Scottish Criminal Case Reports, Issue 1, 2017 by Thomson Reuters

Appeal Unfitness to plead—Accused convicted and sentenced— Reports on mental condition at time of sentencing suggesting mental illness—Whether subsequent evidence showed unfitness to plead at trial Murphy v HM Advocate (Sy) 88

Evidence Admissibility—Evidence irregularly obtained—Photograph of accused’s hands taken by Crown while committed for further examination—Whether admissible in evidence HM Advocate v Millar 1 Admissibility—Search—Evidence obtained as a result of information from third party—Whether admissible Cafferkey v HM Advocate

Admissibility—Sexual offences—Character of complainer— Whether admissible at common law HM Advocate v CJW (Sy) 84 Identification of accused—Whether corroborated by description of accused by other eyewitness Aluko v HM Advocate (Sy) 85

Human rights Extradition—Appeal to Supreme Court—Extradition refused because prison conditions in requesting country incompatible with art.3 of ECHR—Devolution minutes on other grounds not argued in High Court—Whether leave to appeal should be given Lord Advocate v Dean 17 Private prosecution Dangerous driving causing death—Decision by Lord Advocate that insufficient evidence for conviction—Whether court should allow private prosecution by relatives Stewart v Payne 56

Solemn procedure Solemn procedure—Absence of procurator fiscal at sentencing diet—Sheriff making no order—Whether competent HM Advocate v Ball

Committal for further examination—Whether Crown entitled to photograph hands of person committed for further examination HM Advocate v Millar 1 Desertion by judge pro loco et tempore and refusal of extension of time limits—Background of inadequacies by Crown—Whether judge entitled to act as she did HM Advocate v RV

Judge’s charge—Provocation—Attempted murder—Defence of self- defence—No reference to provocation in defence speech—Evidence by accused that he was initially struck by complainer—Whether failure of judge to give direction on provocation miscarriage of justice Copolo v HM Advocate 45 Prevaricating witness returning to witness box and giving evidence—Whether defence entitled to cross- examine on reason for prevarication Carmichael v HM Advocate (Sy) 86 Verdict Charge of assault and attempted murder by striking complainer with hammer in concert with another accused— Direction to jury that no corroboration of evidence that accused struck complainer—Accused convicted under deletion of averment of attempted murder—Whether consistent verdict Copolo v HM Advocate 45 Warrant Search warrant—Appeal—Appropriate method of appeal against admissibility of evidence where valid search warrant AS v HM Advocate 80

2017 S.C.C.R. 1–92

Extradition Appeal to Supreme Court—Human rights—Extradition refused because prison conditions in requesting country incompatible with art.3 of ECHR— Devolution minutes on other grounds not argued in High Court—Whether leave to appeal should be given Lord Advocate v Dean 17

Sentencing Guidelines—Sexual offences—Offences against vulnerable girls by member of staff of residential institution HM Advocate v Collins 31

SCOTTISH CRIMINAL CASE REPORTS

Defective representation—Failure to obtain medical reports on fitness to plead despite reports suggesting mental illness—Whether defective representation leading to miscarriage of justice Murphy v HM Advocate (Sy) 88

February 2017 2017 S.C.C.R. 1−92

Road Traffic Dangerous driving—Involuntary driving—Driver suffering blackout—Whether criminally responsible Stewart v Payne 56

Scottish Criminal Case Reports Edited by Sir Gerald H Gordon CBE, QC, LLD AS v HM Advocate Aluko v HM Advocate (Sy) Cafferkey v HM Advocate Carmichael v HM Advocate (Sy) Copolo v HM Advocate HM Advocate v Ball

*711742*

80 85 14 86 45 23

HM Advocate v CJW (Sy) 84 HM Advocate v Collins 31 HM Advocate v Millar 1 HM Advocate v RV 7 Lord Advocate v Dean 17 Murphy v HM Advocate (Sy) 88 Stewart v Payne 56

The Scottish Criminal Case Report is published by Thomson Reuters (Professional) UK Limited trading as W Green, 21 Alva Street, Edinburgh, EH2 4PS (Registered in England & Wales, Company No 1679046. Registered Office and address for service: 5 Canada Square, Canary Wharf, London, E14 5AQ). Typeset by LBJ Typesetting Ltd. Printed and bound in Great Britain by Hobbs the Printers Ltd, Totton, Hampshire. No natural forests were destroyed to make this product: only farmed timber was used and replanted. ISSN 0263-2381 Orders by email to: TRLUKI.orders@thomsonreuters.com. Individual back issues of the Scottish Criminal Case Reports are available for the years 1986-2016. The views expressed in the commentaries to the Scottish Criminal Case Reports are those of the contributors and not necessarily those of the Law Society of Scotland. Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queenâ&#x20AC;&#x2122;s Printer for Scotland. Crown Copyright legislation is reproduced under the terms of Crown Copyright Policy Guidance issued by HMSO. All rights reserved. No part of this publication may be reproduced or transmitted in any form, or by any means stored in any retrieval system of any nature, without prior written permission, except for permitted fair dealing under the Copyright, Designs and Patents Act 1988, or in accordance with the terms of a licence issued by the Copyright Licensing Agency in respect of photocopying and/or reprographic reproduction. Application for permission for other use of copyright material, including permission to reproduce extracts in other published work should be made to the publishers. Full acknowledgment of the author, publisher and source must be given. Thomson Reuters and the Thomson Reuters Logo are trademarks of Thomson Reuters. ÂŠ 2017 Law Society of Scotland

A Appeal from Fist Diet

6 March 2014

HER MAJESTY’S ADVOCATE

Appellant

against CHARLES MILLAR

Respondent B

[2016] HCJAC 104 Evidence—Admissibility—Evidence irregularly obtained—Photograph of accused’s hands taken by Crown while committed for further examination—Whether admissible in evidence Solemn procedure—Committal for further examination—Whether Crown entitled to photograph hands of person committed for further examination The respondent was committed to prison for further examination and the Crown decided to take a photograph of his hands in a certain position in order to compare features on them with the hands in an indecent photograph in connection with which he was charged. Police officers then visited the respondent in prison and asked him to place his hands in the same position as those in the photograph and photographed the result, a procedure which was resorted to in order to avoid sending experts to the prison to compare his hands with those in the indecent photograph. No notice was given to the respondent of the Crown’s intention to take this photograph, and no warrant was sought for it from the sheriff, the Crown having relied on the warrant for personal search contained in the committal warrant. The respondent took objection to the use of the photograph on the ground that it was taken while he was under the protection of the court, and the objection was upheld by the sheriff. The Crown then appealed to the High Court. Held (1) that the evidence-gathering process is unconnected with the privilege against incrimination or the right to silence (para.16); and (2) that no unfairness arose as a result of the respondent’s agent not being advised of the Crown’s intentions, that the Crown had not done anything that could have been properly resisted, and that arguments based on an accused’s right to the protection of the court must have, as their point of significance, the time of arrest or detention and not that of committal, standing the existence of well-established powers of non-invasive search after that time (para.18); and appeal allowed and objection repelled. Observed that the court was concerned about the Crown’s apparent lack of courtesy in failing to notify the respondent’s agent of their intention to take the photographs, and that the court was entitled to expect that the Crown would depart from the usual standards of courtesy to suspects and their known agents only where particular urgency or other special circumstances arise, and that, if the court had been inclined to sustain the objection it would have been open to the court to grant warrant for a further photograph to be taken (para.19).

Cases referred to in the opinion of the court: Adair v McGarry, 1933 J.C. 72; 1933 S.L.T. 482 Cadder v HM Advocate [2010] UKSC 43; 2010 S.C.C.R. 951; 2011 S.C. (U.K.S.C.) 13; 2010 S.L.T. 1125

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Cameron v Cottam [2012] HCJAC 19; 2012 S.C.C.R. 271; 2013 J.C. 12; 2012 S.L.T. 173 Davidson v HM Advocate, 1951 J.C. 33, 1951 S.L.T. 109 HM Advocate v P [2011] UKSC 44; 2011 S.C.C.R. 712; 2012 S.C. (U.K.S.C.) 108; 2011 S.L.T. 1097 Jalloh v Germany [2006] ECHR 721; (2007) 44 E.H.R.R. 32 Lees v Weston, 1989 S.C.C.R. 177; 1989 J.C. 35; 1989 S.L.T. 446 Lukstins v HM Advocate [2012] HCJAC 146; 2012 S.C.C.R. 787; 2013 J.C. 124; 2013 S.L.T. 11 Namyslak v HM Advocate, 1994 S.C.C.R. 140; 1995 S.L.T. 528 MacLean v Dunn [2012] HCJAC 34; 2012 S.C.C.R. 369; 2012 J.C. 293; 2012 S.L.T. 1024. Charles Millar was indicted on the charges referred to in the opinion of the court and took objection to the admission of certain evidence. The objection was sustained at a first diet and the Crown appealed to the High Court on the grounds referred to in the opinion of the court. The appeal was heard on 6 March 2014 by the Lord Justice Clerk (Carloway), Lady Dorrian and Lord Bracadale. For the appellant: McSporran AD. For the respondent: Connor, instructed by Bilkus & Boyle, Solicitors, Glasgow. On 6 March 2014 the appeal was allowed. The Lord Justice Clerk subsequently delivered the following opinion of the court.

LORD JUSTICE CLERK Background

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[1] The respondent has been indicted on four charges. The first two are contraventions of ss.52 and 52A of the Civic Government (Scotland) Act 1982 by having in his possession, and by taking or permitting to be taken, indecent photographs, or pseudo photographs, of children some time between 1 January 2011 and 4 May 2012, at addresses in Glasgow. The third charge is that, between those dates and at these places on a number of occasions, he sexually assaulted a child under 13 by participating in sexual activity with her, contrary to s.20 of the Sexual Offences (Scotland) Act 2009. It would appear that the behaviour libelled in this charge is thought by the appellant to be related to the content of the photographs on the earlier charges. The fourth charge is that on 4 May 2012, at one of the addresses in Glasgow, the respondent attempted to destroy a mobile phone containing indecent images of children, thus attempting to pervert the course of justice. [2] The respondent was arrested on 4 May 2012 and kept in custody until 8 May, when he appeared upon a petition containing two charges, being the contraventions of ss.52 and 52A of the 1982 Act. The petition was in the usual form and craved the court to grant a warrant to arrest the respondent, to detain him in a police station or other convenient place, and to bring him for examination in respect of the charges. All of this had, of course, been done. The petition continued by seeking a warrant to imprison the respondent in Barlinnie Prison, Glasgow: â&#x20AC;&#x153;[T]herein to be detained for further examination . . . further, to grant warrant to search the person . . . of the said accused . . . and to secure, for the purpose of precognition and evidence all writs, evidents, and articles

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HM Advocate v Millar

found therein tending to establish guilt or participation in the crime(s) foresaid.” The sheriff granted the warrant, thus committing the respondent for further examination. [3] In the days that followed, the procurator fiscal decided that it would be helpful to have photographs taken of the respondent’s hands for comparison with the hands that appeared in the indecent photographs. The reason for this was that medical experts had advised that such a comparison could help to establish whether the hands in the photographs were those of the respondent. This method of investigation was essentially an alternative to the experts travelling from their offices in Dundee to the prison in Glasgow and examining the respondent’s hands themselves. The procurator fiscal took the view that this procedure could be carried out during the period of committal for further examination under the authority of the existing warrant. [4] Police officers attended upon the respondent in prison. They had been advised by the experts of the positions in which the hands were to be photographed. The police therefore asked the respondent to position his hands in particular ways. The photographs were then taken. The report of the comparison identifies certain anatomical features on the respondent’s hands, including scarring, skin pigmentation, knuckle pads, outlines and colouring; all of which are presumably permanent. It also refers to a knuckle crease pattern, a feature which will depend upon hand positioning. [5] There was no specific opportunity given to the respondent to obtain legal advice prior to the photography, since the respondent’s agents were not informed of what was proposed. There was no special warrant obtained in relation to the photographing of the hands. In due course, on 17 May 2012, the respondent was fully committed for trial.

Sentence 71 procedure

[6] The respondent presented a minute, under s.71 of the Criminal Procedure (Scotland) Act 1995, objecting to evidence deriving from the photographs. The primary contention at that time was that the respondent had been committed to prison and was thus “under the protection of the court”. Accordingly, in the absence of a warrant authorising the procedure, the photographs had been obtained unlawfully. The taking of photographs was, in the circumstances, an identification procedure and the court’s authority should have been sought for the procedure adopted (MacLean v Dunn; Cameron v Cottam; Lukstins v HM Advocate). An analogy was drawn with participation in an identification parade (1995 Act, s.267B), of which the respondent’s agent would have received intimation. The agent would have been allowed to make representations about the parade or other (e.g. VIPER) identification procedure. [7] In response, the Crown relied upon their common law powers and the terms of the petition warrant, albeit that it was accepted that the respondent’s solicitor would have been advised of any identification parade. The respondent fell under the protection of the court only after full committal for trial (Namyslak v HM Advocate). An analogy was drawn with the taking of fingerprints, which did not require specific court authority (Adair v McGarry; Lees v Weston). [8] The sheriff expressed the view that: “[I]t cannot be right that an accused person only forfeits his right to protection by the court once he has been fully committed for trial.”

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Having regard to the authorities cited, the critical point, upon the sheriff’s reasoning, was that of a person’s “committal to prison”, but not necessarily his full committal. Where the respondent had been deprived of his liberty by the court, he was entitled to the protection of the court from then on. The procedure adopted was not akin to an identification parade or fingerprinting. Thus a warrant was required before the photographs could be taken. In any event, the respondent’s agent should have been contacted in order that the respondent’s rights might be protected.

Submissions

[9] The Crown argued that identification procedures were competent at the stage of committal for further examination. The sheriff had erred in distinguishing the taking of photographs from the taking of fingerprints or participation in an identification parade. These procedures were indistinguishable, in principle, and the sheriff had given no reason for his decision to the contrary. Further, the sheriff had fallen into error in considering that committal for further examination was the critical stage, beyond which nothing could be done without the express authority of the court. The critical stage was full committal. The petition warrant contained authority to search, which included any non-invasive physical examination of the respondent and the photographing of the results of any such examination. [10] The respondent countered that the procedure had involved his cooperation and participation. In effect, the Crown had been “actively creating evidence”, by arranging the respondent’s hands in precise positions, in order to match the positions of the perpetrator’s hands in the indecent photographs. The purpose of the photographs had not been to capture the natural presentation of the respondent’s hands, but to create images that best resembled those of the hands in the indecent photographs recovered. It was going well beyond the usual identification procedure to arrange a suspect’s hands in the most “incriminating” and “damaging” way possible, in order that they be photographed. [11] It was a “dangerous step” to allow such a procedure, which involved “manipulation” of the respondent, without the safeguard of a warrant. If the Crown were permitted to take photographs in this manner, it would amount to an unfettered right to attend on the respondent in the absence of his agent. The difficulty was that the Crown had not invoked the available procedure for obtaining the court’s authority. Had such an application been made, it may have been granted, but the respondent’s agent would have been advised and the respondent would have been suitably protected. Decision

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[12] Arrest (and charge) marks the stage at which the investigations of the police are formally completed, to the extent that the evidence is regarded as sufficient by them to justify a report to the procurator fiscal. Thereafter, the police will conduct any further enquiries under the direction of the procurator fiscal. Arrest results in the loss by the suspect, not only of his right to liberty, but also that to decline to be, for example, searched or fingerprinted (Thomson Committee: Criminal Procedure in Scotland (Second Report), Cmnd.6218, para.3.08). After arrest, the suspect must be brought before the court. Traditionally, this occurred immediately and without any significant period in police custody (Alison, Practice, ii, pp.129–130). Once brought before the court, the suspect was examined and the precognition of witnesses commenced in order to determine whether there was sufficient ground for committing the

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suspect “for farther examination” or trial (p.130). Thus it was that the court itself would have carried out some investigation prior to any form of committal. [13] The purpose of committal for further examination was, and is, exactly that. It is to hold the suspect pending further investigations. In that regard the Crown, whether through the offices of the police or otherwise, have at least the same powers of recovery of evidence as they had immediately prior to that type of committal. This is in accordance with the terms of the petition whereby, after committal for further examination, although originally the court itself would begin to collect “all the articles of evidence” calculated to throw light upon the case” (p.135), these powers of examination came to be delegated to the procurator fiscal under the court’s authority. The petition warrant for committal therefore contains an application for a warrant to search the person. That is what was granted in this case. [14] During the period between the committal of a suspect for further examination and his full committal for trial, the Crown are entitled to continue with their enquiries. If that involves, for example, fingerprinting or other noninvasive procedures, then these can be carried out without the need for a special warrant (Namyslak v HM Advocate, LJC (Hope) at p.145; see Lukstins v HM Advocate, Lord Carloway at para.29). In this respect there is a clear distinction between committal for further examination and full committal (see Lees v Weston, LJC (Ross) at p.182); since upon full committal, such enquiries must cease. [15] The need for a suspect to be brought before the court at an early stage is not for the purpose of protecting any right to a fair trial, but to enable him to seek his liberation from the court. It can be seen in domestic terms as a necessary protection which is art.5 compliant. Similar considerations apply in relation to an accused’s reappearance and full committal, when he can again move for bail. The domestic regime adds an additional protection at that stage, but one which relates not to the issue of liberty but to the fairness of the proceedings. [16] The recovery of real evidence exists independent of the will of the suspect (Lukstins v HM Advocate, para.33, following Davidson v HM Advocate, LJC (Thomson) at p.37; Jalloh v Germany at para.102; and HM Advocate v P, Lord Hope at para.10). Thus, the evidence gathering process is unconnected with the privilege against self-incrimination or the right to silence. In the present case, the taking of photographs was merely a substitute for the personal attendance of experts at a physical examination of the respondent, the results of which would inevitably have been photographed in any event. Such an examination could legitimately have involved manipulation of a person’s hands and fingers. That is not an invasive procedure. [17] For the avoidance of doubt, the court does not accept the respondent’s assertion that the Crown intend to claim that photographs represented natural resting positions of the respondent’s hands. On the contrary, it was a prerequisite of the exercise instructed by the Crown that the respondent’s hands be placed in the same positions as those of the perpetrator in the indecent images recovered, thereby allowing a comparison of any physical features that were apparent in those precise positions. [18] For similar reasons, the court is not satisfied that any unfairness arose as a result of the respondent’s agent not being advised of the taking of photographs of the respondent’s hands. In the present case, there is no suggestion that the Crown sought to do anything that could properly have been resisted by the respondent on the advice of his agent. Arguments advanced that there may have been a breach of the respondent’s Convention

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rights based upon the so-called “protection of the court” must have, as their point of significance, the time of arrest or detention and not that of any subsequent committal (Cadder v HM Advocate). Such arguments could not succeed standing the existence of well-established powers of non-invasive search after that time. [19] Nevertheless, the court is concerned about the Crown’s apparent lack of courtesy in failing to notify the respondent’s agent of the intention to take photographs of the respondent. Standing the Crown’s usual practice in the carrying out of other identification procedures, there would appear to be no justification for omitting to inform the respondent’s agent of what was intended. The Crown’s usual practice in such areas may be guided by an awareness of the importance of the perception of fairness in the conduct of investigations. The court is entitled to expect that the Crown will normally depart from the usual standards of courtesy to suspects and their known agents only where particular urgency or other special circumstances arise. However, for aught yet seen, no unfairness appears to have arisen as a result of the photography. In that regard, even if the court had been inclined to sustain the objection, it would have been open to the court to grant a warrant to the Crown to take new photographs of the respondent’s hands. Having regard to the nature of the charges and the non-invasive nature of the procedure, it is difficult to imagine any grounds upon which the court would have declined to grant such a warrant. Thus, the respondent’s original objection to the taking of the photographs would have been rendered essentially academic. [20] The appeal will, accordingly, be allowed and the objection repelled.

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A Bills of Advocation

16 October 2015

HER MAJESTY’S ADVOCATE

Complainer

against RV B

PO JM KS

Respondents [2016] HCJAC 103

Solemn procedure—Desertion by judge pro loco et tempore and refusal of extension of time limits—Background of inadequacies by Crown—Whether judge entitled to act as she did—Criminal Procedure (Scotland) Act 1995 (c.46), s.65 The respondents were charged with a large number of serious offences involving breaking into premises and using explosives to break into and steal from automated teller machines. The first three respondents originally appeared on petition in October and November 2013, and a second indictment was subsequently served on all four respondents with a preliminary hearing in September 2014 and their trial eventually began in June 2015. There were 227 witnesses listed. After 73 witnesses had been called, only eight of whom had been cross-examined, it transpired during the evidence of a witness that the copies of a transcript of a recorded interview of the witness, the principal of which and the relevant disc were productions in the case, to which the first respondent’s counsel was referring differed from those which had been supplied to the judge, the advocate depute and three of the respondents. The trial judge adjourned the trial over the weekend and asked the advocate depute to check the transcripts. The judge and counsel for the respondents understood this to mean checking the transcript against the relevant disc, but the advocate depute only checked them against the principal transcript. It then transpired that there were two versions of the transcripts and that the version in the hands of the judge, the advocate depute and counsel for the third and fourth respondents contained only about half of the principal transcript, and that the missing passages contained matter which counsel for the fourth respondent could have used in cross-examination of an earlier witness, who had identified that respondent in the dock. The trial judge then deserted the diet pro loco et tempore and refused a Crown motion to extend the statutory time limits, thus bringing the prosecution to an end. The Crown then took a bill of advocation and an appeal under s.65 of the Act respectively against the judge’s two decisions. Held (1) that an ongoing High Court trial for serious offences, such as those libelled in the indictment in this case, should be deserted at the instance of the court only when it has become abundantly clear that the circumstances warrant such drastic action, which may be merited where, for example, irreparable unfairness is perceived to have occurred already or where there is a material risk that the proceedings will inevitably become unfair, that that can only arise if the problem cannot be cured by an adjournment, an adequate direction to the jury or by introducing some other reasonable procedural or evidential step, and that desertion was in this sense an act of last resort, to be

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taken only where the actual or perceived unfairness is so material that no step short of abandoning the trial could address it (para.12); (2) that notwithstanding the many inadequacies on the part of the Crown, on the Monday morning, the only material problem was that transcripts of a witness’s interview, which were complete in their principal form as lodged productions, had been copied to the defence representatives (and to the advocate depute and judge) in a slightly different form in relation to the first (production 109) and with only about half of what ought to have been 97 pages long in relation to the second (production 110), that the transcripts had previously been disclosed to the respondents’ agents, but that the exercise of re-copying what was by then a numbered production had caused unnecessary and avoidable confusion to some, but not all, of those engaged in the trial, that wherever fault might lie, and it may be in several directions, the problem could readily have been cured by a comparison with the principal copy productions, or the discs, or both, which appeared to have been what the trial judge had in mind when she adjourned the trial over the weekend (para.13), that even listening to the whole interview on disc would have taken less than three hours in total, and the trial could then have continued, that the problem could have been cured by an adjournment for that purpose, although whether even that would have been necessary was doubtful, that whatever might have been on the transcripts, the gist of what the witness had said had been disclosed in the police officer’s statement, that it was that statement (and not the transcripts) which revealed that a photograph of the fourth respondent had been shown to the witness with no effect, that the fourth respondent had nevertheless not objected to the witness identifying him in the dock, which might be understandable, that accidental misidentification would not appear to have been an obvious line of defence, and that in any event, any problem stemming from dock identification could have been cured by suitable directions, and any perceived unfairness could have been dealt with by simple procedural steps (para.14); and (3) that the public interest in the prosecution of serious crime must be considered, that the respondents were alleged to have committed a significant number of serious offences which must have required considerable planning and organisation, that it was clearly in the public interest that those charged with such serious offences are tried, and, if guilt is proved, convicted and sentenced, and that it was not immediately apparent from the judge’s report that she fully considered the availability of procedural steps to remedy the regrettable but remediable situation which had arisen, short of deserting the diet, and that it was also not clear from the judge’s reasoning that she properly carried out a balancing exercise, weighing the public interest against the risk of any potential unfairness as a result of what were defects in the presentation of the prosecution, and that, on that basis, the court was not satisfied that the judge properly exercised her discretion in deserting the diet (para.16); and appeals allowed and time limits extended. Observed that there can be no doubt that the multiple failings on the part of the Crown were an important context in which the trial judge’s decision to desert was taken, that the frustration expressed by the judge in this regard was entirely understandable, that there were significant defects in the manner in which the prosecution had been progressed and a lack of candour in the responses to the judge’s reasonable, if probing, inquiries, and that the Crown will no doubt pay due regard to these comments and to the strident observations of the judge in her report (para.15). Cases referred to in the opinion of the court:

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Fraser v HM Advocate, [2013] HCJAC 117; 2013 S.C.C.R. 674; 2014 J.C. 115 HM Advocate v Fleming, [2005] HCJAC 27; 2005 S.C.C.R. 324; 2005 1 J.C. 291

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HM Advocate v RV

HM Advocate v Sinclair, 1986 J.C. 113; 1987 S.L.T. 161.

R V, P O, J M and K S were tried in July 2015 in the High Court at Edinburgh before Lady Rae and a jury on the charges referred to in the opinion of the court. On 13 July 2015 Lady Rae deserted the diet pro loco et tempore and refused to extend the time limits. The Crown appealed to the High Court against these decisions on the grounds referred to in the opinion of the court. The appeal was heard by the Lord Justice General (Carloway), Lord Bracadale and Lord Malcolm. For the complainer: Prentice, QC, AD. For the first respondent: Nelson, instructed by Ward & Co, Solicitors, Perth. For the second respondent: Belmonte, Solicitor advocate, instructed by Belmonte & Co, Solicitors, Edinburgh. For the third respondent: Renucci, instructed by Nigel Beaumont & Co, Solicitors, Edinburgh. For the fourth respondent: Moggach, instructed by George Mathers & Co, Solicitors, Aberdeen.

On 16 October 2015 the Lord Justice General delivered the following opinion of the court. LORD JUSTICE GENERAL [1] These are Crown appeals by bill of advocation and in terms of s.65(8) of the Criminal Procedure (Scotland) Act 1995. They are brought respectively against the decision of the trial judge at the High Court at Edinburgh on 13 July 2015 to desert the diet against the four respondents pro loco et tempore, and thereafter to refuse to extend the 11- and 12-month time bar periods to allow the Crown to re-indict. It was accepted that, if the judge had erred in her decision to desert, the time limits required to be extended to enable the case to progress.

Background

[2] The four respondents were indicted on 34 charges of theft, opening and attempting to open lockfast places, breaking into commercial premises, contravening s.2 of the Explosive Substances Act 1883 and s.4(3)(b) of the Misuse of Drugs Act 1971, and uttering of threats to a witness. The offences were alleged to have taken place principally in Aberdeen and its environs between 1 August and 10 November 2013. The speciality alleged was the breaking into automated teller machines by means of explosions. [3] The first three respondents appeared on petition in October and November 2013. The fourth respondent appeared from custody on 6 August 2014 to answer a petition warrant, also dated November 2013. A previous indictment containing only 26 charges had been served on the first three respondents, citing them to appear at a preliminary hearing on 4 September 2014. The preliminary hearing was continued on joint motion on two occasions, with the 11- and 12-month periods requiring to be extended. A fresh indictment was then served on all four respondents, with the P H on 18 November 2014 being continued eventually until 29 December 2014. At that diet, all parties advised that they were ready for trial. On 26 January 2015, a trial diet was fixed for 29 June 2015. The 12-month period was extended to 3 July 2015 in respect of the first three respondents.

