Scottish Criminal Case Reports, Issue 2, 2016

Art and part Mens rea—Homicide—Responsibility of accessory where principal actor convicted of murder Carey v HM Advocate 148 Assisted suicide Circumstances in which criminal Ross v Lord Advocate

176

Compatibility issue Convertible devolution issue—Appeal directed to compatibility of judge’s charge in 2003 with European Convention on Human Rights Macklin v HM Advocate

119

Right to respect for private life—Assisted suicide—Whether criminalisation in accordance with law Ross v Lord Advocate 176 Devolution issue Disclosure—Effect of failure to disclose statements of witnesses—Whether disclosure would have led to different verdict Macklin v HM Advocate 119 Disclosure Application for disclosure of evidence relating to police operation—Whether disclosable in terms of statute Murphy v H

135

Double jeopardy Fresh evidence of admissions by accused—Whether evidence admissible HM Advocate v Auld 159 Evidence Admissibility—Statements by accused—Statement to prison officer—Whether admissible HM Advocate v Auld 159 Admissibility—Statements by accused—Whether capable of being incriminating HM Advocate v Auld 159

*657936*

Sentencing Life sentence—Punishment part—Frenzied knife attack— Whether punishment period of 22 years excessive Haugen v HM Advocate (Sy) 223 Murder—Punishment part—Accused convicted of brutal murder of young girls committed in 1977—Whether 37 years excessive Sinclair v HM Advocate 209 Post- offence convictions—Whether admissible at common law Sinclair v HM Advocate 209 Road traffic—Fixed penalty—Offer of fixed penalty not taken up—Whether relevant to sentence Watt v Dunn 131 Road traffic—Penalty points—Discount for plea of guilty— Whether applicable to penalty points Watt v Dunn 131 Sex offenders register—Sending indecent messages on Facebook—Messages sent as joke—Whether significant sexual aspect to offence Rodgerson v Dunn

114

Solemn procedure Judge’s charge—Prior statement by witness—Whether directions erroneous—Whether led to miscarriage of justice Clark v HM Advocate 203 Time bar—Extension sought because of fault of Crown Potts v HM Advocate

109

Summary procedure Adjournment—Case not heard at two diets after evidence taken from one complainer—Whether sheriff entitled to refuse further fortnight’s adjournment Murphy v Tariq (Sy) 225

2016 S.C.C.R. 109–226

Procedure for application to exclude material from duty of disclosure in public interest Murphy v H 135

Road traffic Sentence—Fixed penalty—Offer of fixed penalty not taken up—Whether relevant to sentence Watt v Dunn 131

SCOTTISH CRIMINAL CASE REPORTS

Bail Bail appeal—Appeal against sheriff ’s refusal of bail brought in High Court after preliminary hearing—Whether appropriate AA v HM Advocate (Sy) 224

April 2016 2016 S.C.C.R. 109−226

Sufficiency—Corroboration—Accused’s statement containing erroneous admission—Whether admissible as evidence of accused’s involvement in joint—Whether corroborated by evidence of accused’s behaviour during incident Carey v HM Advocate 148

Scottish Criminal Case Reports Edited by Sir Gerald H Gordon CBE, QC, LLD AA v HM Advocate (Sy) Carey v HM Advocate Clark v HM Advocate Haugen v HM Advocate (Sy) HM Advocate v Auld Macklin v HM Advocate Murphy v H

224 148 203 223 159 119 135

Murphy v Tariq (Sy) Potts v HM Advocate Rodgerson v Dunn Ross v Lord Advocate Sinclair v HM Advocate Watt v Dunn

225 109 114 176 209 131

A Appeal Against Extension of Time Bar

21 August 2015

DONNIE DANIEL POTTS

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2015] HCJAC 124 Solemn procedure—Time bar—Twelve-month period—Extension sought because of fault of Crown—Whether should be granted– Criminal Procedure (Scotland) Act 1995 (c.46), s.65(1), (3) Section 65(1) of the Criminal Procedure (Scotland) Act 1995 provides that a person shall not be tried on indictment in the sheriff court for any offence unless the trial is started within 12 months of his first appearance on petition in respect of the offence unless, in terms of s.65(3), the court extends the period on cause shown.

The appellant was charged on indictment in Hamilton Sheriff Court with theft by housebreaking. The Crown served an indictment on the basis of DNA evidence and some other evidence. In June 2015, after the 12-month period had been extended four times, principally because of late disclosure by the Crown, and on the last occasion because of lack of court time, the Crown sought a further extension. The depute fiscal who was to undertake the trial had reservations about the strength of the Crown case and had discovered that there was other evidence in the nature of the appellant’s bank accounts which were held in England which would make that case more compelling, but which could not be obtained in time to be used at the trial. It was then discovered that the existence of these accounts had been known to the Crown since February 2014. At that time the solemn legal manager in the fiscal’s office at Dumfries was responsible for warrants to be obtained at Hamilton Sheriff Court. A non-qualified member of the staff at Dumfries, the ‘case preparer’, advised the police that the application for a warrant to obtain records from the English bank should be submitted to that office. This was done and the senior legal manager there approved the application and asked her counterpart in Hamilton to draft a warrant and place it before the sheriff there for signature, but this was not done. After some contact between the police and the case preparer and between the two fiscals’ offices, the case preparer told the police in September 2014 that he had assumed that, as the case by then had been through a number of court diets, it had been decided to proceed without the English evidence. The fiscal at Hamilton had in fact decided on that course in the spring of 2014, and the question of the warrant had just fallen out of the picture. The Crown had thereafter told the sheriff at various diets that they were prepared for trial.

The sheriff, who was provided only with incomplete information, including information that the case preparer had told the police that the Crown would not be able to obtain a warrant to recover the bank evidence and the matter was not being pursued, granted the Crown’s application for a fifth extension on the view that the prior delays had been granted to accommodate the defence or because of pressure of court business.

The appellant then appealed to the High Court.

Held (1) that it was clear in terms of the first stage of the two-stage test in Swift v HM Advocate, infra, namely, whether the Crown had shown sufficient reason which might justify the extension, that the sheriff had concluded that

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the reason for the extension was that, due to an erroneous decision taken by a junior member of the procurator fiscal’s staff the line of enquiry had not been pursued, that it was clear from that conclusion that the full information in relation to this matter was not before the sheriff, that the information before the court indicated that there was a complete and sustained breakdown within the administration of the procurator fiscal service in relation to obtaining the warrant, that the error could have been readily avoided and could have been readily detected, and that it was clear that the procurator fiscal at Hamilton had decided to proceed without this evidence and had told the court on more than one occasion that the Crown were ready for trial (para.9); and (2) that the court was not surprised that on the basis of the information which was placed before him the sheriff came to the conclusion that he did, but that in the light of the full information placed before the court the matter was at large for it, and that. in all the circumstances the Crown had failed to advance sufficient reason to justify an extension (para.11); and appeal allowed.

Cases referred to in the opinion of the court: Early v HM Advocate [2006] HCJAC 65; 2006 SCCR 583; 2007 J.C. 50; 2006 SLT 856 Swift v HM Advocate, 1984 S.C.C.R. 216; 1984 J.C. 83; 1985 S.L.T. 26.

Donnie Daniel Potts was charged on indictment in Hamilton Sheriff Court on the charge referred to in the opinion of the court. On 18 June 2015 Sheriff Kelly granted an application for the extension of the 12-month period, and the appellant appealed to the High Court on the grounds referred to in the opinion of the court.

The appeal was heard on 1 August 2015 by Lord Brodie, Lord Bracadale and Lord Drummond Young.

For the appellant: Ogg, instructed by Gilfedder McInnes, Solicitors, Edinburgh.

For the respondent: Prentice, Solicitor advocate, AD.

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On 21 August 2015 the appeal was allowed. Lord Bracadale subsequently delivered the following opinion of the court.

LORD BRACADALE [1] On 18 June 2015 in terms of s.65(3) of the Criminal Procedure (Scotland) Act 1995 the sheriff at Hamilton granted an extension to the 12-month time limit. We allowed an appeal against that decision, indicating that we would give reasons in writing, which we now do.

[2] Before the sheriff the procurator fiscal depute moved to adjourn the case to a sitting commencing on 21 September 2015 and extend the 12-month time limit to 2 October 2015. He told the sheriff that he had been brought in as an ad hoc procurator fiscal depute earlier in the week. On reading the papers he had identified a serious omission in the preparation of the case as a result of which evidence which could have been led was unavailable. The charge related to a theft by housebreaking of ÂŁ50,000 of money from the house of an 80-year-old man. The procurator fiscal depute told the sheriff that when the case had been indicted in March 2014 it had proceeded upon DNA evidence recovered from a crowbar found at the locus. However, the DNA profile which matched that of the appellant was not the only DNA on the crowbar. There

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was also other evidence of telephone analysis which placed the appellant in the South Lanarkshire area at the time. The Crown had proceeded thus far on the basis of this evidence but the procurator fiscal depute conducting the trial had reservations as to the strength of the Crown case. He told the sheriff that amongst the papers there was information relating to banking transactions carried out by the appellant which had been available since mid-2014. This was to the effect that within four weeks of the theft the appellant had deposited cash amounting to over £15,000 at different bank branches. Bank staff had found it unusual that a large proportion of the bank notes were by then out of circulation. This was significant because the complainer had been a hoarder of money. The addition of this evidence would make the circumstantial case against the appellant considerably more compelling. The procurator fiscal depute told the sheriff that on 15 June 2015 he had spoken to the police reporting officer and had been told by the officer that at an earlier stage a nonqualified member of the procurator fiscal’s staff at Dumfries had told the reporting officer that the Crown would not be able to get a warrant to recover the relevant bank account records of the appellant, which were held in England, and that the matter was not being pursued. The trial procurator fiscal depute had disagreed with that assessment and earlier in the week of the trial had obtained a warrant which would require to be transmitted to a judge in England for endorsement before it could be executed. There was insufficient time to add this material by s.67 notice to allow the case to proceed at the sitting.

[3] The solicitor acting for the appellant opposed the motion pointing to the history of the case. This was the fifth request to extend the time limit. He referred to his requests for disclosure, the difficulty in obtaining it and his representations to the Crown as to the sufficiency of evidence against the appellant.

[4] The sheriff granted the motion. In his report he states that he took the view that on the submission presented an extension ought to be granted and the trial adjourned. As he saw it the reason for the extension was an erroneous decision taken by a junior member of the procurator fiscal’s staff. This had led to a line of enquiry not being pursued until the procurator fiscal depute tasked with the trial had “diligently located the material and recognised its significance”. In deciding whether to exercise his discretion to grant the extension the sheriff did not consider that there was prejudice to the appellant through further delay and had regard to the serious nature of the charge. In relation to the earlier extensions the sheriff noted that the first, on 2 May 2014, was due to a defence expert report being awaited. The second, on 22 August 2014, was to allow the defence time to consider material only recently obtained by them. The third, on 7 November 2014, was to allow the defence further time to obtain an expert report. The fourth, on 6 March 2015, had been due to pressure of business. The sheriff remarked: “Although this was to be the fifth extension, the prior delays were either to accommodate the appellant or due to other business set down by the court. Therefore I did not consider that it should be refused for that reason alone.”

[5] It became clear in the discussion before us that in certain important respects the information placed before the sheriff was either incorrect or misleading. It is necessary therefore to look in more detail at the history of the case.

[6] In a letter dated 18 August 2015 the senior procurator fiscal depute in the appeals unit at Crown Office wrote to the court giving further detail as to

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what had happened in relation to the application for a search warrant in respect of the bank transactions. Before us the advocate depute made reference to the letter and provided further information. It appears that a somewhat bizarre arrangement existed as part of the structure of the procurator fiscal service in the West of Scotland. The solemn legal manager in the procurator fiscal’s office at Dumfries had responsibility in relation to warrants, including warrants which required to be obtained at Hamilton Sheriff Court. The advocate depute explained that because of what had happened in this case this arrangement was no longer in place. We were told that the reference to a nonlegally qualified member of staff at Dumfries was a reference to a “case preparer”. On 20 February 2014 the case preparer at Dumfries sent an email to the reporting officer requesting that in relation to the bank transactions an application for a search warrant should be submitted to the Dumfries office for the attention of the Dumfries solemn legal manager. On 25 February 2014 a member of staff at the procurator fiscal’s office at Hamilton sent an email to the solemn legal manager at Dumfries indicating that the application for the warrant had been submitted to the procurator fiscal’s office at Hamilton but marked for the attention of the Dumfries solemn legal manager. The solemn legal manager indicated that she was aware of the application and would deal with it. She considered the application for the warrant and concluded that it was reasonable and appropriate. As she could not sign the warrant herself she sent an email to the solemn legal manager and the sheriff and jury administration manager at Hamilton requesting that the warrant should be drafted and signed and placed before the sheriff at Hamilton. The case preparer at Dumfries then advised the reporting officer by email that the warrant had been sent to the Hamilton procurator fiscal’s office for signing. The warrant had not in fact been drafted at that point. The staff at the office at Dumfries believed that the staff at the office at Hamilton were taking steps to obtain the warrant.

[7] Thereafter, on a number of occasions, the reporting officer raised the matter of the warrant with the case preparer at Dumfries. The case preparer at Dumfries raised the matter with the solemn legal manager at Dumfries who in turn raised it with the procurator fiscal’s office at Hamilton. On 29 September 2014 the reporting officer sent an email to the case preparer at Dumfries regarding the warrant. The case preparer at Dumfries responded by stating that he had heard nothing further on the matter and assumed that, as the case had been through a number of court diets by that stage, the procurator fiscal in Hamilton was content to proceed with the evidence that the Crown already had.

[8] The advocate depute advised us that in February or March of 2014 the procurator fiscal at Hamilton had made a decision that he was content to proceed on the evidence that was available, namely the evidence of DNA on the crowbar and the telephone evidence. At Hamilton it was thought that for some reason a decision had been taken not to pursue the bank evidence and it was just left aside. The advocate depute accepted that there had been an error in not following up the issue of the warrant and that evidence had simply fallen out of the picture.

[9] In terms of the first stage of the two-stage test in Swift v HM Advocate, namely, whether the Crown had shown sufficient reason which might justify the extension, the sheriff had concluded that the reason for the extension was that due to an erroneous decision being taken by a junior member of the procurator fiscal’s staff the line of enquiry had not been pursued. It is clear from that conclusion that the full information in relation to this matter which was set out before us was not before the sheriff. In our view the information

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before us indicates that there was a complete and sustained breakdown within the administration of the procurator fiscal service in relation to obtaining the warrant. The error could have been readily avoided; it could have been readily detected (Early v HM Advocate, LJC (Gill) at para.27). Furthermore, it is clear that the procurator fiscal at Hamilton had decided to proceed without this evidence and had told the court on more than one occasion that the Crown were ready for trial.

[10] The reason also falls to be examined in the light of the explanation given to the sheriff about the earlier adjournments of the case. In this respect, also, the information before the sheriff was incomplete. Ms Ogg, who appeared on behalf of the appellant, produced a timeline of events which was accepted by the advocate depute as being accurate. It is not necessary to examine the timeline in detail; it makes sorry reading. It is sufficient to note that the defence motions to adjourn the trial diets were driven by late disclosure of the DNA report and the telephone analysis. It became clear that the sheriff’s observation that earlier adjournments had been granted in order to accommodate the defence were made upon an incomplete understanding of the reasons for these motions.

[11] We were not surprised that on the basis of the information which was placed before him the sheriff came to the conclusion that he did.We considered, however, that in the light of the full information placed before us the matter was at large for us. In all the circumstances we were satisfied that the Crown had failed to advance sufficient reason to justify an extension. In these circumstances it was not necessary for us to go on to address the question of the exercise of discretion and we allowed the appeal.

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D COMMENTARY This case is reported as a rare example of a successful appeal against an extension of the 12-month period where the delay was due to the fault of the Crown. I do not know, however, why the court thought it necessary to say that it was because the sheriff was misinformed, that the matter was at large for them. Did that mean that if the sheriff had had the same information as the court had and had still granted the extension, they would not have interfered with his decision? The first part of what we might call the Swift test is not usually regarded as a matter of discretion, albeit a Crown error may be excusable (see HM Advocate v Crawford [2005] HCJAC 125; 2016 G.W.D. 3–71: discretion only comes into play once the Crown have shown sufficient reason for an extension.

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A Appeal Against Sentence

8 December 2015

LIAM JOSEPH ALLAN REID RODGERSON

Appellant

against B

JOHN DUNN (Procurator Fiscal, Alloa)

Respondent [2016] HCJAC 12

Sentence—Sex offenders register—Sending indecent messages on Facebook—Messages sent as joke—Whether significant sexual aspect to offence—Sexual Offenders Act 2003 (c.42), Sched.3, para.60 C

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The Sexual Offenders Act 2003 provides that persons convicted of sexual offences, as listed in Sched.3 to the Act, are automatically subject to certain mandatory notification requirements, normally described as being placed on the sex offenders’ register. The list includes, in terms of para.60, any other offence which the court certifies as including a significant sexual aspect.

The appellant and another person were charged with a breach of s.127(1) (a) of the Communications Act 2003 by exchanging messages on Facebook which were grossly offensive, in that they contained grossly offensive remarks about the sexual abuse of children. The appellant pled guilty. The Crown did not seek an order placing him on the sexual offenders register, but the presiding sheriff, having received an email from the police which raised the matter, certified that the offence contained a significant sexual aspect and ordered him to be placed on the register. The appellant appealed against that order.

Held (1) that the question whether the sexual aspect of an accused’s behaviour was significant should be assessed in the light of the purpose and effects of registration, and it was immediately clear that this was an exchange of sick jokes in the worst possible taste, but that they were clearly jokes and reflected the format of jokes (para.8); (2) that when the appellant’s behaviour was examined in the light of the purpose and effects of registration it could not be said that it contained a significant sexual element (para.8, p. 117F); and (3) that it was not open to the sheriff to conclude that the appellant was a person who constituted a continuing danger to others such that registration was required to protect the public from him, and that if the matter were tested, by considering whether the sexual aspect was important enough to merit attention as indicating an underlying sexual disorder or deviance from which society is entitled to be protected, the behaviour of the appellant could not be said to fall into that category (para.8, pp.117–118); and appeal allowed and order quashed.

Test in Hay v HM Advocate [2012] HCJAC 28; 2012 S.C.C.R. 281; 2104 J.C. 19; 2012 S.L.T. 569 applied.

Case referred to in the opinion of the court: Hay v HM Advocate [2012] HCJAC 28; 2012 S.C.C.R. 281; 2104 J.C. 19, 2012 S.L.T. 569.

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Liam Joseph Allan Reid Rodgerson pled guilty on 10 December 2014 in the sheriff court at Alloa to a breach of s.127(1) (a) of the Communications Act 2003 by sending the messages set out in the opinion of the court. The sheriff (Mackie) ordered him to be placed on the sex offenders register and he 114

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appealed to the High Court against that order on the grounds referred to in the opinion of the court.

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The appeal was heard by Lord Bracadale and Lord Drummond Young.

For the appellant: Fyffe, Solicitor advocate, instructed by Martin Johnston & Socha, Solicitors, Alloa.

For the respondent: Rodger AD. On 8 December 2015 Lord Bracadale delivered the following opinion of the court.

LORD BRACADALE [1] On 10 December 2014 the appellant pled guilty to a contravention of the Communications Act 2003 s.127(1)(a) by sending on Facebook communications network messages which were grossly offensive or of an indecent or obscene or menacing character in that they did contain grossly offensive remarks about the death of a child and sexual remarks about children.

Because the co-accused did not plead guilty until a trial diet in June 2015 the case was not finally disposed of until 20 August 2015. In respect of the appellant the sheriff made a community payback order with a supervision requirement for a period of six months. In addition, he certified that the offence was a sexual offence to which Pt.2 of the Sexual Offences Act 2003 (the 2003 Act) applied as a result of which the appellant was subject to the notification requirements of the Act. The appellant was granted leave to appeal against the certification under the 2003 Act. At a hearing before this court we allowed the appeal to the extent of quashing the order of the sheriff directing that the appellant be subject to the notification requirements contained in the 2003 Act and stated that we would give written reasons later, which we now do.

[2] In an appendix to his report the sheriff reproduced a document which had been placed before him by the Crown recording various Facebook entries in the pages of the appellant and his co-accused: “Accused Rodgerson Facebook status read: “ ‘After finding a five-year-old Scottish boy dead with his heart missing, a police spokesman said, that must have been one hell of a game of operation they played.’

“Accused Tallis has commented on the status saying: “ ‘Hahaha belter!!’

“And “ ‘What’s the best part about sex with a 5-year old? Make your dick look massive!!’

“Accused Rodgerson has replied: “ ‘Better effect than a razor.’

“Accused Tallis then adds a comment saying: “ ‘What do you get when you kill a baby? A hardon.’

“Accused Tallis Facebook status read: “ ‘Apparently 60% of kids are overweight and 72% of kids are having under age sex. . .so who is shagging all the fat kids?’

“Accused Rodgerson replied to this saying: “ ‘Nah bro no heard any for a while a just hit the giggles.’

“Accused Tallis replied: “ ‘A ken anger decent wan!’

“And “ ‘Two persons on a bench, wee 11-year-old lassie walks past, they say to each er ya cunt she’s let herself go er the years.’

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“Accused Rodgerson then commented: “ ‘Haha a just put a couple up’ “Another Facebook status from accused Tallis read: “ ‘Went to the pub with my girlfriend last night. Locals were shouting “pedophile” and other names at me, just because my girlfriend is 21 and I’m 50. It completely spoiled our 10th anniversary.’ ” [3] It is immediately clear that this was an exchange of sick jokes in the worst possible taste. The sheriff states that there was an aspect of local relevance in that the exchange of postings on Facebook by the appellant and the co-accused occurred soon after the brutal and ritualistic killing of a five-year-old boy by his mother at a location within the area of the court.

[4] The offence to which the appellant pled guilty is not one of the offences specified in Sched.3 to the 2003 Act which result in automatic registration for notification under the Act. A person convicted of this offence could only become subject to the notification requirements if in terms of para.60 of Sched.3 to the 2003 Act the court determined that there was a significant sexual aspect to the offender’s behaviour in committing the offence. The question as to whether there was a significant sexual aspect to the behaviour of the appellant emerged before the sheriff in a curious way. The Crown did not raise the issue. Both initially before the sheriff and before us, the Crown accepted that there was no significant sexual aspect to the offender’s behaviour such as to meet the requirement of para.60. The issue was raised in an email sent by the police directly to the sheriff court. As a result, the sheriff raised the matter with the parties. The agents for the appellant and the co-accused, and the procurator fiscal depute, all submitted that the requirements of para.60 were not met. We are bound to express surprise and some concern that the matter was raised by a direct approach from the police to the court rather than through the Crown.

[5] In any event, the sheriff concluded that in terms of para.60 there was a significant sexual aspect to the behaviour of the appellant and his co-accused in committing the offence. He considered that any reasonable person seeing the comments and postings between the appellant and the co-accused would observe that they were wholly associated with sexual abuse of children and babies, making light of it and turning it into a series of sick jokes. The whole essence of the communications in which the appellant engaged with his co-accused was that they were sexual in nature and the sheriff formed the view that there was a sexual aspect to the behaviour of the appellant. In relation to whether the sexual aspect could be described as significant the sheriff distinguished the case from the drunken, boorish and spontaneous behaviour which had characterised some of the cases in which it had been held that the requirement of para.60 had not been met. The sheriff considered that the sharing of such material on the internet could be said to be analogous to the sort of conduct that is involved in the sharing of indecent images of children.

The appellant and the co-accused were perpetuating the circulation of remarks from the internet potentially harmful to children and to the public. The sheriff considered that it was nothing to the point that the appellant derived no sexual pleasure or satisfaction from his actings.

[6] In written and oral submissions on behalf of the appellant before us it was accepted that the subject-matter of the jokes included paedophilia. It was, however, submitted that the “behaviour” of the appellant did not have a sexual element and if it did it could not be said to be significant. The sheriff was wrong to conclude that the appellant’s behaviour had a significant sexual element because the jokes contained sexual references. Whether the sexual

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element was significant was a question which had to be addressed having regard to the purpose of registration and its effects (Hay v HM Advocate, LJC (Gill) at para.52). The behaviour comprised two individuals exchanging messages which were categorised as sick jokes copied from other sites on the internet. It was clear from the content that they were in the form of jokes reflecting a warped sense of humour. When the behaviour of the appellant was examined in the light of the purpose and effects of registration there was no perceived sexual danger to the public. The behaviour did not display an underlying sexual disorder or deviance. The appellant had derived no sexual pleasure or satisfaction from his actions. The sheriff was wrong to find the conduct analogous to the sharing of indecent images of children.

[7] The advocate depute agreed with these submissions, stressing that in the Crown’s submission the comparison with the distribution of indecent images of children was inappropriate. An offence of that type involved specific children and was directed at the sexual gratification of the offender.

[8] We are satisfied that the submissions advanced on behalf of the appellant and the Crown are well founded. The purpose and effects of registration as a sex offender are set out in paras. 34 and 35 of Hay: “It will be apparent from the legislation that I have quoted that registration as a sex offender is not a sentence. The purpose of registration is not punitive. It is protective. It enables the police to keep tabs on a sex offender who is, or who may be, a continuing danger to others, and particularly to women and young people.

[35] However, although registration does not constitute a sentence, it is nonetheless a grave stigma and one which, designedly, places onerous restrictions and requirements on the registered offender’s life. In particular, the offender has the public status of sex offender. He is under a continuing obligation throughout the registration period to inform the police of his whereabouts and to notify them whenever he changes his address.”

The question whether a sexual aspect of the accused’s behaviour is significant should be assessed in the light of the purpose and effects of registration. At para.52 in Hay guidance is given as to how sentencers should approach the issue: “In my opinion it would be futile to attempt to define the word ‘significant’ as it is used in para.60 of Sch.3. That is a question best left to the judgment of the sentencer. Since the purpose of registration is to protect the public against a perceived danger, the question whether a sexual aspect of the accused’s behaviour was significant should be assessed in that light.

One way to approach that is to consider whether the sexual aspect is important enough to merit attention as indicating an underlying sexual disorder or deviance from which society is entitled to be protected (Wylie v M [2009 S.L.T. (Sh. Ct.) 18], Sheriff Pyle, para.13). In this difficult exercise, in my view, sentencers should consider the accused’s behaviour in the context of the purpose and the effects of registration, keep a sense of proportion and use their commonsense.”

When the appellant’s behaviour is examined in the light of the purpose and effects of registration it cannot be said that the behaviour contained a significant sexual element. In our opinion the sheriff erred in finding that it did. As we have already noted, the appellant and the co-accused exchanged sick jokes in the worst possible taste. They were, however, clearly jokes; they reflected the format of jokes. In our view it was not open to the sheriff to conclude that the appellant was a person who constituted a continuing danger to others such that registration was required to protect the public from him. If

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the matter is tested, as is suggested in para.52 of Hay, by considering whether the sexual aspect is important enough to merit attention as indicating an underlying sexual disorder or deviance from which society is entitled to be protected, we consider that the behaviour of the appellant cannot be said to fall into that category.

[9] For these reasons we allowed the appeal and quashed the order of the sheriff certifying the appellant as being subject [to] the notification requirements of the 2003 Act.

B COMMENTARY This case should have some moderating effect on the use of registration in the sex offenders register. It will also be regarded as a boon by comedians.

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A Appeal to Supreme Court

16 December 2015

PAUL ALEXANDER MACKLIN

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2015] UKSC 77 Devolution issue—Disclosure—Effect of failure to disclose statements of witnesses—Whether disclosure would have led to different verdict— Whether competent to argue in Supreme Court that High Court failed to apply test correctly Compatibility issue—Convertible devolution issue—Appeal directed to compatibility of judge’s charge in 2003 with European Convention on Human Rights—Whether capable of becoming convertible devolution issue—Scotland Act 1998 (c.46), s.57(3)—Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (SI 2013/7), art.2 Section 36 of the Scotland Act 2012 amended s.57(3) of, and Sched.6 to, the Scotland Act 1998, in so far as they made the incompatibility of acts of, inter alia, the Lord Advocate, with the ECHR devolution issues, and provided that such contraventions in criminal cases should be dealt with as compatibility issues, a class created by the 2012 Act, and thus be capable of forming a ground of appeal to the Supreme Court.

Article 2 of the Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 provides that where a devolution issue arose in criminal proceedings before 22 April 2013, the date of the coming into force of s.36 of the Act, which would have been a compatibility issue had it arisen after that date and which had not been fully determined before that date, it was what the Order called a convertible devolution issue and fell to be treated as a compatibility issue.

It was held by the Supreme Court n McInnes v HM Advocate, infra, that in a question as to the effect of a failure by the Crown to disclose material to the defence, the court had to apply two tests: (i) whether the material was such that there was a duty to disclose it; and (ii) whether if the material had been disclosed there was a real possibility that it would have led to a different verdict.

The appellant was convicted in 2003 of, inter alia, assault, after a trial in which the Crown relied on the dock identification evidence of two police officers who had not attended an identification parade. The trial judge gave the standard directions on the difficulties of identification evidence, but made no specific reference to the particular problems of dock identification. The Crown subsequently disclosed that the police had further information which had not been disclosed to the defence, and which included the discovery of the fingerprints of a known criminal in the getaway car, a statement by a witness describing the perpetrator in terms which were inconsistent with the appellant’s appearance, and statements by two other witnesses who had been unable to identify the appellant from photographs.

The appellant appealed to the High Court on the grounds that the leading of the dock identifications and the failures in disclosure had led to an unfair

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trial. The Crown conceded that the statements mentioned above should have been disclosed, and would have been disclosed in accordance with the present practice, but submitted that there was no duty to disclose the fingerprint evidence and certain other statements. The High Court applied the test in McInnes v HM Advocate, infra, held that the fingerprint evidence did not require to be disclosed, and that the leading of evidence which ought to have been disclosed would not have given rise to a real possibility of a different verdict, and refused the appeal. The court also held that even if the trial judge’s omission of specific directions on dock identification had been a misdirection it was not one which had led to a miscarriage of justice.

The appellant then appealed to the Supreme Court. It was conceded that neither the dock identification nor the judge’s directions were in themselves violations of the appellant’s Convention rights, but it was argued that these aspects of the prosecution formed part of the context in which the significance of the non-disclosures had to be assessed. Reference was made to current Crown Office practice which would have led to the disclosure of all the undisclosed material. It was also submitted that although the High Court had purported to apply the McInnes test, they had in fact only paid lip service to it, and that their conclusion in relation to the effect of the non-disclosure was an absurd one, and accordingly was one with which it was open to the Supreme Court to interfere.

Held (1) that although the actions of a trial judge could now give rise to a compatibility issue they could not have given rise to a devolution issue and so could not give rise to a convertible devolution issue, and that aspect of the appeal was incompetent (para.10); (2) that while the Supreme Court had jurisdiction to determine whether the High Court had applied the correct test in cases such as this, short of some exceptional cases it was difficult to envisage circumstances in which an argument that the High Court had identified the correct test but had failed to apply it would be distinguishable from an argument that the test had not been applied correctly, that the latter was one the Supreme Court could not entertain, since to do so would undermine the finality of the High Court’s decisions by permitting challenges to the correctness of the High Court’s application of the McInnes test to be dressed in the guise of arguments that it identified the test but failed to apply it (paras. 22, 43); and (3) that it was clear in this case that the High Court had correctly identified the correct test and applied it to the circumstances of the case (para.23); and appeal refused.

Observed that the practice of the Crown, whether past or present, is not the measure of the requirements of art.6 (para.18).

McInnes v HM Advocate [2010] UKSC 7; 2010 S.C.C.R. 286; 2010 S.C. (U.K.S.C.) 28; 2010 S.L.T. 266 applied.

Holland v HM Advocate [2005] UKPC D 1; 2005 S.C.C.R.417; 2005 S.C. (P.C.) 3; 2005 S.L.T. 563 distinguished.

Cases referred to in the opinion of the court:

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Edwards v United Kingdom [1992] ECHR 77; (1992) 15 EHRR 417 Holland v HM Advocate [2005] UKPC D 1; 2005 S.C.C.R.417; 2005 S.C. (P.C.) 3; 2005 S.L.T. 563 Macklin v HM Advocate [2013] HCJAC 80; 2013 S.C.C.R. 616 McDonald v HM Advocate [2008] UKPC 46; 2008 S.C.C.R. 954; 2010 S.C. (P.C.) 1; 2008 S.L.T. 993 McInnes v HM Advocate [2010] UKSC 7; 2010 S.C.C.R. 286; 2010 S.C. (U.K.S.C.) 28; 2010 S.L.T. 266 Mansell v United Kingdom (2003) 36 E.H.R.R. C.D. 221 Sinclair v HM Advocate, 2005 S.C. (P.C.) 28.

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Paul Alexander Macklin was convicted of, inter alia, assault, after trial on 26 September 2003 in the High Court at Aberdeen before Lord Morison and a jury. His appeal against conviction was refused by the High Court on 11 September 2013 (Macklin v HM Advocate [2013] HCJAC 80; 2013 S.C.C.R. 616) and he was given leave to appeal to the Supreme Court.

The appeal was heard on 4 November 2015 by Lord Neuberger, Lady Hale, Lord Sumption, Lord Reed, Lord Hughes, Lord Toulson and Lord Gill.

For the appellant: Jackson QC, Considine, instructed by Fitzpatrick & Co, Solicitors, Glasgow.

For the respondent: Brown QC, Gray.

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On 16 December 2015 the following judgments were given.

LORD REED (with whom Lord Neuberger, Lady Hale, Lord Sumption, Lord Hughes and Lord Toulson agreed) The background to this appeal

1. The appellant, Paul Macklin, was convicted after trial on 26 September 2003 of a charge of possession of a handgun in contravention of s.17 of the Firearms Act 1968, and a further charge of assaulting two police officers by repeatedly presenting the handgun at them. The only issue in dispute at his trial was whether he was the person who had been pursued by the officers after an incident to which they had been called, and during that pursuit had turned repeatedly and pointed the gun at them. At the trial, the appellant was identified by both of the officers. One gave evidence implying that he recognised the appellant at the time of the incident. The other had identified the appellant from a selection of photographs shown to him after the incident. Their evidence was challenged at the trial in cross-examination by counsel for the appellant, and in counsel’s address to the jury. In his directions to the jury, the judge warned them about the risk that visual identification evidence might be unreliable. In accordance with the practice at the time, he gave no directions specifically concerning the risks which might be associated with the identification of an accused person in court.

2. Some years later, following developments in practice in relation to the disclosure of unused material, the Crown disclosed to the appellant a quantity of material which had not been disclosed at the time of the trial. This included statements given to the police by a number of witnesses who had seen part of the pursuit of the gunman by the officers, or had seen the car in which he escaped. One of those witnesses was recorded as giving a description of the gunman which was inconsistent with the appearance of the appellant. Two other witnesses were recorded as having failed to identify the appellant when shown his photograph. It was also disclosed that the police had found fingerprints belonging to someone other than the appellant inside the car, and that the person identified by the fingerprints had a criminal record.

3. In the light of these disclosures, in 2012 the appellant was granted leave to appeal against his conviction on three grounds. The first ground was based on the Crown’s failure to disclose material evidence to the defence. The second ground was based on the Crown’s leading and relying on the evidence of dock identifications by the police officers, without the other material evidence having been disclosed, and without the officers having previously participated in an identification parade. The third ground was based on a contention that the judge had misdirected the jury in relation to the identification evidence, in that he had failed to warn the jury in relation to the dangers of dock

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identification evidence, particularly where no identification parade had been held. The first and second of these grounds of appeal raised devolution issues, as defined in para.1 of Sched.6 to the Scotland Act 1998 (the 1998 Act). In other words, it was contended that, in the respects identified in those grounds of appeal, the Lord Advocate, who was a member of the Scottish Government and the person responsible for the conduct of the prosecution, had acted in a manner which was incompatible with the appellant’s Convention rights under art.6(1) of the European Convention on Human Rights.

4. On 11 September 2013 the High Court of Justiciary refused the appeal, for reasons which were explained in an opinion delivered by Lord Mackay of Drumadoon. The appellant was subsequently granted permission to appeal to this court under s.288AA of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act), inserted by s.36 of the Scotland Act 2012 (the 2012 Act).

The jurisdiction of this court

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5. It is important to understand the nature of the jurisdiction exercised by this court under s.288AA of the 1995 Act. The court does not sit as a criminal appeal court exercising a general power of review.

6. Subject to a small number of specified exceptions, every interlocutor and sentence pronounced by the High Court in appeals in solemn proceedings is, by statute, final and conclusive and not subject to review by any court whatsoever: 1995 Act, s.124(2). One exception enables the High Court to review its own decisions on references by the Scottish Criminal Cases Review Commission. The other exceptions enable this court to determine compatibility issues (an expression which I shall explain shortly) on references under s.288ZB of the 1995 Act (inserted by s.35 of the 2012 Act) and appeals under s.288AA, and to determine devolution issues on appeals under para.13(a) of Sched.6 to the 1998 Act. 7. The concept of a compatibility issue was introduced by s.34 of the 2012 Act, which inserted a new s.288ZA into the 1995 Act. That section defines a compatibility issue as a question arising in criminal proceedings as to whether a public authority has acted (or proposes to act) in a way which is made unlawful by s.6(1) of the Human Rights Act 1998, or in a way which is incompatible with EU law, or whether an Act of the Scottish Parliament or any provision of such an Act is incompatible with any of the Convention rights or with EU law. Section 36(4) of the 2012 Act amended the definition of devolution issues in para.1 of Sched.6 to the 1998 Act so as to exclude compatibility issues from its scope.

8. One consequence of these provisions is that some questions which fell within the definition of devolution issues before the 2012 Act came into force no longer fall within that definition, but fall instead within the definition of compatibility issues. Another consequence is that some questions which, before the 2012 Act came into force, did not fall within the definition of devolution issues, now fall within the definition of compatibility issues.

9. The present case illustrates the point. As I have explained, the first and second grounds of appeal before the High Court raised questions as to the compatibility of the conduct of the prosecution with the appellant’s Convention rights. Under the 1998 Act as it stood prior to amendment by the 2012 Act, those questions constituted devolution issues. Under s.288ZA of the 1995 Act, on the other hand, those questions would be classified as compatibility issues. The appellant’s third ground of appeal, concerning an alleged misdirection by the trial judge, did not raise a devolution issue, since the trial judge was not a member of the Scottish Government. Under the provisions introduced by the 2012 Act, on the other hand, a direction by a judge may

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raise a compatibility issue, if there is a question whether the judge has acted in a way which was incompatible with the appellant’s Convention rights.

