Judgment: approved by the Court for handing down
(subject to editorial corrections)
Ref:	  CARC3376 

Delivered:	12.3.2001

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____ 

THE QUEEN 

v

TREVOR McCANDLESS

_____ 

CARSWELL LCJ

	At the conclusion of the hearing of this appeal we allowed the appeal, quashed the conviction and made an order for a new trial.  We reserved our reasons, which we gave on 9 March 2001.  On that date Mr Donaldson QC for the appellant asked us to receive fresh argument on the ordering of a retrial, because of the extent of press publicity which had been given to the case at and following the time of the appellant’s conviction on 6 May 1999.  Although this issue had been touched on in his submissions to us at the hearing of the appeal, we permitted him to address us further on it and to put before us press cuttings and a video recording of a television programme which was shown on the Spotlight programme about a year after the appellant’s conviction.
	Mr Donaldson submitted that the extent and virulence of the press comment had been such that a fair trial could not be obtained.  Alternatively, he submitted that we should make an order that the case should be heard in an area away from North Antrim, in which the incident the subject of the charges took place.  He cited to us the decision of the Court of Appeal in R v Taylor (1994) 98 Cr App R 361, in which the court quashed the convictions but declined to order a new trial because of the press publicity.  It should be borne in mind, however, that the publicity in that case was described by the trial judge as “unremitting, extensive, sensational, inaccurate and misleading”.  It was such that it went well beyond straightforward reporting and became comment on the case, very adverse in nature to the defendants.  On the other side of the line was R v Andrews [1999] Crim LR 156, which concerned inaccurate reports published several months before trial.  It was held that the publicity did not make the trial unfair or the conviction unsafe. 
We would also refer to R v Stone (2001), The Times, 22 February, in which the Court of Appeal took the view that a certain lapse of time and direction by a trial judge would be enough to preserve the fairness of the trial.  The court quoted with approval from the ruling of Phillips J in R v Maxwell in 1995, where he expressed the view that in considering whether on the balance of probabilities the publicity would render a verdict of guilty unsafe, the court has to consider the likely length of time the jury will be subject to the trial process, the issues that are likely to arise and the evidence that is likely to be called in order to form a view as to whether it is probable that the verdict will be rendered unsafe in consequence of the publicity.  It also considered European decisions on the requirements of Article 6(1) of the European Convention on Human Rights and concluded that the standards set by our courts are  favourable to an accused person.
	Having considered the issues and the press and television items put before us, and taking into account the issues which will be before the jury on a retrial and the lapse of time since the first trial, we continue to hold the view that it is an appropriate case for a retrial and that that publicity will not render a verdict unsafe.  We do consider, however, that the chances of any unfairness will be minimised if we order, in accordance with the power contained in section 7(1) of the Criminal Appeal (Northern Ireland) Act 1980,  that the trial should be held in a location away from the area in which the events the subject of the case took place.  We therefore shall order that the new trial shall take place in Belfast Crown Court.  It will be a matter for the discretion of the trial judge whether he asks any questions of members of the jury panel about their recollection of the case, though he will no doubt bear in mind the observations of the court in R v Andrews on this point.

   IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____ 

THE QUEEN 

v

TREVOR McCANDLESS

_____ 

JUDGMENT

OF

CARSWELL LCJ

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