Scottish Criminal Case Reports, Issue 6, December, 2016 by Thomson Reuters

Compatibility issue Statement of uncontroversial evidence—Whether compatible with European Convention on Human Rights Ashif v HM Advocate 437

Road traffic—Causing serious injury by dangerous driving— Falling asleep at wheel—Whether community payback order excessive Burke v Laing (Sy) 585

Contempt of court Failure to appear as witness—Whether can be purged by subsequent appearance Lyons v Fraser (Sy) 584

Solemn procedure Judge’s charge—Prior inconsistent statements—Failure to direct jury on limited purpose for which statements can be used Moynihan v HM Advocate 548

Fresh evidence—Whether fresh evidence strengthens Crown case substantially or is highly likely to lead to conviction HM Advocate v Coulter 464 Evidence Admissibility—Preliminary decision that no evidence of informal identification parade should be led at trial— Whether applied to defence as well as to Crown—Witnesses spontaneously naming and pointing out accused in dock— Whether trial unfair McMultan v HM Advocate 496 Corroboration—Mutual corroboration—Charges 24 years apart—Whether Moorov doctrine applicable HM Advocate v ER 490

Sentence Guidance—Health and Safety—Use of English Guidelines Scottish Power Generation Ltd v HM Advocate 569 Health and Safety—Failure by large company to maintain machinery causing severe injury—Whether starting-point of £2,500,000 excessive Scottish Power Generation Ltd v HM Advocate 569 Order for lifelong restriction—Rape by person with bad record—Whether starting-point of 17½ years and nine year punishment part excessive Moynihan v HM Advocate 548

*657940*

Statement of uncontroversial evidence—What statements appropriate Ashif v HM Advocate 437 Stated case Appeal against refusal of submission of no case to answer— Requirements of stated case Brown v McPherson 564 Statutory offence Threatening messages—Whether text of message requires to be objectively of menacing character Brown v McPherson 564 Verdict Charges arising out of same facts—Charges of assault by striking with and being in possession of block of wood— Whether incompetent Laughlan v Harrower 544 Warrant Search warrant—Warrant to search for and seize documents held by solicitor and covered by legal privilege—No notice of application for warrant given to solicitors—What actions of applicant for warrant oppressive Clyde and Co. (Scotland) LLP v Richardson 480 Whether competent for single High Court judge to suspend sheriff ’s search warrant ad interim Clyde and Co. (Scotland) LLP v Richardson 480 Words—“Dock identification” McMultan v HM Advocate

2016 S.C.C.R. 437–586

Extradition Compatibility of prison conditions with Convention rights—Special conditions for fugitive intended to ensure compatibility with right to protection from inhuman or degrading treatment—Normal prison regime in requesting territory not compliant with this right—Whether extradition compatible with human rights Dean v Lord Advocate 499

Judge’s charge—Prior inconsistent statements—Failure to direct jury on limited purpose for which statements can be used—Whether failure to direct on inconsistent statement misdirection leading to miscarriage of justice O’Neill v HM Advocate 558

SCOTTISH CRIMINAL CASE REPORTS

Double jeopardy Charge of assault and murder—Accused convicted under deletion of averments of murder—Whether acquitted of murder HM Advocate v Coulter 464

December 2016 2016 S.C.C.R. 437−586

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

496

Ashif v HM Advocate 437 Brown v McPherson 564 Burke v Laing (Sy) 585 Clyde and Co. (Scotland) LLP v Richardson 480 Dean v Lord Advocate 499 HM Advocate v Coulter 464 HM Advocate v ER 490

Laughlan v Harrower Lyons v Fraser (Sy) McMultan v HM Advocate Moynihan v HM Advocate O’Neill v HM Advocate Scottish Power Generation Ltd v HM Advocate

544 584 496 548 558 569

The Scottish Criminal Case Reports are published by Thomson Reuters (Professional) UK Limited trading as W Green, 21 Alva Street, Edinburgh, EH2 4PS (Registered in England & Wales, Company No 1679046. Registered Office and address for service: 2nd floor, 1 Mark Square, Leonard Street, London, EC2A 4EG). Typeset by LBJ Typesetting Ltd. Printed and bound in Great Britain by Hobbs the Printers Ltd, Totton, Hampshire. No natural forests were destroyed to make this product: only farmed timber was used and replanted. ISSN 0263-2381 Orders to: W. Green, PO Box 1000, Andover, SP10 9AF. Tel: 0345 600 9355. Email: TRLUKI.orders@thomsonreuters. com. Individual back issues of the Scottish Criminal Case Reports are available for the years 1986-2015. The views expressed in the commentaries to the Scottish Criminal Case Reports are those of the contributors and not necessarily those of the Law Society of Scotland. Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queenâ&#x20AC;&#x2122;s Printer for Scotland. Crown Copyright legislation is reproduced under the terms of Crown Copyright Policy Guidance issued by HMSO. All rights reserved. No part of this publication may be reproduced or transmitted in any form, or by any means stored in any retrieval system of any nature, without prior written permission, except for permitted fair dealing under the Copyright, Designs and Patents Act 1988, or in accordance with the terms of a licence issued by the Copyright Licensing Agency in respect of photocopying and/or reprographic reproduction. Application for permission for other use of copyright material, including permission to reproduce extracts in other published work should be made to the publishers. Full acknowledgment of the author, publisher and source must be given. Thomson Reuters and the Thomson Reuters Logo are trademarks of Thomson Reuters. ÂŠ 2016 Law Society of Scotland

A Appeal From First Diet

20 March 2014

MOHAMMED ASHIF ALIAH ASHRAF

Appellants

against HER MAJESTY’S ADVOCATE

Respondent

[2015] HCJAC 100 Compatibility issue—Statement of uncontroversial evidence— Whether compatible with European Convention on Human Rights, art.6(1), (2), (3)(d) Solemn procedure—Statement of uncontroversial evidence—What statements appropriate—Criminal Procedure (Scotland) Act 1995 (c.46), s.258

Solemn procedure—Statement of uncontroversial evidence— Challenge to statement as unjustified—Whether onus on challenger to show unjustified—Criminal Procedure (Scotland) Act 1995 (c.46), s.258(4A)—Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), s.16 Solemn procedure—Statement of uncontroversial evidence— Challenge to statement as unjustified—Duty of counsel making challenge—Criminal Procedure (Scotland) Act 1995 (c. 46), ss.257, 258(4A)—Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), s.16 Counsel—Duty of counsel—Duty to agree uncontroversial matters— Statement of uncontroversial evidence—Challenge to statement as unjustified—Duty of counsel making challenge—Criminal Procedure (Scotland) Act 1995 (c.46), ss.257, 258(4A)—Criminal Procedure (Amendment) (Scotland) Act 2003 (asp 5), s.16 Article 6 of ECHR provides the accused with a right to a fair trial, to the presumption of innocence (art.6(2), and to examine witnesses against him (art.6(3)(d)). Section 257 of the Criminal Procedure (Scotland) Act 1995 provides that parties who are legally represented shall identify any facts which they seek to prove and which they consider unlikely to be disputed and in proof of which they do not wish to lead oral evidence, and take all reasonable steps to secure the agreement of the other parties, and that the other parties shall take all reasonable steps to reach such agreement. Section 258 of the Act, as amended by s.16 of the Criminal Procedure (Amendment) (Scotland) Act 2004, provides that where a party considers that facts which he would otherwise be seeking to prove are unlikely to be disputed by any other party he may serve on the other parties a statement specifying the facts concerned, and that unless a party serves a notice challenging any fact specified in the statement, it shall be deemed to have been conclusively proved.

437

5344.indd 437

07/12/16 4:54 PM

438 A

5344.indd 438

Ashif v HM Advocate

2016 S.C.C.R.

Section 258(4A) of the Act provides that the court may, on the application of any party, direct that any such challenge is to be disregarded if the court considers it to be unjustified. The appellants were charged with obtaining money by forming a fraudulent scheme involving the invention of fictitious relatives of persons whose estates were being administered the Queen’s and Lord Treasurer’s Remembrance and claiming the estates in those fictitious names. The Crown served on the appellants a statement of uncontroversial evidence which listed 68 alleged facts, including statements that bank accounts were opened in the names of various persons, and assertions as a fact that certain documents were false, that each of the deceased had no relative of the name in which the claim was made on the estate and that any claim in that name upon that estate was “fraudulent”, matters which the court described as “go[ing] to the species facti of the crime libelled and, in relation to the alleged fraudulence, go[ing] to the guilt of the appellants”. The appellants challenged the statement and contended that s.258(4A) was incompatible with their right to silence and with ECHR, and was accordingly ultra vires. The challenge was debated at a first diet and the appellants declined to explain why they had been instructed to make it. The presiding sheriff held that the onus was on the appellants to show unjustifiability and that they had failed to do so, and repelled the challenge without calling on the Crown. The appellants then appealed to the High Court. In that appeal the Crown conceded that the onus was on them, and also stated that they no longer insisted on the statements mentioned above, and the Dean of Faculty contended that counsel were obliged to carry out their clients’ instructions. Held (1) that the restriction to represented accused in s.257 could not be read into s.258 (para.38); (2) that s.258 should not be invoked to concuss the defence into admitting facts of which the defence may reasonably put the Crown to the proof (para.41); (3) that the true interpretation of the section is that it seeks to establish, as conclusively proved, facts which the accused cannot reasonably refuse to agree (para.42), and that it is open to the defence in any such case to submit that notwithstanding the appearance of things the apparently indisputable evidence is truly in controversy, and that in that event the section provides an ample safeguard for the interests of the accused (para.44); (4) that the right to silence is far from absolute (paras 47, 48, 85), and that, most importantly, in contemporary practice the accused must lodge a defence statement under section 70A of the 1995 Act (para.49); (5)(i) that subs.(4A) does not infringe the right to silence at all, that it does not compel the accused to say anything, still less to incriminate himself, that it provides a mechanism by which evidence that is truly uncontroversial can be held to be proved and leaves the accused free to decline to agree the relevant evidence, that if he declines, he has the opportunity to challenge the statement, and that he may, for example, have the reasonable response that the facts alleged are significant and are outwith his knowledge; or that the facts alleged are incompatible with his line of defence; or in an extreme case, which this case may be, that the statement requires him to agree that the facts alleged constitute the crime libelled, that if the challenge fails, certain evidential consequences may follow; but that in relation to those there are the safeguards for the accused’s position. (para.54); (ii) that the proposition that the accused is entitled in every case to put the Crown to the proof of every detail of its case would be sustainable only if the interests of the accused were in all respects paramount, but that that is not so, that the Crown has its rights, and that if defence tactics needlessly impede the Crown’s presentation of the facts, there is a serious risk that the jury will be unable to give a true verdict on the evidence (para.56), and that other legitimate interests are at stake in a criminal trial, such as the general public interest in the

07/12/16 4:54 PM

2016 S.C.C.R.

Ashif v HM Advocate

439

efficient and expeditious conduct of prosecutions, and in the maintenance of public confidence in the system of criminal justice, the legitimate public interest in the avoidance of needless expense to the court administration and to the Scottish Legal Aid Board, and the avoidance of dislocation of the court timetable, and that there are also the legitimate interests of jurors in being spared the ordeal of a trial that is needlessly prolonged (paras 57, 77, 86); (iii) that it is reasonable for the Parliament to seek to strike a balance between these disparate interests so long as the accused does not at the end of the day receive an unfair trial, that in considering that question, the court must bear in mind that in the aftermath of the Human Rights Act 1988 and s.57 of the Scotland Act 1998, the question now is whether, looked at in its entirety, the trial is fair to the accused overall (para.58), and that it is not in the interests of good order in society if a trial of needless length places burdens upon the state and third parties in terms of time and money, and puts justice at risk (para.59), that it is reasonable that legislation should provide a procedure by which, in advance of the trial, a fact that seems bound to be proved in the normal course of the prosecution can be deemed to be conclusively proved, provided always that there are adequate safeguards for the interests of the accused (para.59); and (iv) that there is no reason why an accused person should have the liberty not to admit a fact as to which he cannot reasonably withhold his agreement, that not to admit such a fact is obviously inconsistent with the accusedâ&#x20AC;&#x2122;s duty in terms of s.257(1), that the right to silence should not mean that the accused can fold his arms and prolong a prosecution in the off chance that a witness will abscond or that the prosecutor will make a blunder, or in the hope that the sheer volume of formal evidence will leave the jury weary or bewildered, that such a strategy is not in the interests of justice, and that fairness to the defence is adequately secured by, among other things, the right of the accused not to incriminate himself, the right to cross-examine witnesses led against him, the placing of the burden of proof on the prosecution, and the demanding nature of the standard of proof (para.60); (v) that s.258(4A) is a reasonable constraint upon the right of the accused to put the Crown to the proof in relation to factual matters, and that it is consistent with the spirit of our law to encroach upon the passivity of the accused to the extent that it does not render the trial unfair (para.61); (vi) that in any event, the right to cross-examine envisaged by art.6(3)(b) need not be exercised only at the stage of trial, that the defence could precognosce witnesses in preparation for a hearing on an application under subs.(4A) and that, if the relevant witness was uncooperative, that might be justification in itself for a challenge, but the defence also have the means of compelling a witness to be precognosced on oath (para.64); and (vii) that therefore the enactment of s.16 of the Criminal Procedure (Amendment) (Scotland) Act 2004, by which s.258(4A) was introduced, was within the vires of the Scottish Parliament (para.66); and appeals against refusal of devolution minutes refused (para.74); (6) that the sheriff states that after counsel for the appellants offered no detailed justification for their challenges to the statement, he â&#x20AC;&#x153;had no difficultyâ&#x20AC;? in granting the Crown application, that he made that decision on the erroneous understanding that the onus in s.258(4A) lay with the defence and he therefore did not hear the Crown on the question whether any individual fact alleged in the statement was unlikely to be disputed, and that he decision therefore could not stand (para.75); and (7) that as the Lord Advocate had tendered a revised version of the statement which omitted much of the original, the appeal should be allowed and case returned to the sheriff for a hearing on the revised statement (para.75). Observed by the Lord Justice General that the statement rested on an obtuse misunderstanding of the section, in that (i), it did not deal solely with facts that are prima facie uncontroversial, but called on the accused to admit facts that go to the heart of the case, namely facts that constitute part of the species

5344.indd 439

07/12/16 4:54 PM

440 A

Ashif v HM Advocate

2016 S.C.C.R.

facti of the indictment and are inconsistent with the appellants’ pleas, and that, worse still, it put forward as a fact the proposition of law that the transactions were “fraudulent”, which was the essence of the libel (para.68); (ii) that the lodging of the statement in its original terms demonstrated the dangers to which an imperfect understanding of the section could lead, and pointed to the need for vigilance on the part of the defence lest the Crown should make a similarly ill-judged attempt to secure an admission by the accused of matters that were outwith the purview of the section (para.69); and (iii) that in taking the accused’s instructions on responding to a statement of uncontroversial evidence counsel will have to make a difficult and discerning professional judgment, that it is conceivable that a client who instructs counsel to challenge a statement of uncontroversial evidence on the basis that he intends to put the Crown to the proof of its entire case may have a good and sufficient reason for doing so, in which case counsel will be justified in acting according to that instruction, that on the other hand, the reality may be that the client is seeking to achieve exactly what ss.257 and 258 are intended to prevent, such an instruction will be a breach of the accused’s statutory duty under s.257(1) to take all reasonable steps to reach the agreement of evidence to which s.257 refers, and that it is not part of counsel’s duty that he should carry out an instruction of that kind (paras 73, 87). Observed by the Lord Justice Clerk that although s.258 is headed “Uncontroversial evidence”, it was actually about uncontroversial fact and that what therefore requires to be stated is fact, not evidence (para.79). Observed by Lord Eassie that at the stage of framing the statement the drafter has to form some view of the likely response by the defence and might therefore reasonably think that in the peculiar circumstances of a given case a matter going to the species facti might be agreed by the defence, that in some, but by no means all, cases in which self-defence is advanced the prosecutor may, at this first stage, envisage that the nature of the injuries suffered by the complainer or deceased might not be controversial, but that different considerations applied at the later stage when the court was required to consider whether the Crown had shown that the challenge was not justified, that it was difficult to conceive of circumstances in which a court could properly exercise its power under s.258 to override a challenge to a statement of a fact forming part of the species facti; but that that was not to say that they might [not] arise in a very exceptional case, that a useful, general, parameter within which a judge might give consideration to the exercise of the power under subs.(4A) was that the matters to be held proved were simply part of the general setting of the case and that within that parameter, a useful test was whether in the absence of some unlikely procedural mishap the suggested undisputable aspect of the setting or context would inevitably be proved; and, if so, whether the accused could not reasonably insist on their being proved by the normal evidential rules (para.82). Observed by Lord Clarke that it was to be very much hoped that future attempts to secure admissions beyond the scope of the section would be avoided and that any such application in terms of s.258(4A), if granted, would not only be outside the law, but would be likely to amount to a clear breach of the accused’s basic right to a fair trial (para.88). Beattie v Scott, 1990 S.C.C.R. 296; 1990 J.C. 320; 1991 S.L.T. 110 and Gemmell v HM Advocate [2011] HCJAC 129; 2012 S.C.C.R. 176; 2012 J.C. 223; 2012 S.L.T. 484 distinguished. Cases referred to in the opinions of the judges:

5344.indd 440

Al-Khawaja v United Kingdom [2011] ECHR 2127; (2012) 54 E.H.R.R. 23 Anderson v HM Advocate, 1996 J.C. 29; 1996 S.L.T. 155 Barclay v HM Advocate [2012] HCJAC 47; 2012 S.C.C.R. 428; 2013 J.C. 40; 2012 S.L.T. 855 Batchelor v Pattison (1876) 3 R. 914 Beattie v Scott, 1990 S.C.C.R. 296; 1990 J.C. 320; 1991 S.L.T. 110

07/12/16 4:54 PM

2016 S.C.C.R.

Ashif v HM Advocate

441

C v HM Advocate [2012] HCJAC 139; 2012 S.C.C.R. 702; 2013 J.C. 99; 2013 S.L.T. 27 Cadder v HM Advocate [2010] UKSC 43; 2010 S.C.C.R. 951; 2011 S.C. (U.K.S.C.) 13; 2010 S.L.T. 1125 Du Plooy v HM Advocate, 2003 S.C.C.R. 640; 2005 1 J.C. 1; 2003 S.L.T. 1237 GĂ¤fgen v Germany [2010] ECHR 759; (2011) 52 E.H.R.R. 1 Gemmell v HM Advocate [2011] HCJAC 129; 2012 S.C.C.R. 176; 2012 J.C. 223; 2012 S.L.T. 484 HM Advocate v AB [2012] HCJAC 13; 2012 S.C.C.R. 336; 2012 J.C. 283 Hughes v Dyer [2010] HCJAC 33; 2010 S.C.C.R. 492; 2010 J.C. 203 LucĂ v Italy [2001] ECHR 124; (2003) 36 E.H.R.R. 46 Montgomery v HM Advocate, 2000 S.C.C.R. 1044; 2001 S.C. (P.C.) 1; 2001 S.L.T. 37 Murray v The United Kingdom [1996] ECHR 3; (1996) 22 E.H.R.R. 29 R v Director of Serious Fraud Office, ex parte Smith [1992] 3 W.L.R. 66; [1992] 3 All E.R. 456 R v Farooqi [2013] EWCA Crim 1649 R v Jisl [2004] EWCA Crim 696 Sadak v Turkey [2001] ECHR 479; (2003) 36 E.H.R.R. 26 Saunders v United Kingdom [1996] ECHR 65; (1997) 23 E.H.R.R. 313 Woodside v HM Advocate [2009] HCJAC 19; 2009 S.C.C.R. 350; 2009 S.L.T. 371. Mohammed Ashif and Aliah Ashraf were charged on indictment with fraud in the terms described in the opinion of the court. They challenged a statement of uncontroversial evidence served on them by the Crown and on 29 October 2012 at Glasgow Sheriff Court Sheriff Ritchie QC repelled the challenge as unjustified. The appellants appealed to the High Court against that decision on the grounds referred to in the opinion of the court. On 13 February 2013 the appeal was remitted to a court of seven judges and the Dean of Faculty and the Law Society were invited to make written representations if so advised. The appeal was heard on 26 and 27 March 2013 by the Lord Justice General (Gill), the Lord Justice Clerk (Carloway), Lord Eassie, Lord Clarke, Lady Dorrian, Lord Malcolm and Lord Tyre. For the first appellant: Jackson QC, McLaughlin, instructed by G Sweeney & Co, Solicitors, Glasgow. For the second appellant: Targowski QC, Macleod, instructed by Patrick Campbell & Co, Solicitors, Glasgow. For the respondent: The Lord Advocate (Mulholland QC), Lawrie. For the Faculty of Advocates (with leave of the court): The Dean of Faculty (Keen QC), Wolffe QC, C Smith.

On 20 March 2014 the following opinions were delivered. LORD JUSTICE GENERAL Introduction

[1] This is an appeal against a decision of a sheriff at Glasgow dated 29 October 2012 by which he held that the challenge by the appellants to a statement of uncontroversial evidence tendered by the Crown was unjustified. The issue in this appeal is whether s.258(4A) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) relating to uncontroversial evidence is compatible with art.6 of the ECHR.

5344.indd 441

07/12/16 4:54 PM

442 A

Ashif v HM Advocate (Lord Justice General)

2016 S.C.C.R.

The indictment

[2] The appellants have been indicted in Glasgow Sheriff Court on a charge of fraud. It is alleged that they formed a fraudulent scheme to obtain monies from the Queen’s and Lord Treasurer’s Remembrancer (Q&LTR). The essence of the alleged scheme is that the appellants invented fictitious relatives of four persons whose estates were being administered by the Q&LTR, claimed the estates in those fictitious names and thereby obtained substantial sums of money. B

The problem of uncontroversial evidence

[3] It is notorious that over the last 20 years the average length of trials on indictment has increased substantially. There are many reasons for this; but one reason is undoubtedly the defence strategy in complex cases of putting the Crown to the proof of every piece of evidence in the case. In current practice what is described as an exercise of the so-called right to silence in a typical fraud case involving the production of thousands of documents can prolong the trial by a matter of weeks or even months. [4] Such cases take up scarce public resources and add to the administrative burdens of the court. The cost of trials of inordinate length is not to be measured solely in terms of time and money. The protracted process of proving a multiplicity of documents causes inconvenience to witnesses and jurors and puts the integrity of the trial at risk. [5] The problem can be avoided, or at least greatly reduced, if the accused formally accepts that those documents that are not in controversy are what they bear to be or that uncontroversial factual matters are to be held as proved. However, the reluctance of accused persons or their representatives to proceed in this way has necessitated legislation. The primary contention for the appellants is that the legislation, in restricting the right of the accused to put the Crown to the proof of facts that he is in no position to dispute infringes the accused’s right to a fair trial under article 6 of the Convention. That raises a question as to the true scope of the right to silence. There is also a question as to the extent of counsel’s duty to carry out his client’s instructions. The Criminal Justice (Scotland) Act 1980 (the 1980 Act)

5344.indd 442

[6] The first step in the legislative process that has led to the enactment of the present s.258 of the 1995 Act was taken in s.26 of the 1980 Act. The section was enacted to enable the parties to agree on “routine evidence”. It provided, inter alia, that for the purposes of any proceedings for certain specified offences, a certification purporting to be signed by a specific person or persons and certifying a particular matter would be sufficient evidence of that matter and of the qualification or authority of the person or persons concerned (s.26(1)). For the purposes of summary criminal proceedings, a report purportedly signed by two authorised forensic scientists was sufficient evidence of any fact, or conclusion as to fact, contained in the report and of the authority of the signatories (s.26(2)). Procedural provisions in s.26(3) enabled the defence to challenge the apparently routine evidence referred to in s.26(1) and (2). Section 26(5) provided that in any trial under summary criminal procedure it was to be presumed that the person who appeared in answer to the complaint was the person charged by the police with the offence unless the accused gave notice that the contrary was alleged. Section 26(6) provided that where an autopsy report was lodged as a production by the prosecutor it was to be presumed that the body of the person identified in the report was the body of the deceased person identified in the indictment or complaint, again unless the accused gave notice that the contrary

07/12/16 4:54 PM

2016 S.C.C.R.

Ashif v HM Advocate (Lord Justice General)

443

was alleged. Section 26(7) enabled the prosecutor to lead only one of the pathologists or forensic scientists who purported to have signed the relevant report and provided that the evidence of that pathologist or forensic scientist would be sufficient evidence of any fact or conclusion as to fact contained in the report and of the qualifications of the signatories, unless the accused gave notice that he required the attendance at the trial of the other pathologist or forensic scientist. Section 26(8) provided that in a prosecution for the offence of driving while disqualified a conviction or an extract conviction served on the accused purporting to be signed by the clerk of court which showed that the person named was disqualified from holding or obtaining a driving licence would be sufficient evidence of the application of that disqualification to the accused unless by prior notice the accused denied such application. [7] These provisions were re-enacted among the extensive evidential provisions of Pt.XII of the 1995 Act. They provided simplified methods of proving matters that, as experience had shown, were unlikely in the normal course to be disputed by the defence.

The right to silence and the right to put the Crown to the proof

[8] In Beattie v Scott the common law position of the accused at his trial was described by Lord Justice General Hope in the following way: “[T]he question whether an accused person should ever be required to assist the Crown in any way in the presentation of the evidence at his trial . . . admits of only one answer, and that is in the negative. . . . “(The accused) is to be regarded purely as an object, as one whose role in the trial is an entirely passive one as it unfolds around him. It is on that basis that the Crown must present its case” (at p.301). Lord Wylie, a former Lord Advocate and a criminal lawyer of long experience, put the point in this way: “The Crown have all the resources of the state behind them in the preparation of a case but by the time a case has come to trial the Crown cannot rely on any assistance whatsoever on the part of the accused” (at p.302). In Du Plooy v HM Advocate it was taken for granted by this court that any accused was entitled to put the Crown to the proof of its case (at para.21). In Gemmell v HM Advocate Lord Eassie said: “An accused is always entitled to put the prosecution to the proof of its case; and there may often be potential advantage to the accused in delaying a plea. Apart from the natural human tendency to put off the evil moment, one never knows but that the principal Crown witness may become unavailable, by reason of death or otherwise” (at para.148). Statements such as these have been influential in the drafting of professional codes of conduct. One of the central questions in this case is whether they are an accurate representation of the principle.