10. In order to address potential problems arising from the differences between the system operating before the 2012 Act came into force and the system operating afterwards, transitional provisions were introduced by the Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (SSI 2013/7). Article 2 of the Order introduced the concept of a convertible devolution issue, defined as a question arising in criminal proceedings before the relevant date which: (a) is a devolution issue; (b) would have been a compatibility issue had it arisen on or after that date; and (c) had not been finally determined before the relevant date. The relevant date was 22 April 2013, when the relevant provisions of the 2012 Act came into force. As at that date, the devolution issues raised by the appellant’s first and second grounds of appeal had not been finally determined. As I have explained, those issues would have been compatibility issues had they arisen on or after that date. It follows that those questions are convertible devolution issues. By virtue of art.3 of the Order, convertible devolution issue became compatibility issues on the relevant date (subject to exceptions which do not apply in the present case). The questions raised by the appellant as to the compatibility of the conduct of the prosecution with his Convention rights are therefore compatibility issues. No compatibility issue arises, however, in relation to the directions given by the trial judge, since his directions did not give rise to a devolution issue, and therefore did not give rise to a convertible devolution issue.

11. Finally, in relation to jurisdiction, it is important to understand the limited nature of this court’s powers on an appeal for the purpose of determining a compatibility issue. In terms of s.288AA(2) of the 1995 Act, the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue, that is to say, in the present case, the question whether the Lord Advocate has acted in a way which is made unlawful by s.6(1) of the Human Rights Act. When it has determined the compatibility issue, the Supreme Court must remit the proceedings to the High Court: s.288AA(3).

The present appeal

12. The compatibility issue raised in the present appeal concerns the question whether the Crown acted incompatibly with the appellant’s Convention rights under art.6(1) by failing to disclose material evidence to the defence and by leading and relying on the evidence of identification by the police officers, without the other material evidence having been disclosed, and without the officers having previously participated in an identification parade. Counsel for the appellant emphasised in his submissions that these were not two separate complaints, about non-disclosure on the one hand, and dock identification on the other hand. He was not arguing that the appellant’s Convention rights had been violated by the dock identification or the judge’s directions. His submission was that these aspects of the proceedings had cumulatively resulted in a violation by the prosecution of art.6(1). The Crown’s reliance on identification of the appellant in court, without an earlier identification parade, formed part of the context in which the significance of the non-disclosure of the other material bearing on identification had to be assessed.

13. As the European Court of Human Rights explained in Edwards v United Kingdom, the question whether a failure of disclosure has resulted in a breach of art.6(1) has to be considered in the light of the proceedings as a whole,

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including the decisions of appellate courts. This means that the question has to be approached in two stages. First, it is necessary to decide whether the prosecution authorities failed to disclose to the defence all material evidence for or against the accused, in circumstances in which a failure to do so would result in a violation of art.6(1). If so, the question which then arises is whether the defect in the trial proceedings was remedied by the subsequent procedure before the appellate court. That was held to have occurred in Edwards, where the Court of Appeal had considered in detail the impact of the new information on the conviction. The European Court observed that it was not within its province to substitute its own assessment of the facts for that of the domestic courts, and, as a general rule, that it was for those courts to assess the evidence before them. Those observations were repeated in Mansell v United Kingdom, where the non-disclosure of material evidence in the trial proceedings was again held to have been remedied by the Court of Appeal’s examination of the impact of the non-disclosure upon the safety of the conviction.

14. That approach was translated into a domestic context in the case of McInnes v HM Advocate As Lord Hope explained at paras. 19 and 20, two questions arise in a case of this kind to which a test must be applied. The first question is whether the material which has been withheld from the defence was material which ought to have been disclosed. The test here is whether the material might have materially weakened the Crown case or materially strengthened the case for the defence. If that test is satisfied, the question then arises as to the consequences of the non-disclosure. The test here is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict.

15. In the present case, it was conceded by the Crown before the High Court that the statement given by the witness who had given a description inconsistent with the appellant’s appearance, and the statements given by the two witnesses who had failed to identify the appellant from a photograph, ought to have been disclosed. In concluding that the Crown had not been under a duty to disclose the remainder of the undisclosed statements, the court stated that, in its opinion, there was nothing in any of the statements in question that would either have weakened the Crown case or strengthened the defence case. Similarly, in concluding that the Crown had not been under a duty to disclose the fingerprint evidence, the court stated that, in its opinion, it did not constitute evidence which materially weakened the Crown case or materially strengthened the defence case. Those conclusions reflected the terms of the first test in McInnes. The court explained in detail its reasons for reaching those conclusions on the facts of the case.

16. The High Court then considered the significance of the failure to disclose the statements which should have been disclosed. In relation to the statement given by the witness whose description of the gunman was inconsistent with the appellant’s appearance, it stated that it was not persuaded that leading the evidence of that witness would have given rise to a real possibility that the jury would have returned a different verdict. In relation to the statements given by the two witnesses who had failed to identify the appellant from a photograph, it concluded that, in the context of the evidence as whole, there was no real possibility that the evidence of the witnesses in question would have caused the jury to come to a different view as to the identity of the gunman. Those conclusions reflected the terms of the second test in McInnes. Detailed reasons were given for reaching those conclusions.

They were based on a review of the entirety of the evidence, including the identification evidence given in court by the police officers.

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17. The court also considered separately the question whether the Crown’s leading of the identification evidence from the police officers had in itself resulted in the Lord Advocate’s acting incompatibly with art.6(1), that question having been raised before it as a distinct ground of appeal. After reviewing the relevant circumstances, the court concluded that the leading of the evidence had not been a violation of art.6(1).

18. Before this court, counsel for the appellant challenged the High Court’s conclusion that some of the undisclosed material did not require to be disclosed under art.6(1). In that connection, he submitted that, under current Crown practice, all of the material would have been disclosed. The practice of the Crown, whether past or present, is not however the measure of the requirements of art.6(1). To say, as counsel submitted, that if material would be disclosed now, it should have been disclosed then, is a non sequitur. The question is to be determined by applying the first test laid down in McInnes.

The High Court applied that test.

19. Counsel also challenged the High Court’s conclusion as to the significance of the admitted failures in disclosure. He submitted that, although the High Court had framed its analysis and its conclusions in terms of the second test laid down in McInnes, its conclusions were so manifestly wrong that it had not in reality applied that test. Counsel accepted, as a general proposition, that this court had no jurisdiction to review how the High Court applied the test, but submitted that the position was otherwise where the High Court had merely paid lip-service to the test, and had reached so absurd a conclusion that the test could not in reality have been applied. In that connection, he submitted that, comparing the facts of the present case with those of the case of Holland v HM Advocate, the non-disclosure had been of less significance in Holland, but a violation of art.6(1) had nevertheless been found by the Judicial Committee in that case.

20. In McInnes, Lord Hope explained at para.18 that the question for the Supreme Court, where there has been a failure in the duty of disclosure, is to determine the correct test for the determination of the appeal. “It does not”, he said, “extend to the question whether the test, once it has been identified, was applied correctly.” Lord Hope explained that that followed from the statutory finality of the High Court’s decision under s.124(2) of the 1995 Act, subject to an appeal against a determination of a devolution issue. The question as to what was the correct test formed part of the devolution issue, but, “The application of the test to the facts of the case was a matter that lay exclusively within the jurisdiction of the appeal court.” Lord Brown similarly stated at para.34 that this court could decide whether the High Court adopted the correct legal test but not whether it then applied that test correctly on the facts. The other members of the court agreed. Mutatis mutandis, those dicta apply equally to the determination of a compatibility issue.

21. In the present case, counsel for the appellant relied on an observation made by Lord Hope later in his judgment, at para.25: “As I have already observed, it is not for this court to say whether the test was applied correctly. But it is open to it to examine the reasons given by the appeal court for concluding that there had not been a miscarriage of justice to see whether they show that it applied the correct test.”

In that passage, Lord Hope was not qualifying what he had earlier said in para.18. As the earlier part of para.25 makes clear, he was addressing the fact that the High Court had not, in that case, purported to apply the test subsequently laid down in McInnes, but had instead applied the test, applicable

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generally in solemn appeals, of whether there had been a miscarriage of justice.

In applying that test, the High Court had asked itself whether there was “a real risk of prejudice to the defence” (see McInnes at para.16). The question which Lord Hope was addressing in para.25 was whether, in formulating the test in that way, the High Court had asked itself the wrong question. Lord Hope answered the question by examining the High Court’s reasoning, from which it appeared that, although the court’s description of the test was incomplete, the test that it applied was the correct one.

22. Counsel for the Crown conceded that this court might have jurisdiction to intervene if the High Court merely purported to apply the McInnes test but did not actually apply it. Short of some exceptional case, however, it is difficult to envisage circumstances in which an argument that the High Court had identified the correct test, but had failed to apply it, would be distinguishable from an argument that the test had not been applied correctly. The latter argument is one that this court cannot entertain. It is important that that principle, which gives effect to the finality accorded to the High Court’s decisions, should not be undermined by permitting challenges to the correctness of the High Court’s application of the McInnes test to be dressed up in the guise of arguments that it identified the test but failed to apply it.

23. In the present case, it is clear from its reasoning that the High Court not only identified the correct test but also applied it to the circumstances of the case. The suggested comparison with the decision in Holland is of no assistance.

In the first place, the Judicial Committee was not in that case performing the same exercise as this court in the present appeal. The High Court had not in that case applied the McInnes test: the case preceded McInnes by several years.

Furthermore, the Judicial Committee proceeded in that case on the basis that the High Court, in considering the impact of non-disclosure and dock identification separately at different hearings before differently constituted courts, had failed to consider the cumulative impact of both aspects of the trial upon the fairness of the proceedings, and that that question must therefore be considered for the first time by the committee itself: see para.43. The approach adopted by the Judicial Committee reflected those circumstances, neither of which is present in this appeal. Moreover, and in any event, contrasting the conclusions reached by different panels of judges as to the significance of failures to disclose different evidence in the circumstances of different cases tells one nothing about the correctness of either decision, even if that were a matter which this court could properly assess.

24. I would dismiss the appeal.

LORD GILL The conviction

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25. On 26 September 2003 the appellant was convicted at Aberdeen High Court of a contravention of s.17 of the Firearms Act 1968 and of assault on two police officers by repeatedly presenting a handgun at them.

The evidence of identification

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26. The agreed facts were that the police officers, Sergeant Henry Ferguson and Constable Simon Reid, chased a suspect on foot from Printfield Terrace to Hilton Terrace, Aberdeen. Three times during the chase the suspect confronted them and pointed a handgun at them. The incident occurred in broad daylight just after midday in the month of May. The suspect had not disguised his face in any way. The suspect escaped in a black Ford Sierra. It was abandoned nearby.

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27. At the trial the stark issue was the identification of the gunman. Sergeant Ferguson identified the appellant in the dock. He said that at the time of the incident he thought that the suspect’s face was familiar, but he could not say who he was. When he returned to Police Headquarters he made enquiries about the suspect’s identity. He had a conversation with a colleague to prod his memory.

In cross-examination he was asked if he had any doubt about his identification.

He replied “No doubt whatsoever.” Constable Reid too made a dock identification. He confirmed that about two hours after the incident at Police Headquarters he had been shown photographs and had identified the person that he thought had been the gunman. In cross-examination he was asked if there was any possibility that he had identified the wrong person in court. He replied “No.” He was asked if he was sure about that. He replied “Yes.” 28. Two witnesses said that the man in the dock was not the gunman. The first, Michael Reid, was said by the trial judge in his report to have been nervous. The second, John Ronald, was a criminal with a serious record of crimes of dishonesty. He prevaricated in evidence as to whether he knew the appellant. There were various discrepancies in his three police statements. The appellant himself said that at the material time he had been at the home of Adrian Martin and his mother, neither of whom were cited by the defence. He agreed that on the morning after the incident he had checked in at a hotel in Aberdeen under a false name and was arrested there on the following day. One witness, Ian Whyte, supported the alibi. His credibility was undermined by his criminal record and by his having visited the appellant in prison twice before he gave his evidence.

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Subsequent disclosure

29. In 2005 the Judicial Committee of the Privy Council allowed two appeals from the High Court in which the question of non-disclosure of evidence by the Crown was a material issue (Holland v HM Advocate [and] Sinclair v HM Advocate. In consequence of those decisions and the change in Crown practice to which they led, the Crown disclosed the fact that a fingerprint of Thomas Pirie, a criminal with a serious record, had been found on the internal rear view mirror of the abandoned Sierra. The Crown also disclosed the statements of six individuals who had seen the incident or the abandonment of the car.

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The decision of the High Court

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30. The appellant appealed on the grounds, inter alia, that the Crown had failed to disclose material evidence; and that by leading and relying on the evidence of the dock identifications without having disclosed that evidence and without having held an identification parade, the Lord Advocate had infringed the appellant’s rights under art.6.

31. The High Court held that the fingerprint evidence and three of the now disclosed statements neither materially weakened the Crown case nor materially strengthened the defence case. It accepted that the other three statements should have been disclosed, but held that disclosure of them would not have given rise to a real possibility of a different verdict. It concluded that the act of the Lord Advocate in leading dock identifications from the two police officers without there having been an identification parade did not infringe art.6.

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The present appeal

32. The issues raised in this appeal were raised before the High Court as devolution issues (Scotland Act 1998, s.57(2); Sched.6, para.13(a)). On

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22 April 2013 when the relevant provisions of the Scotland Act 2012 came into force, those issues were still unresolved.They therefore became convertible devolution issues (Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (SSI 2013/7)) and by virtue of s.36(6) of the 2012 Act, which added s.288AA to the Criminal Procedure (Scotland) Act 1995 (the 1995 Act), fell to be dealt with as compatibility issues as defined in s.288ZA of the 1995 Act (1995 Act, s.288AA(1), (2) and (4)). As such, they are within the jurisdiction of this court, which can be exercised only on compatibility issues (1995 Act, s.288AA).

Non-disclosure

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33. It was for the High Court to assess whether all or any of the undisclosed evidence might materially have weakened the Crown case or materially have strengthened the defence case (McDonald v HM Advocate at para.50). The High Court held, as the Crown had conceded, that the evidence in three of the statements met that test.

34. The next question was whether the effect of the non-disclosure of those statements had been to deprive the appellant of a fair trial. It was for the High Court to decide, on a consideration of all of the circumstances of the trial, whether there was a real possibility that the jury would have arrived at a different verdict if the undisclosed evidence had been before it. It decided that there was no such possibility. On the face of it, therefore the High Court applied both parts of the test set by this court in McInnes v HM Advocate.

35. On the first part of the McInnes test counsel for the appellant submitted that since in current Crown Office practice all of the undisclosed evidence would be disclosed, that was proof that the appellant’s art.6 rights had been infringed. That argument is specious. The current practice of the Crown is to make an extensive disclosure of evidence, some of which may be of little assistance to either prosecution or defence. The fact that any piece of evidence is disclosed does not mean that its non-disclosure would be a breach of art.6.

36. As to the consequences of non-disclosure, counsel submitted that the High Court had failed to apply the second part of the McInnes test. I do not agree. The Crown’s submission to the High Court on this point was founded expressly on the McInnes test (Macklin v HM Advocate at paras. 24 and 25).

The High Court considered the case in that context and, reciting the words of the test, made clear that it had applied it (at paras. 33, 36 and 37).

37. We therefore have to consider the scope of this court’s jurisdiction in this appeal. Every interlocutor and sentence pronounced by the High Court under Pt.VIII of the Criminal Procedure (Scotland) Act 1995 is final and conclusive and is not subject to review in any court whatsoever, save for certain exceptional cases, one of which is the taking of an appeal of this nature (1995 Act, s.124(2)).

38. The question whether the High Court applied the correct test is a proper question for the consideration of this court, being a compatibility issue; but the question whether the High Court applied the test correctly is not. That is now settled law (McInnes at paras. 18 and 25).

39. Nevertheless, counsel for the appellant submitted that in McInnes Lord Hope of Craighead had qualified his general statement of the law to that effect by the following words: “[I]t is not for this court to say whether the test was applied correctly.

But it is open to it to examine the reasons given by the appeal court for concluding that there had not been a miscarriage of justice to see whether they show that it applied the correct test” (para.25).

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40. Counsel wrested these words from Lord Hope’s opinion to support the proposition that even if the High Court says that it has applied the McInnes test, this court can examine exactly how it did so and may decide that it paid only lip service to it if its conclusions on the evidence are manifestly wrong.

41. I do not accept that proposition. The meaning of Lord Hope’s dictum, to my mind, is perfectly clear. Lord Hope was referring only to this court’s exercise of its limited jurisdiction in a question under para.13(a); that is to say its decision, from an examination of the High Court’s reasons, whether the High Court identified and applied the correct test.

42. In this case I am in no doubt that it did. On that view, the High Court’s conclusions on the significance of the non-disclosure in relation to the verdict do not arise for our consideration.

43. Counsel for the Crown conceded that this court would have jurisdiction if the High Court had failed to apply the McInnes test despite having said that it had applied it. That concession, in my view, does not open the door to appeals based on the contention that the High Court failed to apply the McInnes test correctly. I agree with Lord Reed (para.22) that the finality of the decisions of the High Court would be undermined if challenges to the correctness of its application of the McInnes test were to be dressed up in the guise of arguments that it had identified the test but failed to apply it.

A

B

C

Dock identification

44. Counsel accepted that dock identification is not per se incompatible with art.6. He did not put dock identification forward as a free-standing compatibility issue. He submitted that the fact that the police officers had not taken part in an identification parade, taken together with the undisclosed evidence, led to the inevitable conclusion that, looked at as a whole, the trial was unfair. For this submission counsel for the appellant took as his template the exercise in evidential review carried out by Lord Rodger of Earlsferry in Holland v HM Advocate. In Holland both non-disclosure and dock identification were in issue. There were two points on which the Crown had withheld disclosure of material evidence.

45. In Holland the two issues in the case had been dealt with in separate hearings by differently constituted divisions of the High Court. In Lord Rodger’s view the question was whether, looked at as a whole, the appellant’s trial was fair in terms of art.6 (at para.77). On that view, he considered that it was necessary for the Judicial Committee to assess the evidence overall. In the result, the Judicial Committee held that there had been a breach of art.6.

46. Counsel compared the evidence in Holland with the evidence in this case and, taking Lord Rodger’s approach, submitted that we too should look at the entirety of the evidence and should conclude from it that the appellant had not had a fair trial.

47. In considering two specific aspects of the evidence in Holland Lord Rodger said that since counsel for the defence had been unaware of the undisclosed evidence, he could not say that counsel’s inability to refer to it in cross-examination “might not possibly have affected” the jury’s verdict (paras.

82 and 83).

48. Views differ on the interpretation of those words. They seem clear to me. But that point is now history. Whatever the Judicial Committee considered to be the test in Holland, this court has drawn a line under the matter by fixing the test of “real possibility”, a test with which Lord Rodger himself came to agree (McInnes at para.30). I conclude therefore that counsel’s reliance on Holland is misconceived. I reject the case for the appellant on this issue.

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Conclusion

49. I agree that the appeal should be refused.

COMMENTARY

B

C

D

E

1. If this case was sent to a Bench of seven Supreme Court justices, or indeed given leave to appeal at all, because of a desire to obtain an up-to-date decision on dock identification (which may or may not have been the case), it clearly failed. The submission that to prosecute a case on the basis of a dock identification unsupported by any other form of identification was a breach of ECHR by the Lord Advocate and as such a devolution issue does not seem to have concerned the Supreme Court at all, though it is referred to by that court as part of the grounds of appeal.

In effect, therefore, the case does no more than repeat McInnes and make it clear that it will only be in extreme cases, which exhibit a lack of good faith on the part of the High Court, if one may so put it, that the Supreme Court can interfere with the High Court’s answer to the second McInnes question.

2. There has for some time been uncertainty as to whether the McInnes test applies to cases other than those involving non-disclosure, or whether the test in other types of case remains that of miscarriage of justice, ie unfair trial, and Lord Reed’s comment at para.21 may be seen as suggesting the McInnes test is restricted to non-disclosure issues. That question, however, was not in issue in the appeal, and the authorities on it were not discussed by the court, so that Lord Reed’s passing comment on the matter is obiter. It may be noted that Lord Gill, who discussed the question in Brodie v HM Advocate [2012] HCJAC 147; 2013 S.C.C.R. 23; 2013 J.C. 142, para.43 and said that the two tests were generally similar in their application, did not refer to this question.

ECHR, like Scots law, requires the appellant to show that there has been a miscarriage of justice, and (with limited exceptions, which may apply only to such fundamental irregularities as proceeding in the absence of the accused which are seen as rendering a trial a nullity: see Drummond v HM Advocate, 2003 S.C.C.R.108) uses that protean term in the substantive sense of something which could have affected the result of the trial. In most cases whether or not there has been a miscarriage of justice will depend on whether compliance with the law, whether the domestic law or ECHR, was likely to have led to the real possibility of a different verdict.

3. Crown Office practice, as Lord Reed says, is not the measure of whether art.6 has been breached, but failure by the Crown to follow the Code of Procedure made under s.160 of the Criminal Justice and Licensing (Scotland) Act 2010 (see Renton & Brown’s Criminal Procedure (6th edn), Appendix G, will be at least a very strong argument that the first McInnes test has been passed.

F

G

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A Appeal Against Sentence

13 January 2016

STEVEN WATT

Appellant

against JOHN DUNN (Procurator Fiscal, Dunfermline)

Respondent

B

[2016] SAC (Crim) 2 Sentence—Road traffic—Fixed penalty—Offer of fixed penalty not taken up—Whether relevant to sentence Sentence—Road traffic—Penalty points—Discount for plea of guilty—Whether applicable to penalty points—Whether protection of public relevant—Criminal Procedure (Scotland) Act 1995 (c.46), s.196(1)

C

Road traffic—Sentence—Fixed penalty—Offer of fixed penalty not taken up—Whether relevant to sentence Sentence—Road traffic—Penalty points—Discount for plea of guilty—Whether applicable to penalty points—Whether protection of public relevant-–Criminal Procedure (Scotland) Act 1995 (c.46), s.196(1) The appellant pled guilty to a speeding charge and was fined and awarded four penalty points. He was not allowed any discount on the penalty points, because of the risk to public safety. He had received an offer of a fixed penalty but had not accepted it, because at that time he was unable to pay it.

The appellant appealed (to the Sheriff Appeal Court) on the grounds that he ought to be dealt with on the same basis as the fixed penalty and should have been allowed a discount on the penalty points.

Held (1) that the sentencer’s discretion is not circumscribed by what might have happened had a fixed penalty been accepted (para.4); (2) that penalty points are susceptible to discount in the same way as any other penalty and that the consideration of public protection does not justify declining to discount for an early plea of guilty, (para.9); and that the justice erred in considering that public protection provided a valid reason for declining to discount the penalty points (para.10); and (3) that in considering whether there has been a miscarriage of justice the court will generally consider sentences in the round, that errors in components of the sentencing process will not necessarily be seen to give rise to a miscarriage of justice (para.11) and that, given the appellant’s speed, the imposition of for penalty points could not be said to be excessive or inappropriate so as to represent a miscarriage of justice (para.12).

Lappin v HM Advocate, 2001 S.C.C.R. 219; 2001 J.C. 137; Gemmell v HM Advocate [2011] HCJAC 129; 2012 S.C.C.R. 176; 2012 J.C. 223; 2012 S.L.T. 484; and Murray v HM Advocate [2013] HCJAC 3; 2013 S.C.C.R. 88 applied.

Passages in Renton & Brown’s Criminal Procedure (6th edn), paras 22–26.03(4) and 22–26.0.12 disapproved.

D

E

F

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132 A

B

Watt v Dunn

2016 S.C.C.R.

Cases referred to in the opinion of the court: Blair v Craigen, 1999 G.W.D. 17–818 Gemmell v HM Advocate [2011] HCJAC 129; 2012 S.C.C.R. 176; 2012 J.C. 223; 2012 S.L.T. 484 Harkin v Brown [2012] HCJAC 100; 2012 S.C.C.R. 617; 2012 S.L.T. 1071 Lappin v O’Donnell, 2001 S.C.C.R. 219; 2001 J.C. 137 McGill v HM Advocate [2013] HCJAC 150; 2014 S.C.C.R. 46; 2014 S.L.T. 238 Murray v HM Advocate [2013] HCJAC 3; 2013 S.C.C.R. 88 Robertson v Procurator Fiscal, Stirling [2015] SAC (Crim) 1 Stockton v Gallacher, 2004 S.C.C.R. 400; 2004 J.C. 165; 2004 S.L.T. 733.

Steven Watt pled guilty on 4 July 2015 in the JP court at Dunfermline to a charge of speeding by driving at 96 mph on a motorway and was fined £100 and awarded four penalty points. He appealed to the Sheriff Appeal Court against sentence on the grounds referred to in the opinion of the court.

C

The appeal was heard on 13 January 2016 by Sheriff Principal Scott (Vice President) and Appeal Sheriff Beckett.

For the appellant: Party.

For the respondent: McFarlane AD. On 13 January 2016 Sheriff Beckett delivered the following opinion of the court.

D

E

F

G

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SHERIFF BECKETT [1] The appellant was prosecuted on a summary complaint for speeding on 4 July 2015 on the M90 near Dunfermline, his speed of 96 mph exceeding the limit of 70 mph. He was offered a fixed penalty notice with a fine of £100 and three penalty points. He was unable to pay and proceedings were raised in the JP court at Dunfermline.

[2] The appellant pled guilty at the first opportunity and he was fined £315 and four penalty points were imposed. A discount reduced the fine from £460 but no discount was applied to the penalty points.

[3] In presenting his own appeal, the appellant explained that he would have paid the fixed penalty if he could have done so, but he was unemployed at the time. His argument was that he ought to have been dealt with on the same basis as the fixed penalty and that therefore the penalties imposed by the justice were excessive.

[4] This is a common situation and it may be helpful if we record that the High Court of Justiciary has generally taken the view that once a case comes to court, the sentencer’s discretion is not circumscribed by what might have happened had a fixed penalty offer been accepted: Lappin v O’Donnell; Blair v Craigen (an exception is found in the particular circumstances of Stockton v Gallacher).

[5] In Lappin, a court of three judges observed, at para.4, that: “It is the task of the court to make an impartial, objective assessment of the material circumstances surrounding the commission of the offence.

The court should do that on the material presented and not on the basis of the reaction of those who detected or investigated the offence.”

Having reviewed a number of earlier decisions, in para.6 the court went on to say, in relation to an unpaid fixed penalty, that:

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“We consider that on this basis the history is not in principle irrelevant, though we find it difficult to envisage its having significance.”

[6] In the appellant’s case, leave to appeal was granted only in relation to the question of discount on the penalty points. In that regard the justice explained in her report that she considered that the penalty points should not be discounted because of the risk to public safety presented by the appellant’s driving. Whilst that approach may gain some support from what is stated in Renton & Brown’s Criminal Procedure (6th edn), Ch. 22, paras 26–0.3(iv) and 26–0.12, purporting to rely on the opinion of the court in Gemmell v HM Advocate, it is not supported by what was done by the court in Gemmell and it is only supported, so far as penalty points are concerned, by what Lord Osborne said at para.132 of his opinion. Lady Paton, at para.156, was prepared to contemplate that public protection might relevantly bear on the level of discount of a period of disqualification, but she did not say the same in relation to penalty points and she concurred in the disposals of the appeals involving penalty points. To the extent that Lord Osborne and Lady Paton were prepared to envisage limiting discount on disqualification and penalty points on account of public protection, their views appear to us to be inconsistent with the views of the majority.

[7] The Lord Justice Clerk (Gill) rejected the suggestion that penalty points should not be subject to discount at paras. 69–72 of his opinion. At para.60, in relation to discounting sentences generally, he said this: “It follows from my interpretation of section 196 that that part of the sentence that is referable to the protection of the public should not be excluded from the application of the discount.”

Lord Eassie, at paras. 141–143, and Lord Wheatley, at paras. 166–167, agreed with the Lord Justice Clerk’s approach both generally and in relation to the issue of discounting periods of disqualification and penalty points.

[8] When it came to disposal, Lord Osborne favoured the same discount of penalty points in each case as his colleagues and all of the penalty points under consideration were made subject to conventional levels of discount.

In giving the opinion of the court in Harkin v Brown, Lord Carloway (as he then was), at paras. 4–6, appears to us to have interpreted Gemmell as we have done.

[9] For the sake of clarity, we wish to make it plain that we consider that it follows from the decision of the majority in Gemmell, that penalty points are susceptible to discount in the same way as any other penalty and that the consideration of public protection does not justify declining to discount for an early plea of guilty. In Harkin it was established that a discount cannot reduce the number of penalty points below the statutory minimum.

[10] We consider that the justice erred in considering that public protection provided a valid reason for declining to discount the four penalty points.

[11] It does not automatically follow that the appeal should succeed. We are enjoined by statute to consider whether there has been a miscarriage of justice by reason of the sentence imposed, s.175(2) and (5) of the Criminal Procedure (Scotland) Act 1995 as amended. In making that assessment, this court will generally consider sentences in the round and errors in components of the sentencing process will not necessarily be seen to give rise to a miscarriage of justice: Robertson v Procurator Fiscal, Stirling at paras. 12 and 13, Murray v HM Advocate in the opinion of the then Lord Justice Clerk (Carloway) at para.32, McGill v HM Advocate at para.13.

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A

B

C

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[12] In this case, given the speed at which the appellant was travelling, we are not persuaded that the imposition of four penalty points can be said to be excessive or inappropriate so as to represent a miscarriage of justice and the appeal is refused.

COMMENTARY

B

The editor of Renton & Brown offers his apologies. The comment about public protection at para.19 of Du Plooy v HM Advocate, 2003 S.C.C.R. 640; 2005 1 J.C. 1; 2003 S.L.T. 1237 was overtaken by Gemmell.

C

D

E

F

G

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A Application for Disclosure

27 January 2016

LIAM MURPHY

Prosecutor

against WT H B

CJS GM LTD

Accused [2016] SC DUN 15

Disclosure—Application for disclosure of evidence relating to police operation—Whether disclosable in terms of statute—Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s.121(3) C Disclosure—Procedure for application to exclude material from duty of disclosure in public interest—Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss.121, 141, 145 Section 121(3) of the Criminal Justice and Licensing (Scotland) Act 2010 places a duty on the prosecution to disclose to the defence any information which: (a) would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused; (b) would materially strengthen the accused’s case; or (c) is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused.

Section 141 of the Act provides that where s.121(3) applies to an item of information, but disclosure would likely cause a substantial risk of substantial harm or damage to the public interest the prosecutor may apply to the court for an order under s.145 of the Act preventing or restricting disclosure.

The accused were charged with a number of offences and lodged defence statements. The first and second accused then brought an application before the sheriff under s.128 of the Act on the ground that in responding to the statements the prosecutor had failed to disclose information to which s.121(3) applied.

It was claimed that the information, which the police said they had come upon by chance in the course of routine policing, had been obtained in the course of a surveillance operation related to other matters, in relation to which no information had been disclosed. The first accused sought details of the operation in which the police had been engaged when they had stopped his car, and of reports by them to the officers who were running that operation, on the ground that that information would bear on the reliability of the officers who stopped the car and so weaken the case against him.

The second accused sought similar information in connection with materials recovered during a search of the premises occupied by the third accused, his company.

The Crown accepted that there had been a surveillance operation but claimed that the information in question had been obtained coincidentally and that there had been no surveillance in relation to the charges in the complaint, that information about police tactics were not disclosable because they were not material to the charges, that it was not police practice to supply statements from senior police officers directing an operation unless it was material to the charge, and that the Crown had disclosed all the statements

D

E

F

G

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Murphy v H

2016 S.C.C.R.

which they had received. There were a number of matters on which the Crown were unable to provide the court with information.

Held (1) that a s.128 ruling is declaratory, and not an order to the prosecutor to disclose particular material, and that a court considering a s.128 application does not have power to consider what is to be done about any subsequent failure to make disclosure (para.7); (2) that the focus of consideration in an application under s.128 is exclusively on whether one of the criteria specified in s.121(3) is met, that the fact that the investigating agency or the prosecutor perceives a risk of harm or damage to the public interest tells the court nothing about whether a s.128 ruling ought to be made in relation to an item of information and that if such a risk is perceived, and especially if it is perceived following a s.128 ruling that information is within the scope of s.121(3), the prosecutor’s remedy lies in an application for a s.145 order (para.8); (3) that where the Crown have been unable to give information about an aspect of the application, the court was not inclined to make assumptions in their favour, and would approach the applications on the basis that, if there was a real possibility that an item of information was material in the sense of the section, s.121 applied (para.20); (4) that it seemed clear that the defence were entitled to think that the police activity which led to the complaint which the accused now faced was part of, or closely related to, a larger operation which involved surveillance of a sort which required authorisation under the Regulation of Investigatory Powers (Scotland) Act 2002, that it seemed reasonably clear that the officers were involved in coordinated action designed to disrupt the activities of the first and second accused, and that it was possible that it was their task to co-ordinate that action (para.22); (5) that the defence suspected that the visit to the second accused’s premises was coordinated by the police in pursuance of the policy of disruption precisely as a fishing expedition, that they were putting that in issue and that the Crown would, therefore, have to lead evidence that demonstrated that whatever went on was lawful and within the scope of the power (which would include the question whether all those who went onto the premises did so lawfully), that if it was not lawful, the Crown would have to place evidence before the court in support of the submission that any irregularity should be excused, and that in the present state of the court’s information, information about all of these matters was likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused and was, therefore, within s.121(3)(c) of the 2010 Act, that if the defence were right and there was a fishing expedition, that would be capable of being characterised as an abuse of statutory powers such as would undermine the evidence likely to be led against the accused and so came within s.121(3)(a) (para.26); and (6) that if, as the solicitors for the accused said without contradiction, the statements disclosed to them in connection with the summary prosecution gave the impression that the conduct alleged in the summary complaint was detected by coincidence, in the ordinary course of policing, they had a legitimate complaint that those statements were misleading, that since the purpose of disclosure is to contribute to the fairness of the trial, there was a risk that the disclosure of a misleading statement was likely to work towards unfairness, that in terms of s.121(3)(a) in particular, if, at trial, the officers maintained that they detected the offences by chance, in the course of ordinary policing, information that they were, in truth, targeting the accused in an operation designed to disrupt would contradict, and have the capacity to undermine the reliability of, their evidence, that alternatively, if they gave evidence that they were engaged in a targeted operation, a cross-examiner would be entitled to invoke s.263(4) of the Criminal Procedure (Scotland) Act 1995 and prove that they had previously made statements which were, on that point, different, that was, classically, an approach which was capable of

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weakening or undermining the reliability of the evidence of the witness in relation to whom it is used, and that therefore information about the true nature of the operation on which these officers were engaged and whether it was an operation to disrupt, directed at the accused, would materially weaken or undermine the evidence which was likely to be led by the prosecutor, and was, therefore, information to which s.121(3) applied (para.29); and ruled that s.121(3) applied to certain items of information.

Hinshelwood v Auld, 1926 J.C. 4; 1925 S.L.T. 647 not followed

A

Cases referred to in the opinion of the court:

B

Bulut v Austria [1996] ECHR 10; (1997) 24 E.H.R.R. 84; 1996-II Galstyan v Armenia [2007] ECHR 936; (2010) 50 E.H.R.R. 25 Hinshelwood v Auld, 1926 J.C. 4; 1925 S.L.T. 647 HM Advocate v B, 2006 S.C.C.R. 692; 2006 S.L.T. 1093 HM Advocate v Murtagh [2009] UKPC 36; 2009 S.C.C.R. 790; 2010 S.C. (P.C.) 39; 2009 S.L.T. 1060 Jespers v Belgium, 27 DR 61 (1982) Kinsella v HM Advocate [2011] HCJAC 58; 2011 S.C.C.R. 442 McDonald v HM Advocate [2008] UKPC 46; 2008 SCCR 954; 2010 S.C. (P.C.) 1; 2008 S.L.T. 993 Niemietz v Germany [1992] ECHR 80; (1993) 16 E.H.R.R. 97 Singh v HM Advocate, 2001 S.C.C.R. 348; 2001 J.C. 186; 2001 S.L.T. 812.

W T H, C J S and GM Ltd were charged on summary complaint in the sheriff court at Dundee with the charges described in the judgment of the sheriff.

They subsequently lodged an application under s.128 of the Criminal Justice and Licensing (Scotland) Act 2010 for further disclosure from the Crown.

C

D

The application was heard on 7 January 2016 by Sheriff A N Brown.

For the prosecutor: Kempton, PFD. For the first accused: Donnelly.

For the second and third accused: Gilmartin.

On 27 January 2016 the sheriff ruled that certain information was disclosable and issued the following note.

E SHERIFF A N BROWN [1] The three accused have pled not guilty to a summary complaint containing 16 charges. Most of the alleged offences are contraventions of road traffic and regulatory legislation relevant to dealing in motor vehicles but the first and second accused also face charges of attempting to pervert the course of justice by providing false information about the insurance position in relation to a particular motor car. Defence statements have been lodged. The first and second accused now make application for a ruling in terms of s.128 of the Criminal Justice and Licensing (Scotland) Act 2010 (the 2010 Act). After hearing argument, I continued consideration of the applications to a further intermediate diet on 2 February. I am issuing this ruling in advance of that diet in order to allow parties the chance to consider their positions and submissions as to future procedure in its light.

F

The disclosure regime

[2] Part 6 of the 2010 Act makes provision for a disclosure regime. The heart of the scheme is to be found in s.121 which applies when the accused appears

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on petition, on indictment or (as in the present case) pleads not guilty to a summary complaint. Subsections (2) and (3) provide that: “As soon as practicable after the appearance or the recording of the plea, the prosecutor must— (a) review all the information which may be relevant to the case for or against the accused of which the prosecutor is aware, and (b) disclose to the accused the information to which subsection (3) applies.

(3) This subsection applies to information if— (a) the information would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused, (b) the information would materially strengthen the accused’s case, or (c) the information is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused.”

[3] A continuing duty to keep disclosure under review and to make disclosure of additional information to which s.121(3) applies is imposed on the Crown by s.123. That review should be informed, in due course, by the content of the defence statement which must be lodged in terms of s.125 of the 2010 Act. The duty incumbent on the prosecutor is supported by a duty on the investigating agency to “. . .inform the prosecutor of the existence of all the information that may be relevant to the case for or against the accused. . .” (s.119(2)). The discharge of all of these duties by the prosecutor and by the investigating agency should also be informed by the Code of Practice: Disclosure of Evidence in Criminal Proceedings made under s.164 of the 2010 Act. [4] Where the accused has lodged a defence statement and considers that the prosecutor has failed, in responding to the statement, to disclose to the accused an item of information to which s.121(3) applies, the accused may apply to the court in terms of s.128 for a ruling on whether s.121(3) applies to the information in question. Provision is made for reviews and for appeal by ss.129 and 130.