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HM Advocate v RV

2017 S.C.C.R.

[4] Between the preliminary hearing and the date of the trial, the Crown served five s.67 notices. There was no objection to any of the notices, but the trial was adjourned to allow the respondents time to consider the new material. The trial commenced on 30 June 2015. There were 227 witnesses listed. A very limited joint minute had been agreed. This involved only the arrest procedures for two of the respondents and five out of 13 books of photographs. The advocate depute called 73 witnesses. Of these, only eight were crossexamined. Of these, only three were asked more than a handful of questions. The trial judge appears to have been justifiably frustrated that no agreement had been reached in relation to any of this apparently uncontroversial evidence and the consequent substantial waste of resources and court time. She was also concerned about an apparent lack of proper preparation by the Crown and, in particular, the advocate depute delegated with the task of prosecuting the case. The judge gained the impression that the advocate depute was preparing the case almost as he called each witness, reading from the precognition rather than having properly assessed in advance what areas of evidence required to be adduced. Thus unchallenged testimony from one witness was led unnecessarily from different witnesses. Some testimony had no evidential value at all. CCTV images were not playable on the court equipment. Some labels were missing, and remained so until several days into the trial. [5] It is reasonable to say that there is a sense, from the judge’s report, of increasing exasperation, which was to culminate after, on 9 July 2015, the advocate depute called F C. The advocate depute had succeeded in annoying the judge even further by commencing his examination in chief, not by asking the witness about what he had seen or heard, but by asking him about what he had said in his interview, effectively as a socius criminis, with the police on 27 November 2013. On 10 July, still in the course of examination in chief, parts of the transcripts of the police interview (productions 109 and 110) were put to the witness. The audiovisual recording discs of the interview had been lodged as labels. Both the discs and the transcripts had been duly listed on the indictment. Copies of the transcripts had been disclosed to the respondents in August 2014 prior to the service of the original indictment. Discs with the recordings had also been provided to all four respondents. [6] During the course of the first respondent’s cross-examination of Mr C, it became apparent that the copies of one of the transcripts (production 109), from which the judge, the advocate depute and counsel for the third and fourth respondents had been working, were not the same as the principal which was being put to the witness or the copies used by the first respondent’s counsel. Exactly how this came about is not entirely clear. However, it appears that there were two versions of the transcripts. One was a draft representing the transcriber’s initial view of what had been said at interview. The other version included edits by one of the interviewing police officers about what he thought had been said. When the case had been re-indicted against all four respondents, the original draft transcripts had been copied to the respondents. [7] The judge adjourned the trial from what was a Friday until the Monday. She asked the advocate depute to check the transcripts. She reports that she thought that she had made it clear that the transcripts were to be checked against the recordings on disc. However, although that was the universal understanding of all the defence representatives, it was not what the advocate depute understood was to be done. The minute makes no reference to the original recordings and suggests that what was needed, as might have been expected, was a check that the copies corresponded with the principal (production 109) which, after all, could hardly have been altered mid-trial,

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HM Advocate v RV

whatever errors might have been discovered. The trial judge was informed that the principal was correct, as certified by the transcriber after consultation with the editing officer. [8] The advocate depute advised the trial judge that the discrepancies between the two versions were minor. What then occurred was additionally exasperating. It was discovered that the copies of the second transcript (production 110) in the hands of the judge, the advocate depute, and counsel for the third and fourth respondents contained only 42 pages of the 97-page principal document lodged in court. An examination of this transcript would have suggested to a reasonably experienced practitioner that it was not a complete record of the interview. Although there may be exceptions, an interview with a potential accused will usually end with a reference both to the end or a break in the interview and to a time. The faulty transcript ends abruptly with a question and answer about clothing. The start and finishing times recorded in the introduction are 6.35 pm and 11.00 pm. Even with a recorded 15-minute break, the transcript is only 42 pages for four hours of interview. That having been said, it does end with the certificate of accuracy, albeit one that is not signed. [9] In the missing section, which counsel for the fourth respondent did not have, the witness had been asked to look at certain photographs. The identities of the persons shown in the photographs, except in relation to the first respondent, whom the witness knew and picked out, cannot be ascertained from the transcript. However, by referring to a statement of one of the interviewing officers, which had been disclosed to the respondents, the gist of everything relevant said by the witness can quickly be understood. The witness incriminates the first respondent, and a person known as “T”, by name and refers to other members of the group involved. In the police officer’s statement, it is made clear that the police showed the witness photographs which included all four respondents. Only the first respondent is mentioned as having been identified. Incidentally, a detailed look at the transcript would have revealed the witness’s reference to a man with a “funny name” like “Shrewd” (cf S). In the course of examination in chief, the witness had identified Mr S in court as one of the group. It was asserted to the trial judge that, had counsel been aware of the earlier failure to identify Mr S, he would have objected to the “dock” identification. [10] The judge granted the respondents’ motion to desert. She was not satisfied that the transcripts which were then before her were accurate. This was all against a background of general Crown inadequacy. She was not prepared to adjourn the trial further for an unspecified period of time, to allow the defence to consider what may have been potentially significant information requiring further investigation. The judge was concerned about the directions which would have to be given to explain what use the jury could make of the interviews, given the problems with the transcripts. No adjournment could address the issue of the fourth respondent having been identified in the dock without the objection, which would have been taken had counsel had the missing information. A further adjournment for an unknown length of time would inconvenience the jury members. The judge had, in her view, no option but to desert the trial pro loco et tempore. [11] The advocate depute thereafter rather optimistically moved the court to extend the 11- and 12-month time bars. The first, second, and third respondents opposed the motion (the time bar not having expired in relation to the fourth respondent). The judge refused the motion. This brought the prosecution to an end against three of the four respondents.

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12 A

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2017 S.C.C.R.

Decision

[12] An ongoing High Court trial for serious offences, such as those libelled in the indictment in this case, should be deserted at the instance of the court only when it has become abundantly clear that the circumstances warrant such drastic action. It may be merited where, for example, irreparable unfairness is perceived to have occurred already or where there is a material risk that the proceedings will inevitably become unfair (HM Advocate v Fleming, LJC (Gill) at para.33; Fraser v HM Advocate, LJC (Carloway) at para.51). That can only arise if the problem cannot be cured by an adjournment, an adequate direction to the jury (HM Advocate v Sinclair, LJC (Ross) at p.123) or by introducing some other reasonable procedural or evidential step. Desertion is in this sense an act of last resort, to be taken only where the actual or perceived unfairness is so material that no step short of abandoning the trial can address it. [13] Notwithstanding the many inadequacies on the part of the Crown, on the Monday morning, the only material problem was that transcripts of a witness’s interview, which were complete in their principal form as lodged productions, had been copied to the defence representatives (and to the advocate depute and judge) in a slightly different form in relation to the first (production 109) and with about half of what ought to have been 97 pages missing in relation to the second (production 110). The transcripts had previously been disclosed to the respondents’ agents, but the exercise of re-copying what was by then a numbered production had caused unnecessary and avoidable confusion to some, but not all, of those engaged in the trial. Wherever fault may lie, and it may be in several directions, the problem could readily have been cured by a comparison with the principal copy productions, or the discs, or both. That appears to have been what the trial judge had in mind when she adjourned the trial over the weekend. [14] Even listening to the whole interview on disc would have taken less than three hours in total, and the trial could then have continued. The problem could have been cured by an adjournment for that purpose, although whether even that would have been necessary is doubtful. Whatever might have been on the transcripts, the gist of what the witness had said had been disclosed in the police officer’s statement. It was that statement (and not the transcripts) which revealed that a photograph of the fourth respondent had been shown to the witness with no effect. The fourth respondent had nevertheless not objected to the witness identifying the fourth respondent in the dock. However, that may be understandable. This is not a case involving a fleeting glimpse of a perpetrator of a crime or similar situation. The witness had, on his version of events, seen the members of the criminal gang over a prolonged period. Accidental misidentification would not appear to have been an obvious line of defence. In any event, any problem stemming from dock identification could have been cured by suitable directions. Any perceived unfairness could have been dealt with by simple procedural steps. [15] There can be no doubt that the multiple failings on the part of the Crown were an important context in which the trial judge’s decision to desert was taken. The frustration expressed by the judge in this regard is entirely understandable. There were significant defects in the manner in which the prosecution had been progressed and a lack of candour in the responses to the judge’s reasonable, if probing, inquiries. The Crown will no doubt pay due regard to these comments and to the strident observations of the judge in her report. [16] However, the public interest in the prosecution of serious crime must be considered. The respondents are alleged to have committed a significant

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2017 S.C.C.R.

HM Advocate v RV

number of serious offences which must have required considerable planning and organisation. It is clearly in the public interest that those charged with such serious offences are tried, and, if guilt is proved, convicted and sentenced. It is not immediately apparent from the judgeâ&#x20AC;&#x2122;s report that she fully considered the availability of procedural steps to remedy the regrettable but remediable situation which had arisen, short of deserting the diet. It is also not clear from the judgeâ&#x20AC;&#x2122;s reasoning that she properly carried out a balancing exercise, weighing the public interest against the risk of any potential unfairness as a result of what were defects in the presentation of the prosecution. On that basis, the court is not satisfied that the judge properly exercised her discretion in deserting the diet. [17] The bills must be passed. The time bar period of 12 months is extended until 29 April 2016.

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A Appeal Against Decision at Preliminary Hearing

26 February 2016

DANIEL CAFFERKEY LAURA FREW

Appellants

against B

HER MAJESTY’S ADVOCATE

Respondent

[2016] HCJAC 114 Evidence—Admissibility—Search—Evidence obtained as a result of information from third party—Whether admissible

The police attended at a road accident which involved a car in which was the first appellant. He appeared to be under the influence of some substance and was arrested. The police were then told by a civilian witness that that appellant had left the vehicle and deposited a tub in nearby bushes. They retrieved the tub which was found to contain what appeared to be valium. The appellants were subsequently indicted on drugs offences and lodged preliminary minutes challenging the admissibility of the evidence of the contents of the tub as obtained by an unlawful search. The sheriff, having heard evidence and concluded that the tub had been abandoned, repelled the minutes and the appellants appealed to the High Court. Held (1) that what had happened did not constitute a search (para.8); and (2) that in any event if there had been any irregularity in what happened, the court would have concluded that the evidence was admissible, there having been no unfairness to the appellants (para.9); and appeals refused. Cases referred to in the opinion of the court: Baxter v Scott, 1992 S.C.C.R. 342; 1992 S.L.T. 1125 Lawrie v Muir, 1950 J.C. 19; 1950 S.L.T. 37; 1949 S.L.T. (Notes) 58.

Daniel Cafferkey and Laura Frew were charged on indictment in the sheriff court with contravening the Misuse of Drugs Act 1971 and took a preliminary objection to the admissibility of the evidence of the finding of the drugs concerned. The sheriff repelled the objection and they appealed to the High Court on the grounds referred to in the opinion of the court. The appeal was heard on 26 February 2016 by Lady Paton, Lord Menzies and Lady Clark of Calton. For the first appellant: M Mackenzie, instructed by Faculty Services Ltd, for Logans, Solicitors, Ayr. For the second appellant: McCluskey, instructed by Faculty Services Ltd. For the respondent: Prentice QC, AD. On 26 February 2016 the appeal was dismissed. Lady Clark of Calton subsequently delivered the following opinion of the court.

LADY CLARK OF CALTON [1] The first appellant, Daniel Cafferkey, was charged with various offences including contravention of the Misuse of Drugs Act 1971. During the course of pre-trial proceedings the appellants lodged compatibility minutes in the 14

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Cafferkey v HM Advocate

sheriff court in which they challenged the admissibility of certain evidence on which the prosecution wished to rely. The evidence related to the recovery and inspection of a plastic tub which was found, on opening, to contain tablets. On further investigation the contents of the tub provided an evidential basis to found the charges under the Misuse of Drugs Act. The compatibility minutes alleged breach of the appellants’ Convention [European Convention on Human Rights [ECHR]] rights under arts 8 and 6. [2] Evidence was led at a preliminary hearing on 1 December 2015. The evidence is set out in paras 4–11 in the report by the sheriff. There was no challenge to the evidence noted. [3] In summary, the police attended a road traffic accident involving two vehicles in a collision; the first appellant was within one of the vehicles; he appeared to be under the influence of some intoxicant or substance and was arrested and placed in the police vehicle. Information was given to the police by a civilian witness to the effect that the witness had seen the first appellant leave the vehicle after the collision, remove a tub from the vehicle and deposit that tub amongst nearby bushes. Two police officers retrieved the tub from the bushes and the tub was taken to the police vehicle. The tub was opened and contained a quantity of blue tablets suspected to be Valium. [4] Evidence from a police officer was to the effect that she did not exercise any statutory power in recovering the tub or on opening it and she did not seek the first appellant’s permission. She considered it was important to establish the contents of the tub which she planned to take to the police station in the police vehicle and to carry out further investigations. As a result of opening the tub and seeing the tablets, a search warrant was obtained to search the home of the first appellant. [5] The sheriff having considered the evidence made his conclusions about the facts and, having heard submissions, dismissed the minutes on behalf of the appellants. [6] In this appeal under s.74 of the Criminal Procedure (Scotland) Act 1995, the appellants challenged the decision of the sheriff on the following grounds. The search of the tub was irregular and the irregularity was not such that it could be excused, therefore evidence of the contents of the search of the said tub was inadmissible. As a search warrant was obtained solely on the basis of the discovery of tablets in the tub, the evidence of what was removed from the first appellant’s home was also inadmissible in evidence. Further, as the first appellant’s police interview was based on the said discovery of tablets in the tub and the evidence of what was removed, that interview was also inadmissible. The appellants’ Convention rights under arts 8 and 6 were said to be breached and a compatibility issue arose. [7] In support of the appeal, counsel for the first appellant submitted that the opening and inspection of the tub constituted a search and as there was no consent of the appellant or statutory authority and no warrant, the search was without lawful authority. That vitiated all subsequent procedure and the evidence which flowed from the search was inadmissible. Counsel accepted that the legal framework set out in the sheriff’s note, under reference mainly to Lawrie v Muir and Baxter v Scott, was not in dispute in this case. She submitted that the present case was distinguishable from Baxter. The sheriff erred because, properly understood, the actions of the police amounted to a search as there was no basis in the evidence which justified the police opening the tub and statutory authority was required. The police should have alternatively sought consent from the appellant. It was clear to the police that the item was linked in some way to the appellant. Counsel did not accept that

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16 A

Cafferkey v HM Advocate

2017 S.C.C.R.

the sheriff was entitled to draw the inference that the tub was abandoned in the bushes. As this was a search, lawful authority required to be obtained. Counsel for the first appellant did not seek to persuade us that the reference to arts 8 and 6 of the ECHR added any weight to her submissions in relation to the common law and no specific reference was made to the ECHR in oral submission. [8] We note that in this case the finding of the tub and discovery of the tablets did not involve any search of the first appellantâ&#x20AC;&#x2122;s person, his car or his home. The police, having been alerted by a civilian witness, investigated the shrubbery in the public area and discovered the tub containing the tablets. In our opinion this did not involve any interference with any of the rights of the first appellant under the ECHR or under common law. It did not amount to a search on the facts as found by the sheriff. The sheriff in this case heard evidence and concluded that the tub was abandoned. There was no evidence from the first appellant that he intended to return to retrieve the tub. In our opinion the sheriff was entitled, on the evidence he heard, to reach the conclusions which he did. [9] In these circumstances we consider that the reasons given by the sheriff in para.14 of his note for dismissing the minutes are well founded. In any event, even if we were persuaded that there was some irregularity in the recovery of the tub and investigation of its contents, we would apply the approach taken by the Lord Justice General in Lawrie v Muir. We would conclude that the evidence in any event was admissible on the basis that there was no unfairness to the appellants in this case. [10] For these reasons we refused the appeal by the first appellant. [11] The second appellant, Laura Frew, was separately represented. Counsel for the second appellant adopted the submissions made by counsel on behalf of the first appellant. He did not seek to expand these submissions. In these circumstances, we consider that no different issue arises in respect of the second appellantâ&#x20AC;&#x2122;s case. For the same reasons that we have given in relation to the appeal by the first appellant, we refused the appeal by the second appellant.

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A Application for Leave to Appeal to Supreme Court THE LORD ADVOCATE

4 November 2016 Applicant

against ZAIN TAJ DEAN

Respondent B

[2016] HCJAC 117 Appeal—Appeal to Supreme Court—Extradition—Proceedings brought under treaty relating to specific individual—Extradition refused because prison conditions in requesting territory found by court to be incompatible with art.3 of ECHR—Whether raises question of general public importance—Whether leave to appeal should be given

C Extradition—Appeal to Supreme Court—Proceedings brought under treaty relating to specific individual—Extradition refused because prison conditions in requesting territory found by court to be incompatible with art.3 of ECHR—Whether raises question of general public importance—Whether leave to appeal should be given Human rights—Extradition—Appeal to Supreme Court—Extradition refused because prison conditions in requesting country incompatible with art.3 of ECHR—Devolution minutes on other grounds not argued in High Court—Whether leave to appeal should be given—Scotland Act 1998 (c.46), Sched.6, para.13 Extradition—Appeal to Supreme Court—Human rights—Extradition refused because prison conditions in requesting country incompatible with art.3 of ECHR— Devolution minutes on other grounds not argued in High Court—Whether leave to appeal should be given—Scotland Act 1998 (c.46), Sched.6, para.13 Article 3 of ECHR provides a right against inhuman or degrading treatment, and s.103 of the Extradition Act 2003 bars extradition where it would be incompatible with the fugitive’s ECHR rights. The Extradition Act 2003 makes no provision for appeals from the High Court to the Supreme Court, but para.13 of Sched.6 to the Scotland Act 1988 provides an appeal to the Supreme Court against any determination of a devolution issue by two or more judges of the High Court. The UK entered into a special agreement with the authorities in Taiwan in relation to the extradition of the respondent, which included certain undertakings regarding the conditions of his imprisonment. The respondent appealed to the High Court against a decision to extradite him to Taiwan, and the High Court having found, after hearing evidence, that conditions in the prison were not compatible with his rights under art.3, allowed the appeal (Lord Advocate v Dean, 2016 S.C.C.R 499). In doing so the High Court relied on the fact that the respondent would be held for the most part in solitary or

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2017 S.C.C.R.

near-solitary confinement because of the risk of violence against him by other prisoners, as well as on the absence of sufficient medical services in the prison, and of any supervisory system, or any established routes to enable a prisoner to raise a court action in connection with the conditions of his imprisonment. Devolution issues had been lodged in the appeal to the High Court but they did not challenge any act of the Lord Advocate and the court had not found it necessary to deal with them. The Lord Advocate sought leave to appeal to the Supreme Court. Held (Lord Drummond Young dissenting) (1) that the case did not raise any question of general public importance, having arisen under a special agreement, and the High Courtâ&#x20AC;&#x2122;s decision having been a decision on facts all of which were unlikely to be replicated (paras 13, 14); (2) that the Lord Advocateâ&#x20AC;&#x2122;s arguments demonstrated no error of law on the part of the court but simply a difference of view, or opinion, in applying the law and assessing the established facts (para.15); and leave refused. Observed by the majority of the court (1) that they had reservations about the competence of an appeal to the Supreme Court as the court had neither determined, nor refused to determine, the devolution issues raised by the respondent (para.7); (2) that if a devolution issue was properly focused at this stage a disappointed litigant could routinely make such an assertion, at a very late stage, which was not a practice the court would favour (para.8); and (3) that if the Lord Advocate succeeded in an appeal it would be necessary to determine the undetermined devolution issues raised by the respondent and leave open the possibility of a further appeal to the Supreme Court, that the mere fact that an issue is capable of being framed as a devolution issue does not mean that litigation should be allowed to continue over years and that after final determination of the issues raised before the High Court, the unsuccessful litigant should be permitted to reframe the issue as a devolution issue as a method of obtaining a route to appeal to the Supreme Court (para.9). Opinion by Lord Drummond Young, dissenting, (1) that there were at least three matters of general public importance in the case: (i) the status of undertakings given by requesting states that are not parties to the system of European arrest warrants (para.21); (ii) the extent to which reliance can be placed on consular enforcement (para.22); and (iii) the compatibility of solitary confinement with ECHR (para.23); and (2) that there was a very clear and obvious devolution issue in the case, that it was central to the arguments considered (para.19), and that, accordingly, as a matter of substance there was a devolution issue involved, and that treating the lack of a relevant devolution minute as decisive seemed to cause niceties of form to triumph over the underlying substance of the crucial issues in the appeal, which strongly favoured the notion that a devolution issue existed (para.20). Cases referred to in the opinions of the judges:

5390.indd 18

H v The Lord Advocate [2012] UKSC 24; 2012 S.C.C.R. 562; 2012 S.C. (U.K.S.C.) 308; 2012 S.L.T. 799 Henderson v Foxworth Investments Ltd [2014] UKSC 41; (S.C.) 2014 S.C.L.R. 692; 2014 S.C. (U.K.S.C.) 203; 2014 S.L.T. 775 Kapri v Lord Advocate [2014] HCJAC 63; [2013] UKSC 48; 2013 S.C.C.R. 430; 2013 S.C. (U.K.S.C.) 311; 2013 S.L.T. 743 McGraddie v McGraddie [2013] UKSC 58; (S.C.) 2015 S.C.L.R. 109; 2014 S.C. (U.K.S.C.) 12; 2013 S.L.T. 1212 Othman (Abu Qatada) v United Kingdom [2012] ECHR 817 Wlodarczyk v The Lord Advocate XC 470/11, 5 April 2012, unreported.

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2017 S.C.C.R.

Lord Advocate v Dean

The Lord Advocate sought leave of the High Court to appeal against the decision in Dean v Lord Advocate, 2016 S.C.C.R. 499.

The application was heard by Lady Paton, Lord Drummond Young and Lady Clark of Calton. For the applicant: The Lord Advocate (Wolffe QC), Dickson, Solicitor advocate. For the respondent: Bovey QC, Brown, Solicitor advocate, instructed by G.R. Brown, Solicitors, Glasgow. B

On 4 November 2016 the following opinions were delivered. LADY PATON [1] First, I shall announce the majority decision. Then I shall invite Lord Drummond Young to give the minority dissent. [2] The majority decision of the court is that leave to appeal to the Supreme Court is refused, for the following reasons. [3] I deal firstly with â&#x20AC;&#x153;oppressionâ&#x20AC;?. We regard this as a new and separate issue, and do not rely upon submissions relating to oppression in reaching our decision today. [4] Secondly, competence. We have reservations about this matter, for reasons which we are about to give, but again we do not base our decision upon that issue. [5] Nevertheless, turning to competence, as the majority of this court found in favour of Mr Dean on critical issues relating to art.3 of the European Convention on Human Rights [ECHR], this court did not consider it necessary to determine various devolution issue minutes raised on other matters by Mr Dean during the course of proceedings in appropriate form and intimated in accordance with our practice and procedure to various persons, including the Advocate General. None of these devolution issue minutes raised by Mr Dean sought to challenge any acts or omissions of the Lord Advocate as in some way incompatible with art.3 Convention Rights. At no stage during the proceedings in the s.103 appeal did the Lord Advocate seek to raise an issue or focus submissions before this court in relation to whether and in what respect the Lord Advocate was acting compatibly or incompatibly with art.3. [6] It is not disputed that there is no appeal to the Supreme Court from the decision of this court under s.103 of the Extradition Act 2003. This court accepts that if, prior to the determination of the s.103 appeal, a party had raised a devolution issue for determination, there is an appeal route to the Supreme Court. Para.13 of Sched.6 to the Scotland (Act) 1998 provides a right of appeal to the Supreme Court against the determination of a devolution issue by a court of two or more judges of the High Court of Justiciary, with leave of the court from which the appeal lies, or failing such permission with leave of the Supreme Court. [7] Had we determined or indeed refused to determine the devolution issues raised by Mr Dean, we accept that either party to the proceedings would be entitled to seek leave to appeal to the Supreme Court under and in terms of these provisions. As it happens, we did not refuse to determine the devolution issues raised in the minutes by Mr Dean. We concluded that it was unnecessary to do so, because we had found in his favour, by a majority, in the s.103 appeal. [8] We accept that it would have been possible and competent for either party to seek to focus issues canvassed in the s.103 appeal relating to art.3

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Lord Advocate v Dean (Lady Paton)

2017 S.C.C.R.

during the currency of the proceedings, by raising the issue and making submissions about the issue as a devolution issue. In the circumstances, however, where parties have not chosen to do that during the course of our proceedings, we have concerns that an unsuccessful party, after the conclusion of the decision-making by this court, can for the first time merely assert: “The court’s holding that the extradition of the appellant would be incompatible with the appellant’s Convention rights determined a devolution issue. This is because it is the Lord Advocate who conducts extradition proceedings for the requesting state . . . and in any event because the extradition of the appellant would be an act of the Scottish Ministers (para.5 of the Lord Advocate’s application for permission).” We observe first, that there is no specification given of a devolution issue. We consider it, at best, premature to make reference to the decision-making of the Scottish Ministers. But even assuming that a devolution issue was properly focused for the determination of the Supreme Court at this stage, we observe secondly, that a disappointed litigant could routinely make such an assertion, at a very late stage of proceedings, and seek to change the focus of the litigation to date. That is not a practice which this court would favour. It may also lead to further delay and practical difficulties, as in this case. [9] In our opinion, if the Lord Advocate obtained leave to appeal to the Supreme Court and was successful in the appeal, it would be necessary, in fairness to Mr Dean, to determine the undetermined devolution issues which he raised. That would, of course, leave open the possibility of the unsuccessful party seeking leave for a further appeal to the Supreme Court. We consider that the mere fact that an issue is capable of being framed as a devolution issue does not mean that litigation should be allowed to continue over years and that, after final determination of the issues raised before this court, the unsuccessful litigant should be permitted to reframe the issue as devolution issue as a method of obtaining a route to appeal to the Supreme Court otherwise denied by the statutory scheme. [10] That said, we do not consider it necessary in this particular case to reach any concluded view about competence, as for the reasons which we are about to give, we do not consider that a devolution issue of general public importance has been identified and that the appropriate test has been met. [11] So we turn now to deal with the question of an issue of general public importance. [12] Applying the guidance given in the cases of Wlodarczyk v Lord Advocate and Kapri v Lord Advocate, para.1, we do not accept that a devolution issue of general public importance has been identified. [13] First, the decision in this appeal proceeds, inter alia, on an assessment of the facts as presented to the court. Unusually, this appeal court heard evidence over several days (27–29 January 2016, 18–19 May 2016 and 22 and 24 June 2016) all as set out in the judgment of the court dated 23 September 2016, [2016] HCJAC 83. This court was therefore acting as judges in an assessment of the facts. As was explained in McGraddie v McGraddie and Henderson v Foxworth Investments Ltd: “67 [I]n the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

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2017 S.C.C.R.

Lord Advocate v Dean (Lady Paton)

In our opinion, this court’s decision dated 23 September 2016 is fact-based, with a related opinion as to whether the prison conditions are art.3 compliant. No error in the findings of fact such as is described in Henderson v Foxworth Investments Ltd has been identified. [14] Secondly, in the view of the majority, the facts with which this case is concerned are quite unique, involving first, a “one-off” extradition treaty between the UK and Taiwan in respect of a single individual, Mr Zain Dean; and secondly, a particular set of facts, including the current state of Taipei Prison as described by the evidence, all of which are unlikely to be replicated with any degree of similarity in any future case. Any other extradition treaty entered into by the Taiwanese authorities may be wholly different, involving different parties, different terms and a different factual background. It may be that, in such future treaties, art.3 of the ECHR would not apply. [15] Thirdly, we consider that the arguments presented by the Lord Advocate in favour of allowing leave to appeal to the Supreme Court demonstrate no error of law on the part of this court, but simply a difference of view, or opinion, or approach when applying the law and assessing the facts established in this case. [16] In all the circumstances, we are not persuaded that this appeal raises any devolution issue of general public importance. [17] I now invite Lord Drummond Young to give his dissenting view. LORD DRUMMOND YOUNG [18] I regret that I must dissent from the opinion that has just been issued. I would grant leave to appeal to the UK Supreme Court. [19] So far as competency is concerned it appears to me that the position is very clear in the light of authorities such as H v The Lord Advocate and Kapri v The Lord Advocate [2013]. I consider that there is a very clear and obvious devolution issue in this case. Furthermore art.3 of the ECHR was extensively discussed in the course of the opinions; indeed it was central to the arguments that were considered. [20] Accordingly, as a matter of substance, there is a devolution issue involved. Treating the lack of a relevant devolution minute as decisive seems to me to cause niceties of form to triumph over the underlying substance. In my view the substance of the crucial issues in the appeal strongly favours the notion that a devolution issue exists. [21] The critical question is whether matters are raised that involve a question of general public importance. As to the arguability of what would be said on appeal I simply refer to the opinion that I have already delivered on the merits of the case. So far as matters of general public importance are concerned I am of opinion that there are at least three of these. The first relates to the status of undertakings given by requesting states that are not parties to the system of European arrest warrants, and in particular to the application of the so-called Othman criteria to the undertakings that are granted. The manner in which those criteria are applied to the facts of particular cases is in my opinion a matter of general public importance. In view of the paucity of decisions on this issue I am of opinion that further clarification of the law would be of considerable assistance. [22] The second issue that I think is of general public importance is the extent to which the courts in assessing the application of the Othman criteria can rely on what might be called consular enforcement, that is, enforcement of undertakings as a matter of international law, using consular representation. This, I think, was an important point of division between my opinion and the

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opinions of the majority judges, and it is one where clarification by the UK Supreme Court would be welcome. [23] Thirdly, in my opinion there is a question about the compatibility of solitary confinement with art.3 of the ECHR. I do not regard this as a matter of quite such great public importance as the two previous issues because it has been the subject of earlier cases which have given a degree of guidance. Nevertheless, it seems to me that it is nevertheless a matter of public importance that would justify permitting an appeal to proceed in this case. [24] In dealing with each of these three issues I am of opinion that the question is not one of fact, as the majority have suggested, but the application of important principles of law to those facts. That in my view raises a very clear question of law, and cases such as McGraddie v McGraddie and Henderson v Foxworth Investments Ltd, referred to in the majority opinion, do not appear to me to be in point. In a sense every case turns ultimately on its own facts, but it seems to me to be absurd to suggest that this can prevent a question of law from arising if such a question forms an important part of the courtâ&#x20AC;&#x2122;s reasoning process. In the present case the application of the Othman criteria, consular enforcement and the application of art.3 to solitary confinement all appear very obvious questions of law. [25] So far as the status of those questions as matters of public importance is concerned, I think it clear that matters of public importance can arise in a wide variety of individual factual scenarios. In each case the question of law must be identified, and if that question is of general public importance that is sufficient to satisfy the statutory test. In considering this test, the question of law may have to be addressed at a general and to some extent abstract level. [26] In my view both the status of undertakings given by requesting states and the question of consular protection are matters that are likely to arise in other cases in the future. This is most likely in a case where the system of European arrest warrants is not applicable. Nevertheless, such cases arise frequently, and for that reason the public nature and general importance of what is at stake seems to me to be clear. So far as oppression is concerned I am of opinion that this is a new argument to the extent that it goes beyond the basic art.3 points that were discussed at length in the substantive part of the appeal. If anything is to be made of oppression, I concur with the majority that that is a matter for the UK Supreme Court. [27] For these reasons I would have dissented from the view of the majority and granted permission to appeal. COMMENTARY

The majority of the court and Lord Drummond Young seem to be dealing with two different parts of the original decision. The majority are concerned with the devolution minutes which were formally before the court but not directed against the Lord Advocate and not dealt with by the court. Lord Drummond Young was concerned with the fact that the decision depended on the application of artÂ 3, which in itself involved the determination of a devolution issue. All the judges accepted that an appeal to the Supreme Court against the determination of a devolution issue in an extradition case was not excluded from Sched.6 to the Scotland Act by the Extradition Act.

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A Bill of Advocation

25 November 2016

HER MAJESTY’S ADVOCATE

Complainer

against GINETTE BALL

Respondent B

[2016] HCJAC 109 Solemn procedure—Absence of procurator fiscal at sentencing diet— Sheriff making no order—Whether competent The respondent pled guilty to a charge on indictment and the case was adjourned to a sentencing diet. When that diet was due to call the sheriff was informed that the procurator fiscal was on his way. Some ten minutes later, knowing that there was still no fiscal available, the sheriff ordered the case to be called, and made no further order, thus bringing the case to a conclusion. The Crown appealed to the High Court by bill of advocation. Held that if the sheriff wished to call the case in the absence of the fiscal the only course which was competent was to continue it until later in the day or to a further day (para.23); and bill passed and case remitted to the sheriff to impose a sentence.