The Scottish Law Commission Report (1992)

[9] In 1992 the Scottish Law Commission reported on the problems that were being caused where the defence withheld cooperation in agreeing evidence about which there was no real controversy (‘Evidence: Report on Documentary Evidence and Proof of Undisputed Facts in Criminal Proceedings’, (SLC No 137). The Commission recognised that passivity on the part of the accused could be to his advantage:

5344.indd 443

07/12/16 4:54 PM

444 A

Ashif v HM Advocate (Lord Justice General)

2016 S.C.C.R.

“He . . . has the chance of being acquitted because some matter which is not in issue but is essential for proof of the prosecution case may not be proved owing to some accident such as the disappearance, illness or forgetfulness of a witness. It may be doubted whether the public interest in fairness in the administration of justice should extend to the toleration of such technical and fortuitous acquittals, but the principle is not in doubt and, so long as it remains unqualified, limits the extent to which any reform is possible” (para.4.16). [10] The Commission recommended that the prosecution should be entitled to prepare a draft statement of facts which appeared to be uncontroversial. These facts would be deemed to be conclusively proved unless the accused challenged any matter in the statement by way of a counter-notice (Recs 23-34). The Commission commented that: “[T]he procedure under section 26 of the 1980 Act, on which the statement of fact procedure is based, was said by some of our consultees to be sometimes frustrated by defence solicitors who lodged counter-notices . . . apparently as a matter of policy or routine, and thereafter failed to cross-examine the witnesses cited to speak to the facts in the certificates. It is also possible for a responsible defence solicitor, who has no obstructive policy or routine and may wish to admit indisputable facts as a matter of common sense, to be obliged not to do so by a client who insists on not co-operating with the prosecutor in any way” (para 4.61). The Commission saw the problem as a matter of professional propriety. It recommended a consensual solution based, “at least in the first instance . . . on the goodwill and common sense of practitioners” (para 4.62). It suggested that when the defence challenged a statement of uncontroversial evidence, but in the event did not challenge the relevant evidence, the practitioner or practitioners concerned: “might be the subject of observations to the Dean of the Faculty of Advocates, the Law Society of Scotland or the Scottish Legal Aid Board, who might wish to investigate the matter” (ibid). [11] Sections 257 and 258 of the 1995 Act were the legislative response to the Commission’s recommendations. Section 257 laid down a general duty on both the prosecutor and the accused, where he was legally represented, to identify facts that he would seek to prove, that were unlikely to be disputed by the other party and in proof of which he did not wish to lead oral evidence. It provided no sanction for a failure by either party to comply with it. The genesis of s.258(4A)

5344.indd 444

[12] Sections 257 and 258 failed to reduce the length of trials.The shortcomings of those provisions were considered as part of the ‘Review of the Practices and Procedure of the High Court of Justiciary’ (2002) (the Review). This was the relevant recommendation. “8.8 Perhaps the greatest potential for focusing the attention of parties on the issues in the case . . . lies in the development of the current provisions regarding uncontroversial evidence set out in section 258 of the 1995 Act. Such notices are little used in practice, and are confined in most cases to fairly formal matters, such as records of a tenancy or of benefit payments. . . . 8.9 One reason for their current limited use is that those acting for the accused tend to respond by automatically challenging the notice without paying particular regard to its terms. That may be because they have not been able, in the time available, to complete their investigations to the point where they can take an informed decision on the terms of the notice. Automatic challenge means that the Crown are required to prove the points

07/12/16 4:54 PM

2016 S.C.C.R.

Ashif v HM Advocate (Lord Justice General)

445

in the notice and the notice is defunct. In the context of judicial management of cases, there is scope for changing this rule without impinging upon the basic principle that the onus lies upon the Crown. It would not be unreasonable to require the defence to give a reason for contesting the notice. Should the Crown consider that the reason given does not justify contesting the notice, then the matter could be aired at the preliminary diet with a view to the presiding judge determining whether the Crown should be required to prove the points in issue or may rely on the terms of the notice. In this way the Crown could identify in such a notice those chapters of evidence which they consider that the interests of justice do not require to be proved by oral evidence in court. The notice would thus form a framework for the identification of the witnesses who are not required attend court. There is, on the face of it, no reason why the notice should not have attached to it the statements of witnesses, which the Crown consider to be uncontroversial, and which could be read to the jury” (footnotes omitted). [13] The problem of “automatic” challenges was essentially the problem that the Scottish Law Commission had considered. [14] To implement the recommendation of the Review, subs.(4A) was added to s.258 by s.16 of the Criminal Procedure (Amendment) (Scotland) Act 2004. Section 16 was introduced by amendment at Stage 2. The Deputy Minister for Justice, Mr Hugh Henry, gave the Justice 1 Committee the following explanation: “The objective of s.258 of the 1995 Act was to remove from the trial non-contentious issues with consequential benefits and savings in witness time and court time. Under s.258, parties can serve on each other a statement of evidence that they consider to be uncontroversial. At the moment, when statements of uncontroversial evidence are served by the Crown on the defence, there is almost invariably a challenge to the entire contents in a notice under s.258(3). “That section provides that facts ‘specified or referred to’ in the statements are: ‘conclusively proved only insofar as unchallenged’. “Routine challenges to statements of uncontroversial evidence mean that s.258 is largely robbed of practical effect. Under present procedure, the defence is generally under an obligation to its client to challenge such statements because, when they are served, the defence might not always have sufficient detail of the Crown case to assess properly the terms and to consider whether the evidence can be agreed. “Amendment 121 will insert into the bill a new section that introduces new subss.(4A)–(4C) of s.258 of the 1995 Act. The new subsections allow the court . . . on an application by any party to direct that any challenge to the statement in the notice under s.258(3) is to be disregarded if it considers the challenge to be unjustified. “Through a proposed practice note, the Crown has undertaken to deliver material to the defence as soon as that is reasonably practical. It is anticipated therefore that the defence will be fully informed of the Crown’s case at the time of service of the statement. Together with new s.258(4A) of the 1995 Act, that will prevent unnecessary challenges to those statements. We believe that the court should be able to adjudicate on any dispute as to whether the challenge is justified. Amendment 121 highlights the management role of the judge and allows the judge to determine at the preliminary hearing or first diet whether the challenge is justified and, if it is not, to disregard the challenge” (Official Report, Justice 1 Committee, 24 March 2004, cols 668–669). The amendment was agreed to unanimously. There was no further discussion of it by the Parliament.

5344.indd 445

07/12/16 4:54 PM

446 A

5344.indd 446

Ashif v HM Advocate (Lord Justice General)

2016 S.C.C.R.

The current statutory provisions

[15] Sections 257 and 258 of the 1995 Act, as now amended, provide as follows: “257 — Duty to seek agreement of evidence (1) Subject to subsection (2) below, the prosecutor and the accused (or each of the accused if more than one) shall each identify any facts which are facts— (a) which he would, apart from this section, be seeking to prove; (b) which he considers unlikely to be disputed by the other party (or by any of the other parties); and (c) in proof of which he does not wish to lead oral evidence, and shall, without prejudice to section 258 of this Act, take all reasonable steps to secure the agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties) shall take all reasonable steps to reach such agreement. (2) Subsection (1) above shall not apply in relation to proceedings as respects which the accused (or any of the accused if more than one) is not legally represented. . . . 258 — Uncontroversial evidence. (1) This section applies where, in any criminal proceedings, a party (in this section referred to as “the first party”) considers that facts which that party would otherwise be seeking to prove are unlikely to be disputed by the other parties to the proceedings. (2) Where this section applies, the first party may prepare and sign a statement— (a) specifying the facts concerned; or (b) referring to such facts as set out in a document annexed to the statement, and shall . . . serve a copy of the statement and any such document on every other party. (3) Unless any other party serves on the first party . . . a notice that he challenges any fact specified or referred to in the statement, the facts so specified or referred to shall be deemed to have been conclusively proved. (4) Where a notice is served under subsection (3) above, the facts specified or referred to in the statement shall be deemed to have been conclusively proved only in so far as unchallenged in the notice. (4A) Where a notice is served under subsection (3) above the court may, on the application of any party to the proceedings made not less than 48 hours before the relevant diet, direct that any challenge in the notice to any fact is to be disregarded for the purposes of subsection (4) above if the court considers the challenge to be unjustified. ... (5) Subsections (3) and (4) above shall not preclude a party from leading evidence of circumstances relevant to, or other evidence in explanation of, any fact specified or referred to in the statement. (6) Notwithstanding subsections (3) and (4) above, the court— (a) may, on the application of any party, where it is satisfied that there are special circumstances; and (b) shall, on the joint application of all the parties, direct that the presumptions in those subsections shall not apply in relation to such fact specified or referred to in the statement as is specified in the direction. . . .”

07/12/16 4:54 PM

2016 S.C.C.R.

Ashif v HM Advocate (Lord Justice General)

447 A

The statement of uncontroversial evidence

[16] In this case the Crown served on the defence a statement of uncontroversial evidence purportedly in terms of s.258(2). It listed 68 alleged facts that were said to be uncontroversial. It included contentions that bank accounts were opened in the names of various people and that certain documents, copies of which are Crown productions, were produced as proof of identity. It asserted as a fact that certain documents were “false”. It asserted as a fact that each of the deceased had no relative of the name in which the claim was made on the estate and that any claim in that name upon that estate was “fraudulent”. These are of course central questions in the prosecution. They concern matters that go to the species facti of the crime libelled and, in relation to the alleged fraudulence, go to the guilt of the appellants. I shall refer to this as “the statement.”

The position of the defence

[17] The appellants challenged the statement in its entirety. The Crown moved for the challenges to be disregarded in terms of s.258(4A). The appellants lodged devolution minutes in which they contended: (1) that the enactment of s.258(4A) was beyond the competence of the Scottish Parliament by reason of its incompatibility with art.6; and (2) that the Lord Advocate’s application to the court under that subsection was ultra vires on Convention grounds. [18] Counsel for the appellants have throughout been instructed not to agree any of the matters set out in the statement. They decline to explain why these instructions have been given. That is entirely understandable in the light of their contention that to require any such explanation in terms of this legislation would violate the right to silence and subvert the principle that an accused can put the Crown to the proof of its case. In addition, they consider themselves bound by their clients’ instructions in the matter. That is a point on which they have quite properly taken the advice of the Dean of Faculty.

The decisions appealed against

[19] On 22 October 2012 the sheriff had a hearing on the Crown’s application and on the devolution minutes. The first issue was where the onus lay on the question whether a challenge to the statement was “unjustified”. The sheriff treated this as a preliminary issue. The defence position was that neither accused had any knowledge of the matters referred to in the statement, and therefore was in no position to agree those matters. [20] The sheriff tells us that during the course of the hearing, it became increasingly clear to him that the facts set out in the statement were uncontroversial (para.18). Junior counsel for the appellant told the sheriff that he had written instructions not to agree any evidence, but that he did not expect that he would challenge any of the “formal evidence” (ibid). In light of my comments in HM Advocate v AB at para.36 on the duties of defence lawyers to agree evidence, the sheriff thought that he might have to take “further action” (para.18). The diet was adjourned to 24 October for the purpose, inter alia, of allowing counsel to consult the Dean of Faculty. [21] On 24 October, counsel told the sheriff that the Dean had advised him that he was obliged to adhere to his client’s instructions. The sheriff took that to mean that instructions were “to be followed to the letter irrespective of their nature, propriety or sense” (para.19). [22] The sheriff held that under subs.(4A) the burden of persuasion lay on the party challenging the statement. These were his reasons:

5344.indd 447

07/12/16 4:54 PM

448 A

Ashif v HM Advocate (Lord Justice General)

2016 S.C.C.R.

“I considered that the language of the submissions on behalf of the appellants to the effect that the Crown was ‘challenging the challenge’ (and therefore had to justify its challenge) was inaccurate and glib.The framework of s.258 allowed a party . . . which considered that facts were unlikely to be disputed, to prepare a statement of facts in terms of subss.(1) and (2). The appellants duly responded with notices of challenge in terms of subs.(3). In turn, the Crown applied in terms of subs.(4A) for a direction from me that any challenge in the notice to any fact should be disregarded if I considered the challenge to be unjustified. I decided that the provisions of subs. (4A) were plain and that it was for the party challenging any of the facts in the . . . (statement of uncontroversial evidence) to justify their own challenge. That seemed to me to be the plain and practical construction of the subsection (para.16).”

[23] By then the appellant had withdrawn his instructions to counsel. The case was adjourned for the instruction of new counsel. [24] At a hearing on 29 October 2012, senior counsel appeared for the appellant. The sheriff directed that the defence challenges were to be disregarded. As a result the facts set out in the statement, if such they were, were deemed to be conclusively proved in advance of the trial. The sheriff refused a defence motion to refer a devolution issue to this court. He then refused the devolution minutes. [25] In his report the sheriff observes that s.258(4A) represents an innovation, but not one that is as radical as might be thought. He cites various situations in which the accused is obliged to disclose details of his defence. He says that he saw it as his function to ascertain whether the parties had sought to agree evidence (1995 Act, s.71; para.42).The right of the accused not to agree evidence was irrelevant. The appellants were not compelled to sign a joint minute (para.43). If the challenge to a statement of uncontroversial evidence was unjustified, the statement did not constitute a judicial admission. It simply meant that the fact was treated as having been proved as if by oral testimony (para.50). [26] The sheriff thought it entirely appropriate that an accused person should be asked to justify a challenge to facts which had seemed to the Crown to be unlikely to be disputed. He concluded: “It may be that very little need be said to justify the challenge but something other than a bland assertion that a client would not agree evidence would be required” (para.44).

The sheriff held that the appellants’ counsel had advanced no justification beyond intimating the nature of their instructions (para.46). [27] After the hearing, the sheriff considered s.258(5) and (6), on which he had not been addressed. With hindsight he took comfort from those provisions. A party was permitted to lead evidence of circumstances relevant to, or other evidence in explanation of, any fact specified or referred to in the statement (s.258(5)). In special circumstances the court could hold that the relevant fact was not conclusively proved (s.258(6); para.45).

The appeals Procedure

5344.indd 448

[28] The court invited representations from the Faculty of Advocates and the Law Society of Scotland on the question of a lawyer’s professional position in relation to s.258(4A). The Law Society declined our invitation. The Faculty submitted a detailed written submission which reviewed the law and practice. This was supplemented, with leave of the court, by a short statement by the

07/12/16 4:54 PM

2016 S.C.C.R.

Ashif v HM Advocate (Lord Justice General)

449

Dean of Faculty on the principle of the right to silence and on the professional proprieties affecting counsel in relation to it.

Submissions For the appellants

[29] The accused appealed on the basis that the right of the accused to put the Crown to proof on all matters upon which it wished to rely was sufficient justification of their challenges in terms of s.258(4A). They contended, alternatively, that the provision was beyond the competence of the Scottish Parliament because it resulted in self-incrimination, it shifted the burden of proof to the defence and it deprived the accused of the right to cross-examine witnesses. It was therefore incompatible with art.6 (Scotland Act 1998, s.29(2(d)). [30] The submission for the first appellant was that the Crown was attempting to force the appellant to agree certain facts despite his instructions to counsel. It was attempting to present its case by stating evidence rather than by leading evidence that could be subject to cross-examination. The appellant had an absolute right to put the Crown to the proof of its allegations (Beattie v Scott). He should not have to justify his stance. That would contravene his right against self-incrimination (Saunders v United Kingdom) and his right to cross-examine prosecution witnesses (art.6(3)(d)). If the court were to examine the defence’s justification, that would mean that it was determining the facts. That was the function of the jury (C v HM Advocate at para.14). The right to a fair trial was absolute (Montgomery v HM Advocate). [31] That right was, in itself, sufficient reason to challenge the statement. The challenge was therefore justified. It was accepted that there might be a fact that was manifestly capable of agreement, in which case counsel ought to agree that fact; for example, the fact that a certain date fell on a certain day of the week. [32] Counsel for the second appellant adopted these submissions.

For the Crown

[33] The Lord Advocate conceded that in the application of s.258(4A) the onus was on the Crown to satisfy the court that its application should be granted. [34] The Lord Advocate observed that on the question whether the defence challenge was “unjustified”, that expression, though undefined, should be given its plain meaning. That was to be discerned in the context of the duty to seek agreement of evidence (s.257) and of the language of s.258 as a whole. The court would decide whether a challenge was unjustified by reference to the material before it, including the lists of witnesses and productions, any document incorporated into the statement, any special defence and, now, the defence statement (1995 Act, s.70A), together with any submissions that parties chose to advance. The Lord Advocate suggested that a challenge might be justified where, for reasons of presentation, oral evidence was preferable. The judge should remember that granting the application did not prevent evidence being led in explanation of the facts thereby established, or of the surrounding circumstances (s.258(5)) and that the matter could be reconsidered at the trial (s.258(6)). The court could continue the Crown’s application to the trial so that a decision could be made after some of the evidence had been led. [35] The Lord Advocate conceded that a statement should not extend to the essential facts which the libel alleged. He no longer insisted in the statement to the extent that it covered the central issues to which I have referred.

5344.indd 449

07/12/16 4:54 PM

450 A

Ashif v HM Advocate (Lord Justice General)

2016 S.C.C.R.

The Dean of Faculty

[36] The Dean of Faculty submitted that unless a narrow approach was taken to the operation of subs.(4A), the court would lack the necessary information to operate the subsection justly. Counsel’s freedom to disclose his client’s position was limited. He could intimate to the court that he was instructed to challenge the statement; or that, as matters stood, he did not intend to challenge any of the proposed evidence. But even that intimation was provisional, since the trial could develop unpredictably. A document might assume an unexpected significance. The court would have no knowledge of the case since no evidence would have been led. It would therefore be in no position to assess whether a challenge was “unjustified”. It might be that subs. (4A) was devoid of practical effect. There could be a limited class of cases in which the court could properly find that a challenge was unjustified: for example, where the statement narrated that a document was an Ordnance Survey map of the relevant area. Conclusions

[37] Section 258 is available to both Crown and defence; but the probability is that in most cases the section will be invoked by the Crown. In keeping with the substance of the debate in these appeals, I shall discuss the issues on the assumption that the s.258 statement has been served by the Crown. A preliminary question

[38] Counsel for the appellants submitted that s.258 applies only where an accused is legally represented (s.257(2)). I do not agree. The submission assumes that s.258 is linked to s.257 as a means of discharging the duty to seek agreement, or as a substitute in the event of its non-observance. I can see no such link. S.257(1) is said to be “without prejudice” to s.258. That, in my view, precludes us from reading into s.258 a restriction that is derived from s.257. Onus

[39] The Lord Advocate has conceded that in this case the onus is on the Crown. In my view, that concession was correctly made. One of the preconditions of the lodging of a statement of uncontroversial evidence is that the facts stated in it are “unlikely to be disputed” (s.258(1)). It should therefore be for the party proponing it to satisfy the court that this condition is met. That approach is confirmed by the provision that if the challenge to a proposed fact should be disregarded, that fact is deemed to be conclusively proved. The scope of section 258

5344.indd 450

[40] The art.6 question overhangs this case; but before it arises, we should first establish the meaning and scope of s.258.The section is headed “uncontroversial evidence”. At the stage at which the statement is drawn up, it can at best be a statement of seemingly uncontroversial facts. The question for the framer of the s.258 statement is whether the facts that the Crown would otherwise be seeking to prove are unlikely to be disputed by the defence. An assessment of the likelihood of a defence challenge may depend on an incomplete knowledge of the line of defence. It will be at best a provisional judgment. If facts stated or referred to in the statement are challenged by the defence, the question whether the challenge is justified will be a matter for the court. So much is apparent from the wording of the section. But the section does not specify the nature of the facts to which the statement may relate. This is the stage in the analysis at which the rights of the accused become decisive.

07/12/16 4:54 PM

2016 S.C.C.R.

Ashif v HM Advocate (Lord Justice General)

451

[41] In my opinion, the provisions of s.258(4A) should be seen in the context of s.257 and of s.258 in its original form. Those sections implemented the recommendations of the Scottish Law Commission.Those recommendations were based on the structure and purpose of s.26 of the 1980 Act (SLC No 137 at para.4.61). In short, the present s.258(4A) is the latest stage of development in a sequence of provisions the purpose of which is to expedite trials by establishing as fact, in advance of the trial, matters that cannot reasonably be the subject of dispute. That is confirmed by the ministerial explanation to the Justice 1 Committee that I have quoted. From this it follows that the section should not be invoked to concuss the defence into admitting facts of which the defence may reasonably put the Crown to the proof. [42] Approaching the matter in that way, I consider that the true interpretation of the section is that it seeks to establish, as conclusively proved, facts which the accused cannot reasonably refuse to agree. When a challenge is intimated by the defence, it is not the function of the court to decide on balance whether an alleged fact will be conclusively proved. The court’s function is to decide whether a challenge to the statement is “justified”. In making that decision it must hear the basis of the objection. If the challenge is reasonable, the court must sustain it, even if it may seem to it to be likely that the fact will in the event be proved. On this matter, the court must rely to a great extent on counsel’s responsibility. It must also bear in mind that a plea of not guilty may in itself be a sufficient justification for the challenge when regard is had to the nature of the fact alleged. The court must also bear in mind that its decision on the merits of a defence challenge may be made on only a limited understanding of the nature of the Crown case and the line of defence, and with little or no knowledge of the parties’ evidence. Lastly, the court should bear in mind that the evidence that emerges at the trial seldom coincides with the evidence that is set out in the precognitions. For these reasons, I think that there may be few occasions on which a fact that constitutes part of the species facti of the libel can properly be the subject of a disputed s.258 statement. That is not to say that the proposal in a s.258 statement of an alleged fact that constitutes part of the species facti is improper. The nature of the defence may suggest that the proposed fact is unlikely to be controversial. For example, if on a charge of assault the accused indicated that he would plead self-defence, the prosecutor might reasonably propose as uncontroversial the fact that the victim suffered the injuries libelled. But where the proposal of a fact that is part of the species facti is challenged by the defence, it can rarely be for the prosecutor to move, or for the court to hold, that a fact essential to the prosecution case has been conclusively proved. [43] Looked at in that way, the section can be seen to deal with evidence, typically documentary, which on the face of it is what it bears to be; for example, the accused’s bank statements; invoices; order forms and the like; or evidence that a video clip was recorded by a CCTV camera at a specified locus at the time and on the date that it displays; or that a particular report records the findings of DNA analysis of a certain item of real evidence. [44] It is open to the defence in any such case to submit that notwithstanding the appearance of things the apparently indisputable evidence is truly in controversy. In that event the section provides an ample safeguard for the interests of the accused. In the light of these considerations it seems to me that the questions for us are: (1) whether the right to silence exists in the absolute form for which counsel for the appellants have contended; (2) whether s.258(4A) infringes the right to silence, whatever its extent; and (3) if it does, whether it is thereby in breach of art.6.

5344.indd 451

07/12/16 4:54 PM

452 A

5344.indd 452

Ashif v HM Advocate (Lord Justice General)

2016 S.C.C.R.

The right to silence The common law principle

[45] This case has been presented to us as a collision between two legally protected values: the right of the accused to silence; and the public interest in the expeditious conduct of prosecutions. To test the validity of that view of the case, I shall first examine the foundations of the right to silence and determine whether it exists in the absolute form in which it has been described to us in the debate. [46] Counsel for the appellants submitted that the presumption of innocence, the right to cross-examine prosecution witnesses and the right to put the Crown to proof were aspects of the doctrine of the passivity of the accused described in Beattie v Scott; and that the right to silence was fundamental. [47] The history of the early stages in the development of our criminal procedure shows that the right to silence was far from being absolute. The Heritable Jurisdictions (Scotland) Act 1746 provided, inter alia, as follows: “[T]he Pannel shall give in to the Clerk of Court the Day before the Trial, in writing . . . such Account of the Facts, relating to the Matters charged upon him in the Libel or Indictment, and thereto briefly subjoin the Heads of such Objections or Defences, as he shall think fit or be advised to make at his Trial” (cf Hume, pp.301, 399–400). Hume considered this to be a just requirement because: “[I]t is not, and ought not to be the law, that he is entitled to make a mystery of his case, and withhold from the prosecutor and the Court, all knowledge of what his line of defence and grounds of exculpation are to be. To let him maintain silence in that respect, till the proof in support of the libel has been closed, would be downright injustice to a prosecutor, who might thus lose the fair means of meeting the defences, and strengthening his own case with evidence, in the relative and proper parts” (p.301). [48] In 1833 Alison relied on this provision for the following statement of principle: “If the panel means to go to trial, and in addition to a general plea of not guilty, has any special defence, as alibi or the like, he must lodge special defences, which must be lodged with the clerk of Court at least the day before the day of the trial, and should be read aloud before the trial commences” (ii, 369). The current edition of Renton and Brown, Criminal Procedure (6th edn), para.14-26, identifies eight cases, four of which are the traditional special defences, in which advance notice of the line of defence must be given. [49] In modern practice the accused has to break his silence also in other ways. If he has defence witnesses he has to lodge a list of them. The Crown may precognosce them and, if so advised, call any of them as witnesses against him. Most importantly, in contemporary practice the accused must lodge a defence statement under s.70A of the 1995 Act (cf Barclay v HM Advocate, para.41). [50] The statements in Beattie v Scott on which counsel for the appellants have relied have, in my view, been quoted out of context. The question considered in that case was whether during a trial an accused could be required to stand up in order to assist a witness in his identification of one of the perpetrators of the crime. The judicial statements in that case seem to me to be irrelevant to the present issue. Similarly, the statement of Lord Eassie in

07/12/16 4:54 PM

2016 S.C.C.R.

Ashif v HM Advocate (Lord Justice General)

453

Gemmell v HM Advocate was made in the entirely different context of sentence discounting for an early plea.

