction will fall. The breach of such a provision will often be so fundamental that it is quite simply otiose to look behind or beyond it. And, in our opinion, the breach of section 92(1) of the 1995 Act which is complained of in the present case falls into that category. We consider that Lord Hunter and Lord Robertson were correct in describing the identical provisions of section 145(1) of the 1975 Act as "peremptory". The strictness of the law of Scotland on this matter, as compared with that in England, was highlighted by Lord Rodger of Earlsferry in his speech in the recent case of R. v. Jones [2002] 2 W.L.R. 524 at paras. 43-46. We consider, as we have said, that a breach of section 92(1) will generally lead to an appeal being allowed. Were the position otherwise, there would have to be enquiry in every case as to whether the breach in question could be said to have given rise to a miscarriage of justice in the ordinary sense of that term. In point of fact, however, such an enquiry would often be fruitless since it could seldom be established with any certainty that events would have followed a materially different course had no breach taken place. In the present case, for example, it is possible that counsel for the appellant varied his line of questioning in light of the trial judge's intervention and it simply cannot be known whether any different course would have been followed had the accused been present and in a position to tender instructions. In our view, however, this simply highlights the fundamental nature of the breach in question. The situation might be different if it could be affirmed with certainty that no prejudice to the accused could possibly have occurred. This was the way in which the court treated an adjournment in the absence of the accused in Gardiner v. H.M. Advocate (1976) S.C.C.R. Supp. 159, cf. Bennett v. H.M. Advocate 1980 S.L.T. (Notes) 73. As to whether there are other types of situation which may be treated similarly as exceptions we reserve our opinion.

    [16] As regards actual prejudice, we are very conscious that, as the trial judge makes clear in his Report, there were a number of quite distinct components in the jury's verdict and, while no separate argument was addressed to us on the matter, it is difficult to see how more than one of these components could have been directly affected by what took place. At the same time, it can never be known how the appellant's credibility on one part of the case may be taken to affect his credibility in relation to another part of the case. In the end, therefore, we come back to, and reiterate, the view that where, as here, there is a fundamental irregularity in procedure arising out of breach of a peremptory statutory provision, a miscarriage of justice can be said to have resulted even without the demonstration of actual or imputed prejudice. While, therefore, we agree with the Advocate depute that it is not necessary or, perhaps, appropriate, to categorise the present case as being one in which justice was not "seen" to be done, we find ourselves unable to accept his other submissions. It only remains to add, as regards the supplementary ground of appeal, that in our view counsel's implied mandate does not go the length of enabling him to waive an irregularity of the type described above.

    [17] For all the above reasons this appeal must be allowed.


    24 December 2002, Lord Justice General+Lord Marnoch+Lord Macfadyen


    Lord Justice General

    Lord Marnoch

    Lord Macfadyen

    Appeal No: C681/00










    Appellant: Shead; Gilfedder McInnes

    Respondent: G. Hanretty, Q.C., A.D.; Crown Agent

    24 December 2002

    [1] On 18 December 2002, having heard submissions in regard to certain of the appellant's grounds of appeal against conviction, the court delivered its opinion that one of them was well-founded and that on this ground the appeal should be allowed. The Crown then moved the court to grant authority, in terms of section 118(1)(c) of the Criminal Procedure (Scotland) Act 1995, for the bringing of a new prosecution against the appellant. In these circumstances the court did not at that stage pronounce an interlocutor disposing of the appeal, but continued the case to 20 December for the purpose of then hearing submissions in regard to the motion for the Crown.

    [2] The appellant was convicted on 11 August 2000 on three charges. The first and second of the charges related to, respectively, embezzlement, and embezzlement and theft, committed while the appellant was practising as a solicitor. The third charge was of an attempt to pervert the course of justice.

    [3] A number of points about the history of the case may be noted. The first of the charges was concerned with the conduct of the appellant between 1 March and 30 November 1993. The second related to the period from 1 January to 30 June 1995. The appellant was charged by the police in regard to these matters on 12 August 1996 and 15 January 1998. He appeared on petition in the Sheriff Court on 27 April 1998, when he was liberated on bail. The case against the appellant was originally set down for trial on 6 April 1999. However, the trial did not proceed, and he was re-indicted twice thereafter. He came to trial on a third indictment on 24 July 2000. Following his conviction on 11 August 2000 he was sentenced on 31 August 2000 to seven years imprisonment. On 8 November 2000 a note of appeal was lodged on his behalf, containing a total of six grounds of appeal. He was granted interim liberation on 21 December 2000.