Cases referred to in the opinion of the court: Fraser v HM Advocate, 1852 1 Irv. 1 MacKinnon v Craig, 1983 S.C.C.R. 285; 1983 S.L.T. 475 Skeen v Sullivan, 1980 S.L.T. (Notes) 11 Skeen v Summerhill, unreported, 1975 39 J.C.L. 59 Thomson v Scott (1901) 3 F. (J) 79 Walker v Emslie (1899) 3 Adam 102.

Ginette Ball pled guilty to an indictment at Glasgow Sheriff Court and the case was continued for sentencing reports. The sheriff (McCormick) called the case at the sentencing diet on 18 August 2016 despite the absence of the fiscal and formally made no order. The Crown appealed to the High Court by bill of advocation. The bill was heard on 25 November 2016 by Lord Brodie, Lady Clark of Calton and Lord Turnbull. For the complainer: McSporran QC, AD. For the respondent: C M Mitchell, instructed by Brown’s, Solicitors, Glasgow.

On 25 November 2016 the appeal was allowed. Lord Turnbull subsequently delivered the following opinion of the court. LORD TURNBULL [1] In this bill of advocation the Crown seek to recall a decision of the sheriff at Glasgow, dated 18 August 2016, in which he made no further order at an adjourned diet for sentence in indictment proceedings in respect that there was no procurator fiscal depute present in court when the case was called.

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HM Advocate v Ball

2017 S.C.C.R.

Background

[2] On 21 June 2016, the respondent Ginette Ball, aged 44, pled guilty to two of the three charges which she faced on indictment and not guilty to the remaining charge. These pleas were accepted by the procurator fiscal depute. The pleas as accepted were to charges in the following terms: “(2) [O]n 15 July 2015 at Daisy Street, Glasgow you Ginette Ball did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout and swear: contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010; (3) on 15 July 2015 at the common close at 32 Daisy Street and in Daisy Street, Glasgow, being a public place, you Ginette Ball did, without reasonable excuse or lawful authority, have with you an article that has a blade or is sharply pointed, namely a meat cleaver: contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, section 49(1) as amended.”

[3] The procurator fiscal depute moved for sentence and tendered a schedule of previous convictions which displayed that the respondent had been convicted on four occasions in England. On three of those occasions she was dealt with at the magistrate’s court, twice for offences of dishonesty and once for an offence of battery and using threatening, abusive and insulting words or behaviour. On the fourth occasion, in April 2014, she was dealt with at the Crown Court in Liverpool for an offence of assault occasioning actual bodily harm, which had resulted in a suspended sentence of imprisonment along with a requirement to perform unpaid work in the community. Having heard the narrative of the events and a plea in mitigation on the respondent’s behalf the sheriff adjourned the diet for sentence until 19 June 2016 at 9.30 am for the purpose of obtaining a criminal justice social work report. Owing to difficulties in preparing the report the case required to be further adjourned until 21 July 2016 at 9.30 am and then further adjourned again until 18 August 2016 at 9.30 am. The sheriff’s decision

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[4] In his report to this court the sheriff explained what occurred on the morning of 18 August 2016. He informed us that at 9.30 am he was advised that the respondent and her solicitor were both present in court but that the procurator fiscal depute was not. As a consequence he instructed the sheriff clerk to contact the procurator fiscal’s office by telephone. This having been done, he was informed that the depute fiscal allocated to the court was not yet in the building but was on his way. The sheriff told us he assumed this meant that he was on his way from the procurator fiscal’s office in Ballater Street. [5] The sheriff next informed us that at about 9.40 am he instructed the clerk of court to call the case in the absence of the procurator fiscal. He informed us that having done so he was unable to impose a sanction in the procurator fiscal’s absence and therefore made no further order, with the consequence that the respondent was allowed to leave. [6] The sheriff’s reason for deciding to order that the case be called, despite knowing that the Crown was not represented, is given in his report. He introduces his report by saying that: “The writing of this report is the inevitable consequence of what has become not uncommon, namely, the failure of courts to commence promptly.” At a later stage he tells us that failure of the procurator fiscal to attend timeously is not uncommon. In the body of his report the sheriff states that failure to call cases promptly causes delays. He informed us

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HM Advocate v Ball

that the adjourned diet in the respondent’s case was due to call in the remand court and that deferred sentences before two other sheriffs were also scheduled to call at 9.30 am in the same court. The ordinary business of the remand court was scheduled to commence at 10 am and the sheriff himself was due to preside over the domestic abuse court commencing at 10 am. Seven trials were allocated to that court, including two custody trials and a part-heard trial. The sheriff explains that in these circumstances unless the adjourned diets commenced promptly at 9.30 am, not only would the three sheriffs dealing with the 9.30 cases be inconvenienced, but the sheriff dealing with the remand court would start later than otherwise and, in addition, other courts, including his own, otherwise scheduled to commence at 10 am would also be delayed. [7] The sheriff then goes on to provide an account of the business which called before his own court that day and explains that it included a domestic abuse case which had called and been adjourned on three prior occasions through lack of court time. He was able to start this case at 3.50 pm but two further trials which were scheduled for that day had to be adjourned due to lack of court time. He explains that had he waited even longer to deal with the adjourned diet in the morning it is unlikely that he would have been able to start the domestic abuse case which had been adjourned on other occasions. [8] At paras.32 and 33 of his report the sheriff informed us that he considered it within his powers to direct the sheriff clerk to call the postconviction diet of deferred sentence where the respondent and her solicitor were present and the procurator fiscal was not. He informed us that his decision to proceed in the absence of the procurator fiscal was an exceptional one and explained his reason for doing so as follows: “A case such as this brings home to the complainer the requirement for his deputes to attend court timeously. It is the relaxed attitude to timekeeping at the beginning of the day which results in churn at the end of it. That is to be deprecated.

“The remedy lies with the complainer. Since 18 August I have not had difficulty commencing courts on time—sometimes one has to make a point in the wider public interest and be seen to do so. That is in the interests of the efficient judicial court management.” Despite his comments on the importance of timeous attendance and his suggestion that it is not uncommon for members of the procurator fiscal’s office to attend late, the sheriff did not provide us with any examples of such issues arising in other cases of which he was aware.

The hearing on the bill

[9] At the hearing before us the advocate depute acknowledged that the procurator fiscal depute ought to have been present in court prior to 9.30 am. He explained that the person who had been allocated to that court had misread the court sheet the previous evening. He noted that he had been allocated the custody court to commence at 10 am but in error failed to look further down the sheet where it was noted that there was also 9.30 am business in that court. The advocate depute submitted that this was a regrettable mistake but was not indicative of dilatory attendance or wilful non-attendance. He also explained to us that in light of the sheriff’s observation about late attendance enquiry had been made with senior members of the legal staff who had responsibility for managing court business. He informed us that four such senior members of staff regularly met with the sheriffs and the sheriff clerks at Glasgow Sheriff

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Court in order to discuss management of court business. One had met earlier this year with the very sheriff who dealt with the present case. No issues of late attendance had been brought to the attention of the procurator fiscal’s representatives during any of these discussions and it therefore came as a surprise to the Crown to see the sheriff express this concern. [10] The advocate depute submitted that on 18 August the sheriff’s duty was to pass sentence in the case in light of the earlier motion which had been made. He ought to have complied with that duty rather than purporting to make no order. In making this submission the advocate depute relied upon what had been said by this court in the cases of Skeen v Sullivan and MacKinnon v Craig. The advocate depute submitted that there were a number of steps which the sheriff in the present case could have taken to allow him to comply with his duty. Having satisfied himself that the Crown’s representative was on his way to court he could have waited for the individual concerned to travel the short distance from Ballater Street. Alternatively, he could have instructed that the case be recalled later, or he could have waited until the other sheriffs had dealt with their adjourned diets in that court, by which time the individual concerned would have been present. The advocate depute recognised that any of these steps would have led to a degree of inconvenience, which was unfortunate. However he suggested that the sheriff could have taken steps to ensure that the procurator fiscal depute’s failure to attend on time was met with censure. The advocate depute drew our attention to the terms of para.7 of the bill in which it was explained that the procurator fiscal depute had left the office immediately on being alerted to the case and had arrived in court by 9.45 am. On arrival he had asked the sheriff clerk to contact the sheriff and request that he return to the court to deal with the case but the sheriff declined to do so. [11] The advocate depute accepted that it was competent for the sheriff to instruct that the case be called as an administrative act to ascertain who was present. He submitted that as a matter of law though there could be no competent proceedings in the absence of the prosecutor and that the interlocutor pronounced by the sheriff was incompetent. He referred us to Hume, ii, pp.266 and 277; Fraser v HM Advocate; Walker v Emslie; Thomson v Scott; and Skeen v Summerhill. He therefore invited us to pass the bill, to recall the sheriff’s decision of 18 August 2016 and to remit to him to impose a sentence. [12] On behalf of the respondent, Ms Mitchell could not contradict the proposition that to conduct proceedings in the absence of the procurator fiscal would be incompetent. She submitted though that the sheriff had acted competently since, properly understood, he had in fact done nothing. He had made a deliberate decision to take no step in the proceedings as a legitimate exercise of his discretion in light of the circumstances which had transpired. The consequence of the case calling and no proceedings following thereon was that the diet fell. Ms Mitchell’s submission was that the bill should be refused. Discussion

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[13] In Skeen v Sullivan the court required to consider circumstances in which the sheriff had pronounced an interlocutor purporting to make no order at an adjourned diet for sentence in a summary case where the accused was not present. The circumstances were not the same as disclosed in this bill but it is instructive to note the approach which the court took. The court stressed that the previously made motion for sentence was still before the sheriff at the

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HM Advocate v Ball

adjourned diet and his duty was to dispose of the case at that diet, or at a further adjourned diet. In MacKinnon v Craig the court required to deal with circumstances in which the prosecutor was absent when a summary complaint called in the presence of the sheriff. The sheriff having left due to the absence of the prosecutor, he returned to the bench some ten minutes later when the prosecutor was present but refused to deal with the case and made no entry in the minute of proceedings. Again, the court stressed the nature of the duty incumbent upon the sheriff to comply with the relevant statutory procedure and the sheriff’s refusal to hear the complaint was held to be incompetent. [14] In each of those two cases the duty to which the court referred was to be found within the relevant sections of the Criminal Procedure (Scotland) Act 1975. There is no precise equivalent between those provisions, or the now applicable provisions of the Criminal Procedure (Scotland) Act 1995, governing summary procedure, and the relevant statutory provisions governing proceedings on indictment. However, in the present case the prosecutor had moved for sentence and, in light of that motion, the court had adjourned the diet in terms of s.201 of the 1995 Act. As the head note to that section makes plain, the purpose of the section is to permit an adjournment before sentence. The motion for sentence remained live before the present sheriff at the diet which he had fixed for that purpose. We consider that the observations made in Skeen v Sullivan as to the presiding sheriff’s duty at a sentencing diet in summary procedure apply with equal force to the diet fixed for 18 August 2016 in the present case. We therefore agree with the advocate depute that it was the sheriff’s duty to pass sentence at the adjourned diet in light of the motion before him. [15] We turn then to consider what did take place. The minute for 18 August 2016 is in the same form as the other minutes in the case. It begins by noting that the court directed that the whole proceedings in the case be recorded by mechanical or digital means under the supervision of the clerk of court and the clerk’s signature then authenticates that entry. The minute records the absence of the procurator fiscal depute, records the presence of Mr Brown, solicitor acting for the accused and the following entry then appears: “The court having considered the criminal justice social work report requested for the purposes of today’s diet and having heard from Mr Brown on behalf of the accused, and in respect that there was no procurator fiscal depute present in court when the case was called at 9:40 am, made no further order in respect of this indictment.” That entry is authenticated by the clerk of court who then also certifies that digital recording was used during the duration of the proceedings. [16] This minute is entirely in keeping with the events as related to us by the presiding sheriff in his report. In light of the content of the minute, and the description of events which we have set out above, we cannot accept Ms Mitchell’s submission that no proceedings in the case occurred. It is plain from what the sheriff himself tells us that he took a deliberate decision to constitute the court knowing that the procurator fiscal was not represented, that he then chose to take a step which he considered would bring the proceedings to an end and that he did each of these things for a particular purpose. That purpose was to discipline the procurator fiscal as to the importance of timekeeping and efficient court management. [17] In Walker v Emslie the court stated that it is a well-established rule of criminal law that no proceedings can take place in the absence of the

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prosecutor. The conviction of an accused person who pled guilty before a magistrate in the absence of a prosecutor was therefore held to have proceeded on a nullity and was quashed. In Thomson v Scott Lord Trayner observed that in a criminal trial there is no instance where the prosecutor fails to appear. [18] These observations do not though mean that the sheriff requires to sit mutely on the bench should a case be convened in the absence of the Crown’s representative. Nor does it mean that a diet called necessarily falls because of the absence of the Crown’s representative. In the passages of Hume relied upon by the advocate depute it is made plain that the prosecutor must attend at all stages of the trial and that no proceedings can take place unless he is present to maintain the instance which, as Hume explains, “is only in court by his act and extinguishes as soon as he withdraws”. However at p.266, in dealing with the absence of the prosecutor, Hume states the following: “But although the process cannot advance in the prosecutor’s absence, it does not however follow, that the diet of the libel must absolutely, in every instance, straightway, and without further inquiry, be deserted. If a procurator appear, and offer some reasonable excuse for his absence; or if, in the whole circumstances of the case, it be presumable that he has no purpose of abandoning the process; certainly it is in the discretion of the Court to continue instead of deserting the diet, and put the matter to the trial of a farther day.” Hume then gives some examples of steps taken by the court in the absence of a prosecutor and having done so says the following at p.267: “In short, although the trial cannot advance, nor any step be taken on the libel, unless the prosecutor be in Court; yet still his absence does not constrain the Court straightway to dismiss the process, if it appear not to be wilful or without excuse.” We take it from these statements that whilst a sheriff’s power to act in the absence of the prosecutor is limited, he would be entitled to continue the case, as submitted by the advocate depute. Beyond taking this step is seems to us that the only other competent step which Hume envisaged was desertion on the basis that the failure to attend was wilful, or where it could reasonably be inferred that the prosecutor intended to abandon the process. Importantly though, Hume also makes it plain that even if the court was to desert the diet in such circumstances that step would not ordinarily be a bar to fresh proceedings being raised by the prosecutor (see pp.267 and 277). No support can be detected for the suggestion that it would be competent to desert the diet for the purpose of disciplining the procurator fiscal. [19] During the hearing before us the advocate depute also founded upon the short account of the case of Skeen v Summerhill, which appeared in The Journal of Criminal Law ((1975) 39 JCL 59). Our own enquiries have uncovered the original case papers which contain an opinion of the court given by the Lord Justice Clerk (Wheatley). In that case the Crown brought a stated case seeking to challenge the decision of a sheriff who had granted an absolute discharge, in the absence of the procurator fiscal, to two accused men who had appeared at an adjourned diet for sentence in a summary complaint. It appears from the terms of the stated case itself, and from the opinion of the court, that the circumstances in which the sheriff took his decision were quite similar to those which arose in the present bill. The sheriff appeared to hear remand cases at 10:30 am, in accordance with the normal practice in the court. By 10.45 am, in spite of numerous endeavours by the sheriff clerk and bar officer to secure the attendance of a procurator fiscal depute, none was

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HM Advocate v Ball

present. Having heard the solicitors for the accused, the sheriff concluded that he could not competently proceed to conviction and sentence in light of what was said in Walker v Emslie and decided to impose an absolute discharge, which he described as been consistent with the Crown’s apparent indifference. [20] In giving its opinion the court held that the case was properly called and properly before the court but it held that the procedure which the sheriff had adopted was incompetent. In giving the opinion of the court the Lord Justice Clerk said this: “In the absence of the procurator fiscal the sheriff took the procedure which I have outlined. In my opinion he was wrong in so doing. It would not only have been a simple matter but it would have been appropriate for the sheriff in the circumstances to have continued the case possibly even to later on that day to enable the fiscal to be present and if need be to tender his explanation. Be that as it may, in the absence of the procurator fiscal (or for that matter in the absence of the accused in a similar situation) the court was not in a position to do anything. It therefore follows that when the sheriff proceeded to grant an absolute discharge to the respondents he was doing something which was incompetent.”

C The court therefore recalled the determination of the sheriff and remitted the case back to the sheriff court to proceed as accords. [21] In the present case the sheriff did not desert the diet but pronounced an interlocutor which had the effect of bringing the indictment proceedings to an end without passing sentence. If competent, this was an interlocutor which prevented the Crown from bringing fresh proceedings. [22] We recognise the demands of daily court business which the sheriff refers to in his report. We entirely support his general efforts to make good use of the time available and we sympathise with the difficulty which he found himself in on 18 August. We also recognise though that members of the procurator fiscal service and other practitioners can also find themselves having to cope with very demanding workloads. In such circumstances mistakes can be made from time to time and the court cannot be seen to be unrealistic in the standards which it sets for others. In McKinnon v Craig the court expressly drew attention to the need for the court to take account of the pressures of business on practitioners within a busy court. In that case, whilst the circumstances of the procurator fiscal depute’s absence were not identical to those in the present case and nor was the action taken by the sheriff, we nevertheless consider that what the Lord Justice Clerk said at p.288 is apt: “While fiscals, like accused or their legal representatives, have a duty to be available in court when their cases call—and in the instant case the Crown freely admit that the depute fiscal was at fault in not being in court when the sheriff came on to the bench to deal with the cited cases—the pressures when they exist are matters which ought to be taken into account by the judge. Apart from the statutory requirement on the sheriff to deal with the case when it was called before him when he was on the bench, his refusal to deal with the case in the circumstances without any apparent opportunity being afforded to the depute fiscal to explain the reason for his failure to appear timeously and apologise therefor is on any view difficult to understand and cannot be approved.” [23] In the present case the sheriff was told that the procurator fiscal depute was on his way to the court from his office. Given his knowledge of the geography, the sheriff would have known that it would only take a short time for him to complete that journey. There were a number of options open to the

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sheriff which would have enabled him to comply with his duty to pass sentence in the case. One such option would have been to permit one or both of the other sheriffs who had adjourned diets to hear in that same court to sit before him, they were all scheduled to call at 9.30 am. He could also have arranged for the case to call at a later point during that same day. Any such step would still have resulted in inconvenience to the particular sheriff but the level of inconvenience would have been far less than the general picture alluded to in his report. On taking any such step the sheriff would still have been entitled to require an explanation and to censure the procurator fiscal depute, if appropriate. [24] In our view it is clear from what is said in Hume, and the other cases to which we have referred, that the sheriff has only a very limited power available to him in the absence of the procurator fiscal. We are satisfied that the sheriff’s duty was to pass sentence at the adjourned diet. Given he knew that the procurator fiscal depute was on his way to his court to appear in those very proceedings, the sheriff could not reasonably have concluded that his absence indicated an intention of abandoning the process. In the absence of an explanation he had no reason to conclude that the late attendance was wilful or without excuse. If the sheriff wished to call the case in the absence of the procurator fiscal the only step which was competently open to him was to continue it to a later point in the day, or to a further day. As is clear from the terms of the minute, proceedings did take place in the absence of the procurator fiscal. A deliberate step was taken to bring the case to an end in order to discipline the Crown and to bring home to them the importance of timeous appearance. For the reasons which we have given we are satisfied that the step taken by the sheriff was one which was not competent and we shall pass the bill, recall the sheriff’s interlocutor of 18 August 2016 and remit the case back to him to impose a sentence. COMMENTARY

I know nothing of Skeen v Summerhill, but I would have thought that it was clearly incompetent to proceed to sentence, even by way of absolute discharge, in the absence of the Crown. A closer analogy to the instant case can be found in Skeen v Sullivan, in which it was the accused who did not appear. The sheriff (one G.H. Gordon, QC!) declined to grant a non-appearance warrant and the fiscal then said that he had no further motion. The sheriff took the view that this was analogous to a situation in which the Crown were (deliberately) not appearing and formally made no order. In allowing the Crown’s appeal, the High Court held that the Crown had implicitly made a motion for sentence at the earlier diet, that that motion was still before the sentencing court, and that, in any case no prosecutor’s motion was necessary to activate the sheriff, who had failed in his duty under s.336 of the Criminal Procedure (Scotland) Act 1975 to dispose of the case at that sentencing diet or at a further adjourned diet.

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A Appeal Against Sentence

25 November 2016

HER MAJESTY’S ADVOCATE

Appellant

against GORDON COLLINS

Respondent B

[2016] HCJAC 102 Sentencing—Guidelines—Sexual offences—Offences vulnerable girls by member of staff of residential institution

against

Sentence—Indecent conduct towards vulnerable girls by member of staff of residential institution and one charge of repeatedly raping one of them—Whether six years’ imprisonment unduly lenient. C The respondent, who was aged almost 60 at the time of sentencing and had no significant record, was convicted of five charges of indecent behaviour towards vulnerable girls aged between 12 and 16, and of repeatedly raping one of them (charge (7)). The offences were committed between 1995 and 2006 at secure residential units where the complainers were resident and the respondent was a member of staff. It was accepted that the offences were extremely serious, but the respondent was assessed as at a low risk of re-offending, and had been engaged for many years as a group leader with a charity for adults with illness and disabilities, work which also had on occasion brought him into contact with children and young persons. The trial judge, taking account of the mitigating factors, imposed a cumulo sentence of six years’ imprisonment and the Crown appealed against the sentence as unduly lenient, on the ground that the judge had given insufficient weight to the gravity of the offences, which were aggravated by the ages and particular vulnerabilities of the complainers, the repeated nature of the conduct libelled in charge (7), the degree of planning by the respondent and the abuse of trust involved. In the appeal reference was made to the English Sexual Offences Definitive Guideline 2014. Held (1) that for offences involving the rape of a complainer, or other penetrative sexual abuse of several complainers, in respect of whom the offender was in a position of trust or authority, headline sentences in the region of eight to ten years may be appropriate, that the breach of trust involved, the duration of the offending, and the number of victims may, however, be such as to warrant a headline sentence in excess of ten years, that such cases would include, but are not limited to, the offender having committed the offences while being employed as a teacher, social worker, care worker, or his having held any other position of authority within an institutional and/or educational setting and that the same considerations regarding the degree of physical and psychological harm and the violation of the complainer’s physical and psychological integrity apply in such cases (para.41); and (2) that by reference to Scottish authorities, and if the definitive guideline was had regard to as a check, a sentence of ten years’ imprisonment in the circumstances of the present case must be regarded as moderate, given the repeated incidents which were the subject of charge (7) and the other convictions (para.49); and appeal allowed, sentence quashed and sentence of ten years’ imprisonment substituted. Authorities reviewed: English Sexual Offences Definitive Guideline 2014 considered.

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Cases referred to in the opinion of the court: Baillie v HM Advocate [2006] HCJAC 91; 2007 S.C.C.R. 26; 2007 J.C. 161; 2007 S.L.T. 2 Blaney v HM Advocate, 2001 S.C.C.R. 858 Caringi v HM Advocate, 1989 S.C.C.R. 223; 1989 S.L.T. 714 Geddes v HM Advocate [2015] HCJAC 43; 2015 S.C.C.R. 230; 2015 S.L.T. 415 George v HM Advocate [2011] HCJAC 88; 2011 S.C.C.R. 568 HM Advocate v AB [2015] HCJAC 106; 2016 S.C.C.R. 47; 2015 S.L.T. 841 HM Advocate v Bell, 1995 S.C.C.R. 244; 1995 S.L.T. 350 HM Advocate v Cooperwhite [2013] HCJAC 88; 2013 S.C.C.R. 461; 2013 S.L.T. 975 HM Advocate v Robertson, High Court of Justiciary, Lord Boyd of Duncansby, 23 June 2014, unreported HM Advocate v Samson, High Court of Justiciary, Lady Scott, 21 August 2013, unreported HM Advocate v Shearer, 2003 S.C.C.R. 657; 2003 S.L.T. 1354 HM Advocate v SSK [2015] HCJAC 114; 2016 S.C.C.R. 74; 2016 S.L.T. 142 McBrearty v HM Advocate, 2004 S.C.C.R. 337; 2004 J.C. 122; 2004 S.L.T. 917 McGill v HM Advocate [2013] HCJAC 150; 2014 S.C.C.R. 46; 2014 S.L.T. 238 McKenna v HM Advocate [2008] HCJAC 33; 2008 S.C.C.R. 702 Murray v HM Advocate [2013] HCJAC 3; 2013 S.C.C.R. 88 Newman v HM Advocate [2016] HCJAC 46; 2016 J.C. 165 Scottish Power Generation Ltd v HM Advocate [2016] HCJAC 99; 2016 S.C.C.R. 569; 2016 S.L.T. 1296 Seaton v Allan, 1973 J.C. 24; 1974 S.L.T. 234 Sutherland v HM Advocate [2015] HCJAC 115; 2016 S.C.C.R. 41; 2016 S.L.T. 93 WA v HM Advocate [2015] HCJAC 105; 2016 S.C.C.R. 51; 2016 S.L.T. 26. Gordon Collins was convicted of the offences described in the opinion of the court after trial on 26 April 2016 before Lady Wise and a jury in the High Court at Edinburgh and was sentenced to six yearsâ&#x20AC;&#x2122; imprisonment. The Crown appealed to the High Court against the sentence as unduly lenient on the grounds referred to in the opinion of the court. The appeal was heard on 25 November 2016 by Lord Brodie, Lady Clark of Calton and Lord Turnbull. For the appellant: McSporran QC, AD. For the respondent: Scott QC, Labaki solicitor advocates, instructed by Capital Defence Lawyers, Edinburgh.

F On 25 November 2016 the appeal was allowed. Lord Brodie subsequently delivered the following opinion of the court. LORD BRODIE Introduction

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[1] On 27 April 2016 at Edinburgh High Court, the respondent was found guilty of a series of historic sexual offences. The respondent was convicted of five charges of indecent behaviour towards girls aged between 12 and 16,

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contrary to s.5 of the Sexual Offences (Scotland) Act 1976 (charge (1)) and s.6 of the Criminal Law (Consolidation) (Scotland) Act 1995 (charges (2), (5), (6) and (8)) respectively. He was also convicted of a charge of rape at common law (charge (7)). The statutory charges libelled that the respondent kissed and fondled the complainers M M, A F, C M and H H. Charge (7) libelled that: “[O]n various occasions between 1 March 2004 and 28 February 2005, both dates inclusive, at Northfield Young Persons Unit, 34 Northfield Drive, Edinburgh, you . . . did indecently assault C M . . . and did enter her bedroom at night, shut the door, push her on to her bed, sit on her bed beside her, place your hand in her trousers and underpants, handle her vagina, penetrate her vagina with your fingers, remove your lower clothing, remove her lower clothing, lie on top of her, handle her naked breasts, kiss her on her neck, kiss her on the mouth, penetrate her vagina with your penis, and ejaculate inside her vagina and you did repeatedly rape her.”

[2] On 29 June 2016 the trial judge imposed a cumulo sentence of six years’ imprisonment. The Crown appeals against the sentence on the grounds of undue leniency. C Evidence

[3] The offences were committed between July 1995 and August 2006 at two secure residential units for children and young persons: Northfield Young Persons Unit (“Northfield”) and St Katherine’s Secure Unit (“St Katherine’s”), both in Edinburgh. Northfield was an “open” unit: residents were allowed a degree of freedom to come and go from the unit as long as they notified staff; residents also left the unit each day to attend school before returning to the unit in the afternoon. St Katherine’s, on the other hand, was a “secure” or “lock-down” unit: residents were not permitted to leave without supervision and received their schooling on site. [4] The respondent was employed as a residential care worker in the units at the time. The Crown relied on the doctrine of mutual corroboration to corroborate the accounts of the four complainers, the offences having come to light following a cold case review that joined together complaints from separate former residents of the young people’s units. [5] Each of the four complainers was in some way troubled or had experienced a difficult upbringing. The evidence disclosed that over a period of some 11 years the respondent groomed each of the complainers, gaining their trust and making them feel special, before sexually abusing them. The offending escalated, in the case of the complainer C M, into penetrative sexual abuse. As a result of their own difficulties, the complainers did not report what had happened at the time; their evidence disclosed that they had, in fact, tended to feel responsible for what had occurred.