The roles of judge and jury

[51] Counsel for the appellants submitted that s.258(4A) involves a usurpation of the function of the jury. According to the common law principle, the determination of the facts is within the exclusive province of the jury; but statutory provisions may require otherwise. The principle that certain facts may in certain circumstances be held to be proved unless the defence makes a competent challenge is now well-rooted in our evidential law. For example, s.255 of the 1995 Act, as amended, continues the long-established rule that where an offence is alleged to have been committed in a special capacity, the fact that the accused possesses the qualification necessary to the commission of the offence is, unless challenged, to be held as admitted (cf, Renton and Brown, paras 24-104â&#x20AC;&#x201C;24-107.1). [52] The underlying purpose of such provisions is not to oust the jury as the trier of fact. It is to establish as fact certain matters that should not require the arbitrament of a jury for the simple reason that they are beyond dispute. Whether they are truly beyond dispute is of course not to be assumed; hence the right of the defence in all of these various provisions (supra) to challenge the alleged facts by prior notice.

The right of the defence to examine witnesses led against them

[53] Counsel for the appellants submitted that s.258(4A) deprives the accused of the right to cross-examine prosecution witnesses. I do not agree. If in challenging a statement of uncontroversial evidence the defence should represent that there is a proper basis to cross-examine the relevant witness, the court should find that the challenge is justified. If the defence cannot properly make such a representation, then the defence would have no proper basis on which to cross-examine the witness in any event. Therefore, in my view, no opportunity to cross-examine the relevant witness is lost by the courtâ&#x20AC;&#x2122;s holding the relevant fact to be conclusively proved.

Article 6 and the right to a fair trial

[54] For the reason that I have given I consider that the right to silence is not absolute. For the purposes of this case it is unnecessary for us to identify the exact boundaries of the right to silence. In the context of the art.6 issue, we must first decide whether the enactment of s.258(4A) infringes the right to silence, whatever its boundaries may be. In my opinion, subs.(4A) does not infringe the right to silence at all. It does not compel the accused to say anything, still less to incriminate himself. It provides a mechanism by which evidence that is truly uncontroversial can be held to be proved. It leaves the accused free to decline to agree the relevant evidence. If he declines, he has the opportunity to challenge the statement. He may, for example, have the reasonable response that the facts alleged are significant and are outwith his knowledge; or that the facts alleged are incompatible with his line of defence; or in an extreme case, which this case may be, that the statement requires him to agree that the facts alleged constitute the crime libelled. If the challenge fails, certain evidential consequences may follow; but in relation to those there are the safeguards for the accusedâ&#x20AC;&#x2122;s position. [55] If I am wrong in thinking that the right to silence is not infringed at all, the question then becomes whether s258(4A) is a reasonable and proportionate response to the problem with which the section appears to deal.

5344.indd 453

07/12/16 4:54 PM

454

Ashif v HM Advocate (Lord Justice General)

2016 S.C.C.R.

[56] The proposition that the accused is entitled in every case to put the Crown to the proof of every detail of its case would be sustainable only if the interests of the accused were in all respects paramount. But that is not so. The Crown has its rights. As Judge LJ, as he then was, put it in R v Jisl at para.114: â&#x20AC;&#x153;The starting point is simple. Justice must be done. The defendant is entitled to a fair trial: and, which is sometimes overlooked, the prosecution is equally entitled to a reasonable opportunity to present the evidence against the defendant.â&#x20AC;?

The presentation of the prosecution case should give the jury a clear-sighted understanding of the essential facts and issues. The accused must have a fair and proper opportunity to defend himself; but if defence tactics needlessly impede such a presentation, there is a serious risk that the jury will be unable to give a true verdict on the evidence. [57] Other legitimate interests are at stake in a criminal trial. There is the general public interest in the efficient and expeditious conduct of prosecutions; and in the maintenance of public confidence in the system of criminal justice. There is the legitimate public interest in the avoidance of needless expense to the court administration and to the Scottish Legal Aid Board, and the avoidance of dislocation of the court timetable. There are also the legitimate interests of jurors in being spared the ordeal of a trial that is needlessly prolonged. [58] In my opinion, it is reasonable for the Parliament to seek to strike a balance between these disparate interests so long as the accused does not at the end of the day receive an unfair trial. In considering that question, we must bear in mind that in the aftermath of the Human Rights Act 1988 and s.57 of the Scotland Act, the question now is whether, looked at in its entirety, the trial is fair to the accused overall. [59] It is not in the interests of good order in society if a trial of needless length places burdens upon the state and third parties in terms of time and money, and puts justice at risk. In my view, it is reasonable that legislation should provide a procedure by which, in advance of the trial, a fact that seems bound to be proved in the normal course of the prosecution can be deemed to be conclusively proved; provided always that there are adequate safeguards for the interests of the accused. [60] Looking at the matter in that way, I can see no reason why an accused person should have the liberty not to admit a fact as to which he cannot reasonably withhold his agreement. Not to admit such a fact is obviously inconsistent with the accusedâ&#x20AC;&#x2122;s duty in terms of s.257(1). I cannot accept that the right to silence should mean that the accused can fold his arms and prolong a prosecution in the off chance that a witness will abscond or that the prosecutor will make a blunder; or in the hope that the sheer volume of formal evidence will leave the jury weary or bewildered. Such a strategy is not, in my view, in the interests of justice. Fairness to the defence is adequately secured by, amongst other things, the right of the accused not to incriminate himself, the right to cross-examine witnesses led against him, the placing of the burden of proof on the prosecution, and the demanding nature of the standard of proof. [61] I conclude therefore that s.258(4A) is a reasonable constraint upon the right of the accused to put the Crown to the proof in relation to factual matters. It is consistent with the spirit of our law to encroach upon the passivity of the accused to the extent that it does not render the trial unfair.

5344.indd 454

07/12/16 4:54 PM

2016 S.C.C.R.

Ashif v HM Advocate (Lord Justice General)

455

[62] Article 6 neither proscribes nor requires jury trial; nor does it regulate whether the facts are determined at different stages or as part of one decision. There is, accordingly, nothing inherently incompatible with art.6 in a provision that entitles a judge to decide, having heard parties on the question, that a fact is to be deemed to have been proved. The true question that arises under art.6 is, in my opinion, whether the means by which a judge can make such a decision respects the guarantees that art.6 contains. [63] The granting of an application under s.258 does not in itself involve the court’s holding the accused to have admitted any fact. The hearing of the application does not require any admission from the defence nor does it place any burden upon it. The defence can make submissions in opposition, but those submissions need not touch upon the position of the accused unless defence counsel should think it advisable to do so. Even if the accused says nothing, it remains for the Crown to satisfy the court that the relevant fact is vouched by sources of indisputable accuracy. [64] In any event, the right to cross-examine envisaged by art.6(3)(b) need not be exercised only at the stage of trial (Sadak v Turkey (at para.64). The defence could precognosce witnesses in preparation for a hearing on an application under subs.(4A). If the relevant witness was uncooperative, that might be justification in itself for a challenge, but the defence also have the means of compelling a witness to be precognosced on oath (1995 Act, s.291). [65] In my view, s.258 does not abridge the implied and subsidiary rights within art.6. Those rights may be restricted provided that, overall, a fair trial is achieved (Cadder v HM Advocate, para.57). In my view, if the section infringes those rights at all, it does so in only a limited way. It is a reasonable and proportionate response to the problem that I have identified. It respects and protects the interests of the state in an efficient system of criminal justice while being fair to both prosecution and defence, and to third parties such as witnesses and jurors. [66] I conclude therefore that the enactment of s.16 of the Criminal Procedure (Amendment) (Scotland) Act 2004, by which s.258(4A) was introduced, was within the vires of the Scottish Parliament.

The statement itself

[67] Before the sheriff the only submission for the appellants was that their challenge was justified by the right to silence. Counsel reasonably enough stuck to their guns on the point; but the result was that when the sheriff decided it against them, he thought that there was no other question to consider. [68] We have undertaken a wider examination of the issues in the case. We have had occasion to consider whether the Crown’s statement complies with the section. In my opinion, it does not. I regret to say that the statement rests on an obtuse misunderstanding of the section. First, it does not deal solely with facts that are prima facie uncontroversial. It calls on the accused to admit facts that go to the heart of the case; namely facts that constitute part of the species facti of the indictment and are inconsistent with the appellants’ pleas. Worse still, it puts forward as a fact the proposition of law that the transactions were “fraudulent”, which is the essence of the libel. [69] The Lord Advocate could not support those parts of the statement and undertook not to insist in them. Nevertheless the lodging of the statement in its original terms demonstrates the dangers to which an imperfect understanding of the section can lead. It points to the need for vigilance on the part of the defence lest the Crown should make a similarly ill-judged attempt

5344.indd 455

07/12/16 4:54 PM

456 A

Ashif v HM Advocate (Lord Justice General)

2016 S.C.C.R.

to secure an admission by the accused of matters that are outwith the purview of the section. Counsel’s professional duty

[70] The court is indebted to the Dean and his colleagues for their statement of counsel’s professional position. The Dean submitted that at the hearing before the sheriff counsel were bound by their duty to carry out the instructions of their clients. In my view, the issue is not as to the extent of counsel’s duty to carry out instructions. The logically prior question is whether the client is entitled to give such instructions at all. [71] The client is not the master of his counsel (Batchelor v Pattison and Mackersy, Lord President Inglis at p.918; Anderson v HM Advocate). Counsel has responsibilities as an officer of the court. He is not required to act in all respects as his client may wish (Woodside v HM Advocate, Lord Justice Clerk Gill at para.76; R v Farooqi at paras 108–109, 114). He is not bound to call such witnesses as the client dictates (Hughes v Dyer). He may not put questions in cross-examination when he has no basis for them in his instructions; nor may he ask questions that are insulting or abusive even if his client demands that he should (cf, Guide to the Professional Conduct of Advocates (5th edn, Oct 2008), para.6.3; Law Society of Scotland Practice Rules 2011, rr.4.4.30, 4.4.33). [72] In HM Advocate v A B counsel and solicitor advocates for the respondents declined their client’s instructions to sign a joint minute agreeing what appeared to be indisputable facts. I commented that unless those acting for the respondents had some serious reason to dispute all or any of the matters on which agreement was sought by the Crown, I could only regard their refusal to sign as perverse. In the light of the extensive review of the subject by counsel in this case, I now accept that, whether or not the respondents were justified in giving that instruction, it was the common understanding of the profession at that time, supported by the view of the Dean, that counsel could properly act upon it. My use of the word perverse was therefore unfair. I apologise to the counsel and solicitor advocates in that case for having used it. [73] If I am right in thinking that s.258(4A) does not infringe art.6, the accused can avoid the evidential consequence set out in se.258(3) only if he gives notice of challenge and if the nature of the challenge is held to be justified. In taking the accused’s instructions on a matter of this kind, counsel will have to make a difficult and discerning professional judgment. It is conceivable that a client who instructs counsel to challenge a statement of uncontroversial evidence on the basis that he intends to put the Crown to the proof of its entire case may have a good and sufficient reason for doing so. In that case counsel will be justified in acting according to that instruction. On the other hand, the reality may be that the client is seeking to achieve exactly what ss.257 and 258 are intended to prevent. In the latter case such an instruction will be a breach of the accused’s statutory duty under s.257(1) to take all reasonable steps to reach the agreement of evidence to which s.257 refers. It is not part of counsel’s duty that he should carry out an instruction of that kind. Disposal Article 6

5344.indd 456

[74] On the view that I have taken on the applicability of art.6, I consider that the sheriff was right to refuse the devolution minutes. I propose to your Lordships and to your Ladyship that we should refuse the appeals against that decision.

07/12/16 4:54 PM

2016 S.C.C.R.

Ashif v HM Advocate (Lord Justice General)

457 A

Application of s.258

[75] The sheriff tells us that after counsel for the appellants offered no detailed justification for their challenges to the statement, he “had no difficulty” in granting the Crown application. He made that decision on the erroneous understanding that the onus in s.258(4A) lay with the defence. He therefore did not hear the Crown on the question whether any individual fact alleged in the statement was unlikely to be disputed. The decision therefore cannot stand. The Lord Advocate has tendered a revised version of the statement which omits much of the original. I propose to your Lordships and your Ladyship that we should allow the appeal and return the case to the sheriff for a hearing on the revised statement. LORD JUSTICE CLERK [76] I agree with the disposal of these appeals as proposed by your Lordship in the chair and with your Lordship’s reasoning. Section 258(4A) of the 1995 Act is a procedural route which permits the judicial determination of fact in a trial process, but in advance of a trial diet. It does not involve obliging an accused person to admit anything or to incriminate himself. It thus does not involve a breach of the implied right to silence in art.6 of the European Convention and is accordingly within the powers of the Scottish Parliament. There is, in particular, no art.6 requirement that: proof of every fact must be by way of oral evidence; such testimony must be given at the trial diet; or such testimony must always be subject to cross-examination on demand (Al-Khawaja v United Kingdom, paras 90 and 118–119 following Lucà v Italy, para.40 and Sadak v Turkey, para. 65). Any provision of the Scots law of evidence and procedure which requires such proof, attendance or cross-examination may legitimately be modified by the Parliament, to the extent that it does not contravene the Convention jurisprudence. [77] In looking at whether a trial will, because of a particular statutory provision, inevitably be unfair to an accused, it remains important to look at the prospective proceedings as a whole “having regard (not only) to the rights of the defence but also to interests of the public and the victims that crime is properly prosecuted” and to the rights of witnesses (Al-Khawaja, para.118, following Gäfgen v Germany, para.175). As Your Lordship observes (paras 55–56), although an accused person must have a fair and proper opportunity to defend himself, there is a general public interest in: “the efficient and expeditious conduct of prosecutions”; “the maintenance of public confidence in the system of criminal justice”; “the avoidance of needless expense”; and “dislocation of the court timetable”; quite apart from the need to have regard to the interests of witnesses and jurors participating in the trial process. Where a statement of uncontroversial evidence includes a key fact or is based upon the evidence of a key witness, no doubt a challenge to it would inevitably be regarded by the court as justified. Oral testimony and cross-examination would follow. There are, in those circumstances, adequate protections for an accused, contained within the statutory framework, to ensure that his right to a fair trial remains practically and effectively secured. [78] I endorse entirely the views of your Lordship on the professional position of counsel and, in particular, that it is no part of counsel’s duty to carry out an “instruction” which is inconsistent with the obligation under s.257(1) of the 1995 Act to take all reasonable steps to reach agreement on the evidence. Thus, in electing to challenge a statement of uncontroversial evidence, there must be, as your Lordship puts it (para.73), a good and sufficient reason for doing so.

5344.indd 457

07/12/16 4:54 PM

458 A

5344.indd 458

Ashif v HM Advocate (Lord Justice Clerk)

2016 S.C.C.R.

[79] Your Lordship has already alluded (para.16) to the problematic terms of the statement in this case. It may be worth observing that, although s.258 is headed “Uncontroversial evidence”, it is actually about uncontroversial fact (s.258(2)(a)). What therefore requires to be stated is fact, not evidence. LORD EASSIE [80] I agree with your Lordship in the chair that is so far as the sheriff’s refusal of the devolution minute is challenged in this appeal that aspect of the appeal falls to be refused. For the reasons given by your Lordship, I do not consider that s.258(4A) involves an infringement of the right to silence. Particularly given the acceptance that the onus is on the proponer of the statement of uncontroversial evidence—which will usually be the Crown, and I make that assumption—to show that the challenge is not justified, there is no compulsion on the accused to say anything which might be used as incriminatory material against him. The provision provides a method whereby the court determines on the basis of the information before it that a fact is proved without the need for evidence to be led in accordance with the normal evidential requirements by the prosecution. [81] I also agree that for the rest the appeal should be allowed, as indeed necessarily follows from the acceptance by the Lord Advocate that the statement presented to the sheriff could not be supported. It is regrettable that the procurator fiscal, at the stage of framing the statement, but more importantly at the stage of moving that the challenge was unjustified, and the sheriff, when faced with that motion, did not properly appreciate the proper scope of s.258. [82] At the stage of framing the statement the drafter has to form some view of the likely response by the defence and may therefore reasonably think that in the peculiar circumstances of a given case a matter going to the species facti may be agreed by the defence. By way of the example of self-defence to which your Lordship in the chair refers, in some, but by no means all, cases in which self-defence is advanced the prosecutor may, at this first stage, envisage that the nature of the injuries suffered by the complainer or deceased might not be controversial. But different considerations apply at the later stage when the court is required to consider whether the Crown has shown that the challenge is not justified. For my part I have difficulty in conceiving of circumstances in which a court could properly exercise its power under s.258 to override a challenge to a statement of a fact forming part of the species facti; but that is not to say that they might [not] arise in a very exceptional case. A useful, general parameter within which a judge might give consideration to the exercise of the power under subs.(4A) is that the matters to be held proved are simply part of the general setting of the case. And within that parameter, I consider that a useful test is whether in the absence of some unlikely procedural mishap the suggested undisputable aspect of the setting or context would inevitably be proved; and, if so, whether the accused cannot reasonably insist on their being proved by the normal evidential rules. LORD CLARKE [83] I agree with your Lordship in the chair as to the disposal of these appeals and your Lordship’s reasoning. [84] The appellants’ arguments that the provisions of s.258, as framed, offend the “right to silence” must be examined with a proper understanding of what is, in law, embraced in that phrase and what are its consequences. As has been pointed out:

07/12/16 4:54 PM

2016 S.C.C.R.

Ashif v HM Advocate (Lord Clarke)

459

“[S]uch phrases tend to refer to important values to which the criminal justice process gives varying degrees of weight in determining the appropriate legal rules at different stages of the process, rather than to hard and fast legal rules. What such rhetoric tends to ignore or downplay is that ‘basic rights’ or ‘fundamental principles’ are rarely untrammelled in practice. They are usually qualified in application in any particular area of law by the need to strike a balance with the demands of other competing values.” See P. Duff [‘The agreement of uncontroversial evidence and the presumption of innocence’ (2002)] 6(1) Edin. L.R. 32.

[85] In R v Director of Serious Fraud Office, ex parte Smith, Lord Mustill, in a speech with which all other members of the House of Lords agreed, observed, at p.74 that the phrase “the right to silence”: “does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute”.

His Lordship continued: “Amongst these may be identified:

(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies. (2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them. (3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind. (4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock. (5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority. (6) A specific immunity (at least in certain circumstances, which it is unnecessary to explore) possessed by accused persons undergoing trial, from having adverse comments made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.” Lord Mustill was, of course, dealing with English criminal law and practice. In general terms, I consider that it can be read to be an accurate statement of the position in Scotland. [86] The exceptions to the right to silence, outlined in your Lordship in the chair’s opinion demonstrate that it is not only a description of a number of privileges but that there is, in law, no absolute right to silence. It is a fallacy to deduce from the expression itself that it constitutes an absolute right which allows a person, once accused of a crime, to act as a mute and to refuse to cooperate with the prosecution, in any respect at all in the criminal process. There is nothing in the decided jurisprudence relating to the ECHR to support such a proposition. So in John Murray v The United Kingdom the European Court of Human Rights at para.45 of its judgment said this:

5344.indd 459

07/12/16 4:54 PM

460

5344.indd 460

2016 S.C.C.R.

“Although not specifically mentioned in Article 6 of the Convention, there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aim of Article 6.”

Ashif v HM Advocate (Lord Clarke)

The court however, at para.47, after discussion, concluded that “the question whether the right is absolute must be answered in the negative”. As was recognised by the European Court of Human Rights, the right to silence is found in its most potent manifestations in the general right of an accused person to say nothing in the face of police questioning and to remain silent at any trial. These are justified as a protection against self-incrimination. The provisions of s.258 do not, in my judgement, carry with them any inroad into those protections since, provided the provisions are employed within the limits imposed by the language of the section then no real issue of self-incrimination should arise. When facts are uncontroversial, in the sense described by your Lordship in the chair, they will relate only to matters which do not form the species facti of the crime alleged but should contribute towards providing the undisputable aspects of the setting or context in which the alleged crime is said to have been committed. The policy underlying the provisions is clearly designed to be in the public interest. Used properly the provisions have the following potential benefits. 1. 2. 3. 4.

Witnesses can be saved the inconvenience of attending at court. Evidence can be presently simply and clearly to the court. Trials can be shortened. Expense and costs can be saved.

These benefits reflect the fact that, as previously noted, what are sometimes described as absolute rights do, on occasion, require to be modified to strike a reasonable balance with demands of other compelling values. For the foregoing reasons it is clear, in my judgment, that the statements of principle in the case of Beattie v Scott, referred to by your Lordship in the chair, if unqualified, and without reference to context, cannot be used to support the appellants’ position. Any suggestion that the accused can employ the right to silence to obstruct the efficient presentation of the Crown’s case, when all that is required of him does not involve any question of self-incrimination, is to ignore the importance, in the public interest of the proper and efficient administration of justice. [87] Once it is decided that the provisions of s.258 are perfectly valid in law, the issue of counsel’s duty, in the terms it was advanced before us, on behalf of the appellants, falls away. Counsel cannot be obliged to follow instructions of a client simply to refuse to comply with the law. [88] Having said all of the foregoing, I have to add that it is clear, in my judgement, that the provisions of s.258 should be employed by the Crown with a clear and proper understanding of their purpose and scope. It is very regrettable that the particular application made in this case betrayed a complete misunderstanding of the meaning and the purpose of the statutory provisions. It is to be very much hoped that future attempts to secure admissions beyond the scope of the section will be avoided. Any such application in terms of s.258(4A), if granted, would not only be outside the law, but would be likely to amount to a clear breach of the accused’s basic right to a fair trial.

07/12/16 4:54 PM

2016 S.C.C.R.

Ashif v HM Advocate

461

LADY DORRIAN [89] I agree with the reasoning of your Lordship in the chair and with the disposal proposed by your Lordship and have nothing further to add. LORD MALCOLM [90] For the reasons given by your Lordship in the chair, I agree that the terms of s.258(4A) of the Criminal Procedure (Scotland) Act 1995 are compatible with the fair trial requirement contained in art.6 of ECHR, and that there is no merit in the appeals in respect of the sheriff’s refusal of the devolution minutes. I also agree that the appeals against the approval of the statements of uncontroversial evidence should be upheld, again for the reasons given by your Lordship in the chair. LORD TYRE [91] I agree with the disposal proposed by your Lordship in the chair. In particular, I agree, for the reasons stated by your Lordship, that the enactment of s.16 of the Criminal Procedure (Amendment) (Scotland) Act 2004, inserting subs.(4A) into s.258 of the Criminal Procedure (Scotland) Act 1995, was compatible with art.6 of the ECHR, and that the appeals against the sheriff’s refusal of the appellants’ devolution minutes should be refused. I also agree, for the reasons stated by your Lordship, that the sheriff erred in granting the Crown’s application in terms of s.258(4A) and that the appeals against that decision accordingly fall to be allowed.

COMMENTARY 1. Although the decision of the court related to the devolution issues raised, the opinions contain important discussions of the nature and proper scope of statements of uncontroversial facts, as well as some pointed observations on the limitations of the right to silence. To what extent these are consistent with the attitude of the court to previous attempts to restrict evidence to matters which are in dispute (see, e.g. Barclay v HM Advocate) may be a matter for further discussion, but it is clear that there has been a change in the attitude of the law to the rights of the defence, and that it is no longer appropriate to follow the maxim, “always plead not guilty, the Crown witnesses may die” (cf, the Lord Justice General at para.60), a change influenced by the approach of the ECtHR to the meaning of miscarriage of justice, as well as by economic reasons arising in the wake of the extension of the length of trials. Earlier attempts to get the accused to indicate what parts of the Crown evidence are in dispute, which may be seen as far back as in the “modern” type of judicial examination created by the Criminal Justice (Scotland) Act 1980 have not been particularly successful (see e.g. Barclay v HM Advocate, supra). The provisions of s.258 of the 1995 Act, however, have succeeded in creating a situation in which a failure by the accused to challenge certain facts can lead to their being taken as proved. What these facts may be, however, is strictly limited, as a result of the instant case. On the other hand, any challenge which is made may be rejected as unreasonable. As the Lord Justice General observed, the use of statements of uncontroversial evidence is likely to be limited to documentary evidence, but it is not restricted to them. 2. The most remarkable feature of this case, a case which was considered important enough to engage the services of the Lord Advocate and the Dean of Faculty and to be heard by a Bench of seven judges, may be, however, that although it was decided in March 2014, the opinions were allowed to see the light of day only more than two and a half years later (apart from a fleeting appearance on the High Court website for a few days in November 2015, after

5344.indd 461

07/12/16 4:54 PM

462 A

5344.indd 462

Ashif v HM Advocate

2016 S.C.C.R.

which they were removed). So far as I can discover it was never subjected to any order under the Contempt of Court Act 1981 restricting publication. If I am correct in my understanding of the position in this case it is the most extreme example of the postponement of the publication of opinions in any case where a trial, or retrial, has yet to take place, achieved by what appears, rightly or wrongly, to be a mere box-ticking exercise, carried out sub rosa, as it were. It seems, therefore, to provide an appropriate opportunity for the matter to be discussed. I am concerned here only with proceedings on appeal. I accept, of course, that the court has power to postpone or prevent the reporting of criminal proceedings, or parts thereof, under various statutory provisions, especially the 1981 Act. That Act envisages the relevant orders being made on the application of a party, and elaborate provision is made by Act of Adjournal for the publication of, and the hearing of objections to, such orders. I accept, too, that the court has certain powers at common law to prevent or postpone publication. There is, however, also what may be described as a constitutional principle to the effect that court proceedings should be open and public. Making a “gagging order” is appropriate only where it is necessary in the interests of justice, and the court therefore has to consider whether the restriction of publication of the matter in question is necessary in order to avoid “substantial prejudice” to the accused at a subsequent trial. (In practice a plea of prejudice by reason of pretrial publication is very unlikely to succeed, any such possible prejudice usually being regarded as at worst something regrettable but curable by judicial direction (see eg, HM Advocate v Coulter, infra, p.464). It is only fairly recently that gagging orders have been made with any frequency, and it seems that they are rarely objected to. If my recollection is correct, they were not made routinely even where a retrial was ordered (and it may be worth noting that in the case of Coulter (see infra p.000), where there was such an order, the defence at the trial brought out evidence of what happened at the earlier proceedings). In the instant case there was nothing in the judges’ opinions which could have led to any, far less any substantial, prejudice to the accused, a factor which leads me to think that the case was “gagged” simply because the opinions were given at an interim stage in the proceedings. It may be correct to say that the case was not likely to be of any interest to the press or the public anyway, but that has nothing to do with the interests of justice, and it was of interest and some importance to the profession. So much for the substantive question. But where no formal order is made, and therefore no notice is given on the court website, the position is more serious, principally because what should be a judicial decision based on a balance of interests is in danger of becoming an administrative procedure, which may in the course of time, bureaucracy being what it is, be carried out not by judges but by clerks, simply on the basis of a box-ticking rule that the opinion related to a preliminary issue. There is the further problem that only those “in the know” (who do not include High Court judges: see Clyde (Scotland) LLP, infra, p.480) such as parties to the case will even know that there is an opinion and that it was gagged. And where there’s an order which is valid only until the end of the proceedings, and the proceedings are in the sheriff court, there is the further difficulty that Edinburgh officials may not know, or may not know for some time, that proceedings have come to an end. It is also difficult to see what sanctions, if any, the court can impose on publication of an informally “gagged” opinion by anyone who happens to obtain a copy of it, whether or not because he saw it on a fleeting appearance on the web and did not realise that it had been subsequently removed. May I therefore suggest that orders in this matter are made in open court, that whether or not they are agreed to by one or all parties, the court should consider whether they are really necessary, that the “default” position should be that they are not, and that any orders which are made are contained in an interlocutor and published on the court website, which should of course be

07/12/16 4:54 PM

2016 S.C.C.R.

Ashif v HM Advocate

463

kept up to date. It would also be helpful if there were a reliable system of communication between trial and appeal courts so that gagging orders can be deleted when the relative first instance matters have been concluded. (In this particular case the Crown decided, after having obtained a number of continuations and extensions of the time bar in respect of one of the accused because of illness, not to call the case at a sitting at the end of August 2016, but it was only on 18 October, after some prompting, that the case appeared on the web, two and a half years after it had been decided, and, incidentally, almost four years after the decision appealed against.)