[5] Where s.121(3) applies to an item of information and a duty of disclosure arises under the 2010 Act but disclosure of the item of information would be likely to cause a real risk of substantial harm or damage to the public interest, the prosecutor must apply to the court for an order under s.145 to prevent or restrict disclosure.

[6] It is important to note two things.

[7] First, a s.128 ruling is declaratory in its nature. It is not an order to the prosecutor to disclose particular material. If the court rules that s.121(3) applies to an item of information and the prosecutor fails to disclose that item of information, the accused’s remedy is likely to be a plea in bar of trial (possibly combined with a compatibility minute) or, in a case to which s.121(3) (c) alone applies, an objection to the admissibility of the evidence. A court considering an application for a s.128 ruling does not have power to consider what is to be done about any subsequent failure to make disclosure.

[8] Second, the focus of consideration in an application under s.128 is exclusively on whether one of the criteria specified in s.121(3) is met. The fact that the investigating agency or the prosecutor perceives a risk of harm or damage to the public interest tells the court nothing about whether a s.128 ruling ought to be made in relation to an item of information. If such a risk is perceived, and especially if it is perceived following a s.128 ruling that

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information is within the scope of s.121(3), the prosecutor’s remedy lies in an application for a s.145 order. A court which is considering an application for a s.128 ruling has no power to consider the matters which are relevant to an application for a s.145 order and would misdirect itself if it took into account, in its decision about s.128, the possibility of a risk of harm or damage to the public interest. That possibility is properly for consideration on a s.145 application. Paragraph 2.3 of the Code of Practice recognises clearly the separate nature of that application.

A

Submissions of parties

B

[9] The solicitor for the first accused explained that two police officers, PCs F and C, are the most significant witnesses in relation to all of the charges. The disclosed material gave the impression that their interest in the accused and discovery of offences had come about by chance, in the ordinary course of routine policing. He went on to explain that the first accused has been indicted for trial in the High Court on other charges and that disclosure received in connection with that indictment made it clear that, in fact, the first accused was believed by the police to be associated with an organised crime group which included the second accused and that, from March 2014 onwards, Constables F and C had been tasked with co-ordinating efforts against that group to “disrupt” them and gather intelligence. This was part of police Operation Cartogram. The two officers had been working full time on that task. In pursuance of that objective of disruption, they were, on a daily basis, targeting those whom they believed to be members of the group for road traffic offences. Neither the existence of the operation nor any of this detail was mentioned in the disclosure received in connection with the summary complaint. The solicitor said that it was thought that information about Operation Cartogram would bear upon the reliability of the officers and would weaken or undermine the case against the first accused. He therefore wanted confirmation that, on the occasions when the first accused was stopped whilst driving, it was part of a police operation and that PCs F and C reported those stops to the officers who were running that operation. He referred to what was to be said on behalf of the second accused about a search warrant and said that he understood that insurance documents had been recovered in the search of the business premises of the second accused. These, he said, would be relevant to the defence of the first accused.

[10] The written application on behalf of the first accused sought “an order instructing the Crown to disclosure (sic) the information which is essential to the proper presentation of the. . .defence”. This was specified in para.6 of the application as: “[C]opies of any RIPSA Authorities in respect of any surveillance carried out on, inter alia, the applicant, any directions given to officers, including the said Constables F and C as to how these disruption tactics were to be carried out. . .the identity of all other officers involved in said operation and the officer heading said operation and thereby issuing the instructions. . .all reports, memoranda, surveillance logs or observations made in writing by Constables F and C to the reporting or collating officer of Operation Cartogram, detailing their involvement with the applicant in each of the charges on the. . .complaint.”

[11] I asked parties for their submissions on the significance of Hinshelwood v Auld, in which the Lord Justice-General (Clyde) held that there was a broad general rule that any communication which is made by an inferior official to a superior official is, on grounds of public policy, a confidential document, and

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is not produceable in evidence. On that ground, notes made by police officers for the purpose of their report could not be recovered at the instance of the defence. Lords Skerrington and Sands delivered separate, concurring opinions.

The solicitor for the first accused referred me to the opinion of the court, delivered by Lord Hardie, in Kinsella v HM Advocate, holding (on the concession of the Crown) that there was material in a police crime report which ought to have been disclosed. He also referred me to Sir Gerald Gordon’s Commentary on that case, in which the learned editor wrote that the decision of the court that there was no duty to disclose the results of an investigation unless it was requested had been overtaken by Pt.6 of the 2010 Act and the associated statutory Code of Practice.

[12] The solicitor for the second and third accused explained that the third accused was the second accused’s company. He explained that the second accused is not indicted in the High Court and that he had become aware of Operation Cartogram only as a result of the steps taken by the solicitor for the first accused. The application on behalf of the second accused asserts that the statements disclosed did not disclose that the second accused was, at the time of the offences alleged against him, the subject of a surveillance operation.

There was nothing in the statements to suggest that PCs F and C were involved in an operation targeting the accused, that they were carrying out surveillance of the accused and that they had been instructed to adopt disruption tactics in relation to the accused’s business. That information had been withheld. At an intermediate diet on 20 November, following the lodging of an application for a s.128 ruling, a redacted copy of a single authorisation for directed surveillance of the second accused had been disclosed. This was the first indication that the second accused had been the subject of any surveillance. The procurator fiscal depute in court on that date had said that the police officers involved in the investigation had said that any offences charged in the complaint had been discovered, not as part of an operation mounted against the accused but coincidentally. The application complains of deliberate omissions from the statements disclosed, giving rise to a reasonable apprehension that the police officers had exceeded the bounds of any authorisation granted and a reasonable apprehension that evidence had been obtained unfairly. The application also explains that each statement provided by the Crown has been assigned a “witness number” and that, since many numbers are missing, it is thought that there are statements in existence which have not been disclosed.

[13] The application on behalf of the second accused asks the court to hold that s.121(3) of the 2010 Act applies to: “[A]ll statements pertaining to the surveillance, directed or otherwise, of the accused together with all surveillance logs, RIPSA certificates and all other material relevant to the surveillance and disruption tactics adopted

by Police Scotland in relation to the accused. . .this information will include surveillance authorisations and logs relevant to charges four, eight and sixteen on the. . .complaint, together with directions from Police (Scotland) to the police officers involved. . .this will also include search warrants for the premises mentioned in the charge.”

The second accused also seeks disclosure of the statements which appear to be missing from the disclosure.

[14] In his submissions supporting the application, the solicitor for the second accused explained that charge (8), in terms of which his client was charged with failing to keep records of the sale of car registration plates, arose out of a co-ordinated visit to his premises by representatives of several

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regulatory agencies, including the DVLA and persons employed by Dundee City Council. There had been no “antecedent behaviour” (which I took to mean no particular regulatory interest before the visit). It was understood that the initiative had been that of the police. There had been a search of the premises and a statement by PC C, which had been disclosed, referred to another, unnamed, police officer being in possession of a search warrant. The statement also referred to the recovery of a finance agreement. The solicitor said that the defence needed disclosure about how the co-ordinated visit and search came about. They needed to see the search warrant. They needed to know what recovered material would be relied on by the Crown. It was understood that there was at least one “recorded media” not disclosed and that was needed.

[15] The solicitor for the second accused submitted that the defence needed surveillance logs relating to the second accused and to his place of business throughout the whole period of the libel.

[16] The solicitor for the second accused said that it had been disclosed that charge (16) (carrying on business as a dealer in second-hand goods without a licence) had been investigated following intelligence. He submitted that the defence needed to know whether that was surveillance and, if so, what was authorised.

[17] In relation to statements, the solicitor for the second accused explained that the format of the statements disclosed to him indicated that there were, in all, at least 87 witnesses but that he had only received disclosure of statements for 35 of them. He explained that each disclosed statement bore a case reference, which related to the matters charged on the complaint, and also a number for the witness. There were obvious gaps in the numbers. It was his submission that all the statements of all witnesses on the Crown list must be disclosed and he founded on statements to that effect in HM Advocate v B; McDonald v HM Advocate; and HM Advocate v Murtagh.

[18] The procurator fiscal opposed the applications. He told me that the complaint is a “roll up” of four cases. PC C was involved in the investigation of those cases and PC F was involved with him in the investigation of the road traffic charges, which are charges (1)–(7) on the complaint. They were not involved in surveillance and these offences were not detected by surveillance in any way. He told me that Operation Cartogram was an investigation into a serious organised crime group. Surveillance was deployed in relation to the second accused but on the days when that occurred, PCs C and F were not involved. They were provided with intelligence regularly about persons linked to the investigation. He did not know the source of that intelligence. The first four charges (which relate to the use of a car by the first accused and to what the second accused said about it) were detected as a result of an intelligence-led patrol, not surveillance. By that, he meant that PCs C and F were patrolling “actively” round the area of the first accused’s home in both marked and unmarked vehicles. He confirmed that they were engaged in “disruption” and said that such activity was contemplated in the Scottish Government publication “Letting our communities flourish: a strategy for tackling serious organised crime in Scotland” (2009). Charges (5), (6) and (7) (use of a motor car without a test certificate, keeping a motor car without insurance and failing to identify the driver) were detected when the two officers received intelligence that the first accused was driving a van whilst using a mobile phone. They arranged for the van to be monitored using CCTV and the driver was seen to be using a mobile phone. The procurator fiscal did not know the source of the intelligence but thought an off-duty police officer, knowing that the first

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accused was of interest, might have made a phone call. (This was, I suspect, a guess.) As to charges (8)–(16), the procurator fiscal did not know but could not contradict the proposition that the co-ordinated visit was a police idea.

Apart from DVLA, he did not know which agencies had been involved. He was unclear about the basis for any search but did say that some of the agencies involved had powers of entry for regulatory purposes. He did not give any specification of the agencies or the powers he had in mind. In general, he invited me to have serious regard to what the Lord Justice-General said in Hinshelwood v Auld. He said that the instructions about the tactics to be employed and how they were to be employed were not disclosable because the police considered that this information was not material to the charges.

Statements from the senior officer(s) directing Operation Cartogram would not be disclosed because it is not the practice of the police for such officers to supply information unless it is material to the charge. There had been no surveillance in relation to the matters charged on the complaint. The Crown had disclosed all of the statements which they had received.

Discussion and decisions

[19] My task is made more difficult than it need have been by the gaps in the procurator fiscal’s information. Questions to which he simply did not know the answer arose repeatedly in the course of the discussion. It might well have been that, if the procurator fiscal had been able to give better information or even assurances about compliance with the disclosure regime, the conclusions which I have reached would have been different. However, in deciding whether the various items of information sought by the defence are within the scope of s.121(3), I have in mind para.2.2 of the Code of Practice, in terms of which, “[i]f the Crown is in doubt about the materiality of an item of information, then it should be treated as if it were material and disclosed to the defence. . .”.

In promulgating the code, the Lord Advocate committed the Crown to a liberal understanding of s.121(3). Moreover, I am required to read and give effect to legislation in a way which is compatible with the Convention rights (Human Rights Act 1998, s.3(1)) and, of course, the disclosure provisions of the 2010 Act were enacted so as to put in place arrangements which satisfy art.6 ECHR. In interpreting the Convention rights, I am to take account of the decisions of the Strasbourg organs (Human Rights Act 1998, s.2). In Jespers v Belgium the European Commission of Human Rights took the view that the accused must be enabled to acquaint himself with the results of the whole investigation and that art.6(3)(b) entitles him to “all relevant elements that have been or could be collected by the competent authorities”. That was reiterated by the European Court of Human Rights in Galstyan v Armenia (para.84). The aim of art 6(3)(b) is to ensure that the accused has a reasonable opportunity to present his defence in conditions that do not place him at a disadvantage vis-à-vis his opponent (Bulut v Austria (para.47)). On this basis, Lord Reed (extrajudicially) and Professor Murdoch have written that “the authorities must allow access to the case file or to information which could be of assistance in the preparation of the defence” (Robert Reed and Jim Murdoch, Human Rights Law in Scotland (3rd edn, Bloomsbury Professional, 2011), p.686.

[20] Against that background, where the Crown have been unable to give information about an aspect of the application, I am not inclined to make assumptions in their favour. I shall approach the applications on the basis that, if there is a real possibility that an item of information is material in the sense of the section, s.121 applies.

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[21] I have considered the effect of Hinshelwood v Auld. I have come to the conclusion that the decision in that case has been superceded by the disclosure provisions of the 2010 Act. Public policy remains an important consideration but it is now protected in a more nuanced way. Whereas Hinshelwood proceeded on the view that public policy required a blanket immunity for reports to superiors, the 2010 Act has legislated for a two-stage approach. The first is the determination of what is disclosable (if need be, under s.128). The second is a decision on an application for a s.145 order about whether disclosure would risk harm to the public interest. In dealing with these applications, I am concerned only with the first stage.

[22] The first significant thing which is sought in the applications is information about the nature of the policing activity in which Constables F and C were engaged in relation to each of the accused. It is common for evidence to be led about the nature of the duties upon which a police officer was engaged at the time of the events about which he gives evidence. That information sometimes provides important context for the evidence which is given. On the basis of the limited amount that the procurator fiscal was able to tell me, supplemented by the uncontradicted submissions of two experienced and responsible defence solicitors about the material which they have received, it seems clear that the defence are entitled to think that the police activity which has led to the complaint which the accused now face was part of, or closely related to, a larger operation which involved surveillance of a sort which required authorisation under the Regulation of Investigatory Powers (Scotland) Act 2002. It seems reasonably clear that the officers were involved in co-ordinated action designed to disrupt the activities of the first and second accused. It is possible that it was their task to co-ordinate that action.

[23] There is, of course, nothing wrong with that. In principle, the disruption contemplated in “Letting our communities flourish” is entirely lawful. Law enforcement is not a game and no member of the public can complain if the police detect him in the act of offending, even if they do so by paying much closer attention to him than they would to anyone else.

[24] The problem arises if close attention drifts into a fishing expedition which is not in accordance with law. That, in essence, is what the defence assert, especially in relation to the multi-agency visit to the third accused’s premises. The procurator fiscal was unable to tell me very much at all about that visit but it seems clear that there was a visit. It appears that that there may have been a search warrant and that some of those who participated may have obtained entry on the basis of so far unspecified statutory regulatory or inspection powers.

[25] The search of premises without consent and without either a warrant or a statutory power of entry is not in accordance with law. It is, at best, irregular.

Moreover, since the third accused’s premises were the second accused’s place of work, they were, prima facie within the scope of art.8 ECHR (Niemietz v Germany). Statutory powers of entry tend to carry restrictions in relation to the circumstances and/or the purposes for which they can be exercised. Such restrictions are intended to protect the public against “fishing expeditions” (Singh v HM Advocate). For example, the power of entry under s.77 of the Road Traffic Act 1988 (which provides for entry to premises to test the roadworthiness of used vehicles which are for sale) can only be exercised by an authorised person at a reasonable hour and for the purpose of conducting those tests. I emphasise that this is only an example, since the procurator fiscal had no idea which agencies were present and which powers they claimed to be exercising and could not direct me to the particular powers which the Crown asserts were exercised.

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[26] The defence suspect that the visit was co-ordinated by the police in pursuance of the policy of disruption precisely as a fishing expedition. They are putting that in issue. The Crown will, therefore, have to lead evidence that demonstrates that whatever went on was lawful and within the scope of the power (which would include the question whether all those who went onto the premises did so lawfully) (Singh). If it was not lawful, the Crown will have to place evidence before the court in support of the submission that any irregularity should be excused (again, Singh). For that reason, in my opinion and in the present state of my information, information about all of these matters is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused and it is, therefore, within s.121(3)(c) of the 2010 Act. If the defence are right and this was a fishing expedition, that would be capable of being characterised as an abuse of statutory powers such as would undermine the evidence likely to be led against the accused and so come within s.121(3)(a). The agent for the first accused told me that certain insurance documents were seized which would materially strengthen the case for the first accused. That would bring those documents within s.121(3)(b). If documents were indeed seized under the authority of a search warrant or otherwise, they belong to the second or third accused. Unless the Crown is to found on them (which would bring them within s.121(3)(c)), I can see no basis on which those accused can be denied the use of their own property.

[27] In my opinion, therefore, in relation to the multi-agency visit to the premises occupied by GM Ltd, on 4 June 2014, s.121(3) applies to the following items of information: a full account of the aim of the visit and of briefing and instructions given to all who participated; a full account of the co-ordination of the visit, including the identities of those who proposed the visit and the content of their communications with other agencies about the visit; the identities of all the agencies which participated; the identities of all persons who were present at the premises occupied by GM Ltd, on 4 June 2014 as part of the multiagency visit (not restricted to those actually on the premises); the positions which each of those persons held in their organisations; the addresses at which each of them can be contacted without going through the police; the powers which each exercised, purported to exercise or on the basis of which they were to be present; the content of all statements given by each of those persons in connection with the visit; the content of all reports made by each of them in relation to the visit both internally within their own agencies and to the police; a full list of items seized, including the identities of those who carried out each seizure and the nature of the power which they purported to exercise in making those seizures.

[28] That is a substantial amount of information. It might well be that the procurator fiscal will regard himself as obliged to make an application for a s.145 order in relation to some of it. I would normally have expected the Crown to be in a position to provide the kind of information which I have identified and to do so in a way which was well focused on the issues likely to arise at trial, so that the court would not have to make such a wide ruling. I reiterate that, in this case, the information known to the procurator fiscal was inadequate and, as result, the information and assurances which he was able to give to me were inadequate. I have found it impossible to make a ruling which was narrower in scope but which seemed likely to meet the need.

[29] On the basis of the information which has been given to me by the Crown, the detection of the other charges occurred in the context of the same disruption operation as the visit to the third accused’s premises. That fact alone would, no doubt, have caused the defence to distrust what they were

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being told about those other charges. It would not, however, necessarily have resulted in a ruling that there was material in relation to those other charges which was within the scope of s.121(3). If, however, as the solicitors for the accused say without contradiction, the statements disclosed to them in connection with the summary prosecution gave the impression that the conduct alleged in the summary complaint was detected by coincidence, in the ordinary course of policing, they have a legitimate complaint that those statements were misleading. Since the purpose of disclosure is to contribute to the fairness of the trial, there is a risk that the disclosure of a misleading statement is likely to work towards unfairness. In terms of s.121(3)(a) in particular, if, at trial, the officers maintained that they detected the offences by chance, in the course of ordinary policing, information that they were, in truth, targeting the accused in an operation designed to disrupt would contradict, and have the capacity to undermine the reliability of, their evidence.

Alternatively, if they gave evidence that they were engaged in a targeted operation, a cross-examiner would be entitled to invoke s.263(4) of the Criminal Procedure (Scotland) Act 1995 and prove that they had previously made statements which were, on that point, different. That is, classically, an approach which is capable of weakening or undermining the reliability of the evidence of the witness in relation to whom it is used. I am therefore satisfied that information about the true nature of the operation on which these officers were engaged and whether it was an operation to disrupt, directed at the accused, would materially weaken or undermine the evidence which is likely to be led by the prosecutor. It is, therefore, information to which s.121(3) applies.

[30] The question which then arises is how much information about the generality of the operation is disclosable. Answering this question is made difficult by the gaps in what the procurator fiscal was able to tell the court. In my opinion, the court should usually accept the account of the circumstances of a case which is given by a responsible public prosecutor who states on his or her professional responsibility that he is satisfied that he is in possession of all of the information which s.119 requires the police to give him. Indeed, I think that the court should be slow to look behind an assurance, given by a prosecutor thus situated, that disclosure has been considered fully and that there is no material which falls into the categories identified in a s.128 application.

[31] This is not such a case. It appears that there is much that the police have not told the procurator fiscal. It was explained that they thought it was not material to the charges. That misses the point. The duty of the investigating agency is set out in s.119(2). It is to inform the prosecutor of “all the information that may be relevant to the case for or against the accused� (emphasis added) that the agency is aware of. Materiality to the charge is a narrower concept and is not mentioned. Nor is it mentioned in the Code of Practice. It appears, then, that the police may have been applying the wrong test to what they have told the procurator fiscal. Moreover, materiality to the charge is not a criterion which finds place in s.121(3). Since the procurator fiscal invoked that concept in opposing the applications, it appears that the Crown may also have been applying the wrong test.

[32] It also appears that the decisions taken about disclosure, by both the police and the Crown, may have been informed by the making of misguided distinctions. The first of these is the distinction which the procurator fiscal sought to draw between surveillance and intelligence-led patrols around the home of the first accused by officers who were interested in whether or not he

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was committing offences. I perceive no distinction. “Surveillance” is a word in ordinary use and, in my opinion, it is apt to describe what the procurator fiscal told me the officers were doing. To be sure, it was not, for aught yet seen, surveillance of a type which would require authorisation; but it was surveillance.

I was also troubled by the significance which the procurator fiscal seemed to attach to the fact that PCs C and F were not involved in surveillance in relation to the second accused but were (merely) provided with intelligence, from a source which he did not know. On the face of it, officers who act on the basis of information obtained by surveillance (if that is indeed what was happening) are as much part of an operation as those who conduct that surveillance.

[33] I find it helpful to have in mind the principle that the accused must have a reasonable opportunity to present his defence in conditions that do not place him at a disadvantage vis-à-vis his opponent (Bulut v Austria (para.47)).

The whole impression which I have gained from submissions by the two solicitors for the accused and from the submissions of the procurator fiscal (in particular, the making of distinctions which I regard as unjustified and the inappropriate use of the concept of materiality to the charge as a criterion) is that this prosecution has been isolated from its Operation Cartogram context in a way which is so artificial as to be misleading and which, by denying to the defence any real information about that context, places the defence at a significant disadvantage vis-à-vis the Crown. It should be kept in mind that, in an adversarial system applying a presumption of innocence, the court depends on the contribution of both sides to allow it to come to a proper conclusion.

The work of the defence is essential to justice. It needs to be properly informed.

[34] In my opinion, on the basis of the information presently before me, a fair trial and compliance with art. 6(3)(b) require that the following items of information should be disclosed: the purpose of the operation on which PCs F and C were engaged so far as it related to the first and second accused; the identity or identities of the officer or officers who directed that operation; the identities of all officers who participated in that operation; all instructions which were given to the officers who participated in that operation; the activities engaged in by those officers in pursuance of the operation including, without prejudice to that generality, in relation to the first and second accused; and the content of all reports made in relation to that operation by officers who participated in it.

[35] I recognise that the categories of information which are covered by this are wide. I have found that unavoidable in view of the unsatisfactory information provided by the procurator fiscal. My consideration has been handicapped by the gaps in what the procurator fiscal could tell me, which appear to be attributable to questionable compliance by the police with s.119(2). I have erred in favour of the liberty of the subject, transparency and a fair trial. I recognise that it is likely that the police will be concerned about the protection of technique. That is a legitimate concern. I reiterate that it remains open to the Crown to make an application for a s.145 order.

[36] This leaves two categories of information, with which I can deal briefly.

[37] The first is statements. The cases to which the solicitor for the second accused referred all dealt with the statements of witnesses on the list which forms part of an indictment. That the statements of those witnesses should be disclosed is uncontroversial and reinforced by the fourth of the “core principles” set out in the Code of Practice. The present case is not being prosecuted on indictment and neither the cases nor that core principle have any bearing. I draw no conclusions from the numbering applied to the witness statements. I do not know enough about the police computer system to draw

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conclusions. Apart from statements made by those who were present at the third accused’s premises, I have not identified any statements to which s.121(3) applies. Of course, the procurator is under a continuing duty to keep disclosure under review and it might well be that statements will be disclosed as a result of the ruling I have made about items of information to which s.121(3) does apply. I do not, however, make any ruling on that matter here.

[38] There were requests that I should order the disclosure of various documents such as search warrants, authorisations and surveillance logs. I cannot make such an order. I can only rule that s.121(3) applies to items of information. The sorts of documents mentioned are all things upon which the Crown are likely to have to rely at trial. If so, the procurator fiscal will, no doubt, conclude that the documents should be disclosed.

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A Appeal Against Conviction

2 February 2016

ALLAN MICHAEL CAREY

Appellant

against HER MAJESTY’S ADVOCATE B

Respondent

[2016] HCJAC 10 Art and part—Mens rea—Homicide—Responsibility of accessory where principal actor convicted of murder Homicide—Art and part—Principal actor convicted of murder and accessory convicted of culpable homicide—Observations on logicality of verdict

C Evidence—Sufficiency—Corroboration—Statements by accused— Accused’s statement containing erroneous admission of stabbing deceased—Whether admissible as evidence of accused’s involvement in joint attack on deceased—Whether corroborated by evidence of accused’s behaviour during incident

D

E

F

G

The appellant and S were charged with murder while acting together and with another man who was acquitted. The Crown case against the appellant depended on two text messages which he had sent, in one of which he had said that “we” had stabbed the deceased, and in the other that “Me and [S] done in [the deceased] last night. I stabbed him twice”. The incident had occurred in a flat just after a party, when the appellant and S had returned to the flat in a temper intent on doing something to the occupants, had run from the scene together just after the deceased had been stabbed, were together when S disposed of a knife and took refuge together. The appellant was convicted of culpable homicide and S was convicted of murder. The appellant appealed to the High Court against conviction on the grounds that there was insufficient evidence for conviction, that the verdict was unreasonable and that the jury had been misdirected in relation to corroboration. It was accepted in the appeal that S had delivered the fatal blow.

Held (1) that there was little difficulty in holding that there was sufficient evidence that, in fact, the appellant was aware of the potential use of lethal force, that it was he who stated in the texts that “We ended up stabbing [the deceased]. . .” and “Me and [S] done in [the deceased] last night”, that he thus admitted taking part, jointly with [S], in a lethal attack on the deceased, that the fact, that it was accepted that he did not himself stab the deceased twice, was of little moment, that it was for the jury to decide whether this was an idle superfluous boast or a partially mistaken understanding of what had happened, but that it was still a critical statement against interest providing clear evidence of art and part guilt (para.30); (2) that there was sufficient confirmation or support for the contention that the appellant had engaged in a joint attack with S from the evidence that the appellant had re-entered the flat in a temper intent on doing something to the occupants and remained there until after the stabbing when he said “Let’s go” in a panic, that he continued in association with S thereafter when S disposed of the knife and sought refuge with him in the house of a third party, presumably to avoid ready detection, and took it upon himself to enquire after the deceased at the hospital (para.32); and appeal refused.

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Observed that there appeared to be an illogicality in holding that a person can be art and part guilty of culpable homicide when the victim is found to have been murdered, but that was the law as it presently stands, and that upon that basis, which may well require to be reviewed again by the court or Parliament, if the appellant had engaged in a joint attack on the deceased, even if there was no objective basis for concluding that he ought to have had the use of a weapon in mind, he could still be convicted of culpable homicide if non-lethal violence (which by definition could not have killed the deceased) was used by him in a joint attack (para.29).

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B

Cases referred to in the opinion of the court: Brown v HM Advocate, 1993 S.C.C.R. 382 Docherty v HM Advocate, 1945 J.C. 89; 1945 S.L.T. 247 Docherty v HM Advocate [2010] HCJAC 3; 2010 J.C. 84 Dreghorn v HM Advocate [2015] HCJAC 69; 2015 S.C.C.R. 349; 2015 S.L.T. 602 E(A J) v HM Advocate, 2002 S.C.C.R. 341; 2002 J.C. 215; 2002 S.L.T. 715 Fletcher v HM Advocate [2012] HCJAC 91; 2012 G.W.D. 24–485 Geddes v HM Advocate (No.2) [2015] HCJAC 10; 2015 S.C.C.R. 139; 2015 J.C. 229 Gardiner v HM Advocate [2007] HCJAC 14; 2007 S.C.C.R. 379 Harris v HM Advocate [2012] HCJAC 5; 2012 S.C.C.R. 234 Hartley v HM Advocate, 1979 S.L.T. 26 HM Advocate v Igoe, 2010 S.C.C.R. 759 Hopkinson v HM Advocate [2009] HCJAC 9; 2009 S.C.C.R. 225; 2009 S.L.T. 292 McKinnon v HM Advocate, 2003 S.C.C.R. 224; 2003 J.C. 29; 2003 S.L.T. 281 Smith v HM Advocate [2008] HCJAC 7; 2008 S.C.C.R. 255 Wilson v HM Advocate, 1987 S.C.C.R. 217; 1987 J.C. 50.

C

D

Allan Michael Carey was charged with murder and was convicted of culpable homicide after trial on 19 November 2014 in the High Court at Glasgow before Judge Dunlop and a jury and appealed to the High Court against conviction on the grounds referred to in the opinion of the court.

E The appeal was heard on 10 December 2015 by the Lord Justice Clerk (Carloway, as he then was), Lady Dorrian and Lord Bracadale.

For the appellant: Jackson QC, C Mitchell, instructed by John C Pryde & Co, Solicitors, Edinburgh.

For the respondent: Brown QC, AD. On 2 February 2016 the Lord Justice General (Carloway) delivered the following opinion of the court.

F

LORD JUSTICE GENERAL Introduction

[1] On 19 November 2014, at the High Court in Glasgow, the appellant was convicted as follows: “(4) [O]n 26 October 2013 at 36 Parkend Gardens, Saltcoats you. . . did assault Samuel Johnston. . .and did repeatedly punch him to the head and body and did strike him on the chest with a knife. . .and you did kill him.”

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A co-accused, Sean (known as Stuart) McCulloch, was convicted of murder.

The libel against a third accused, Fergal Morgan, was withdrawn. On 11 December 2014, the appellant was sentenced to three years’ detention.

[2] The appeal raises three points. The first is whether text messages, which contained partly erroneous admissions, provided a sufficiency of evidence when combined with other facts and circumstances said to amount to corroboration. The second is whether, even if there were a sufficiency, no reasonable jury could have convicted on the basis of that evidence. The third is whether the trial judge erred in his directions to the jury about what was capable of amounting to corroboration of the texts.

Res gestae

C

D

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F

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[3] The Crown case against the appellant was ultimately based on his art and part guilt, along with the principal actor Mr McCulloch, who, it was eventually agreed, had delivered the fatal stab wound. The trial judge describes the evidence against Mr McCulloch as overwhelming, although he provides little elaboration of this. No witness spoke to Mr McCulloch delivering the blow, or even being in possession of a knife in the flat at the material time. However, he was seen on CCTV disposing of a knife over a wall near the locus. His DNA was found upon it, along with the deceased’s blood, which was in a pattern indicating its use as the murder weapon.

[4] The background was that the three accused, the deceased and his brother Ross were, along with others, at a relatively small party at the home of a young female, L C. The locus was a second-floor flat in Saltcoats. The trial judge reports that L C had said that she had been in her bedroom talking to a young male, M M, when she heard a loud bang caused by someone kicking a door. She had asked the party-goers to leave, but had been ignored. The males were in a “rabble”. Ross was sitting on a sofa with blood on his face. L C had taken hold of Mr McCulloch. Mr McCulloch had lunged at the deceased shortly before someone had said that he had been stabbed. At one point in her evidence, L C had said that the appellant had stormed back into the flat in a rage just before the stabbing, although she later said that that might have happened earlier or later. After the stabbing, she described Mr Morgan as saying “F. . . this” and all three accused then leaving.

[5] There was a transcript of M M’s testimony. M M had been talking with L C in her bedroom when he heard someone kicking something. People started arguing. Another young female, N D, was complaining about someone stealing her bottle of vodka. Fighting broke out. After he had taken N D to L C’s bedroom to calm her down, M M had seen the deceased in a wounded state, walking from the kitchen to the living room. He then saw both Mr McCulloch and Mr Morgan coming from the kitchen and running out of the front door of the flat. However, his testimony immediately changed to seeing “they two running past my field of view out the door, and then. . .(the deceased) walked out of the kitchen” with “blood coming from his chest”. The deceased walked into the living room and fell to the floor. M M looked into the kitchen and saw a knife on the floor. Ra W, the deceased’s girlfriend, had then come back into the flat.

[6] Under cross-examination and with reference to a police statement, M M testified that originally, before the stabbing, all three accused had been ushered out of the flat, but Mr McCulloch and Mr Morgan had walked back in. Ra W had gone outside and had not returned at this point. The trial judge reports that, having been referred to his police statements, M M had said that he had seen all three accused running to the front door and leaving at a point

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after the deceased had been injured. However, this summary is not borne out by the transcript of M M’s testimony.

[7] There was a transcript of the testimony of R W, another young male. He said that N D had accused Mr McCulloch of stealing her drink. A general argument had broken out. Someone had kicked a door. L C told people to stop shouting. She asked Mr McCulloch and Mr Morgan, along with the deceased and his brother, to leave. They did not listen. The appellant and Ross had been in the hallway. There was an argument about a bag, which the deceased was trying to remove from Mr McCulloch. They were jostling with each other. Mr McCulloch had squared up to the deceased and they had gone head to head with each other. They were punching each other. R W and Ross had tried to split them up, but Mr Morgan and the appellant had started fighting with them. The appellant had punched Ross, who stumbled onto the couch. The deceased, his brother, Mr McCulloch and the appellant were all fighting. All three accused had left. The deceased had followed them. R W had gone into the living room. The deceased had walked back in, having been stabbed. Two people had then left the flat, with the appellant being the last to go at or about the time when the deceased was collapsing to the floor. The appellant had shouted in a panic, as though something had happened, “Let’s go”. The appellant ran from the flat. He was the last to leave.

[8] Ross Johnston could, he said, remember very little, other than seeing the appellant and Mr Morgan leaving not long after his brother had been stabbed.

[9] Ra W, the girlfriend of the deceased, described Mr McCulloch playing with kitchen knives during the course of the party. After the argument had started, she had seen Ross injured and Mr McCulloch and the appellant leaving the flat. She had followed them out. According to Ra W, the appellant had not returned to the flat, although Mr McCulloch had done so and had later exited with Mr Morgan, saying “I’ve just stabbed some c..t.” Her evidence about the appellant not returning to the flat was contradicted by, amongst others, a downstairs neighbour.

[10] T D spoke to an argument between the appellant and Ross. There was shouting about a bottle of vodka, which N D thought Mr McCulloch had in his bag. L C had wanted the boys to leave. They did not. They started fighting.

The appellant was angry. He joined in with everybody else and was hitting anybody, just like they all were. Ross was being punched by a number of people, including the appellant. He had been on a couch in the living room.

The three accused had all left the room. The deceased had left the room. He had come back two or three minutes later, fatally injured. T D had run out and downstairs, where she found Ra W. [11] The former co-accused, Mr Morgan, described an argument between L C and N D about a door being slammed. Ross and the appellant were bickering. N D was complaining about her drink being stolen. Ross attempted, but failed, to hit the appellant. The appellant had knocked Ross out. The deceased and Mr McCulloch had been arguing about a bag with stolen drink.

They had started wrestling with it. The deceased had noticed his brother’s injuries and had tried to hit Mr McCulloch. R W was trying to split them up.

Mr Morgan had pushed the appellant and Mr McCulloch towards the door, but they were trying to get back in. They were angry and tried to push past him. Mr Morgan had decided to leave. He went downstairs, followed by the appellant and Mr McCulloch. The appellant said that he had “bottled” wee Ross. In the course of their walk away from the flat, Mr McCulloch had two knives.

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[12] All of this was said by the trial judge to demonstrate a very close association between the appellant and Mr McCulloch just before, and shortly after, the stabbing. Both were also seen on CCTV when Mr McCulloch had disposed of the murder weapon. Both had taken refuge together in the house of J S in the early hours of the morning. It was the appellant who had telephoned the hospital and asked after the deceased.

[13] The appellant did not give evidence. On 27 October 2013 he had been interviewed by the police. He had admitted punching Ross, but maintained that he had left the flat with Mr Morgan at that point. Mr McCulloch had later come down the stairs saying that he had stabbed “him”. He admitted seeing a block of knives in the kitchen. The day after his interview, he had provided a voluntary statement in which he had again maintained that he had left the flat after punching “his pal” Ross. He had been sitting at the bottom of the close speaking to Ra W when Mr McCulloch had come running down the stairs shouting, “I’ve just stabbed him.” He had walked away with Mr McCulloch, who had wanted to get rid of the knife “he had taken from the kitchen”. He had gone with the other two accused to J S’s house and stayed there for an hour or so. He had tried contacting “everybody”, but had learned at about 6.30 am that the deceased had died.

The texts

[14] The foundation of the case against the appellant consisted of two text messages that he had sent after the event, viz: “We ended up stabbing Sam and smashing f..k out o’ wee Ross. Don’t say anything at all, but madness. Ha, ha.” (The trial judge erroneously reported the use of the word “slashing” rather than “smashing”.)

D and, “Me and Stu (McCulloch) done in Sam J last night. I stabbed him twice.”

E

The trial judge describes these texts as amounting to a clear acknowledgement that the appellant had joined in the fatal attack, even if his claim to have stabbed the deceased had either been a false boast or a mistake about whether he had actually hit the deceased.

The judge’s charge

F

G

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[15] The judge gave the jury the standard directions on art and part guilt. He explained in particular that, where it was established that one person had stabbed the victim, another could be responsible if he participated in the attack knowing that a knife was to be, or had been, used. He put it slightly differently in stating that an accused could be guilty of murder on an art and part basis where he “actively associates himself with a common criminal purpose which is, or includes, the taking of human life, or carries that obvious risk”. He went on to say that, even if there was a joint attack, where the “main man went way over the top” while the other did not, one could be guilty of murder and the other of culpable homicide. He described the evidence against the appellant as “thin”. However, he started with the texts. He directed the jury that they required, first, to interpret the message “Me and Stu done in Sam J last night”, followed by the reference to a stabbing, as an admission of involvement in a joint attack with a knife along with Mr McCulloch, before they could convict. It was critical, the judge said, that the text linked the appellant with Mr McCulloch in an attack on the deceased.

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[16] When he turned to the issue of corroboration, the trial judge said: “[T]he fact that the person (the appellant) is said to have named is ‘Stu’. . .as the person he ‘done in Sam J’ with is relevant. So, also, is his reference to a stabbing and his professed knowledge of where the knife came from. . ..[A]s far as (the appellant) is concerned, you would be entitled to say to yourselves, well, that seems right to me. I accept the evidence showing that Stuart McCulloch is guilty. . .I believe that (the appellant) is able to name him, to speak of a stabbing, and of where the weapon came from because he was involved himself. But that. . .would not be enough on its own, because. . .that’s not the only possible explanation for (the appellant) knowing these things, but it is one explanation, and you’re entitled to the one you think appropriate, providing always. . .that is the conclusion you are driven to. . . .