The evidence of the complainer M M (charges (1) and (2))

[6] M M was aged 33 and had resided at Northfield between 1995 and 1997 when she was a teenager. She had experienced a troubled upbringing and had been placed in Northfield for her own safety. The unit had between eight and 10 young people resident at any one time. It was a mixed unit, although M M recalled that there were more girls there than boys during her stay. She remembered the respondent very well. He was seen by residents as the most approachable member of staff and he would frequently socialise with them. [7] In 1995, when M M had been at Northfield for a few months, the respondent approached her when no other staff or residents were present. The respondent pulled her towards him and kissed her on the lips; afterwards he

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told her not to tell anyone. He continued to flirt with her and would repeatedly touch and squeeze her bottom. M M stated that the respondent made her feel special; she felt as if she was in a relationship with him. M M also spoke to having had a sexual relationship with the respondent. Although they had full penetrative sex on about three occasions, the respondent was not charged with an offence, but this evidence was led in terms of a docket appended to the indictment. The relationship aroused suspicions and an internal investigation took place in 1997. When she was interviewed in July 1997 in connection with an allegation that the respondent was having an inappropriate relationship with her, M M denied that there was such a relationship. In 2014, however, she gave a statement to police who had contacted her in relation to the investigation that led to the present charges. The evidence of the complainer A F (charge (5))

[8] A F, aged 26, had been a resident at Northfield in late 2001 and 2002 when she was about 13. She met the respondent at the unit and initially regarded him as very pleasant; he would take her and other residents for ice cream and give them sweets. A F gave evidence that after she had been at the unit for several months, the respondent sat next to her on a sofa in the unit’s sitting room. The respondent edged towards her and lifted her on to his knee. He then put his face into her neck and made a low growling noise whilst touching her private parts over her clothing. A F stated that the respondent continued to rub her private parts with his hand. She initially froze during the incident but she then stood up, left and ran upstairs to her bedroom. At the time, A F told no one about what had happened. She described herself as having been emotionally damaged by the incident. After he had assaulted her, the respondent acted as if nothing had happened. The evidence of the complainer C M (charges (6) and (7))

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[9] C M was aged 26. She had been in the care system from the age of 12 and was placed at Northfield when she was about 14 after her foster care placement broke down. Prior to being in care, she had been exposed to violence at the hands of her stepfather. C M described the respondent as being nice at first; he gave her sweets and, occasionally, cigarettes. C M spoke to the respondent about her troubled upbringing and confided in him that her stepfather had physically abused her. [10] After C M had begun to confide in the respondent, he took her in his car to watch a football match in Motherwell. When the match ended, their team having won, the respondent jumped out of his seat and kissed C M on the mouth. She was taken aback by this. They returned to Northfield in the respondent’s car. On the journey home, he tried to touch her leg by putting his hand on her knee; he then attempted to place his hand on her private parts over her clothing. C M gave evidence that this made her feel “horrible”. She returned to her bedroom when they returned to Northfield. C M decided that she did not really like the respondent after that and tried to avoid being alone with him. A couple of weeks later, however, the respondent again started trying to touch her sexually, usually when they were in communal areas of the unit but with no one else present. These incidents formed the basis of charge (6). [11] C M also gave evidence of having been raped by the respondent on four occasions over a period of just over a year (charge (7)). On the first occasion, the respondent came into her room and shut the door behind him. He kissed her on the face and around the neck before penetrating her until he ejaculated. C M did not want to have intercourse with the respondent. She

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described having kept her eyes shut until the respondent had finished whereupon he said to her that: “It will be our wee secret.” C M did not tell anyone what happened for fear of being disbelieved. The respondent then raped her on another three occasions, again within her room in the unit. On each occasion C M was unable to do anything; she lay still and froze.

The evidence of the complainer H H (charge (8))

[12] H H was aged 25 and had been a resident at Northfield as a young teenager; however, the incidents to which she spoke took place when she was aged 15 and a resident at St Katherine’s. H H had been admitted there against her will. The respondent was working at St Katherine’s at the time. H H remembered him from Northfield and regarded him as friendly; she was comforted to see a familiar face in the secure unit. H H gave evidence that initially the respondent acted professionally towards her; however, he soon started giving her more hugs and cuddles, and always seemed to be the member of staff who answered her buzzer when she called from her room. Although H H enjoyed the attention at first, she began to feel uncomfortable. When the respondent cuddled her he would make a growling sound and nibble at her neck. On occasion he would touch her bottom and make a grunting noise. H H also spoke to a further incident where the respondent walked up behind her and cupped his hands around her breasts. [13] H H recorded the incidents in her diary. She accepted that she had felt something of a special bond with the respondent at the time but explained that she was emotionally confused. H H did not tell the other members of staff what was happening because she did not think that she would be believed.

Mitigation

[14] The trial judge in her report to this court summarises the plea in mitigation that she had heard as follows: “(Counsel) emphasised the troubled personal circumstances during youth of Mr Collins himself. He pointed out that apart from two minor convictions in the mid-1970s he had no criminal convictions of note and certainly nothing analogous. He had been involved in charity work. He continued to have the support of his wife who had given evidence that she did not believe the allegations made against him. On any view the consequences for the respondent were going to be significant. It was noteworthy that the criminal justice social work report had considered him to be at low risk both sexual and general offending. The offences had taken place some years ago.” [15] As indicated by counsel in his plea in mitigation to the trial judge, the risk assessment undertaken on the respondent as part of the criminal justice social work report (CJSWR) assessed him as presenting a low risk of both sexual and general offending. The author of the report noted, however, that as the respondent continued to deny the offences it was difficult to accurately assess his actual motivations behind the offending behaviour. In particular, the author of the report noted that, although not a risk factor in itself, the respondent’s level of denial limited the risk assessment regarding whether he had a sexual interest in children or whether such predilections would present problems in the future.

Trial judge’s reasoning

[16] The trial judge issued a sentencing statement in which she referred to the respondent having committed “an appalling course of criminal conduct

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consisting of the predatory sexual abuse of four young teenage girls” who were in his care. She noted that each of the four complainers was extremely vulnerable and that the respondent was in a position of trust and authority in relation to each of them. The respondent abused his position of trust by developing emotional and sexual relationships with the complainers. The trial judge also noted that the respondent had shown no remorse for his actions and continued to deny responsibility for the offences. [17] In her report to this court, the trial judge reports that she considered that a significant custodial sentence was the only appropriate disposal; she regarded six years as a lengthy period of custody. She took account of the respondent’s age and lack of analogous offending, and also his low risk of re-offending as assessed in the CJSWR. She considered that the seriousness of the offences involving gross abuse of trust over a lengthy period of time was appropriately recognised by the sentence of six years’ imprisonment. Note of appeal and submissions Appellant

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[18] The ground of appeal is that: “The sentence imposed failed to give due weight to the gravity of the offence(s). The offences are aggravated by the ages and particular vulnerabilities of the complainers, the repeated nature of the conduct libelled in charge (7), the degree of planning by the respondent and the abuse of trust involved . . . It is submitted that the sentence of six years was inappropriate. Whilst it is accepted that the learned judge has taken account of the said aggravating factors, it is submitted that she was in error in giving insufficient weight to these factors in determination of sentence . . . The sentence imposed failed to satisfy the need for retribution and deterrence and the learned judge has placed undue weight upon the age of the (respondent) and the low risk of reoffending referred to in the criminal justice social work report. The learned judge has placed undue weight on the mitigation given on behalf of the respondent and has fallen into error in consideration of all the circumstances of the case.” [19] This ground was developed in submissions. By reference to the decision in HM Advocate v Bell at p.250, it was submitted that the sentence was unduly lenient in that it fell outside the range of sentences which the judge at first instance, applying her mind to all the relevant factors, could reasonably have considered appropriate. Whilst the appeal was directed at the cumulo sentence imposed in respect of all six charges of which the respondent had been convicted, the advocate depute focused particularly on charge (7). As charge (7) comprised the repeated rape of a vulnerable young girl over a period of 12 months by an individual to whom she was entitled to look for guidance and support, a significantly more substantial sentence was required. [20] In respect of all six charges, however, the complainers were vulnerable young persons who were deserving of the utmost care. Although the complainers were all entitled to expect sanctuary in the residential units, they had all been targeted by the respondent. Each offence thus represented a gross abuse of trust: both the trust reposed in the respondent by his employers and the trust he gained of the complainers themselves through his interactions with them in the residential units. This gross abuse of trust had not been adequately reflected by the sentence imposed. [21] Reference was made to the Sexual Offences Definitive Guideline (the definitive guideline), published by the Sentencing Council for England and Wales in December 2013 and which came into effect on 1 April 2014. Whilst

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the definitive guideline is not applicable in Scotland, and whilst it should not be slavishly followed, it can nevertheless be used as a cross-check to highlight any areas of disparity (HM Advocate v A B at para.13; Sutherland v HM Advocate at para.20). The definitive guideline includes a series of factors relevant to categories of harm and culpability for use in calculating a startingpoint in sentencing cases of rape (definitive guideline, p.10). These combinations of harm and culpability generate a matrix. The sentencer is then directed to use the corresponding starting-points to reach a sentence within the appropriate category range. Account must also be taken of the nonexhaustive list of aggravating and mitigating factors set out in the definitive guideline (p.11) to arrive at the final sentence. [22] Using the definitive guideline as a cross-check, charge (7) fell into “category 2A”: the complainer C M was particularly vulnerable due to her personal circumstances; there was a significant degree of planning involved in the offences; and the respondent committed the offences whilst in a position of trust. As the respondent continued to deny the offences and showed no remorse, the only real mitigating factors was the absence of any previous convictions for sexual offences and the respondent’s charity work. Yet even these mitigating factors had to be seen against the background of the respondent having committed a catalogue of sexual offences against vulnerable young girls over a period of 11 years. In terms of the definitive guideline, category 2A offence carries a starting-point of ten years’ imprisonment, with a range of between nine and 13 years’ imprisonment. [23] Albeit a cumulo sentence was imposed in respect of all six offences, the statutory maximum sentence at the time in respect of the offences in charges (1) and (2) was two years’ imprisonment. In respect of charges (5), (6) and (8) the statutory maximum was ten years’ imprisonment, the statutory maximum sentence for a contravention of s.6 of the Criminal Law (Consolidation) (Scotland) Act 1995 having been increased from two years to ten years on 1 August 1997 by virtue of s.14(2) of the Crime and Punishment (Scotland) Act 1997. It was not, however, suggested that, despite the gross breach of trust involved, the offending conduct forming any of the statutory charges was such as to warrant a sentence at or around the statutory maximum. [24] It was clear from the trial judge’s sentencing statement that she had identified all the factors that required a substantial custodial sentence. The trial judge had nevertheless failed to place sufficient weight on those factors. In particular, the resulting sentence did not adequately reflect the requirement for retribution, denunciation and particularly general deterrence given the circumstances of the respondent’s offending.

Respondent

[25] The solicitor advocate appearing for the respondent accepted that the offences of which he had been convicted were extremely serious. The trial judge’s sentencing statement demonstrated that she had neither taken any inappropriate matters into account nor left any appropriate matters out of account in passing the sentence of six years’ imprisonment. The sentence imposed on the respondent did not fall outside the range of sentences which the trial judge could reasonably have considered appropriate. The test in Bell was not met. The sentence selected had not been unduly lenient. [26] The respondent was now almost 60 years of age and would find a custodial sentence more difficult than a younger man. The respondent had been assessed in the CJSWR as presenting a low risk of re-offending. Reference was also made to the respondent’s absence of analogous previous convictions

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and to his charitable work. In particular the respondent had spent some 30 years volunteering as a group leader with a charity for adults with illness and disabilities. The solicitor advocate reported that the respondent’s charity work had also on occasion brought him into contact with children and young persons. It was accepted that this supposedly mitigating factor might possibly be seen in a less favourable light given the grooming aspects of the present offences. [27] With regard to the use of the English definitive guideline, English guidelines should be treated with care—especially when one is not dealing with a UK statute—because of divergent sentencing powers and practices between Scotland and England and Wales. In particular, and as noted in A B at para.13, there are at present no statutorily defined sentencing purposes as is the case in England and Wales (cf s.142 of the Criminal Justice Act 2003). English guidelines should not be applied in a rigid or mechanistic fashion (Sutherland; Geddes v HM Advocate at para.18). Discussion Identifying the appropriate level of sentence—the approach

[28] In the course of submissions both parties referred to the English definitive guideline. No domestic authority was cited. The advocate depute explained that he had been unable to find any Scottish decisions directly in point. Beyond a suggestion from the advocate depute (unsupported by any authority) that the “baseline” sentence for offences of this type was seven years’ imprisonment and that therefore a sentence of six years for offending with the aggravating features in the present case was clearly unduly lenient, he was unable to provide further assistance as to what was appropriate. Similarly, the solicitor advocate for the respondent suggested that the appropriate range of sentence in respect of a single instance of rape was perhaps five to seven years, although again this was not supported by any authority. [29] The court is aware that at some point in the next 12–18 months the Scottish Sentencing Council (SSC) intends to begin research into the sentencing of sexual offences in order to determine whether a sentencing guideline should be prepared (SSC Business Plan 2015–2018, pp.29–30). It is important to note, however, that responsibility for determining the level of sentences remains with the court. The SSC is an advisory body. Once a proposed sentencing guideline on sexual offences is prepared and submitted to this court by the SSC, the court may either approve or reject the proposed guideline in whole or in part, with or without modifications (Criminal Justice and Licensing (Scotland) Act 2010, s.5). [30] Among the purposes of issuing sentencing guidelines is the identification of a general consensus as to what is appropriate in respect of particular types of offending in particular circumstances so that then, by an application of the guideline, the court can achieve a degree of consistency which commends itself as rational and just. Regard can of course be had to the practice in other jurisdictions but where there is no domestic guideline, either as proposed by the SCC and then approved or provided in an opinion of the court in terms of s.118(7) or s.197 of the Criminal Procedure (Scotland) Act 1995, the first resort in attempting to identify what level of penalty is generally considered appropriate to a particular sort of case should be Scottish precedent (see Scottish Power Generation Ltd v HM Advocate). In the absence of any authority having been cited by the parties, the court has undertaken its own researches into the matter. In doing so it has focused on what it sees as the salient feature of the respondent’s offending, that it involved sexual assaults on particularly

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vulnerable young girls who had been placed in state institutional care for their welfare and protection. The respondent exploited his employment and consequent position of authority to facilitate these sexual assaults, thereby abusing the position of trust in which he had been placed in respect of them.

Sexual offences committed in abuse of a position of trust—review of authorities

[31] HM Advocate v Cooperwhite was a Crown appeal against the sentence imposed in a case of so-called “relationship rape”. In reviewing the authorities the Lord Justice Clerk (Carloway) observed that, in the absence of sentencing guidelines available to judges, sentences in the region of three and a half years’ imprisonment—as in the successful Crown sentence appeal in HM Advocate v Shearer—had “undoubtedly been used by sentencers as the benchmark” in cases involving the rape of sleeping or unconscious complainers (Cooperwhite at para.19). Be that as it may, a review of the case law involving rape and other sexual offences committed either in institutional settings or in other circumstances in which the accused was in a position of trust vis-à-vis the complainers discloses that significantly longer sentences have been imposed by the courts in such circumstances. In particular, sexual crimes involving children are particularly odious. Sexual abuse of children and other vulnerable persons is not acceptable in modern society. It is the responsibility of the courts to reflect that understanding (W A v HM Advocate at para.24). [32] In Blaney v HM Advocate, the appellant pleaded guilty in the High Court to two charges of lewd and libidinous practices and behaviour committed on various occasions between 1969 and 1972 against two brothers aged between nine and 12, and seven and ten respectively. The offences, which were described as involving considerable indecency and which had a lasting effect on the elder complainer, were committed by the appellant at a children’s home, Nazareth House, run by a religious order. The appellant, who had himself been a resident, had returned to the children’s home as a helper and was thus in a position of trust and authority. The appellant’s appeal against the sentence of six years’ imprisonment was refused (at para.2). [33] The appellant in McBrearty v HM Advocate, was convicted after trial at the High Court of two charges of rape and six charges of lewd and libidinous practices committed between 1961 and 1968 against three complainers. The offences were all committed at Quarrier’s Homes, Bridge of Weir, a largely selfcontained community that cared for orphaned children or children whose families were unwilling or unable to look after them. The appellant and his wife had been the house parents in one of the accommodation units.The complainers were all young girls, aged between ten and 17, resident in the appellant’s unit. The first charge of rape involved the appellant entering the bed of the first complainer, placing his hand over her mouth and raping her. The appellant raped the first complainer on various occasions over a period of over three years. The second charge of rape involved the appellant removing the second complainer from her bed, forcing her into a bathroom and raping her. The second complainer was also raped on various occasions over a period of six and a half years. The charges of lewd and libidinous practices committed against the three complainers involved, inter alia, oral penetration and masturbation to the emission of semen. The trial judge imposed a cumulo sentence of 12 years’ imprisonment. The appellant’s appeal against conviction having been refused on 13 April 2004 (McBrearty at para.63), the court continued the appeal on the question of sentence. On 2 July 2004 the court sustained the appeal against sentence, quashed the sentence of 12 years’ imprisonment and substituted a sentence of ten years’ imprisonment.

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[34] In Baillie v HM Advocate, the appellant, a former general medical practitioner, pleaded guilty in the High Court to 17 charges on the indictment against him. The complainers were all young women who had attended his surgery as patients over a 14-year period. Each of the charges libelled assault upon the patient (in some cases on several occasions) involving acts of indecency. The offences consisted of inappropriate and improper intimate examinations of the patients, including instances of digital penetration of their private parts and the shaving of their pubic hair, as well as the making of indecent remarks to them. The appellant acknowledged that the charges comprised a very serious breach of trust over a long period of time. The sentence of nine years’ imprisonment (discounted from a headline sentence of 12 years) was quashed on appeal, and a sentence of six years and nine months’ imprisonment (discounted from a headline sentence of nine years) was substituted (at para.24). [35] In McKenna v HM Advocate, the appellant, aged 83, had been an instructor at a residential school run by a religious order. He was convicted after trial at the High Court of historic charges of indecent assault involving digital penetration of the hinder parts of one complainer; attempted sodomy of another; and lewd and libidinous practices towards a third complainer. The three offences were committed between 1976 and 1981 against three boys, aged between nine and 12, who had been pupils at the school. The appellant was sentenced to two years’ imprisonment. His appeal against conviction having been refused on 18 June 2008 (McKenna at para.20), the court continued the appeal on the question of sentence. On 18 September 2008 the court sustained the appeal against sentence, quashed the sentence of two years’ imprisonment and substituted a sentence of one year’s imprisonment. We note, however, that in the recent decision of HM Advocate v S S K, the Lord Justice General observed that, in the modern era, sentences of at least four years’ imprisonment would be appropriate for lewd and libidinous practices involving digital penetration or attempted sodomy committed whilst in a position of trust (at para.24). It is clearly the case that, notwithstanding the age of the appellant in McKenna, such a sentence would today be regarded as unduly lenient. [36] In George v HM Advocate, the appellant was convicted after trial at the High Court of 18 charges of the sexual and physical abuse of children at Kerelaw School in Ayrshire, a residential school where he was employed as an art teacher. The pupils were all vulnerable young people: some had family problems and no home to go to; some were from other residential homes; and others had been involved in criminal behaviour. The appellant sometimes assumed the role of carer in the pupils’ living quarters, depending on staffing levels. The details of the 18 charges are set out in the opinion of the court in the appellant’s initial appeal against conviction ([2011] HCJAC 33 at para.1). The offences were committed against male pupils during the late 1970s and 1980s. They comprised, inter alia, the appellant compelling a pupil to handle his private parts, masturbation, oral penetration and attempted sodomy (charge (4)); breach of the peace by exposing his private parts (charges (5) and (13)); indecent assault involving oral penetration (charges (8), (21) and (25)) and oral penetration to the point of ejaculation (charge (12)); lewd and libidinous practices by making indecent remarks (charge (10)); and various charges of assault including slaps and punches to pupils’ heads, legs and bodies; twisting pupils’ arms up their backs; gouging at their eyes, and pulling their hair. The fear, pain and humiliation suffered by some of the complainers had affected them throughout their adult lives ([at para.8).

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[37] The appellant was sentenced to ten years’ imprisonment. The sentence was upheld on appeal, albeit the court found there to have been an infringement of the appellant’s art.6 rights in respect of the time taken to conclude the appeal (2011 S.C.C.R. at paras 8–10). In particular, the court noted that the sentence of ten years was an appropriate reflection of the gravity of the appellant’s offences, of the need to protect the public, and of the need to deter others from offending in the same way (at para.9). [38] In Murray v HM Advocate, the appellant pleaded guilty to a charge of sexual assault by penetration contrary to s.2 of the Sexual Offences (Scotland) Act 2009, to a charge of sexual assault contrary to s.3 of the 2009 Act, and to a charge of rape contrary to s.1 of the 2009 Act. The three complainers, aged 84, 74 and 65 respectively, each suffered from severe dementia. They were residents in the care home in which the appellant was employed as a care worker. The appellant chose his victims because of their problems in communicating. The sentencing judge imposed a cumulo sentence of seven years’ imprisonment, discounted from nine years to reflect the appellant’s plea by way of s.76 procedure. The appellant appealed against the sentence on the sole ground that a supposedly insufficient discount had been allowed. This court (a bench comprising the Lord Justice General, the Lord Justice Clerk, and Lady Paton) refused the appeal, quashed the sentence of seven years as unduly lenient and substituted a sentence of nine years and six months’ imprisonment, discounted from a headline sentence of 12 years (the Lord Justice General (Gill) delivering the leading opinion at paras 27–29, the Lord Justice Clerk and Lady Paton concurring). In so doing, the Lord Justice General referred to the vile nature of the crimes that involved a grievous abuse of trust; his Lordship also noted that the appellant committed the offences against helpless women whom it was his duty to treat with care and respect (at para.27). [39] The most recent decision of relevance is that of Newman v HM Advocate. The appellant had been employed as a care worker in a children’s home. He was convicted after trial at the High Court of a series of sexual offences committed against boys residing in the home from the early to mid-1990s. In particular, the ten offences of which the appellant was convicted comprised lewd and libidinous practices; indecent assault; attempted sodomy; and sodomy. The offences of lewd and libidinous practices and indecent assault involved, inter alia, handling the complainers’ private parts, masturbating them, causing them to masturbate him, and oral penetration. The appellant was sentenced to 13 years’ imprisonment, which was not challenged on appeal. His seven grounds of appeal against conviction were all refused by this court (at paras 6, 12, 14–15, 18, 20–21, 24–25, and 29–30).

Ranges of sentence for such offences

[40] Aside from the decision in McKenna, the authorities appear to suggest that the appropriate ranges of sentence for sexual offences committed whilst in a position of trust and/or authority are as follows. For offences comprising historic charges of lewd and libidinous practices involving, for example, digital penetration or attempted sodomy, or offences involving indecent assault over a prolonged period of time, headline sentences of at least four years’ imprisonment (and possibly more) up to headline sentences in the region of nine years will be appropriate (S S K at para.24; Baillie at paras 22–24). In particular, the degree of abuse, including the nature and extent of any inappropriate penetration, will be relevant to sentence, as will the number of victims, the number of occasions on which the abuse occurred, and the length

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of the period over which it occurred (Baillie at para.17). The degree of harm, including the psychological harm, caused by the abuse is relevant. A further important consideration is the violation of the complainer’s physical and psychological integrity (at para.18). [41] For offences involving the rape of a complainer, or other penetrative sexual abuse of several complainers, in respect of whom the offender was in a position of trust or authority, headline sentences in the region of eight to ten years may be appropriate (McBrearty; George). The breach of trust involved, the duration of the offending, and the number of victims may, however, be such as to warrant a headline sentence in excess of ten years (Murray; Newman). Such cases would include, but are not limited to, the offender having committed the offences whilst being employed as a teacher, social worker, care worker, or his having held any other position of authority within an institutional and/or educational setting. The same considerations regarding the degree of physical and psychological harm and the violation of the complainer’s physical and psychological integrity apply in such cases. [42] We are reinforced in this view by considering recent sentencing statements from the High Court involving rape and other sexual abuse committed in institutional settings. Reference can, for example, be made to HM Advocate v Ian Samson (cumulo sentence of 14 years’ imprisonment imposed on the 72-year-old offender following his conviction of 22 offences involving the sexual abuse and rape of 12 children over a period of over 30 years at loci including a boys’ hostel, a children’s home, and his own shop where he employed children); and to HM Advocate v David Robertson (extended sentence of 25 years and four months, comprising a custodial term of 15 years and four months and an extension period of ten years imposed in respect of 25 charges of sexual offences committed against 16 children and vulnerable adults between 1974 and 2011 including three convictions for rape; the subsequent appeal against the sentence being refused by this court on 15 March 2016). The definitive guideline

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[43] As the Lord Justice General observed when delivering the opinion of the court in Scottish Power Generation Ltd v HM Advocate at para.35 the court has, on several occasions encouraged sentencers in appropriate cases to “have regard to” the current guidelines issued by the Sentencing Council of England and Wales with a view to providing a cross-check on the conclusion that otherwise might be reached, either instinctively or by way of a more structured process of reference to available Scottish precedent. In his submissions Mr Scott urged care when giving consideration to English guidelines; one could not just read across from England to Scotland, there were differences as between apparently similar offences and it could not be assumed that sentencing policy or sentencing objectives were the same. However, Mr Scott did not go the distance of saying that the definitive guideline was entirely irrelevant or that the advocate depute’s application steps of one and two of the definitive guideline to the facts of the present case had been wrong. We turn then to that exercise. [44] Step one is to determine the offence categories by reference to harm and to culpability. Agreeing with the advocate depute, we see the feature of intrusion into C M’s room as equivalent to uninvited entry into the victim’s and therefore together with the feature of the vulnerability of all the complainer[s] as bringing charge (7) into category 2 in respect of harm and the features of significant degree of planning and abuse of trust into category

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A in respect of culpability. Step two begins by noting the starting-point and category range which result from step one. For a category 2A offence the definitive guideline provides a starting-point of ten yearsâ&#x20AC;&#x2122; custody and a category range of nine to 13 years. Step two then allows for an upward or downward adjustment from the starting-point by reference to, on the one hand, aggravating factors and, on the other, mitigating factors. In our opinion the factors of specific targeting of a particularly vulnerable victim, ejaculation and the location of the offence are relevant to aggravation in the present case while, subject to what follows, the absence of relevant or recent convictions and previously good character can be seen as mitigating factors. [45] We are conscious, when carrying out such an exercise as is envisaged by the definitive guideline, of the danger of double-counting and in the present case giving weight to the aggravating factors of vulnerability and location would seem to have that result given the factors relied on as bringing the offence into category 2 in respect of harm. On the other hand, we are not persuaded in the circumstances of this case that absence of previous convictions and supposed previous good character weigh very heavily on the side of mitigation where the juryâ&#x20AC;&#x2122;s verdict indicates a prolonged history of previously undisclosed significant offending. [46] The definitive guideline involves a further seven steps but none look to be relevant for the purposes of arriving at what the guideline would indicate to be the appropriate sentence in respect of an offence involving one incident having the features libelled in charge (7). In the present case C M gave evidence of having been raped on four occasions. The appellant was of course also convicted of five statutory offences.

Decision

[47] The trial judge imposed a cumulo sentence in respect of the respondentâ&#x20AC;&#x2122;s conviction on the charges under s.5 of the 1976 Act, of the four charges under s.6 of the 1995 Act, and of the single charge of rape at common law. In cases where more than one statutory offence is libelled it has been held to be desirable that on conviction, rather than imposing a cumulo sentence, the court should impose a sentence on each of the charges (Seaton v Allan at p.31, the Lord Justice Clerk (Wheatley)). In Caringi v HM Advocate, it was observed by a Bench of five judges that whether the charges are statutory charges or common law charges, courts should be careful not to impose a cumulo sentence if there is any risk of problems occurring in a subsequent appeal (at p.228, the Lord Justice Clerk (Ross) delivering the opinion of the court). The most obvious sort of such problems is where convictions on some charges are quashed where convictions on other charges are not. That is not a situation which has arisen here. The task of this court then is to consider the sentence as imposed by the trial judge and to decide whether it is sustainable (Murray at para.32; see also McGill v HM Advocate, the Lord Justice Clerk (Carloway) at para.13). This involves the appellate court revisiting the sentencing exercise and determining what would have been appropriate and reasonable, taking into account all material factors (McGill). [48] As the trial judge observed in her sentencing remarks, the respondent committed an appalling series of offences involving the predatory sexual abuse of four vulnerable teenaged girls. The respondent was in a position of trust in relation to each complainer and the offences comprised a gross breach of that trust. Although the respondent had no analogous previous convictions, he has shown no remorse and continues to deny responsibility for the offences. The trial judge who saw and heard the four complainers and the respondent give

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evidence must be accorded due deference but, in light of the review of the domestic authorities, and in all the circumstances of the case, the court is bound to hold that the cumulo sentence of six years falls outside the range of sentences reasonably open to the trial judge and is unduly lenient. A cumulo sentence of ten years’ imprisonment would, in our opinion, be appropriate. [49] In arriving at the sentence of ten years’ imprisonment we have been guided by the precedents to which we have referred. We have found three of these to be of particular assistance. In McBrearty the appellant was in a similar position of care and trust as the respondent in the present case. The level of culpability might be said to have been a little higher in that there were two separate complainers speaking to rape on various occasions over a period of years in addition to other charges of indecency involving other complainers. That might point to a sentence of less than ten years in the present case. But against that there is the decision in George. There too the appellant was in a similar position of trust to that of the present respondent. Admittedly, he was convicted of 18 charges in respect of 11 complainers but at least eight of these charges were for relatively minor acts of physical violence. Overall, we would regard the level of culpability in George as having been no higher than that in the present case. There a sentence of ten years’ imprisonment was appealed without success. In Newman the appellant was once again in a similar position of care and trust. There were two charges of unnatural carnal connection with two complainers, each event occurring on a single occasion. In addition there were charges of indecency involving four other complainers. This would suggest a level of culpability very similar to that in the present case. A sentence of 13 years was imposed but not challenged on appeal. If the definitive guideline is had regard to as a check, a sentence of ten years’ imprisonment in the circumstances of the present case must be regarded as moderate, given the repeated incidents which were the subject of charge (7) and the other convictions. [50] We shall accordingly quash the sentence appealed against and substitute a sentence of ten years’ imprisonment, backdated to commence from 27 April 2016, being the date selected by the trial judge.

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A Appeals Against Conviction

2 December 2016

JOHN MURRAY COPOLO JOANNE MARY IRONSIDE against

Appellants

HER MAJESTY’S ADVOCATE

Respondent

[2016] HCJAC 119 Solemn procedure—Judge’s charge—Provocation—Attempted murder—Defence of self-defence—No reference to provocation in defence speech—Evidence by accused that he was initially struck by complainer—Whether failure of judge to give direction on provocation miscarriage of justice

Provocation—Attempted murder—Defence of self-defence—No reference to provocation in defence speech—Evidence by accused that he was initially struck by complainer—Whether failure of judge to give direction on provocation miscarriage of justice Verdict—Charge of assault and attempted murder by striking complainer with hammer in concert with another accused—Direction to jury that no corroboration of evidence that accused struck complainer—Accused convicted under deletion of averment of attempted murder—Whether consistent verdict The appellants were charged with assault and attempted murder by striking the complainer with a hammer and a piece of wood and pushing him. The First appellant was convicted of attempted murder only by striking him with the hammer. The second appellant was convicted in the same terms with the deletion of the averment of attempted murder. The first appellant had lodged a defence of self-defence and gave evidence that he was on crutches, and had been struck by the complainer with a bat, that the complainer then struck the second appellant with the bat, knocking her to the ground. He had then realised that the complainer was on his back holding a hammer and trying to hit him, there was a scuffle, he tried to get hold of the hammer and they fell to the ground, the second appellant helped to pull the complainer away and the complainer got up and turned towards her. At this point, the first appellant said, he had the hammer, got up and struck the complainer with it. He admitted that he had struck the complainer with the hammer four times, and said that he had done so out of fear of what the complainer would do to both appellants. No reference was made in the defence speech to the possibility of a verdict of assault under provocation, and the presiding judge said nothing about provocation in his charge to the jury. The first appellant appealed against his conviction on the ground that the trial judge had failed to mention provocation in his charge to the jury. The trial judge stated in his report to the court that in his view provocation did not arise on the appellant’s evidence, which he characterised as evidence of a calculated act of self-defence. The second appellant appealed on the ground that, as the jury were directed that there was no corroboration of the evidence that she had struck the complainer, and that she could be convicted only on the basis of concert, the verdict was inconsistent.