5344.indd 463

07/12/16 4:54 PM

A Double Jeopardy Application

28 November 2014

HER MAJESTY’S ADVOCATE

Applicant

against RONNIE COULTER B

ANDREW ALEANDER MARSHALL COULTER DAVD SHIELD MOMTGOMERY

Respondents

[2016] HCJAC 96 Double jeopardy—Fresh evidence—Whether fresh evidence strengthens Crown case substantially or is highly likely to lead to conviction—Double Jeopardy (Scotland) Act 2011 (asp 16), ss.3, 4 C Double jeopardy—Charge of assault and murder—Accused convicted under deletion of averments of murder—Whether acquitted of murder—Double Jeopardy (Scotland) Act 2011 (asp 16), ss.3, 4

Double jeopardy—Original acquittals in 1998 and 1999 subject of publicity and criticism of Crown conduct—Whether fresh trial in 2015 in interests of justice—Double Jeopardy (Scotland) Act 2011 (asp 16), ss.3, 4 Section 3 of the Double Jeopardy (Scotland) Act 2011 provides that if a person who has been acquitted of an offence 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 of the fact that the admission was not known and could not with reasonable diligence have been known by the Crown before the 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 in the interests of justice to do so. Section 4 of the Act makes similar provisions in the case of a person acquitted in a trial in the High Court where there is new evidence that he committed the offence. Article 5 of ECHR provides a right to liberty and art.6 provides a right to a fair trial. The respondents were all placed on petition in 1998 on a charge of assault and murder by stabbing, but the Crown elected to indict only the first respondent who incriminated the other two respondents and was acquitted in 1999. In 2000 the Crown indicted the other two respondents without any reference to the first respondent, and the third respondent was acquitted and the second respondent was convicted of assault, the averments of murder by stabbing against him having been deleted by the jury. The evidence in both trials was roughly similar. The first and second respondents had agreed to assault the deceased in order to discourage him from contacting the police about a stolen benefit cheque, and to ask the third respondent to drive them to the locus. A witness had seen the three respondents “running” the deceased across the street, and saw the first respondent, who had been holding something, swing his right hand underarm towards the 464

5344.indd 464

07/12/16 5:55 PM

2016 S.C.C.R.

HM Advocate v Coulter

465

deceased’s abdomen. There was also evidence from a witness, T, that on the day after the murder the first respondent had asked her to dispose of a bag containing clothing and a box of knives, one of which was missing. Fingerprints of the first and second respondents were found on the knife box and a knife respectively. The first respondent was acquitted. The Crown then indicted the second and third respondents with acting in concert with the first respondent in assaulting the deceased, by seizing and struggling with him, but only with acting in concert with each other in the murder. The evidence was much the same as at the first respondent’s trial, but a new witness spoke to one of the attackers striking the deceased with a stick, and there was evidence that the second respondent had made an admission of striking him with a bat. The second respondent led evidence from the first respondent’s sister, C, of admissions that the first respondent had made to her while on remand and after his acquittal. There was considerable criticism of the Crown’s tactics by the trial judge at the first respondent’s trial and by others, and the matter was subject to much publicity. After the passing of the 2011 Act the Crown, having received further information, applied to the High Court for the acquittals to be set aside and authority given for a fresh prosecution. New matter relied on by the Crown, which it was accepted could not with reasonable diligence have been known to them at the time of the acquittals, included evidence of admissions by the first respondent, and also evidence from C that she had been asked by the first respondent to find a knife and, after she had failed to do so, to buy a box of knives and put the smallest one in a drawer in his flat, which the Crown submitted was evidence of an attempt to deceive the police who were asked by the first respondent’s agents to look for the murder weapon in the drawer. In respect of the second and third respondents the Crown relied on evidence from a witness who had seen all three respondents in the attack on the deceased, and evidence of admissions by the second respondent that he had “done” the deceased, and of a statement by the third respondent that he had been aware of an intention on the part of the first and second respondents to “rough up” the deceased. It was accepted at the hearing of the application that, for a variety of reasons concerned principally with failures in communication between Crown counsel marking the papers and the procurators fiscal reporting the case to them, no considered decision had been taken in relation to the inclusion of the second or third respondents in the first indictment, and that the correct decision, based on the evidence known at the time, would have been to prosecute the first two respondents for murder and to list the third respondent as a witness. Compatibility minutes were lodged by all the respondents but insisted on only by the second respondent, who relied on arts.5 and 6 of ECHR. He submitted also that the jury’s verdict under deletion of the murder averments did not constitute an acquittal of murder for the purposes of the 2011 Act. It was accepted in the appeal that it was sufficient to proceed on the basis of affidavits. Held (1) that in a High Court case, where an admission is relied upon, it is the combination of admission and other new evidence which should be considered when applying the tests of strengthening substantially the case against the respondent (“case” meaning the evidence led at the original trial of that respondent) and of there having been a high likelihood of conviction as a result of the new and old evidence (para.37); (2) that ss.3(1) and 4(1) of the 2011 Act 2011 refer to acquittals of offences and not of charges, that charges may libel multiple offences (in the case of the indictments against the respondents assault and murder), and that a verdict of guilty under deletion of any reference to murder is a verdict which results in the acquittal of the accused of the offence of murder (para.36);

5344.indd 465

07/12/16 4:54 PM

466 A

5344.indd 466

HM Advocate v Coulter

2016 S.C.C.R.

(3) that the most obvious defect in the case which was presented at the first trial was the paucity of evidence which placed any weapon in the hands of any of the three respondents, and in particular, the lack of anyone speaking to seeing the first respondent with a knife (para.38); (4) that as it was not disputed that the evidence to be contained in the affidavits was capable of being regarded as credible and reliable by a reasonable jury, even if certain criticisms might legitimately be levelled at it with a view to undermining both its veracity and accuracy, the court would proceed on the basis of the affidavits in holding that, in the case of the first respondent, it was highly likely that a reasonable jury would have convicted him on the basis of the evidence at his trial together with the new material, including the admissions (para.41); (5)(i) that while it might be that the new evidence strengthened the case against the second respondent, it was difficult to conclude that it did so substantially, even in the limited sense in which those words had been interpreted as meaning having more than a trivial or marginal effect; that for the same reason it was not possible to conclude that a reasonable jury would have been “highly likely” to convict on a combination of the old and new evidence, that in so determining, the court had disregarded the direction given at the second trial to acquit in the event of the jury being unable to exclude the first respondent as actor, but had assessed the matter on the assumption that, were the second respondent to be re-indicted, he would, on the contrary, face a libel of acting in concert with the first respondent (para.43); and (ii) that a similar approach applied to the purported new evidence against the third respondent, that at the trial he had admitted being present at the locus, that there was evidence that he was involved in an attack on the deceased, that he denied this and his denial must have been regarded by the jury as providing a reasonable doubt, and that in all these circumstances, even if the new evidence did strengthen the case against him, it did not do so substantially or in such a way as to make it highly likely that a reasonable jury would have convicted, and that the application, insofar as it related to the second and third respondents, must be refused (para.44); (6)(i) that the court’s power to set aside an acquittal was circumscribed by the provision that it may do so only if it is satisfied that that is in the interests of justice, that the starting-point of the 2011 Act was the recognition that there ought to be a rule against double jeopardy, and that any assessment of whether, in a particular case, there ought to be an exception made “in the interests of justice” must recognise the purpose of the rule in societal terms (para.45); (ii) that the Law Commission had been able to recommend an exception to the rule of finality in criminal verdicts in the situation where new evidence emerged that the acquitted person had admitted the offence because “there is something profoundly disquieting about the notion that a person should effectively be able to boast—with impunity—that he has ‘got away with it”’ (para.46); (iii) that the parallel with the evidence now proffered in relation to the first respondent was manifest and provided a strong basis for concluding, in the absence of countervailing factors, that the orders sought should be granted in the case of the first respondent, but that the same considerations had less force in the case of the second respondent’s somewhat vague comments (para.46); and (iv) that the strength of the new evidence may also be seen as a component in determining where the interests of justice may lie, that the more certain the new proof, the more it will be in the interests of justice to re-indict, and that the new evidence concerning the purchase and placement of the knife was capable of being regarded as significant although, even if accepted, it could, its strength might also be seen as a component in determining where the interests of justice might lie, that the more certain the new proof, the more it will be in the interests of justice to re-indict, and that the new evidence concerning the

07/12/16 4:54 PM

2016 S.C.C.R.

HM Advocate v Coulter

467

purchase and placement of the knife was capable of being regarded as significant although, even if accepted, it could hardly be said to afford certain evidence of guilt (para.47); (7) that the counter-balancing factors in the case of each respondent centred upon the prospect of now being able to have a fair trial, including, in that context, an assessment of the effect of the passage of time and any adverse publicity, and, that they also involved a consideration of whether the Crown should be afforded an opportunity to remedy what seemed to be clear past errors, that the passage of time was significant, but not decisive in a situation where, as here, the original evidence was relatively intact and no prejudice could be identified, that no particular adverse publicity had been drawn to the court’s attention, that for the reasons explored in similar situations, including the retrial of persons following appeal, there appeared to be no real issue here,. and that the focusing effect of listening to the evidence and the judge’s directions ought to be sufficient to eliminate any unfairness in this area (para.48); and (8) that there was no substance in the compatibility issues (para.51); and acquittal of first respondent set aside and new prosecution authorised. Observed (1) that the court was concerned to note that, in relation to the second and third respondents, the new material generally appeared to point to the first respondent as the principal actor, that the effect of that was that, as distinct from the position of the first respondent, were a new prosecution to be authorised the applicant would be proceeding against the second and third respondents on a quite different basis from that which they faced at their original trial (para.49); and (2) that, had it required to do so, the court would have held that it was not satisfied that it was in the interests of justice that the acquittals of the second and third respondents, who were prosecuted on a different basis from the prosecution now sought, be set aside (para.50).

Cases referred to in the opinion of the court: Al-Megrahi v HM Advocate, 2002 S.C.C.R. 509; 2002 J.C. 99; 2002 S.L.T. 1433 (both sub nom Megrahi v HM Advocate) Attorney General’s Reference (No. 2 of 2001) [2003] UKHL 68; [2004] 2 A.C. 72; [2004] 2 W.L.R. 1; [2004] 1 All E.R. 1049 Black v HM Advocate, 2006 S.C.C.R. 103; 2006 S.L.T. 685 Brown v HM Advocate, 1993 S.C.C.R. 382 Carberry v HM Advocate [2013] HCJAC 136; 2013 S.C.C.R. 587 Eckle v Germany [1982] ECHR 4; (1983) 5 E.H.R.R. 1 Fraser v HM Advocate, 2000 S.C.C.R. 412 Greenshields v HM Advocate, 1989 S.C.C.R. 637 Haney v HM Advocate (No. 2), 2003 S.C.C.R. 252; 2003 J.C. 46 Healy v HM Advocate, 1990 S.C.C.R. 110 HM Advocate v Beggs (No.2), 2001 S.C.C.R. 879; 2002 S.L.T. 139 HM Advocate v Boyle, 1992 S.C.C.R. 939; 1993 J.C. 5; 1993 S.L.T. 1079 HM Advocate v Sheridan [2011] HCJ 1; 2012 S.C.L. 298 HM Advocate v Sinclair [2014] HCJAC 131; 2014 S.C.C.R. 554; 2015 J.C. 137; 2014 S.L.T. 1092 HM Advocate v Stewart [2010] HCJAC 25; 2010 S.C.C.R. 341; 2010 J.C. 183; 2010 S.L.T. 881 Howitt v HM Advocate, 2000 S.C.C.R. 195; 2000 J.C. 284; 2000 S.L.T. 449 Kalyanjee v HM Advocate [2014] HCJAC 44; 2014 S.C.C.R. 397; 2014 J.C. 233; 2014 S.L.T. 740 Kilbane v HM Advocate, 1989 S.C.C.R. 313; 1990 S.L.T. 108 McAuley v HM Advocate, 1946 J.C. 8; 1946 S.L.T. 50

5344.indd 467

07/12/16 4:54 PM

468 A

HM Advocate v Coulter

2016 S.C.C.R.

Mitchell v HM Advocate [2008] HCJAC 28; 2008 S.C.C.R. 469 Montgomery v HM Advocate, 2000 S.C.C.R. 1044; 2001 S.C. (P.C.) 1; 2001 S.L.T. 37 Nikitin v Russia [2004] ECHR 371; (2005) 41 E.H.R.R. 10 O’Neill v HM Advocate [2013] UKSC 36; 2013 S.C.C.R. 401; 2013 S.C. (U.K.S.C.) 266; 2013 S.L.T. 888 R v A [2008] EWCA Crim 2908; [2009] 1 W.L.R. 1947; [2009] 2 All E.R. 898 R v Dobson [2011] EWCA Crim 1255; [2011] 1 W.L.R. 3230 R v Dunlop [2006] EWCA Crim 1354; [2007] 1 W.L.R. 1657 R (on the application of Cart) v Upper Tribunal [2011] Q.B. 120; [2011] 2 W.L.R. 36; [2010] 4 All E.R. 714 Ras Behari v King-Emperor (1933) 50 T.L.R. 1 Stuurman v HM Advocate, 1980 J.C. 111; 1980 S.L.T. (Notes) 95 Toal v HM Advocate [2012] HCJAC 123; 2012 S.C.C.R. 735. Ronnie Coulter, Andrew Alexander Marshall Coulter and David Shields Montgomery were acquitted of murder after trials in the High Court at Glasgow in 1999 and 2000. The Crown subsequently applied to the High Court to set aside the acquittals and authorise a fresh prosecution on the basis of the evidence referred to in the opinion of the court. The application was heard by the Lord Justice Clerk (Carloway), Lady Dorrian and Lord Malcolm. For the applicant: Prentice QC, AD. For the first respondent: Allan QC, G Ross, instructed by Manini Belardo Matteo, Solicitors, Coatbridge. For the second respondent: Graham, Tonner, instructed by John Pryde & Co, SSC for Ness, Gallagher & Co, Solicitors, Wishaw. For the third respondent: Ogg QC, Labaki, instructed by John Pryde & Co, SSC for Stephen J MacBride, Solicitors, Wishaw. On 28 November 2014 the Lord Justice Clerk delivered the following opinion of the court.

5344.indd 468

LORD JUSTICE CLERK Introduction

[1] The applicant craves the court to set aside the acquittals of each of the respondents relative to the murder of Surjit Singh Chhokar on 4 November 1998 in Overtown, Lanarkshire. He seeks authority to bring a new prosecution for the “original offence” against all of the respondents. The first respondent was acquitted on 9 March 1999 after a trial on an indictment which libelled murder against him only; albeit “while acting with others”. The second and third respondents were acquitted on 28 November 2000 after a subsequent trial against them on an indictment for murder, which did not libel concert in the murder with the first respondent. [2] The applicant maintains that, subsequent to the respective acquittals of the first two respondents, evidence that each had made certain admissions was discovered. In addition, following the acquittals of all three respondents, the applicant avers that new evidence has emerged against each of them. The application is therefore made in terms of ss.3 and 4 of the Double Jeopardy (Scotland) Act 2011. The essential issue in respect of each respondent is whether the statutory tests for setting aside acquittals and authorising new prosecutions have been met.

07/12/16 4:54 PM

2016 S.C.C.R.

HM Advocate v Coulter

469 A

The original trials

[3] The deceased was killed as a result of a stab wound to his heart during an incident which occurred at about 11.30 pm on 4 November 1998 outside the home of his girlfriend, namely Elizabeth Bryce, in Garrion Street. Within a matter of days, each of the respondents was arrested. They were all committed for further examination, albeit on slightly different days, at Hamilton Sheriff Court. For reasons which are documented in detail in the report by Sir Anthony Campbell, dated June 2001, the instruction from Crown counsel thereafter was to proceed to full committal on the murder charge only against the first respondent and to release the other two respondents from custody. [4] Having considered the precognition subsequently prepared, Crown counsel determined that, in the first instance, the Crown would indict only the first respondent for murder, albeit that the position of the second and third respondents was to be re-considered after the trial. It was Sir Anthony’s view that, for a variety of reasons concerned principally with failures in communication between Crown counsel marking the papers and the local and Crown Office procurators fiscal reporting to them, no considered decision had been taken in relation to the inclusion of the second or third respondents in the first indictment. The correct decision, based on the evidence known at the time, would have been to prosecute the first two respondents for murder and to list the third respondent as a witness. The court did not understand these findings to be disputed by any party. [5] The trial of the first respondent took place in March 1999. He pled not guilty and incriminated the two other respondents. The evidence was that the deceased lived in a flat in the multi-storey block at CaplawTower, Gowkthrapple, Wishaw. Also living in the block were the first respondent and, in a different flat, his nephew, the second respondent. On 4 November, the deceased’s flat had been broken into and a benefit cheque had been stolen. The deceased and Ms Bryce were told at the Job Centre that this cheque had been cashed by the second respondent, who was known to them. Ms Bryce took the matter up with the second respondent’s family, who lived near her in Overtown. She spoke to the second respondent and told him that she may have to involve the police. The second respondent had replied that, if he was going to be in trouble with the police, the deceased would be “getting it”. Ms Bryce asked the second respondent to come to her home at about 11.30 pm to discuss the matter with the deceased. By that time the deceased would have finished his work as a waiter and returned to her address. [6] During the course of the evening, the first and second respondents were in the first respondent’s flat. Two women testified that the respondents had discussed going to Overtown with the intention of discouraging the deceased from contacting the police. This was to be achieved by hitting him “a few times”. The second respondent said that he would take the bat which he had in his flat. He also said that he would “batter” the deceased with his boots, which he was about to put on. Other more extreme methods of inflicting pain were discussed, but dismissed as being humorously intended. In crossexamination, the witnesses agreed that all of this was very much the second respondent’s operation with the first respondent joining in, if the deceased chanced to gain the upper hand. The two respondents were going to ask the third respondent to give them a lift to Overtown. [7] Ms Bryce testified that, at about 11.30 pm, she saw the deceased park his car near her house. He approached her gate. All three respondents appeared. They seized hold of the deceased. Ms Bryce described the first respondent holding the deceased’s right arm, the third respondent holding the

5344.indd 469

07/12/16 4:54 PM

470 A

5344.indd 470

HM Advocate v Coulter

2016 S.C.C.R.

deceased’s left arm and the second respondent holding him by his jacket “in the middle”. They were running him across the road. The second respondent was pushing him and the other two were pulling him. [8] Ms Bryce lost sight of the incident whilst she armed herself first with a bottle and then a spade. She ran out of the house shouting at the respondents to stop. By this time the deceased and the respondents had moved across to the other side of the street. She saw the third respondent run off. The second respondent stepped back. The first respondent, who had been holding something, swung his right hand underarm towards the abdomen of the deceased. The first and second respondents then ran away. The deceased was able to tell Ms Bryce that he had been stabbed before he collapsed with fatal wounds. [9] There was no other eyewitness evidence about the interaction between the three respondents and the deceased. What is, of course, known is that, during this short period, the deceased had suffered three stab wounds, including the fatal blow to the heart, and multiple bruising caused by blunt force trauma. [10] There was further evidence that, on the following day, the first respondent had given his then girlfriend, namely Alexandra Tierney, bags containing clothing and a set of knives, with one missing, to dispose of. These were later recovered. A fingerprint of the first respondent was on the box containing the knives and that of the second respondent on one of the knives. [11] Neither the second nor the third respondents was called to give evidence. The first respondent did not testify on his own behalf. He was nevertheless acquitted, presumably on the basis that the jury were not satisfied that he was either the person who had stabbed the deceased or that he had acted in concert with whichever one of the respondents had been responsible. There followed certain outspoken remarks of the trial judge, who publicly criticised the Crown for not prosecuting all three respondents for the murder on the one indictment. This in turn provoked a sharp response from the Lord Advocate regarding the correct division of constitutional responsibilities. [12] The Crown re-assessed the situation and decided to indict the second and third respondents for the murder. The view was taken that, standing McAuley v HM Advocate, the Crown were barred from proffering a charge which ran contrary to a prior jury verdict. Accordingly, the form of the indictment was constrained. That constraint was ultimately to lead to a fundamental problem in the prosecution of the case. [13] The new indictment libelled that, although the second and third respondents had initially acted with the first respondent in assaulting the deceased by seizing, struggling with and striking him on the body, they had acted in concert only with each other in the stabbing of the deceased. There was no allegation of acting in concert with the first respondent in the murder, notwithstanding that it had been the clear position of the Crown at the first trial that he had been the principal actor. [14] The evidence at the second trial included much of the same testimony as had been given at the first. There was one other eyewitness, namely Thomas Muir, who said that he had seen one of the attackers striking the deceased on the shoulder with a stick. The first respondent was called as a Crown witness. He maintained that he had not been involved in the assault, although he had seen the other two respondents attacking the deceased. He had only intervened to defend him. He had not seen anyone using a knife, nor had he seen the deceased being stabbed. A baton and a skip cap (which had been worn by the second respondent at the material time) were discovered in a vacuum cleaner in the second respondent’s flat.

07/12/16 4:54 PM

2016 S.C.C.R.

HM Advocate v Coulter

471

[15] Interviews of the second and third respondents contained admissions from both that they had been present at the time of the assault. The second respondent maintained that he had been alone at the time of the attack. He had struck the deceased once with the bat. The third respondent made no admission at interview of inflicting any violence. The second respondent did not give evidence on his own behalf. However, he did lead evidence from his mother, Margaret Chisholm (the first respondent’s sister), that she had visited the first respondent whilst he had been on remand pending trial. He had admitted to her that he had stabbed the deceased. “He was quite proud of it.” Following upon his acquittal, the first respondent had been in her house and had said, “I’ve just got away with the perfect murder.” The third respondent did testify. He said that he had driven the other two to the scene, although he had not anticipated any violence. Once at the locus, he had seen the second respondent making a swinging motion towards the deceased with a bat. At that point, the first respondent had “banged him, got into him”. It looked as if he was punching him with both hands. He had not seen anything in his hands. [16] The trial judge directed the jury, as he had been bound to do, that if they considered that the first respondent had been responsible for the stabbing, they would require to acquit, standing the terms of the libel. The second respondent was acquitted of the murder, although convicted of assault by using the bat. The third respondent was acquitted of the whole charge. [17] As at the conclusion of the second trial, therefore, the Crown had unsuccessfully prosecuted the first respondent on the basis that he had been the principal actor. They had unsuccessfully prosecuted the second and third respondents on the basis that the first respondent had not been the principal actor. During the course of the second trial, having regard to Howitt v HM Advocate, which had overruled McAuley, the trial judge had raised with the Crown the possibility that they might wish to amend the indictment to libel the participation of the first respondent in the murder. However, a considered decision was taken not to do that. This had been partly because of the line which the Crown had already taken during the course of the second trial and partly because of the evidence of the pathologists that the second respondent had been in the better position to stab the deceased, at least given the initial positionings spoken to by Ms Bryce.