“There is other evidence. . .that (the appellant) came back into the house just before the stabbing, that he looked very angry, the fact that he seems to have been involved in a fight just before the stabbing. . .in particular with Ross. . .and (the deceased) was upset about that. There’s the evidence that he left the flat with Stuart McCulloch and all that happened in the street before ending up at (J S’s) house. . . . “. . . Not a single one of these other pieces of possibly corroborating evidence is impressive, damning or, of itself, conclusive of anything, but all of it, taken together, with the admission in the terms I have mentioned, could be sufficient to allow you to come to the conclusion that his admission was genuine and accurate.”

A

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C

Submissions Appellant

[17] Three of the four grounds of appeal (1, 2 and 4) were argued. The first was that the trial judge had erred in holding that the evidence was sufficient.

The alleged admissions by the appellant in the texts had been demonstrably wrong and there was no evidence which could corroborate them. The Crown required to demonstrate that, at the time of the fatal blow, there had been a common purpose involving Mr McCulloch and the appellant. There was no such evidence. When the appellant purported to accept responsibility, he had made a statement which was not true. Thus the court was left with no idea about what he had actually done to make him art and part with Mr McCulloch.

The trial judge had reported that the jury may have interpreted the texts as meaning that the appellant had tried to stab the deceased. The Crown had explicitly refused to advance that as a possibility. There was no basis, beyond what was said in the texts, for defining his involvement. He had not been sentenced on the basis that he had had a weapon. Thus the judge’s contention, that the “starting-point” was the texts, was wrong because the admissions were of things which the appellant had not done.

[18] Even if the admissions had been unequivocal and thus required very little corroboration, there was no corroboration. The judge had regarded the evidence of the appellant’s general involvement in the fight with the deceased and his brother “just before” the stabbing and the departure of all three “shortly thereafter” and then “barging” past L C “aggressively” “just before” the stabbing, as corroboration, as were his admission in the voluntary statement that he knew where the knife had come from and his actions in disposing of the knife and seeking refuge in J S’s house. However, the appellant’s actions after leaving the flat could not provide corroboration of his involvement with the stabbing. These actions were understandable in the context of knowing that his friend Mr McCulloch had stabbed the deceased. He knew that Mr McCulloch had had a knife. It was unfair to speculate that he had seen him

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take it from the kitchen. There was no evidence of him doing anything after the deceased had followed the accused out of the flat. The cases (Docherty v HM Advocate[2010]; Gardiner v HM Advocate; and HM Advocate v Igoe) cited by the trial judge about corroboration from post-event behaviour were distinguishable. All that was involved here was the appellant running away.

[19] The second ground of appeal was that, even if there had been a sufficiency of evidence, the verdict was one which no reasonable jury could have returned. It was accepted that the test was a high one (Fletcher v HM Advocate at para.9). Nevertheless, the admission could not properly have been used as a starting-point, as it was untrue. No reasonable jury could have found corroboration in the remaining evidence. There had been evidence that, at the time of the stabbing, the appellant had not been present, but outside the flat.

It was of note that the trial judge had reported his surprise at the verdict.

[20] The fourth ground was that the trial judge had erred in directing the jury about corroboration. He had advised the jury that the starting-point was the admission. He had effectively directed them to treat the admission as a self-corroborating confession.

Crown

[21] It was accepted that the admissions in the texts were fundamental. The surrounding circumstances were supportive of the appellant’s involvement in the stabbing; acting and associating with the stabber. R W’s evidence in particular had the appellant shouting, “Let’s go” in a panic as the deceased fell to the floor. The appellant was, according to R W, the last to leave. The jury had been entitled to accept that evidence in preference to that placing him outside in the close with Ra W. The evidence of R W corroborated the admissions in the texts, as did that of L C about the appellant barging aggressively past her. It was a matter for the jury to assess and accept the first parts of both texts, which were then supported by the circumstantial evidence.

It was for the jury to decide which, of possibly several, inferences to draw from that evidence (Smith v HM Advocate at para.16).

[22] The jury’s verdict had been a discriminating one, indicating that they had reached a carefully considered view on the evidence. It had been a reasonable one when the evidence as a whole was considered (Fletcher v HM Advocate at para.9).

[23] The totality of the charge had to be considered. The admission was not a special knowledge confession, but one requiring corroboration in the conventional way. The significant feature was the evidence, from L C, that the knife had come from a block in the kitchen and the appellant knew that, according to his voluntary statement.

Decision (a) Sufficiency

F

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[24] This ground of appeal is slightly misconceived as stated. There was no real question of there being insufficient evidence against the appellant to go to the jury. He had admitted stabbing the deceased and there was ample circumstantial evidence to provide corroboration of that admission as actor.

The testimony of R W, that he was the last to leave the scene, saying, “Let’s go” just after the deceased had collapsed, would have been enough on its own to support the admission. The submission at trial was, and is now, based on an assumption that it is accepted that Mr McCulloch delivered the fatal blow.

That assumption can now be made standing the jury’s verdict. Notwithstanding the Crown’s position, it was not agreed, prior to the jury’s deliberations, that

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it was Mr McCulloch who had stabbed the deceased. Quite the contrary, Mr McCulloch had given evidence that it was not he who had stabbed the deceased, but Mr Morgan. The true issue is whether the judge ought to have directed the jury that, if they accepted that Mr McCulloch was the actor, there was insufficient evidence to convict the appellant art and part. That is the question which the court will answer.

[25] It is critical in the first place to identify exactly what has to be proved against the appellant, upon the hypothesis that Mr McCulloch was the actor, for a conviction of murder or culpable homicide to follow. It must at least be that the appellant actively participated in an attack on the deceased which caused his death. More, however, is required.

[26] Formerly, when a jury deemed the use of a lethal weapon by one accused to be murderous, the question in respect of any other accused was simply whether that use was within his reasonable expectation when, or after, he participated in the attack (Docherty v HM Advocate [1945]). If it was, he was guilty art and part in the murder (Lord Moncrieff at pp.95–96).

Reasonableness of an expectation could be inferred from, for example, the co-accused’s own use of a weapon or his knowledge that the eventual murderer was carrying one. However, as it was put by Lord Moncrieff (p.96): “If, on the other hand, they had no reason so to expect that any one among them would resort to any such act of violence, the mere fact that they were associated in minor violence will not be conclusive against them and the lethal act, as being unexpected, will not be ascribed to a joint purpose so as to make others than the principal actor responsible for the act.”

On that straightforward rationale, there is no room for a verdict, based upon concert, which differs from that against the actor. If there was no concert in the murderous attack, the co-accused could, at best, be convicted of an assault.

There was no room for a verdict of culpable homicide, where the actor was convicted of murder because, it was thought, such a verdict was inconsistent with the principle of art and part guilt. If the co-accused did not associate himself, judged objectively, with the use of lethal force, he could not be convicted of any form of homicide.

[27] Brown v HM Advocate introduced an interesting dimension to the equation. This was that, if a co-accused had associated himself only with a non-lethal attack, he could be convicted of culpable homicide. Notwithstanding what had previously been relatively clearly understood within the concept of art and part guilt, a person could act in concert with the principal actor yet be guilty of a lesser crime. Although this troubling approach might have the effect of making convictions for murder art and part more difficult to prove, it opens up the prospect of a conviction for homicide where the co-accused has not associated himself with a lethal attack.

[28] The Full Bench in McKinnon v HM Advocate shied away from disapproving Brown expressly, even if it commented adversely upon it (at para.22). As the Lord Justice General (Cullen), delivering the opinion of the court, said (at para.27): “[I]f the relevant concert is established, there is no separate question as to whether the individual accused had the necessary criminal intent which is required for the finding of guilt of that crime. . . .”

He continued (at para.30) by stating that: “[W]hile the individual accused was party to a common criminal purpose with others, it was not foreseeable that the victim might sustain serious

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injury. In such a case the jury might conclude, according to the part played by him or her, that he should be acquitted or should be convicted of a lesser crime than murder.”

However, he then postulated (at para.32) that: “It is for the Crown to prove in relation to each accused. . .that there was a (common criminal purpose which is or includes the taking of human life or carries the obvious risk human life will be taken) and that particular accused associated himself with that purpose. Where he is proved to have associated himself with that purpose or is proved to have participated in some less serious common criminal purpose in the course of which the victim dies, the accused may be guilty art and part of culpable homicide, whether or not any person is proved guilty of murder.”

[29] There appears to be an illogicality in this approach; that a person can be art and part guilty of culpable homicide when the victim is found to have been murdered, but this is the law as it presently stands (see also Hopkinson v HM Advocate and more generally Leverick, ‘The (art and) parting of the ways: joint criminal liability for homicide’, 2012 S.L.T. (News) 227). Upon that basis, which may well require to be reviewed again by the court or Parliament, if the appellant had engaged in a joint attack on the deceased, even if there was no objective basis for concluding that he ought to have had the use of a weapon in mind, he could still be convicted of culpable homicide if non-lethal violence (which by definition could not have killed the deceased) was used by him in a joint attack.

[30] In this case there is little difficulty in holding that there was sufficient evidence that, in fact, the appellant was aware of the potential use of lethal force. It was he who stated in the texts that, “We ended up stabbing Sam. . .” and “Me and Stu done in Sam J last night.” He admitted taking part, jointly with Mr McCulloch, in a lethal attack on the deceased. The fact, that it is accepted that he did not himself stab the deceased twice, is of little moment.

It was for the jury to decide whether this was an idle superfluous boast or a partially mistaken understanding of what had happened. It was still a critical statement against interest providing clear evidence of art and part guilt.

[31] In relation to corroboration, the surrounding facts and circumstances provided adequate corroboration of the admission of joint participation. It is, of course, important to keep in mind that, in the case of an admission, what is being looked at is evidence from another source which confirms or supports, not the act of joint participation itself, but the terms of the admission (Hartley v HM Advocate). Such corroboration can come from special knowledge about the commission of the crime, including the provenance of the murder weapon, or its aftermath or from circumstances demonstrating that the appellant was involved in a joint attack. In that respect, it could not come from the appellant’s own statements about the knife, since that would emanate from the same source as the texts (ie the appellant).

[32] Suffice to say for present purposes, there was sufficient confirmation or support for the contention that the appellant had engaged in a joint attack with Mr McCulloch from L C’s testimony that he (the appellant) had re-entered the flat in a temper intent on doing something to the occupants (see also Mr Morgan) and remained there until after the stabbing (L C, M M and R W) when he said, “Let’s go” in a panic (R W). He continued in association with Mr McCulloch thereafter when he (McCulloch) disposed of the knife. He sought refuge with him in the house of a third party, presumably to avoid ready detection, and took it upon himself to enquire after the deceased at the hospital.

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(b) Reasonableness

A

[33] The task facing an appellant, in demonstrating the unreasonableness of a jury’s verdict, is significant, once a sufficiency of evidence has been established (Dreghorn v HM Advocate, LJC (Carloway) at paras. 31 and 32 following Geddes v HM Advocate (No. 2), LJC (Carloway) at para.4 citing E(A J) v HM Advocate, LJC (Gill) at para.30). It is only in “the most exceptional circumstances that an appeal on this ground will succeed” (ibid, citing Harris v HM Advocate, Lord Bonomy at para.67).

[34] The appellant has rightly drawn the court’s attention to the trial judge’s expression of surprise at the verdict. Yet the judge did not regard it as an unreasonable one. There was a clear admission of involvement in the fatal attack and proof aliunde of that involvement. It is not possible to sustain a submission of unreasonableness in these circumstances. The co-existence of verdicts of murder and culpable homicide in respect of a single stab wound from a known assailant has already been commented upon; but it was a verdict which the jury were entitled to return standing the judge’s directions, which accorded with the current state of the law.

B

C

(c) Misdirection

[35] The significance of a self-corroborating confession is that it is corroborated solely by way of confirmation of the truth of its contents in circumstances in which the jury hold that the only reasonable explanation for an accused knowing of these contents is because of his involvement in the crime (Wilson v HM Advocate, LJG (Emslie) at p.222). Although there were elements of the appellant’s admissions, including the source of the knife, which was proved to be the block in the kitchen, which might in other circumstances have been used to demonstrate special knowledge, that was not necessary in this case, where there was other corroborative material. Had the judge given the jury a direction that the texts and the appellant’s interview and voluntary statement provided a self-sufficient admission capable of corroborating itself by virtue of their coincidence with proved fact, such a direction might have been open to criticism, were it to have been accepted that Mr McCulloch had admitted stabbing the deceased to the appellant as he exited the close. The judge did not give such a direction. On the contrary, he specifically told the jury that the contents of the texts and the appellant’s reference to the knife “would not be enough on its own”. It was that evidence, coupled with the testimony of other witnesses speaking to the appellant’s actions in the flat and thereafter, that provided a sufficiency in the sense that the combination could be taken as demonstrating that the admissions of involvement were true. Such a direction, whilst perhaps cautious, cannot be described as erroneous from the appellant’s standpoint.

[36] The appeal must be refused.

E

F

COMMENTARY The main (only?) point of interest in this case is its criticism of Lord Justice General Hope’s dictum in Brown which, it may be worth noting, was a case in which both accused were convicted of murder where the deceased had been stabbed once, and it was not known which of the two accused had stabbed him, and the convictions were appealed on the ground that the judge had not left culpable homicide to the jury. The judge’s failure was regarded as not consonant with the view that culpable homicide should be withdrawn only with great caution, and as having deprived the jury of the opportunity of

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deciding whether each of the accused was aware that a knife was likely to be used.

The law of art and part, particularly in relation to homicide, is replete with difficulties. It involves punishing A for something which B did, and for which no subjective mens rea – ie intent to kill, is required. There is no problem in convicting two persons of robbery where they set out to commit that crime, and the same is true where they set out to commit murder, or to inflict what is regarded as murderous violence. But few of the homicide cases are as simple as that. Scots law deals with art and part by reference to the concept of a common plan and to the accused’s knowledge of what that plan involved. The law, as it were, personifies the plan, asks what crime “it” is guilty of, and then convicts each party of that crime. Where there is a conspiracy whose purpose is to inflict what the jury regard as injury likely to be fatal, and it is fatal, all the conspirators are guilty of murder. Where the plan is to inflict minor injury and death ensues, all are guilty of culpable homicide on the basis of the rule that to cause death by assaulting someone is culpable homicide. But if a fatal blow is inflicted by one of them which goes beyond what was intended but was a reasonably foreseeable result of the plan, all may be guilty of murder.

The above is an attempt to summarise the law, and it may well be that that law needs to be reconsidered in light of modern concepts of individual responsibility, even although it is no longer complicated by the absence of capital punishment. Whether a Parliamentary review will support Lord Hope’s individualist approach to mens rea in art and part cases is, of course, another matter. There is also the difficulty of ascertaining the facts in what is often a confused situation, or of determining whether there is a difference between cases of antecedent concert and cases of spontaneous concert, and, if so, into which category any particular case falls.

The evidence in the instant case was far from clear, but the court approached the case on the basis that it was one of antecedent concert in which the appellant was aware of the potential use of lethal force (para.30), in which case he would, as the court suggests, be guilty of murder, but that was apparently not the view of the jury.

The instant case, unlike the cases discussed in the opinion, was an appeal against a conviction of culpable homicide, and not of murder. There is therefore an argument that all that the Crown needed to do was to satisfy the appeal court that there had been sufficient evidence that the appellant was party to an assault on the deceased, since any death resulting from an assault is deemed to be culpable homicide. The fact that that that approach has not been taken may be due to the fact that the distinction between culpable homicide and murder is one of the degree of responsibility falling on the assailant, and so of the appropriate level of punishment, rather than one between two different crimes (culpable homicide being historically a homicide for which hanging was regarded as excessive, ie second degree murder). But there is much, too, to be said for the court’s view that the alternative to murder in a case such as this is not culpable homicide but assault.

Note: for a recent discussion of English law, see R v Jogee [2016] UKSC 8.

F

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A Double Jeopardy Application

19 February 2016

HER MAJESTY’S ADVOCATE

Applicant

against FRANCIS DAVID AULD

Respondent B

[2016] HCJAC 18 Double jeopardy—Fresh evidence of admissions by accused—Whether evidence admissible—Whether admissions substantially strengthened Crown case—Whether court should authorise new prosecution— Double Jeopardy (Scotland) Act 2011 (asp 16), s.3 Evidence—Admissibility—Statements prison officer—Whether admissible

by

accused—Statement

to C

Evidence—Admissibility—Statements by accused—Whether capable of being incriminating Section 3 of the Double Jeopardy (Scotland) Act 2011 provides that if a person who has been acquitted of an offence on indictment admits the offence the High Court may, on the application of the Lord Advocate, set aside the acquittal and grant authority for a fresh prosecution if, in the case of an admission made before the acquittal it is satisfied, in terms of s.3(4)(a) of the Act, that the admission was not known and could not with reasonable diligence have been known by the Crown by the time of his acquittal, and that, in any case, the case against him is strengthened substantially by the new evidence, that on the new evidence and the evidence which was led at the trial it is highly likely that the person would have been convicted, and that it is the interests of justice to do so.

The respondent, who was a young man, was charged on indictment in 1992 with the murder of D, a 19-year-old girl. The Crown case depended on evidence that the two had been together shortly before the murder, that the girl’s breast had been aggressively bitten and that her bra had not been worn after the bite had been inflicted, and that hairs, identified as consistent with having come from the respondent, had been found near her body. There were also some signs of blood on his clothing, and a jacket he had been wearing at the time had disappeared. The respondent admitted having been with D, but said that he had left her on the arrival of a person he named as M. M had not been traced and there was evidence that D had no acquaintances of that name.

The respondent had said that he had lost the jacket on the night of the murder.

The respondent was acquitted, and the case was re-investigated after the passing of the 2011 Act. The affidavits put forward by the Crown consisted of statements made by the respondent which it was submitted could be construed as admissions. An acquaintance of the respondent, McD, said that when he suggested to the respondent that as the last person to have seen D alive he should go to the police, the respondent replied that he had left D with M. McD had then warned him that unless he could prove that he “would get done”, to which he had replied, “I won’t get done with that, I’m too cute for that.” Another of the respondent’s acquaintances, C, said that on an occasion when they had passed a car wash the respondent said that that was where he was meant to have washed all his clothes. When C asked him some days later if he had had anything to do with D’s murder, he replied, “That’s something

D

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that naebody will ever know,” and added, “It doesnae really matter, she was ugly anyway.” That witness also stated that she received a phone call at about 5.30 am from someone she believed to be the respondent, saying that she was “next”, and that shortly after that her boyfriend received a call in which a male voice said, “You thought [D] was the last, well, you’re next after C.” The respondent had pled guilty to charges related to those calls. There was also an affidavit from a taxi driver that the respondent, a passenger in his taxi in 1993, had seized the radio microphone and said, “I done it, I done it.”

The Crown also presented an affidavit from a prison officer who had a conversation with the respondent in pursuance of his duty to talk to prisoners on remand such as the respondent to gauge their mood and determine if they were suicidal. He opened the conversation by saying, ‘It’s quite a heavy charge you’re in for’, to which the respondent replied, “We were just fooling about and things got out of hand.”

Held (1) that it was clear that any statement relied upon for the purposes of s.3 must be such as can fairly and reasonably be construed as an admission that the individual committed the offence, that what may be sufficient for that purpose will no doubt vary according to circumstances, but that it was worth bearing in mind that this was the import which the statement must bear, that in that regard the context in which the statement is made is a vital consideration (para.57); and that the Crown’s approach that if an answer was not a categorical denial it must be construed as an admission was not tenable (para.61, p. 173A); (2) that, apart from the statement to C, none of the statements involved confronting the respondent with the allegations (para.60); (3) that the response, “that’s something that naebody will ever know” was not an admission (para.59); (4) that it was simply not possible to attribute to the remark to McD, following as it did a clearly exculpatory statement, the character of an admission of murder (para.61, pp.172–173) (5) that the phone calls and the statement in the taxi were made at a time when the respondent was already isolated in the community and these former friends had deserted him, and made it clear that they now believed he had been guilty of the offence for which he was acquitted, that they fell more into the category of misguided, unpleasant and immature conduct, and that, having regard to the whole circumstances in which they were made, they could not reasonably and fairly be construed as admissions (para.61); (6) that the statement to the prison officer could be construed as an admission because the context was one in which the charge for which the respondent was on remand was specifically referred to (para.62); but (7) that the respondent was a young person who had been charged, that there was a very clear legal principle that an individual in that position was protected from any further investigation of the charge, that the officer’s initiating remark could be viewed as a “prompt” to speak, that there was nothing else to which the response might be expected to relate but the subjectmatter of the prompt, that the fact that the witness was a prison officer and not a police officer made little difference, that the context of the conversation robbed the statement of any voluntary character, that it was clear from his affidavit that the witness initiated the conversation with a view to eliciting a response and that it was obvious that any response to this opening gambit would be likely to relate to the same subject-matter, namely the charge against him, that a prison officer dealing with a remand prisoner, especially a young person, needs to think very carefully about the subject-matter upon which he opens conversation, but that here he went straight to the charge which the respondent was facing, and that the response could not be viewed as voluntary or spontaneous, and was inadmissible (para.63); and (8) that the court did not need to address whether such oblique statements as those made to the witnesses other than the prison officer could be viewed as adding weight and substance to the case, or to assess what evidential or

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persuasive effect any of the evidence might have on a jury, that much of the evidence presented a challenge, from the point of view of satisfying a jury of its reliability and persuasive effect, and that on the question of the interests of justice, had that matter arisen, the court would have had to be cognisant of the fact that the vast majority of label productions of any importance had been destroyed, and could not now be subjected to any enhanced DNA analysis, by either party (para.65); and application refused.

A

Cases referred to in the opinion of the court: Fraser & Freers v HM Advocate, 1989 S.C.C.R. 82 Greenshields v HM Advocate, 1989 S.C.C.R. 637 HM Advocate v Sinclair [2014] HCJAC 131; 2014 S.C.C.R. 554; 2015 J.C. 137; 2014 S.L.T. 1092 McKenzie v HM Advocate, 1982 S.C.C.R. 545; 1983 J.C. 13; 1983 S.L.T. 304 Miln v Cullen, 1967 J.C. 21; 1967 S.L.T. 35 Moran v HM Advocate, 1990 S.C.C.R. 40; 1990 J.C. 196; 1990 S.L.T. 756 Stirling v McFadyen, 2000 S.C.C.R. 239; 2000 G.W.D. 8–274 Tole v HM Advocate [2013] HCJAC 109; 2014 S.C.C.R. 52013 S.L.T. 1227 Van Lierop v McLeod, 1999 S.C.C.R. 577; 2000 S.L.T. 29.

B

C

Francis David Auld was acquitted of murder in 1992 after trial in the High Court at Glasgow.

In 2014 the Crown applied for authority under the Double Jeopardy (Scotland) Act 2011 to bring a new prosecution on the basis of the evidence discussed in the opinion of the court.

The application was heard by the Lord Justice General (Carloway), Lady Dorrian and Lord Bracadale.

For the applicant: McSporran, AD, Lawrie.

For the respondent: Findlay QC,Young, instructed by Murray Hamilton & Chalmers, Solicitors, Glasgow.

D

On 19 February 2016 Lady Dorrian delivered the following opinion of the court.

E

LADY DORRIAN Introduction

[1] In 1992, at the High Court of Justiciary in Glasgow, the respondent stood trial for the murder of Amanda Duffy. The jury, by a majority, found the charge against him not proven. In this application the Crown seek to set aside the acquittal and grant authority to bring a new prosecution against the respondent. The application is based on s.3 of the Double Jeopardy (Scotland) Act 2011, relying on alleged admissions, made, or becoming known of, after the date of acquittal. The Crown aver that this evidence strengthens substantially the case against the respondent; that, on that evidence, taken together with the evidence led at trial, it is highly likely that a reasonable jury properly directed would have convicted him; that the Crown have met the reasonable diligence test; and that it is in the interests of justice to set aside the acquittal and authorise a new prosecution.

F

Evidence at the trial

[2] Amanda Duffy, aged 19, was last seen alive in Regent Way, Hamilton, in the early hours of the morning of 30 May 1992 in the company of the

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respondent, most probably sometime between 00.30 hours and 01.00 hours.

At about 20.00 hours that evening her body was found by passers-by in an area of waste ground near a car park adjacent to Miller Street, Hamilton. She was lying on her back, naked from the waist down, with her face and head covered in blood. The area was badly disturbed, with broken branches and a lot of bloodstaining on the foliage. A clump of hair was adhering to a low branch two or three feet from the body. Branches/twigs had been inserted into her mouth, nostrils and vagina. The branch inserted into the mouth exited by the right ear. Where the body was found might be described as a secluded area but the general area itself was open and public.

[3] The deceased and the respondent had been at school together, and both attended Motherwell College. On the night in question, the deceased had been drinking with friends. She was described as being quite drunk by the end of the night. A similar description was attached to the respondent, who was drunk enough to be refused service in a public house. The group of which the deceased was a part came upon the respondent in the area of a shopping precinct, near the premises of Primark. He was sitting on a bench, beside an older man, John Farnan. In due course the group dispersed, and the deceased and the respondent remained in each other’s company. This was sometime between midnight and [1 am]. Some witnesses indicated that there was no physical contact between the respondent and deceased; others that they were embracing or holding hands. The respondent was wearing black Doc Marten’s, blue jeans, a white T-shirt with a Rolling Stones logo, and a blue denim jacket.

He had a personal stereo with him, belonging to his father.

[4] One of the respondent’s friends, Brian Greig, spoke to a conversation with the respondent sometime after the events, the precise timing of which could not be identified.The respondent said that he met the deceased at Primark, and that they had walked round the precinct and sat on one of the benches, kissing. They heard someone shouting and the deceased said “It’s okay, it’s only Mark”. The respondent left the deceased with Mark and went home. During the evening of 30 May, Greig noticed new scratches on the respondent’s hands. The respondent explained that he had climbed “the Geronimo tree” (a tree which Greig used to climb as a child).

[5] None of the friends in whose company the deceased had spent the evening was called Mark. She had never had a boyfriend called Mark. From school she knew two boys called “Mark”: Mark Ashby and Mark Kane, but had no relationship with either. Called as witnesses, one said he had been at home with his girlfriend at the time, the other that he had been in Mitchell O’Brien’s pub with his girlfriend until about 11.30 [pm] and had walked home via the precinct without seeing the deceased. He had seen the respondent in Mitchell O’Brien’s at about 10.30 pm. Neither had been asked to provide DNA samples. John Farnan, beside whom the respondent had been sitting at the precinct, said he saw a young man known to him as Mark Stubbs in the precinct that night and assumed he was with the young people. He thought Mark Stubbs had given him a beer. Mark Stubbs was on the defence list, but was not called.

[6] Sometime after 1 am, about 1.30 am, a witness going home heard a woman screaming in panic, for four or five seconds. The sound came from the area of the car park where the deceased’s body was later found, but the witness was unable to say exactly where.

[7] The defence elicited, without objection, evidence of the good character of the respondent. They also led evidence of a psychiatrist—the transcript of which is not available—in support of that good character.

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Medical and pathology evidence at trial

A

[8] Post-mortem examination estimated the time of death at between 01.30 hours and 13.30 hours on 30 May. The deceased had extensive blunt force injuries to the head and neck, associated with inhalation of blood. The pattern of some injuries was consistent with a broad area of impact, such as stamping, while others suggested compression of the neck, such as by gripping. There was evidence consistent with asphyxia, which would have led to unconsciousness and which might account for the lack of defensive injuries. The branches in the mouth, nose and vagina were deliberately and forcefully inserted. Injuries to the anus and rectum were similarly due to penetration.

[9] An injury to the right breast was caused by a human bite. This would have bled and was inflicted within an hour prior to death. It would have been “excruciatingly painful”, and was an active, aggressive bite, rather than a “love bite”.The dental features of the bite corresponded with those of the respondent, leading to the opinion that he had caused the bite. That he had done so was agreed by joint minute. On 5 June 1992, medical examination of the respondent revealed injuries on his arms, left hand and neck consistent with having been caused by fingernails.

B

C

Forensic evidence at trial

[10] Hair recovered at the scene was found to be very similar to samples provided by the respondent, as follows: • 20 reasonably long human hairs were recovered from broken branch near the deceased’s head, about 1.5 feet above the ground. On comparison, these were consistent with having come from the respondent. There was a good match, and the condition of the hairs suggested that they had been violently pulled out. Given their location it was unlikely that they had come from someone casually walking by.

• Another hair recovered from the locus was found, on DNA analysis, to be the same type as that of the respondent, present in 12.9 per cent of Caucasians (or 1 in 8).

• A hair recovered from the deceased’s knee was consistent with having come from the respondent. The bloodstained root was found to be blood group PGM 2+, found in approximately 3.7 per cent (1 in 27) of the population, including the respondent.

• Two hairs within debris were consistent with having come from the respondent. The respondent’s watch and personal stereo both had a small amount of human blood staining, consistent with a greater quantity having been cleaned off.

• Examination of the inside right cup of the deceased’s bra was negative for the presence of blood, suggesting that it was not worn after infliction of the bite.

• A hair recovered from the right palm of the deceased was not consistent with coming from either the deceased or the respondent.

D

E

F

Evidence at trial of police interviews with respondent

[11] After the deceased was reported missing, the respondent was interviewed in the evening of 30 May. He said he had spoken to her at about 1 am at Primark, and had walked up through Regent Way with her. They stopped outside Boots. He had left the deceased at about 1.30 am when a male by the name of Mark had approached her. This male was either an ex-boyfriend or a friend. He was about 18–20 years old and tall with dark hair.

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[12] Re-interviewed at 12.20 hours on 31 May, the respondent said he had met the deceased in the precinct, and had been in her company in Regent’s Way. They sat on one of the benches and were kissing and cuddling. He left her at about 1.30 [am] when a male called Mark arrived. The respondent had been wearing a green Army jacket, a black T-shirt with a Harley Davidson motor-cycle design, blue jeans and black biker boots.

[13] The respondent was detained on Friday, 5 June 1992 at 9.40 am.

When asked about a blue denim jacket, he said that he had lost it on that same Saturday night. He showed police the undergrowth where he said he had lost it, but it was not found, either then or on a subsequent search. In a taped interview, he now said he had been wearing a denim jacket, a Rolling Stones T-shirt and Doc Marten boots. He denied ever being in the bushes where the body was found, although he had been in the car park. He had been kissing and cuddling with the deceased while sitting on a bench in Regent’s Way, and again in various shop doorways whilst walking slowly up the precinct. He was adamant about Mark arriving on the scene in the precinct. He said nothing about biting, and was not asked about the bite.

[14] The respondent’s position was that he had got home about 2.00 [am].

His mother gave evidence that he was not home when she and her husband came home after 1.00 [am]. She did not know when he came in, but heard him sneezing during the morning. She first saw him about lunchtime. His brother heard him coughing during the Saturday morning.

The arguments at trial Crown

D

E

[15] The Crown argued that the evidence pointed to the respondent having murdered the deceased. She was last seen alive in his company, and the timing of the bite, which he admitted, indicated that she had still been in his company shortly before she was killed. The absence of blood on the bra suggested that it had not been worn after the bite, undermining the suggestion that the deceased had gone off with a man called Mark. The location of the 20 hairs at the scene, consistent with having come from the respondent, meant that they could only reasonably have come from the perpetrator. His change of position regarding his clothing allowed the Crown to suggest he had lied about losing the denim jacket and had instead disposed of it. Items in his possession were found to have traces of human blood on them, consistent with attempts having been made to clean them.

Respondent

F

[16] The defence relied upon the taped interview to put forward his account of events. The perpetrator must have been covered in blood, yet the suggestion was that only the jacket had been disposed of. It could not be said whose blood was on the watch or stereo, or when it had been deposited. There was only a low statistical possibility that the recovered hair came from the respondent, who told police that he had never been in the bushes at the locus.

The hair on the deceased’s palm had not come from either the deceased or the respondent. He had not mentioned the bite when interviewed, but was not asked about it. There was no evidence that it occurred at the same time as the other injuries. The deceased had been drinking, so it was speculation to say that it would have been painful. Evidence of the respectable family background of the respondent and the psychiatric opinion obtained following his arrest supported the view that he could not have committed this awful crime.

G

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The evidence upon which the application is based

[17] The evidence relied upon in support of the application comes from five witnesses: (i) Daniel McDougall; (ii) Alexander McCartney; (iii) Caroline Vandeleur (or Casey); (iv) Patrick Vandeleur; and (v) Paul McAteer.

Daniel McDougall

[18] This witness was an acquaintance of the respondent who was not interviewed during the original investigation. In his affidavit he states that a day or two after the murder, the respondent told him that he had been with the deceased that night. McDougall said that, as the last person seen with the deceased, he should go to the police. The respondent said he was not the last person, because a man named Mark had approached them, greeted him by name and started speaking to them. He did not know Mark but thought Mark must have known him from school. Mark said, “Fuck off ya wee prick I’m shagging her.” When McDougall said he should have told Mark to “fuck off” the respondent had replied that he was not a fighter. He left the deceased with Mark and went home. McDougall warned the respondent that, if he could not prove that this person, Mark, had appeared, the respondent would get “done” with the murder, as the last person with the deceased. The respondent replied, “I won’t get done with that, I’m too cute for that.”

[19] McDougall is not clear exactly when the conversation was, or where it took place. Only the two of them were present. There are significant discrepancies between the affidavit and his earlier police statement, in which he suggests that the conversation was initiated either by his girlfriend, or that of the respondent, both of whom were present.

B

C

D

Alexander McCartney

[20] McCartney is a retired prison officer who in 1992 was working at HM Remand Institution, Longriggend. In his affidavit he states that between 8 and 15 June 1992, when the respondent was remanded for further examination, they had a conversation which McCartney commenced by saying, “it’s quite a heavy charge you’re in for”. The respondent replied, “we were just fooling about and things got out of hand”. McCartney reported this to his supervising officer who said, “It’s just hearsay, Alex, there’s nothing you can do about it.” McCartney understood that the evidence was not admissible. All those on remand for murder were treated as vulnerable, and therefore checked up on regularly. It was McCartney’s duty to chat to such prisoners to try to gauge their mood and “to determine if they were suicidal”. This conversation was part of that process: “I was trying to get him to open up so I could assess his mental wellbeing.” He had not noted the conversation.

[21] In the Crown’s application the statement by the respondent is recorded as having the words “and it just happened” appended to the end. This was not in the affidavit, where the more limited words above were used, with the comment: “I am certain these were the words spoken. . .they have stuck with me all this time.” The Crown argue that in the affidavit he adopted the statement in which the longer version was given.

[22] In a number of statements, this witness insisted that the supervisor to whom he reported the exchange was Jim Black. In December 2012 it was explained to him that Jim Black had been retired by this time, but in a later statement, January 2013, he continued to maintain that the conversation had been reported to this supervisor.

E

F

G

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Caroline Vandeleur and Patrick Vandeleur

[23] In 1992 Patrick Vandeleur was a member of a band “Kindred Spirit”, for whom the respondent acted as “roadie”. Caroline Vandeleur, his then girlfriend, states in her affidavit that on an occasion after the acquittal she was giving the respondent a lift when they passed a car wash in Ferniegair. The respondent said, “that was where I was meant to have washed all my clothes” or words to that effect. She replied, “aye that was another rumour”. Although not a car owner, or a driver, the respondent asked whether the cost of the car wash was still 50 pence. Some days later, having thought matters over, Caroline Vandeleur asked him “did you have anything to do with that lassie’s murder?”

The respondent replied “that’s something that naebody will ever know”, adding “it doesnae really matter, she was ugly anyway”.

[24] Caroline Vandeleur also states that at around 5.30 am on 10 July 1993 during the course of a telephone call a male voice with a local accent said to her, “Caroline you’re next.” She did not recognise the voice but believed the caller to be the respondent. Shortly after that call, Patrick Vandeleur received a call in which a male voice said, “Patrick, Patrick, Patrick” and “you thought Amanda was the last, well you’re next after Caroline”. Due to the timing and the content of the calls he thought the caller was the respondent. Only a small group of people, including the respondent, used his full name, or knew that Caroline was residing with him at that time. The calls were made after the Vandeleurs had made it clear they questioned the respondent’s innocence, and they had not fallen out with anyone else.

[25] This information was originally communicated to police in a series of statements in 1993. This led to a summary prosecution for breach of the peace and a contravention of s.43(1) of the Telecommunications Act 1984.

The telephone calls referred to above formed part of that prosecution. The respondent tendered a plea of guilty, but the exact terms of the plea, or the charges, are unknown, since usual practice is to destroy all documentation relating to summary prosecutions after ten years. The Crown initially intended to prove the terms of the plea, but given the evidential difficulties apparent in such a course, were content simply to prove the facts, giving due notice thereof by docket.

Paul McAteer

[26] He managed “Kindred Spirit”. He also drove a taxi. His affidavit states that in early 1993, the respondent, a passenger in his taxi, seized the radio microphone saying, “I done it, I done it, I done it”. Seeing that McAteer was angry, he said, “it’s all right, I never pressed the button”.

[27] The evidence from the Vandeleurs and McAteer indicate that prior to the trial, the respondent was a close member of their social circle, especially the Vandeleurs. Caroline Vandeleur refers to them as a “close-knit group”.

They had supported him through the trial, and the Vandeleurs attended it.

After the acquittal, however, things changed. Based on his demeanour, his comments noted above, and local discussion about the case, they began doubting his innocence, and said that he was no longer welcome in their social circle.

The legislation

[28] “Section 3 Admission made or becoming known after acquittal G

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offence’) may, if the conditions mentioned in subsection (3) are satisfied, be charged with, and prosecuted anew for— (a) the original offence, (b) an offence mentioned in subsection (2) (a ‘relevant offence’). ...

(3) The conditions are that— (a) after the acquittal— (i) the person admits to committing the original offence or a relevant offence, or (ii) such an admission made by that person before the acquittal becomes known, and (b) the High Court, on the application of the Lord Advocate, has— (i) set aside the acquittal, and (ii) granted authority to bring a new prosecution.

(4) The court may set aside the acquittal only if satisfied— (a) in the case of an admission such as is mentioned in subsection (3)(a) (ii), that the admission was not known, and could not with the exercise of reasonable diligence have become known, to the prosecutor by the time of the acquittal in respect of the original offence, (b) that the case against the person is strengthened substantially by the admission, (c) that, on the admission and the evidence which was led at the trial in respect of the original offence, it is highly likely that a reasonable jury properly instructed would have convicted the person of— (i) the original offence, or (ii) a relevant offence, and (d) that it is in the interests of justice to do so.”