    [4] We consider first the implications of the protracted character of the proceedings, and in particular the time which has elapsed since the periods to which the first and second charges related. The Advocate depute did not dispute that this was a factor for consideration in regard to whether the Crown should be granted authority to bring a fresh prosecution, and Mr. Shead, who appeared on behalf of the appellant, stressed its importance. We were informed that the evidence on which the Crown and the defence founded was partly documentary and partly that of witnesses. It is obvious that the time which has elapsed raises a question as to whether the reliability of the recollection of witnesses may have been adversely affected. The Advocate depute said that he could not provide the court with any information on this subject; no attempt had been made to check on the availability or recollection of significant witnesses. He sought to rely on the fact that a complete transcript of the evidence at the trial would be available at the re-trial of the appellant and that in appropriate circumstances this could be used to prompt the recollection of witnesses. He also stressed that the trial judge could give appropriate directions to the jury regarding the importance of the onus of proof where the recollection of witnesses had been dimmed. However, it is plain that that it is far from satisfactory to have to rely on such methods in an attempt to compensate for loss of recollection.

    [5] We consider next the circumstances which gave rise to the appeal court concluding that the appeal against conviction was well-founded. The court was satisfied that there had been a breach of section 92(1) of the Criminal Procedure (Scotland) Act 1995, that this breach was of a fundamental nature, and that this had caused a miscarriage of justice.

    [6] It is right for us to bear in mind that the conclusion reached by the appeal court was not based on the view that actual prejudice to the appellant had been caused by the breach of section 92(1). However, the court could not and did not exclude the possibility that there had been such prejudice. The circumstances in which that breach occurred are of significance for present purposes. It happened at a stage in the course of the examination of the appellant by his counsel when the trial judge interrupted the line of questioning to point out that it was proceeding on a mistaken basis. The trial judge thereupon invited the jury to retire, and, according to his report, asked the appellant also to leave the court room, for the reasons which the court noted in its opinion of 18 December 2002. Thereafter there was an extensive discussion between the trial judge and counsel for the appellant, in the course of which the trial judge adverted to the fact that the appellant was "missing part of the trial", and counsel indicated that he did not take any point in regard to the competence of that.

    [7] It is clear that at the outset of, and throughout, the period when the appellant was absent from his trial the Advocate depute took no steps to point out that, however well-intentioned the trial judge had been, it was not competent for the trial to proceed in the absence of the appellant, let alone to propose the repeating of the part of the proceedings which had taken place in his absence so as to eliminate any possible prejudice to him.

    [8] It is important to note that section 92(1) is not expressed as prohibiting the trial judge from directing or permitting the trial to proceed in the absence of the accused. It is expressed in general terms, stating that "no part of a trial shall take place outwith the presence of the accused". Underlying that provision, which is of a fundamental character, is the objective of securing that an accused person receives a fair trial. No doubt this means that the trial judge should not act in such a way as to bring about a breach. However, it is also plain that the Advocate depute, who has the responsibility of conducting the prosecution which has been brought at the instance of the Lord Advocate, has a strong interest in preventing the proceedings from being rendered invalid by reason of a breach of section 92(1), and hence in seeking to forestall or terminate a situation in which part of the trial takes place in the absence of the accused. The fact that counsel for the appellant waived objection was of no moment in the light of the fundamental nature of the irregularity which occurred. In these circumstances we consider that what happened was to a significant extent due to the fault of the Crown. It is well recognised that the fact that the ground on which an appeal is successful involves fault on the part of the Crown is an important factor in weighing against the granting of authority for the taking of fresh proceedings against an appellant.

    [9] In the light of the two considerations which we have discussed, we conclude that it is not in the interests of justice that authority should be given for a fresh prosecution of the appellant. In these circumstances we do not find it necessary to hear submissions in regard to a minute by the appellant which seeks to raise a devolution issue based on the ground that for the Lord Advocate to continue to seek authority for a new prosecution would be in breach of the appellant's entitlement to a fair and public hearing within a reasonable time.

    [10] The motion by the Crown will accordingly be refused