Alleged subsequent admissions and purported new evidence

[18] In seeking to have the acquittal of the first respondent set aside, the Crown pointed first to the admissions by him to his sister, Margaret Chisholm, whilst he was on remand and after he had been acquitted. Secondly, Martin Duncan, the first respondent’s brother-in-law, had recently come forward with evidence to the effect that, between the dates of the two trials, when the first and second respondents had both been in his car, the first respondent had said, “We’ve got away with it”, referring to the death of the deceased. Hugh Langford had also recently reported that, on the day of the second respondent’s acquittal, both the first and the second respondents had been “showboating” about “getting off with it” and about the success of their plan to blame one another. It is accepted by the Crown that he must at least have been mistaken about the date. Katelyn Finlay, whose mother had been in a relationship with the first respondent, had recently volunteered that the first respondent had said to her mother: “Aye, I done it”. She referred to letters (not recovered) from him in a similar vein. [19] The Crown founded upon new evidence, not in the form of admissions, but again coming from Margaret Chisholm. She had now said that the first

5344.indd 471

07/12/16 4:54 PM

472 A

HM Advocate v Coulter

2016 S.C.C.R.

respondent had asked her to find a knife (presumably the murder weapon) which had been deposited somewhere between Overtown and Gowkthrapple. She had attempted to do this, but had failed. The first respondent, who was still in custody, had asked her to go and buy a set of knives, take out the smallest one and put it in a drawer in his flat. She did not do this. However, it appears that the first respondent’s agents made a request to the police to look for the murder weapon in the drawer, thus suggesting that the first respondent had attempted to set up a situation in which the police would discover a knife, which might either have been used to commit the murder but which was not capable of being forensically linked to him or simply explained the whereabouts of the knife missing from the set. [20] In relation to the second respondent, the Crown founded upon evidence of purported admissions from the second respondent. Hugh Langford’s evidence involved the second respondent in conjunction with the first respondent. Mary Langford, his sister, spoke to seeing the second respondent at a bus stop, whilst he had been at liberty. He had said, “I’m out on bail. I’ve done Chhokar.” Derek Miller had been a cellmate of the second respondent, during the short period of his initial remand. He maintained that the second respondent had said that he and his uncle “had done a Paki”. [21] There was new evidence involving both the second and third respondents. The Crown founded upon Carol Laing, a neighbour of Ms Bryce in Garrion Street. Although she had not previously said anything because of “fear of hassle”, she now maintained that she had seen all three of the respondents in an attack on the deceased, at least involving pushing. Paul Rudden, who now lives in New Zealand, had provided a statement to the effect that the third respondent had told him that he had been aware of a preconceived plan on the part of the first and second respondents to “rough up” the deceased, although there was nothing in his statement to suggest that the third respondent had been aware that any significant violence was to be used. Submissions Crown

5344.indd 472

[22] The advocate depute submitted that, in terms of ss.3(1) and 4(1) of the 2011 Act, each accused had been acquitted of the “original offence”; that being the offence of murder (HM Advocate v Boyle; HM Advocate v Stewart). In each case the respondents had either admitted the offence subsequently and/or were the subject of new evidence that each had committed the offence (ss.3(3); 4(3)). Neither the admissions nor the new evidence was known, nor could it with the exercise of reasonable diligence have become known, to the Crown at the time of the respective acquittals (ss.3(4)(a); 4(7)(b)). The admissions and/or new evidence had strengthened substantially “the case” against the relevant respondent (ss.3(4); 4(7)), in the sense of having more than a trivial or marginal effect on the strength of the case and adding weight or substance to it (HM Advocate v Sinclair). It was accepted, under some prompting by the court, that since admissions were dealt with separately under s.3, they could not also be regarded as new evidence under s.4. Nevertheless, it was “highly likely” that a reasonable jury would have convicted the first and second respondents of the original offence on the basis of the new admissions and the evidence which had been led at their respective trials (s.3(4)(c)). This was so even if the admissions were not all unequivocal (Greenshields v HM Advocate). It was equally likely that the same result would have followed in respect of the combination of the new evidence against all of the respondents

07/12/16 4:54 PM

2016 S.C.C.R.

HM Advocate v Coulter

473

and that led at their respective trials (s.4(7)(c)). The new evidence of all three acting in concert was particularly significant in relation to the second and third respondents (Black v HM Advocate). [23] It was in the interests of justice that the court set aside the acquittals (ss.3(4)(d); 4(7)(d)) and grant authority for a new prosecution. It was accepted that, notwithstanding the terms of the written case and argument which quoted dicta from Ras Behari v King-Emperor at p.2; R(on the application of Cart) v Upper Tribunal at para.34; and R v A at para.41, the concept of the interests of justice did include a consideration of finality. However, it also required that the public have confidence that the criminal justice system would result in the guilty being convicted unless it was unfair to do so. The interests of the deceased’s family were relevant. A fair trial remained possible, despite the passage of time. All but two of the original witnesses were still alive. The evidence of the deceased witnesses was available in written form and did not pose a problem. Copies of all of the productions were available. The relevant labels had been recovered. [24] The Crown had exercised due diligence in re-investigating the case. They had brought this application within a reasonable time after the coming into force of the 2011 Act in November of that year. Fresh statements had been taken from all the original witnesses. The locus had been reconstructed for photographic purposes. [25] Any issues surrounding publicity adverse to the respondents could be satisfactorily resolved. The respondents had not pointed to any such publicity. In any event, any media reporting would now be of “some antiquity” (HM Advocate v Sinclair at para.132). The public memory was “notoriously short” (Stuurman v HM Advocate at p.123). Shorter periods had been deemed sufficient to mitigate any prejudice (HM Advocate v Beggs; Kilbane v HM Advocate; and Haney v HM Advocate (No. 2)). The focusing effect of listening to evidence over a prolonged period was important (HM Advocate v Sheridan at p.304) as was the impact of jury directions (Montgomery v HM Advocate at pp.1106–1107; Mitchell v HM Advocate at paras 71–72; Beggs at para.37; Sinclair at para.132; R v Dobson at paras 80–91). In R v Dunlop it had been suggested (para.22) that adverse publicity could be dealt with by appropriate jury management. There was a danger of over-estimating the impact of any prior publicity (Fraser v HM Advocate at p.421; Mitchell at para.76; Beggs at para.36). [26] In relation to any delay, this was best examined within the context of the interests of justice, rather than as a stand-alone allegation of a breach of the reasonable time requirement in art.6 of the European Convention. At present, the respondents were acquitted persons. They had been since their trials. They had not been adversely affected by any delay post trial in Convention terms. They could not be “charged” in terms of art.6 (Eckle v Germany at para.73; Attorney General’s Reference (No. 2 of 2001) at para.27; O’Neill v HM Advocate) unless and until the court so authorised. The period between acquittal and the application thus fell to be disregarded (R v Dunlop at para.29).

First respondent

[27] In the course of the application, the first respondent had initially lodged two notices of his intention to raise a compatibility issue. Shortly before this application, he lodged a further notice intended to supersede the earlier two. This raised issues of delay and adverse publicity. At the commencement of his submission, the first respondent withdrew the extant compatibility issue minute.

5344.indd 473

07/12/16 4:54 PM

474 A

HM Advocate v Coulter

2016 S.C.C.R.

[28] The first respondent adopted the submission of the second respondent (infra) that, in terms of both ss.3(1) and 4(1), the first respondent was not “an acquitted person”. On the contrary, he had been convicted of assault on the first indictment after trial. [29] The first respondent did not dispute that the existence of either the alleged admissions or the purported new evidence was not known and could not have been known to the Crown prior to the first respondent’s acquittal (ss.3(4)(a); 4(7)(b)). It was accepted that, were the admissions to be believed, the case against the first respondent would be strengthened substantially (s.3(4)(b)). However, in relation to the issue of whether it was “highly likely” that a reasonable jury would have convicted on the basis of the admissions or the new evidence when combined with the evidence at trial, this involved a qualitative assessment which could not be achieved by looking at the evidence on paper. In a manner similar to the court’s approach in “fresh evidence” appeals, the new material had to be regarded as credible and reliable (Al-Megrahi v HM Advocate at para.219). In any event, the criterion of high likelihood had not been met in relation to either the admissions or the new strands of evidence. The Act was not designed to allow the Crown two bites at the cherry. The first respondent had lived with the verdict of acquittal for many years. In his case, finality was justice. Second respondent

5344.indd 474

[30] The second respondent maintained that he was not a person acquitted of the original offence (ss.3(1) and 4(1)). Rather, he had been convicted of an assault with a weapon; that having been part of the libel which had led to the averment of murder. The verdict had been one of guilty, albeit under deletion of the use of the knife and hence the element of murder. Murder was not an offence separate from assault. Assault was an essential component of murder. In returning their verdict, the jury had not acquitted the second respondent of murder, but had convicted him of all that they could have done, standing the terms of the indictment. [31] The alleged admissions and purported new evidence took the Crown no distance beyond that which had reflected their original, and what was now again their, approach to the evidence. They did not advance the Crown case further than the terms of the libel of which the second respondent had already been convicted. The accounts given by Mr Duncan and Mr Langford involved the second respondent reacting to remarks by respectively laughter and silence. The comments said to have been made to Mr Miller and Miss Langford pointed only to involvement in an assault and not a homicide. None of this strengthened substantially the case against the second respondent. It would not, when combined with the evidence at the original trial, have rendered a conviction highly likely. [32] The new evidence from Mrs Laing was to a similar effect. The jury had already convicted the second respondent of involvement in an attack with a weapon. Mrs Laing did not advance the case against the second respondent, especially given that the Crown’s position was again that the first respondent was the person who had stabbed the deceased. [33] The second respondent did not insist on his first compatibility issue minute, which related to the reasonable time requirement, or his second minute, relating to general fairness. These aspects could be addressed as an aspect of the interests of justice. He did, however, press a third point said to raise such an issue. This was that the applicant had breached the second respondent’s art.5 and 6 rights by presenting this application to the court.

07/12/16 4:54 PM

2016 S.C.C.R.

HM Advocate v Coulter

475

This amounted to an attempt to “deny the second respondent his (art.5) right to freedom” following what had been anticipated to be a final verdict of the jury. The second respondent’s art.6 rights were infringed insofar as the applicant was using the double jeopardy process not only to present new evidence but also to rectify flawed decisions which had been taken in the past. The applicant was entitled to try to remedy past injustice, but not to overcome the finality of verdicts. [34] Although the deceased’s family might expect the Crown to do everything practicable to bring his killers to justice, the interests of justice required that matters must reach a point when they became final (Kalyanjee v HM Advocate; Carberry v HM Advocate; Toal v HM Advocate).

Third respondent

[35] The third respondent did not insist upon his compatibility issue minute. It was not disputed that the third respondent had been acquitted of the original offence. There had been no sufficiency of evidence against him until he himself had given evidence at his own trial. That had involved him admitting being at the scene. The new evidence from Mr Rudden and Mrs Green did not involve the third respondent in any attack with a weapon and hence in a murderous assault. It did not strengthen substantially the case against him, nor did it make it highly likely that a reasonable jury would have convicted.

Decision

[36] Each of the respondents has been acquitted of the offence of murder, which was libelled in the indictments upon which they were tried. Sections 3(1) and 4(1) of the Double Jeopardy (Scotland) Act 2011 do not refer to acquittals of charges but of offences. Charges may libel multiple offences; in the case of the indictments against the respondents, these were assault and murder. A jury returning a verdict of guilty under deletion of any reference to murder is a verdict which results in the acquittal of the accused of the offence of murder. [37] Section 3(1), which relates only to post-acquittal evidence of admissions, can be utilised in respect of any acquittal in summary or solemn proceedings. Section 4(1), which relates to new evidence, may be employed only where the acquittal has been in the High Court. This does not mean that an admission cannot also be new evidence for the purposes of s.4(1). In a High Court case, where an admission is relied upon, it is the combination of admission and other new evidence which should be considered when applying the tests of strengthening substantially the case against the respondent (“case” meaning the evidence led at the original trial of that respondent) and of there having been a high likelihood of conviction as a result of the new and old evidence. [38] The most obvious defect in the case which was presented at the first trial was the paucity of evidence which placed any weapon in the hands of any of the three respondents. In particular, there was the lack of anyone speaking to seeing the first respondent with a knife. Ms Bryce came closest to singling out the first respondent with her reference to his underarm swing towards the deceased’s abdomen, but the jury must have had some difficulty with her testimony given the nature of their verdict. Perhaps the lack of other eyewitnesses or the absence of circumstantial support for her account was a feature. Alternatively, the lack of testimony from any of the three protagonists may have troubled the jury in circumstances in which only one had been selected for trial. If the full rigour of the rationale in Brown v HM Advocate

5344.indd 475

07/12/16 4:54 PM

476 A

5344.indd 476

HM Advocate v Coulter

2016 S.C.C.R.

were to be followed, it would not be too difficult to regard the evidence at the first trial, against only one of three possible actors, as less than conclusive. This was clearly the worry of the advocate depute at that diet. [39] What happened after the acquittal, however, if Mrs Chisholm is to be accepted, is that there emerged evidence that the first respondent had already filled what might have been regarded as the major fissure in the Crown case. He had admitted that he had been the one who had stabbed the deceased. It is not disputed that the Crown could not, with reasonable diligence, have been aware of this admission prior to trial. It was boosted by his post-trial statement, again to Mrs Chisholm, that he had “got away with” murder. There are the additional alleged statements to Mr Duncan, Mr Langford and Miss Finlay, but the clearest incriminating statement, if it is to be believed, is that to Mrs Chisholm. It is she, the first respondent’s sister, who also provides the new evidence concerning the elaborate attempt at knife recovery and planting. [40] As the first respondent recognised, it is a short step to holding that this evidence strengthens substantially the “case”, that is to say the evidence at the original trial, against the first respondent. [41] Although it was originally contemplated that the court might require to hear oral testimony, at the procedural hearing of 29 August 2014 it was accepted that it would be sufficient that affidavits be produced. That was on the basis that it was not disputed that the evidence to be contained in the affidavits was capable of being regarded as credible and reliable by a reasonable jury, even if certain criticisms might legitimately be levelled at it with a view to undermining both its veracity and accuracy. The court proceeds on that basis in holding also that, in the case of the first respondent, it is highly likely that a reasonable jury would have convicted the first respondent on the basis of the evidence at his trial together with the new material, including the admissions. [42] In addressing the same questions in relation to the second and third respondents, the court is unable to reach the same conclusion. The case as presented at the second trial included, amongst other adminicles, an admission by the second respondent to the police that he had attacked the deceased with a bat; presumably the instrument subsequently found in his vacuum cleaner. There was clear evidence from Ms Bryce that he had been involved in a concerted attack on the deceased. There was evidence that he had had a preconceived plan to carry out such an attack, even if, for reasons which are unclear, the jury’s verdict may be read as excluding him from the initial stages of the incident. The admissions attributed to the second respondent, other than the one to Miss Langford, are, first, in the form of limited reactions to the remarks of his uncle and, secondly, dubious as to their authorship. Even that to Miss Langford that he had “done” the deceased and to Mr Miller that he and his uncle had done so are somewhat equivocal, given his admitted responsibility for at least part of the attack. The new evidence from Mrs Laing of his involvement as one of three men goes little beyond the testimony of Ms Bryce or indeed that of the third respondent insofar as he described the second respondent attacking the deceased. [43] It may be that all of this strengthens the case against the second respondent, but it is difficult to conclude that it does so substantially, even in the limited sense in which those words have been interpreted as meaning having more than a trivial or marginal effect (HM Advocate v Sinclair, Lady Dorrian, delivering the opinion of the court, at para.100). For the same reason it is not possible to conclude that a reasonable jury would be “highly likely” to have convicted on a combination of the old and new evidence. In so determining, the court has disregarded the direction given at the second trial

07/12/16 4:54 PM

2016 S.C.C.R.

HM Advocate v Coulter

477

to acquit in the event of the jury being unable to exclude the first respondent as actor. It has assessed the matter on the assumption that, were the second respondent to be re-indicted, he would, on the contrary, face a libel of acting in concert with the first respondent. [44] Suffice it to say, a similar approach applies to the purported new evidence against the third respondent. At the trial, he admitted being present at the locus. There was evidence that he was involved in an attack on the deceased; even if he denied this and his denial must have been regarded by the jury as providing a reasonable doubt. In all these circumstances, even if the new evidence does strengthen the case against him, it does not do so substantially or in such a way as to make it highly likely that a reasonable jury would have convicted. It follows from this that the application, insofar as it relates to the second and third respondents, must be refused. [45] The court’s power to set aside an acquittal is circumscribed by the provision that it may do so only if it is satisfied that that is in the interests of justice. The starting-point of the 2011 Act is the recognition that there ought to be a rule against double jeopardy (s.1). Any assessment of whether, in a particular case, there ought to be an exception made “in the interests of justice” must recognise the purpose of the rule in societal terms. As the Law Commission put it (SLC Report on Double Jeopardy No. 218 para.2.2): “First, the rule is a fundamental recognition of the finality of criminal proceedings. Finality of criminal verdicts provides at least two major benefits to society. The individuals involved in the trial can continue with their lives confident in the knowledge that the matter has been resolved. In addition, there is the more general benefit that public confidence in the efficacy of the court system is bolstered. Second, the rule has an important function in expressing the limits of the power of the state vis-à-vis the citizen. Third the rule against double jeopardy affords protection from the anxiety and humiliation that repeated trials would undoubtedly cause accused persons. Protection from such stress is what Hume described as the ‘obvious and humane consideration’ which is in his view the primary justification for the rule against double jeopardy” (see also paras 4.37 et seq). That finality is such an important aspect of justice has repeatedly been stressed in a number of different situations (Kalyanjee v HM Advocate,LJC (Carloway) at para.72 citing Healy v HM Advocate, LJC (Ross) at p.118, Toal v HM Advocate, LJG (Gill) at para.108). It remains a major consideration in an application of this type (HM Advocate v Sinclair, Lady Dorrian at para.104). [46] The Law Commission were able to recommend (para.4.2) an exception to the rule in the situation where new evidence emerged that the acquitted person had admitted the offence because: “There is something profoundly disquieting about the notion that a person should effectively be able to boast—with impunity—that he has ‘got away with it’.” The parallel with the evidence now proffered in relation to the first respondent is manifest. It provides a strong basis for concluding, in the absence of countervailing factors, that the orders sought should be granted in his case. The same considerations have less force in the case of the second respondent’s somewhat vague comments. [47] The Law Commission was far less confident about the situation where new evidence, other than that of an admission, had emerged. It was unable to reach a concluded view (para.4.43). Ultimately, Parliament considered that an

5344.indd 477

07/12/16 4:54 PM

478 A

5344.indd 478

HM Advocate v Coulter

2016 S.C.C.R.

exception based on this ground should only be applicable in the most serious of cases; that is those prosecuted in the High Court. Although mentioned in sections which create an initial hurdle, which the court does not consider has been surmounted in relation to the second and third respondents, the strength of the new evidence may also be seen as a component in determining where the interests of justice may lie. The more certain the new proof, the more it will be in the interests of justice to re-indict. Once more, the new evidence concerning the purchase and placement of the knife is capable of being regarded as significant although, even if accepted, it can hardly be said to afford certain evidence of guilt. [48] The counter-balancing factors in the case of each respondent centre upon the prospect of now being able to have a fair trial. They include, in that context, an assessment of the effect of the passage of time and any adverse publicity. They also involve a consideration of whether the Crown should be afforded an opportunity to remedy what seem to be clear past errors. The passage of time is significant, but not decisive in a situation where, as here, the original evidence is relatively intact and no prejudice can be identified. No particular adverse publicity has been drawn to the court’s attention. For the reasons explored in similar situations, including the retrial of persons following appeal (eg, Fraser v HM Advocate, Lord Osborne at pp.420–421) there appears to be no real issue here. The focusing effect of listening to the evidence and the judge’s directions ought to be sufficient to eliminate any unfairness in this area. Ultimately, the respondents did not press the point with much vigour. [49] The court is concerned to note that, in relation to the second and third respondents, the new material generally appears to point to the first respondent as the principal actor. The effect of that is that, as distinct from the position of the first respondent, were a new prosecution to be authorised the applicant would be proceeding against the second and third respondents on a quite different basis from that which they faced at their original trial. Permitting acquitted persons to face such a prospect, and allowing such a volte face on the part of the Crown, are important considerations to weigh in the balance in favour of the second and third respondents. The Crown elected to proceed in the manner which they did at the second trial. Having regard to the interests of justice, the court is not persuaded that it is right that they should, on the somewhat flimsy basis of the new material, be allowed to revert to a position which they might have adopted against the same respondents in the first place upon more or less the same material. [50] Having considered all the circumstances, the court is satisfied that it is in the interests of justice that the acquittal of the first respondent be set aside. It will therefore authorise a new prosecution in his case. Had it required to do so, the court would have held that it was not satisfied that it was in the interests of justice that the acquittals of the second and third respondents, who were prosecuted on a different basis from the prosecution now sought, be set aside. [51] That leaves, for the sake of completeness, the second respondent’s compatibility issues. The court has struggled to understand how the mere making of an application to the court can raise such an issue. In relation to art.5, that provides that everyone has a right to liberty. No one should be deprived of his liberty except in certain defined circumstances, including lawful detention after conviction by a competent court. The second respondent is at liberty. There has been no attempt by the applicant to deprive him of his liberty in advance of conviction. In these circumstances, no breach of art.5 can arise. In that regard, it is no surprise that the compatibility issue minute is entirely silent on the remedy sought for the alleged breach. In relation to art.6,

07/12/16 4:54 PM

2016 S.C.C.R.

HM Advocate v Coulter

479

re-prosecuting an acquitted person is not per se a breach of the right to a fair trial (Nikitin v Russia at para.57). Such unfairness will only arise if there is thereby created some imbalance between the interests of the individual and the need to ensure the effectiveness of the criminal justice system. However, the 2011 Act itself defines the limited parameters within which a new prosecution may be authorised. An important element is that such authorisation is under judicial control. The court must be satisfied that it is in the interests of justice that a new prosecution should proceed. That test is entirely compatible with the Convention jurisprudence (cf, the situation if the UK had ratified art.4 of Protocol No. 7). In these circumstances, the court is at a loss to understand how the applicant can be seen as breaching the second respondentâ&#x20AC;&#x2122;s art.6 rights merely by making an application to the court under legislative provisions which are not themselves regarded as incompatible with the Convention.

5344.indd 479

07/12/16 4:54 PM

A Bill of Suspension

22 July 2016

CLYDE AND CO (SCOTLAND) LLP

Complainer

against ANDREW RICHARDSON B

(Procurator Fiscal, Edinburgh)

Respondent

[2016] HCJAC 93

Warrant—Search warrant—Warrant to search for and seize documents held by solicitor and covered by legal privilege—No notice of application for warrant given to solicitors—Application inaccurate—Whether actions of applicant for warrant oppressive—Whether warrant should be suspended Warrant—Whether competent for single High Court judge to suspend sheriff ’s search warrant ad interim

The complainers, a firm of solicitors, sought an order from a High Court judge for the interim suspension of a search warrant on the ground that it related to privileged documents and that the application for the warrant contained inaccuracies. No argument was presented on the competence of the application for suspension. The documents were held by the complainers in connection with civil claims relating to an incident which occurred at a place, L, which had been discontinued as time-barred. Thereafter the police obtained a warrant from the sheriff for recovery of any papers relevant to L and any other evidence which might be material to the investigation into the alleged abuse at L. Warrant was granted and the police visited the complainers’ offices. After some discussion they agreed to delay executing the warrant to give the complainers time to consider their position. The complainers then brought a bill of suspension in the High Court. Held (1) that it was in the nature of remedies for preserving the status quo in the face of a threatened wrong that they be available quickly and on summary application, and that in practice if interim suspension cannot be granted a remedy will not be available (para.14); (2) that in determining whether a warrant should be suspended the court was concerned not only with the decision-making of the sheriff but also with the actions of the party who applied for the warrant (para.15); and (3)(i) that the actions of the respondent in applying for the warrant were oppressive, that he was obliged to ensure the accuracy of his averments so far as reasonably possible, that he was aware that he was seeking to acquire clients’ files and there was no reason to believe the complainers would act improperly and no question of urgency, that an obvious and easy step would have been to contact them directly (para.16); and (ii) that the averments in the application for the warrant related only to the supposed original documents of which copies had already been supplied and did not support the very wide terms of the crave, and that no provision was made for independent supervision of the police or for the documents to be supplied sealed unread and delivered to the court for adjudication on the issue of privilege (para.17); and warrant suspended ad interim and warrant given for service and matters continued for a hearing. 480

5344.indd 480

07/12/16 4:54 PM

2016 S.C.C.R. Clyde and Co. (Scotland) LLP v Richardson

481

Cases referred to in the opinion of the court:

Birse v HM Advocate, 2000 S.C.C.R. 505; 2000 J.C. 503 (sub nom Birse v MacNeill); 2000 S.L.T. 869 Executors of Lady Bath v Johnston, Fac. Coll. 12 November 1811 H Complainers, High Court of Appeal, 5 February 2016, report presently embargoed Hay v HM Advocate, 1968 J.C. 40; 1968 S.L.T. 334 McCowan v Wright (1852) 15 D. 229 Morton v Mcleod, 1981 S.C.C.R. 59; 1982 S.L.T. 187 Stewart v Harvie [2015] HCJAC 13; 2016 S.C.C.R. 1.

The complainers presented a bill of suspension to the High Court seeking suspension of a search warrant granted in Edinburgh Sheriff Court. The bill was heard by Lord Brodie on 22 July 2016. For the complainers: Smith QC, instructed by Clyde & Co, Solicitors, Edinburgh. For the respondent: No appearance.