A

B

C

D

Submissions Arguments re reasonable diligence Crown

[29] The Crown have acted with due diligence. On the coming into force of the Double Jeopardy [(Scotland)] Act police were instructed to conduct a fresh inquiry into the murder. This was an extensive task, with inquiries continuing in July, August and September 2014. There was no reasonable basis, prior to acquittal, for the police or the prosecutor to interview associates of the respondent, fellow remand prisoners or prison officers. The extent and nature of a criminal investigation depends on all the circumstances of the case.

[30] At the outset of the re-investigation it was known that, post acquittal, the respondent had made the comments to the Vandeleurs which led to summary proceedings. This provided a reasonable basis for suspecting that he may have confided in others. A policy of tracing and re-interviewing witnesses led to identification of McDougall as an associate. His evidence became known to the police on 12 September 2012, and could not with reasonable diligence have become known earlier, there being no basis to interview him before that.

[31] In 2012, a police officer learned during an informal conversation that McCartney had relevant information and a formal statement was arranged.

His evidence could not with reasonable diligence have become known sooner.

There was no basis for interviewing him during the initial investigation. He did not report it because he thought it inadmissible.

[32] The remaining statements were made after the acquittal.

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Respondent

[33] McCartney dealt with the respondent on a daily basis. McDougall was an associate. Reasonable diligence would involve them being spoken to at the time.

Admissibility of the statement to McCartney Crown

B

C

D

[34] There is no rule that statements to a prison officer by a prisoner on remand are inadmissible. The test for admissibility of such statements is fairness. Renton and Brown, Criminal Procedure (6th edn), para.24–55(e); Miln v Cullen; Tole v HM Advocate.

[35] There is no evidence that McCartney interrogated the respondent, cross-examined him, applied undue pressure, cajoled, trapped or bullied him into making the statement. Its admission would not be unfair. Fairness does not require that an admission to a prison officer must be under caution. The law is very jealous of the right of the charged prisoner, but the concern is to protect against those who might abuse their official position, ie, police officers questioning an accused after charge to elicit evidence to prove or support their case. McCartney did not speak with the respondent as part of a criminal investigation, but in the ordinary course of his duties. His purpose was an innocent one.

[36] After reviewing the authorities, Alison’s Practice of the Criminal Law of Scotland (1833) comments (pp.585–587): “[T]he result of these cases seems to be, that conversations held, or confessions made in jail, are admissible evidence, provided that they are proved to have been freely and voluntarily emitted, without promises or threats of any kind, and that the evidence of these was obtained without any premeditation or design laid by those having the custody of the establishment.”

Respondent

E

F

[37] The alleged statements to McCartney are inadmissible. Longriggend housed young prisoners who, being on remand, were under the care of the court. McCartney instigated the conversation and went straight to the matter of the charge, with no warning. This was a direct invitation to a remand prisoner to discuss the subject of the remand. He ought to have been warned and at the very least should have been told that conversations would not be confidential. Remand prisoners, especially young ones, are particularly vulnerable. They are under stress and may have no prior experience of the situation they find themselves in. The respondent was in the early stages of remand and was entitled to be protected against a prison officer going beyond his duty.

Do the statements constitute admissions?

Crown

[38] The statement to McDougall can be construed as an admission, since rather than deny responsibility the respondent appeared to accept his involvement, saying that he is “too cute” to get “done”. The statement “that’s something naebody will ever know” constitutes an admission. It makes no sense coming from an innocent person, who might reasonably be expected to deny it. The telephone calls can be construed as admissions, the implication being that the respondent murdered the deceased, and that the Vandeleurs G

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would be next. It may be inferred that the respondent made them: the calls are to the same number, associated in timing, content and the identity of the caller as a local male, and in circumstances where few people knew that Caroline Vandeleur was living there.

[39] An admission for the purposes of the Act, which contains no definition, should be interpreted in accordance with case law which endorses a broad approach, recognising that not all admissions to murder will be clear and unequivocal. As the Lord Justice Clerk (Ross) observed in Greenshields v HM Advocate at p.642A: “It is not only clear and unequivocal admissions which have evidential value. It has often been said that if there is a clear and unequivocal admission of guilt, then very little evidence in corroboration of such an admission is required. That is not to say, however, that something less than a clear and unequivocal admission is of no value.”

That the alleged admission to McCartney may be subject to a number of interpretations is not fatal to its being termed an admission. In Stirling v McFadyen, a statement was “ambiguous” and “open to a number of constructions” but was capable of being an admission. Context is vitally important. That something less than a “full admission” may still be construed as a “confession” is recognised in the context of judicial examination. In that context, in McKenzie v HM Advocate at p.550, Lord Robertson found that, a “confession” is a “statement [that] is clearly susceptible of being regarded as an incriminating statement”.

A

B

C

Respondent

[40] The respondent denies that any of the statements were made, but in any event, argues that the statements are too ambiguous to be construed as admissions. The words uttered must be capable of being construed as an admission of involvement in the actual commission of the crime charged. For example “I was there but I never touched him” could not be construed as an admission.

[41] Comments which may seem callous or indifferent to the fate of the victim or even showing approval of what has happened cannot be construed as admissions. The comment “I won’t get done with that, I’m too cute for that” is manifestly not an admission. It was made against the background of a clear and unequivocal exculpatory statement.

[42] Esto the statement to McCartney is admissible, it does not constitute an admission. The Crown’s submissions ignore the defence position that he had contact with the deceased, both were under the influence of drink, and that he placed a love bite on her breast.

[43] So far as the Vandeleurs and McAteer are concerned, the statements do not constitute admissions. There is no context to the statements made in the taxi. All these comments must be viewed against the background in which they were made, and the respondent’s feelings of betrayal. This was a 20-year-old young man, tried for, and acquitted of, the gruesome murder of a young female, after which he was subjected to widespread hostile publicity, and found himself at the centre of a political campaign to abolish the not proven verdict. He was presented as a man who had got away with murder, rather than one acquitted following a fair trial. His friends deserted him. He could not understand why, and felt hurt, let down and disappointed.

D

E

F

G

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Whether the case is substantially strengthened by the admissions Crown

[44] The Crown argue that the admissions have more than a marginal or trivial effect on the case. In the context of a circumstantial case, admissions add weight and substance. Their effect mitigates the evidential weaknesses in the original forensic evidence. They throw a different light on the respondent’s character, enabling the Crown to counter the line that nothing in his character or background supported his involvement in the killing. It is the strengthening effect that the admission has in the context of the original evidence that is important. An admission has even greater effect when no admission evidence was led at the original trial.

Respondent

[45] The remarks are all trivial or marginal and add no weight or substance.

There are deficiencies in the evidence which are referred to in more detail in the next section.

C

Whether it is likely that a reasonable jury properly instructed would have convicted Crown

[46] This condition focuses on the combination of the evidence led at the original trial and the new evidence. Accordingly: “The court requires to have regard to what it considers to be the evidential and potentially persuasive effect of the new evidence in combination with the evidence led at trial“ (HM Advocate v Sinclair, para.99) D

E

The admissions bolster the existing evidence, increase its evidential and persuasive effect, and provide a strengthened evidential basis on which a jury could conclude that the respondent was the perpetrator. The admissions increase the persuasive effect of the existing forensic evidence.They undermine the assertion that this was an ordinary young man, with nothing in his “makeup” to suggest that he was capable of such a brutal act.

[47] The admissions were made to different people on different occasions and are spoken to by witnesses with no connection to the deceased or her family. It cannot be said that they were generated as a result of collusion. They have significant probative value and are reasonably capable of being believed by a jury.

Respondent

F

[48] The evidence is so limited as to make it highly unlikely that it would have impacted upon a reasonable jury to any significant extent, especially given that the original jury acquitted. No reasonable person would interpret the remarks as an admission to murder. The Vandeleurs are unlikely to have been accepted.

The Crown cannot prove that the voice was the respondent’s, relying on assumptions for proof. McAteer gave inconsistent statements. McCartney is either dishonest or wholly unreliable. It is inconceivable that he would have kept no record of the remark. McAteer made two statements to the police, in July 1993 and 2012, in which the taxi incident, said to have occurred in early 1993 was not mentioned.

Whether it is in the interests of justice to set aside the acquittal Crown

G

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[49] The advocate depute referred to the non-exhaustive list of factors relevant to this aspect of the test in HM Advocate v Sinclair at para.103. The interests of justice require that the public have confidence in the criminal justice system.

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[50] The crime is one of the utmost seriousness, involving a particularly horrifying and brutal murder. The sadistic nature of it caused enormous distress to the deceased’s family and shock and revulsion to the public at large.

The admissions are compelling, and their nature and strengthening effect make it in the interests of justice to bring a new prosecution.

[51] A fair trial can be held notwithstanding the passage of time. Nine witnesses have since died but no prejudice would arise from their nonavailability. Most did not testify at the trial. In any event, their evidence can be spoken to by others. In some instances, other experts have been instructed and where necessary evidence could be led under s.259 of the 1995 Act. All defence witnesses and productions are still available.

[52] Regarding productions, the scientific comparisons carried out by witness June Guinness are not available. Production 45, a newspaper, is not available, but a copy is. Property registers reflect the return of property, but copies of the originals are available.

[53] Of label productions, only a small number remain. Casts of dental impressions are not available, but life-sized, scale photographs are. The four hair roots ([productions] 133–136), some blood samples ([productions] 129–132) and six of the 20 recovered hairs, are available where unused through analysis. Some cassette or video tapes are available. All the clothing of the deceased, and all twigs and vegetation no longer remain, but any effect of this can be mitigated by photographs, reports, and a video of the locus showing the deceased in situ.

[54] The passing of time will have ameliorated the effects of any prior prejudicial publicity, and would not prevent a fair trial. The trial process itself contains inherent safeguards. The proceedings are protected by the Contempt of Court Act.

A

B

C

D

Respondent

[55] In the event that the relevant conditions were met, it would be for the court to determine whether it would be in the interests of justice to grant the application. If it were granted, the respondent would require the protection of the Contempt of Court Act. Decision Issues Whether the statements constitute admissions

E

[56] The first condition which must be satisfied for the operation of s.3 is that contained in s.3(3)(a)(i), that: “(i) the person admits to committing the original offence. . .”. We do not consider that it is correct, as the advocate depute submitted, that any “statement susceptible of being regarded as incriminating”, will necessarily qualify within the terms of s.3(3). Much will depend on the circumstances. It is important to note that the cases in which that formulation was adopted, McKenzie v HM Advocate and Moran v HM Advocate, were addressing the question whether the statement was an “extrajudicial confession (whether or not a full admission) relevant to the charge”. They were dealing with a statutory provision in very different terms to the one here, and we consider that it would be difficult for us to take too much from those cases as to what constitutes an admission for present purposes.

[57] It is clear that any statement relied upon for the purposes of s.3 must be such as can fairly and reasonably be construed as an admission that the individual committed the offence. What may be sufficient for that purpose will

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no doubt vary according to circumstances, but it is worth bearing in mind that this is the import which the statement must bear. In that regard the context in which the statement is made is a vital consideration.

[58] In both Greenshields v HM Advocate and Stirling v McFadyen, the statements were considered, in the circumstances in which they were made, to be sufficient to amount to an admission, even although they may have been capable of bearing another meaning. However, it is critical to note the context in which the statements were made. In the first case, the statement relied upon was a response made to caution and charge. The charges, which were of murder, and subsequently attempting to pervert the course of justice by dismembering the body, were each specified in detail. In the second case, the complaint was one of lewd and libidinous practices by a Sunday school teacher. The nature of the allegations, which later formed the charge faced by the accused, were again put to the accused in detail—in this case by the minister of the church concerned. In circumstances where the replies were made in response to the assertion of a detailed allegation, it is hardly surprising that the court considered that they could be viewed as admissions. In Greenshields the court said this: “The charge included a charge of murder in substantially the same terms as in the indictment. It then proceeded to charge that with intent to conceal the body and in the commission of said murder he did carry out the further acts which are set out after the allegation of murder in the present indictment with intent to pervert the course of justice and he did attempt to pervert the course of justice. In reply the panel said, according to these witnesses: ‘That’s it, isn’t it.You don’t think I did it myself do you; but I’m telling you nothing about it until I see my lawyer.’

The first question must have been for the jury to determine whether the reply constituted an admission at all, and if so an admission of what.” and in Stirling: “As we have said, what was put to the appellant was a clear and specific allegation of indecent assault and to that allegation the appellant made the statement which he did. In our view, while it is true that the statement may be ambiguous and could be open to a number of constructions, we cannot say that no reasonable sheriff could possibly have come to the conclusion that this was an admission.”

The fact that the replies in each case were made in response to specific allegations meant that they could reasonably and fairly be construed as admitting the offence, even if somewhat equivocally worded. With the exception of the remark allegedly made to Mr McCartney, to which we shall return, the situation here is quite different.

[59] In the case of the confrontation of the respondent by Caroline Vandeleur the response cannot be construed as an admission. She reports asking him, “did you have anything to do with that lassie’s murder?” but the response, “that’s something that naebody will ever know”, is not an admission, and the gratuitous insults added thereafter, whilst they may indeed be cruel and ungenerous, cannot alter the character of what went before.

[60] None of the remaining statements involve confronting the respondent with the allegations.

[61] It is important to recognise that the context in which the remarks to McDougall were made was that the respondent had made a clearly exculpatory statement to him, indicating that he had not been the last person with the deceased, the individual named Mark had been. In the context in which it was

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made, it is simply not possible to attribute to the respondent’s remark the character of an admission of murder. The Crown’s approach seems to be that if the answer is not a categorical denial it must be construed as an admission.

That is simply not tenable. So far as the phone calls to the Vandeleurs and the statements in McAteer’s hearing are concerned, the background context is again very important. The respondent was already isolated in the community and these former friends had deserted him, and made it clear that they now believed he had been guilty of the offence for which he was acquitted. We proceed on the basis that the background circumstances are such that it would be a reasonable inference that the respondent had made the telephone calls, but those very background circumstances indicate that the respondent and the Vandeleurs had “fallen out”, and whilst the phone calls were no doubt meant to frighten the Vandeleurs by capitalising on their belief that he was a murderer, and to enhance that fear, they cannot reasonably or fairly be taken to amount to an admission that this was so. The same reasoning applies to the incident with McAteer. These remarks and the phone calls seem to fall more into the category of misguided, unpleasant and immature conduct. Having regard to the whole circumstances in which all these statements were made, we do not think they can reasonably and fairly be construed as admissions.

[62] The position relating to McCartney is rather different. In our view the comments made to him could be construed as an admission, even without the addition of the words in the statement which are not referred to in the affidavit, because the context was one in which the charge upon which he had been remanded was specifically referred to.

A

B

C

Whether the statement to McCartney is admissible

[63] The advocate depute was correct to submit that there was no rule that any statement made by a prisoner on remand to a prison officer was inadmissible, and Mr Findlay did not seek to suggest otherwise. The overall test for the admission of a statement such as this is one of fairness. As will be apparent, the whole circumstances of the case will be relevant. The absence of cross-examination or interrogation, and the fact that the purpose of initiating a conversation was an innocent one, are all relevant factors, but they are far from decisive in the way in which the advocate depute appeared to think. The present case involved a young man remanded on a charge of murder, who was engaged in conversation by a prison officer, with the specific purpose of eliciting a response, where the subject-matter of the conversation was the very charge upon which he had been remanded. As the advocate depute correctly submitted, the law is very jealous of the right of the charged prisoner. In submitting that the statement was admissible, he was at pains to stress that McCartney was not a police officer, was not acting in an investigative capacity, and that his purpose was to gauge the respondent’s state of mind. The case of Fraser & Freers v HM Advocate, upon which the advocate depute relied, proceeded on a concession and the remarks of the court are obiter. In Van Lierop v McLeod, the individual had not been charged. Neither case detracts in any way from the clear legal principle that an individual in the position of the respondent is protected from any further investigation of the charge. Had a police officer instigated this conversation there can hardly be any doubt that the response would be inadmissible. The initiating remark can be viewed as a “prompt” to speak: what else might the response be expected to relate to but the subject-matter of the prompt? The fact that the witness is a prison officer, and not a police officer makes little difference. The context of this conversation robs the statement of any voluntary character.The initiating remark constituted

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an encouragement to a remand prisoner to discuss the subject-matter of his remand. Had the witness been a police surgeon, prompting a conversation on a matter not connected with the health of the examinee, the result would be equally inadmissible. Had the witness wished to inquire into the health of the respondent, he might have initiated such a conversation in any number of innocent ways. Instead of asking a question relating to the respondent’s health or well-being, he went straight to the subject-matter of the serious charge upon which the respondent had been remanded. It is clear from his affidavit that the witness initiated the conversation with a view to eliciting a response.

That much the advocate depute accepted. He did not accept that the remark was either intended or likely to elicit a response relating to the charge. We are unable to accept that. It is obvious that any response to this opening gambit would be likely to relate to the same subject-matter, namely the charge against him. A prison officer dealing with a remand prisoner, especially a young person, needs to think very carefully about the subject-matter upon which he opens conversation. Here, he went straight to the charge which the respondent was facing. The response cannot be viewed as voluntary or spontaneous, and is inadmissible.

The remaining tests under s.3

D

E

F

G

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[64] In respect of all the statements other than that to McCartney, the terms of s.3(3)(a)(i) are not met, and it is not necessary in respect of those statements to consider the remaining conditions under s.3(4) which would have to be satisfied before an application such as the present could be granted. The statement to McCartney is capable of being construed as an admission, but is not admissible in evidence. In HM Advocate v Sinclair, where an issue arose as to the admissibility of buccal swabs, the court held that the evidence did not, for the purposes of an application such as this, require to be put before the court in any particular manner, so long as, at a trial, it could competently be placed before a jury. That is not the case here: the evidence is not capable of being placed before a jury in an admissible form. It therefore cannot be said to strengthen the case against the respondent, and is incapable of having any effect on a jury. The remaining conditions of s.3(4)(b) and (c) thus cannot be met. Had the statements in question been admissible admissions, we would have had no difficulty in concluding that the reasonable diligence test (s.3(4) (a)) had been met, but that question does not now arise.

[65] We do not need to address whether such oblique statements as those made to the witnesses other than McCartney could be viewed as adding weight and substance to the case, nor do we need to assess what evidential or persuasive effect any of the evidence might have on a jury. Much of the evidence presents a challenge, from the point of view of satisfying a jury of its reliability and persuasive effect. On the question of the interests of justice, had that matter arisen, the court would have had to be cognisant of the fact that the vast majority of label productions of any importance have been destroyed, and could not now be subjected to any enhanced DNA analysis, by either party.

[66] In reaching its decision the court is acutely conscious that this is a very delicate matter. The case is one which caused great distress to the family of the deceased, and shock within the community. The court must look at the evidence upon which the application is based, and the evidence led at the trial.

It cannot be swayed by considerations of other, possibly strengthening, evidence, which may be in the hands of the Crown but which has not formed the basis of an application. It is a matter of concern that DNA evidence of such

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a kind is referred to in the application, when, as the advocate depute frankly conceded, a decision had been taken that this material could not support a new evidence application under s.4 and requires to be left out of account. It is not helpful for such material gratuitously to be included in an application such as this, where the law is very clear that it is only in the interests of justice to set aside an acquittal where all the conditions imposed by Parliament have been met. In this case they have not, and the application must fail.

A

B

C

D

E

F

G

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A Reclaiming Motion in Petition for Declarator GORDON ROSS

19 February 2016 Petitioner (Reclaimer)

against LORD ADVOCATE B

Respondent [2016] CSIH 12

Compatibility issue—Right to respect for private life—Assisted suicide—Whether criminalisation in accordance with law—European Convention on Human Rights, art.8

C

Assisted suicide—Whether Lord Advocate’s statements of prosecution policy sufficiently accessible and foreseeable to be compatible with law—European Convention on Human Rights, art.8 Assisted suicide—Circumstances in which criminal

D

E

F

G

Article 8(1) of the European Convention on Human Rights provides a right to respect for private life, and art.8(2) provides that no public authority shall interfere with the exercise of that right except in accordance with the law and so far as is necessary in a democratic society in the interests of, inter alia, the prevention of crime or the protection of health and morals.

The Lord Advocate has published a Prosecution Code which includes reference to the factors which will be considered in deciding whether or not a prosecution should be instituted in any case, which include the attitude of the victim and the motive for the crime, but makes no specific reference to any particular crime. The Crown Office, however, made a statement to the Justice Committee of the Scottish Parliament that: “If the Crown considers there to be sufficient evidence that a person has caused the death of another it is difficult to conceive a situation where it would not be in the public interest to raise a prosecution but each case would be considered on its own facts and circumstances.”

The petitioner sought judicial review of the respondent’s failure to publish guidance on the facts and circumstances which he would take into account in deciding whether to prosecute an individual who assists another to commit suicide, maintaining that this refusal was a breach of his art.8 right to respect for his private life. The Lord Ordinary refused the petition on the grounds that the respondent’s policy was sufficiently accessible and foreseeable, and there was no evidence that the substantive law was unclear, and the petitioner appealed to the Inner House by reclaiming motion.

Held (1) that “law” in this context encompasses not only legislation, but also secondary sources, including guidance promulgated by the respondent, such as the Prosecution Code (paras 6, 66); (2)(i) that the law on assisted suicide in Scotland was clear, that it was not a crime to assist another to commit suicide, but that if a person does something which he knows will cause the death of another person, he will be guilty of homicide if his act is the immediate and direct cause of the person’s death, and that exactly where the line of causation falls to be drawn was a matter of fact and circumstance for determination in each individual case, but that that did not produce any uncertainty in the law (para.29); and 176

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(ii) that the petitioner did not contend that the criminalisation of homicide lacked a legal basis in domestic law, or that the law in that respect was not sufficiently precise and accessible so as to enable a party to foresee the consequences of his actions and to allow him to regulate his conduct accordingly, that the crux of the challenge was that the law was being applied by the respondent in a way which was arbitrary, and there was simply no evidence to support that, that the respondent had expressed his policy in a clear manner and will prosecute cases which amount to homicide in the absence of exceptional circumstances, that there is no evidence which undermines his public statements and that it cannot be said that the respondent is exercising his discretion in a way which is arbitrary and does not meet the requirements of legality (paras 36, 62); and reclaiming motion refused.

Observed by the Lord President that the ingestion of a drug will normally break the causal chain, that when in a question of causation an adult with full capacity freely and voluntarily consumes a drug with the intention of ending his life, it is this act which is the immediate and direct cause of death and breaks the causal link between any act of supply and the death (para.30), and that in the same way, other acts which do not amount to an immediate and direct cause are not criminal, that such acts, including taking persons to places where they may commit, or seek assistance to commit, suicide, fall firmly on the other side of the line of criminality and do not, in a legal sense, cause the death, even if that death was predicted as the likely outcome of the visit, and that driving a person of sound mind to a location where he can jump off a cliff, or leap in front of a train, does not constitute a crime (para.31).

Observed by Lady Dorrian that whether a causal connection is established would be decided on the basis of all the circumstances, including the nature, significance and intent behind the voluntary act, that in cases such as Khaliq and MacAngus (both infra) the intent was not to die, but to obtain some kind of “high”, and was not the settled intent of an individual of sound mind to end his own life, and that that may be an important consideration in a question of causation (para.61).

Observed by Lord Drummond Young (1) that the level of certainty that is possible in a statement of practice is in principle less than is possible in the law as laid down in decided cases and, a fortiori, in statute, that in Scots law the Lord Advocate enjoys an element of discretion in relation to individual prosecutions, a feature that is emphasised in the Prosecution Code, that it is difficult to conceive of a system of prosecution that does not permit some element of discretion to the prosecutor, that otherwise a great deal of court time is likely to be wasted on prosecutions that are disproportionate or, in extreme cases, trivial, that any statement of prosecution practice must therefore itself incorporate or at least recognise this element of discretion, and that that was a further important factor that prevents anything like absolute certainty in a statement of prosecution practice and which must weigh heavily in any assessment of the challenge that was now made to the Lord Advocate’s policy in relation to cases of assisted suicide (para.73); and (2) that rejection of the Assisted Suicide Bill by the Scottish Parliament in 2015, and of the corresponding Westminster bill, was a clear demonstration that the people’s elected representatives are opposed to assisted suicide in the UK and that in considering the issues raised in the present case, the court must take that factor into account, and that the principle of democratic government requires no less (para.85).

R(Purdy) v Director of Public Prosecutions [2009] UKHL 45; [2010] 1 A.C. 345; [2009] 3 W.L.R. 403; [2009] 4 All E.R. 1147; [2010] 1 Cr. App. R. 1 not adopted.

A

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D

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G

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Cases referred to in the opinion of the court: Beghal v Director of Public Prosecutions [2015] UKSC 49; [2016] A.C. 88; [2015] 3 W.L.R. 344; [2016] 1 All E.R. 483 Carter v Canada (Attorney General) [2015] 1 SCR 331; 2015 S.C.C. 5 Gillan v United Kingdom [2009] ECHR 755; (2010) 50 E.H.R.R. 45 Gross v Switzerland [2014] ECHR 1008; (2014) 58 E.H.R.R. 7 Haas v Switzerland [2011] ECHR 2422; (2011) 53 E.H.R.R. 33 HM Advocate v P B, unreported Kafkaris v Cyprus [2008] ECHR 143, (2009) 49 E.H.R.R. 35; (2008) 25 B.H.R.C 591 Kane v HM Advocate [2009] HCJAC 8; 2009 S.C.C.R. 238; 2009 S.L.T. 137 Khaliq v HM Advocate, 1983 S.C.C.R. 483; 1984 J.C. 23; 1984 S.L.T. 137 Koch v Germany [2012] ECHR 1621; (2013) 56 E.H.R.R. 6 Law Hospital NHS Trust v Lord Advocate, 1996 S.C. 301; 1996 S.L.T. 848; 1996 S.C.L.R. 516 Lord Advocate’s Reference (No 1 of 2001), 2002 S.C.C.R. 435; 2002 S.L.T. 466 M M v United Kingdom [2012] ECHR 1906; App no. 24029/07; 13 November 2012) MacAngus v HM Advocate [2009] HCJAC 8; 2009 S.C.C.R. 238; 2009 S.L.T. 137 Millar v Dickson [2001] UKPC D 4; [2001 S.C.C.R. 741; 2002 S.C. (P.C.) 30; 2001 S.L.T. 988 Montgomery v HM Advocate, 2000 S.C.C.R. 1044; 2001 S.C. (P.C.) 1; 2001 S.L.T. 37 Nicklinson v United Kingdom [2015] ECHR 709; (2015) 61 E.H.R.R. S.E. 7 Pretty v United Kingdom [2002] ECHR 427; (2002) 35 E.H.R.R. 1 R (Nicklinson) v Ministry of Justice [2014] UKSC 38; [2015] A.C. 657; [2014] 3 W.L.R. 200; [2014] 3 All E.R. 843 R (Purdy) v Director of Public Prosecutions [2009] UKHL 45; [2010] 1 A.C. 345; [2009] 3 W.L.R. 403; [2009] 4 All E.R. 1147; [2010] 1 Cr. App. R. 1 R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35; [2015] A.C. 49; [2014] 3 W.L.R. 96; [2014] 4 All E.R. 159; [2014] 2 Cr. App. R. 24 Stransham-Ford v Minister of Justice [2015] ZAGPPHC 230; (2015) 4 S.A. 50 Sunday Times v UK (1979–80) 2 E.H.R.R. 245.

Gordon Ross brought a petition in the Court of Session in the terms referred to in the opinion of the court. It was refused by the Lord Ordinary (Doherty) and the petitioner appealed to the Inner House on the grounds referred to in the opinion of the court.

F

The appeal was heard by the Lord Justice Clerk (Carloway) (as he then was), Lady Dorrian and Lord Drummond Young.

For the reclaimer: O’Neill QC, McIntosh, instructed by Campbell & McCartney Solicitors, Paisley.

For the respondent: The Dean of Faculty (Wolffe QC), Ross, instructed by Scottish Government Legal Directorate.

On 19 February the following opinions were delivered.

G

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LORD PRESIDENT (Carloway) [1] This is a reclaiming motion (appeal) from a decision of the Lord Ordinary on a petition for judicial review of the respondent’s failure or refusal to publish specific guidance on the facts and circumstances which he would take into

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account in deciding whether to prosecute an individual who assists another to commit suicide. The petitioner maintains that this failure or refusal is a breach of his right to respect for his private life under art.8 of the European Convention on Human Rights [ECHR].

[2] Article 8 provides: “Right to respect for private and family life (1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.”

The art.8 right is a qualified one. The state may legitimately interfere with the general art.8(1) right, if the interference is in accordance with the law and in furtherance of one of the specified aims. The petitioner avers that the respondent’s interference with his art.8(1) right is not “in accordance with the law” under art.8(2). The Lord Ordinary disagreed. The reclaiming motion addresses the issues of whether he was correct in doing so.

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Background

[3] The petitioner is aged 65. He suffers from diabetes, heart problems, Parkinson’s disease, and peripheral neuropathy. He suffers episodes of shaking and muscle spasms many times each day. He cannot live independently. He resides in a care home. He requires assistance from others with all aspects of daily living. He is, however, mentally unimpaired. He anticipates that there will come a time when he will not wish to continue living, as he will find his infirmity and consequent dependence on others intolerable. He would require assistance to commit suicide because of his physical state. He is apprehensive that anyone who assisted him would be liable to prosecution. He considers that he may require to take action to end his life himself, sooner than he would otherwise wish to, in order to avoid living on in an undignified and distressing condition. This dilemma causes him uncertainty and anguish.

[4] There are some preliminary points of importance about the scope of the petition which the petitioner was keen to stress. First, it does not address the issue of “mercy killing” or euthanasia. It is restricted to acts of suicide which require some form of assistance from a third party. Secondly, it does not overtly seek a review of the substantive criminal law, being the common law of murder and culpable homicide. Thirdly, it does not seek to challenge the settled will of Parliament. On two recent occasions, the Scottish Parliament has considered whether to legalise assisted suicide. On both occasions the draft bill was defeated by a significant majority.

[5] It was accepted by both parties that art.8(1) was engaged by the petitioner’s circumstances. The petitioner had a right to determine certain aspects of his private life, including the determination of the final moment of his life. That was not to say that the petitioner had a “right to suicide”. The petitioner’s right under art.8(1) could be interfered with under art.8(2), if the requirements of legality and legitimate aim were met. At the hearing before the Lord Ordinary, the petitioner had sought to raise, for the first time, an issue of whether the criminalisation of a person who assisted another to commit suicide was necessary in a democratic society. Prior to that, the focus in the petition, the notes of argument, and the oral submissions had been

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legality; ie, whether the interference with the art.8(1) right had been in accordance with the law. The petitioner did not revisit the point in the course of the appeal. In any event, it is well established that the interference did have a legitimate aim; viz, the protection of the vulnerable from undue influence, or other acts which could circumvent their will. It is a common thread running through the European Court jurisprudence (Pretty v United Kingdom; Haas v Switzerland; Koch v Germany; Gross v Switzerland; Nicklinson v United Kingdom) and that of the courts in the UK (R (Purdy) v Director of Public Prosecutions [and] R (Nicklinson) v Ministry of Justice) that, not only is there a legitimate aim to the criminalisation, but also that it is a matter not for the courts but for the legislature to determine. In that regard, the legislature was afforded a wide margin of appreciation.

[6] The issue raised is simply whether the interference with the right to determine the manner of a person’s death, by criminalisation of persons assisting in his suicide, is in accordance with the law. The “law” in this context encompasses not only legislation, but also secondary sources, including guidance promulgated by the respondent, such as the Prosecution Code (infra).

The Prosecution Code

[7] The respondent has published guidance (the Prosecution Code), which is not offence specific, on the factors which favour, or militate against, prosecution. There is a two-stage test. The first is the evidential stage. This concerns itself with the legal sufficiency of the evidence. The second is the public interest stage. This addresses whether, even if there is a sufficiency, it is in the public interest to prosecute. This involves the exercise of a discretion.

The code lists 13 factors to take into account. These include the nature and gravity of the offence, the age and circumstances of the victim, the attitude of the victim, and the motive for the crime.

[8] In addition to the code, the respondent has made public statements, specifically related to the prosecution of those who assist another to commit suicide. In particular, in his written response to the Justice Committee regarding the Assisted Suicide (Scotland) Bill, the Lord Advocate made it clear that, when there was a sufficiency of evidence that an individual had caused the death of another, it would be difficult to conceive of a situation in which it would not be in the public interest to prosecute, but each case would be considered on its own facts and circumstances (Written Submission to the Justice Committee).

Section 2 of the Suicide Act 1961

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[9] The petitioner relied heavily on R (Purdy) v DPP. In England and Wales, a person who assists the suicide of another commits a specific statutory offence set out in s.2 of the Suicide Act 1961. This provides that a person commits an offence if he does any act which encourages or assists the suicide of another person where that act was intended to have that effect. The offence is a broad one. It encompasses many acts which would not be considered to be a cause of death under the Scots law of homicide. The context of s.2 of the 1961 Act is important. It follows s.1, which decriminalised suicide, and hence attempts at suicide, in that jurisdiction.

[10] The claimant in Purdy had sought review of the refusal of the Director of Public Prosecutions to publish clear guidance on the facts and circumstances that would be taken into account in determining whether or not to prosecute an individual under s.2 of the 1961 Act, specifically by taking a person to a country where assisted suicide was lawful. It was held that: (i) the claimant’s art.8(1) right was engaged, and (ii) the failure of the DPP to publish guidance

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was not an interference which was in accordance with the law in terms of art.8(2). The code for Crown prosecutors was not sufficiently accessible and precise as to allow the assisting person to foresee whether or not he would be prosecuted.

A

DPP guidance

[11] The DPP published offence-specific guidance (‘Policy for prosecutors in respect of cases of encouraging or assisting suicide’, February 2010) listing 16 factors in favour, and six factors against, prosecution. Whilst the guidance discusses the offence under s.2 of the 1961 Act, it does not mention any overlap with homicide in English law, beyond stating that, where the conduct goes beyond assistance and involves the taking of life (or an attempt to do so), the public interest factors may have to be re-evaluated differently in light of the overall criminal conduct (Policy, para.48). Both the DPP guidance, and the ratio of the decision of Purdy, are silent on the extent to which the law of homicide in England should be subject to the same analysis as a s.2 offence.

Lord Ordinary’s decision

[12] The Lord Ordinary considered that it was clear that art.8(1) was engaged and that the right to respect for private life did encompass respect for an individual’s right to die, particularly to avoid an undignified and distressing death. The Lord Ordinary did not consider that it was necessary to determine whether there was a right to commit suicide, or to be assisted to commit suicide, under the Convention. The only question was whether the interference was in accordance with the law. The Lord Ordinary rejected a submission that necessity was in issue. The point had not been raised in the petition or in the written notes of argument.

[13] The Lord Ordinary considered that the interference with the petitioner’s art.8(1) right was in accordance with the law under art.8(2). He noted two well-established principles. First, although the court could review a policy, it was not for the court to dictate the content of that policy (Nicklinson v Ministry of Justice, para.41). A range of policies could satisfy the requirement of clarity.

Secondly, the certainty and foreseeability required of a prosecution policy was of a lesser and more indicative nature than that required of a statute which created a criminal offence (Nicklinson v Ministry of Justice, paras 239–241). The Lord Ordinary accepted the approach to legality in R (Purdy) v DPP, but considered that the circumstances before him were different in three respects.

First, s.2 of the 1961 Act had a broad ambit. It would criminalise conduct that could not be prosecuted under the law of homicide in Scotland. Secondly, although there was evidence in Purdy that there was a marked difference between law and practice, there was no equivalent material before him. Thirdly, although the DPP had distanced himself from the guidance in the code for Crown prosecutors, and had conceded that this general guidance may be of little relevance, in the present case the respondent had not sought to distance himself from the Prosecution Code. He had pointed to the seriousness of the crime as an aspect of the guidance which would carry particular weight.

[14] The Lord Ordinary found that the respondent’s prosecution policy was sufficiently accessible and foreseeable. There was no evidence that it was being exercised in an arbitrary manner. There was no suggestion that the substantive law was unclear. The absence of any divergence between law and practice demonstrated that any decision to prosecute would not turn on unpublished factors. There was no basis to conclude that the policy was inaccessible or unclear. The respondent had made his position clear. Any

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attempt to assist suicide, which amounted to an offence under the law of homicide, would be very likely to be prosecuted, although every case required to be considered on its own facts and circumstances. Finally, there was no suggestion that the behaviour on the part of the respondent was arbitrary. He had expressed his policy and intended to follow it.

Submissions Petitioner

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[15] The petitioner submitted that the point in the appeal could be put very shortly. R (Purdy) v DPP had been correctly decided. As the constitutional position of the respondent paralleled that of the DPP, no relevant distinction could be drawn between the two jurisdictions. On that basis, the court should ordain the respondent to produce offence-specific guidance. The need for the DPP to do so in England had not been because of the nature of the offence in s.2 of the 1961 Act, but because assisting a suicide was criminal, as it was equally criminal in Scotland. The issue in Purdy had been that the DPP had a broad discretion on whether to prosecute. The court required him to give guidance on how he would exercise that discretion. The distinction between what would constitute assisted suicide and an intentional killing with the consent of the victim was not clear in Scots law. MacAngus v HM Advocate was not entirely in point. In MacAngus the victim had no intention of committing suicide. What would or would not constitute a break in the causal chain was unclear.

[16] The petitioner had written to the respondent to request specific guidance on whether anyone who assisted him to commit suicide would be prosecuted. The respondent had stated that any incident involving a person who assisted another to take his own life would be reported to the procurator fiscal as a deliberate killing of another. It would be dealt with under the law of homicide. The respondent did not differentiate between assisted suicide, where a person was of sound mind but unsound body, and other cases. The respondent’s current policy meant that anyone who assisted the petitioner to commit suicide would be liable to prosecution for murder or culpable homicide. The respondent therefore unlawfully interfered with the effective exercise of the petitioner’s fundamental right.

[17] In both Canada and South Africa, the courts had declared that there was a right to assisted suicide which should be protected by law (Carter v Canada (Attorney General); Stransham-Ford v Minister of Justice). Article 8(1) encompassed the right to respect for the way in which, and when, an individual wished to end his life, provided that he was in a position freely to form his own view (Pretty v United Kingdom; R (Purdy) v DPP; Haas v Switzerland; Koch v Germany; Gross v Switzerland. The threat of criminal prosecution constituted an interference with the right.