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Held (1) that the jury were entitled to reject the first appellant’s evidence of self-defence but to accept his account of the attack made on him, and thereafter to look at the matter afresh and accept that after having been struck by the complainer he had acquired the weapon and struck the complainer with it, and that in doing so his conduct fell within the definition of provocation (para.36), and that the difference between the violence which he accepted inflicting and the violence he suffered was not so great that the jury would have been bound to find it grossly disproportionate (para.37); and appeal allowed; and (2) that the verdict in respect of the second appellant was consistent with the jury being satisfied that she had struck the complainer in concert with the first appellant (para.41), and appeal refused. Cases referred to in the opinion of the court:

Brady v HM Advocate, 1986 S.C.C.R. 191; 1986 J.C. 68; 1986 S.L.T. 686 Cosgrove v HM Advocate, 1990 S.C.C.R. 358; 1990 J.C. 333; 1991 S.L.T. 25 Crawford v HM Advocate, 1950 J.C. 67; 1950 S.L.T. 279 Duffy v HM Advocate [2015] HCJAC 29; 2015 S.C.C.R. 205 Ferguson v HM Advocate [2008] HCJAC 71; 2009 S.C.C.R. 78; 2009 S.L.T. 67 Jones v HM Advocate, 1989 S.C.C.R. 726; 1990 J.C. 160; 1990 S.L.T. 517 Low v HM Advocate, 1993 S.C.C.R. 493; 1994 S.L.T. 277 R v Coutts [2006] UKHL 39; [2006] 1 W.L.R. 2154; [2006] 4 All E.R. 353 Shepherd v HM Advocate [2009] HCJAC 98; 2010 S.C.C.R. 55. John Murray Copolo and Joanne Mary Ironside were convicted in the terms described in the opinion of the court after trial in the High Court at Edinburgh in May 2016 and appealed to the High Court against conviction on the grounds referred to in the opinion of the court. The appeal was heard by Lord Menzies, Lord Bracadale and Lord Turnbull. For the first appellant: Crowe, instructed by Faculty Services Ltd, Edinburgh. For the second appellant: Moggach, instructed by Burns & McGregor, Solicitors, Aberdeen. For the respondent: Harper AD. On 2 December 2016 Lord Turnbull delivered the following opinion of the court. LORD TURNBULL Introduction

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[1] The appellants John Copolo, known as McIntosh and Joanne Mary Ironside, known as Mitchell, the first and second appellants respectively, were indicted for trial in the High Court at Edinburgh in March 2016. They each faced a charge of attempted murder in identical terms and the second appellant additionally faced a charge of attempting to pervert the course of justice. [2] The first appellant was convicted in the following terms: “On 20 July 2015 at Dill Road, Aberdeen you did assault Daniel Main and repeatedly strike him on his head and body with a hammer and pull him by his hair, all to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life and you did attempt to murder him.”

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Copolo v HM Advocate

The charge as presented to the jury contained further averments of striking the victim with a piece of wood, repeatedly pushing him on the body, punching and kicking him on the head and body and rifling through his pockets and robbing him of a cheque, medication and £20 of money. These averments were all deleted in the verdict returned. [3] The case as presented by the Crown was that the first appellant was responsible for an attack on the complainer with a hammer and that the second appellant was acting in concert with him. The second appellant was convicted in the same terms as the first but with the additional deletion in her case of the averment of attempt to murder. The second appellant was also convicted of the charge of attempting to pervert the course of justice.

The evidence for the Crown

[4] The trial judge summarised the evidence led at trial in his report to this court. He explained that the incident arose out of a dispute over drugs which had been obtained by the complainer from the second appellant, who was the partner of the first appellant. All three knew each other. The complainer was unhappy with the quality of the items supplied to him and he returned to the locus, which was near to where the two appellants lived, to remonstrate with the second appellant. He telephoned her in advance to say that he was coming to see them. All three met at Dill Road. At that time the first appellant was walking with the assistance of crutches. The incident which formed the basis of the charge then took place. There was a dispute on the evidence as to how it occurred. [5] The complainer’s evidence was that there was a confrontation which began with a heated argument involving a scuffle between the three. He explained that the second appellant was then ready to start fighting and was being aggressive. She made a dive at him to which he responded by pushing her back and also pushing the first appellant, causing him to fall to the ground. He explained that the second appellant then distracted him by taking his push-bike and making it look as if she was going to steal it. This diverted his attention from what the first appellant was doing and the next thing he knew was that he was lying on the ground with the first appellant standing over him with a big hammer in his hand hitting him on the head. He thought he was hit around four times on the head and also on the body. He did not know how many times he was hit altogether. The incident came to an end when the second appellant said, “that’s enough” and the two walked away together. The second appellant threw the complainer’s mobile phone back towards him as they left. [6] The complainer denied the suggestions made to him in crossexamination that he had armed himself with a stick or a baseball bat and that he had struck the first appellant with a hammer. He denied that he had been the one in possession of a hammer and that in the course of the struggle the first appellant had taken it from him and struck him with it. [7] The only other evidence led by the Crown concerning the circumstances of the offence came from a lady, Kelly Duthie, and her daughter, Alannah, each of whom had a view of some of what took place from the window of a nearby property. Kelly Duthie saw a lady with blood on her face standing close to a man on the ground and another man who was standing over the person on the ground hitting him with blows directed towards his face and head with something that looked like a hammer. She thought that he hit him more than ten times. She telephoned the police and during the course of that conversation was able to recognise the first and second appellants as the two involved with

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the man on the ground. In evidence she said that the second appellant was not doing anything at the time. [8] In her evidence Alannah Duthie testified that she saw the second appellant strike the complainer with a piece of wood and saw the first appellant hitting him with a hammer. [9] The medical evidence demonstrated that when taken to the intensive care unit of Aberdeen Royal Infirmary the complainer was found to have six or more semi-circular injuries to his head consistent with having been hit by a hammer, as well as injuries to his wrist, forearm, shoulder and chest. The blows to his head had resulted in a depressed fracture to the skull pushing down towards the brain which evidenced the use of considerable force in administering the blows. The defence evidence

[10] The first appellant had intimated a special defence of self-defence prior to the commencement of the trial and gave evidence on his own behalf. The second appellant did not. [11] The first appellantâ&#x20AC;&#x2122;s evidence was summarised for us by the trial judge at pp.10 and 11 of his report. His evidence was that he had been told by the second appellant that the complainer had telephoned her calling her names and accusing her of ripping him off. He hoped to avoid meeting with the complainer by going elsewhere but as he and the second appellant left their home the complainer was waiting for them at the end of the street. The first appellantâ&#x20AC;&#x2122;s evidence was that he was not armed with anything. On meeting up with the complainer he became argumentative. The complainer took out a baseball style bat and hit him twice on the head with it. He was unable to escape as he was on crutches at the time. The complainer then struck the second appellant on the head with the same bat causing her to collapse to the ground. The next thing he knew the complainer was on his back holding a hammer and trying to hit him. There was then a scuffle in the course of which the first appellant tried to get the hammer from the complainer and they fell to the ground each holding onto it. He shouted to the second appellant to help whereupon she came over and helped to pull the complainer away. The complainer then got up and turned towards the second appellant. At this point the first appellant had hold of the hammer. He pulled himself up and hit the complainer with it. It all happened really quickly and the complainer fell to the ground. His evidence was that the only time he was standing above him was after he had hit him. The first appellant explained that he struck the complainer out of fear as to what he would do to them with the hammer. He admitted hitting the complainer four times with the hammer and explained that Ms Duthie and her daughter had not seen the start of the events. [12] In his charge the trial judge gave directions on self-defence and on concert, none of which were criticised. The issue of provocation was not mentioned in any of the closing speeches and no directions on the subject were given. Leave to appeal

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[13] Leave to appeal against conviction was granted in respect of the first appellant on a single ground which submitted that the trial judge had misdirected the jury by failing to give directions on the issue of provocation. In respect of the second appellant leave to appeal was granted on a single ground which submitted that in light of the verdict returned it was clear that the jury had failed to follow the directions which they had been given by

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the trial judge and had returned a verdict which they were not entitled to return.

Submissions First appellant

[14] On behalf of the first appellant, Mr Crowe, who had appeared for him at trial, explained that he had made a tactical decision not to mention the issue of provocation during his speech to the jury. However, he submitted that the issue did arise because on any view of the evidence the requirements for provocation had been met. He submitted that a legal direction which was necessary in fairness to an accused required to be given by a trial judge whether the issue was raised by the defence or not. It was only if the court was able to conclude that no reasonable jury could, on the evidence, reach the view that there was provocation that directions on this issue could be omitted. He referred to the decisions of Ferguson v HM Advocate and Duffy v HM Advocate. [15] Mr Crowe drew our attention to p.12 of the trial judge’s report where he explained that he made a deliberate decision not to give any directions on provocation, as in his view the issue did not arise on the evidence. He explained the matter this way: “In the present case Mr Copolo’s evidence was that he struck the complainer out of fear of what the complainer would do to them with the hammer if he just let him go. He could not run away because of his leg. That reflected the special defence of self-defence lodged by Mr Copolo. That is evidence of a calculated act of self-defence. But it is not evidence which could support a plea of provocation.” [16] Mr Crowe submitted that the trial judge had been wrong to conclude that the evidence could not support a plea of provocation. The conditions which must exist to permit a plea of provocation to be sustained were: that the accused must have been attacked physically or believed he was about to be attacked and reacted to that; he must have lost his temper and self-control immediately; he must have retaliated instantly and in hot blood; and the violence used in retaliation must be proportionate to the violence faced. [17] Mr Crowe submitted that on the appellant’s evidence, even if selfdefence was not established to the jury’s satisfaction, they would still have been entitled to conclude that each of the requisite conditions for the plea of provocation was present. He reminded us that this was not a case of an unprovoked attack. On the contrary, it was accepted that the complainer went to the locus to remonstrate with the appellants. He submitted that loss of control was a matter which was capable of being inferred from the evidence which established that the first appellant struck the complainer about the head with a hammer and that matters of loss of control, acting in hot blood and proportionate response were not matters which should be weighed too finely. In these circumstances he submitted that the trial judge had a responsibility to direct the jury on the question of provocation and to leave them with the option, if satisfied that provocation had been established, of finding the appellant guilty of assault, with appropriate aggravations, rather than an attempted murder.

Second appellant

[18] The submission presented on behalf of the second appellant by Mr Moggach was short and well focused. He drew our attention to pp.41 and 42 of the trial judge’s charge in which it had been made plain that there was

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no corroboration of the evidence given by Alannah Duthie concerning a direct assault by the second appellant on the complainer. Accordingly, as the trial judge had said, the only basis upon which a conviction could be returned against her was if the jury came to be satisfied that she was acting in concert with the first appellant. He drew our attention to p.42 of the transcript of the charge where the trial judge said the following: “Now the only . . . the evidence from Alannah of Joanne Mitchell striking the accused, as I say, is not enough to convict her of that attack because it’s not corroborated but it does provide one piece of evidence that she participated in the attack as a whole. If you don’t accept that evidence from Alannah as credible and reliable on that point, then you go no further. You acquit her. “If you do accept Alannah’s evidence on that point as credible or reliable, then you’re looking for something else, some evidence from another source to corroborate or confirm the Crown case that she was involved in the attack and should be found guilty on the basis of concert.”

[19] Mr Moggach submitted that the only evidence given by Alannah Duthie which was relevant for these purposes was that she had seen the second appellant strike the complainer with a piece of wood. In finding the second appellant guilty the jury deleted the averment of striking with a piece of wood. Accordingly, they must have rejected the witness’s evidence on this matter and in compliance with the direction given ought then to have acquitted the second appellant. Crown

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[20] The advocate depute took no issue with the basis of the plea of provocation as described by Mr Crowe or with the authorities relied upon by him. She submitted that in the present case the two requirements of loss of control and an absence of grossly disproportionate violence could not be met. She relied upon the trial judge’s description of the first appellant’s conduct as being a calculated act of self-defence, although she did accept that on one view it would be appropriate to describe conduct such as striking another over the head with a hammer as reflecting a loss of control. The advocate depute relied upon the extent of the complainer’s injuries as described by the trial judge in his report as set against the absence of any injuries on the part of the first appellant and submitted that this comparison demonstrated that whatever else the first appellant had acted in a grossly disproportionate manner. In all of these circumstances she submitted that the trial judge had been correct to conclude that provocation did not arise on the evidence led and he had therefore been correct to omit the directions under discussion. [21] In relation to the second appellant, the advocate depute submitted that there had been a sufficient body of evidence to entitle the jury to conclude that she had been acting in concert with the first appellant, even putting aside the evidence of Alannah Duthie. The complainer’s evidence would establish that the appellants were together when they met him and that she had been the first to engage in a confrontation. It would also establish that she had distracted him in order to permit the first appellant to strike him. On the evidence of Kelly Duthie the second appellant was seen to be standing close to where the complainer was lying on the ground as he was being struck. Whilst her initial evidence in court had been that the second appellant did not do anything the advocate depute drew our attention to p.6 of the trial judge’s report concerning this appellant where he set out the evidence given by Ms

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Duthie. He there explained that when she was referred to the tape-recording of the 999 call which she had made to the police she spoke of both appellants assaulting someone. The advocate depute reminded us that Ms Duthie also described each of the two complainers walking away together back in the direction of their flat as the first appellant was putting a hammer up the sleeve of the top which he was wearing. She also submitted that the second appellant could be seen to have been the one who controlled the length of the attack by bringing it to an end when she told the first appellant, “that’s enough”. [22] In these circumstances the advocate depute submitted that the jury had been entitled to return the verdict which they did, although she made no submissions concerning the trial judge’s direction relied upon by Mr Moggach.

Discussion

[23] In MacDonald on the Criminal Law of Scotland (5th edn), p.94 the defence (as he calls it) of provocation is stated to be of this sort: “Being agitated and excited, and alarmed by violence, I lost control over myself, and took life, when my presence of mind had left me, and without thought of what I was doing.” [24] That definition has been approved of on a number of more recent occasions, for example Cosgrove v HM Advocate and Low v HM Advocate. In the context of a charge of attempted murder the effect of provocation, if established, is to require a verdict of guilty of assault to severe injury under provocation—Brady v HM Advocate. [25] In the present case no dispute arose as to any of these matters. In light of this the parties were also agreed that the practical effect was that there were four components of the plea of provocation which required to be present before it could be given effect to: (1) an accused must have been attacked physically, or believed he was about to be attacked and he must have reacted to that; (2) he must have lost his temper and self-control as a consequence; (3) he must have retaliated instantly in hot blood, or in other words without having time to think; (4) there must be some equivalence between the retaliation and the provocation so that the violence used by the accused is not grossly disproportionate to the violence constituting the provocation. [26] In the present case the Crown accepted that, on the defence evidence, the jury would have been entitled to conclude that the complainer initiated the attack. The contention was that there was no evidence to support a finding that the first appellant had lost self-control as a consequence of what the complainer did to him and that the first appellant’s conduct, even on his own account of matters, was grossly disproportionate to any violence which the jury might conclude had been displayed towards him. The advocate depute declined to accept the suggestion that if self-defence had been rejected by the jury they would still have been entitled to look at the matter afresh and infer loss of control. She sought to support her position by relying on the view expressed by the trial judge in his report that the account given by the first appellant was evidence of a calculated act of self-defence. [27] In the case of Ferguson v HM Advocate the court examined the scope of a trial judge’s duty in charging a jury to explain the possible alternative verdicts. The court adopted the approach of the House of Lords in R v Coutts.

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In doing so the court drew attention to the observations of Lord Bingham of Cornhill as reported at para.12 of that decision: “In any criminal prosecution for a serious offence there is an important public interest in the outcome: R v Fairbanks [1986] 1 W.L.R. 1202, 1206. The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged. The human instrument relied on to achieve this objective in cases of serious crime is of course the jury. But to achieve it in some cases the jury must be alerted to the options open to it. This is not ultimately the responsibility of the prosecutor, important though his role as a minister of justice undoubtedly is. Nor is it the responsibility of defence counsel, whose proper professional concern is to serve what he and his client judge to be the best interests of the client. It is the ultimate responsibility of the trial judge.” The court also drew attention to what Lord Bingham went on to say at para.23: “The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. . . .” [28] In the case of Ferguson the court concluded that while, on the view taken by the jury, the stabbing was undoubtedly a deliberate attack, that in itself did not necessarily give rise to the inference of murderous intent and nothing else. In those circumstances the court concluded that a direction should have been given on the alternative verdict of culpable homicide. [29] In the present case the first appellant’s position was one of self-defence. However, it has often been observed that the facts relied upon to support a plea of self-defence usually contain a strong element of provocation, and the lesser plea may succeed where the greater fails—see for example the opinion of Lord Justice-General Cooper in Crawford v HM Advocate and the opinion of Lord Grieve in Jones v HM Advocate. Although not referred to at the hearing before us, we have found it helpful to take account of the decision of the court in Shepherd v HM Advocate in which the trial judge’s decision not to give directions on provocation resulted in a successful appeal against conviction. In that case the appellant was charged with murder and gave evidence in support of his special defence of self-defence. The deceased was killed in the gent’s toilet of a bar in Glasgow as a result of sustaining ten stab wounds to various parts of his body. The appellant had no injuries. Whilst the issue of provocation was raised in defence counsel’s speech the trial judge directed the jury that provocation was not available on the evidence. [30] In Shepherd the Crown’s contention was that the evidence demonstrated that the appellant had left the public house for the purpose of purchasing a knife which he then returned to the premises with, having placed the knife in the waistband of his trousers. CCTV footage showed that after his return he followed the deceased into the gent’s toilets and it was contended that he there used the knife he had obtained to deliberately stab the deceased repeatedly.

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The appellant’s evidence was that he had left the public house to purchase some tent pegs in advance of a camping trip and that when he returned to the public house he had gone into the toilet area without knowing that the deceased was there. Without warning the deceased came up behind him in the toilet area, put his hand around the appellant’s throat and swung at him with a knife. The appellant explained that there was then a struggle during which they fell to the floor with each of them trying to retrieve the knife which had fallen on to the ground. The appellant gave evidence that he managed to come across the knife with his free hand and jabbed with it across his shoulder at the deceased who was still on the floor behind him. The deceased then came over the top of him so that the two were lying on their sides face-to-face and the appellant was again able to lash out a few more times with the knife striking the deceased in the back. After one of such blows the deceased’s body loosened and the appellant was able to get up and leave. [31] The trial judge in Shepherd described the appellant’s evidence as being an account of a desperate attempt to protect himself in which both parties were engaged in a constant struggle, most of which took place on the toilet floor. He explained that if that account was sufficient to raise a reasonable doubt in the minds of the jurors as to the appellant’s guilt they would have acquitted him but that he did not see how, other than by resorting to speculation, they could identify a different set of facts which would establish that the appellant, rather than defending himself, had been acting under provocation. [32] In giving its decision, at para.18, the court explained that the jury were not necessarily bound to accept that the appellant’s actings as described by him fell to be categorised as self-defence. They went on to say the following: “In our view, they would have been entitled to conclude, as a matter of reasonable inference, not speculation, that, having retrieved the knife, the appellant proceeded to use it to stab the now-deceased in the heat of the moment having lost control of himself.” [33] Having referred to the requirements for the plea of provocation as given by MacDonald the court went on to say the following: “We consider that the jury were at liberty to select from the appellant’s evidence, those parts that they could accept and to reject other parts of it. To the extent that it was specifically represented to the jury by the appellant that he had acted in self-defence, the jury were at liberty to reject that. However, they were also at liberty to accept the appellants account of the attack made upon him and of what he did thereafter as a fact. Upon that basis, it appears to us that the jury would have been entitled reasonably to infer that the appellant’s actions fell within the graphic description given by MacDonald.” Having so concluded, the court held that the trial judge had misdirected the jury by withdrawing the issue of provocation from them. [34] The first appellant also relied upon the case of Duffy v HM Advocate in which the appellant was charged with assault to severe injury, permanent disfigurement and danger of life by stabbing the complainer with a knife. The case of Duffy concerned an incident in which the appellant and the complainer each began fighting in the street, having been asked to leave licensed premises. The only evidence as to what occurred during the course of the fight came from the complainer and from CCTV footage of the incident. The appellant did not give evidence but had intimated a special defence of self-defence. No mention was made of provocation in closing speeches, nor by the presiding

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sheriff. In his report the sheriff explained that he did not do so because no such direction had been sought and for him to have done so would have been to invite the jury to consider an issue not put to them upon which they had not had any submissions. He also expressed doubts as to whether the evidence was capable of supporting the four qualifying circumstances of provocation. [35] The court in Duffy reiterated the statement that the judge’s function when charging the jury is not fenced by the way the case is presented by both or all parties. It explained that it is for the judge to give the jury such directions in law as were necessary for their guidance on a reasonable view of the evidence (para.21). The court then stated, at para.22, that: “Applying the approach set out in Ferguson, it is our opinion that only if a court were able to conclude that no reasonable jury could, on the evidence, reach the view that there was provocation, should directions on provocation be omitted.” In Duffy the only issue which concerned the court was gross disproportionality. It was satisfied that there was evidence which, if accepted, could satisfy the other three requirements of provocation. Given the absence of evidence from the accused in that case it would seem that, as in Shepherd, the court envisaged the jury proceeding on the basis of inference, particularly in addressing the questions of whether the accused lost his self-control and acted in hot blood. [36] Applying these considerations to the circumstances of the present case, we consider that the jury were at liberty to select from the appellant’s evidence those parts that they could accept and to reject other parts of it. We consider that the jury were at liberty to reject his account of self-defence but were also entitled to accept the appellant’s account of the attack made upon him and of what he did thereafter as a fact. Whilst the trial judge categorised the appellant’s evidence as a calculated act of self-defence, we do not consider that the jury were bound to reach the same conclusion. In our view, if the jury rejected the appellant’s evidence of acting in self-defence, which they must have done, they would have been entitled to look at the matter afresh. In so doing the jury would have been entitled to accept the appellant’s account of being struck twice on the head with a bat and of thereafter being attacked by the complainer in possession of a hammer. They would have been entitled to accept that, having acquired the weapon, the appellant struck the complainer with it and they would have been entitled reasonably to infer that in doing so his conduct fell within the description given by MacDonald. [37] Although there was differing evidence as to the number of blows struck by the appellant with the hammer, we do not consider that the difference between the violence which the appellant accepted inflicting and the level of violence which he described being subjected to was so great that the jury would have been bound to have concluded that his response was grossly disproportionate. [38] In the whole circumstances we cannot conclude that no reasonable jury, on the evidence available, could have reached the view that the appellant was acting under provocation. In these circumstances we accept the submission made on the appellant’s behalf that the trial judge ought to have given directions on provocation and left open to the jury the opportunity of returning a reduced verdict on that basis. The advocate depute did not suggest that if we were to be of this view it could nevertheless be said that no miscarriage of justice had occurred. [39] We are satisfied in the circumstances of the present case that there was a misdirection by omission and that the misdirection did constitute a

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miscarriage of justice. Subject to what we say below, we are minded to quash the first appellant’s conviction for attempted murder. [40] In relation to the second appellant, we shall proceed upon the basis that the only direct evidence of her participating in an assault came from the witness Alannah Duthie. We accept that the advocate depute was correct to draw our attention to what the trial judge said at p.6 of his report concerning the content of the recording of the 999 call made by this witness’s mother. It is not though sufficiently clear what the content of this recording was, nor what Kelly Duthie’s reaction was on being referred to it. As noted above, the trial judge directed the jury in relation to the second appellant that the only direct evidence of her assaulting the complainer came from Alannah Duthie. [41] We are not persuaded though that Mr Moggach’s submission on the inference to be drawn from the terms of the verdict returned is sound. In our opinion the deletion can be read as meaning no more than that the jury were not persuaded that the second appellant struck the complainer with any, or any particular, weapon. The verdict remains consistent with the jury being satisfied that the second appellant struck the complainer and was acting in concert with the first appellant when she did so. We are not persuaded that the single point advanced is sufficient to allow us to conclude that the jury ignored the clear directions which the trial judge gave them at p.42 of his charge, as quoted in para.1[8] above.

Disposal

[42] Having reached the conclusions which we have identified we turn to the issue of how to dispose of this appeal. So far as the first appellant is concerned there appear to us to be two options: first, that the conviction should be quashed and authority granted to the Crown to bring a fresh prosecution; and second that the first appellant’s conviction should be quashed and a conviction for assault to severe injury, permanent disfigurement, permanent impairment and to the danger of life should be substituted for it. No doubt both parties will wish an opportunity to consider which course they would commend to the court. It may also be that the submissions presented in relation to how to dispose of the appeal for the first appellant impact upon the second appellant. It might, for example, appear curious that the conviction in respect of the first appellant should be quashed and yet the conviction in relation to the second appellant, of acting in concert with him, should remain in place.Accordingly following the issuing of this opinion to parties in accordance with para.3 of Practice Note (No 2 of 2014), the appeal will be put out for advising in order that parties may indicate to the court what course they wish to follow.

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A Bills for Criminal Letters

9 December 2016

JOHN and LINDA STEWART ALAN and AILEEN CONVY

Complainers

against B

WILLIAM PAYNE

Respondent

MATTHEW and JACQUELINE McQUADE YVONNE REILLY

Complainers

against HENRY CLARKE C

Respondent [2016] HCJAC 122

Private prosecution—Dangerous driving causing death—Decision by Lord Advocate that insufficient evidence for conviction—Whether court should allow private prosecution by relatives Road Traffic—Dangerous driving—Involuntary driving—Driver suffering blackout—Whether criminally responsible D

The respondents were the drivers of vehicles who suffered sudden blackouts as a result of which their vehicles went out of control and killed persons. The Lord Advocate, having examined evidence as to the respondents’ medical histories, concluded that there was insufficient evidence to prove that they knew of the likelihood of blacking out as they did and took no proceedings. Relatives of the deceased presented bills for criminal letters for breaches of ss.1,1A and 2 of the Road Traffic Act 1988 or alternatively at common law for culpable and recklessly causing death by dangerous driving. They also sought to charge the respondents with a number of mainly statutory offences connected with failure to disclose their medical history when applying for employment or driving licences. Held (1) that a person who falls unconscious at the wheel is, on the face of it, no longer driving, that if he was aware that he had a medical condition liable to render him unconscious while driving he might be precluded from relying on it as a basis for maintaining that his acts were involuntary, but that he would need to know that he had such a condition, that such knowledge need not come from the diagnosis of a condition, and there was no reason why a driver’s general medical history and past experience might not be sufficient to create the necessary knowledge in the absence of a diagnosis (para.83); and (2) (i) that the complainers had title and interest to prosecute for the dangerous driving offences, as they had a substantial and peculiar interest in their subject-matter arising out of injuries which they beyond all others had suffered, but that the remaining charges were charges of a general and public nature in respect of which they had no title and interest (para.81); (ii) that the circumstances in which permission is given for a private prosecution require to be highly exceptional (para.86); (iii) that the Crown correctly considered that the state of knowledge of each respondent on the day in question had to be assessed in the context of all the information known to each of them, including their medical histories and any inferences which might reasonably be drawn from them, and that the Crown had not made any error of law (para.84); 56

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Stewart v Payne

(iv) that the test of exceptionality would require the complainers to show that the Lord Advocate’s decision had to be viewed as an egregious or outrageous failure in the exercise of his public duty, and that he had acted oppressively, capriciously or wantonly, and that it was quite difficult to conceive of circumstances in which the court would pass a bill where he had examined and investigated the circumstances and concluded as a matter of informed judgment that the whole tenor and weight of the evidence did not justify prosecution (para.91); and (v) that even if the court had disagreed with the Crown’s assessment, or the weight attributed to individual pieces of evidence, the court would be unable to conclude that the Lord Advocate’s decision was so extravagantly wrong as to amount to special circumstances justifying the passing of the bill in either case (para.101); and bills refused. J & P Coats Ltd v Brown (1909) 6 Adam 19 considered.