On 22 July 2016l Lord Brodie suspended the warrant ad interim. His Lordship subsequently issued the following notes. LORD BRODIE [1] The complainers in this bill of suspension are a limited liability partnership, being solicitors with a place of business at Albany House, 58 Albany Street, Edinburgh. The respondent is the Procurator Fiscal, Edinburgh. The complainers seek suspension of a search warrant granted by the sheriff at Edinburgh on the application of the respondent, dated 21 July 2016 and timed at 15.37 hours (“the search warrant”). The application which came before me, on 22 July 2016 not long before 17.00 hours in chambers, was for interim suspension of the warrant. As at that time the bill had not been warranted for service. Having heard Mr Smith on behalf of the complainers, I adjourned in order to allow my clerk to advise Crown Office that the application had been presented and to invite the attendance of an advocate depute to represent the respondent. That invitation was made by telephone at a little after 17.00 hours. It was not taken up. Having heard Mr Smith further, I suspended the search warrant ad interim, granted warrant for service of the bill and continued the matter to a date to be fixed. [2] The circumstances in which that application was made, as I understood them from what appeared in the bill, in two telephone attendance notes and the explanation provided by Mr Andrew Smith QC, who was accompanied and instructed by Mr Graeme Watson, Solicitor advocate, a partner in the complainers, are as follows. [3] A client of the complainers is S. The complainers have acted for S in relation to claims for damages against it by individuals on the basis of its vicarious liability for alleged acts which occurred at a particular location, L. These claims have been discontinued on account of an acceptance that any claims were time-barred. It is averred by the complainers that in course of taking instructions from representatives of S these representatives “disclosed certain matters and were provided with advice . . . which advice and information being disclosed was privileged”. As I understood matters, the complainers retain in their possession documents and files, both paper and

5344.indd 481

07/12/16 4:54 PM

482 A

Clyde and Co. (Scotland) LLP v Richardson

2016 S.C.C.R.

digital, generated in the course of acting for S which include information and advice in respect of which S, whose specific instructions have been taken on the point, asserts legal privilege. [4] On 7 July 2016 Detective Constable Nicola Gow contacted the complainers by telephone. She spoke to Mr Watson. There were at least three telephone calls between DC Gow and Mr Watson on that day. I was shown copies of Mr Watson’s telephone attendance notes. DC Gow indicated that she was aware that the complainers held certain information in their client files for S that might be relevant to a criminal inquiry which was currently being undertaken. She already had copies of some documents but wished to obtain originals of these (including what she described as “originals” of unsigned statements held digitally), the litigation files and such other documents which were in the possession of the complainers. Mr Watson advised that the complainers would check what information they had access to with a view to establishing its whereabouts and what might be capable of being produced. Mr Watson indicated that the client files were privileged and confidential. Mr Watson advised that in the event of him receiving instructions to do so, he was willing to excise from the file certain material in order to assist the police inquiry. DC Gow suggested that they might arrange a time to look at the files together. Mr Watson said that he would need to take instructions on that proposal but that a provisional date for such a joint consideration of the files could be arranged. DC Gow indicated that she would discuss matters with her superior officer but that a search warrant might be sought. [5] On 11 July 2016, in anticipation that an application for a warrant might be made, Mr Watson, on behalf of S wrote to the sheriff clerk in Edinburgh requesting that the sheriff clerk contact the complainers in the event of any application to the sheriff with a view to S being represented at any hearing before the sheriff. Mr Watson explained in that letter that the complainers and S had provided such assistance to Police Scotland as they could within the confines of the Data Protection Act 1998, confidentiality and agent-client privilege. The letter included the sentence: “In our submission it would be oppressive and prejudicial for a warrant to be granted without first hearing from (S).” No reply has been received to that letter. [6] Subsequent to the conversations between Mr Watson and DC Gow and prior to 22 July 2016 neither the police, the respondent nor any other representative of the Crown contacted the complainers in relation to recovery of documents held by the complainers. [7] At about 10.00 hours on 22 July 2016 two police officers attended at the offices of the complainers at 58 Albany Street, Edinburgh, claiming to be in possession of the search warrant which they proposed to execute. Initially they were reluctant to allow Mr Watson to read the search warrant and then they were reluctant to allow him to copy it. Once Mr Watson had succeeded in persuading the police officers to allow him to read and copy the search warrant he was able to ascertain that it had been granted at common law in terms of the crave of a petition at the instance of the respondent in these terms: “[T]o any constable of Police Service of Scotland and/or members of staff from the Scottish Police Authority or any other officer of law with such assistance as they may deem necessary, to enter and search the offices, out buildings and storage facilities of Clyde & Co, Albany House, 58 Albany Street, Edinburgh and to be at liberty to secure and take possession of any papers relating to L whether in electronic or paper format, and any other

5344.indd 482

07/12/16 4:54 PM

2016 S.C.C.R. Clyde and Co. (Scotland) LLP v Richardson

483

evidence which may be material to the investigation into the alleged abuse at L held by said Clyde & Co, whether in a computer system or otherwise.” Insofar as material to the issues raised in the bill, the averments in the petition were as follows: “(S) have provided copies of documents referring to a code of conduct for staff . . . a punishment book, lists . . . statements, including what purports to be a statement taken from (a named person) and signed by her. . . . “(S) have indicated that the originals of these documents are held by their legal representatives, Clyde & Co, Albany House, 58 Albany Street, Edinburgh. A request has been made to have these documents released to Police Scotland, however, the solicitor has refused to release these documents, citing reasons of client confidentiality. “The solicitor has indicated that they will provide the originals of the documents already provided in copy format only. “There are reasonable grounds for believing that evidence material to the investigation . . . is found within the documents being withheld by the solicitor. The solicitor has indicated to an officer of Police Scotland that there are two boxes of papers and electronic records relating to (L).” As Mr Smith explained, these averments were inaccurate in certain respects or at least framed in terms that were likely to mislead the sheriff when considering the petition. The tenor of the averments is such as to suggest that what is sought to be recovered are the originals of the specified documents (i.e. the code of conduct, etc) which have already been provided by S (albeit that the crave of the warrant is in much wider terms) and that was because the complainers were only prepared to provide copies. Moreover, while there is reference to “reasons of client confidentiality” (which makes no sense if it is the respondent’s position that the police already have copies of the documents) there is no reference to the separate assertion of legal privilege by S. [8] The assertion of legal privilege in the face of a search warrant has recently been considered by the court in its opinion, dated 5 February 2016, in the bill of suspension at the instance of parties whom I will refer to as H Complainers. This opinion has not been published because the proceedings to which it relates have not been concluded but will have been issued to parties, one of whom is the Lord Advocate. I had been unaware of this opinion until Mr Smith brought it to my attention and the sheriff who granted the search warrant is also unlikely to have been aware of it. On the other hand, I would expect the respondent, as a representative of the Crown, which in the person of the Lord Advocate was party to H Complainers, to have been aware of the decision and the terms of the opinion of the court and particularly those parts of that opinion which prescribe what ought to be done when the Crown applies for and then has executed a warrant for search and seizure of material in respect of which legal privilege may be asserted. [9] H Complainers does not innovate upon the existing law but clearly states it and highlights the consequences for practice. It is prescriptive as to what should be done by the Crown when seeking to recover clients’ files from solicitors. It is convenient to quote the following paragraphs from the opinion of the court, as delivered by the Lord Justice-General: “[26] A police officer seeking a warrant from a sheriff must not provide information which he knows to be inaccurate or misleading. He should provide all the relevant information. The reference to ‘full disclosure’ in McDonagh v Pattison, 2008 J.C. 125 (at paras.11 and 12) should be

5344.indd 483

07/12/16 4:54 PM

484 A

5344.indd 484

Clyde and Co. (Scotland) LLP v Richardson

2016 S.C.C.R.

understood in that context. The duty includes one to disclose the fact that the havers are a firm of solicitors who are maintaining a plea of legal privilege. It was submitted that the information in the petition and given by the police officer on oath to the sheriff, in particular in relation to the likely application of legal privilege, had been inaccurate. This contention was not contained in the original Bill, upon which alone the sheriff has reported. It is a reasonable one, insofar as it is based upon the sheriff’s first report. That report states that there was no suggestion that legal privilege should apply. However, it appears to be contradicted by the second report. [27] The court will proceed on the basis that the sheriff was aware of the claim of legal privilege. He certainly ought to have been so aware, given that the havers were a firm of solicitors. . . . [28] What is important to note is that the warrant was obtained for material over which there was an ongoing dispute about legal privilege. That dispute was taking place between the Crown, notably the advocate depute, and a firm of . . . solicitors, namely the first complainers. There is no suggestion that the first complainers were involved in any form of illegality. There was no averment that, in the context of the ongoing dispute, the first complainers would be likely to destroy, or conceal, the relevant material. Indeed the existence of this material had been flagged up in the two chronological bundles . . . In these circumstances, an application to a sheriff for a warrant to search the first complainers’ premises to recover this material, without intimation, was oppressive. If the course selected by the Crown were to have validity, it was incumbent upon them to have intimated the application for a warrant to the first (and/or second) complainers, so that they could make representations to the sheriff about legal privilege. The sheriff could then have made such appropriate orders, as he deemed fit, to secure proper compliance with the law of privilege in respect of the recovery of the solicitors’ files. [29] The courts must be careful to protect the important right of legal privilege which generally attaches to communications between a client and his solicitor (Narden Services v Inverness Retail and Business Park 2008 S.L.T. 621 at para.11). It is essential therefore that due caution is observed when a court is granting an order for the recovery of solicitors’ files. The need for such caution is even greater when a warrant is being granted with a view to its endorsation for execution outwith Scotland. [30] There is no reason for a warrant to state expressly that materials, ostensibly covered by its terms, are excluded where legal privilege exists. Such privilege may or may not be asserted. If it is capable of being asserted, however, the seizure process must have within it clear, detailed rules on how that assertion can effectively be raised and determined. That is a matter which was stressed in the mid-nineteenth century Scottish cases cited (Bell v Black (1865) 5 Irv. 57, LJC (Inglis) at 64; Nelson v Black & Morrison (1866) 4 M. 328, LP (McNeill) and Lord Deas at p.331, Lord Ardmillan at p.332; Lord Wood at p.237). It is now reflected in the European jurisprudence (Sallinen v Finland (2007) 44 E.H.R.R. 18 at paras.90 and 92; Niemietz v Germany (1992) 16 E.H.R.R. 97 at para.37). In a case, such as this one, where it is clear that what is to be searched is a solicitors’ office and that legal privilege is being asserted, any warrant ought either to have provided for independent supervision of the police search by a Commissioner appointed by the court or to have contained a requirement that any material seized should be sealed unread and delivered to the court to enable the sheriff to adjudicate upon the issue (see Wieser v Austria (2008) 46 E.H.R.R. 54 at para.57). The ability to raise a Bill in the High Court of Justiciary, designed to suspend the warrant itself, is a procedure for review by an appellate court which, whilst competent, is not straightforward. It does not supply

07/12/16 4:54 PM

2016 S.C.C.R. Clyde and Co. (Scotland) LLP v Richardson

485

the necessary effective remedy at first instance. If this necessitates a change of practice in connection with the recovery of solicitors’ files, such a change requires to take place.” [10] As will be apparent, what was done by the respondent in the present case failed in a number of respects to comply with what the Lord Justice-General prescribed in H Complainers. The complainers do not aver bad faith or an attempt to mislead on the part of the police and I see no basis upon which that could be inferred. The averments in the respondent’s petition may reflect DC Gow’s understanding of matters but these are the respondent’s averments and by presenting them to the court in a petition signed by one of his deputes the respondent took responsibility for their accuracy insofar as the accuracy of averments can reasonably be ascertained. As I have indicated, the averments were not accurate. They were not comprehensive. They were misleading. There was no urgency in the matter, as the passage of time between 7 and 21 July 2016 demonstrates. There was no averment in the petition that the complainers would be likely to destroy or conceal the relevant material or that they were in any way involved in wrongdoing. The respondent chose not to contact the complainers to confirm the facts prior to preparing his petition, although, as the Lord Justice-General observes at para.27 of H Complainers in relation to the sheriff, the respondent ought to have been aware that issues of legal privilege would arise where he was seeking to seize documents generated in the course of solicitors acting for clients faced with the prospect of litigation. There is nothing in the crave of the warrant to restrict its execution to circumstances where there is independent supervision of police officers or requiring any material in respect of which privilege is claimed to be sealed unread and delivered to the court. The respondent chose not to intimate the application for the search warrant to the complainers and so give the complainers the opportunity to make representations to the sheriff about legal privilege. [11] Having read and copied the search warrant Mr Watson requested the police officers who were seeking to execute it not to do so before he was able to consider further action. The police officers agreed to delay in executing the warrant. They remained in or about the complainers’ office during the course of the day and were only to leave it at about 17.30 hours following communications between my clerk and representatives of the respondent, to which I will refer later in this note. Mr Watson consulted with Mr Smith who telephoned Crown Office with a view to discussing matters with an advocate depute. He spoke to an advocate depute who advised him that this was a matter under the direction of the National Sexual Crimes Unit and referred Mr Smith accordingly. At about 13.47 hours Mr Smith had a telephone conversation with a named official of the unit. He attempted to convey his concern that an application for the warrant had been made without intimating the intention to do so to the complainers and to contrast this with what had been said by the Lord Justice-General in H Complainers. The official was unsympathetic to Mr Smith’s representations and disinclined to enter into discussion. She indicated that she was aware of the decision in H Complainers but, although she had not read it, she considered it particular to its facts which included the involvement of English solicitors and English procedures. She stated “I have been doing it this way for 20 years”, from which Mr Smith understood that she did not propose to allow what was said in H Complainers to inform her established practice. Mr Watson also spoke with the official. She described the efforts on the part of the complainers to protect their clients’ legal privilege as a “serious matter of obstructing justice”. In the face of what

5344.indd 485

07/12/16 4:54 PM

486 A

Clyde and Co. (Scotland) LLP v Richardson

2016 S.C.C.R.

Mr Smith characterised to me in submission as “this intransigence”, the bill of suspension was drafted and presented. [12] As I have already explained, Mr Smith and Mr Watson came before me in chambers, at little before 17.00 hours on 22 July 2016. I was assisted by Mr MacPherson DCJ. Having regard to the criticisms levelled by Mr Smith against the respondent and those acting in his name I adjourned the hearing in order that Mr MacPherson might alert Crown Office of what was taking place and to invite representation of the respondent if so advised. Mr MacPherson was able to speak to a member of staff of the Crown Office and Procurator Fiscal Service who involved others including the official with whom Mr Smith had spoken. By this time it was after 17.00 hours on what was a Friday evening. The offer to hear any representations through an advocate depute was not taken up but Mr MacPherson was led to understand that a “guarantee” had been given “to stand down the police”. [13] What Mr MacPherson had learned was reported to me in the presence of Mr Smith and Mr Watson and the hearing resumed. Mr Smith renewed his motion for interim suspension of the search warrant. While perhaps explicable by reason of the lateness of the hour, the shortness of notice and the absence of necessary personnel, the respondent had not availed himself of the opportunity to be represented, to make any explanation or to put forward any undertaking or other proposal in precise terms. While the “guarantee” reported by Mr MacPherson could be interpreted as an undertaking not to execute the search warrant that day it was unclear whether it went beyond that. It was also unclear who it was who was giving the undertaking. Mr Smith’s conversation with the named official, whom he understood to be responsible for this investigation, had not given him confidence that she understood the importance of legal privilege or what the Lord Justice-General had recently said about the need to put in place procedural mechanisms effectively to protect it. [14] I was not addressed (I had not asked to be addressed) on the competency of a single judge of the High Court of Justiciary suspending a warrant. I would suppose that it would not be competent for him to do so, suspension being a matter for a quorum of the Court: cf, Stewart v Harvie at para.3. However, I would see granting an application for interim suspension at the stage of first orders to be different. It is of the nature of remedies for preserving the status quo in the face of a threatened wrong that they be available quickly and on summary application. As here there will be circumstances where a complainer seeks suspension of a warrant before it is executed on the grounds that execution would be wrongful and damaging to the interests of the complainer. In practical terms, if interim suspension cannot be granted by a single judge then a remedy will not be available. Moreover, I observe that in Morton v Mcleod Lord Cameron, sitting alone, entertained an application for interim suspension of sheriff court summary proceedings, albeit that he concluded that suspension was not competent before trial. [15] Of course, having a power and being justified in exercising it are very different things. Suspension of a warrant, even ad interim, is not something to be done lightly. What is being sought to be set aside is a decision of the sheriff who has primary jurisdiction and whose duty it is to grant a warrant only when he is satisfied that it is lawful to do so. The importance of that duty and its conscientious performance was stressed by Lord Justice-General Rodger in Birse v HM Advocate at p.511 by quoting what had been said by Lord Justice-General Clyde in Hay v HM Advocate at p.46:

5344.indd 486

07/12/16 4:54 PM

2016 S.C.C.R. Clyde and Co. (Scotland) LLP v Richardson

487

“Although the accused is not present nor legally represented at the hearing where the magistrate grants the warrant to examine or to search, the interposition of an independent judicial officer affords the basis for a fair reconciliation of the interests of the public in the suppression of crime and of the individual, who is entitled not to have the liberty of his person or his premises unduly jeopardised. A warrant of this limited kind will, however, only be granted in special circumstances. The hearing before the magistrate is by no means a formality, and he must be satisfied that the circumstances justify the taking of this unusual course, and that the warrant asked for is not too wide or oppressive. For he is the safeguard against the grant of too general a warrant.” However, in determining whether a warrant should be suspended this court is not only concerned with the decision-making of the sheriff or other magistrate; it is also concerned with the actions of the party (here the respondent) who has applied for the warrant. Where these actions are oppressive the warrant will be suspended. [16] I consider that the actions of the respondent in applying for the search warrant on the basis of his petition to have been oppressive. As I have attempted to explain, the petition was misleading, if not simply inaccurate. High standards of accuracy are always required of a party seeking a remedy ex parte. Separately from that, the very highest standards are always expected of the Crown. Were it otherwise our criminal practice would be different. Here the requisite standards were not met. If it be the case that the respondent proceeded on a police report which simply reflected the detective constable’s understanding of the issues, that was not good enough. The respondent was obliged to ensure the accuracy of his averments insofar as that was practical. There was no question of urgency. The respondent was aware that he was seeking to recover clients’ files held by solicitors and therefore was on notice that privilege as well as confidentiality was likely to be in issue. There was no reason to believe that the complainers would act improperly. An obvious and easy step would have been to contact them directly in order to discover what was in fact in issue. It is true that it might have been better had the complainers’ letter of 11 July 2016 been addressed to the respondent rather than to the sheriff clerk, but the onus was on the respondent who as a public authority was proposing to interfere with art.8 rights as well as rights which have been explicitly and repeatedly recognised in Scotland for more than 200 years (Executors of Lady Bath v Johnston, noted by Lord Wood in McCowan v Wright at p.237) to make sure of his facts. [17] Not only is what is averred in the respondent’s petition inaccurate, it does not support the very wide terms of the crave for a warrant which extend, without any limitation of time whatsoever, to “any other evidence which may be material to the investigation into the alleged abuse at (L) held by said Clyde & Co, whether in a computer system or otherwise”. It will be recollected that the averments relate only to supposed originals (presumably in paper) of documents already provided as copies. Moreover, in disobedience to what is prescribed by the Lord Justice-General at para.30 in H Complainers, no provision is made in the petition for either independent supervision of the police search by a commissioner appointed by the court or the inclusion of a requirement that any material seized should be sealed unread and delivered to the court to enable the sheriff to adjudicate upon the issue. [18] The oppressive conduct of the respondent was not limited to the presentation of an inaccurate and misleading petition, the averments in which bore little or no relationship to the crave and which omitted provision for the

5344.indd 487

07/12/16 4:54 PM

488 A

5344.indd 488

Clyde and Co. (Scotland) LLP v Richardson

2016 S.C.C.R.

independent supervision of any police search. He failed to give intimation of his intention to apply for the search warrant. Again that is in direct disobedience to what the Lord Justice-General prescribed at para.28 of H Complainers. On the basis of this failure alone I consider that it was oppressive to apply for the search warrant, but the various culpable deficiencies in the petition put the matter beyond doubt. I have accordingly been satisfied that the complainers have put forward a sufficient basis for suspension ad interim, subject only to consideration of what is to be made of the “guarantee” given to Mr MacPherson. [19] Before turning to the “guarantee”, I should indicate that had it been necessary to do so I would have held that sufficient had been put before me to suggest that the sheriff had erred in granting the warrant in the terms he did to such an extent as to render the warrant unlawful. It is true that the petition did not provide the sheriff with the assistance that he was entitled to expect from the respondent, but there was enough that should have been regarded as anomalous in this application to have put the sheriff on notice that further inquiry was required before granting the warrant. I have already mentioned these points when considering the respondent’s actions but in summary they are as follows: (1) the averment of refusal to release documents on reasons of client confidentiality when copies of the documents have already been provided to the police is so illogical as to require explanation; (2) the width of the crave which is not supported by averments and therefore had no basis upon which it could properly be granted; (3) the mere fact that the havers of the documents were solicitors should have been enough to make a sheriff aware that legal privilege was a likely issue (H Complainers at para.27) and required to be protected; and (4) the failure to intimate the application to the complainers and the giving to them of an opportunity to be heard in the absence of averments of: (i) urgency; (ii) risk of destruction or concealment; or (iii) any wrongful or improper behaviour whatsoever on the part of the complainers. In my opinion by granting the search warrant in the terms that he did it can only be inferred that the sheriff, for whatever reason, failed to give the petition the degree of scrutiny required of an application for search and seizure, as explained in Hay v HM Advocate. [20] I return to the question of the “guarantee”. Suspension is a discretionary remedy and in deciding whether to suspend ad interim regard is to be had to the interests of justice and with them the practicalities of the matter. The question of necessity comes into that. It might be said that there is no need to suspend a warrant if it is not intended to enforce it. The “guarantee” reported by Mr MacPherson suggested that there was no current intention on the part of the respondent or those acting in his name to enforce the search warrant. However, in the absence of any representative of the respondent before me with the authority to give a precise undertaking I was left in doubt as to precisely what was being “guaranteed” and who, and with what authority, was giving the guarantee. The history of the matter, at least as presented ex parte, did not suggest that the respondent had a very secure understanding of his obligation to give accurate and complete information to the court, to follow the guidance provided by H Complainers or otherwise to protect individual rights. An expression of willingness to negotiate on the part of the official from the Sexual Crime Unit earlier in the afternoon might have put a different complexion on matters. There was something unsatisfactory in the apparent immediate collapse of the position taken on behalf of the respondent when an opportunity was given to defend the warrant, albeit that the lateness of the hour may have contributed to that. Then there is the question of accountability. I heard what I consider to be quite serious criticisms of representatives of the

07/12/16 4:54 PM

2016 S.C.C.R. Clyde and Co. (Scotland) LLP v Richardson

489

Crown but I did not hear from the respondent in reply. It is appropriate that the respondent is given the opportunity, which a further hearing would afford, to explain, provide any other relevant information and to correct any misapprehensions or errors in fact or law on my part. I accordingly decided to suspend the search warrant ad interim, to grant warrant for service and to continue matters to a hearing to be fixed. A copy of this note will be provided to the respondent as well as to the complainers. [21] By way of postscript I would add that subsequent to the issue to parties of a note in terms of the previous 20 paragraphs, I have had the opportunity of considering a report prepared by the sheriff who granted the warrant. The sheriff prepared that report in light of what is averred in the bill of suspension. The sheriff’s report is dated 1 August 2016. It gives no indication that the sheriff has had sight of my note as issued to parties. [22] The sheriff reports that the warrant was granted by him on 21 July 2016 on what was a second application, the Crown having originally sought a warrant in wider terms which the sheriff had not been prepared to grant. The sheriff further reports that he was informed by the respondent’s depute that the complainers had refused to release documents, other than originals of the documents already seen by the police. I would observe that while this may be what the respondent meant by the averment: “The solicitor has indicated that they will provide the originals of the documents already provided in copy format only”, that would appear to be contradicted by the immediately preceding averment: “(S) have indicated that the originals of [previously provided documents] are held by their legal representatives, Clyde & Co . . . the solicitor has refused to release these documents, citing reasons of client confidentiality.” The sheriff goes on to report that he was not informed that the complainers had made any offer to cooperate, or that they had written to the court to request such notification. The sheriff explains that had he known of any willingness to release selected new material, he would have continued the application pending voluntary production by the complainer, to ascertain whether production could take place without the need for a warrant. Had he known of any written request such as that which the complainers had directed to the sheriff clerk, the sheriff explains that he would have continued the application for a hearing at which the complainers could be represented.

5344.indd 489

07/12/16 4:54 PM

A High Court Trial

19 August 2016

HER MAJESTY’S ADVOCATE

Prosecutor

against ER B

Accused [2016] HJC 98

Evidence—Corroboration—Mutual corroboration—Charges 24 years apart—Whether Moorov doctrine applicable

The accused was tried on indictment with, inter alia, two sets of offences, each involving one complainer, there being a gap of 24 years between them, and made a submission of no case to answer, on the basis of length of the time gap. The Crown submitted that all the offences, and other charges of physical assault, formed part of a course of domestic abuse involving controlling behaviour, physical and sexual violence underpinned by a common theme of jealousy and possessiveness, and that there were a number of similarities in the complainers’ accounts. The Crown accepted that they could not rely on a lack of opportunity to explain the gap in time between the two sets of offences, and there was evidence from a constable, P, that there was no suggestion of offending between the two periods despite the continuing existence of opportunities for it. Held (1) that the Crown approach involved something of a step change, even in the context of the more liberal approach adopted in recent years (para.13); and that Moorov was not designed in any fundamental way to encroach on the need for corroborative evidence, but that as long as two events can be identified as constituent elements of a single course of conduct, then, if the evidence is accepted, each can corroborate the other and provide a sufficiency of evidence (para.14); and (2) that it was not clear that there was any feature in the complainers’ accounts of the events that was so striking, unusual, or extraordinary such as might justify that application of Moorov notwithstanding the long time interval, and that there were a number of differences in the complainers’ evidence (para.19); and submission upheld and accused acquitted of the charges which depended on its application. Observed that his Lordship had not come up with a straightforward answer that the jury might understand and be able to reconcile with the test for the application of Moorov if they asked how they could find one course of criminal conduct persistently or systematically pursued by the accused standing P’s evidence and the time gap (para.18). McAskill v HM Advocate [2016] HCJAC 64; 2016 S.C.C.R. 402, distinguished.

Cases referred to in the opinion of the court:

Cannell v HM Advocate [2009] HCJAC 6; 2009 S.C.C.R. 207 Dodds v HM Advocate, 2002 S.C.C.R. 838; 2003 J.C. 8; 2002 S.L.T. 1058 H v HM Advocate [2015] HCJAC 42; 2015 SCCR 242; 2015 S.L.T. 380 K v HM Advocate [2011] HCJAC 52; 2011 S.C.C.R. 495; 2012 J.C. 74; 2011 S.L.T. 915 McAskill v HM Advocate [2016] HCJAC 64; 2016 S.C.C.R. 402 Moorov v HM Advocate, 1930 J.C. 68; 1930 S.L.T. 596 Pringle v Service [2010] HCJAC 127; 2011 S.C.C.R. 97; J.C. 190 490

5344.indd 490

07/12/16 4:54 PM

2016 S.C.C.R.

HM Advocate v ER

491

R v HM Advocate [2013] HCJAC 8; 2013 S.C.C.R. 190; 2013 JC 212 S v HM Advocate [2014] HCJAC 135; 2015 S.C.C.R. 62

E R was tried on indictment before Lord Malcolm and a jury with the offences referred to in the opinion of the court, and on 19 August 2016 made a submission of no case to answer. For the Crown: Wallace, AD, Smith. For the accused: Bryce, Solicitor advocate, instructed by Central Court Lawyers, Solicitors, Livingston.