[18] The art.8(1) right was not absolute. To be justified, however, any interference had to be in accordance with the law (“legality”). In R (Purdy) v DPP, para.40, it was said that three questions required to be addressed. First, was there a legal basis in domestic law for the restriction. Secondly, was the law sufficiently accessible and precise. Thirdly, was the law being applied in an arbitrary way. A law conferring a discretion was not in itself inconsistent with the legality requirement, provided that the scope of the discretion, and the manner of its exercise, were identified. A discretion should not be expressed in terms of an unfettered power. The law must indicate its scope (Gillan v United Kingdom). The Prosecution Code was not sufficiently specific and clear so as to avoid the risk that the power would be arbitrarily exercised.

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[19] Legality required safeguards to ensure that the proportionality of the interference could be examined. An over-rigid regime could breach the requirement (M M v United Kingdom). The absence of guidance meant that proportionality could not be assessed. States did not have a margin of appreciation on legality (R (T) v Chief Constable of Greater Manchester Police, para.115). The guidance in R (Purdy) v DPP was based on legality and not on the particular terms of the statutory offence in s.2 of the 1961 Act. [20] The Prosecution Code was indistinguishable from the pre-Purdy position of the DPP. The respondent’s policy made no distinction between a situation where an act was motivated by the wish to assist someone who was terminally ill and any other homicide. The respondent had to apply different criteria in the specific case of assisted suicide. In failing to do so, his policy was disproportionate. The respondent’s failure to explain why the policy was in its current form was a breach of the principle of legality, which obliged him to justify why his position was constitutionally different from that of the DPP. [21] There had been no reported cases of persons who had assisted the suicide of another being prosecuted in Scotland. Where lethal drugs were supplied to a person, the supplier was liable to prosecution for murder or culpable homicide. The prosecution in MacAngus v HM Advocate had not been proceeded with. The respondent had not prosecuted H C, who had taken her paralysed son to Dignitas in Switzerland, where he had received a lethal dose of drugs. There was a strong parallel between H C’s situation, and the case in England of D J, in which parents had taken their paralysed son to Switzerland. The DPP had concluded that, whilst there was a sufficiency of evidence, it would not be in the public interest to prosecute. The DPP had issued detailed reasons for that decision. The act of H C was a crime in Scotland, as the court had extra territorial jurisdiction in cases of homicide (s.11(1) of the Criminal Procedure (Scotland) Act 1995). If it was not a crime in Scotland for a person to travel with another to a country where suicide was lawful, then the respondent ought to state that. The respondent ought to specify the factors that he took into account in deciding not to prosecute H C. His failure to do so had the appearance of an arbitrary exercise of discretion.

[22] The petitioner did not want a change in the law. The respondent had previously promulgated offence-specific statements of policy, even in cases of homicide (Law Hospital NHS Trust v Lord Advocate; statement of policy recorded in 1996 S.C.L.R. 516). It was within the discretion of the respondent to set out a policy to ensure that the law of homicide would be enforced in a manner which respected Convention rights. It was his duty to do so. It was irrelevant to the respondent’s duty to act in a Convention-compatible manner that the Scottish Parliament had considered and rejected the Assisted Suicide (Scotland) Bill. The court was not being asked to hold that the substantive law was incompatible with the Convention, but rather to assess whether the respondent was carrying out his duty to act in a Convention-compatible manner.

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Respondent

[23] The respondent submitted that the essential question was whether or not the reasoning of R (Purdy) v DPP required an order of the sort which the petitioner sought. It did not. Section 2(1) of the Suicide Act 1961 was of wide ambit. It caught acts that could not be prosecuted under the law of homicide.

The law of homicide in Scotland had a much narrower ambit. The CPS Code for Cases of Assisted Suicide, now applicable in England and Wales, did not apply to cases of murder or manslaughter. Both the UK Supreme Court and the European Court had recognised that s.2 of the 1961 Act was within the

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margin of appreciation of Member States. The criminalisation of homicide, with no distinction for cases where the motive was to assist the suicide of the victim, was a fortiori within that margin.

[24] The petitioner had confused the question of uncertainty, as to what the law provides, with the discretion left to the respondent to make difficult decisions in particular cases. The petitioner did not seek to challenge the substantive law of homicide. There was no suggestion that it was a breach of art.8 to have a law of that nature (Nicklinson v Ministry of Justice, Lord Neuberger at paras. 63–66). There was no challenge to the adequacy of the Prosecution Code as a generality. The issue was whether the requirement of legality required the respondent to issue offence-specific guidance for that class of homicides which might be regarded as assisted suicides. The fact that Parliament had decided not to change the law was the context in which the respondent had addressed his responsibilities. In any particular case the respondent had to consider whether there was a sufficiency of evidence and whether the public interest merited prosecution. In an area of controversial social and moral policy, it was not for him to confine the exercise of his discretion to a category of individuals and thus effectively give them immunity from prosecution.

[25] All of the public interest factors, which the petitioner suggested should be taken into account, were capable of being considered under the Prosecution Code. The respondent had not sought to distance himself from his code, as the DPP had done prior to Purdy. The respondent had emphasised that, where there was a sufficiency of evidence, the nature and gravity of the offence would be important factors in determining whether there ought to be a prosecution.

Where a party freely travelled to another country with an individual who took a lethal drug to end their own life, there was no crime. If there was any form of duress, which was applied to the individual who required assistance, there may be a crime. Particular cases could produce individual circumstances. The Prosecution Code listed the relevant factors that the respondent would consider in applying the public interest test. These included the attitude of the victim and the motive for the crime. The CPS Code did not consider these factors to be relevant.

[26] The only issue was legality. The legality analysis required to be carried out before any proportionality or necessity considerations (R (T) v Chief Constable; Beghal v Director of Public Prosecutions). The petitioner’s submissions could not succeed if it was accepted that the substantive law was not in breach of art.8(1). The correct starting-point was that the law, which did not qualify the law of homicide to take account of cases where the motive was to assist the suicide, was not in breach of art.8. If the substantive law did not breach a Convention right, the respondent could prosecute to its full rigours. The respondent had a discretion to exercise, but it was one to be exercised within the boundaries of the law.

[27] Individuals could, if so advised, take legal advice to see what acts and omissions could constitute a crime. The outer ambit of the respondent’s discretion was reasonably certain. It allowed him to mitigate the rigours of the law in appropriate circumstances. He had set out in the Prosecution Code the factors which he would take into account in exercising his discretion. There was no suggestion that the code did not satisfy the principle of legality for other criminal law offences. The respondent had endorsed the code. He had said that, if there was a sufficiency of evidence, there would be a prosecution, but for extraordinary circumstances. That was sufficient to satisfy the principle of legality.

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[28] R (Purdy) v DPP ought to be distinguished on the basis that its reasoning, which applied to s.2 offences, did not apply to homicide in Scotland.

The Prosecution Code offered adequate guidance on the factors that would bear on whether or not there would be a prosecution. The respondent did not distance himself from the terms of his code. In Purdy, there had been an obvious gulf between the terms of s.2 and the way that it had been applied in practice. That was not the case in Scotland. There were 115 cases of assisted suicide in England which had not been prosecuted. In Scotland, there was a very small pool of cases to consider. In B, the accused had been prosecuted for murder, although a plea of culpable homicide was ultimately accepted. In H C, no proceedings had been taken because there was insufficient evidence of a crime. In MacAngus v HM Advocate a decision had been made, after that of the court, that a prosecution was unlikely to be successful. In the only other case there had been insufficient evidence in law. The respondent’s position was that he would consider the public interest in the prosecution of any case of assisted suicide amounting to homicide in accordance with the factors which he had identified in his Prosecution Code. The compelling factor would be likely to be the seriousness of the offence. Given the seriousness of homicide, it was very likely that a prosecution would follow.

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Decision

[29] The criminal law in relation to assisted suicide in Scotland is clear. It is not a crime “to assist” another to commit suicide. However, if a person does something which he knows will cause the death of another person, he will be guilty of homicide if his act is the immediate and direct cause of the person’s death (MacAngus v HM Advocate, LJG (Hamilton) at para.42). Depending upon the nature of the act, the crime may be murder or culpable homicide.

Exactly where the line of causation falls to be drawn is a matter of fact and circumstance for determination in each individual case. That does not, however, produce any uncertainly in the law.

[30] In relation specifically to a death caused by the ingestion of a lethal substance (which is what appears to be contemplated in the petitioner’s case), the administration of such a substance (eg, the injection of a first-time user with heroin) may amount to homicide (Kane v HM Advocate, Mr Kane pled guilty to culpable homicide, see p.264). Supplying a lethal substance for immediate use may conceivably fall into this category (MacAngus v HM Advocate), at least where there is certainty about its purpose and use (the prosecution of Mr MacAngus for the supply of ketamine to a user was discontinued). Nevertheless, the voluntary ingestion of a drug will normally break the causal chain. When an adult with full capacity freely and voluntarily consumes a drug with the intention of ending his life, it is this act which is the immediate and direct cause of death. It breaks the causal link between any act of supply and the death.

[31] In the same way, other acts which do not amount to an immediate and direct cause are not criminal. Such acts, including taking persons to places where they may commit, or seek assistance to commit, suicide, fall firmly on the other side of the line of criminality. They do not, in a legal sense, cause the death, even if that death was predicted as the likely outcome of the visit.

Driving a person of sound mind to a location where he can jump off a cliff, or leap in front of a train, does not constitute a crime. The act does not in any real sense amount to an immediate and direct cause of the death (MacAngus, LJG (Hamilton) at para.42).

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[32] There is no difficulty in understanding these concepts in legal terms, even if, as is often the case in many areas of the law, there may be grey areas worthy of debate in unusual circumstances.There is no need for the respondent to set these concepts out in offence specific guidelines. They are clearly defined matters of law upon which, if necessary, an individual can seek legal advice.

[33] As the Lord Ordinary correctly identified, R (Purdy) v DPP arose in circumstances which are materially different from the petitioner’s case in three respects. First, the underlying substantive criminal law in Scotland is different from that in England and Wales. There is no equivalent of s.2 of the Suicide Act 1961 in Scotland. That is because suicide, and hence attempted suicide, is not a crime in Scotland, albeit that the circumstances of an attempt may involve the commission of an act otherwise criminal (eg, a breach of public order). The conduct anticipated in R (Purdy) would not be criminal if prosecuted in Scotland. Section 2 created a broad offence, which criminalised behaviour which would not otherwise be so. It was, and is, not applicable in Scotland.

[34] Secondly, in R (Purdy) v DPP the DPP was consistently choosing not to prosecute those who had, on the face of it, committed an offence under s.2.

There was an obvious gulf between law and practice. There is no such gulf apparent in the practice of the respondent. No instance was cited in which the respondent had considered that there was a sufficiency of evidence but had decided not to prosecute in the public interest. Only two instances of assisted suicide were identified by the respondent as having been reported to him. In both of those cases there was insufficient evidence of any crime having been committed. That is not at all surprising upon the above legal analysis.

[35] Thirdly, the respondent’s Prosecution Code contains general guidance to allow the issues, which the petitioner submits are relevant, to be taken into account. The attitude of the victim, the motive for the offence and whether there are any mitigating factors are all present in the code. However, the respondent has gone further in stating that, although all of those factors may be relevant considerations, where there is a sufficiency of evidence (that a homicide has been committed), there will be a prosecution in the absence of exceptional circumstances. There is no attempt by the Lord Advocate to distance himself from his code.

[36] The petitioner did not contend that the criminalisation of homicide lacked a legal basis in domestic law, or that the law in that respect was not sufficiently precise and accessible so as to enable a party to foresee the consequences of his actions and to allow him to regulate his conduct accordingly. The crux of the challenge was that the law was being applied by the respondent in a way which was arbitrary. There is simply no evidence to support that. The respondent has expressed his policy in a clear manner. He will prosecute cases which amount to homicide in the absence of exceptional circumstances. There is no evidence which undermines his public statements.

It cannot be said that the respondent is exercising his discretion in a way which is arbitrary and does not meet the requirements of legality.

[37] The only challenge was legality. The interference with the petitioner’s rights is in accordance with the law in terms of art.8(2), applying the test in R (Purdy) v DPP itself (Lord Hope at para.40). In these circumstances, the reclaiming motion must be refused.

LADY DORRIAN [38] I am obliged to your Lordship in the chair for setting out the background circumstances of this case, and a summary of the submissions. I agree with the

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conclusions reached by your Lordship, but given the novelty of the case, would add a few observations of my own.

[39] As parties have agreed, suicide is not a crime in the law of Scotland.

Moreover, it seems that suicide has never been a crime in Scots law.

[40] The position in England is markedly different. In English law, suicide was a crime, until it was decriminalised by the Suicide Act 1961. However, although it was no longer a crime to commit, or attempt to commit, suicide, it remained an offence to “aid, abet, counsel or procure” the suicide of another, in terms of s.2 of the 1961 Act. The Act was amended in 2010 so that the offence under s.2 is now committed where: “(a) D does something capable of encouraging or assisting the suicide of another or attempted suicide of another; and (b) D’s act was intended to encourage or assist suicide or an attempt at suicide.”

[41] The offence may be committed whether or not a suicide occurs, and the offence carries a maximum term of imprisonment of 14 years. No proceedings may be instituted except by or with the consent of the DPP. [42] Regarding acts capable of encouraging or assisting suicide, Section 2A provides as follows: “(1) If D arranges for a person (‘D2’) to do an act that is capable of encouraging or assisting the suicide or attempted suicide of another person and D2 does that act, D is also to be treated for the purposes of this Act as having done it.

(2) Where the facts are such that an act is not capable of encouraging or assisting suicide or attempted suicide, for the purposes of this Act it is to be treated as so capable if the act would have been so capable had the facts been as D believed them to be at the time of the act or had subsequent events happened in the manner D believed they would happen (or both).

(3) A reference in this Act to a person (‘P’) doing an act that is capable of encouraging the suicide or attempted suicide of another person includes a reference to P doing so by threatening another person or otherwise putting pressure on another person to commit or attempt suicide.”

[43] The result is the highly unusual one that in England it is an offence to encourage or assist in the commission of an act which in itself is not an offence.

This is to be contrasted with the position in Scotland. Here, no question can arise of an individual being convicted of assisting or encouraging another to do an act which is not itself criminal. There is in Scotland no offence of “assisted suicide” despite the use of that term in argument.

[44] In Scotland, acts which might assist another person to commit suicide would only become criminal if in themselves they constituted a criminal act on the part of the individual providing the assistance. It is important to bear in mind that this case is not concerned with questions of “euthanasia” or “mercy killing”, even at the behest of the victim. Strictly speaking, neither the compassionate nature of the motive, nor the desire of the victim to die are relevant considerations. A person who deliberately took the life of another may even be guilty of murder, and would at least be guilty of culpable homicide.

Much would depend on the exact circumstances of the case.

[45] We are not concerned with that kind of case. We are concerned here not with someone who himself takes an active part in ending a life, rather we are concerned with those who may take steps to facilitate a person to take his

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own life. It is beyond doubt that in certain circumstances such acts may constitute the crime of culpable homicide. However, the requirement of a direct causal link between those acts and the death mean that many acts which would apparently be criminal according to the law of England, would not be so in Scotland. The offence under s.2(1) is a much broader offence than culpable homicide, and may be committed even in circumstances where no suicide results.

[46] The reclaimer relied heavily on the case of R (Purdy) v DPP, arguing that the position in Scotland currently reflected the pre-Purdy position in England. The general prosecutorial code relied upon in that case had been deemed to be insufficient for the purpose of identifying the law with sufficient clarity, leading to the issuing of an offence-specific code relating to assisted suicide. The same result should follow here, notwithstanding that there was no such offence as assisted suicide.

[47] The Lord Ordinary rejected this argument, concluding that the circumstances which led to the decision in Purdy were in fact quite different from those currently existing in Scotland, and that the same result should not follow. He cited three main reasons for distinguishing the case of Purdy. I agree in general with those reasons.

[48] In the first place, the Lord Ordinary noted (para.37) that: “[Section] 2(1) of the Suicide Act 1961 has a wide ambit. There are likely to be many situations where encouragement or assistance of suicide in England and Wales would contravene s.2(1) but would not be homicide if they occurred in Scotland (because one or more of the requisites of the crime of murder or culpable homicide was/were lacking).”

[49] The very width of the scope of the offence under the 1961 Act was an important factor in the decision of the court that the existing guidance was not sufficient to enable those affected by it “to understand its scope and foresee its consequences” (Lord Neuberger, para.96). Moreover, it is clear that, notwithstanding the generality of some of the observations, the court was particularly concerned with the position of the relative who assisted someone to travel abroad, for example to Switzerland, where they could lawfully take their own life. That such an act might be the subject of prosecution was clearly an issue of concern for Lord Phillips. It was also of concern to Lord Hope, who, in relation to the scope of s.2(1) observed (para.18): “Its language suggests that it applies to any acts of the kind it describes that are performed within this jurisdiction, irrespective of where the final act of suicide is to be committed. So acts which help another person to make a journey to another country, in the knowledge that its purpose is to enable the person to end her own life there, are within its reach.”

Lord Hope noted that no prosecution has ever been brought under s.2(1) in circumstances such as those which Mrs Purdy contemplated, but he could not agree with the proposition that no such prosecution could be brought within the terms of the statute (para.23). He considered (para.25) that there was: “[A]substantial risk that the acts which Ms Purdy wishes her husband to perform to help her to travel to Switzerland will give rise to a prosecution in this country.”

The state of the law was quite clear (para.27): “It is an offence to assist someone to travel to Switzerland or anywhere else where assisted suicide is lawful. Anyone who does that is liable to be

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prosecuted. He is in the same position as anyone else who offends against section 2(1) of the 1961 Act.” Lord Hope noted that in relation to such another person the prosecutorial code would apply, and the individual may be prosecuted if there were a sufficiency of evidence against him and it was in the public interest that he be prosecuted. However he went on to add [para.27]: “But the practice that will be followed in cases where compassionate assistance of the kind that Ms Purdy seeks from her husband is far less certain. The judges have a role to play where clarity and consistency is lacking in an area of such sensitivity.”

[50] We can see from elsewhere in his opinion (eg, paras. 30, 31, 41) that he was particularly exercised by cases of these kind but which as a generality would not be criminal in our law. Lord Phillips was concerned (para.12) that an individual in such a situation might be open to prosecution for the crime of murder. Yet, as the Dean of Faculty agreed during the hearing in this court, the clear situation of taking someone of sound mind and clear views to Switzerland to carry out a free and voluntary act would not even constitute the crime of culpable homicide in Scotland.

[51] The third reason given by the Lord Ordinary was that the DPP had distanced himself from the relevance of some of the factors in the general code, whereas the Lord Advocate had not done so, and indeed (para.39): “On the contrary, he has identified the factor in the Code which is likely to prevail in cases where there is a sufficiency of evidence—that the serious nature of the offence makes it likely that the public interest will require a prosecution.”

[52] I agree too with this observation, but I would add to it a factor associated with the first reason, namely that it was essentially because of concerns over the “compassionate relative” kind of case that the DPP was advised to reconsider his guidance, since it was precisely in relation to these “exceptional” cases that the current arrangements were lacking. The wide scope of the Act and the difficulty in these cases of ascertaining the degree of risk attaching to a helper, was a critical factor in the decision that greater guidance should be given. Lord Neuberger, in agreeing that guidance should be given, emphasised (para.102): “The very unusual features of this crime are that it involves the offender assisting an action by a third party which is not itself a crime, the third party who is being assisted is also the victim, the victim will almost always be willing, indeed will very often be the positive instigator of the crime, and the offender will often be a relatively reluctant participator, and will often be motivated solely by love and/or sympathy. In addition, the potential offender is not the person, or at least is not the only person, whose Convention rights are engaged: it is the victim whose art.8 rights are engaged, and he or she will almost always be unusually vulnerable and sensitive.”

[53] Elsewhere the position of such a relative is again emphasised. For example, in para.4[6], Lord Hope noted the importance of consistency in the exercise of the DPP’s discretion, and that steps towards achieving that had been taken, namely that Crown prosecutors acted under the direction of the DPP, and in accordance with a published prosecutorial code. However, he went on to say (para.47):

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“The question is whether it satisfies the requirements of accessibility and foreseeability where the question is whether, in an exceptional case such as that which Ms Purdy’s circumstances are likely to give rise to, it is in the public interest that proceedings under s.2(1) should be instituted against those who have rendered assistance.”

That the need to ensure guidance was available to individuals in such exceptional circumstances was at the heart of the decision in Purdy can be seen also from the following passages from the opinion of Lord Hope: “53 But it seems to me that, for anyone seeking to identify the factors that are likely to be taken into account in the case of a person with a severe and incurable disability who is likely to need assistance in travelling to a country where assisted suicide is lawful, these developments fall short of what is needed to satisfy the Convention tests of accessibility and foreseeability. . . .

Conclusion 54 The Code will normally provide sufficient guidance to Crown Prosecutors and to the public as to how decisions should or are likely to be taken whether or not, in a given case, it will be in the public interest to prosecute. This is a valuable safeguard for the vulnerable, as it enables the prosecutor to take into account the whole background of the case. In most cases its application will ensure predictability and consistency of decisiontaking, and people will know where they stand. But that cannot be said of cases where the offence in contemplation is aiding or abetting the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences. There is already an obvious gulf between what s.2(1) says and the way that the subsection is being applied in practice in compassionate cases of that kind.

55 The cases that have been referred to the Director are few, but they will undoubtedly grow in number. Decisions in this area of the law are, of course, highly sensitive to the facts of each case. They are also likely to be controversial. But I would not regard these as reasons for excusing the Director from the obligation to clarify what his position is as to the factors that he regards as relevant for and against prosecution in this very special and carefully defined class of case. . . .as the definition which I have given may show, it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.”

[54] It is true that Lord Brown addressed a slightly wider class of case than those referred to by Lords Hope and Phillips, but even so, I do not understand him to consider that the code would not be sufficient in the kind of case which in Scotland would be considered homicide, as opposed to the exceptional kind of case, criminal in England, but not so in Scotland. See for example, para.76: “Obviously no advance undertaking can be sought from the DPP that he will refuse consent to a prosecution in a particular case. . . . Surely, however, there can be no similar objection to the Director indicating in advance what will be his general approach towards the exercise of his discretion regarding the prosecution of this most sensitive and distressing class of case.”

Observations to similar effect are also contained within paras. 83 and 86.

[55] The Lord Ordinary’s other reason (para.38) for distinguishing the circumstances of Purdy was that:

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“[I]n Purdy it was clear to the Appellate Committee that the prosecution authorities were in practice applying a policy which resulted in the nonprosecution of most cases of contravention of s.2(1): but that that policy, and the factors which would in fact be taken into account in deciding whether to prosecute, were not publicly available. There was a marked inconsistency between the law and its application in practice. None of the material placed before me suggests that there is any similar divergence between the law and its application in practice in Scotland. Nor is there any indication that an unknown or unpublished policy is being applied.”

A

[56] This divergence was indicative of there being unpublished policy factors taken into account. I agree too with this observation. It clearly became apparent in the course of argument in Purdy that, in compassionate cases of this kind, there was a clear gulf between the terms of s.2(1) under which such acts would be capable of constituting an offence, and the exercise of the prosecutorial discretion under s.2(4) and the prosecutorial code. The court was advised that over 100 people had travelled from England and Wales to Switzerland, for the purpose of ending their lives, yet none of those who had assisted them to do so had been prosecuted. Lord Hope noted (para.54) the obvious gulf which therefore existed between the statutory provision and prosecutorial practice in relation to such cases.

[57] The Lord Ordinary observed that in argument before him there had been no suggestion that the law was inaccessible. During the hearing of the reclaiming motion there was some attempt to do so, on the basis that the distinction between what would constitute a criminal act was not entirely clear.

[58] It is not part of this court’s function in this reclaiming motion to seek to identify those acts assisting suicide which might constitute a crime in the law of Scotland and those which might not, whether murder, culpable homicide, or even culpable or reckless conduct. It is clear that the question of causation is a central one, and whilst the voluntary act of the victim may not suffice to break the chain of causation in the particular circumstances of the case, the critical question is whether a direct causal link can be established. In MacAngus v HM Advocate the court summarised the position as follows: “[42] These Scottish authorities tend to suggest that the actions (including in some cases deliberate actions) of victims, among them victims of full age and without mental disability, do not necessarily break the chain of causation between the actings of the accused and the victim’s death.

What appears to be required is a judgment (essentially one of fact) as to whether, in the whole circumstances, including the inter-personal relations of the victim and the accused and the latter’s conduct, that conduct can be said to be an immediate and direct cause of the death.”

B

[59] MacAngus, it must be recalled, was a case argued on relevancy, where ultimately the decision of the court was merely that “[d]epending on the facts and circumstances proved (which will include factors bearing on influence and knowledge) a causal link may be established” (para.51). In other words, it could not be said that this was a case in which the jury might not be able to find a direct causal link established, notwithstanding the voluntary ingestion of the drug.

[60] There was little discussion before us on the subject of culpable and reckless conduct, which might be relevant if the suicide failed. However, even in such cases the voluntary act of the ingester remains relevant. In Khaliq v HM Advocate, another case on relevancy, the court, rejected an argument that

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the voluntary act did not break the causal chain on the basis that: “The causal link is not, of necessity, broken by that circumstance”, (emphasis added) the Lord Justice General (Emslie) pointing out (p.34) that: “The true question is whether the charge relevantly libels a causal connection between the alleged supply and the abuse and its consequences that is to say, whether it would be permissible for the judges of fact to conclude that the supply provided not merely the occasion for the abuse of the solvents by the recipients, but was a cause of that abuse.”

B

[61] The requirement to establish a causal connection between the act in question and the death, or injury, is in either case clear. Whether that causality is established would be decided on the basis of all the circumstances, including, in my view, the nature, significance and intent behind the voluntary act. In cases such as Khaliq and MacAngus, the intent behind the voluntary act was not to die, rather it was to obtain some kind of “high” or perceived relief from the item ingested. It was not the settled intent of an individual of sound mind to end his own life. This may be an important consideration in a question of causation, as is perhaps reflected in MacAngus in the discussion of whether an alleged victim could be classed as a “fully informed” adult (para.44).

[62] I agree with the Lord Ordinary that the way in which the law operates in this field is not inaccessible, capricious or lacking in clarity, and that it meets the test for foreseeability, namely, that the ordinary citizen would: . . . be able—if need be with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given course of action may entail” (Sunday Times v United Kingdom, para.49).

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LORD DRUMMOND YOUNG [63] The petitioner seeks a declarator that the Lord Advocate is in breach of art.8 of the EC H R in failing to promulgate a policy identifying the facts and circumstances which he will take into account in deciding whether or not to authorise the prosecution in Scotland of a person who helps another person to commit suicide, together with an order requiring the Lord Advocate to promulgate such a policy. The Lord Ordinary sustained a plea to the relevancy of the petitioner’s averments and dismissed the petition. The petitioner has now reclaimed. I agree with your Lordship and your Ladyship that the reclaiming motion should be refused.

[64] In Scots criminal law, suicide is not a crime. Nor is assisted suicide a crime per se, but assisting in a suicide might, according to circumstances, involve liability for either murder or culpable homicide. It is possible that the offence of culpable and reckless conduct might also be relevant, but in the event that suicide actually occurs, I think it more likely that one of the two more serious offences would be in point. Liability for either murder or culpable homicide might be on an art and part, or accessory, basis, although that is not inevitable. The requirements of those two offences have been the subject of numerous judicial decisions and are reasonably well settled. Likewise, the requirements of art and part liability in Scots law are reasonably clear.

[65] The argument for the petitioner is based on art.8 of the ECHR. It is, in essence, that art.8(1) entails a right to personal autonomy and selfdetermination; that the requirement in art.8(2) that any interference by a public authority with art.8(1) rights must be in accordance with the law requires that the relevant law should be both accessible and foreseeable in its application; and that Scots law in its existing state fails to satisfy those requirements of accessibility and foreseeability. For this purpose, it is submitted

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that regard must be had not merely to the terms of the substantive law but also to the terms of any policy applied by the prosecution authority in determining whether proceedings should be instigated. In Scotland Crown Office has published a Prosecution Code which sets out the criteria that will normally be applied when a decision whether to prosecute has to be made. This document, which is expressed in general terms, unrelated to any particular offence, has been supplemented by further statements made by the Lord Advocate to committees of the Scottish Parliament as to the policy that will be followed in cases involving attempted suicide. It is the code and further statements of prosecution policy that are the principal object of challenge. The petitioner claims that the factors set out in the Prosecution Code “wholly fail to satisfy the Convention requirements of foreseeability and accessibility”. The result of that, it is said, is that the interference with the petitioner’s art.8(1) rights is not “in accordance with the law” as required by art.8(2).

A

B

Existing law and practice

[66] As already stated, the Scots law of homicide is well established and the relevant rules and concepts are reasonably clear, subject to an inevitable level of uncertainty which I discuss below at paras. 71–73. Nevertheless, in assessing the compatibility of the law with art.8 of the ECHR, the notion of “law” must be understood as a matter of substance rather than form: Kafkaris v Cyprus, para.139, cited in R (Purdy) v DPP, Lord Hope, para.41. The result is that “law” in this sense encompasses statute law, at primary and secondary levels, and unwritten and customary law, as it would in the normal domestic signification of the word, and also statements of policy by actors at an official level, including prosecution agencies: ibid, para.47. The rationale for this is that the principle of legality, as enshrined in art.8, includes the critical elements of accessibility and foreseeability, and for the operation of the law to be truly foreseeable it must be possible to predict to a reasonable degree how the prosecution authority is likely to act in any particular case: this matter is discussed at length in Beghal v DPP, Lord Hughes, paras. 29–31. Furthermore, it must be possible to assess whether any actions taken by a prosecutor are arbitrary or disproportionate, and that would only be possible if prosecution policy were formulated with sufficient clarity; that is an aspect of the requirement of accessibility: Gillan v United Kingdom, paras. 76–77; R (T) v Chief Constable of Greater Manchester, Lord Reed, paras. 112–116; Beghal, paras. 31 and 33. The result is that, as the UK Supreme Court held in R (Purdy) v DPP, prosecution policy must be formulated in such a way that the requirements of accessibility and foreseeability are adequately satisfied and so that it is possible to protect adequately against arbitrary or disproportionate actions by the prosecutor.

[67] The Lord Advocate, exercising his power to prosecute crime in Scotland, enjoys a certain element of discretion as to whether to institute or abandon criminal proceedings in any particular case. Crown Office has published the Prosecution Code, which sets out the criteria that will normally be applied when such a decision has to be made, together with the range of options that are available to a prosecutor when dealing with a report of a possible crime. The code is intended to provide a general explanation of the various factors that may influence decisions in relation to prosecution or any alternative course of action. It is, inevitably, framed in relatively general terms, and it does not deal specifically with assisting in a suicide. The Lord Advocate has, however, provided further comments on assisted suicide in the form of written evidence to the Scottish Parliament’s Health and Sport Committee in

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response to a request dated 13 January 2015 and in a further written submission to the Justice Committee, both in respect of the Assisted Suicide (Scotland) Bill that was then before the Scottish Parliament. It is these documents that must be judged against the requirements of foreseeability and accessibility contained in art.8(2).

[68] The Prosecution Code refers to a range of factors. First, it must be determined whether the conduct complained of constitutes a crime known to the law of Scotland and whether there is any legal impediment to prosecution.

Secondly, the prosecutor must be satisfied that there is a sufficiency of evidence to justify proceedings; this includes an assessment of the admissibility, credibility and reliability of the available evidence. Thirdly, if sufficient evidence exists, the prosecutor must consider whether a prosecution is in the public interest. Thirteen specific factors are enumerated, with the warning that not all will apply in every case and the weight to be attached to any particular factor will depend on the circumstances of each case; all relevant factors must be considered. So far as material to homicide, the listed factors include the nature and gravity of the offence; the age, background and personal circumstances of the accused; the age, personal circumstances and attitude of the victim; the motive for the crime; mitigating circumstances; and the risk of further offending. In addition, it is indicated that in some cases prosecution may have the potential to affect the accused in a manner that is wholly disproportionate to the gravity of the offence. It is obvious that the relevance of these factors must be assessed in the circumstances of each individual case; each of the factors requires the application of judgment, and there is inevitably a limit to how far it is possible to constrain such an exercise. Indeed, if the limitations placed on the exercise of judgment are too rigid, the risk that results will be arbitrary or disproportionate is significantly increased; the assessment of proportionality and appropriateness (by which I mean the converse of arbitrariness) must inevitably be carried out on a case-by-case basis.

[69] The Lord Advocate’s written evidence to the Health and Sport Committee is to the effect that, if someone assisted another to take their own life, the case would be dealt with under the law relating to homicide. As such, it would be necessary to consider the sufficiency of evidence for the relevant offence. The Lord Advocate continued: “In order to be satisfied that a crime had been committed the Crown would have to consider that there was a direct causal link between the actings of the accused and the deceased’s death. In other words, that it was a significant contributory factor to the death. There is a considerable amount of case law in Scotland of dealing with the issue of causation, which would require to be carefully considered in any such circumstances.

“Thereafter consideration would have to be given to whether prosecution is in the public interest. The criteria for deciding whether prosecution is in the public interest are set out in the COPFS Prosecution Code. . . .There is a high public interest in prosecuting all aspects of homicide where there is sufficient available evidence.”

Thereafter, it was pointed out, it would be a matter for a jury to determine whether the accused was guilty of homicide, including the element of a direct causal link between the accused’s actions and the deceased’s death. The statement that there is a high public interest in prosecuting homicide where sufficient evidence exists is reiterated in a further written submission made by Crown Office and the Procurator Fiscal Service to the Justice Committee of

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the Scottish Parliament. In this statement, after a reference to the high public interest, it is recorded that: “If the Crown considers there to be sufficient evidence that a person has caused the death of another it is difficult to conceive a situation where it would not be in the public interest to raise a prosecution but each case would be considered on its own facts and circumstances.”

A

Thus the Lord Advocate’s general position is that, in view of the serious nature of homicide, if sufficient evidence exists the norm should be a prosecution.

B The requirement of legality in art.8(2)

[70] If interference by a public authority with the right to private life is to be justified under art.8(2), it must be “in accordance with the law”, and must in addition be necessary in a democratic society in the interests of one of a range of factors, including the protection of health or morals and the protection of the rights and freedoms of others. The first of these conditions is the requirement of legality, which is plainly necessary to secure the rule of law. It is implicit in the concept of legality that the basis on which a public authority is likely to act should be foreseeable, so that a citizen can, with advice if necessary, predict to a reasonable degree the consequences of a given action.

It is in addition implicit in the concept of legality that the basis on which a public authority acts or is likely to act should be accessible, or understandable, to avoid the risk of arbitrary or disproportionate actions. The assessment of arbitrariness or disproportionality, however, has been held to be an aspect not of legality but of what is necessary in a democratic society in the interests of matters such as the protection of health or morals.

[71] The concept of legality requires that the law should be stated in reasonably clear terms. It is important to recognize, however, that absolute certainty is impossible. Every legal concept and every legal rule will inevitably be surrounded by a penumbra of uncertainty. In part this is due to the inherent uncertainty of the language in which legal concepts are expressed. More specifically, and perhaps more importantly, legal rules and concepts do not exist in an abstract world of pure ideas; they exist in order to be applied to particular factual situations in the real world, and in the course of that application the concepts or rules may develop to a greater or lesser degree. It is obviously impossible to predict every possible factual situation to which a concept or rule might apply, and thus it is impossible to predict how the concept or rule might be applied in any possible case; some degree of uncertainty is inevitable. The most that can be hoped for is a degree of reasonable clarity.

[72] This feature of the law was recognized by the European Court of Human Rights in Sunday Times v United Kingdom, para.49: “[A] norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences may not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.”

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In my opinion this is an important statement of the law and a valuable reminder of the impossibility of total certainty. It must apply to all statements of the “law”, in the Convention sense, including statements of practice by prosecutors.

[73] Indeed, the level of certainty that is possible in a statement of practice is in principle less than is possible in the law as laid down in decided cases and, a fortiori, in statute. In Scots law the Lord Advocate enjoys an element of discretion in relation to individual prosecutions, a feature that is emphasised in the Prosecution Code. The same is true of the Crown Prosecution Service in England and Wales: that is implicit in the opinions in in R (Purdy) v DPP, although the particular offence in that case, assisting suicide in terms of s.2 of the Suicide Act 1961, was subject to an express discretion conferred on the prosecutor by s.2(4) of the Act. Nevertheless, is difficult to conceive of a system of prosecution that does not permit some element of discretion to the prosecutor; otherwise a great deal of court time is likely to be wasted on prosecutions that are disproportionate or, in extreme cases, trivial. Any statement of prosecution practice must therefore itself incorporate or at least recognise this element of discretion. That is a further important factor that prevents anything like absolute certainty in a statement of prosecution practice.

This factor must in my opinion weigh heavily in any assessment of the challenge that is now made to the Lord Advocate’s policy in relation to cases of assisted suicide.

Application to Scots law

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[74] The concepts of Scottish criminal law that are relevant to assisted suicide are murder and culpable homicide. The essence of those concepts is reasonably clear; it emerges from a large number of decided cases. The same is true of art and part liability. For the reasons just stated, absolute certainty is impossible, but it is clear in my opinion that the standard of reasonable certainty has been reached. Counsel for the petitioner disavowed any intention to challenge the substance of the criminal law as incompatible with art.8. So far as the Lord Advocate’s policy is concerned, the general guidance that is given in the Prosecution Code is relevant to homicide. Several of the specific factors are also clearly relevant; these include the nature and gravity of the offence, the circumstances and attitude of the victim and the motive for the crime. In relation to assisted suicide, the Prosecution Code is supplemented by the statements by the Lord Advocate and Crown Office to the Health and Sport and Justice Committees of the Scottish Parliament. These indicate that the Lord Advocate attaches importance to the serious nature of homicide, and that if sufficient evidence exists the normal course of action will be a prosecution. The statements of policy make it clear that exceptional cases may exist where a prosecution will not be appropriate; in such cases the general discretion of the prosecution authority will be relevant. Nevertheless, it is apparent that the norm is to prosecute. It is of the nature of exceptional cases that they are hard to predict. To expect an enumeration of such cases would be wholly unreasonable. For this reason I am of the opinion that the Lord Advocate’s policy clearly meets the standard of reasonable certainty that is implicit in the requirement of legality in art.8(2).

[75] That conclusion is supported in my opinion by consideration of the constitutional position of the Lord Advocate. The Lord Advocate is in charge of the system of prosecution in Scotland. As such, he exercises a function that is distinct from that of the courts. The extended definition of “law” used in the Strasbourg cases on art.8(2) is wide enough to embrace some aspects at least of the function of the public prosecutor. Nevertheless, this does not eliminate

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the distinction between the prosecution and the court, at least as it is understood in Scotland and the remainder of the English-speaking world.