Cases referred to in the opinion of the court: Alexander v Dunn [2016] HCJAC 3; 2016 S.C.C.R. 305; 2016 J.C. 125; 2016 S.L.T. 337 C v Forsyth, 1995 S.C.C.R. 553; 1995 S.L.T. 905 HM Advocate v Harris, 1993 S.C.C.R. 559; 1993 J.C. 150; 1993 S.L.T. 963 J & P Coats v Brown (1909) 6 Adam 19; 1909 S.C.(J) 29; (1909) 1 S.L.T. 432 McBain v Crichton, 1961 J.C. 25; 1961 S.L.T. 209 Meehan v Inglis, 1975 J.C. 9; 1974 S.L.T. (Notes) 61 Montgomery v HM Advocate, 2000 S.C.C.R. 1044; 2001 S.C. (P.C.) 1; 2001 S.L.T. 37 Mowbray v Crowe, 1993 S.C.C.R. 730; 1993 J.C. 212; 1994 S.L.T. 445 R v Marison [1997] R.T.R. 457 Stuurman v HM Advocate, 1980 J.C. 111; 1980 S.L.T. (Notes) 95 X v Sweeney and Ors, 1982 S.C.C.R. 161; 1982 J.C. 70; 1983 S.L.T. 48 (sub nom. H v Sweeney). Two separate bills for criminal letters on charges of causing death by dangerous driving were brought by the complainers. The bills were heard together by the Lord Justice Clerk (Dorrian), Lord Menzies and Lord Drummond Young. For the Lord Advocate: The Lord Advocate (Wolffe QC), J Farquharson. For the first complainers: Bain QC, Tanner, instructed by Digby Brown, Solicitors, Glasgow. For the second complainers: Bain QC, Forbes, Gildeas, instructed by Paterson Bell, Solicitors, Edinburgh. For the first respondent: The Dean of Faculty (Jackson QC), Caffrey, Solicitor advocate, instructed by Fitzpatrick & Co, Solicitors, Glasgow. For the second respondent: Scott QC, Guarino, Solicitor advocates, instructed by The Glasgow Law Practice, Solicitors, Glasgow.

On 9 December 2016 the Lord Justice Clerk delivered the following opinion of the court. LORD JUSTICE CLERK Background

[1] These are two bills for criminal letters which were heard together. For the sake of convenience they will be referred to under the name of the respondent in each case.

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William Payne

[2] On 17 December 2010 in North Hanover Street, Glasgow, William Payne was driving a Range Rover vehicle, registered number H18 HEX when he suffered a vasovagal episode causing him temporarily to lose consciousness and rendering him unable to control the movement or direction of the vehicle. The vehicle mounted the pavement and struck Mhairi Convy and Laura Stewart, causing them injuries from which they died. A further pedestrian, Mark Hopwood, was injured. In March 2012 the Crown intimated to the complainers its decision to take no criminal proceedings against the respondent in respect of s.1 of the Road Traffic Act 1988. The basis upon which the Crown took that decision was that there was insufficient evidence in law to justify such proceedings. In publicly confirming that decision the Crown stated that: “In order to bring a criminal prosecution the Crown would need to prove that the driver knew that to drive on the day of the incident was to do so in the face of a known and obvious danger—that he was liable to lose consciousness while driving that morning.

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“Following consideration of all the evidence Crown counsel has concluded that the Crown cannot prove this and as a result has instructed no proceedings.” The decision was not communicated to the respondent. [3] In January 2016 a bill for criminal letters was presented on behalf of the parents of each of the deceased seeking authority to prosecute the respondent in terms of ss.1, 1A and 2 of the Road Traffic Act 1988 or alternatively at common law for culpably and recklessly driving the vehicle, causing the deaths and injuring Mark Hopwood. [4] The complainers allege that on the date of the accident the respondent was driving: “[I]n the knowledge that for the period between 25 December 2007 and 17 December 2010, both dates inclusive, he suffered from unexplained dizziness and multiple episodes of loss of consciousness (‘blackouts’) without provocation, warning or prodrome and consequently had a medical condition that made it unsafe for him to drive.” [5] The basis upon which they advance the assertions in the charge will be apparent from the submissions recorded below, but it essentially lies in averments as to the respondent’s medical history involving prior instances of loss of consciousness, his failure to seek advice about driving or to disclose his history to DVLA, the contents of a police interview and the inferences which, according to the complainers, may be drawn from this evidence as to the state of his knowledge about his condition. The complainers also seek authority to bring two further charges, one in terms of s.174(1)(a) of the 1988 Act in respect of knowingly making false statements for the purpose of obtaining a licence and a further charge under s.94(3) of that Act for failing to notify the Secretary of State in writing of a relevant disability. [6] The complainers aver that there is a sufficiency of evidence which would entitle a conviction to be returned on the charges set out, that the evidence is of apparently sufficient strength to demonstrate reasonable prospects of conviction, and that there are special circumstances existing such as to warrant the granting of the bill. They further aver that the Crown has erred in its analysis of the evidential requirements for the statutory offence of causing death by dangerous driving.

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[7] The complainers assert title and interest in respect of all of the charges. The respondent concedes title and interest in relation to the primary charge only. He asserts that there is insufficient evidence to justify proceedings, and that in any event there are no special circumstances to justify passing the bill. Furthermore, it would be oppressive and a breach of the respondent’s art.6 rights to do so having regard to: (a) excessive delay in proceeding; (b) prejudicial publicity; and (c) oppressive actings by the complainers. [8] The Lord Advocate has refused his concurrence to the bill. He disputes title and interest in respect of the second and third charges only. He asserts that there is insufficient evidence to establish beyond reasonable doubt any of the charges set out in the bill and that esto such a sufficiency exists there are no special circumstances justifying passing of the bill.

Harry Clarke

[9] On the afternoon of 22 December 2014, John Sweeney, Lorraine Sweeney, Erin McQuade, Stephanie Tait, Gillian Ewing and Jacqueline Morton were all pedestrians on Queen Street, Glasgow, when they were struck and killed by a Glasgow City Council bin lorry driven in the course of his employment by the respondent. The respondent had lost consciousness, as a result of which the lorry mounted the pavement and hit the pedestrians. A further 15 pedestrians were injured as well as two members of the lorry crew. [10] On 25 February 2015 the Crown Office and Procurator Fiscal Service issued a public statement renouncing the right to prosecute the respondent. The reasons were subsequently elaborated on in a statement posted on the Crown Office website which stated: “In order to prove death by dangerous driving, the Crown requires to prove that the driving fell far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous. “As the driver was unconscious at the time he was not in control of the vehicle and did not have the necessary criminal intention, unless it could be proved that it was foreseeable that he would lose consciousness whilst driving that day. In the words of the statute (the Road Traffic Act 1988), regard should be had to whether he was aware or could be expected to be aware that he had an ongoing condition which rendered it unsafe to drive that day.

“Crown counsel considered that there was insufficient evidence that it was foreseeable that he would lose consciousness whilst driving that day.” [11] On 5 January 2016 a bill for criminal letters was raised in the name of the relatives of Erin McQuade, John Sweeney and Lorraine Sweeney. The bill seeks authority to prosecute the respondent on a charge under ss.1, 1A and 2 of the Road Traffic Act 1988 or alternatively for the common law offence of culpably and recklessly driving the vehicle on the date in question and causing the deaths of the pedestrians. The complainers assert that the respondent drove: “[D]angerously in the knowledge that for the period between 30 June 1976 and 22 December 2014, both dates inclusive, he suffered from dizziness, vertigo, vasovagal attacks, blackouts and in particular had suffered a loss of consciousness behind the wheel of a bus on 7 April 2010 without warning or provocation and consequently had a medical condition that made it unsafe for him to drive.”

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[12] The basis upon which they advance the assertions in the charge is set out below, but it essentially lies in averments as to the respondentâ&#x20AC;&#x2122;s medical history, his failure to disclose that history in job applications and to DVLA, his alleged misrepresentations as to that history, his post-collision actings and what, according to the complainers, may be inferred from this evidence as to the state of his knowledge about his condition. The complainers also seek authority to bring further charges against the respondent, namely: six charges of contravening s.174(1)(a) of the 1988 Act (in respect of statements made on separate occasions, two of them occurring after the fatal collision); three charges of obtaining employment or promotion by fraud; and a final charge (11) under s.2 of the 1988 Act, alternatively of culpable and reckless driving, on 20 September 2015. [13] The complainers aver that there is a sufficiency of evidence which would entitle a conviction to be returned on the charges set out, that the evidence is of apparently sufficient strength to demonstrate reasonable prospects of conviction, and that there are special circumstances existing such as to warrant the granting of the bill. They further aver that the Crown has erred in its analysis of the evidential requirements for the statutory offence of causing death by dangerous driving. [14] The complainers make averments in relation to title and interest in respect of all of these charges. The respondent concedes title and interest in relation to the primary charge but disputes title and interest in relation the remainder. The relevance of charges post-dating the fatal collision is disputed. It is averred that in any event charge (11) is the subject of live proceedings at the instance of the Crown. The respondent asserts that there is insufficient evidence to justify proceedings, and that in any event there are no special circumstances to justify the passing of the bill. Furthermore, he avers that it would be oppressive to pass the bill having regard to: (a) excessive delay in taking proceedings; (b) prejudicial publicity; and (c) the complainersâ&#x20AC;&#x2122; involvement in precognition of the respondent during the FAI, in disregard of his privilege against self-incrimination. They are thus personally barred from proceeding against him. [15] The Lord Advocate has refused his concurrence to the bill. He disputes title and interest in respect of the second and third charges only, and echoes in all respects the pleas of the respondent in relation to charges (9), (10) and (11). The Lord Advocate maintains that there is insufficient evidence to establish beyond reasonable doubt any of the charges set out in the bill and that esto such a sufficiency exists there are no special circumstances justifying passing of the bill. Submissions

[16] In accordance with custom in cases of this kind the court heard submissions first from the Lord Advocate. It is clear from the authorities that the accepted procedure in applications of this sort is that the role of the Crown is to explain for the benefit of the court the reasons for refusing to grant concurrence to the bill. Lord Advocate Title and interest

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[17] To bring a private prosecution an individual must show a wrong personal to themselves, from which they have suffered injury of a substantial nature beyond all others, giving them a special and peculiar interest in bringing proceedings. A wrong of a general and public nature was not sufficient. Title

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Stewart v Payne

and interest was conceded in respect of the first charge in each bill, or the alternative charge under that heading. However the remaining charges were statutory offences of a general and public nature which would not justify private prosecution. In the case of Clarke, three of the charges post-dated the offence for which the complainers have title and interest. In relation to the eleventh charge, the Crown had raised proceedings rendering private prosecution incompetent. There is no authority that evidential charges for which a party would not otherwise have title and interest may competently be included in a bill for criminal letters for that reason alone. Evidence relevant to proof of the primary charge may be led, even though tending to show commission of another crime not charged. Any issue of fair notice is met by the averments set out in the bill or could be met by means of a common law docquet.

Sufficiency of evidence

[18] The complainers would require to lead sufficient admissible, corroborated, credible and reliable evidence such as might reasonably be expected to establish the charges beyond a reasonable doubt. A person was to be regarded as â&#x20AC;&#x153;drivingâ&#x20AC;? if he or she was in a substantial and voluntary sense controlling the movement and direction of the vehicle: involuntary actions could not form the basis of a conviction. A person who was unconscious could not be said to be acting voluntarily. However a driver who knew his or her medical condition, whether as a result of advice or experience, and who foresaw or ought to foresee that he may lose consciousness, may be precluded from relying on his medical condition. In those circumstances any act of driving while unconscious would become a voluntary act (Alexander v Dunn). [19] Culpable and reckless conduct involved exposing persons to a significant risk to life or health. Reckless conduct was criminal if there was danger to the lieges, either foreseeable or actual, or if the conduct had caused actual injury but a high degree of recklessness was needed going beyond carelessness or negligence. What was required was an utter disregard of the consequences of his conduct, with total indifference to the safety of the public (HM Advocate v Harris at p.564Aâ&#x20AC;&#x201C;B). The judicial test for reckless driving in terms of the former s.2 of the Road Traffic Act 1972 was that driving: (a) fell far below the standard expected of competent and careful driving; and (b) occurred in the face of obvious and material dangers which were or should have been observed, appreciated and guarded against, or in circumstances which showed a complete disregard for any potential dangers which might result from the way in which the vehicle was being driven. Recklessness was to be determined on an objective basis. [20] It would be necessary to show that the respondent knew, or ought to have known, that he might lose consciousness at the wheel without warning and that driving on the day of the incident carried an obvious and material danger. This had to be assessed in the light of the whole available evidence. The knowledge had to attach to the driver from having been told or because it would be obvious in the circumstances based on human experience. Although the test was an objective one, it started with the knowledge of the potential accused. These cases had to be distinguished from R v Marison where the accused knew he had a condition and drove in the face of an obvious and material danger. In each of the present cases the driver lost control due to losing consciousness. In each case subsequent investigations led to diagnosis of a condition supporting the respondent or providing an explanation for what happened. In neither case had there been a previous diagnosis. A simple faint

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(or vasovagal incident) is a very common occurrence which need not be notified for the purposes of DVLA guidelines. There was evidence that the recurrence rate of a simple faint was not very high, that the majority of people would not have a further episode and that as time passed the risk of recurrence receded. Payne

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[21] Following the incident, tests established that the respondent suffered from a malignant form of vasodepressor syncope syndrome. There was evidence that he had lost consciousness previously on six occasions on four separate dates. There was also evidence from which it could be inferred that he had concealed or misrepresented his medical history. Nevertheless when the totality of the evidence was assessed there was insufficient evidence to establish the essential issue to the required standard. The following factors were relevant: (i) the last incident was in June 2009, more than 18 months before the fatalities; (ii) the respondent sought medical advice regarding each previous incident; (iii) none of the previous incidents occurred whilst the respondent was driving; (iv) he had never been diagnosed with, or told that he had, any underlying medical condition making him susceptible to loss of consciousness; (v) none of his medical practitioners advised him that he was unfit to drive or suggested that he should report the position to DVLA; (vi) the opinion of his medical practitioners at the time was that he did not present a danger when driving; (vii) he had been advised in 2007 and 2008 that the cause was a viral infection; (viii) at police interview he said that he understood that the losses of consciousness had been associated with a viral infection; there was insufficient evidence to contradict this as his understanding, which was supported by the evidence of what he had been told in 2007 and 2008. [22] Between 22 October 2007 and 4 November 2010 the respondent attended his GP practice on approximately 14 occasions and Stobhill hospital on four occasions seeking assistance either in relation to viral symptoms or in relation to the aforesaid episodes of loss of consciousness. After failing to attend a clinic at Stobhill in September 2009 he was advised that a further appointment would be arranged: in fact no such appointment was arranged. No adverse inference fell to be drawn from the fact that on 2 February 2010 an attendance with his GP recorded that he was currently undergoing investigation for collapse. Up until 17 December 2010 the only diagnosis which the respondent had was of simple faints or reflex vasovagal syncope. [23] On 3 July 2009 (less than a month after the incident of blacking out on 5 June 2009) the respondent requested from his GP a letter seeking excusal for jury service on medical grounds which was in the following terms: â&#x20AC;&#x153;Mr Payne has had several episodes of unexplained dizziness and collapse over the past year. On occasion he has been admitted to hospital because of these. He feels worse when he is under stress and he is very concerned he may become dizzy and collapse if he has to attend for service. I hope he can therefore be excused jury service at this time.â&#x20AC;? [24] The respondent told police that the reason for seeking this letter was, â&#x20AC;&#x153;my wife was going through a really hard time of it. As I say I am a carer for her and

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eh, I felt as if I had been away too long, that was the only reason”. The notes in the medical records supported the fact that the respondent’s wife had her own concerns. [25] The respondent arranged a medical examination on 2 July 2010 in connection with renewal of his Group II HGV entitlement on his driving licence with a private medical practitioner who did not know him and did not have access to his medical records. The respondent answered “no” to the question “is there history of blackout or impaired consciousness within the last five years?” The respondent stated that the reason for going to the private practitioner was that it was £50 cheaper, a point supported by the doctor in question. [26] The evidence as a whole did not support the proposition that the respondent knew that on the day in question his driving presented an obvious and material danger.

Clarke

[27] The complainers relied on evidence that the respondent had previously experienced a loss of consciousness or impaired consciousness in April 2010 as well as other aspects of his medical history, including evidence from which it might be inferred that he had, in various circumstances, misrepresented or failed to disclose aspects of his medical history. However, the following factors were significant: (i) the prior incident occurred more than four and a half years previously; (ii) there was no evidence that the respondent, a professional driver driving on an almost daily basis had suffered any further incidents whilst driving; (iii) there was no evidence that he had ever been diagnosed with a condition making him susceptible to loss of consciousness; (iv) he had never been told not to drive by any medical practitioner apart from two brief periods in 2003 and 2010 when under treatment or investigation; (v) no medical practitioner had told him to report any aspect of his health— dizziness, mental health or loss or impaired consciousness—to DVLA. [28] There was no direct evidence in relation to the 2010 incident. The admissible evidence is contained in statements by third parties, viz: (1) Mr Stewart, a bus inspector, to whom the respondent reported that he had a “blackout” for two or three minutes whilst sitting at the wheel of his bus; (2) Dr McCaig, the GP to whom he reported a loss of consciousness for five seconds in a hot canteen; (3) Dr Lyons, an occupational health doctor to whom he reported an episode of impaired, or loss of, consciousness whilst at work, without particular warning although he was aware of feeling warm: it lasted between five–ten seconds according to an onlooker. Dr Lyons understood this incident to have occurred whilst the respondent had been sitting in a stationary bus; (4) Dr Langan, to whom the respondent said he had had felt light-headed and lost consciousness in a hot environment when waiting for lunch; and (5) Professor Rankin, to whom, after the fatal incident, the respondent denied having lost consciousness in 2010. [29] Although it might be inferred that the respondent did not give truthful accounts to Dr McCaig or Dr Langan, the evidence made it difficult to draw conclusions as to the precise nature of the incident. Someone who had suffered a syncope might not have a clear recollection of events or be sure whether or not he had actually lost consciousness. Reliable conclusions could not be

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drawn as to: (a) whether the respondent suffered a complete or partial loss of consciousness; (b) how long the incident lasted; (c) whether the incident was provoked by being warm; and (d) whether the respondent had any warning (prodrome) through feeling lightheaded. [30] Further, although it might be inferred that the respondent misrepresented the circumstances, nevertheless: (1) he disclosed to all three doctors an incident of impaired or lost consciousness; (2) he disclosed to Dr Lyons that this occurred at the wheel of a bus; (3) he gave Dr Lyons authority for disclosure of medical information by his GP; (4) a physical examination by Dr Lyons showed no underlying abnormality; (5) none of the doctors concluded that involvement of DVLA was merited; and (6) the respondent was permitted to return to work as a bus driver. [31] The differences in the accounts were significant in relation to whether a report should be made to DVLA, but there was no evidential basis to conclude that the respondent himself understood that differing descriptions of the incident would have different implications regarding the factual risk of recurrence. His motive for misrepresenting the true circumstances was speculative. [32] In any event, had DVLA been notified of the incident in April 2010 it could not be said that the respondent’s licence would not have been returned prior to the fatal incident. In determining whether he was fit to drive at the end of any period of revocation, the primary issue would be whether there had been any further episodes in the absence of which the licences would have been renewed. [33] The evidence taken as a whole did not support the central proposition which would require to be proved. Submissions for the complainers General

[34] Senior counsel submitted that there were three issues in each case: first, whether there was a legal sufficiency of evidence on the charges; second, whether that evidence was of apparently sufficient strength to show reasonable prospects of conviction; and third, whether special circumstances existed to warrant the granting of the bill in the absence of concurrence. In focusing in each case on whether there was evidence to demonstrate that the respondent knew or ought to have known that he might lose consciousness on the day of the fatal collision, the Crown misdirected itself. In each case the respondent’s knowledge that he had a medical condition which presented a danger whilst driving could be inferred from his actions and omissions both before and after the fatal incident. The Crown should have assessed the evidence about (a) the respondent’s medical condition and (b) his understanding thereof to ask whether looked at objectively the evidence showed that it would have been obvious to a competent and careful driver that to drive despite the risks posed by his medical condition would be dangerous. Payne

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[35] In relation to the respondent’s pre-collision acts and omissions there were four issues: (1) his history of blackouts and knowledge thereanent; (2)

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his failure to seek medical advice relative to driving; (3) his actions in connection with the renewal of his licence; and (4) the police interview and his post-collision actings.

History of blackouts and state of knowledge

[36] Between 25 December 2007 and 5 June 2009 on at least four different dates the respondent suffered six recorded episodes of loss of consciousness without provocation, warning or prodrome. Senior counsel examined the detail of each of these, noting that only two collapses on 25 December 2007 were attributed to a viral infection. [37] The jury excusal letter was evidence of the respondent’s knowledge in 2009, indicating several collapses in the past year. On 2 February 2010 the respondent falsely told his GP that he was undergoing medical investigation for collapse. After the fatal incident he gave accounts of the number of episodes from which it might be inferred that there had been a further three episodes between 17 December 2009 and 17 December 2010. [38] It would be obvious to a competent and careful driver, knowing what the respondent knew, and what he could be expected to be aware of, that driving on 17 December 2010 would be dangerous and would constitute driving in the face of an obvious and material danger.

Failure to see medical advice

[39] Between 25 December 2007 and the fatal collision the respondent failed to seek advice from any medical professional about driving and failed to notify the DVLA of his medical history or of the nature and extent of his condition, despite it subsisting for more than three months. He did not ask whether it was safe for him to drive.

Actings in connection with renewal of his licence

[40] For his licence renewal in 2005 he had attended his GP who had access to his medical records. She required him to attend for an eye test, from which he would have been aware of the care she took in completing the assessment form. He would have understood that his hospital attendances regarding blackouts would be recorded on the form if completed by his GP. In 2010 he attended a private medical practitioner who did not have access to his records. The respondent failed to provide accurate and complete information about his history of blackouts. The failure to advise the doctor or the DVLA allows the inference that he knew he had a medical condition which made it unsafe for him to drive, about which he lied to secure the renewal of his LGV entitlement. [41] DVLA Guidance distinguished “simple faints” from other more serious types of loss of consciousness by reference to “the three Ps” provocation, prodrome and posture, the most important feature of which was prodrome, namely warning signs that an incident was about to happen. Without a prodrome the incident would not be a simple faint. The losses of consciousness suffered by the respondent between 25 December 2007 and June 2009 were such as required notification to DVLA whose guidelines required notification for faints not associated with provoking factors or which occurred while sitting or lying. Had he notified DVLA they would have been likely to access his medical records with a consequent likelihood of a restriction to or revocation of his LGV entitlement.

Police interview—5 May 2011

[42] In this interview the respondent:

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(a) stated that the loss of consciousness had come on without provocation; (b) stated that his general health was fine; (c) denied that he had been attending the doctor for any specific condition stating, “all I had things what they call a viral infection . . . that I’ve had for the last eh three or four years . . . . then they give you an antibiotic for it and it takes it away”. The first time this happened was 2007 on Christmas Day, when he was told it was a viral infection adding “every time I got a bit of a cough I phoned the doctor to get him to check me to make sure I don’t end up with a viral infection again . . . and basically that’s all . . . that’s ever happened”. (d) indicated that he had suffered seven or eight collapses without warning, maintaining that “every time I’ve been I’ve been took to the hospital”. (e) said he had not notified his insurance company “because it was always put down to viral infection”. (f) explained that he had gone to the private doctor because it was £50 cheaper, and had undergone what he had described as “a full medical”. Regarding the question about a history of blackout or impaired consciousness within five years, he said, “well they kept saying to me it was a viral infection that (sic) making me blackout, it wasnae caused by anything else that they ever told me so I didnae think I was doing anything wrong on that form”. (g) said he had not notified DVLA of his condition, saying: “No, for the, the, the viral infection, they kept telling me it was viral infection so I took it when the antibiotics they gave me cleared that”. Asked if he had concerns that he might black out at the wheel he said, “No, no, the blackouts were put down to this viral infection”. Asked to confirm that on each occasion he was told it was down to a viral infection he confirmed “viral infection”. The medical records do not support this assertion. Only the first two episodes were so attributed. The misleading and incomplete answers to the police permit the inference that he was aware of the relevance of his medical history and deliberately sought to conceal it. Post-collision actings

[43] Apart from his statement to the police, the respondent told the Accident and Emergency consultant at the hospital that he had no warning before blacking out at the wheel, that he had fallen and injured his back that morning and that he had suffered one blackout two years previously secondary to a viral infection. He did not explain the other blackouts. He was advised not to drive until a diagnosis had been confirmed. On 21 December 2010 a tilt test was carried out. This was positive and the respondent blacked out, this being an abnormal response indicating cardio-inhibitory reflex syncope. During medical review, the respondent gave a history of about nine losses of consciousness over four years, with no provocation and all sitting or standing. The respondent was advised not to drive and the matter reported to DVLA. The evidence tends to suggest that the respondent sought to minimise his relevant medical history including the number of previous episodes of loss of consciousness. Clarke

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[44] The respondent’s actings and omissions prior to and after the fatal condition were relevant in relation to his knowledge of his medical condition and his fitness to drive.

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Pre-collision actings

[45] These related to: (1) medical history; (2) job application; (3) DVLA licence renewal. Medical history

[46] Over a period of 30 years the respondent had consulted doctors regarding dizziness, giddiness, vertigo and similar symptoms. He suffered a vasovagal attack at work on 16 August 1989 and on 25 February 1994, whilst driving a bus, an episode of dizziness, chest pain and palpitations. On referral to the Department of Cardiology at Stobhill Hospital, Glasgow after that later incident he reported dizziness over a four-year period. On review at the clinic on 27 May 1994 he was advised that he should not have been driving during the period of investigation and should have informed DVLC (now DVLA). On 29 November 2001 he completed and signed as part of his renewal application for LGV and bus licences a form in which he made declarations that he did not suffer and had never suffered from: (i) fits or blackouts; (ii) severe and recurrent disabling giddiness; or (iii) mental ill-health. In fact by this time he had suffered from: (1) (2) (3) (4) (5)

a vasovagal attack at work in 1989; severe anxiety neurosis related to the stress of working as a bus driver; an anxiety disorder; an episode of dizziness driving a bus in 1994; and repeated episodes of dizziness for four years up to 1994.

[47] Had he provided truthful answers further investigations of his condition would have been undertaken. [48] In July 2003 the respondent reported episodes of dizziness and his medical records in 2005 revealed a history of anxiety and depression. On 1 December 2006 he completed further declarations to DVLA in the same terms as noted above, and on 18 December 2008 he signed a similar health declaration whilst seeking employment with First Bus containing entries which his medical records demonstrate to have been false. It is reasonable to infer that he responded dishonestly to these questions, deliberately concealing his medical conditions in the understanding that his medical history affected his ability to drive safely. [49] The blackout on 7 April 2010 occurred without any warning while the respondent was seated behind the wheel of a stationary bus. Mr Stewart, the inspector who attended, made a 999 call reporting that the driver had passed out at the wheel, and a passenger had reported that he was unconscious for about three minutes. The respondent repeatedly failed to give a true account of what happened, relating inconsistent accounts to several doctors. He misled the doctors to obtain a favourable report in the hope of returning to work as a bus driver. Had he told the truth about the incident he would have been told not to drive and to notify DVLA who would have categorised this in such a way that there would have been a revocation of his licence for three months subject to the identification and treatment of the condition. In the absence of identification and treatment the restriction would have been one year or more depending on the risk presented by his condition and the preparedness of DVLA to re-issue the licence.

Job applications

[50] On 14 July 2010, in an application for the post of bus driver with Glasgow City Council, the respondent made further false declarations regarding his

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health. In late 2011 he applied for promotion to the post of HGV driver, making declarations in similar terms, all of which were false. Had the respondent provided truthful answers to Glasgow City Council he would not have been employed by them and would not have gained promotion to drive a bin lorry. It can be inferred that he concealed his medical history knowing that if he accurately disclosed his history, he would not have gained employment as a professional driver and would not have been permitted to drive HGV vehicles.

DVLA licence renewal 2011

[51] On 6 December 2011 the respondent made similar false declarations relating to his health in a renewal application for lorry and bus licences. [52] Providing false information to the DVLA and its examiner were criminal offences committed with the intention of gaining renewal of his driving licence. In repeatedly lying in order to gain and retain jobs and licences the respondent prevented investigation of his medical condition. This pattern of deception extended beyond the fatal collision. C

Actings post-collision

[53] These relate to: (1) statements to the medical profession; (2) the medical diagnosis; and (3) statements to DVLA. Statements to the medical profession

[54] Following his admission to hospital on 22 December 2014 the respondent gave three differing accounts of his medical history followed by a fourth account in 2015. From these it can be inferred that he continued to be an untruthful and unreliable historian, deliberately minimising and concealing his medical history and in particular the blackout in 2010. It can be inferred that he did so because he knew he had a medical condition affecting his ability to drive and that, having passed out at the wheel of a bus without warning, this might recur. Medical diagnosis

[55] Following a positive tilt table test the respondent was diagnosed with neuro-cardiogenic syncope or vasovagal syncope, a condition not susceptible to medical treatment. He was advised not to drive but failed to pass this information to DVLA. Statements to DVLA

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[56] After the fatal incident the respondent continued to mislead DVLA and drove in the knowledge that he suffered from a condition making it unsafe for him to do so. On 7 January 2015 he surrendered his licences for submission to DVLA. On 28 April 2015 DVLA advised the respondent that he satisfied the medical standards for safe driving and issued him with Group I and Group II licences, the respondent having made false and incomplete declarations in the applications therefor. These licences were revoked for 12 months and ten years respectively on 25 June 2015, after the FAI. On 20 September 2015 the respondent was found to be driving in Buchanan Street, Glasgow, Baillieston, Glasgow and elsewhere. [57] Had the respondent sought medical advice in 2010 he would have been diagnosed with neuro-cardiogenic syncope and his licence would only have been returned if a cardiologist estimated the risk of a further sudden disabling event as 20 per cent for Group I and 2 per cent for Group II. At the

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FAI the evidence assessed the respondent’s risk at 20 per cent, thus his licence would not have been returned to him.

Very special circumstances — both cases

[58] The Crown’s focus in each case on whether the respondent knew that it would be unsafe for him to drive on the day in question led to the application of an incorrect test. After applying the incorrect test the Crown had further erred in concluding that there was an insufficiency in law. The analysis placed emphasis on the subjective knowledge of the respondent rather than considering the objective test of what a competent and careful driver with the knowledge of the respondent and considering what the respondent would have known, would have observed, appreciated and guarded against. This flawed legal analysis created the special circumstances which justified passing the bill.