Lord Malcom upheld the submission and delivered the following opinion. LORD MALCOM [1] In a “no case to answer” submission made on behalf of the accused at the close of the Crown case, Mr Bryce submitted that there was an insufficiency of evidence in respect of firstly, charges (1), (2) and (3), which concern alleged events in the mid-1980’s, and in which the complainer is E, and secondly, charges (8), (9) and (13), which relate to alleged events in 2012/13, and in which the complainer is F. Charge (1) involves several alleged assaults, culminating in a charge of attempted murder. Charges (2), (3), (8), (9) and (13) relate to penetrative sexual offences, principally of anal rape, although charge (9) concerns sexual intercourse while the complainer was asleep. It was accepted that the evidence on the other charges of physical violence against F can be corroborated by the evidence led in respect of the charges concerning the third complainer, J. Mr Bryce understood, it transpired correctly, that in respect of the charges in question, the Crown relies on the application of the doctrine in Moorov v HM Advocate. [2] Under reference to various cases Mr Bryce stressed that, for Moorov to apply, the evidence had to demonstrate a course of conduct, not merely similarities in the accused’s behaviour. The offences must be component parts of a course of conduct systematically pursued. Demonstration of a propensity to commit a certain crime or type of crime is not enough. Emphasis was placed on the lapse of 24 years between the first and second set of charges. This was the longest he had found in his review of the case law. Given this feature Mr Bryce questioned whether this could ever be described as a course of conduct. He referred to the evidence of PC Paton. The officer told the court that she had interviewed a former partner of the accused and three ex-wives, none of whom reported offending conduct on the part of the accused. Again Mr Bryce asked: “How then can the relevant charges be seen as part of a course of conduct systematically pursued by the accused?” [3] It was submitted that the physical violence and the sexual charges should not be placed in the same category. They should be dealt with separately. There will always be similarities when it comes to allegations of the present nature. There has to be some particular feature, something striking, which allows the Moorov test to be met. Mr Bryce noted certain differences in the accounts, including as to the frequency of the violence. There was a marked difference in the character of the conduct specified in charge (9) from anything spoken to by E. And the third complainer, J, made no complaint of sexual misconduct. [4] For the Crown the advocate depute accepted that 24 years was a significant period. He confirmed that, to prove the sexual offences, Moorov had to be applied to the evidence of both E and F. To prove the charges of physical violence against E, it would be submitted that Moorov could be applied with regard to the evidence of the second and/or the third complainer.

5344.indd 491

07/12/16 4:54 PM

492 A

5344.indd 492

HM Advocate v ER

2016 S.C.C.R.

He stressed that the whole circumstances of the relationships between the accused and the three complainers should be taken into account. Everything that happened was part of a course of domestic abuse involving controlling behaviour, physical and sexual violence, and threats. The three relationships were defined by the accused’s jealousy, his possessiveness, and his need to control, which he exerted in a deliberate and systematic manner, all with the aim of getting what he wanted when he wanted it, with a total disregard for the wishes of his partners. [5] The advocate depute confirmed that the sexual charges were now confined to the matters specified in charges (2), (3), (8), (9) and (13). Charge (9) related to the alleged “sleeping rapes” involving F. The other charges set out four separate incidents of anal rape, though in respect of charge (2) there was uncertainty as to whether it was anal or a vaginal violation. The other more general sexual charges were withdrawn because of the complainers’ testimony that they did not convey a lack of consent to the accused, but rather they gave him the impression that they were enjoying the sexual conduct. This had been explained by them in various ways, however the advocate depute took the view that the necessary mens rea of the accused in respect of the more general sexual charges could not be established. None the less the jury could look at all of this as part of a general picture of a man who needed to get his own way with his partner. [6] The advocate depute reviewed and discussed the decisions in a number of cases concerning long time gaps, some of which will be referred to later. He submitted that many of them could be distinguished in that the similarities in the present case are more compelling than in those cases where Moorov was not allowed, and also, he suggested, more compelling than in some cases where it was approved, for example in the case of K v HM Advocate. With reference to the decision in Pringle v Service, the advocate depute submitted that the contrast is that here the charges do not relate to isolated incidents, but to ongoing systematic domestic abuse underpinned by sexual jealousy within three relationships. This demonstrates a deliberate course of conduct, not a mere propensity to commit a certain type of crime. As to PC Paton’s evidence, it was accepted that the Crown could not rely on a lack of opportunity of further offending as an explanation for, and as a means of closing the long time gap. [7] Particular reliance was placed on the decision in S v HM Advocate. It was accepted that the court recognised that it involved a “generational interval” in a case concerning the abuse of the accused’s son, his daughter, and then, 18 years later, his granddaughter; but the advocate depute submitted that this feature was not decisive, which I understood to mean, not necessary to the outcome. In the recent case of McAskill v HM Advocate, a long time gap was “filled in” by reference to intervening offending, which was in reality part of the same course of conduct. That principle could be applied in the present case. [8] The advocate depute set out what he contended were specific similarities in, firstly, the accused’s controlling behaviour towards the three complainers, all of which was motivated by sexual jealousy and possessiveness. He noted that the complainers spoke to these matters in similar terms; for example, not being allowed to speak to other people when watching the accused play in a band; having to keep their heads down; not go for a cigarette on their own; not being allowed to wear their clothes of choice; and not being permitted to wash when they chose, so that his smell remained upon them. Several other examples were mentioned, including isolation from family members, and rules and

07/12/16 4:54 PM

2016 S.C.C.R.

HM Advocate v ER

493

restrictions within the domestic setting. All of this, it was said, was underpinned by physical aggression and threats. [9] The advocate depute summarised the evidence as to the various alleged incidents of physical violence; eight concerning E, seven for F, and five for J. There was a common theme of jealousy and control lying behind them, in that many of the assaults were prompted by false accusations of misbehaviour with others. It was noted that all three complainers spoke to at least one episode of compression of the neck. [10] The same theme of jealousy, control and possessiveness underpinned the five sexual charges. They should be seen as part of the general picture of control of the complainers. In respect of charges (2), (3), (8) and (13) the complainers made it clear that they did not want the sex insisted upon by the accused. In the case of F, previously she had told the accused that anal sex was a “no go” area for her. The advocate depute summarised the evidence led in support of the sexual charges. In each case the wishes of the complainers were simply ignored. The accused was determined to get what he wanted. The advocate depute accepted that the “sleeping rapes” charge was materially different, but it all took place in the same context as part of the overall course of conduct. [11] In summary the Crown position was that, despite the lengthy time gap, the similarities are so striking, so special, and so extraordinary, that there is a compelling picture which allows the jury to apply the Moorov doctrine. [12] In a short reply Mr Bryce submitted that the features of the sexual conduct relied upon, namely ignoring the complainers’ wishes, and being determined to get what he wanted, are neither special nor extraordinary features of rape or indecent assault; rather they are of the essence of those offences. They cannot justify an application of Moorov. In the case of F, both occasions of anal sex followed upon vaginal intercourse and were more of an opportunistic character than part of a systematic course of conduct. The evidence as to the other sexual charges, now withdrawn, has no weight or value in respect of the matters now at hand. They were withdrawn because of concerns about consent and reasonable belief as to consent. Again it was stressed that the sexual and physical violence should be regarded separately. It is not appropriate simply to categorise it all as domestic abuse fuelled by jealousy and possessiveness. Violence was not an integral part of any of the sexual conduct. Finally the court was reminded that Moorov is being used to link events in the mid-1980s with those in 2012/14.

Discussion and decision

[13] It is clear that since its inception the Moorov doctrine, at least in its application, and certainly in respect of the time characteristic, has become somewhat attenuated. None the less my impression is that the Crown approach in the present case involves something of a step change, even in the context of the more liberal approach adopted in recent years. Of course there are cases where long time gaps have been accommodated, and there are many when they have not. It is not easy to identify any concrete guidance beyond the occasionally expressed need, if the gap is to be bridged, for something “compelling”, “extraordinary”, “special”, or some equivalent epithet. [14] In these circumstances it may be helpful to return to basic principles. I do not understand the Moorov doctrine to be designed to encroach in any fundamental way on the rule that there must be corroborative evidence as to both the fact that a crime was committed and that it was committed by the accused. Our law still adheres to this as a safeguard against errors being made on

5344.indd 493

07/12/16 4:54 PM

494 A

5344.indd 494

HM Advocate v ER

2016 S.C.C.R.

one or both of these matters. On the face of it the Moorov doctrine might seem to violate these requirements, in that there can be only one source of evidence pointing to event A, and another separate single source of evidence pointing to event B. However, so long as event A and event B can be identified as constituent elements of a single course of criminal conduct, then, if the evidence is accepted, each can corroborate the other and provide a sufficiency of evidence. The point was put in simple terms by Lord Emslie in K [para.22]: “Subject to its established limitations the Moorov principle is essentially straightforward: corroborative proof of a single course of criminal conduct may be achieved through the testimony of two or more individual victims of constituent offences.” The classic example is the subornation of intended witnesses in respect of a particular criminal trial, though it now seems to have been supplanted by attempted match-fixing. While the doctrine is not restricted to such confined circumstances, it is none the less subject to limits; and we have the benefit of a recent five-judge decision in R v HM Advocate, where the court said at para.20: “What the court is looking for are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel . . . such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused. . . .” [15] Even if one adopts the Crown’s approach that the relevant course of conduct here is that of alleged deliberate and systematic domestic abuse provoked by jealousy and possessiveness, that course of conduct took place from the second half of 1986 until early 1988, when E was involved, and then resumed in 2012 with F, and ended in the first half of 2014 with J. In other words, it consists of two relatively short periods separated by some 24 years. The Crown accepted that it could not rely on a lack of opportunity during that intervening period given the multiplicity of relationships which the accused had enjoyed. [16] So how does the Crown suggest that Moorov can be applied? I think it does the advocate depute’s comprehensive and clear submissions no injustice by saying that, in essence, the answer to that question is simply this—yes there is a very long time gap, but the complainers all spoke of being controlled by a jealous abuser, therefore any conduct attributable to that is corroborated by any other offence similarly explained by another complainer. Thus the physical assaults can support the sexual allegations, and no doubt vice versa. I consider that proposition in itself to be controversial; the traditional view is that the similarities must relate to the alleged criminal conduct, not just to the motivation or mental element. It has been said that the crimes must be examples of the same crime in any reasonable sense of the term. In any event the answer does not resolve the problem posed by the 24 years. It might be thought that the recent decision in McAskill, albeit expressed in a short judgment, took at least a small step along the road suggested by the Crown. However, and as the advocate depute recognised, in that case the concept relied on by the Crown, or something like it, was being used to fill the time gap. Here there is no bridge. And I note that in H v HM Advocate, the court rejected a similar submission by the Crown: “The legal perspective has been to view rape as a significant and very serious offence, having a different quality from assaults, even serious assaults which lack an obvious sexual element” (para.35).

07/12/16 4:54 PM

2016 S.C.C.R.

HM Advocate v ER

495

[17] In S the generational nature of the abuse was clearly a key factor in the decision. In K, as Lord Emslie observed, the facts were “quite exceptional” and unlikely to be repeated. Furthermore, if Moorov can be applied to the present circumstances, while of course every case depends on its own facts, in my view it would be difficult to avoid the conclusion that Pringle v Service was wrongly decided. I say all of this even before reminding myself that the rule in Moorov must be applied with caution, and this all the more so in the case of an attempt to link only two complainers’ evidence, even leaving aside the long time gap. [18] In the course of the submissions I found myself wondering how I would answer a question from the jury along the lines of—how can we find one course of criminal conduct persistently or systematically pursued by the accused standing the evidence of PC Paton and the 24 years’ time gap? I have not come up with a straightforward answer that the jury might understand and be able to reconcile with the test for the application of Moorov. [19] The advocate depute referred to a number of similarities in the complainers’ accounts. Without intending to diminish the seriousness of the matters described by the complainers, it is not clear to me that there is any feature so striking, unusual, or extraordinary, such as might justify the application of Moorov notwithstanding the long time interval. In any event there are a number of differences, in the complainers’ evidence. They include the “sleeping rapes”, which F said was a regular occurrence; material differences as to the frequency of violence; the absence of any sexual violence in the third complainer’s testimony; and F’s evidence, which was not replicated by E, that after every occasion when he was violent, and once he had calmed down, the accused wanted sex. [20] It is clear that the court has the power to remove a Moorov case from the jury on an insufficiency of evidence based on an excessive time lapse. Reference can be made to Dodds v HM Advocate at paras.7–10 and to Cannell v HM Advocate at para.31. I consider that this is such a case. On the basis of the long time gap, and for all the other reasons set out above, in my opinion the no case to answer submission is well founded. I shall therefore uphold it, and acquit the accused of charges (1), (2), (3), (8), (9) and (13).

COMMENTARY

There is force in Lord Malcolm’s observation about the difficulty of getting a jury to understand how a single course of conduct could be interrupted by a gap of 24 years, and also in his Lordship’s observations in CW v HM Advocate [2016] HCJAC 44; 2016 S.C.C.R. 285. The requirement of a single course of conduct, which is perhaps more easily understandable in a case of systematic bribery of a number of people for one purpose than in the more usual sex cases, is, or, rather, was, essential to the application of Moorov, and should, of course, apply to any significant gap, as it did until not all that many years ago. For what it’s worth, I used to try to explain Moorov to students, and sometimes to juries, by saying that it applied where all the instances of the conduct in question could be thought of as instances of one criminal offence, so that that offence was proved by the evidence of at least two persons, but that was in another age so far as criminal trials, and more especially sexual offences, were seen in a different light.

5344.indd 495

07/12/16 4:54 PM

A Appeal Against Conviction

22 September 2016

CHRISTOPHER MCMULTAN

Appellant

against HER MAJESTY’S ADVOCATE B

Respondent

[2016] HCJAC 89 Evidence—Admissibility—Preliminary decision that no evidence of informal identification parade should be led at trial—Whether applied to defence as well as to Crown—Witnesses spontaneously naming and pointing out accused in dock—Whether trial unfair Words—“Dock identification”

The appellant was charged with robbery. At a preliminary hearing the judge had ruled that evidence of an informal identification was not admissible. This ruling was not appealed and the defence conducted the trial judge on the assumption that that ruling applied to them as well as to the Crown. Two Crown witnesses named the appellant as a perpetrator and spontaneously pointed him out in the dock. The appellant was convicted and appealed on the ground that in light of the decision at the preliminary hearing the trial judge should not have allowed this, which they described as a dock identification. Held (1)(i) that the court had difficulty in accepting the defence interpretation of the preliminary ruling, that it was clearly open to them to raise issues about the informal parade if they considered it was in the appellant’s interest to do so, or to appeal against the ruling, or to seek leave of the trial judge to crossexamine witnesses about this matter, notwithstanding the earlier decision (para.5); and (ii) that in light of their failures to do any of those things, it could not be argued that the appellant had not received a fair trial (para.6). Observed that what happened might be characterised as identification in court, but that it could not be characterised as a “dock identification”, in the normal sense in which that term is understood (para.7); and appeal refused. Case referred to in the opinion of the court:

Gall v HM Advocate, 1992 S.C.C.R. 447; 1992 J.C. 115; 1993 S.L.T. 290. Christopher McMultan was convicted of robbery after trial in the High Court at Glasgow on 23 November 2015 before Judge Arthurson 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 22 September 2016 by the Lord Justice Clerk (Dorrian), Lord Menzies and Lady Clark of Calton. For the appellant: McConnachie QC, instructed by Adams Whyte, Solicitors, Kirkcaldy. For the respondent: Brown, AD.

On 22 September 2016 Lord Menzies delivered the following opinion of the court. 496

5344.indd 496

07/12/16 4:54 PM

2016 S.C.C.R.

McMultan v HM Advocate

497

LORD MENZIES [1] The appellant was convicted after trial at the High Court of Justiciary at Edinburgh on 23 November 2015 of two charges of assault and robbery. He was sentenced to 12 years’ imprisonment. He appeals against conviction but no appeal is taken against sentence. [2] The two charges of which the appellant was convicted were, after suitable alterations, in the following terms: “(1) On 18 January 2015 at an address in Perthshire, you Christopher Alexander John McMultan and another accused, with faces masked and whilst holding knives did assault D G and J M, force your way into the dwelling house there, shout, swear and threaten D G and J M with violence, compel them to lie face down on the floor, bind their hands and feet with tape and detain them against their will and you did thus abduct said D G and J M and you did compel said D G to disclose to you the personal identification number associated with his bank card and did rob him of a wallet and contents; (4) On 19 January 2015 at a different address in Perthshire, you Christopher Alexander John McMultan, together with the same named co-accused, with faces masked and whilst holding knives, did assault S S, S G, M G and M S and you did seize S G by the body, present a knife at her, and did shout, swear and utter threats at said S S, S G, M G and M S, compel said S S and M G to lie face down on the floor, compel said S G and M S to kneel on the floor and you did bind the hands and feet of the said S S, S G, M G and M S with tape, present knives at them and detain them against their will and you did thus abduct said S S, S G, M G and M S and did rob them of a quantity of jewellery and a sum of cash.” [3] In the course of the trial, the appellant’s co-accused pled guilty to charges (1) and (4) as above. The appellant maintained his plea of not guilty to each of these charges but was found guilty by a unanimous verdict of the jury. It is argued on behalf of the appellant that there has been a miscarriage of justice which is said to have arisen because, at a preliminary hearing before the trial in respect of the appellant’s objection to the leading of evidence about an informal identity parade which took place on 6 June 2015, the judge sustained the appellant’s objection to this evidence and ruled that no evidence of what occurred on 6 June 2015 should be admitted at trial. It was argued that, in light of this, the trial judge should not have allowed what is described in the appellant’s case and argument as a “dock identification” and that as a result of this being allowed, the appellant has been denied a fair trial. [4] On behalf of the appellant, Mr McConnachie QC told us that para.59 of Lord Jones’s opinion, following the preliminary hearing, in which he decided that no evidence of what happened on 6 June 2015 should be admitted at trial, was interpreted by counsel who represented the appellant at trial as applying not only to the Crown but to the defence. [5] We have difficulty in accepting such an interpretation. It was clearly open to the defence to raise issues about the informal identity parade on 6 June 2015 if they considered that it was in the appellant’s interest to do so— see, for example Gall v HM Advocate. Moreover it would have been open to the defence to appeal against Lord Jones’s decision in this respect if they considered it was prejudicial to the appellant’s interests at trial. No appeal was taken. It would also have been open to the defence to seek leave of the trial judge to cross-examine witnesses about this matter, notwithstanding Lord Jones’s earlier decision, had they felt constrained by the terms of that decision, Mr McConnachie told us that he was not aware of any attempt to do so.

5344.indd 497

07/12/16 4:54 PM

498 A

McMultan v HM Advocate

2016 S.C.C.R.

[6] In light of these failures by the defence, we do not consider that it can be argued on behalf of the appellant that he has been denied a fair trial. Moreover we agree with the point made by the Crown in their written case and argument at para.6 that what happened here was not properly categorised as a “dock identification” as that term is usually understood. Paragraph 6 of the Crown note and argument is in the following terms: “It is submitted that what is characterised as ‘dock identification’ in the note of appeal represents a misconception of what actually took place. Both witnesses identified the perpetrator as someone known to them. They identified him by name and by the means through which they were familiar with him. In pointing him out in the dock they merely confirmed that the accused was the person they were identifying. As a matter of fact, whilst it was the intention of the Crown to ask the witnesses if they could see the man they called Christopher McMultan in court, that is not what actually transpired. Both witnesses spontaneously and without being asked to do so during the trial, said that the person who robbed them was Christopher McMultan and proceeded to point him out without any prompting. Accordingly this case does not sit easily with the concept of ‘dock identification’ in the way it is traditionally understood.” [7] We agree with this. What happened might properly be described as identification in court but it cannot be categorised as a “dock identification” in the normal sense in which that term is understood. In any event, having regard to the amount and strength of the rest of the evidence which was adduced on behalf of the Crown with regard to identification of the appellant, all of which pointed strongly to the conclusion that it was the appellant who was the “second man”, as he was described at trial, in these two charges, which evidence is summarised in detail in the trial judge’s supplementary report to us, dated 8 June 2016 and which is set out at paras.15–23 of the Crown’s written case and argument. Even if there was any procedural defect or unfairness in the allowing of the identification of the appellant in court, which for the reasons given above we do not consider there to have been, we are not persuaded there has been any miscarriage of justice in this case. Accordingly this appeal must be refused.

5344.indd 498

07/12/16 4:54 PM

A Appeal Against Extradition Order

23 September 2016

ZAIN TAJ DEAN

Appellant

against LORD ADVOCATE SCOTTISH MINISTERS

Respondents

[2016] HCJAC 83 Extradition—Human rights—Inhuman or degrading treatment— Compatibility of prison conditions with Convention rights— Undertakings by requesting territory to provide special conditions for fugitive intended to ensure compatibility with right to protection from inhuman or degrading treatment—Normal prison regime in requesting territory not compliant with this right—Likelihood of fugitive being subjected to abuse by other prisoners if given special treatment— Whether extradition compatible with human rights—Extradition Act 2003 (c.41), s.87—European Convention on Human Rights, art.3 Section 87 of the Extradition Act 2003 requires an extradition judge to order a person’s discharge if his extradition would not be compatible with his Convention rights. Article 3 of ECHR provides a right against subjection to inhuman or degrading treatment. The territory of Taiwan requested the extradition of the appellant who had escaped from Taipei Prison while serving a sentence of four years for causing death while driving under the influence of drink and who had become a notorious figure. The request was made following the concluding of a memorandum of understanding between the UK Government and the Taiwanese authorities (“the Republic of China”). The appellant opposed the request on the ground that the conditions in prisons in Taiwan were not compatible with art.3 in that, inter alia, prisons in Taiwan were overcrowded, and that he would be subjected to bullying because of the nature and notoriety of his case. The extradition judge ordered his extradition and he appealed to the High Court. The Taiwan authorities gave undertakings that, inter alia, he would be placed in a cell with at most only one other foreign prisoner and would not require to be in contact with other prisoners. Held (Lord Drummond Young dissenting), (1) that the court had to address the question whether, in relation to the conditions in which the appellant was intended to be held in Taipei Prison, substantial grounds had been shown for believing that there was a real risk of his treatment being incompatible with art.3, that a real risk means “more than mere possibility but . . . something less than the balance of probabilities and that the risk must be more than fanciful” (para.41); (2) that the only live question for the court to determine was whether the undertakings given and special arrangements proposed by the Taiwanese authorities, assuming they were fulfilled to the letter, would have the result that the appellant could serve his sentence in Taipei Prison without there being a real risk of his treatment being incompatible with art.3 (para.45); (3)(i) that, on the hypothesis that every effort would be made by the Taiwanese authorities, prison staff, and others, to fulfil and honour all the undertakings and special arrangements promised by the Taiwanese authorities, the appellant would not be housed in the main prison building, but in a nearby building, he

499

5344.indd 499

07/12/16 4:54 PM

500 A

5344.indd 500

Dean v Lord Advocate

2016 S.C.C.R.

would occupy a special cell, in the company of not more than one other foreign prisoner, he would have a bed, toilet and shower facilities, and a desk and chair, he would be able to choose whether or not to go to work during the day, he might at times be offered “western” food, such as spaghetti and hamburger, and might be able to have books and papers, and to watch a battery-operated television, and that when he was taken out for exercise in the fresh air, other prisoners would be removed from the exercise area (para.46); but (ii) that such arrangements would be viewed by the prison community in Taipei Prison (both staff and inmates), and by the public in Taiwan, as wholly exceptional, that being so favoured by the authorities would cause significant animosity among other prisoners, which would be highly disadvantageous for the appellant, who was already notorious and unpopular because of his personal circumstances and the offences of which he had been found guilty (para.47); and that thus the Taiwanese authorities would be placed in a difficult position, since if they qualified or departed from the offer of the special cell and conditions, all as set out in their various assurances, they might succeed in placating resentment against the appellant, but they would then conspicuously fail to honour the assurances given, and expose the appellant to the very conditions which are not art.3 compliant (para.49); (iii) that if the appellant were to decide to remain full-time in his cell for his own safety (thus being wholly segregated from other prisoners), he would not be able to work and earn parole; he would have little to do, would have little exercise, and would in effect be held in solitary confinement in a locked cell which could not be categorised as a “special unit” in which some degree of activity and interaction with others might be possible, that the definition of solitary confinement includes a locked cell containing two occupants, and that solitary confinement is generally accepted as very harmful to a prisoner’s mental and physical health (para.53); and (iv) that, if the appellant were to emerge from his cell, for example to go to work or exercise, he would be an easy target for other prisoners, that even with an effective full-time personal escort or guard, he would be at significant risk of attack, and that, in any event, there was no evidence that the prison, overcrowded and understaffed as it was, could, or would, provide an effective full-time personal escort or guard for the appellant moving around the prison, outside the safety of his cell (para.54); (4) that, further, there were concerns that (a) there are insufficient medical staff available for the large prison population; (b) there are insufficient pharmaceutical staff and resources for that population; (c) prisoners have to pay for non-emergency medical and dental treatment; (d) prisoners have to pay for non-standard makes of drugs (para.55); and that it was also a matter of considerable concern that there was no established UK or international system whereby the prison conditions in Taipei Prison were monitored, and whereby a route to remedial action might be pursued (para.56); and that there was no established route within the Taiwanese courts whereby a prisoner could seek a remedy in respect of prison conditions (para.57); and (5) that for all these reasons substantial grounds had been made out for believing that, even if all the undertakings and special conditions were to be fulfilled, there remained a real risk of treatment of the appellant incompatible with his human rights in terms of art.3 of the ECHR (para.58); and appeal allowed and appellant discharged. Opinion by Lord Drummond Young, dissenting, (1)(i) that an essential policy consideration is that a request for extradition, if it conforms to the standard requirements of double criminality and speciality and comes from a country where the rule of law is respected, should normally be given effect, provided that the request is supported by adequate evidence that the subject of the request has committed a crime, and that consequently refusal of such a request on a ground such as a failure of the requesting state’s prison system to conform to art.3 standards should be regarded as exceptional (para.64);