Central to this distinction is the principle of judicial independence, which must be free of interference from the prosecution. Conversely, the prosecution should generally be free to exercise its own distinct functions in an independent manner; the importance of this principle is recognized in cases such as Montgomery v HM Advocate and Millar v Dickson. The court should in my opinion be slow to interfere with that independence. This applies in particular to the general discretion that the Lord Advocate exercises in decisions as to the prosecution of crime.

[76] Furthermore, the exercise of a discretion normally requires that consideration should be given to any factors that are relevant. The courts have generally set themselves against the fettering of discretionary powers prior to their exercise, and any attempt to be over-prescriptive in advance inevitably results in a degree of fettering of the discretion. The statements by the Lord Advocate to the two parliamentary committees are framed, no doubt deliberately, in such a way as to avoid any undue fettering of the prosecutor’s discretion. It is for that reason that they state that there is “a high public interest in prosecuting all aspects of homicide where there is sufficient available evidence”, or that “it is difficult to conceive a situation where it would not be in the public interest to raise a prosecution”. That in my opinion provides as much certainty on the matter as can properly be expected. Counsel for the petitioner submitted that those statements by the Lord Advocate were indistinguishable from the position taken by the Director of Public Prosecutions in England and Wales prior to the decision in R (Purdy) v DPP, a position that was held to be inadequate to satisfy the requirement of legality in art.8(2).

That argument, which founded heavily on the residual element of discretion in the Lord Advocate’s statements, must in my view be rejected. An element of discretion must exist, with the result that total certainty is impossible.

[77] At this point I should make passing reference to four cases where, counsel for the petitioner submitted, the policy declared by the Lord Advocate in the Prosecution Code and the statements to parliamentary committees had not been followed; these had been disclosed by the Scottish Government Legal Directorate in December 2015. In the first, HM Advocate v P B, a family member who had been asked by a relative suffering from a degenerative illness to kill him and had done so by administering an overdose of medication and subsequently smothering him was charged with murder, and a plea to culpable homicide was offered by the defence and accepted. The facts available were sparse, but nothing appears to be significantly contrary to the statements of the Lord Advocate; the only issue of doubt is why a plea to culpable homicide was accepted, but no information is available about that. In the second case, information had been received by the police that a family member might have assisted another in ending their own life. The Lord Advocate instructed that there was insufficient evidence for criminal proceedings, but that the case should be re-reported if further evidence came to light. Once again nothing is contrary to the policy. In the third case, MacAngus v HM Advocate, the accused had purchased controlled drugs which were ingested by the deceased and subsequently caused his death. Proceedings were raised for culpable homicide, but the appeal court decided that culpable homicide could not be established because the accused’s act was not directed in some way against the victim. The case was reconsidered for prosecution in light of that decision, and it was decided that the evidence was unlikely to result in a conviction. Once again nothing appears contrary to the declared policy.

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[78] The fourth case is the most troubling. The deceased appeared to have taken his own life, and consideration was given as to whether a member of the deceased’s family had taken any action that caused the death. Both Crown counsel and the Lord Advocate considered that there was insufficient evidence to support a charge of culpable homicide and recommended that no further action should be taken. Crown counsel nevertheless considered what should happen if the view had been taken that there was sufficient evidence. In that event, he considered that proceedings were not required in the public interest.

In forming that judgment he had express regard to the “Policy for prosecutors in respect of cases of encouraging or assisting suicide” issued in England and Wales by the Director of Public Prosecutions through the Crown Prosecution Service. Counsel acknowledged that that guidance relates to s.2 of the Suicide Act 1961, which does not apply in Scotland, but considered that there were sufficient similarities between culpable homicide and the statutory charge to render the guidelines valuable on the question of whether prosecution was in the public interest. For reasons discussed below, I am of opinion that there is a clear distinction between the offence in s.2 and the offences of murder and culpable homicide as understood in Scots law. I accordingly consider that Crown counsel was in error in following the English guidelines. Finally, I note that the Lord Advocate agreed that there was insufficient evidence, and indicated that his role was to apply the law, which was a matter for legislators.

That in my view is the correct approach.

Relevance of English law

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[79] The argument for the petitioner founded heavily on English law, and in particular on the decision of the UK Supreme Court in in R (Purdy) v DPP. In my opinion that case has no bearing on Scots law, for at least four reasons.

In the first place, the case was concerned with the English statutory offence of complicity in another’s suicide, as found in s.2 of the Suicide Act 1961. Prior to 1961 suicide itself had been a crime in England, although for obvious reasons it was never prosecuted. The 1961 Act abolished that crime, but created the offence of (in its original form) aiding, abetting, counselling or procuring the suicide of another person. That is an unusual offence; as Lord Neuberger indicates in Purdy at para.102, it involves the offender’s assisting an action by a third party which is not itself a crime, and the third party who is being assisted is also a victim. Section 2 of the 1961 Act is not part of Scots law, although it would obviously be open to the Scottish Parliament to enact an equivalent provision. As matters stand, however, it would cover many cases which would not amount to murder or culpable homicide in Scotland, even on an accessory basis.

[80] In the second place, the issue in Purdy was whether there should be a specific prosecution policy dealing with s.2. It was not at all concerned with murder or manslaughter, the equivalent of culpable homicide. Lord Hope, at para.54, indicated that the Code for Crown Prosecutors issued by the DPP would normally provide sufficient guidance to prosecutors and the public as to how decisions are likely to be taken as to whether or not, in a particular case, it would be in the public interest to prosecute. He further stated that in most cases the application of the code will ensure predictability and consistency of decision-taking. That could not be said, however, of cases where the offence is aiding or abetting the suicide of a person who is terminally ill or severely disabled who wishes to travel to a country where assisted suicide is lawful. It was the latter type of case where guidance was required. That is plainly quite different from homicide. He added, at para.55, that the cases requiring special

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treatment could be confined to a very narrow band, with the result that the code would continue to apply to all other cases. That appears to include cases of homicide.

[81] In the third place, on the material disclosed to the court in Purdy it was apparent that an “obvious gulf” had developed between the wording of s.2(1) and the way that it was applied in practice in what were described as “compassionate” cases: Lord Hope, para.54. The court therefore concluded that the practice of the Crown Prosecution Service had not been adequately disclosed. It has not been suggested that any such divergence between law and practice exists in Scotland. In the fourth place, in Purdy it was apparent, and indeed was conceded by the DPP, that many of the factors discussed in the Code for Crown Prosecutors plainly had no relevance to a case of assisted suicide: Lord Hope, paras. 48–49 and 53; in the latter paragraph Lord Hope stated that the code “offers almost no guidance at all” in the category of cases under consideration. That is in my view quite different from the situation in Scotland. The relevant offence in Scotland is, of course, either murder or culpable homicide, or conceivably culpable and reckless conduct. A majority of the factors listed in the Prosecution Code as having a bearing on whether it is in the public interest to prosecute are plainly relevant to those offences, for the reasons set out at paras 68 and 74 above. In addition, the Lord Advocate has expressed his policy on cases involving what may be described as assisted suicide in written evidence to the Health and Sport Committee and a written submission to the Justice Committee of the Scottish Parliament, as stated at para.69 above. The latter statements, in particular, make it clear that the policy of the Lord Advocate is that prosecution should normally follow in any case where there is thought to be sufficient evidence that a person has caused the death of another. That is in my opinion clear guidance relating to the relevant offences in Scots law, murder and culpable homicide.

[82] For the foregoing reasons I am of opinion that the decision in Purdy is of no assistance in Scotland. It deals with an offence unknown to Scots law, and does so in a context that is quite different from the law and prosecution policy currently in force in Scotland. Equally, because the relevant offences are quite different in Scotland on one hand and England and Wales on the other, the Code for Crown Prosecutors issued by the DPP appears to me to have no bearing on Scots law. That is why I consider that Crown counsel was in error in apparently relying on the code for guidance. Reliance should rather be placed on the Scottish Prosecution Code and the formal statements made by the Lord Advocate.

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Scope of the petitioner’s challenge: constitutional issues

[83] The challenge by the petitioner to the acts of the Lord Advocate is confined to criticism of his statements of prosecution policy, which it is said do not go far enough to satisfy the requirement of legality in art.8(2). No challenge was made to the substantive law that may be relevant to cases of assisted suicide. It appears to me of fundamental importance that prosecution policy should be treated as quite distinct from substantive law, even though the concept of “law” as used in art.8(2) has been given an extended meaning

by Strasbourg and UK case law. That extended meaning is designed to ensure that the law on a particular topic meets proper standards of accessibility and foreseeability, but it does not nullify the more fundamental distinction between the powers of the prosecutor and the substantive criminal law.

[84] This means in particular that statements of policy by the Lord Advocate should not and do not change the substantive law. The function of the

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prosecutor is to secure the due application of the law, and nothing more. Any major change in the law is a matter for Parliament. Lesser changes, involving the development of existing law to meet new situations, may be effected by the court. The High Court of Justiciary has regularly shown itself willing to develop the law in appropriate cases. An example cited to us is Lord Advocate’s Reference (No.1 of 2001), where the High Court held that, contrary to the previous understanding, there was no requirement in the crime of rape that there should be a forcible overcoming of will; instead, it was sufficient to establish that the victim had not in fact consented, without the requirement of showing force or an overcoming of the victim’s will. Another such case is Khaliq v HM Advocate, where the supply of solvents to children for the practice of “glue sniffing” was held to amount to the crime of wilfully administering a dangerous substance. Cases of that nature, however, represent a development of existing judge-made law. They do not represent a fundamental change in basic legal rules and concepts. Furthermore, significant judicial innovation will generally be inappropriate in a case that is governed by statute; if statute law is to be changed, that is normally a matter for Parliament.

[85] The same is true in my opinion where a bill has been considered by Parliament but rejected. That is highly pertinent in the present case. An Assisted Suicide Bill was presented to the Scottish Parliament but was rejected by a substantial majority in a parliamentary vote on 27 May 2015. More recently, a different bill dealing with the same subject was rejected in the Westminster Parliament by an even larger majority. Assisted suicide is a subject that, on any view, raises profound moral issues. It also raises very strong feelings, both for and against. In such a case it is in my opinion wholly inappropriate for the courts to attempt any major change in the law. Counsel for the petitioner suggested that rejection of the bill in the Scottish Parliament was “entirely irrelevant” to the question presently before the court. I cannot agree. Rejection of that bill, and the corresponding Westminster bill, is a clear demonstration that the people’s elected representatives are opposed to assisted suicide in the UK. In considering the issues raised in the present case, the court must in my view take that factor into account.The principle of democratic government requires no less.

[86] We were referred to the recent English decision in R (Nicklinson) v Ministry of Justice. This case does not appear to me to be directly relevant to the issues that we have to consider. It reveals widely differing views on when it may be appropriate for the courts, relying on art.8 of the ECHR, to alter the substantive law on the question of assisted suicide. It was a matter of agreement that the margin of appreciation that is given to national authorities under the Convention extended to determining the question of whether or not assisted suicide should be lawful. A bare majority of the UK Supreme Court held that it was open to the courts, relying on art.8, to declare the existing law, in the form of s.2 of the Suicide Act 1961, incompatible with the Convention, notwithstanding that that involved striking down an Act of Parliament. The minority, consisting of Lords Clarke, Sumption, Reed and Hughes, disagreed, holding that whether or not assisted suicide should be lawful, and in particular whether the risk to vulnerable people could be mitigated, was inherently a matter for Parliament rather than the courts: see Lord Sumption, paras.

223–235; Lord Hughes, para.267; Lord Clarke, para.293; and Lord Reed, paras. 294–298. In my opinion the view of the minority is manifestly correct, and I would wholeheartedly endorse the remarks of Lord Sumption at, in particular, paras. 230–232 and Lord Reed at paras. 296 and 297. At para.296 Lord Reed stated that the Human Rights Act 1998, although introducing a

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new element into British constitutional law and entailing some adjustment of the respective constitutional roles of the courts, the executive and the legislature, does not eliminate the differences between them. He continued: “Accordingly, it does not alter the fact that certain issues are by their nature more suitable for determination by Government or Parliament than by the courts. In so far as issues of that character are relevant to an assessment of the compatibility of executive action or legislation with Convention rights, that is something which the courts can and do properly take into account. They do so by giving weight to the determination of those issues by the primary decision-maker. There is nothing new about this point. . . .”

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Lord Reed goes on, at para.297, to refer to the fact that s.2 of the Suicide Act 1961 raises highly controversial questions of social policy and moral and religious questions on which there is no consensus. On that basis he considered that Parliament required to be allowed a wide margin of judgment. I would entirely endorse that view; any other would appear to me to be an affront to the principle of democratic rule.

C Conclusion

[87] These questions are not, however, directly in point in the present case, although they are of very obvious constitutional importance. For the reasons already given, I would refuse the reclaiming motion.

COMMENTARY This case is a rare example of a decision by a civil court on a question of criminal law. As such, its discussion of the law of homicide is arguably obiter, and is in any event not, or perhaps more precisely, not technically, binding, on the High Court (cf, Law Hospital NHS Trust v Lord Advocate, 1996 S.C. 301 at p. 322; 1996 S.L.T. 848). So far as the discussion of the law of homicide is concerned, the instant case follows MacAngus, and the reader is referred to the Commentary on the S.C.C.R. report of that case.

1. The ECHR requires that in order to be in accordance with law, the law in question should be clear, precise and publicly available and should not be applied in an arbitrary way. As the court point out, some degree of flexibility in the interpretation of a law is inevitable, and this is particularly so in the case of a common law system which allows for prosecutorial discretion. It is worth noting, however, that prosecutorial discretion is directed to situations in which the prosecutor decides that it is not in the public interest to prosecute what is ex hypothesi a particular breach of the law. It may also be worth pointing out that the public statement of prosecution policy are not unfamiliar in Scots law (see, eg, McDonald v HM Advocate, 1997 S.C C.R. 408 (homosexuality); Lockhart v Deighan, 1985 S.C.C.R. 204 (drink driving). What the precise effect of such statements are is not entirely clear, but they are probably best considered as creating a personal bar to prosecution.

The modern Prosecution Code is quite different, and consists of statements of the general considerations which will be taken into account in the decision not to prosecute any particular case, and as such offer no guidance as to any special circumstances relating to particular offences. It is, however, worth noting that one of the relevant factors in deciding whether or not to prosecute is the attitude of the victim. The Crown Office submission to the Justice Committee on assisted suicide is, of course, specific in respect of a particular situation, but its terms themselves do not offer much in the way of guidance, except, perhaps, to make it clear that anyone who assists a suicide does so at

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risk of prosecution. The Lord Advocate’s evidence to the Health and Sport Committee goes a little further in that it refers to a question of a direct causal link between the accused’s actings and the death, which is said to mean that they were a significant contributory factor to the death—but these considerations are inherent in the definition of the crime of homicide itself. In any event, they are given by the Lord Advocate only as matters to be taken account of.

2. It is clear that a person who commits suicide does not thereby commit a crime; it is also clear that the fact that a person consents to be killed does not relieve his killer of responsibility. It is also now accepted that causing death by conduct which constitutes a breach of the Misuse of Drugs Act 1971 is not within the class of ‘unlawful act homicide’. The position of someone who assists a suicide is therefore different from that of someone who is art and part in a crime, and his actions must be considered independently of those of the victim, although to cause death recklessly is culpable homicide, at least if the recklessness is gross. Nothing, incidentally, has been made of the decision in Drury v HM Advocate, 2001 S.C. C. R. 583; 2001 S.L.T. 1013 that murder requires not merely an intention to kill, but a wicked intention to do so.

3. The instant case follows MacAngus in requiring an immediate and direct causal link between the accused’s conduct and the death. But causality in Scots law is a pragmatic matter, not overly affected by theoretical considerations, to put it mildly. And it is not clear how a requirement of direct causation does not necessarily result in the breaking of the causal chain by a novus actus (cp, the Lord President at para.30, who thinks it does and Lady Dorrian at para.58 who thinks it may not).

Nevertheless, the instant case does offer some guidance on the question, since it makes it clear that merely to help someone to travel to another country with the intention that he should be assisted there to commit suicide does not render the assister guilty of homicide. Perhaps even more guidance can be derived from what actually happened in MacAngus: the Crown did not proceed further in the case where the accused had merely supplied the drug while the accused who actually injected the deceased with the drug pled guilty.

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A Note of Appeal Against Conviction

29 January 2016

ALAN CLARK

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2016] HCJAC 11 Solemn procedure—Judge’s charge—Prior statement by witness— Whether directions erroneous—Whether led to miscarriage of justice The appellant was convicted of a number of offences, including two rapes in relation to which the Crown relied on the rule in Moorov. The complainer had made a signed statement to the police about one of them in which she had made no reference to rape, on the basis of which her credibility was attacked.

In her evidence the complainer did not dispute the terms of the statement.

In his charge to the jury the trial judge described this statement as a prose narrative of what the police officer understood the witness to be saying, referred to the fact that it was not made on oath, and not cross-examined in court, told the jury that if there were coincidences between a witness’s evidence and what she said immediately after the incident that might bolster her evidence and if there were differences that might undermine it, and said that he should draw their attention “to the limitations of that form of relatively short, in comparison to court testimony, statement in the police officer’s handwriting”. He told them that it was for them to consider whether the witness’s explanation of the inconsistencies of time and chronology between the statement and her evidence was satisfactory The appellant appealed to the High Court against conviction on the ground that these directions by the judge constituted a misdirection which had led to a miscarriage of justice in that they introduced matters which were not properly pertinent to the exercise which the jury had to perform and deflected them from a proper consideration of the assessment of the reliability and credibility of the complainer’s testimony in light of her prior inconsistent position, and that the judge’s treatment of the statement was likely to impress upon the jury that it was not reliably noted or was incompletely noted and therefore that they should discount its significance when assessing the credibility and reliability of the witness’s testimony on the central issue of her treatment at the hands of the appellant including the allegation that there had been sexual offending.

Held (1) that there was substance in these criticisms and that the submission that, collectively, they constituted a material misdirection of the jury was well founded (para.10); (2) that the judge had elided the fundamental point of the inconsistency of the prior account with the complainer’s testimony by reason of the absence of any allegation of any sexual activity, including rape, and its effect on the jury’s assessment of the credibility and reliability of that testimony (para.13); and (3) that in these circumstances the jury were misdirected on a matter which was central to the position of the defence at trial and that it could not be said that no miscarriage of justice may have occurred (para.15); and appeal allowed and convictions quashed.

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F

Case referred to in the opinion of the court: Beurskens v HM Advocate [2014] HCJAC 99; 2014 S.C.C.R. 447; 2014 S.C.C.R. 447; 2015 J.C. 91; 2014 S.L.T. 965.

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Clark v HM Advocate

2016 S.C.C.R.

Alan Clark was convicted of rape after trial on 9 September 2014 in the High Court at Glasgow before the Lord Justice Clerk (Carloway) and a jury and appealed to the High Court against conviction on the grounds referred to in the opinion of the court.

The appeal was heard on 16 July 2015 by Lord Eassie, Lady Smith and Lady Clark of Calton.

For the appellant: Allan QC, McKenzie, instructed by Faculty Services Ltd. For the respondent: Di Rollo, AD. On 29 January 2016 Lord Eassie delivered the following opinion of the court.

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LORD EASSIE [1] On 9 September 2014 at a sitting of the High Court of Justiciary in Glasgow the appellant was convicted after trial of a number of charges of violence committed at various times between 1994 and 2008 in a domestic context against four women with whom he had been in successive relationships.

Only two of those partners made any allegation of sexual offending. They were respectively A McK and L McP. The appellant was convicted of the rape of A McK between December 2002 and December 2004 (charge (9)). He was also convicted of the rape of L McP between 10 and 12 September 2008 (charge (22)). The convictions of these two charges of rape depended upon the application of the principle of mutual corroboration of charges—the Moorov doctrine—and accordingly depended upon the evidence of those two complainers being accepted as credible and reliable. The appeal is directed to the convictions on those charges and also a conviction on a linked charge of assault on the second complainer, L McP (charge (21)).

[2] The credibility and reliability of the second of those two complainers in particular was a central issue in the trial. An important element of the defence challenge to the credibility and reliability of the testimony of L McP was the inconsistency between that testimony and a detailed statement made to police officers some hours after the time at which she alleged that she had been raped by the appellant. The principal, but not the only, inconsistency between the account given by the complainer in evidence of how she had been mistreated by the appellant—which spanned a relatively short period, namely between 3 September and 12 September 2008—and the account noted by the police officers on five sheets of closely spaced handwriting was that in the latter, more contemporaneous, account of the various incidents the complainer made no allegation that she had been sexually assaulted. Additionally, as respects an earlier assault on 3 September 2008 to which she had testified in court, the second complainer had on 4 September 2008 given to her general medical practitioner a wholly inconsistent account of how she came by the injury about which she consulted the doctor.

[3] The basis of the challenge to the appellant’s conviction on charges (9), (21) and (22) is the directions given by the trial judge respecting evidence of a prior statement by a witness—and in particular those directions as they related to the evidence of prior statements by the second complainer, L McP. It was in respect of the evidence of the second complainer that the issue of prior statements made by a witness particularly arose.

[4] As the advocate depute immediately acknowledged, the directions given by the trial judge were “unusual” (in a case which did not present in this respect any unusual feature). The relevant passages of the transcript of the trial judge’s charge to the jury begin at p.24 where, in the context of instructing

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the jury on corroboration, the trial judge duly directs the jury to the effect that hearsay evidence of a statement made by a complainer cannot afford corroboration. The trial judge then continues: “With that qualification, however, you can certainly use what a witness says in the immediate aftermath of an incident when you are assessing that witness’s credibility and reliability. That is to say you can compare and contrast what the witness has said in the witness box, with what the witness said at the time, and if there are coincidences you may think that bolsters the witness’s evidence. If there are differences of significance you may think that undermines the witness’s evidence. But it’s all a question of facts and circumstances, ladies and gentlemen, for you to decide.You decide whether the differences are important or explicable. There are reasons why people do do different things at different times, of course they are, there are, and you have to decide what is important and what is not.”

[5] Although not the principal point advanced on behalf of the appellant, we consider that counsel for the appellant was correct in stating that this instruction to the jury did not constitute an entirely correct statement of the law. While a witness may be cross-examined as to credit in respect of a prior inconsistent statement, we do not consider that it is admissible to lead evidence of a prior extra judicial consistent statement or statements in order to bolster the witness’ evidence. Exceptions to that rule of the law of evidence are, no doubt, to be found in the case of a de recenti statement to the first natural confidant or in a consistent utterance forming part of the res gestae; but none of the hearsay statements in issue in the case were of that nature.

[6] The passage from the trial judge’s charge which we have just quoted is immediately followed by these directions: “This of course will loom large when you come to consider the evidence of (L McP) relative to the statement, which you have heard some of, noted by the CID on the 12th September. Bear this in mind, ladies and gentlemen.

(Counsel for the accused) has pointed out some important matters, which he says you should consider, and of course I’m sure you will consider them and I’ll return to this tomorrow morning when I’m dealing with that particular aspect. But one thing that is worth saying at this stage, what you’re dealing with when you’re dealing with a statement of that nature. . .and you’ve seen it, it’s not a transcript of what the witness said. . .it’s not a transcript in the sense of being a question and answer. You can (sic – presumably ‘cannot’) see precisely what the witness said. . .sorry, what the police asked and what the witness said, what the, what the, what words came directly from the witness, what words were part of a question from the police, and matters of that sort. This is a prose narrative of what the police officer understands the witness to be saying. We’re talking about a document of some five pages long, I think, of handwriting by the police officer, and that type of statement has its limitations. It’s not a statement which is given on oath, for example. It’s not one that’s cross-examined in court. It’s a document which is primarily for use in the course of the police investigation.

“On the other hand, it is signed and although the document doesn’t state it as it should have done, the police officers has given evidence which was not contradicted, that it was read over to the witness and signed on each page. So there are important matters in that, but I should draw your attention to the limitations of that form of relatively short, in comparison to court testimony, statement in the police officer’s handwriting.”

[7] As counsel for the appellant pointed out, in the case of a mixed statement by an accused—such as the terms of an interview by the police of an accused person which contains both incriminatory and exculpatory material—the jury should

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normally be directed that what was said by the accused about factual matters is available as evidence of those facts stated in it. Given that particular function of a mixed statement by an accused it may well be appropriate to caution the jury that what was said by the accused in that statement was not on oath and was not subject to forensic cross-examination and thus—as evidence of the facts stated—is subject to those possible limitations. However the statement of the second complainer L McP was not such a statement. Its status, and the function for which it could properly be deployed in the trial, was that of a prior hearsay account by the witness inconsistent in material respects with the witness’ testimony on oath. The content of the prior statement which is inconsistent with the subsequent testimony cannot substitute for that testimony. Evidence of the making by a witness of a prior inconsistent statement will almost invariably be evidence of a statement not made on oath and not subject to any crossexamination. But in our view neither of those features is relevant to, or represents a limitation on, the forensic value of a prior inconsistent statement as a means of questioning the credibility or reliability of the witness’ testimony. While the advocate depute offered the submission that what the trial judge said about the witness’ prior statement being neither on oath nor subject to cross-examination was factually accurate, in our view that is really not to the point.

[8] Similarly, as counsel for the appellant also pointed out, a prior inconsistent statement will commonly not be found in any transcript of an audio recording, or in any shorthand or longhand note of question and answer.

Counsel for the appellant further criticised the trial judge’s description of the statement noted by the police officer as being a “prose narrative”. It was not clear what the trial judge intended by that expression but it suggested that the trial judge considered the statement to have been filtered through the mind of the police officer and hence to bring with it a lack of reliability, such as that associated with a precognition and which makes a precognition inadmissible in evidence. On the other hand, said counsel, the evidence disclosed that the statement noted by the police officer had been read over to LMcP and had been signed by her. In Beurskens v HM Advocate the trial judge had held at para.29 of his opinion that the signature by the witness would render the document a statement by the witness and not a precognition: “The document ceases to be solely a filtered note of what the statement taker thinks the witness might say (a precognition) and becomes a version of events specifically acknowledged as being emitted by the signatory (a statement).”

There was thus an inherent contradiction in the instructions being given to the jury.

[9] We have come to the view that there is force in these criticisms. It is no doubt correct, as the advocate depute submitted, that what the trial judge said to the jury is factually correct. The account was not a transcript of an audio or other recording of question and answer; and it was in prose. But that does not thereby render the directions appropriate or suitable when what was required were normal directions on hearsay evidence of a prior inconsistent statement by a witness. It may be added that the advocate depute had some difficulty in discerning what the jury were intended to understand by the reference to a prose narrative; but we did not understand her to dispute that it might well convey to the jury the notion of an inaccurate rendering of what had been said by the witness to the police officer.

[10] Put shortly, the essence of the complaint advanced by counsel on behalf of the appellant was that, in stressing to the jury that the prior statement

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by L McP was not on oath, was not subject to cross-examination, was not a transcript of an audio recording, and was therefore subject to limitations, the trial judge’s directions to the jury introduced matters which were not properly pertinent to the exercise which the jury had to perform and deflected the jury from a proper consideration of the assessment of the reliability and credibility of the complainer’s testimony in light of her prior inconsistent position. In particular, the trial judge’s treatment of the statement was likely to impress upon the jury the notion that the statement noted by the police officer was not reliably noted or was incompletely noted and therefore that they should discount its significance when assessing the credibility and reliability of the testimony of L McP on the central issue of her treatment at the hands of the appellant including the allegation that there had been sexual offending, including the commission of an act of rape. Moreover, the trial judge’s categorisation of the statement of what the complainer had said as a prose narrative was to describe it in terms again likely to suggest inaccuracy or unreliability. Both the complainer and the police officer in question had given evidence of the manner in which the interview had been conducted and that evidence was for the jury to consider. It was for the jury to consider whether the account given to the police had been incompletely or inaccurately noted.

The complainer, L McP, did not dispute that the statement had been read over to her and that she had signed it; and she did not maintain that the language used was not words spoken by her. We have come to the view that there is substance in these criticisms advanced by counsel for the appellant and that his submission that, collectively, they constitute a material misdirection of the jury is well founded.

[11] Accepting that the jury were not given conventional directions on a prior inconsistent statement by a witness, the advocate depute advanced the submission that, in the event, the unusual directions given in the present case had yet not resulted in any miscarriage of justice. The point advanced by the defence at the trial was, she submitted, that the complainer’s position in court was inconsistent with what the complainer had said to the police, to whom she had made no complaint of rape. It was not in dispute that the statement noted by the police did not contain any suggestion of rape. Accordingly, submitted the advocate depute, since it was thus accepted by the complainer that she had not made an allegation of rape to the police, the point would have been evident to the jury. Thus the actual terms of the statement or the manner in which it had been noted or compiled did not matter.

[12] While the advocate depute’s contention that, despite the terms of the trial judge’s directions which we have so far quoted, no miscarriage of justice could be said to have occurred has an initial attraction, we are ultimately not persuaded.

[13] As he had foreshadowed in the directions respecting prior statements already quoted, in which the trial judge said that the matter would loom large when the jury came to consider the evidence of the complainer L McP, the trial judge came later to attend to the matter more specifically in relation to that complainer. He said this: “Moving on to charge (22), there is the, there is in this, on this charge of course there is a report made at the time of what happened in the form of a statement to the police. But strikingly, say the defence and as indeed is not disputed, it contains no allegation of rape or indeed certain other aspects, which have now been spoken to and are in the indictment, such as the visit to the cashline or the dangling dog. There is an account of a distressing event, and of course you have the physical state of (LMcP) as

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she presented at the care home. But there are inconsistencies of time and chronology contained in the statement, and you’ve seen these focused in cross-examination and in the defence speech to you. Once more you’ve got (LMcP’s) explanation of why that is so and you must consider again whether her explanation is one which is satisfactory.”

It is to be noted that the trial judge did not put matters to the jury on the basis that there was a clear acceptance by the complainer, L McP, that in her contemporaneous complaint to the police she had not suggested to the police that she had been raped and so the precise terms of the statement did not really matter. The focus is rather on the report—the statement to the police— which inevitably must draw the jury back to the directions given by the trial judge earlier in his charge about the statement and his directions on the limitations on the value of the statement. It is also to be noted that that which the jury was invited to consider are “inconsistencies of time and chronology” and whether the complainer’s explanations for those inconsistencies were satisfactory. The fundamental point—central to the defence position—of the inconsistency of the prior account with the complainer’s testimony by reason of the absence of any allegation of any sexual activity, including rape, and its effect on the jury’s assessment of the credibility and reliability of that testimony is thus elided.

[14] We would add that, while of course it is correct that the statement does not make any suggestion of rape, in her cross-examination the complainer did suggest that, as a prelude to an account not pursued, she had mentioned to the police that there had been some sexual activity and that the police had missed things out [Transcript 5 September 2014, pp 55–56]. When the police officer who noted the statement gave evidence, that particular point arising from the evidence of L McP was taken up with the officer. She testified to the effect that if that sexual activity had been mentioned by the complainer in the course of the interview it would have been noted in the statement. Accordingly the matter was not as clear cut as the advocate depute sought to submit to us.

[15] In these circumstances we have come to the conclusion that the jury were misdirected on a matter which was central to the position of the defence at trial and that we are unable to say that no miscarriage of justice may have occurred.

[16] We shall therefore allow the appeal against conviction on charges (9), (21) and (22). We require to hear counsel further on the matter of sentence in light of that decision.

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A Appeal Against Sentence

24 March 2016

ANGUS ROBERTSON SINCLAIR

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2016] HCJAC 24 Sentencing—Post-offence convictions—Whether admissible at common law—Criminal Procedure (Scotland) Act 1995 (c.46), s.101A—Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s.70 Sentence—Murder—Punishment part—Accused convicted in 2014 of brutal murder of young girls committed in 1977—Accused serving life sentences for sexual offences and similar murders committed in 1978 and 2001—Whether 37 years excessive Section 101A of the Criminal Procedure (Scotland) Act 1995, as inserted by s.70 of the Criminal Justice and Licensing (Scotland) Act 2010, provides that a sentencing judge may have regard to any conviction in respect of an accused which occurred on or after the date of the offence for which he was being sentenced but before the date of his conviction for that offence, provided these convictions are specified in a notice laid before the court and admitted or proved. That provision applies only in respect of offences committed after 28 March 2011.

The appellant was convicted in 2014 of raping and murdering two young girls in 1977, in circumstances which were described as horrific, these being offences of which he had been acquitted in 2007, and his post–1977 convictions (which included life sentences in 1982 for rape, and for a comparable murder in 2001) were laid before the court, and taken into account by the sentencing judge in fixing the punishment part of his 2014 life sentence at 37 years. He appealed against the fixing of that period on the ground that it was excessive having regard to comparable cases, and that it was incompetent for the judge to take into account the post-offence convictions.

Held (1)(i) that an experienced sentencing judge who has presided over the trial, heard the witnesses, and seen the labels and productions, is in the best position to decide, in his discretion, the punishment part appropriate to the circumstances of the case, and that an appeal court should be slow to alter such an assessment, as other punishment parts may have been imposed in different circumstances and in a different sentencing era, and that what may be regarded as an appropriate punishment part may vary from era to era (para.40); and (ii) that the sentencing judge was entitled, exercising his discretion in the context of retribution and deterrence, to select a punishment part at the very top of the range, and that his discretion was not restricted in his selection by either statute or other cases, and that he did not error in his selection (para.41); and (2) that the common law, as it has developed over the years, is at least as wide as (if not wider than) s.101A of the 1995 Act, that the judge is, at common law, entitled to have regard to all the relevant circumstances for the purposes of sentencing (para.42), that the common law, as developed in the context of

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modern sentencing practice, clearly envisages that a sentencing judge should have an overall view of the accused’s life in order to be able to sentence him or her appropriately, and that such an overall view may properly be obtained from oral submissions, medical reports, reports from psychologists or psychiatrists, social enquiry reports/criminal justice social work reports, and/ or the production of extract convictions with certified extracts of the indictments (para.43), and that in the present case, the convictions of 1982 and 2001 were proper and relevant matters for the sentencing judge to take into account at common law (para.45); and appeal refused.

Observed that the sentencing judge was not obliged to carry out some sort of retrospective assessment of what a sentencing judge in 1977 might have recommended, had the appellant been convicted at that time, and that the sentencing of the appellant should not be based on such a hypothetical, theoretical or speculative exercise: rather it was a matter to be assessed at the time of his conviction, when all the relevant circumstances could be taken into account (para.51); and appeal refused.

Cases referred to in the opinion of the court:

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Beggs, Petitioner, 2005 S.C.C.R. 47; 2005 1 J.C. 174; 2005 S.L.T. 165 Campbell v HM Advocate, 2004 S.C.C.R. 220; 2004 S.L.T. 397 Chalmers v HM Advocate [2014] HCJAC 5; 2014 J.C. 229 Coubrough v HM Advocate [2008] HCJAC 13; 2008 S.C.C.R. 317 Currie v HM Advocate, 2003 S.C.C.R. 676 HM Advocate v Boyle [2009] HCJAC 89; 2010 S.C.C.R. 103; 2010 J.C. 66; 2010 S.L.T. 29 HM Advocate v Snowden and Jennings [2014] HCJAC 100 HM Advocate v Tobin, 2008 G.W.D. 40–607 McPhee v HM Advocate [2005] HCJAC 137 Penman v HM Advocate, 1999 S.C.C.R. 740 Riley v HM Advocate, 1999 S.C.C.R. 644; 1999 J.C. 308; 1999 S.L.T. 1076 Smith v HM Advocate [2010] HCJAC 118; 2011 S.C.C.R. 134; 2011 S.L.T. 21 Wade and Coats v HM Advocate [2014] HCJAC 88 Walker v HM Advocate, 2002 S.C.C.R. 1036; 2003 S.L.T. 130.

Angus Robertson Sinclair was convicted of murder on 14 November 2014 after trial in the High Court at Livingston before Lord Matthews and a jury and was sentenced to life imprisonment with a punishment part of 37 years.

He appealed to the High Court against sentence on the grounds referred to in the opinion of the court.

The appeal was heard by Lady Paton, Lady Clark of Calton and Lord Malcolm.

For the appellant: Duguid QC, McCall QC, instructed by Faculty Services Ltd for AFJ Solicitors, Edinburgh.

For the respondent; The Lord Advocate (Mulholland QC).

24 March 2016 Lady Paton delivered the following opinion of the court.

LADY PATON Punishment part of 37 years

[1] On 14 November 2014, after trial at Livingston High Court, the appellant (then aged 69) was convicted of the following offences: G

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“(1) [O]n 15 and 16 October 1977 between the World’s End Public House, High Street, Edinburgh and Gosford Bay, Aberlady, East Lothian and elsewhere in Scotland you Angus Robertson Sinclair did, whilst acting along with Gordon Hamilton, born 1 March 1955, your brother in law, now deceased. . .assault Christine Eadie, born 21 February 1960, aged 17 years. . .repeatedly punch and kick her on the head and body or otherwise inflict blunt force injuries on her, bite her on the body, remove her clothing, force her legs apart, insert your penis in her anus and vagina and rape her, force her pants into her mouth, tie a ligature around her head thereby holding said pants in her mouth, bind her wrists, tie a ligature around her neck, compress her neck and asphyxiate and strangle her and did murder her, and further did steal her clothing and footwear, her handbag and contents, jewellery and personal effects, with intent to prevent law enforcement from recovering these items and did thereby attempt to pervert the course of justice; and (2) on 15 and 16 October 1977, between the World’s End Public House, High Street, Edinburgh and a field at Huntington to Coates Road, near Haddington, East Lothian and elsewhere in Scotland you Angus Robertson Sinclair did, whilst acting along with Gordon Hamilton, born 1 March 1955, your brother in law, now deceased. . .assault Helen Anne Scott, born 5 July 1960, aged 17 years. . .force her to walk barefooted into said field, forcibly remove the strap from her handbag, repeatedly punch and kick her on the head and body or otherwise inflict blunt force injuries on her, stamp on her head, remove her trousers, tights and pants, insert your penis in her vagina, rape her, force her pants into her mouth, bind her wrists, place a ligature around her neck, compress her neck and asphyxiate and strangle her and did murder her, and further did steal items of her clothing and footwear, her handbag and contents and personal effects, with intent to prevent law enforcement from recovering these items and did thereby attempt to pervert the course of justice.”

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[2] The trial judge, Lord Matthews, imposed a life sentence with a punishment part of 37 years.