Respondents’ submissions Payne

[59] For the respondent, the Dean of Faculty adopted the submissions of the Lord Advocate in respect of title and interest, sufficiency of evidence and very special circumstances. The complainers asked the court to grant the bill on an interpretation of the evidence which was selective, speculative and unreliable. There was no medical evidence that it was foreseeable that the respondent was at risk of having a blackout while driving. The respondent had driven since 1985. Throughout that period, he had no medical incident while driving prior to 17 December 2010. He had no criminal record and only one Road Traffic Act endorsement which was for a parking offence. The respondent had no reason to believe that he was at risk of suffering an incident while driving. There was no credible and reliable evidence that on the date of the incident the respondent was driving in the face of obvious and material dangers which were or should have been observed, appreciated and guarded against. The credible and reliable evidence was that he lost control while driving as a result of a medical condition outwith his control and which he was not bound to foresee. Even if the Crown was incorrect in its analysis of the evidence, it was not appropriate for the court to act as a review body. [60] A high test of very special circumstances was necessary to preserve the exceptional nature of the remedy. The Scottish system of criminal prosecution in the public interest had been devised and developed to protect the public interest in general and the interest of the private citizen. A potential consequence of allowing private prosecutions in these circumstances would be that at a FAI essential witnesses would not be obliged to answer questions unless they were provided with immunity from prosecution not only by the Crown, but also by putative private prosecutors. In considering whether very special circumstances have been established, the court required to consider any delay in instituting proceedings (C v Forsyth). Prejudicial publicity, especially if caused or contributed to by the complainers, also required to be taken into account. [61] The excessive delay and prejudicial publicity constituted oppression at common law and a breach of the respondent’s rights under art.6 of the European Convention on Human Rights.

Delay

[62] The Crown decided in March 2012 not to bring proceedings against the respondent in respect of any of the charges included in the bill. This was

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communicated to the complainers at meetings on 6 and 7 March 2012, but was not intimated to the respondent. The respondent was not granted immunity by the Crown at the FAI held in 2014. A final decision not to prosecute the respondent was made in March 2015. The first intimation of a private prosecution to the respondent was 10 February 2016. [63] The delay in bringing proceedings contravened the respondent’s right to a fair trial within a reasonable time. The incident occurred on 17 December 2010 but the complainers sought to rely on evidence from as early as 25 December 2007. They were seeking to rely on evidence of what was said at medical consultations, when the doctors have made it clear that they had no recollection of the consultations and were forced to rely on written or printed records which were often brief and sometimes incomplete. Prejudicial publicity

[64] The level and volume of publicity was prejudicial to a fair trial. There had been many reports of a prejudicial nature in newspapers circulating locally and nationally, and on radio and television. The tone of the coverage was unbalanced and prejudicial, being such as to suggest that the respondent was guilty of a crime. That had been exacerbated by linking the case with that of Harry Clarke. The complainers had issued a number of press releases. The press reporting had contained inaccuracies. In one newspaper it was reported that the respondent had suffered previous blackouts while driving. That was incorrect. There had been long periods during which there were no reporting restrictions. [65] A private prosecutor is in the same position, and has the same responsibilities, as a public prosecutor. It would not be permissible, and it would be prejudicial, if the Crown were to make public statements about a case which it prosecuted. The same restriction applied to a private prosecutor (C v Forsyth, Lord Marnoch at p.568). Clarke

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[66] Senior counsel for the respondent Clarke also adopted the submissions of the Lord Advocate. The Crown had not erred in matters of fact or law and there was no proper basis for passing the bill. The complainers relied on an incomplete selection of public statements by the Crown to seek to demonstrate what they said was the basis of the Crown’s decision not to prosecute. The Crown’s answers supplied the complete statements by the Crown, with a fuller account of the reasoning, which the respondent adopted. The Crown had not acted capriciously, oppressively, unreasonably, inconsiderately or subject to an erroneous appreciation of the relevant law. [67] The foreseeability of the respondent’s loss of consciousness on 22 December 2014 was an issue upon which, at best for the complainers, there was no clear consensus of medical witnesses in support of the position advanced in the bill. In fact, there was a strong body of direct and circumstantial evidence which pointed the other way. The complainers sought to cherry pick a sufficiency from only a small, unrepresentative body of the total available evidence. That was an illegitimately narrow approach. [68] Private prosecutions must be subject to the same fair trial guarantees as public prosecutions, which had been achieved in part by the imposition of certain duties upon the Crown, including the duty of disclosure. It was not clear that the complainers had procedures in place to ensure that they discharged those duties. There had been no disclosure by the complainers beyond those documents selected in support of the bill. The very limited

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material (35 documents) specifically mentioned in the inventory attached to the bill did not include statements or transcripts of evidence from the FAI, or all medical reports. [69] No special circumstances existed to justify passing the bill. It would be oppressive and a breach of the respondent’s Convention rights to do so.

Oppression

[70] While it was not unheard of for prosecutions to follow FAIs, there were good and obvious reasons for any prosecution to take place first. It was normal for a prosecution arising out of a fatal accident to be brought to a conclusion before any petition for the holding of an FAI was presented (Cullen Report into Review of Fatal Accident Inquiry Legislation, “the Cullen Report”, November 2009, para.2.16). There was no case in which a private prosecution had been attempted after a FAI following a Crown decision not to prosecute. [71] There was no mention at any of the preliminary hearings for the FAI of the possibility of a private prosecution. Consequently, the respondent prepared for the FAI on the basis that no criminal proceedings were in prospect. Had it been otherwise, there was a strong likelihood that the FAI would have been delayed to await the outcome of any such proceedings. At the very least, as a matter of fairness, the respondent’s status as a witness, and whether he could invoke the privilege against self-incrimination, could have been determined in advance, rather than in the midst, of an ongoing FAI. [72] If the complainers had made clear that private prosecution was a possibility, very different advice would have been offered to the respondent about this. It would have affected the respondent’s whole approach to the FAI, including the issue of his representation. He was initially represented by junior counsel but senior counsel became involved at the mention of the possibility of private prosecution. It was likely that senior counsel would have been instructed from the outset if advance warning had been given. The advice to the respondent, without question, would have been to answer no questions where the answers might incriminate him. [73] The first formal mention of the possibility of a private prosecution was on day 16 of the FAI and only when the sheriff raised the matter in light of media reports. It would be oppressive to allow a prosecution to proceed. The principal effect concerned the position of the respondent in relation to the privilege against self-incrimination, but matters of delay and prejudicial publicity arose also. The presentation of the case on behalf of the respondent had been predicated on his giving evidence and supplying a basis in his answers for some of the earlier questioning of other witnesses. The enforced change of approach during the FAI adversely affected the presentation of the respondent’s position, and allowed some of the evidence to seem more damning in the absence of challenge or evidential contradiction. In turn, this change allowed the publication of even more prejudicial headlines about the respondent, especially when he was in effect forced into a change of position about answering questions. [74] By the time the possibility of a private prosecution was first mentioned it was too late for the respondent’s privilege against self-incrimination to be given proper respect. By the time the complainers confirmed their position regarding a private prosecution, it was too late retrospectively to remedy the unfairness to the respondent in the circumstances in which he had given his full cooperation with all preparations for the FAI. [75] The complainers had used the Crown’s decision that there would be no prosecution, with no hint of a private prosecution, to have the respondent

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cooperate fully in continuing investigations and preparations, thereby supplying information which could be used in a private prosecution at their instance and giving the complainers an unfair and unwarranted advantage (Mowbray v Crowe). The respondent cooperated in the process of precognition by the Crown in preparation for the FAI. He provided detailed accounts and answers in precognitions which were given on 6 and 12 May 2015, 8 July 2015 and 31 July 2015. He was asked in detail about issues relating to his medical and employment history. He was not cautioned. He answered all questions, unaware that attempts would be made subsequently to use his answers against him in a private prosecution by the complainers in a manner incompatible with the privilege against self-incrimination.With the respondent’s consent, all of his precognitions were disclosed by the Crown to the legal representatives of the families represented at the FAI, including the legal representatives of the complainers. The complainers were personally barred from prosecuting the respondent. Prejudicial publicity

[76] The respondent’s right to a fair trial had been compromised because of prejudicial publicity, and to pass the bill would be oppressive. The question for the court was whether the risk of prejudice was so grave that no direction of the trial judge, however careful, could reasonably be expected to remove it (Stuurman v HM Advocate, approved in Montgomery v HM Advocate). [77] It was undeniable that there had been extensive publicity in this case and that much of it had been prejudicial to the prospects of a fair trial. When not restricted by contempt of court considerations, the tabloids showed no restraint in portraying the respondent as a selfish and heartless liar with no conscience. Readers were left in no doubt that he was a man whose selfishness and dishonesty were responsible for the deaths of six innocent people. That was put to him by counsel for the families during his evidence at the FAI. Following his enforced change of attitude to answering questions, arising from the prospect of prosecution, the tenor of the publicity was that the respondent had exploited a legal loophole to avoid admitting his guilt. It seemed clear that the newspapers had associated themselves with the families’ views. [78] The fatal incident attracted considerable publicity due to the uniquely tragic circumstances. It was almost inevitable that the members of any jury would be aware of the case. The FAI was the subject of intense and unusual media coverage. The prejudicial coverage would not have been attempted or allowed if criminal proceedings had commenced. This case was exceptional in that the media had taken full advantage of a significant period during which there were no reporting restrictions. Matters would not have developed in this way and to this extent if the complainers had brought this bill at an earlier stage. The extent and intensity of media coverage had embedded this case as part of the national consciousness. [79] It was submitted that none of the usual safeguards could guarantee a fair trial:

• the passage of time—this was a weak safeguard in this case, given the recency of publication of some of the prejudicial material, a large amount of which was readily available on the internet. • The focusing effect of listening to evidence—this too was an insufficient safeguard. Potential jurors were likely to have read material which would be part of the evidence in the trial, the effect of which would be to remind them of what they had previously read. The reporting of the FAI would be brought to mind by the evidence in the trial.

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Stewart v Payne

• The trial judge’s directions—no directions by the trial judge would be adequate to guarantee a fair trial. A direction to decide only on the evidence would be inadequate because it would fail to address the residual effect and the conscious or unconscious reminders of the original material. [80] The present case was high profile. Very few cases had attracted the level of publicity it had generated. Much of the publicity received nationwide coverage, and much of it remained easily accessible on the internet. Recent research (“Are Juries Fair?” by Professor Cheryl Thomas, part of the Ministry of Justice Research Series 1/10, February 2010) suggested that there was grave cause for concern in cases such as this.

Analysis Title and interest

[81] It was not disputed that the complainers had both title and interest in relation to the first charge (and the first charge in the alternative) in each bill. We consider the concessions in respect of these charges to be well made. Clearly the complainers meet the requirement that they are individuals with a substantial and peculiar interest in the subject-matter of those charges, arising out of injuries which they, beyond all others, have suffered. However, we do not accept the complainers’ submissions in relation to the remaining charges. In our view these are charges of a general and public nature, lacking that interest, personal and peculiar to a complainer, which is necessary before a bill of criminal letters may be passed. It is not sufficient for the purposes of title and interest that the complainers seek to include these charges for mainly evidential purposes. Some of the subsidiary charges may, to a varying degree, be relevant to aspects of the primary charges which the complainers seek to bring, and to enable the full picture to be put before the jury, but, were the court to pass the bills, these matters could be dealt with other than by inclusion in an indictment. In the Clarke case it would be incompetent to pass the bill relating to charge (11), since the Lord Advocate has not renounced the right to prosecute.

The legal requirements of a charge of dangerous driving

[82] A person drives dangerously if: (a) the standard of his driving falls far below that which would be expected of a competent and careful driver; and (b) it would be obvious to a competent and careful driver that to drive in such a way would be dangerous. The test for dangerous driving is an objective one, directing attention to the quality of the driving at the time in question. Although the test is an objective one, in determining whether the driving was dangerous regard must be had to circumstances shown to have been within the knowledge of the individual driver (s.2A(3) of the 1988 Act). [83] A person who falls unconscious at the wheel is, on the face of it, no longer driving voluntarily. However, if the driver is aware that he has a medical condition liable to render him unconscious whilst driving, he may be precluded from relying on that condition as a basis for maintaining that his acts were involuntary. The driver would, however, need to know that he had such a condition. A driver who has been diagnosed with a condition rendering him liable to fall unconscious clearly has that knowledge. Thus a diabetic who knew his condition pre-disposed him to hypoglycaemic episodes rendering him unconscious without warning knew that to drive was to do so in the face of obvious and material danger. The driver in question had suffered such incidents on an increasing basis prior to the accident, including incidents

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whilst at the wheel (R v Marison)—he thus knew that at the material time he was driving in a defective state. The Lord Advocate accepted, correctly, that the knowledge that one is in a defective state rendering it dangerous to drive, need not come from the diagnosis of a condition. Past experience and medical history of the driver might be sufficient to create in him the knowledge that to drive at any given time might be dangerous. Clearly the evidential obstacles in the way of establishing the latter may be greater than in relation to the former, but there is no reason why a driver’s general medical history and experience might not be sufficient to create the necessary knowledge in the absence of a diagnosis. [84] In Marison the driving was said to begin at the start of the driver’s journey on the day in question and to conclude with the collision. The critical question in any case such as this is the quality of the driving at the time of the collision. The Crown was thus correct to focus on the day in question in each case. In doing so it was not taking an over-narrow approach to the issue. In particular the Crown did not focus only on the state of health of each respondent on the day in question, or at the start of their journeys. It is clear that the Crown correctly considered that the state of knowledge of each respondent on the day in question had to be assessed in the context of all the information known to each of them, including their medical history and any inferences which might reasonably be drawn therefrom. Accordingly we do not consider that the Crown made an error of law. Special circumstances

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[85] Scotland has for many centuries had a system of public prosecution in which the Lord Advocate is recognised as prosecutor in the public interest. By 1961this system of public prosecution had become so well acknowledged and respected that the court was able to say that “private prosecutions have almost gone into disuse” (McBain v Crichton, Lord Justice General at p.29). Although it remains open to a private citizen to apply to the court for permission to bring a private prosecution where the Lord Advocate has declined to prosecute or grant his concurrence to a private prosecution, the circumstances in which such permission may be granted have repeatedly been described as exceptional. [86] The reasons for the requirement of exceptionality are related to the constitutional role of the Lord Advocate. In McBain v Crichton the Lord Justice General (p.29) observed that the Lord Advocate: “. . . is the recognised prosecutor in the public interest. It is for him, in the exercise of his responsible office, to decide whether he will prosecute in the public interest and at the public expense, and under our constitutional practice this decision is a matter for him, and for him alone. No one can compel him to give his reasons, nor order him to concur in a private prosecution. The basic principle of our system of criminal administration in Scotland is to submit the question of whether there is to be a public prosecution to the impartial and skilled investigation of the Lord Advocate and his department, and the decision whether or not to prosecute is exclusively within his discretion”. These features were also mentioned by Lord Guthrie (p.31) to explain why it would only be in “highly exceptional circumstances” that private prosecution will be authorised. [87] This exceptionality is emphasised in every case in which an application for criminal letters has been made. So for example, in C v Forsyth the Lord Justice Clerk (Ross) noted (p.912) that:

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Stewart v Payne

“It is well recognised that private prosecution is allowed only in exceptional cases” and in Meehan v Inglis, the Lord Justice Clerk (Wheatley) observed (p.12) that permission of the court to proceed with a Bill for Criminal Letters, “will only be granted in very special circumstances”. [88] This was recognised by senior counsel for the complainers who acknowledged that it was necessary for her to persuade the court that there existed special circumstances such as to justify passing the bills in the present cases. [89] No bill has ever been passed in the face of opposition by the Lord Advocate, and only two have been passed without the Lord Advocate’s concurrence, emphasising the truly exceptional nature of the remedy. The case for such a remedy must be the exception to the rule, calling for exceptional treatment (J & P Coats v Brown, Lord Justice Clerk at p.34. The case of Sweeney v X was clearly exceptional. The Lord Advocate had not declined to prosecute, but during the prosecution, the primary witness lost her mental composure and the Crown had allowed the indictment to fall. For that reason, although the witness had subsequently recovered, the prosecution could not recommence. The bill was based largely on the evidence upon which the Lord Advocate had proceeded to present the original indictment. [90] The basis upon which senior counsel for the complainers submitted that there existed special circumstances was: (i) that the Crown had erred in its analysis of the legal and evidential requirements necessary to establish the charge of dangerous driving; and (ii) that the Crown had erred in its assessment of sufficiency. An error in law as to the components of an offence, at least an egregious one, might justify passing bills of criminal letters, but as we have explained above, we do not consider that such an error has been made. [91] In respect of the second argument, even if we agreed with that submission (as to which, see below), this would not necessarily constitute a special or extraordinary circumstance such as to justify the passing of a bill for criminal letters. An error of judgment by the Crown is not sufficient to meet the test of exceptionality. In our view the test of exceptionality would require to show that the Lord Advocate’s decision not to prosecute had to be viewed in the circumstances as an egregious or outrageous failure in the exercise of his public duty in the circumstances. For example, as discussed in argument in J &P Coats v Brown, if it could be shown that the Lord Advocate had failed in his public duty, and had acted oppressively, capriciously, or wantonly, the circumstances might properly be described as exceptional, allowing a bill to be passed. It is quite difficult to conceive of circumstances in which the court would pass a bill where the Lord Advocate had examined and investigated the circumstances of the case and concluded as a matter of informed judgment that the whole tenor and weight of the evidence did not justify prosecution. [92] At first sight it might be thought that the case of J & P Coats v Brown gave some comfort to the complainers’ submissions, but on close examination of the case we are satisfied that is not so. In declining to prosecute, or to grant his concurrence, in that case the Lord Advocate explained that he considered that the injured party’s claim lay in the civil court rather than the criminal. The Lord Advocate also indicated that he based his decision on the improbability of a conviction, apparently raising the possibility that the decision on the case was ultimately based on a disagreement with the Lord Advocate’s assessment of sufficiency in circumstances which might avail the complainers in the present case. The basis for the Lord Advocate’s view as to that improbability is not made clear in the reports of the case or in his statement

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76 A

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to the court which is reproduced in the SLT report at (1909) 1 S.L.T., pp.434–435. The Lord Justice General referred to the Lord Advocate as adopting “a more than usual reticence”, and in relation to the issue of whether the prospective accused might be thought to have the knowledge imputed by the documents, it appears that the submissions fell foul of the assumption that where the Lord Advocate does not offer a reason for his conclusion it will be assumed that there was none (see the opinion of the Lord Justice General at p.40; see also similar observations in relation to the giving of reasons by the Lord Advocate in Meehan v Inglis at p.15). It does not seem that detailed arguments were advanced as to any alleged insufficiency of evidence, or in relation to factors which were thought to undermine the strength of the evidence available to the Lord Advocate. What he said to the court was that: “The line between the domain of civil and criminal law was sometimes difficult to draw, but in this case the information laid before him disclosed a question which, in his judgment, lay well within the region of the civil law, and plainly outside the region of the criminal law.” He added that: “he satisfied himself that he had information to enable him to form a judgment, and he came without any hesitation to think that there was no reason for altering the judgment at which he had formerly arrived, and that there were no sufficient grounds here for a criminal prosecution.” [93] This was sufficient to satisfy Lord McLaren, in the minority, that the bill, should not be passed. However, it seems tolerably clear that the majority were unpersuaded that the decision had indeed been made upon a full investigation. The Lord Advocate had indicated that if the injured party succeeded in a civil suit, he would reconsider his decision not to prosecute. The Lord Justice Clerk observed, in relation to this submission: “I confess I was not able to follow the line of thought indicated by such a statement. If the Lord Advocate has already had the case fully investigated in his department, one would expect that he would know now whether it was permissible to take criminal proceedings. If he has not had such an investigation made, then it is difficult to see how he can be held to be in a proper position to consider whether he should give his concurrence to a prosecution or not.” [94] The Lord Justice General (p.40) agreed that there was an inconsistency in the Lord Advocate’s position. Certainly the majority proceeded on the basis that there was available a very clear sufficiency of evidence of a fraud of considerable magnitude. However, of considerable importance is that fact (commented upon later in Meehan v Inglis) that the prima facie case for a prosecution was available from undisputed documents, and was not dependent upon statements from witnesses furnished ex parte or inferences drawn from other evidence. There might also, standing the attitude of the Lord Advocate, have been a concern that commercial crime prosecutions were not afforded sufficient priority (see for example, the opinion of the Lord Justice General at p.40). However it be the case, the circumstances were very different from those which apply here. [95] The present case is one in which there has been a full investigation and assessment of the evidence, with the conclusion that there was not a sufficiency to prosecute. That assessment is one which does not turn on the prima facie content of documents or records but on a professional assessment of the whole circumstances of the case. To examine the decision made against that

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Stewart v Payne

background would put into stark question the issue raised by Lord McLaren in J & P Coats v Brown (at p.38), namely: “In such circumstances I am confronted with the question, how am I to form an independent opinion on the facts as to whether there are or are not grounds for a criminal prosecution? It is one thing to say that we may give redress against an arbitrary refusal of the Lord Advocate’s concurrence, or a refusal on legal grounds which are disclosed to us; and it is quite a different proposition that we are to review the Lord Advocate’s decision that the facts do not warrant a prosecution. If it were intended by the constitution of the country that this Court should undertake such a review, we should either have the power of calling for the Crown precognitions, or of employing an agent to institute an independent inquiry and to report to us. Nothing of the kind has ever been done, and your Lordships are not proposing to make such an inquiry.” Similar observations were made by the Lord Justice General (Emslie) in Meehan v Inglis (p.14): “Lord Clyde did not say that the Lord Advocate was not obliged to give his reasons for refusing to concur in a private prosecution. What he said was that it is utterly inconsistent with our system which is essentially one of prosecution in the public interest that “the Courts should examine . . . the reasons which have affected the Lord Advocate in deciding how to exercise his discretion and it would be still more absurd for this Court to review their soundness.” We see no reason to differ from that expression of opinion in so far as it is directed to cases where the Lord Advocate’s reasons for refusing concurrence are derived from an exercise of his impartial judgment after exhaustive investigation of all sources of evidence. The position would, of course, be otherwise if the reasons turned upon a question of law or relevancy or, as in J & P Coats Ltd, upon the construction of documents.” (see also McBain v Crichton, per Lord Guthrie p 31). [96] The concerns which were expressed in those cases are precisely the concerns with which this court is faced in relation to the second argument for the complainers. This case is not a judicial review and this court does not have investigatory powers.There are strong public policy reasons for the requirement of exceptionality before the court would be entitled to pass a bill of criminal letters on grounds such as those advanced in the second argument for the complainers. The court must be very conscious of the constitutional arrangements under which the role of prosecutor is given to the Lord Advocate, and take care not to confuse the functions of the court with those of the Lord Advocate. [97] Looking at the evidence as a whole as far as we think it appropriate, we do not consider that the Crown erred in its assessment of either case. In each case the driver lost control through a loss of consciousness; in each case the explanation for this was identified only in post-accident investigation. In neither case had there been a prior diagnosis of an underlying condition liable to render the driver unconscious without warning. The complainers’ case thus turns on a question whether the medical history of each respondent and the inferences capable of being drawn therefrom were such as to create in each of them the knowledge that to drive on the day in question was to do so in the face of obvious and material dangers. The basis upon which the complainers advance their argument is one which adopts a selective approach to the evidence and does not accord with the basis upon which such decisions must be taken by a public prosecutor. As the Lord Advocate submitted, it is important in the public interest that prosecutors exercise their judgment

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independently, robustly, forensically and objectively on the whole evidence available. [98] In the case of Payne the Lord Advocate concluded that there was insufficient evidence to rebut evidence that the respondent reasonably believed his losses of consciousness to be attributable to a viral infection, with positive evidence that he had been told they were so attributable in 2007 and 2008. It was also relevant that none of the previous incidents of loss of consciousness had occurred whilst driving. [99] In the case of Clarke the Crown considered it a very significant factor that the previous loss of consciousness occurred four and a half years prior to the fatal accident, and that there was no evidence of any further incidents when driving, despite the respondent being a professional driver who drove almost daily. The Crown assessed that reliable conclusions could not be drawn as to the nature of the 2010 incident. The respondent had disclosed the incident to several doctors, and told one of them that he had been at the wheel of a bus at the time. Insofar as he did misrepresent the circumstances, the Crown considered that it could not be concluded that he did so deliberately and in any event his reasons for doing so were speculative. [100] On an assessment of the whole evidence the Crown concluded that the evidence in each case, taken as a whole, was not sufficient to support the central propositions which required to be proved. In seeking to argue the contrary, the complainers advance a circumstantial argument dependent on inferences from other evidence which, in each case, is far from unequivocal. In neither case do we consider that the acts or omissions of the respondent, in the changed circumstances after the accident, allow inferences to be drawn as to the state of their knowledge at the time of the accident. We do not consider that the state of knowledge of either respondent can reasonably be elevated to the degree necessary to be capable of establishing beyond reasonable doubt that on the day in question they drove in the face of an obvious and material danger. [101] The assessment of sufficiency in a circumstantial case is one which is highly fact-sensitive, and dependent on the drawing of inferences: it is one in respect of which there may be room for differing views within the scope of a reasonable exercise of professional judgement. As we have already indicated, it is quite difficult to conceive of circumstances in which the court would pass a bill where the Lord Advocate had examined and investigated the circumstances of the case and concluded as a matter of informed professional judgment that the whole tenor and weight of the evidence did not justify prosecution, unless in making that decision the Lord Advocate had acted oppressively, capriciously, or wantonly. Accordingly, even if we had disagreed with the Crownâ&#x20AC;&#x2122;s assessment, or the weight attributed to individual pieces of evidence, we would be unable to conclude that the decision of the Lord Advocate not to prosecute was so extravagantly wrong as to amount to special circumstances justifying the passing of the bills in either case. Additional matters

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[102] Given the conclusion we have reached in relation to the primary issues in the case, it is not necessary for us to comment in detail on the submissions made in relation to delay, publicity and oppression. We would merely observe that the arguments in each case were strengthened by the fact that the effect of delays and adverse publicity operated in combination. In addition, on the effect of the precognition of Clarke, we consider that his case is in that respect on all fours with the appellant in Mowbray v Crowe.

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79 A

Decision

[103] For the reasons given we will refuse to pass the bill in either case. COMMENTARY This seems to be the first modern case where permission to raise a private prosecution was refused on the merits, as it were, and is likely to make it almost impossible for such prosecutions to be taken unless it can be shown that the Crownâ&#x20AC;&#x2122;s decision not to prosecute was taken, as the court put it, aggressive capricious or wanton; mere failure to meet the test in judicial reviews is not sufficient, and it does not matter whether or not the court thinks the Lord Advocate came to the wrong conclusion. All this, of course, applies only if the Lord Advocate (personally?) has examined the evidence. All of which is to be contrasted with the J & P Coats case, where the Lord Advocate thought a conviction improbable, although he argued also that the case should be dealt with in the civil courts and said that if it was successful he might change his mind. Indeed, that case can now be finally consigned to history. The court does not distinguish between statutory offences and common law ones, its criterion being whether the petitioners had a substantial and peculiar interest which they beyond all others had suffered, or whether the charges were charges of a general and public nature. This distinction is probably workable in practice, though it may raise jurisprudential difficulties. For another recent case on involuntary driving, see Alexander v Dunn [2016] HCJAC 3; 2016 S.C.C.R. 305; 2016 J.C. 125; 2016 S.L.T. 337.

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A Appeal against Decision at First Diet

23 December 2016

Appellant against

HER MAJESTY’S ADVOCATE B

Respondent

[2016] HCJAC 126 Warrant—Search warrant—Appeal—Appropriate method of appeal against admissibility of evidence where valid search warrant— Criminal Procedure (Scotland) Act 1995 (c.46), ss.71, 74

Appeal—Warrants—Method of appeal against admissibility of evidence where valid search warrant—Criminal Procedure (Scotland) Act 1995 (c.46), ss.71, 74 Section 71 of the Criminal Procedure (Scotland) Act 1995 provides for the determination of preliminary issues at preliminary hearings and s.74 provides for appeals to the High Court against decisions made at such hearings. The appellant raised a preliminary issue minute objecting to the admissibility of evidence obtained in a search of premises by the police on a search warrant on the ground of the conduct of the police prior to the grant of the warrant. The validity of the warrant was not challenged. The sheriff held that the action of the police was justified on the ground of urgency and the appellant appealed to the High Court under s.74. At the appeal a question arose as to whether it was competent in the absence of any challenge to the validity of the warrant itself by bill of suspension, and as to the correctness of the decision in Allan v Tant, infra. Held (by a Full Bench) (1) that that part of Allan v Tant which was to the effect that a sheriff is not entitled to hold that evidence recovered under a search warrant is inadmissible unless the warrant is suspended should be understood as only having application to cases in which the challenge is to the granting of the warrant on the ground of an error of law, that there is no authority for the proposition that the question of the validity of a warrant determines the admissibility of any evidence seized under it in circumstances where the objection to admissibility is based on factors other than a challenge to its validity, and that the question of the admissibility of evidence found after search depends upon the whole circumstances, important among which is whether or not the search was carried out under a valid warrant (para.7); (2) that where the challenge to the warrant was one which directly related to the actings of the judicial office holder in granting it—for example that it was incompetent to grant such a warrant, or that the information upon which it was agreed he proceeded could not suffice to meet the test for granting the relevant warrant, the appropriate course to adopt was a bill of suspension, but that where it is accepted that the judicial office holder was entitled to grant the warrant on the basis of the information placed before him, but it is argued that actings of the police or the Crown before, or even after, the granting of the warrant meant that it would be unfair to admit the evidence, that was a challenge which might be made and resolved by s.71 procedure (para.8); and (3) that the court was unable to reach a different conclusion from the sheriff on the question of urgency (para.10); and appeal refused. Allan v Tant, 1986 S.C.C.R. 175; 1986 JC 62 considered and distinguished. 80

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AS v HM Advocate

Cases referred to in the opinion of the court:

Allan v Tant, 1986 S.C.C.R. 175; 1986 J.C. 62 Evans & Kerr v Procurator Fiscal, Glasgow, 8 February 2013, unreported Fairley v Muir, 1951 J.C. 56; 1951 S.L.T. 237 Hay v HM Advocate, 1968 J.C. 40; 1968 S.L.T. 334 Lawrie v Muir, 1950 J.C. 19; 1950 S.L.T. 37; 1949 S.L.T. (Notes) 58 McGuigan v HM Advocate, 1936 J.C. 16; 1936 S.L.T. 161 O’Neill v Harvie [2014] HCJAC 136; 2015 S.L.T. 55. B A S was charged on indictment in Dundee Sheriff Court with drugs offences and raised a preliminary issue objecting to the admissibility of certain evidence recovered under a search warrant. The objection was repelled by the sheriff (Murray) and AS appealed to the High Court under s.74 of the Criminal Procedure (Scotland) Act 1995 on the grounds referred to in the opinion of the court. On 27 October 2016 the appeal was remitted by the High Court (the Lord Justice Clerk (Dorrian), Lord Brodie and Lord Drummond Young) to a Bench of five judges. It was heard on 1 December 2016 by the Lord Justice General (Carloway), the Lord Justice Clerk, Lord Brodie, Lord Bracadale and Lord Turnbull.