Events in the appellant’s life

[3] The following events occurred during appellant’s life:

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• 7 June 1945: The appellant was born.

• 25 August 1961: The appellant (then aged 16) was convicted in Edinburgh High Court of culpable homicide. The victim was a young girl aged seven.

Lord Matthews in his report at p.2 notes: “I was told that the conviction on 25 August 1961 for culpable homicide involved his interfering with the private parts of his victim, aged seven, tying her with a ligature and strangling her.” The appellant was sentenced to ten years’ detention.

• 1968–69: The appellant (then aged 23–24) was released from custody.

• 15–16 October 1977: The appellant (then aged 32) murdered 17-year-old Christine Eadie and 17-year-old Helen Scott, in what became known as the “World’s End murders”. As detailed in the charges (para.1 above) the modus operandi included punching, kicking, biting, raping (vaginally and, in the case of one victim, anally), and strangling with a ligature. The murders remained unsolved for about 30 years.

• 1978 (ie, within a year of the 1977 murders): The appellant (then aged 33) murdered 17-year-old Mary Gallagher, using a similar modus operandi to

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that adopted in the World’s End murders, although also using a knife. The murder remained unsolved for over 20 years.

31 August 1982: The appellant (then aged 37) was convicted in Edinburgh High Court of three charges of rape, seven charges of lewd and libidinous practices, and breach of the peace. He was sentenced to life imprisonment.

He has been in prison ever since.

4 June 2001: The appellant (a life prisoner aged 56) was convicted in Glasgow High Court of the 1978 murder of Mary Gallagher. A further life sentence was imposed, with a punishment part of 15 years.

2007: The appellant was tried for the 1977 World’s End murders. The trial court sustained a “no case to answer” submission, and the appellant was acquitted.

2011: The Double Jeopardy (Scotland) Act 2011 was enacted by the Scottish Parliament, and came into force in November 2011.

27 March 2014: The High Court granted an application by the Crown under the 2011 Act (based on advances in DNA techniques) for authority to bring a fresh prosecution against the appellant in respect of the World’s End murders.

Indictment and trial for World’s End murders

[4] An indictment for the World’s End murders was served on the appellant.

The productions listed in the indictment included the following:

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• production 47: the extract conviction (1961) of culpable homicide of the seven-year-old girl • production 48: the extract conviction (1982) of rape and lewd practices • production 49: the extract conviction (2001) of the murder of 17-year-old Mary Gallagher • production 50: a certified extract of the indictment for the 1961 culpable homicide conviction • production 51: a certified extract of the indictment for the 1982 rape and lewd practices conviction • production 52: a certified extract of the indictment for the 2001 murder of Mary Gallagher.

[5] The trial began on 13 October 2014 and lasted about five weeks. Each day, the appellant appeared from custody. On 14 November 2014 the appellant, then a serving life prisoner aged 69, was convicted unanimously of charges (1) and (2), namely the World’s End murders.

[6] The Lord Advocate moved for sentence. It was not necessary to lay before the court a social enquiry report or a criminal justice social work report, as the appellant had previously served (and was obviously serving) a prison sentence. In the course of his address, the Lord Advocate advised the court of the appellant’s history, and made reference to productions 47–52, described in para.4 above. The trial judge records this part of the proceedings in his report at pp.2–4 as follows: “In moving for sentence the Lord Advocate not only tendered a schedule of previous convictions but advised me of the detail of the most significant of those in terms of the case of Riley v HM Advocate. A copy of the convictions will doubtless be with the papers. I was told that the conviction on 25 August 1961 for culpable homicide involved his interfering with the private parts of his victim, Catherine Reehill, aged seven, tying her with a ligature and strangling her. He was convicted of firearms charges on 21

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January 1980 and then on 31 August 1982 was convicted of three charges of rape, seven charges of lewd and libidinous practices and behaviour and one charge of breach of the peace. He was imprisoned for life on charges (1)–(3). The sexual charges involved young children. On 4 June 2001 at the High Court of Justiciary sitting in Glasgow he was convicted of murder.

The victim was a 17-year-old girl and the crime was committed on waste ground. He presented a knife at her, forced her onto the ground, raped her, compressed her neck, repeatedly struck her on the neck with the knife, tied a ligature around her neck and compressed her neck with it.

“He had received a determinate sentence of ten years for the culpable homicide charge and was released in 1968 or 1969 but was now serving two life sentences. I understand that the punishment part in respect of the conviction on 4 June 2001 was 15 years’ imprisonment.

“He had never spent any time in custody on remand in connection with the current case. He appeared on petition on 31 March 2005 and the case duly proceeded to trial but he was acquitted on 10 September 2007 when a submission of no case to answer was upheld. The Double Jeopardy (Scotland) Act came into force in November 2011. The Crown obtained authority for a new prosecution on 27 March 2014, largely based on new evidence as a result of DNA work which had been carried out at Cellmark.

He was reindicted in May 2014.

“For the appellant, Mr Duguid QC reminded me that many of the convictions were not previous ones but he accepted that it was appropriate that they be brought to the attention of the court. He had nothing to say about the appellant’s personal circumstances.”

[7] On 14 November 2014 Lord Matthews imposed a life sentence (a third life sentence for the appellant) with a punishment part of 37 years. In his sentencing statement, the judge said: “There was no reason for Christine Eadie or Helen Anne Scott to think that 15 October 1977 was going to be particularly eventful. To all intents and purposes they would have a pleasant Saturday night out, the sort of occasion they would look forward to enjoying for many years to come with friends and family, including perhaps children and grandchildren.

“Helen, shy and retiring and Christine more outgoing, had not long left school and started work, no doubt harbouring ambitions of moving on to greater things. It was not made clear in the evidence how Christine saw her future but we know that Helen wanted to be a children’s nurse.

“Whatever dreams they had, they turned into nightmares shortly after they left the World’s End Pub, the name of which has become synonymous with these notorious murders.

“Little were they to know that they had the misfortune to be in the company of two men for whom the words evil and monster seem inadequate.

“Unless one day your conscience, if you have one, motivates you to tell the truth, no one other than you will ever know precisely what part you and Gordon Hamilton played in these awful events. Perhaps it does not matter.

What does matter is that the girls were subjected to an ordeal beyond comprehension and then left like carrion, exposed for all to see, with no dignity, even in death.

“For them at least the nightmare is over and if they were not resting in peace before today I hope that they are now.

“The nightmare for their families and friends, on the other hand, has gone on from those first awful moments when they heard the news no one should hear until even now, 37 years later and counting. It will never end.

No one who saw the evidence of Helen’s father and sisters and Christine’s mother, as well as Helen’s boyfriend, could fail to have been moved by it.

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They are an example to us all, waiting patiently for justice while the authorities have worked tirelessly to achieve it.

“As for you, you have displayed not one ounce of remorse for these terrible deeds. The evidence in this case as well as your record, details of which have now been revealed, show that you are a dangerous predator who is capable of sinking to the depths of depravity.

I do not intend to waste many words on you. You are well aware that the only sentence I can pass is one of life imprisonment.

Before I turn to the details of that I must deal with two matters which are frankly academic.

“I certify that the offences of which you have been convicted attract the notification provisions of the Sexual Offences Act 2003. In other words you are on the so-called Sex Offenders Register but the chances of your ever having to notify the police of anything in the future are remote in the extreme.

“Secondly I direct the clerk to notify the Scottish Ministers of your conviction in terms of the Protection of Vulnerable Groups (Scotland) Act 2007.

Merely sentencing you to life imprisonment is not the limit of my duties.

The concept of parole does not sit easily with your crimes and indeed seems like an insult to the girls’ memories but none the less I have to designate a period which must pass before you can apply to be released on licence. The purpose of that period, known as the punishment part of the sentence, is to satisfy the requirements of retribution and deterrence. Whether you are ever released thereafter will not be a matter for me but for the Parole Board but I intend to make matters easy for them.

“On both charges (1) and (2) in cumulo I sentence you to life imprisonment to run from today and I fix the punishment part at 37 years.”

Appeal against sentence

[8] The appellant appeals against the punishment part of 37 years. His ground of appeal is in the following terms: “5. The punishment part of 37 years was excessive. The selection of the punishment part reflected the length of time between the date of the murders and the conviction of the accused. It appears that was the principal basis for its selection. The passage of time prior to conviction should not have been a relevant factor in determining the length of the punishment part in circumstances where the accused was not actively evading arrest and had previously been tried and acquitted (in 2007) for the current offences. The trial judge failed to take sufficient account of comparable sentences. He failed to take sufficient account of what period a judge might have recommended be served had the appellant been convicted in 1977.

Having regard to the appellant’s criminal record (in terms of s.101 and 101A of the 1995 Act), the punishment part of 37 years was excessive.”

Relevant legislation

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[9] The Criminal Procedure (Scotland) Act 1995.

“Section 101: Previous convictions: solemn proceedings (3) Previous convictions shall not. . .be laid before the presiding judge until the prosecutor moves (a) for sentence. . . and in that event the prosecutor shall lay before the judge a copy of the notice referred to in subsection (2) or (4) of section 69 of this Act. ...

(7) Where a person is convicted of an offence, the court may have regard to any previous conviction in respect of that person in deciding on the disposal of the case. . . .

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“Section 101A: Post-offence convictions etc.

(1) This section applies where an accused person is convicted of an offence (‘offence O’) on indictment.

(2) The court may, in deciding on the disposal of the case, have regard to— (a) any conviction in respect of the accused which occurred on or after the date of offence O but before the date of conviction in respect of that offence. . .

(4) The court may have regard to any such conviction. . .only if it is— (a) specified in a notice laid before the court by the prosecutor and (b) admitted by the accused or proved by the prosecutor (on evidence adduced then or at another diet. . .).”

[10] Section 101A was inserted in the Criminal Procedure (Scotland) Act 1995 by s.70 of the Criminal Justice and Licensing (Scotland) Act 2010. The commencement date for s.101A was 28 March 2011: see para.2(1) and Sched.1 to the Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No 8, Transitional and Savings Provisions) Order 2011 (SSI 2011/178), where the date of commencement for s.70 (“Disclosure of convictions and non-court disposals”) was defined, “[f]or all purposes in respect of offences committed on or after [28t March 2011]”, as 28 March 2011.

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The sentencing judge’s report to the appeal court

[11] The sentencing judge reported to the appeal court, inter alia, as follows: “It is said that the punishment part of 37 years was excessive. It is said that the principal basis for the selection of that period was that it reflected the length of time between the date of the murders and the conviction of the appellant. That is not a relevant factor in determining the length of the punishment part. The appellant was not actively evading arrest and had previously been tried and acquitted for the offences. It is said that I failed to take sufficient account of comparable sentences and failed to take sufficient account of what period the judge might have recommended he serve had the appellant been convicted in 1977.

“I had regard to the nature of these offences and the appellant’s dreadful criminal record. That included the convictions which post-dated the offences, in terms of s.101A of the Criminal Procedure (Scotland) Act 1995, as amended. I concluded that a punishment part of a period of years in the high 30s was appropriate. I could have chosen a longer period than 37 years but it did seem to me that coincidentally there was an element of real justice in the period I selected which reflected the length of time the families had had to live with the consequences of these dreadful crimes.

There was in my opinion no comparable case. I am aware that periods of 30 and 33 years’ imprisonment were not overturned on appeal in the case of Wade and Coats v HM Advocate and periods of 29 and 33 years’ imprisonment were not challenged in Snowden and Jennings, for what it is worth. As it happens the appellant is already serving two life sentences and by my calculation the period of 37 years is effectively one of just over 35 years when account is taken of the expiry date of the sentence imposed in 2001. There is no reason of which I am aware why I should take account of the period a judge might have recommended he serve had he been convicted in 1977. There are far too many imponderables to take account of that and given the later offences as well as the effect of cases such as HM Advocate v Boyle and others, it would have been unrealistic.”

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Submissions for the appellant

[12] Senior counsel for the appellant submitted that the punishment part was the longest in Scotland to date. While the case concerned the brutal and

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merciless murders of two young girls, the question was whether 37 years was necessary, appropriate, and fell within the judge’s discretion.

[13] The sentencing judge’s reasoning could be criticised in several respects.

Length of time since commission of offence

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[14] The judge’s report seemed to indicate that 37 years had been selected because 37 years had passed since the murders. If adopting that approach, the judge should have taken into account the first abortive trial in 2007, and the passage of time between 2007 and the trial in 2014 (seven years, not attributable to the appellant), and should have deducted seven years. But in any event, the passage of time since the crimes was an inappropriate consideration to take into account.

Comparable cases

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[15] It was for the High Court of Justiciary to set the parameters for punishment parts in life sentences to reflect contemporary Scotland (Boyle v HM Advocate, para.18). There should be a degree of consistency. Each case turned on its facts, but if the appellant was to receive the longest punishment part to date, there had to be some reason to distinguish his case from other cases.

[16] A punishment part of 32 (discounted from 35 for a plea of guilty) was imposed in Smith v HM Advocate. That case involved the murder of a mother and her ten-year-old daughter with several aggravating features of the kind referred to in Walker v HM Advocate, namely: (i) a child victim; (ii) a sexual assault on the child; (iii) injuries to the private parts of the mother; (iv) concealment of the bodies; and (v) a previous conviction for indecent assault resulting in a custodial sentence. If such a case attracted a starting-point of 35 years, it was difficult to justify 37 years in the present case which had none of those aggravating features.

[17] The case of Wade and Coats v HM Advocate concerned the loss of one life (not two, as here), but there had been illegal detention, torture, the cutting off of parts of a live victim’s body, and disposal of the dead body such that it was never recovered. Arguably that case involved a higher level of depravity.

The punishment parts imposed were respectively 30 years and 33 years.

[18] In his sentencing statement in HM Advocate v Snowden and Jennings in October 2015 (murder by fire of three-quarters of a family) Lord Matthews had observed that the case was “without doubt the most appalling crime I have ever been involved with in my professional career”. The two accused had masterminded a fire in which three people (one a child) lost their lives. Another person was attacked with ammonia. The punishment parts were respectively 33 years and 29 years.

[19] In HM Advocate v Tobin, the accused received a punishment part of 21 years for the murder of Angelika Kluk, and subsequently a punishment part of 30 years for a murder which had taken place prior to the Kluk murder.

[20] Further punishment parts included Beggs, Petitioner, a sexual murder in 1999 (20 years); Campbell v HM Advocate, a murder with six victims (20 years); Chalmers v HM Advocate, murder and dismemberment (23 years); Coubrough v HM Advocate, a murder in 1971 (12 years); Currie v HM Advocate, the murder of a 76-year-old woman in 1985 (18 years); McPhee v HM Advocate, a murder in 1984 (a recommendation of 25 years); Walker v HM Advocate, the shooting in 1985 of two soldiers, with aggravating factors (30 years reduced on appeal to 27).

[21] The cases cited were all examples of terrible crimes. Each turned on its particular circumstances, but if the punishment part imposed on the appellant

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was the longest of all, there had to be some justification, such as the nature of the crime, or the particular circumstances of the appellant. No appropriate justification on a comparative basis had been given.

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The appellant’s criminal record

[22] The sentencing judge had also fallen into error by taking into consideration offences which took place after the 1977 murders. The only relevant previous conviction was the one dated 25 August 1961 for culpable homicide. However the judge, in his sentencing address, referred to the appellant as “a dangerous predator”. Thus it appeared that the judge had taken into account a murder committed by the appellant in 1978 (for which he was eventually tried and convicted in 2001, and received a punishment part of 15 years); and 11 sexrelated offences committed during 1978–82. But the judge had not been entitled to do so. Although in his report the judge referred to s.101A(2) of the Criminal Procedure (Scotland) Act 1995, that provision applied only to offences committed after 28 March 2011. Accordingly the judge had erred by taking into account the offences which post-dated the 1977 murders.

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The expiry date of the punishment part imposed in 2001

[23] The sentencing judge in his report suggested that the punishment part which he had imposed was “effectively one of just over 35 years” when account was taken of the expiry date of the 2001 sentence (ie, the punishment part then imposed of 15 years, expiring in 2016). However that approach was erroneous, as the sentence imposed in 2001 was not a determinate sentence, but a life sentence.

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What a judge might have recommended in 1977

[24] Finally, the trial judge failed to take sufficient account of what period a judge might have recommended to be served had the appellant been convicted in 1977.

Conclusion

[25] For all these reasons, the appeal court must look anew at the question of a punishment part. The appeal should be allowed, the punishment part of 37 years quashed, and a lower punishment part imposed.

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Submissions for the Crown

[26] As issues of law had been raised, we called upon the Lord Advocate to offer submissions.

[27] In relation to s.101A, the Lord Advocate submitted that the common law was wider than that section, and that s.101A did not extinguish any part of the common law. Reference was made to Penman v HM Advocate; HM Advocate v Tobin; and to an illustrative example, namely an offender who committed two offences; the second offence was discovered prior to the first offence; when being sentenced for the second offence, the offender would be treated as a first offender; but when the first offence came to light, it would be an injustice if the offender were to be sentenced without having regard to the whole circumstances of his case. For the same reason, the extract convictions and indictments/complaints had been lodged in the present case, giving fair notice to the appellant that they might ultimately be referred to if he were found guilty. They were highly relevant to the sentencing process.

[28] Section 101A would allow the Crown to libel a conviction (whether previous or post-dated) in a case involving similar criminal conduct. But the

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present case was a different situation: it was simply necessary for the sentencing judge to be aware of all the circumstances, including the appellant’s current status (a lifer twice over) and the fact that he had in the past been convicted of similar offences. The 1982 conviction and the 2001 conviction demonstrated a pattern of offending. It was important for the court to take that pattern into account in the context of deterrence.

[29] Lord Emslie had taken that approach in Tobin. Vicki Hamilton disappeared on 16 February 1991. Angelika Kluk was murdered on 24 September 2006. Tobin was taken into custody, tried, and convicted of the Kluk murder on 4 May 2007. He was given a life sentence with a punishment part of 21 years. Subsequently in 2008 he was tried, and on 2 December 2008, convicted of the murder of Vicki Hamilton. It was clear from Lord Emslie’s sentencing statement that he had taken into account all the circumstances, including the Kluk case and the punishment part of 21 years. Section 101A simply offered a means whereby (after 28 March 2011) that information could be communicated to the court. The necessary information could be placed before the court as outlined in s.101A(4). But following previous procedure, the means of communication could also be a social enquiry report, oral submissions, or the Riley procedure (which had the advantage of advance notice to the accused).

[30] Reference was made to p.3 (at the foot) of the sentencing judge’s report in the present case (see the end of para.6 above). It was logical for such information to be drawn to the attention of the court, in order that it be taken into account when sentencing. The media reporting the appellant’s trial were well aware of his offending history. Judges should not be blind to information which was publicly available: such information must form part of the sentencing process. It would defy logic and common sense to have the appellant sentenced as a first offender in relation for the World’s End murders.

When selecting a sentence with deterrence in mind, the sentencing judge had to be aware of all the circumstances.

[31] The Crown’s approach in the trial had been based on Riley v HM Advocate, pp.648A–C, 650A–B, F–G (Lord Sutherland). The Crown had followed that procedure in the present case. It was accepted that the issue in Riley was whether the sentencing court could go behind the bare terms of a schedule of previous convictions, and that the decision did not directly raise the point which arose in the present case. It was also accepted that the established sentencing practice was to treat previous convictions as an aggravation of the offence for which the judge was imposing a sentence, and accordingly later crimes were irrelevant for that purpose. However Riley was in effect an expansion or development of modern sentencing practice. As was explained at p.650F, what was sought to be achieved was an “appropriate disposal. . .in the circumstances of the case”.

[32] In the present case, the relevant dates were as set out in para.3 above.

It was highly relevant for the judge in November 2014, when addressing the question of sentence in respect of the World’s End murders, to be aware of the pattern and sequence of events, including the fact that the appellant had, in the year directly following 1977, carried out such a similar attack on and murder of a 17-year-old girl (Mary Gallagher). Thus the Crown had made all the relevant information available with fair notice to the appellant by lodging the certified copy indictments and the extract convictions. The court was then aware of all the circumstances when carrying out the sentencing exercise.

Senior counsel for the appellant appeared to have accepted that approach at the trial (p.3 of the judge’s report, the end of para.6 above).

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Final response for the appellant

[33] Senior counsel for the appellant submitted that a perceived injustice, namely the possibility that an accused might be treated as a first offender twice over, had been corrected by s.101A. However s.101A only affected offences committed after 28 March 2011, and there was no provision for back-dating. That did not sit comfortably with the Lord Advocate’s position.

[34] Riley dealt with the particular question of a previous conviction, and whether the court should have more detail about that previous conviction.

[35] Penman concerned a determinate sentence, not a punishment part.

The court was therefore entitled to take into account not only retribution and deterrence, but also the protection of the public. By contrast, when dealing with a punishment part, the court was expressly directed by s.2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 not to have regard to the protection of the public: that was a matter exclusively for the parole board.

While therefore it was accepted that if subsequent offences were referred to in, say, a social enquiry report, it would be appropriate for the court to take that information into account (for example, if the accused was in prison, probation was not possible), whether such information could be used in other ways was another matter. The commission of subsequent offences should not impact on the offence for which the court was sentencing. It was not clear why postdated offences could be taken into account for the purposes of retribution and deterrence. Lord Emslie’s approach in Tobin had never been tested in the appeal court. The law prior to the 2011 Act had not been clear. Matters had only been clarified by s.101A of the 2011 Act.

B

C

D

Discussion

[36] The appellant was found guilty of assaulting, raping, and murdering two young women in 1977. Those appalling crimes demonstrated an immeasurable capacity for evil, depravity, and sadism. The suffering of the victims and their bereaved families is, in our view, incalculable.

[37] On 14 November 2014, the appellant was sentenced to life imprisonment with a punishment part of 37 years.

Length of time since commission of offence

[38] We do not accept that the sentencing judge selected 37 years because that represented the length of time which had passed since the commission of the murders. As the sentencing judge explains, he had concluded at the outset that a punishment part “in the high 30s” should be imposed. That was his assessment of the gravity of the case. As he puts it, it was only “coincidentally” that the period selected mirrored the passage of time since the murders. In the result we are not persuaded that there is any merit in this argument.

E

Comparable cases

F

[39] We accept that comparisons with other cases may, in some circumstances, be of assistance. Nevertheless each case must be decided on its facts. There is no mandatory upper or lower limit set by either statute or case law (cf, para.7 of Boyle v HM Advocate; paras. 12–15 of Smith v HM Advocate). As was further noted in Boyle, para.7: “. . . [Section 2(3A)(b) of the Prisoners and Criminal Proceedings (Scotland) Act 1993] makes it plain that the specified period may exceed the likely extent of the remainder of the prisoner’s natural life. Thus, while the statute does not empower the judge to specify a ‘whole life’ period, in

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an appropriate case a prisoner in Scotland may be sentenced to a period which in practical terms will extend until his or her death.”

[40] It seems to us that an experienced sentencing judge who has presided over the trial, heard the witnesses, and seen the labels and productions, is in the best position to decide, in his discretion, the punishment part appropriate to the circumstances of the case. An appeal court should be slow to alter such an assessment, a fortiori as other punishment parts may have been imposed in different circumstances and in a different sentencing era: cf, the observations of Lord Carloway (now Lord Justice General Carloway) in Smith, para.15. What may be regarded as an appropriate punishment part may vary from era to era.

[41] Against that background, it is our view that the present case, one of a sadistic double murder and rape of two young girls in the circumstances outlined in the judge’s report, was truly horrific. In addition, the previous conviction for culpable homicide of a young girl was a major aggravating factor. In all the circumstances, we consider that the sentencing judge was entitled, exercising his discretion in the context of retribution and deterrence, to select a punishment part at the very top of the range. We note the cases cited by senior counsel for the appellant, but bearing in mind the observations we have made in this paragraph and the two preceding paragraphs, we are not persuaded that the discretion of the sentencing judge was restricted in his selection by either statute or other cases, nor are we persuaded that the sentencing judge erred in his selection.

The appellant’s criminal record

D

E

F

G

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[42] We agree with the Lord Advocate that the common law, as it has developed over the years, is at least as wide as (if not wider than) s.101A of the 1995 Act. A judge is, at common law, entitled to have regard to all the relevant circumstances for the purposes of sentencing: it would be wholly unrealistic to suggest otherwise. Thus at common law, if an accused appears from custody throughout a trial, a sentencing judge would need to know what had given rise to such circumstances. Again at common law, if a judge is considering a non-custodial disposal such as a community payback order, information concerning convictions and disposals subsequent to the current offence might demonstrate that the accused: (a) cannot be relied upon to cooperate with a non-custodial sentence; and (b) is, in any event, the subject of a substantial custodial sentence.

[43] Thus the common law, as developed in the context of modern sentencing practice, clearly envisages that a sentencing judge should have an overall view of the accused’s life in order to be able to sentence him or her appropriately. Such an overall view may properly be obtained from oral submissions, medical reports, reports from psychologists or psychiatrists, social enquiry reports/criminal justice social work reports, and/or the production of extract convictions with certified extracts of the indictments, following the procedure suggested by Lord Sutherland in Riley v HM Advocate, pp.648A–C, 650A–B, F–G (and being the procedure adopted by the Crown in the present case).

[44] At least two authorities cited by the Lord Advocate illustrate such common law sentencing powers, namely Penman v HM Advocate and HM Advocate v Tobin.

[45] In Penman, the criminal appeal court approved the taking into account of a conviction dated 1996 (relating to criminal conduct between 1982 and 1987) when sentencing an accused in 1999 (in relation to criminal conduct between 1966 and 1976). We accept that the sentencing judge in that case had

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221

regard to retribution, deterrence, and risk to the public, whereas the judge in the present case was concerned with deterrence and retribution but not risk to the public (s.2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993). Nevertheless we consider that the court’s observations, particularly at p.745, give guidance. Thus in the present case, the convictions of 1982 and 2001 were proper and relevant matters for the sentencing judge to take into account at common law.

[46] In Tobin, the sequence of events was as follows:

A

• 16 February 1991: Tobin murdered Vicki Hamilton • 24 September 2006: Tobin murdered Angelika Kluk • 4 May 2007: Tobin was convicted of the murder of Angelika Kluk and given a punishment part of 21 years • 2 December 2008: Tobin was convicted of the murder of Vicki Hamilton and given a punishment part of 30 years.

B

When sentencing Tobin in 2008 for the murder of Vicki Hamilton, the sentencing judge (Lord Emslie) was, at common law, entitled to take into account the whole circumstances of the case, including Tobin’s current status as a prisoner serving a life sentence; the reason for that status; and the details of his offending history including the punishment part of 21 years for the murder of Angelika Kluk (which occurred chronologically after the murder of Vicki Hamilton). Had a social enquiry report been necessary (which it was not), that report would have revealed those details. While in terms of s.2(2) of the 1993 Act, the sentencing judge was not to take into account risk to the public, nevertheless the judge was entitled to have regard to the whole circumstances of the case.

[47] It is our opinion therefore that s.101A merely reflects the current common law position, as it has developed, and does not detract from or limit existing common law sentencing powers. Section 101A also provides a procedural route for giving appropriate notice to the court and to the accused (cf, Renton and Brown’s Criminal Procedure Legislation, para.A4–228.6).

[48] Against that background, the judge’s reference to s.101A was unnecessary, as the murders for which he was sentencing the appellant occurred before 2011. However the approach which he adopted did not demonstrate any error or departure from common law sentencing powers as they have developed. As we have already indicated, the judge was faced with the double murder of young women on the threshold of life, in a brutal and sadistic attack. The circumstances of the offence justified a punishment part at the top of the range. In addition, there was the previous conviction of the appellant (then aged 16 years) for an offence of culpable homicide only eight years previously, the victim being a young girl aged seven who had been sexually interfered with, for which offence the appellant had been sentenced to ten years’ detention—all justifying the judge’s description of him as a “dangerous predator”. Those matters, set within the pattern of the appellant’s life to the date of the current sentencing, were entirely relevant and to be taken into account by the sentencing judge.

[49] We therefore reject the arguments relating to the appellant’s criminal record.

C

D

E

F

The expiry date of the punishment part imposed in 2001

[50] As for the judge’s reference at p.25 of his report to “the expiry date of the sentence imposed in 2001” (ie, a previous life sentence with a punishment

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part of 15 years imposed for the rape and murder of another young woman), we note that the reference is prefaced by the words “As it happens”. Properly construed, the judge was, in our view, indicating that he had selected the period of 37 years, and following upon that selection, made the observation concerning the 2001 sentence. We do not accept that the reference to the expiry date of the 2001 punishment part made any significant contribution to the judge’s selection of 37 years.

What a judge might have recommended in 1977

[51] We do not accept that the sentencing judge was obliged to carry out some sort of retrospective assessment of what a sentencing judge in 1977 might have recommended, had the appellant been convicted at that time. The sentencing of the appellant should not be based on such a hypothetical, theoretical or speculative exercise: rather it is a matter to be assessed at the time of his conviction, when all the relevant circumstances can be taken into account. Accordingly we reject this argument.

Conclusion

[52] In the result we are not persuaded that the judge erred.

Decision

[53] For the reasons given above, we refuse the appeal against sentence.

COMMENTARY D

This case effectively characterises s. 101A as merely declaratory, and may be seen as the final nail in the coffin for any suggestion that previous convictions are relevant because they are aggravations of the offence charged, a process which may be seen to have begun with the introduction of what were once called probation reports.

E

F

G

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A

SUMMARY Haugen v HM Advocate—[2015] HCJAC 121—4 December 2015 Life sentence—Punishment part—Frenzied knife attack—Whether punishment period of 22 years excessive B The appellant pled guilty to murder at an accelerated diet, having killed a person with whom he had been in dispute for some time. The incident occurred following an argument in the appellant’s house, and the deceased was stabbed 27 times with a kitchen knife. The appellant was sentenced to life imprisonment with a punishment part of 19 years, reduced from 22 to take account of the plea, and appealed to the High Court.

In delivering the opinion of the court allowing the appeal (the Lord Justice Clerk (Carloway), Lord Bracadale and Lord Malcolm) the Lord Justice Clerk said: ...

[5] The appellant’s personal circumstances were that he was 41 years of age; he is single and worked as a service delivery driver at the airport. He had previously been in the Army for some 16 years, and undertook tours in Northern Ireland and Iraq. He had left the Army in 2013 as a result of a hearing disability. He continued to serve in the Territorial Army. He had minor previous convictions for road traffic offences. There was no suggestion that he had any mental health problems. He had expressed some remorse at what he had done, especially relative to the effect which the deceased’s death would have had on her young daughter.

[6] There is no doubt that, as the judge reports, this was a “frenzied attack of a most brutal nature”, which required the imposition of a substantial punishment part attached to the life sentence. However, as was submitted in the course of the appeal, the appellant has no significant criminal record. The murder was not premeditated, nor did it involve taking a weapon into the public arena. The appellant made no attempt to conceal the crime and telephoned the police shortly after the incident. There were no other offences involved with the crime. There was a degree of remorse expressed.

[7] Having regard to HM Advocate v Boyle, [[2009] HCJAC 89; 2010 S.C.C.R. 103;] 2010 J.C. 66 [; 2010 S.L.T. 29], the court agrees with the submission, which was broadly put, that the headline sentence of 22 years was excessive. The court will allow the appeal, take as its starting-point a punishment part of 19 years and discount that to one of 16 years.

C

D

E

For the appellant: Jackson QC, instructed by Paterson Bell, Solicitors, Edinburgh.

For the respondent: McSporran AD. F

G 223

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A

S U M M A RY A A v HM Advocate—[2016] HCJAC 17—12 February 2016 Bail—Bail appeal—Appeal against sheriff ’s refusal of bail brought in High Court after preliminary hearing—Whether appropriate B

C

D

The appellant was fully committed and refused bail. He subsequently appeared at a preliminary hearing when his trial date was postponed and the 140-day time bar extended. He did not apply for bail at that hearing but subsequently he purportedly appealed against the original refusal of bail and his appeal was refused by the Sheriff Appeal Court. He then lodged an appeal against that refusal in the High Court. In delivering the opinion of the court (the Lord Justice General (Carloway), Lord Brodie and Lord Drummond Young) refusing the appeal, the Lord Justice General said: ...

[7] Where an indictment has been served, citing an accused to a preliminary hearing in the High Court, once that diet has called, the appropriate court to decide any applications for bail is that court. That is because it is inevitable that that court will be apprised of all the relevant information relative to the progress of the case. It is therefore not appropriate to revert to the sheriff once the case has called in the High Court. It follows that the procedure to appeal the original sheriff’s decision on bail, after the calling of the preliminary hearing, was inappropriate, as was also the procedure which has followed thereon. If an accused person wishes to seek bail upon a trial diet being fixed at a preliminary hearing, he should seek that from the preliminary hearing judge.

For the appellant: MacIntosh, instructed by John Pryde & Co, S.S.C. for Turnbull McCarron, Solicitors, Glasgow.

For the respondent: Prentice QC, AD.

E

F

G 224

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A

SUMMARY Liam Murphy (Procurator Fiscal, Aberdeen) v Tariq—[2016] SAC (Crim) 4—12 January 2116 Summary procedure—Adjournment—Case not heard at two diets after evidence taken from one complainer—Whether sheriff entitled to refuse further fortnight’s adjournment The respondent was charged with assaulting his wife and son. The first trial diet, which called on 25 June 2015 and was presided over by a part-time sheriff, was adjourned for lack of court time for about five weeks. The first complainer’s evidence was heard at the adjourned diet which was then adjourned for a further month. That diet and a subsequent diet were adjourned because of the absence of the sheriff who was hearing the case. At the subsequent diet on 14 October 2015 the sheriff refused to adjourn the diet for a further fortnight and acquitted the respondent.

The Crown then appealed to the Sheriff Appeal Court by bill of advocation.

In delivering the opinion of the court (Sheriff Principal Scott (Vice-president), Sheriffs Becket and Lockhart) allowing the appeal, Sheriff Principal Scott said: ...

B

C

Discussion

[34] Whilst it may be that we have some sympathy for the sheriff who presided on 14 October 2015 having regard to the situation in which she found herself, we are unable to agree with her decision on that date or with the basis upon which she arrived at that decision.

[35] It would appear that, when it came to the “cardinal questions” to be addressed (see LJ-G Emslie in Skeen [v McLaren, 1976 S.L.T. (Notes) 14]) by the court, the sheriff’s approach was somewhat confused. In our view, it was not, as the sheriff put it, “. . .a question of fairness and balancing the interests of the respondent against the public interest in prosecuting the case to its conclusion”.

[36] The three clear and distinct elements to be considered by the court, viz. prejudice to the prosecutor, prejudice to the accused and prejudice to the public interest were highlighted by the court in Paterson [v McPherson [2012] HCJAC 61]. Accordingly, we are not satisfied that the sheriff, in arriving at her decision, had proper and accurate regard to the particular interests involved.

[37] In any event, we consider that the sheriff either misdirected herself “as to the extent or consequences of the prejudice to be suffered” or erred when balancing the prejudice likely to arrive from her decision to refuse an adjournment. She attached significance to the special bail conditions. We agree with the advocate-depute’s contention that this was no more than a marginal feature where the proposed date for the continued trial was two weeks later. Similarly, and particularly in the context of where the Crown case stood evidentially, we are doubtful that the requirement for the accused’s son to give evidence ought to have attracted the weight given to it by the sheriff.

[38] In contrast, there were certain important factors which the sheriff failed to give consideration to. It was, in our opinion, very significant that the first Crown witness having given evidence had implicated the respondent when it came to each of the charges. A refusal to adjourn meant that the Crown were materially prejudiced in that they were denied the potential for

D

E

F

G

225

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226 A

B

C

D

Murphy v Tariq (Sy)

2016 S.C.C.R.

using the wife’s testimony along with other evidence in the case to ensure that, at the very least, the respondent had a case to answer upon the conclusion of the Crown evidence.

[39] Of course, the other Crown evidence was to include that of the respondent’s son. The third charge alleges that the respondent had assaulted his son on various occasions over a three-month period and that “. . .he did strike him on the head and body”. In this context, the sheriff’s reference to “a child witness” being “required again” is ill-conceived.

[40] In the sense that the child witness, his son, might give evidence supporting the libel, the respondent might be “prejudiced”. However, we do not regard that as a tenable or relevant consideration. In all other respects, the son being required to give evidence gave rise to no prejudice quoad the respondent. (In any event, we were advised that on the occasion of the two previous trial diets, steps had been taken in advance to avoid the son’s attendance at court.)

[41] However, the balancing exercise undertaken by the sheriff, in our view, failed to recognise that the public interest would be prejudiced where serious allegations of assaults upon a young child would be wholly undermined by a refusal to adjourn in circumstances where all the evidence led thus far in the trial served to confirm those allegations. There was no suggestion that the son was not prepared or was reluctant to testify. Insofar as the sheriff placed weight upon the son being required as a witness “again” we cannot conceive that such a factor properly outweighed the more obvious interest in providing the son with the opportunity to testify, to corroborate his mother’s evidence and to substantiate the allegations regarding him having been assaulted by his father.

[42] A third important factor concerned the minimal further delay of two weeks. The sheriff makes no reference to this in her report. At the very least, she ought to have explained why this particular factor failed to attract any weight as far as she was concerned. In our opinion, as the advocate-depute submitted, the overall procedural passage of time was entirely proportionate for summary proceedings and the passage of time since the events libelled was not necessarily excessive. Therefore, the very short period of continuation involved ought to have weighed heavily with the sheriff.

Decision

E

F

[43] Accordingly, whilst this was, indeed, a discretionary decision by the sheriff, we regard ourselves as entitled to interfere with that decision. We are satisfied that the sheriff misdirected herself as to the nature of the interests to be considered where determining such a motion. Moreover, in our view, the “weighty grounds” desiderated by Lord Cameron in the case of Tudhope [v Lawrie, 1979 J.C. 44; 1979 S.L.T. (Notes) 13] were noticeably absent.

Therefore, the balancing exercise carried out by the sheriff was flawed. The circumstances facing the court when called upon to consider the motion for an adjournment comfortably suggested that the prejudice to be suffered by the Crown and by the public interest far outweighed any prejudice affecting the respondent.

[44] In the whole circumstances, therefore, we have passed the bill of advocation. The matter has been remitted back to the trial sheriff at Aberdeen Sheriff Court with the request that he proceed as accords all with a view to achieving an expeditious conclusion to the trial.

For the complainer: Goddard AD.

G

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For the respondent: Mackenzie, instructed by Faculty Services, Edinburgh.

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Scottish Criminal Case Reports Edited by Sir Gerald H Gordon CBE, QC, LLD

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