For the appellant: S McCall QC, C. Findlater, instructed by Muir Myles Laverty, Solicitors, Dundee. For the respondent: Niven Smith AD. On 23 December 2016 the Lord Justice Clerk delivered the following opinion of the court. LORD JUSTICE CLERK [1] The question arising in this case relates to whether the admissibility of evidence seized under a valid search warrant may nevertheless competently be challenged by preliminary issue minute under s.71 of the Criminal Procedure (Scotland) Act 1995. It is clear (see opinion in this case [2016] HCJAC 97) that the issue is a cause of uncertainty amongst the legal profession, and, on occasion, judges. In some cases the matter has been dealt with by way of a bill of suspension; in others the matter has been dealt with as an objection at trial. A bill of suspension is clearly not a suitable means of proceeding where there is a dispute of fact to be resolved. It is a remedy primarily designed to review errors of law, being “truly appropriate . . . where the circumstances are instantly or almost instantly, verifiable”—Fairley v Muir at p.60. The unsuitability of the process to address questions of fact has led to the adoption of some rather cumbersome procedures—see for example the procedure adopted in O’Neill v Harvie where the sheriff adjourned a hearing on a s.71 minute objecting to the admissibility of evidence, so that a bill of suspension could be presented; whereas in the bill of suspension the court adjourned the case in order that the sheriff could determine the factual dispute underlying the s.71 minute. In the case of Evans & Kerr v Procurator Fiscal, Glasgow, the court had, in the first instance at least, remitted the case to the sheriff to hold an evidential inquiry and report his findings, doing so erroneously on the basis of ss.182(5)(e) and 190 of the 1995 Act, which had no application. [2] The uncertainty appears to stem from a belief that to challenge the admissibility of the evidence requires a challenge to the validity of the warrant, which can only be done by means of a bill of suspension (Allan v Tant).

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82 A

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[3] The background circumstances of the present case are set out in the opinion of the court referred to above, and need not be repeated. The preliminary issue minute did not attack the validity of the search warrant, rather it focused on the initial police search and contended that the evidence so obtained was inadmissible on the basis of actings by the police before they had sought the warrant. [4] We are grateful to parties for their detailed and helpful submissions, which were largely in agreement. The essence of these was that: (i) Allan v Tant was correctly decided; and (ii) when that case was properly understood the issue of validity of a search warrant could be separated from the question of admissibility of evidence obtained thereunder. We are satisfied that these arguments are well-founded and that a distinction falls to be drawn between cases in which the challenge is based upon an error of law in the granting of the warrant (described by senior counsel for the appellant as a challenge intrinsic to the warrant procedure), and those in which the challenge relates to something distinct from that procedure (described as something extrinsic to the warrant procedure). In the former (intrinsic) category, the court is asked to review the decision to grant the warrant on error of law grounds, which would be a matter properly falling within bill of suspension procedure. In the latter category, the grant of the warrant is not said to have been made upon an error of law, but it is maintained that the procedure is tainted by some prior illegality. Such a course is consistent with Allan v Tant and other authorities. [5] In Allan v Tant a sheriff at trial concluded that the police officer who had applied for and to whom a warrant had been granted by a justice of the peace had not had the requisite reasonable grounds for suspecting that controlled drugs were in the possession of a person on the relevant premises. He thus decided that: (a) the warrant should not have been applied for or granted; and (b) evidence of what was recovered was inadmissible. On appeal the court held that the sheriff was not entitled to â&#x20AC;&#x153;go behind the warrantâ&#x20AC;? and that his decision could not stand. He was not entitled to hold either that the warrant should not have been granted, or that the evidence was inadmissible. In that case, however, the evidence upon which the officer satisfied the justice of reasonable grounds, thus obtaining the warrant, was exactly the same evidence upon which the trial sheriff reached a different view as to whether the officer had reasonable grounds. The sheriff at trial was thus holding that the granter of the warrant had erred in doing so, and was in effect purporting to review that original decision. It is quite clear that such a course was not open to him; and, since that was the only basis upon which he held the evidence to be inadmissible, it naturally followed that his decision on admissibility could not stand. The observation in Allan v Tant that the sheriff could not hold the evidence to be inadmissible must be understood in that context. [6] In Hay v HM Advocate the objection to the evidence was on the basis that the warrant had been incompetently granted, an argument which the court was unable to accept. Since that was the only basis for objecting to the admissibility of the evidence no such objection could be sustained. The court had dealt with the matter at trial, without requiring a bill of suspension to be lodged, even though the issue was one which was more suited for suspension. The type of warrant with which the court was concerned was considered to be one of novelty, which may explain why the issue of a bill of suspension was not raised. However, the important point is that it was a case in which the validity of the warrant and the admissibility of the evidence were inextricably linked. [7] That part of Allan v Tant which is to the effect that until a warrant is suspended a sheriff is not entitled to hold that the evidence recovered under

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2017 S.C.C.R.

AS v HM Advocate

the warrant is inadmissible, should be understood as only having application to cases in which the challenge is to the granting of the warrant on error of law grounds. Neither Allan v Tant nor Hay is authority for the proposition that the question of validity of the warrant determines the admissibility of any evidence seized under it in circumstances where the objection to admissibility is based on factors other than a challenge to the validity of the warrant. The question of the admissibility of evidence found after search depends upon the whole circumstances, important among which is whether or not the search was carried out under a valid warrant. [8] Where the challenge to the warrant is one which directly relates to the actings of the judicial office holder in granting it—for example that it was incompetent to grant such a warrant, or that the information upon which it is agreed he proceeded could not suffice to meet the test for granting the relevant warrant—the appropriate course to adopt is a bill of suspension. However, where it is accepted that the judicial office holder was entitled to grant the warrant on the basis of the information placed before him, but it is argued that actings of the police or the Crown before, or even after, the granting of the warrant mean that it would be unfair to admit the evidence that is a challenge which may be made and resolved by s.71 procedure. There is a clear legislative intention behind s.79 and associated sections of the 1995 Act that as far as possible, issues of admissibility should be determined in advance of trial. The court in which the trial is to be held, and which will be case managing the matter in preparation for trial, is the one best placed to determine the issue of admissibility of the evidence. [9] Turning to the merits of this case, the Crown’s initial position was that there had been no irregularity since the actions of the police were based on urgency and objectively justified on the authority of McGuigan v HM Advocate. In the course of argument, the primary submission came to be that there might be an irregularity which was excusable under the principles of Lawrie v Muir. In submissions before the Full Bench, it was ultimately made clear that the Crown maintained its original position. [10] Whatever criticisms may be made of the inspector in charge, the sheriff made certain critical findings in relation to his evidence. These were that: (a) the inspector considered the situation to require urgent attention; (b) that his suspicion that he needed to act to prevent any drugs being redistributed was reasonable; (c) that any occupant of the flat might have “picked up on” any surveillance which had been attempted; and (d) his estimate that it would take several hours to obtain a warrant was correct. The sheriff also accepted that the inspector was acting in good faith and that his perceptions as to police resources available on a Sunday afternoon were genuinely held. It is therefore irrelevant whether other options might have been available to the inspector. The sheriff’s overall conclusion, based on these factors, was that the actions of the police were urgent in nature and, viewed objectively, justified. We are unable to reach a different conclusion.The question of excusal of an irregularity does not arise. The appeal will therefore be refused.

Note: Publication of the earlier opinion referred to by the court is presently embargoed on the instructions of the court because it relates to a preliminary issue; it does not appear on the list of cases whose publication is prohibited by an order under the Contempt of Court Act 1981. G

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SUMMARY HM Advocate v C J W—[2016] HCJAC 111—18 December 2015

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Evidence—Admissibility—Sexual offences—Character of complainer— Charge of coercing wife to have intercourse with third party— Application to admit evidence that wife had affairs with other men during marriage—Whether admissible at common law—Criminal Procedure (Scotland) Act 1995 (c.46), s.275 The respondent was charged with coercing his then wife to have intercourse with E A. His defence was that the complainer had willingly engaged in sexual activities with E A, and he lodged an application for leave to lead evidence that she had had affairs with a number of other men during the course of their 14-year marriage before beginning her affair with E A. The sheriff granted the application and the appellant appealed to the High Court. In giving the opinion of the court (the Lord Justice Clerk (Carloway), Lady Dorrian and Lord Bracadale) allowing the appeal the Lord Justice Clerk said: ... [7] In M v HM Advocate (No.2) [[2013] HCJAC 22;] 2013 S.C.C.R. 215, the court attempted to make it clear that ss.274 and 275 [of the Criminal Procedure (Scotland) Act 1995] were not intended to permit evidence which was not admissible at common law. The common law position is itself clear. Evidence of either good or bad character is, in general, inadmissible because it is collateral to the issues as defined in the libel. The rule exists for reasons of convenience and expediency (paras.29 and 31). The issue, in relation to admissibility at common law, is not of whether a particular judge considers it to be fair or in the interests of justice to allow certain evidence to be led, but one which involves the application of the rules of evidence. These exist for pragmatic reasons in connection with the administration of justice, including the protection of witnesses, notably complainers, who cannot be expected to anticipate and defend themselves against personal attack. The allegation that a person has had two affairs, unrelated to the particular charge, over a period of 14 years, has no relevance to or bearing on the charge libelled; that being the alleged coercion of the complainer to have intercourse with a named individual over the period of a year. The allegations which are made in the s.275 application are unspecific, with no information on the name of the third party, and very little in relation to time or place. In these circumstances, it is evident that this evidence would not be permitted at common law and it cannot be permitted on an application under s.275 of the 1995 Act. [8] Even if the evidence were admissible at common law, it would be struck at by s.274(1)(a) and (b). It would then be a question of whether, as a matter of discretion, the court ought to admit it on the basis that the court is satisfied that the evidence will relate “only to a specific occurrence or occurrences of sexual” behaviour, that the occurrence or occurrences are relevant to the offence and that the probative value is significant and “likely to outweigh any risk of prejudice to the proper administration of justice”, including the appropriate protection of the complainer’s dignity and privacy. In this case, the matters sought to be adduced in evidence would not fall to be admitted under the exceptions provided by s.275. In particular, the evidence does not relate to specific occurrence or occurrences. It does not have significant probative value. Even if it did, that value would not outweigh the risk of prejudice to the proper administration of justice, including the dignity and privacy of the complainer. For the appellant: McSporran AD. For the respondent: Fyffe, Solicitor advocate, instructed by Bruce Short, Solicitors, Dundee. 84

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SUMMARY Aluko v HM Advocate—[2016] HCJAC 76—7 July 2016 Evidence—Identification of accused—Whether description of accused by other eyewitness

corroborated

by B

The appellant was charged with threatening behaviour. He was identified in court by one eyewitness, R, and described by another witness (McL) in a s.259 statement as having a bald patch. Two police officers who saw the appellant the day after the incident described him as having a bald patch. He was convicted and appealed to the High Court. In giving the opinion of the court (the Lord Justice Clerk (Dorrian), Lord Drummond Young and Lady Clark of Calton) the Lord Justice Clerk said: ... C

Analysis

[10] In repelling the submission that there was insufficient evidence identifying the appellant as the perpetrator, the sheriff indicated that the issue was not whether the descriptions of each eyewitness tallied in all respects but whether they provided separate sources of evidence capable of being relied upon which confirmed the identification of the appellant as the perpetrator. The sheriff concluded that the clear, and emphatic, eyewitness identification the witness Robertson had given was capable of being supported by the account of the witness McLaughlin. Since McLaughlin was an eyewitness, his account of the perpetrator having a bald patch on the left side of his head was evidence that was capable of being commented on by others who also saw the appellant at around the time of the offence, and commented on his having such a bald patch. Both police officers who gave evidence were able to do that. [11] We have no doubt that the sheriff was correct in his approach, and that he was correct to repel the submission of no case to answer. McLaughlin’s description of the perpetrator related to his apparent age, build, complexion and height. His account of these characteristics accorded with the description given by the witness, Robertson, and her eyewitness identification.

For the appellant: Ogg, Solicitor advocate, instructed by Capital Defence Lawyers, Solicitors, Edinburgh. For the respondent: Prentice QC, AD.

G 85

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SUMMARY Carmichael v HM Advocate—[2016] HCJAC 123—20 September 2016

Solemn procedure—Prevaricating witness returning to witness box and giving evidence—Whether defence entitled to cross-examine on reason for prevarication At the appellant’s trial a Crown witness, F, prevaricated in his evidence. He was warned in the presence of the jury and when he continued to prevaricate the sheriff put the jury out, warned him again and ordered him to be detained pending the receipt of legal advice. Before the trial recommenced the sheriff indicated that neither the Crown nor the defence should refer to the warning given to F in the jury’s absence. F then returned and gave incriminating evidence. The appellant was convicted and appealed to the High Court on the ground that the sheriff had restricted cross-examination by this remark. In delivering the opinion of the court (the Lord Justice Clerk (Dorrian), Lord Menzies and Lady Clark of Calton) the Lord Justice Clerk said: ... [5] We agree with the Crown’s written submission in this case that the rule preventing the judge or prosecutor acting in the presence of the jury on the potential prevarication or perjury by a witness is one which exists for the benefit of the defence. If the agent or counsel for the accused considers that it is in his interests to explore the matter in cross-examination he is at liberty to do so. The first question is therefore whether the sheriff prevented such crossexamination taking place. The sheriff’s direction to parties was given immediately prior to the resumption of the evidence and was as follows: “[W]hen the trial does resume in a few minutes’ time, neither Crown nor defence should refer the witness to the warning he’s been given outwith the presence of the jury, otherwise there’s little point in putting the jury out whilst we do that.” The evidence then recommenced with further examination in chief, during which the witness gave the incriminatory evidence referred to above. At the commencement of cross-examination, the solicitor for the appellant did not seek to address the sheriff in relation to his earlier comment. [6] We do not think that the sheriff’s comment that on the resumption of the case neither party should refer to what happened in the presence of the jury can properly be classed as a ruling that prevented cross-examination of the witness as to the reasons for the change in his evidence. All the sheriff was seeking to do was ensure that when the jury returned to court nothing was said immediately about what had happened in their absence. That did not mean that appropriate cross-examination could not follow. In any event, had the solicitor considered herself to be bound by the sheriff’s observation it was entirely open to her to seek to clarify the matter with the sheriff. There is authority in the form of Gall [v HM Advocate, 1992 S.C.C.R. 447; 1992 J.C. 115; 1993 S.L.T. 290] that such questioning is entirely competent at the instance of the defence, as the solicitor should have known. In any event, the witness was quite forcefully cross-examined to the effect that he had been the assailant, that the appellant had tried to stop him, and culminating in the question: “You see, what I’m suggesting to you, Mr Ferguson, is that you were very much involved in this incident. That’s what I’m suggesting to you. Is it the case, Mr Ferguson, that you are telling the ladies and gentlemen something because you’re trying to remove yourself from this situation? 86

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2017 S.C.C.R.

Carmichael v HM Advocate (Sy)

87 A

“Answer – No.” For the appellant: Paterson, Solicitor advocate, instructed by Paterson Bell, Solicitors, Edinburgh, for Allan Kerr, Solicitor, Kilmarnock. For the respondent: A Brown QC, AD.

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SUMMARY Murphy v HM Advocate—[2016] HCJAC 118—1 December 2016

Appeal—Unfitness to plead—No point taken at trial—Accused convicted and sentenced—Reports on mental condition at time of sentencing suggesting mental illness—Whether subsequent evidence showed unfitness to plead at trial Appeal—Defective representation—Failure to obtain medical reports on fitness to plead despite reports suggesting mental illness—Whether defective representation leading to miscarriage of justice

The appellant was convicted of, and sentenced for, a number of sexual offences. There had been some enquiry into his mental condition prior to trial but his representatives satisfied themselves of his fitness to plead without seeking further reports. By the time he was sentenced there was evidence that he was unfit to plead and had been in that condition at his trial. He appealed to the High Court against conviction on the ground (1) that he had been unfit to plead at trial and (2) that he had been defectively represented in that no report had been sought by his agents before his trial. The appeal court (the Lord Justice Clerk (Dorrian), Lord Drummond Young and Lord Malcolm) heard further evidence from three psychiatrists (Drs Douds, Campbell and Darjee). In delivering the opinion of the court allowing the appeal on ground (1) and commenting on ground (2), the Lord Justice Clerk said: [1] The appellant was convicted on 30 January 2015 after a trial lasting three days. He was convicted of seven charges involving serious assault, rape, lewd and libidinous practices, indecent assault and assault with intent to rape. There was no issue raised about the health of the appellant at any preliminary hearing. At the commencement of the trial the judge noted within the papers a letter from the appellant’s GP suggesting he was in poor health. There was no mention of any mental health issues. In view of the appellant’s age and apparent frailty, the trial judge asked the appellant’s solicitor advocate if there was a psychiatric report or whether there were any issues over his fitness for trial. She was told that there was no psychiatric report but that the solicitor advocate had confirmed that the appellant was fit for trial and the defence was ready to proceed. At the conclusion of the trial the judge adjourned the proceedings until 26 February 2015 for a criminal justice social work report (CJSWR) and remanded the appellant in custody. He had been on bail during the trial. [2] On 19 February 2015 the court received a letter from the social work department indicating that they were unable to prepare a report due to the poor presentation of the appellant and his apparent dementia. They recorded that the prison social worker had expressed concerns about his mental health and that he “appeared to fail to understand the court process, what he had pled, or why he was due in court on 26 February 2015”. It was felt that his mental status required to be clarified by means of a psychiatric assessment. [3] At the diet on 26 February Mr Stephenson, solicitor advocate for the appellant, advised the court that in May 2014 the agents had received a letter from a Dr Philipson (in fact it was a Dr Matthews), diagnosing the appellant as suffering from “mild Alzheimer’s” but who had advised by telephone that the appellant was fit to stand trial. Mr Stephenson indicated that he had 88

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2017 S.C.C.R.

Murphy v HM Advocate (Sy)

experienced no difficulty in obtaining instructions during the trial and that in his view the appellant had deteriorated since his incarceration. [4] The court ordered investigations, the result of which were reports from two forensic psychiatrists concluding that: (a) the appellant suffers from mixed Alzheimer’s and vascular dementia; (b) he is incapable of giving instructions or participating effectively in the sentencing process; (c) he was likely to have been unfit at trial; (d) his disorder is progressive and treatable only with palliative care; and (e) there is no medical basis for compulsory measures of treatment. [5] The trial judge was also provided with a chronology by the defence agents. The defence agent, Ms Gill, was also the solicitor advocate instructed as Mr Stephenson’s junior at trial. From that chronology and the submissions made by the advocate depute, the trial judge ascertained that: (a) the Crown had obtained a report from the appellant’s GP on 12 March 2013 which indicated various health problems but nothing to preclude him from standing trial; (b) on 5 May 2014 the solicitors were advised of the diagnosis of mild dementia or Alzheimer’s; (c) on 13 May 2014 the defence agent spoke to Dr Matthews who confirmed the diagnosis. It was indicated that if they wished confirmation of this in writing “for practical purposes he (the appellant) should need a report from a forensic psychiatrist”. No such report was obtained; (d) on 1 June 2014 at consultation with the solicitor advocate then instructed, Mr Iain Paterson, a letter confirming the diagnosis was produced. A file note recorded that “we have no concerns about client’s ability to understand us so no further report requested or follow up required”. Mr Paterson reported to the court that he had been satisfied at consultation that the appellant understood the process and a psychiatric report was unnecessary; (e) the Crown were advised of the diagnosis by letter of 5 May with the suggestion that they might wish to obtain a report from the doctor concerned. No such report was instructed. [6] The psychiatric reports which the court had were from Dr Rajan Darjee of the Orchard Clinic and Dr Fergus Douds from the State Hospital. In due course the court obtained a CJSWR and a s.210A risk assessment. A further psychiatric report dated 14 July 2015 from Dr Isobel Campbell was produced by the defence. Dr Campbell agreed in all essentials with the other psychiatrists. [7] Once they had arranged for other representation the solicitor and solicitor advocates involved in the case withdrew from acting. New agents were instructed and Mr Findlay, QC appeared on behalf of the appellant. At an adjourned hearing there was discussion as to further procedure. Mr Findlay advanced a plea in bar of sentence. The Crown suggested that the sentencing proceedings remained part of the trial, and that the court could discharge the trial and order an examination of the facts with a view to a mental health disposal under the provisions of Pt.6 of the Criminal Procedure (Scotland) Act 1995. The trial judge concluded that such a course was not open to her in circumstances where a verdict of the jury had been returned and recorded. In the absence of a need for treatment, there was no basis for the court to make a compulsion order. Nor did the trial judge consider it feasible to adjourn sentence pending further proceedings, such as a petition to the nobile officium, this being incompetent whilst there remained an outstanding statutory right of appeal. The trial judge accordingly proceeded to sentence the appellant to five years’ imprisonment on charges (2)–(6) and (9) with a concurrent sentence of two years on charge (7).

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90 A

Murphy v HM Advocate (Sy)

2017 S.C.C.R.

Grounds of appeal

[8] The grounds of appeal assert that the appellant was assessed in March 2014 when a CT scan of his brain revealed changes in keeping with the diagnosis of mixed dementia (Alzheimer’s and vascular). It is asserted that this is a degenerative condition which would have been worse at the time of the trial than it was in March 2014. It is likely that he was unfit to stand trial and ought not to have stood trial, being unfit to instruct a defence or take part in its preparation. There has thus been a miscarriage of justice. A further ground of appeal asserts inadequate professional representation, it having been the duty of his professional representatives to satisfy themselves that he was fit for trial. Having been alerted to his condition they should have investigated the matter. Had they done so, they would have ascertained that he was not fit to stand trial. A third ground of appeal asserts a duty on the Crown to make such investigations on the basis that the Crown have a duty to ensure that the accused receives a fair trial. The Crown were aware that the appellant suffered from dementia and that his mental state had not further been investigated. It was therefore the Crown’s duty in the public interest to do so. Finally, it is asserted that the trial judge erred in proceeding to sentence in the circumstances and that in any event the sentence was excessive. ... Ground Two

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[58] Our decision on the first ground would of course be sufficient for determination of this appeal. The advocate depute, in his submissions to us indicated that he “conceded” this ground also. We have recorded that as a submission that he considered it inappropriate to contest this ground, since, in an appeal such as this, we do not think it quite accurate to say that the Crown can “concede” the appeal. In any event, whatever the position adopted by the Crown, the issue remains one for this court to determine. ... [61] There is no stipulation as to the nature of the evidence upon which the court may be satisfied as to unfitness. It is difficult, however, to conceive of circumstances in which the court would make a decision of a mental unfitness said to arise from a medical condition without the evidence of a psychiatrist, psychologist or other appropriate medical professional. The consequence of a finding of unfitness in most cases will be an examination of the facts, although provision is made (s.54(2) [of the 1995 Act]) for desertion pro loco et tempore by the court on the application of the prosecutor. Such a course of action may be appropriate, for example, in the case of a temporary unfitness. [62] Following Anderson v HM Advocate, 1996 J.C. 29[; 1996 S.L.T. 155], the position in Scotland in an appeal such as this is clear. The right of an accused person is to be represented in such a way that his defence will be presented to the court (Anderson, pp.43I–44A). The circumstances in which the conduct of the defence by counsel or solicitor will provide grounds of appeal are defined narrowly. The circumstances must be such as to have resulted in a miscarriage of justice, and they will only do so where the conduct was such that the defence was not presented to the court, thus depriving him of a fair trial. (Anderson, p.44E–G). [63] In McBrearty v HM Advocate, 2004 S.C.C.R. 337; 2004 J.C. 104 [; 2004 S.L.T. 917] the court noted (para.55) that: “Anderson appeals are not to be decided on the counsels of perfection to which hindsight lends itself.” [64] The decisions of members of the legal team prior to, and at the time of, the trial are not to be judged by events which have taken place since then,

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2017 S.C.C.R.

Murphy v HM Advocate (Sy)

or opinions formed on the basis of such events. The issue rather is whether in light of the information known at the time the failure to obtain an expert report upon which a proper medical assessment of the appellant’s fitness for trial might have been made amounted to defective representation, preventing such an assessment, and constituting a miscarriage of justice. Furthermore, although we have referred from time to time to “the lawyers” or the “legal team” we are acutely aware that this is an issue which must be considered individually for each member of the team, according to his or her own degree of knowledge and involvement. [65] The issue of fitness for trial goes to the heart of a person’s capacity, and their ability to participate in an effective way in their trial. In McEwan v HM Advocate, [[2010 HCJAC 5;] 2010 J.C. 95, the court observed (para.22, Lord Kingarth delivering the opinion of the court) that it may not always be easy to draw the dividing line between cases of tactical and strategic decisions within the area of professional discretion, and those which fall outwith it. We entirely agree with that observation. The issue which arises in this case is not one which readily falls on one side of the line or the other. Although there may be apparent parallels with the situation where an individual’s defence is not presented, or the opportunity to do so is thwarted, because of the conduct of his legal representatives, the parallel is not exact. It is not a defence to criminal proceedings that a person is unfit for trial, nor does a finding of unfitness result in acquittal. Equally, the decision is not one which can properly be described as a strategic or tactical one. The decisions not to investigate the nature and extent of the condition from which the appellant was known to be suffering, or to obtain the report suggested by Dr Matthews, were not made for any tactical or strategic reason but because, in the case of Ms Gill and Mr Paterson, they considered that they were able to obtain instructions and that no report was required. In the case of Mr Stephenson, it was because he understood the matter already to have been addressed, and also because he too experienced no difficulty in communicating with the appellant. [66] The circumstances in which legal advisers may require to consider the question of the fitness for trial—mental or physical—of their client, are many and various. An individual may present somewhat strangely, without being considered unfit for trial. Whether the situation is such as to require investigation, especially in the absence of a medical or psychiatric history, may involve questions of judgement. It is not unknown for legal advisers to be absolutely convinced of their client’s mental unfitness only to obtain an expert opinion that he is perfectly fit for trial, although perhaps this occurred more commonly when the only test was one of insanity. Equally, it may be clear that the client has a psychiatric condition which renders him unfit, and where the need to obtain an expert report confirming the fact is obvious. In the latter situation, it may be that obtaining a report is indeed the only reasonable step to take. However, the nature of the decisions which may require to be made, and the variety of circumstances, persuades us that the situation is one which calls for the exercise of professional judgement. [67] It is a little surprising that, having been made aware of the diagnosis of Alzheimer’s and dementia, and advised that it was advisable to obtain a report from a forensic psychiatrist, none of the lawyers obtained such a report. It is common knowledge that conditions such as Alzheimer’s often feature problems with short-term memory, comprehension and the processing and recall of information. The lawyers had no information about the extent to which the appellant’s condition was impacting on these matters. The information which they had was largely limited to the diagnosis. The ability of

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92 A

Murphy v HM Advocate (Sy)

2017 S.C.C.R.

the appellant to give a history relating to the charges and the complainers is an incomplete basis for concluding that he was fit for trial. During the trial, of course, Ms Gill had the further information provided in the texts from the appellant’s granddaughter. [68] The information contained in the Anderson responses has been referred to above. Ms Gill discussed the diagnosis with Mr Paterson and they “both agreed that Charles Murphy was able to understand the court process, give full and comprehensive instructions and had provided a very thorough version about the allegations facing him”. In each case they were strongly influenced by the fact that the appellant had been able to give a history, but also on the basis that he seemed to understand that an argument was to be presented in relation to the previous prosecution. [69] Ms Gill’s response listed the “detailed background and current information”, consisting of 11 points, which the appellant was able to provide and which influenced her decision. These appear, with one possible exception, to relate to historical matters. [70] The nature of the appellant’s condition is such that an ability to relate historical information is not a good indication of current fitness for trial. However, we recognise that the Anderson responses are a partial explanation, and may not recount in full the contemporaneous factors which might have featured in the decision to proceed without an expert report. To consider this ground of appeal properly and in context, we consider that we would have to hear evidence from those instructed for the trial. In our view, nothing is to be gained by adopting such a course of action given the conclusion we have reached. We will therefore merely remind the profession that where any question of mental fitness arises it may be prudent for advisers to obtain a medical report rather than rely on their own personal assessment. For the appellant: Findlay QC,Young, instructed by Bridge Litigation, Solicitors, Glasgow. For the respondent: Erroch, AD.

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Solemn procedure Solemn procedure—Absence of procurator fiscal at sentencing diet—Sheriff making no order—Whether competent HM Advocate v Ball

2017 S.C.C.R. 1–92

Sentencing Guidelines—Sexual offences—Offences against vulnerable girls by member of staff of residential institution HM Advocate v Collins 31

SCOTTISH CRIMINAL CASE REPORTS

February 2017 2017 S.C.C.R. 1−92

Road Traffic Dangerous driving—Involuntary driving—Driver suffering blackout—Whether criminally responsible Stewart v Payne 56

*711742*

80 85 14 86 45 23

HM Advocate v CJW (Sy) 84 HM Advocate v Collins 31 HM Advocate v Millar 1 HM Advocate v RV 7 Lord Advocate v Dean 17 Murphy v HM Advocate (Sy) 88 Stewart v Payne 56