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate

501

(ii) that the memorandum of understanding related only to the appellant, but that it still enjoyed the status of an international agreement concluded between the governments of the UK and Taiwan and that all of the proposed arrangements had been agreed between the respective executives of the two countries (para.65); (iii) that the decision to enter into an extradition arrangement was ultimately that of the Home Secretary, and that it was material that in concluding such an agreement the Home Secretary would have access to a range of government services, including those available from the Foreign Office and Diplomatic Service as well as those within the Home Office, that thus it was likely that the Home Secretary would be better informed than the court could be as to whether it was desirable to enter into an extradition agreement with a particular territory, and as to what the terms of any such agreement should be (para.66); (iv) that when the UK enters into an extradition arrangement with a foreign territory, the courts should assume that the requirements of the agreement, together with any supplementary undertakings, will be observed in good faith by the authorities of that territory, that being the fundamental basis upon which extradition arrangements proceed (para.67); and (v) that an extradition agreement takes effect as a matter of international law, and that the fact that the memorandum of understanding was the first extradition arrangement into which the Republic of China had entered, and that the Republic of China faced obvious difficulties because of its lack of recognition at an international level, made it especially likely that the requirements of the memorandum would be observed (para.69); (2) that in the context of extradition a strong case was required before it could be held that conditions in a foreign prison would result in a contravention of art.3, that while overcrowding can amount to a breach of that article, if adequate assurances were given that special measures would be taken to ensure that the subject of extradition would be housed in a cell that was not overcrowded there would normally be compliance with the Convention, and that, furthermore, it must be assumed that the authorities in the requesting state would act in good faith, and observe any undertakings that they had given as to the conditions in which the subject of extradition would be housed, and that it was clear from the authorities that the standards applicable to foreign prisons in non-Convention states need not be assessed in such a way as to impose fully Convention-compliant standards, but that it was enough that there was a reasonable level of such compliance (para.75); and (4) that the appellant had failed to demonstrate a breach of art.3 such as to bar his extradition to Taiwan (para.76), and that in the light of the assurances given by the Taiwanese authorities and on the assumption, which must be made, that the assurances would be observed in good faith, nothing in the proposed conditions in Taipei Prison would amount to a breach of art.3 (para.80), and that the treatment that was proposed for the appellant was adequate to satisfy the requirements of art.3 in a case involving extradition to a non-Convention territory, that overcrowding would not be a problem for the appellant because of the special conditions in which he was to be housed, that exercise would be available to a reasonable degree, and that he might work if he wished to do so, and that if he did so he would earn parole, and that while that was obviously subject to any concerns about his safety, the decision to work was his decision alone (para.86). Opinion by Lady Clark of Calton, concurring, (1) that as the evidence emerged about the general conditions in Taipei Prison which resulted in the findings by her Ladyship in the Chair, there was difficulty in understanding the position of the first respondent, that the evidence demonstrated that it was blindingly obvious that the general conditions existing in Taipei Prison were shocking and non-compliant with art.3, that there was never any concession by the first respondent reflecting that, that indeed at some point in oral submissions, the solicitor advocate for the first respondent submitted that this

5344.indd 501

07/12/16 4:54 PM

502 A

Dean v Lord Advocate

2016 S.C.C.R.

court was not entitled to form an opinion about the general conditions in Taipei Prison and should confine its consideration to the proposed regime for the appellant set out in the undertakings, that this court was not only entitled but bound to consider the general conditions in the prison in which it was proposed that the appellant be confined, and that consideration of the undertakings becomes relevant once it had been accepted or the court had found that the general prison conditions in the proposed prison were non-compliant and the extent of that non-compliance (para.112); and (2)(i) that the undertakings could not be assessed in the abstract, divorced from the non-compliant regime in which they are supposed to operate (para.114); and (ii) that there was no evidence of any history of effective diplomatic intervention by the British diplomatic presence in Taiwan of any kind in relation to prison conditions in Taiwan and no information before the court about whether any changes had been made to make diplomatic monitoring effective (para.117); and appeal allowed and appellant discharged. Cases referred to in the opinion of the court:

5344.indd 502

Ahmad v United Kingdom [2012] ECHR 609; (2013) 56 E.H.R.R. 1 Aldhouse v Thailand [2012] EWHC 3385 (Admin) Cato v Republic of Peru [2016] EWHC 914 (Admin) Dean v Lord Advocate [2015] HCJAC 52; 2015 S.L.T. 419 Devani v Kenya [2015] EWHC 3535 (Admin) Deya v Kenya [2008] EWHC 2914 (Admin) Elashmawy v Court of Brescia, Italy [2015] EWHC 28 (Admin) Florea v Romania [2014] EWHC 2528 (Admin); [2015] 1 W.L.R. 1953 GĂ¤fgen v Germany [2010] ECHR 759; (2010) 52 E.H.R.R. 1 Ghana v Gambrah [2014] EWHC 1569 (Admin); [2014] 1 W.L.R. 4464; [2015] 1 All E.R. 654 Gomes v Trinidad and Tobago [2009] UK HL 21; [2009] 1 W.L.R. 1038 Kapri v Lord Advocate [2014] HCJAC 33; 2014 S.C.C.R. 310; 2015 J.C. 30, 2014 S.L.T. 557 Napier v Scottish Ministers, (O.H.) S.C.L.R. 558; 2005 1 S.C. 229; 2004 S.L.T 555 Othman v United Kingdom [2012] ECHR 817; (2012) 55 E.H.R.R. 1 R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] A.C. 323, [2004] 3 W.L.R. 23; [2004] 3 All E.R. 785 Richards v Ghana [2013] EWHC 1254 (Admin) Saadi v Italy [2008] ECHR 179; (2009) 49 E.H.R.R. 30 Shahid v Scottish Ministers [2015] UKSC 58; 2015 S.L.T. 707; (I.H.) 2014 S.C. 490; 2014 S.L.T. 335; [2012] CSOH 192; 2012 SLT 178 Torreggiani v Italy [2013] ECHR 293. Zain Taj Dean appealed to the High Court against a decision made on 11 June 2014 by Sheriff Maciver ordering his extradition to Taiwan, on the grounds that the conditions under which he would be imprisoned there were not compatible with art.3 of ECHR. The appeal was heard and evidence led before Lady Paton, Lord Drummond Young and Lady Clark of Calton in January, May and June 2016. For the appellant: Bovey QC, Devlin, instructed by V Good & Co, Solicitors, Edinburgh. For the first respondent: D Dickson, Solicitor advocate, instructed by Crown Office.

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate

503

For the second respondent: Moynihan QC, Charteris, instructed by Scottish Government Legal Directorate.

On 23 September 2016 the following opinions were delivered. LADY PATON Extradition to Taiwan: art.3 and prison conditions

[1] I refer to Dean v Lord Advocate. As set out in paras 71–75, it proved necessary to hold an evidential hearing in order to ascertain whether the conditions in which the appellant would be held in Taipei Prison are art.3 European Convention on Human Rights (ECHR) compliant. The hearing took place on 27, 28, and 29 January 2016, 18 and19 May 2016, and 22 and 24 June 2016. [2] The appellant gave evidence. Two witnesses, Professor Chin and Dr James McManus, were led on behalf of the first respondent. The witnesses referred to various productions. On 24 June 2016, a devolution minute (No 36 of Process) was received, focusing on arts 5 and 8 of the ECHR and the fact that, contrary to the apparent meaning of an undertaking given by the Taiwanese authorities, custodial time served in Saughton Prison, Edinburgh, might not count on a day-for-day basis towards the custodial Taiwanese sentence of four years (see para.11 et seq below).

Joint minutes and s.202 of the Extradition Act 2003

[3] Joint minutes resolved many of the difficulties relating to the provenance and authenticity of productions. It was therefore unnecessary to decide the meaning and effect of s.202 of the 2003 Act (“received in evidence in proceedings under this Act if it is duly authenticated”: see para.74 of Dean v Lord Advocate).

Relevant legislation Scotland Act 1998

[4] Section 57: Community law and Convention rights “. . . (2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law. . . .”

European Convention on Human Rights

[5] Article 3: Prohibition of torture “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Extradition Act 2003

[6] Section 87: Human rights “(1) If the judge is required to proceed under this section (by virtue of section 84, 85 or 86) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. (2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge. (3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.”

5344.indd 503

07/12/16 4:54 PM

504 A

Dean v Lord Advocate (Lady Paton)

2016 S.C.C.R.

Section 103: “Appeal where case sent to Secretary of State “(1) If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision. ... (4) An appeal under this section— (a) may be brought on a question of law or fact. . . .” Section 104: “Court’s powers on appeal under section 103 (1) On an appeal under section 103 the High Court may— (a) allow the appeal; . . . (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (3) The conditions are that— (a) The judge ought to have decided a question before him at the extradition hearing differently; (b) If he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (4) The conditions are that— (a) . . . evidence is available that was not available at the extradition hearing; (b) the . . . evidence would have resulted in the judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person’s discharge. (5) If the court allows the appeal it must— (a) order the person’s discharge; (b) quash the order for his extradition.” Relevant tests

5344.indd 504

[7] I refer to paras 7–11 and 71–75 of Dean v Lord Advocate. In my view, compliance with Kapri v Lord Advocate requires the rules of criminal evidence and procedure to be applied to any facts which are to be established in relation to prison conditions. [8] However, once those facts are proved, senior counsel and Mr Dickson were agreed that the test for compatibility with art.3 of the ECHR is as set out by the European Court of Human Rights [ECtHR] at paras 124–1255, 128–129, and 140 of Saadi v Italy, namely “whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with article 3” (cf, the “strong” grounds referred to in para.24 of R (Ullah) v Special Adjudicator). A real risk is “more than mere possibility but is something less than the balance of probabilities” (Saadi para.147; Aldhouse v Thailand, para.26). As was said in Florea v Romania, para.21, quoting Torreggiani [v Italy]: “The burden of proof is less than proof ‘on the balance of probabilities’, but the risk must be more than fanciful.” The court’s “examination of the existence of a real risk must necessarily be a rigorous one” (Saadi, para.128). I should add that this court, in its previous opinion: para.73, made reference to Gäfgen v Germany. However in the current evidential hearing, Mr Bovey submitted that Gäfgen applies to proof of past violations of art.3 (Gäfgen, para.92), whereas assessment of the risk of future violations of art.3 is governed

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lady Paton)

505

by, inter alia, Saadi and Aldhouse. I understood Mr Dickson to agree with that submission. I now also agree.

Taiwanese undertakings; official letters; and visit by Dr McManus to Taipei Prison

[9] At various stages during the appeal hearing, undertakings were given by the Taiwanese authorities. Following upon this court’s first opinion (Dean v Lord Advocate, issued on 24 June 2015), Dr James McManus was instructed on 14 August 2015 by the Lord Advocate on behalf of the Taiwanese authorities “to carry out an assessment of the conditions of detention it is proposed by the Taiwanese authorities that (the appellant) will be held should his extradition to Taiwan be ordered”. [10] The sequence of undertakings was as follows: • 16 October 2013: the memorandum of understanding between the Home Office, UK, and the judicial authorities of Taiwan concerning the extradition of one individual only, namely the appellant. • 23 December 2013 (13/5): an undertaking that all periods of detention arising from the execution of the request in Scotland would be deducted from the total period of detention required to be served as a result of the appellant’s conviction in Taiwan for the extradition offence. • 23 December 2013 (13/5): a certification that the four-year sentence was not subject to further review, and that the death penalty would not be imposed. • 25 February 2014 (13/11): an undertaking that: (1) appropriate correctional staff would be selected to supervise the appellant; (2) the appellant’s safety would be ensured by assigning him an appropriate cell with fewer inmates, pre-screening inmates to select non-violent foreign inmates convicted of relatively minor offences and unconnected to criminal organisations (thus eliminating concerns regarding bullying); (3) establishing clear channels of communication for any complaints or requests; (4) assessing public feelings about the appellant, pre-screening inmates with ill intent towards him (thus eliminating the possibility of any contact with the appellant), managing the appellant’s care as a special case and if necessary separating him from group activities and interaction with other inmates, inspecting the appellant’s food, transferring an inmate suspected of ill intent to a different cell, providing additional prison staff and surveillance equipment (thus ensuring his safety in the prison). • 7 May 2014 (13/12): an acknowledgment that overcrowding in Taipei Prison was about 32 per cent in January 2014 (about double the national average overcrowding rate of 16.7 per cent), with an explanation that steps were planned, aiming to reduce the total overcrowding rate to less than 10 per cent. • 22 October 2014 (11/12): a letter from the Home Office, International and Immigration Policy Group, London, addressed to a friend of the appellant, responding to a request for information as to whether expert reports regarding Taiwan were obtained prior to the decision whether to enter into the memorandum of understanding relating to the appellant. The letter stated, inter alia: “I can confirm that no specific expert reports were commissioned prior to the Home Secretary making a decision on whether to enter into a Memorandum of Understanding with Taiwan, to give effect to the extradition request for (the appellant). However we are able to confirm that the Home Office sought advice from the Foreign and Commonwealth Office (FCO) with regard to human rights in Taiwan. The FCO provided

5344.indd 505

07/12/16 4:54 PM

506 A

Dean v Lord Advocate (Lady Paton)

2016 S.C.C.R.

the Home Office with a note summarising the human rights situation in Taiwan as well as a number of previously published country reports which are in the public domain . . . After careful consideration we have decided the country reports on Taiwan are exempt from disclosure . . . (the) information . . . is already in the public domain.” (Reference is then made to relevant websites, and to an attached summary of the human rights position in Taiwan, provided by the FCO.) “As a general point, please note that the decision of the Home Secretary to enter into a Memorandum of Understanding was made in order to facilitate the courts’ consideration of Mr Dean’s case under the Extradition Act 2003. The UK receives several extradition requests each year from territories with which it has no general extradition arrangements . . . Some of these requests involve very serious offences. In such cases, section 194 of the 2003 Act gives the Secretary of State the power to enter into . . . ad hoc arrangements . . . Under the 2003 Act, the question of whether a person’s extradition would be compatible with their Convention rights within the meaning of the Human Rights Act 1998 is a matter for the courts to consider.The Secretary of State does not consider human rights issues (emphasis added) . . . The Taiwan authorities have given assurances that Mr Dean will not be dealt with for any offence committed before extradition save for the offence in respect of which he is extradited. There is no evidence to suggest that the Taiwan authorities will not abide by this, and the assurance has been accepted by the Scottish Cabinet Secretary for Justice in making his decision to order extradition. If Mr Dean is extradited, the BTCO (the British Trade & Cultural Office) will monitor whether the Taiwanese authorities are fulfilling their assurances given to the Scottish court on the conditions under which he would be held.” • 14 November 2014 (13/10): confirmation by Luo Ying-shay, the Minister of Justice, that Director General Chen Wen-Chi had authority to act on behalf of the Ministry of Justice in ensuring the terms of the assurances. • 24 June 2015: the issuing of the first opinion of this court, Dean v Lord Advocate. • 31 July 2015: despite the apparent assurance recorded in the Home Office letter of 22 October 2014 (11/12), the Scottish Ministers received a second request from the Taiwanese authorities that the appellant be extradited for offences relating to absconding from Taiwan. (The Scottish Ministers ultimately refused that request, but did not advise the appellant or the first respondent of their refusal until 6 June 2016.) • 14 August 2015: Dr McManus was instructed by the Lord Advocate on behalf of the Taiwanese authorities “to carry out an assessment of the conditions of detention it is proposed by the Taiwanese authorities that (the appellant) will be held should his extradition to Taiwan be ordered”. • 17 August 2015 (13/7): the Taiwanese Agency of Corrections “Inmate treatment planning report on an individual case” (relating to the appellant) noted that: “If Mr Dean disobeys disciplines after extradition, he will be punished depending on the severity of his offence. If his indiscipline is regarded as minor offences or mitigation, supervision in his cell or a deferred punishment will be ordered. However, if his behaviour is regarded as a serious offence, for example, assaulting prison officers or harming others, he will be punished by our criminal law and moved into the cell of rule breakers” (i.e. the ‘punishment block’ where ventilation was very poor (15/12) and there was no bedding or other facilities).

5344.indd 506

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lady Paton)

507

• 19 August 2015: Dr McManus travelled to Taiwan. • 19 August 2015 (10/1) and (13/1): an undertaking— “[T]o prepare a cell whose conditions are consistent with Article 3 of European Convention on Human Rights. The relevant prison conditions are detailed as follows, and the pictures of the cell are attached. (1) The cell is located at the second floor of the 11th disciplinary area in Taipei Prison, which is the main prison for foreign prisoners and is easy for consular access. (2) The cell is 13.76 square metres. Two inmates, Mr Dean and the other foreign prisoner, will be arranged in the cell shown in the pictures. (3) The cell is equipped with a desk, a chair, a four-layer shelf, a bunk bed, a bathroom with a toilet, a sink, a shower and a shower curtain. Moreover, there are a big window with curtains, a spiral bulb, fluorescent lamps, an exhaust fan on the wall and an electric fan on the ceiling. Therefore, the natural and artificial lights of the cell are sufficient, and the ventilation is very good. (4) In relation to the regime, on working days, the average amount of time the prisoners have per day out of the cell is nine hours from 8/8.30 am to 5/5.30 pm, including works, exercises, rests and meals. (5) Moreover, Taiwan has a very complete and advanced public water system. The water the prisoners drink and use is the same as the one the Taiwan citizens have. The drinking water is boiled. As to the food, the prisons provide three meals a day for the prisoners. Considering different religions and diet habits, special meals are designed for foreign prisoners. Taipei Prison prepares western food, such as hamburger and spaghetti, once a week. The prisoners in Taipei Prison also can buy various kinds of breads, snacks, fruits in the prison-running [sic] stores. Besides, the meal plans are public every day to the families paying visit. Moreover, Taipei Prison provides shopping lists in English for foreign prisoners to order what he needs and likes to eat every day. Taipei Prison will help them to buy the local and traditional groceries . . . . . . Again, I, on behalf of the Ministry of Justice, ensure that the conditions mentioned above will be put into practice once Mr Dean is extradited back to Taiwan.” • 19 August 2015 (10/2): Wu Man-Ying, Director General of Agency of Corrections (AOC) certified that: “regarding the prison conditions if (the appellant) is extradited, AOC understand and will respectfully abide by all the assurances given by the Director General Mrs Chen Wen-Chi, who is the point of contact authorised by Minister of Justice to deal with international legal affairs in Ministry of Justice . . .” • 31 August 2015 (10/5) and (13/5): Dr McManus issued his report, detailing additional assurances given by the Taiwanese authorities that: (i) a member of staff will be seated immediately outside the appellant’s cell; (ii) the proposed exercise area for the appellant could easily be cleared of other prisoners, during any time the appellant was using the area; (iii) the appellant could choose whether or not to apply for a place in a factory or an education group; (iv) if the appellant chose not to apply, he would be kept in his cell with one hour of exercise each day; (v) if he committed a serious offence, he would be kept in his own cell (and not the punishment block) with one hour’s exercise each day; (vi) the appellant would be accompanied by staff during outside exercise; and (vii) the appellant would start at grade 3 for the purposes of parole. These assurances were not formally confirmed to this court by the Taiwanese authorities.

5344.indd 507

07/12/16 4:54 PM

508 A

Dean v Lord Advocate (Lady Paton)

2016 S.C.C.R.

• 2 September 2015 (13/3) and (10/3): information that prisoners were not normally kept in solitary confinement. While certain punishments might be imposed for violation of prison regulations, in order to avoid a breach of art.3 of the ECHR, the appellant would “be allowed to be supervised in the original cell” even if he had carried out a serious violation. • 25 December 2015 (13/13): certification that— “regarding the prison conditions if (the appellant) is extradited, if the consular staff of the British Office have any reason to raise an issue about a perceived breach of an assurance raised by (the appellant), then when the consular staff raise that, the Taiwanese authorities will respond to ensure the alleged breach is remedied”. • 3 May 2016 (26/1): an arrangement between the authorities of the UK and the Taiwanese justice authorities on the transfer of sentenced persons. • 12 May 2016 (15/39): a Next Magazine internet article dated 12 May 2016 noting explanations given by Chen Ming-tang, the Administrative Deputy Minister of Justice, namely that the Ministry of Justice showed the UK the newly-renovated prison cell facilities, to prove that the Taiwanese prison conditions were not poor. The authors of the article—The Social News Team—add their personal comments as follows: “these facilities are scarce so they cannot be made available to all inmates. Therefore, even if Zain Dean comes to Taiwan, he may not be able to actually receive such treatment”. • 31 May 2016:following upon the installation of the new Taiwanese Government, a letter from the Minister of Justice dated 31 May 2016: (i) confirming the assurances given in the letters of 23 December 2013, 25 February 2014, 30 January 2015, 19 August 2015, 2 September 2015, and 25 December 2015; and (ii) explaining that under the Taiwanese parole system, the appellant’s good behaviour would be considered and might allow him to start at grade 3, but otherwise he would start at grade 4; and that, if extradited, he would not qualify for parole until 2017. Time served in custody in Scotland: whether relevant to the granting of parole in Taiwan

5344.indd 508

[11] The appellant’s sentence has not been transferred to Scotland. The sentence is therefore governed by Taiwanese law, not Scots law. I understand that the appellant must, according to Taiwanese law, serve at least two-thirds of his four-year sentence before being eligible for parole. [12] The letter from the Taiwanese authorities dated 23 December 2013 (13/5) was understood by the appellant and his advisers to mean that time served by the appellant in a Scottish prison would count on a day-for-day basis towards his four-year sentence and therefore towards his eligibility for parole. However Dr McManus’s report dated 31 August 2015 (10/5) at pp.8–9 referred to a system of grades and points, with parole being earned to some extent by work and good behaviour while physically in Taiwan. Dr McManus advised that: “The authorities have indicated that they will consider the time served in Edinburgh as part of the sentence; a way should now be found to ensure that Mr Dean’s behaviour while in Edinburgh can be assessed in relation to the grade point system.” [13] In an endeavour to clarify Taiwan’s position relating to time served in Scotland and parole in Taiwan, Director General Chen Wen-Chi sent a letter dated 1 June 2016 to the Lord Advocate (25/1).

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lady Paton)

509

[14] To assist the court further, Mr Dickson on 24 June 2016 provided a note concerning the effect of the Taiwanese parole system (43). In that note, he explained, inter alia, that the appellant could not apply for parole unless he was in the jurisdiction of Taiwan. Only an “inmate” could qualify for parole, the necessary conditions being: (a) The minimum sentence term to be served. (b) An inmate had significant remorse and upward second grade under the Progressive Treatment System. (c) The scoring of at least three points in each of the three months before the parole qualifying date. A parole board and the Ministry of Justice would consider any application and the above-mentioned conditions, and make a decision about parole. The undertaking given by the Taiwanese authorities dated 23 December 2013 (see para.10 above): “7 . . . was to give credit for the time served in Scotland. For the purposes of the domestic law of Taiwan on parole, only time served physically in Taiwan will count: in other words, on return to Taiwan it is only once the appellant reaches the two-thirds point of the remainder of his sentence (credit having been given for time served in Scotland) that he would be eligible for parole in Taiwan. . . .

9 . . . in the circumstances the appellant finds himself, having absconded from Taiwan, by way of example, if he were to be extradited in June 2016, the appellant would be eligible for parole in September 2017.” [15] In the Director General’s letter dated 1 June 2016 (25/1) it is also noted in para.5 that: “. . . The later Dean is extradited to Taiwan, the later he will be eligible for parole.”

Summary of relevant evidence Evidence for the appellant

[16] The appellant is a UK citizen, aged 44. He is a marketing consultant. He is currently in custody in Saughton Prison, where he has been since October 2013. He confirmed that he had lived and worked in Taiwan for 19 years before coming to Scotland in August 2012. Following upon the “one-off” extradition agreement between Taiwan and the UK, he was detained in Edinburgh in 2013. He had not previously visited a Taiwanese prison, but, assisted by productions (see para.36 below), he described problems which he understood existed within Taipei Prison. In particular: • Overcrowding: Reports, articles, television programmes and photographs demonstrated that the cells in Taipei Prison were seriously overcrowded. The prisoners had to sleep side-by-side on mats on the floor, with scarcely room to turn over. Each cell had one open toilet with no privacy. Difficulties were caused at night when prisoners had to step over each other to use the toilet. Ventilation was poor: there was no air conditioning and often no fans. • Understaffing: The staff-prisoner ratio was very low, resulting in difficulties with supervision and control of the prisoners. • Cell-captain culture: A cell-captain culture prevailed: in other words, the strong ruled the weak. • Sexual abuse and violence: There were documented incidents of violence and sexual abuse including rapes.

5344.indd 509

07/12/16 4:54 PM

510 A

5344.indd 510

Dean v Lord Advocate (Lady Paton)

2016 S.C.C.R.

• Suicides: In 2015 six prisoners had carried out a protest concerning their detention and had ultimately committed suicide by shooting themselves. • Insufficient medical facilities: There were insufficient doctors and medical facilities for the number of prisoners. • His personal notoriety: An additional problem was the appellant’s notoriety. He had become a well-known figure in Taiwan, his case and his flight to the UK having been broadcast on TV, in magazines, and on the radio. He was portrayed as a rich foreigner who had been found guilty of causing the death of a local newspaper delivery man when driving under the influence of drink, resulting in untold grief for the family and a high and sustained level of anger and resentment directed against him. A revenge ransom had been offered. The “special cell and conditions” being offered by the Taiwanese authorities to himself—a foreigner and an outsider who had been convicted of killing a Taiwanese man—had further enraged the deceased’s family and the local people. The conditions were “three times what President Chen got” (when imprisoned for bribery) and “about five times what the other prisoners get”. The appellant was afraid that there was a real risk that the grief, anger, and desire for revenge in respect of the victim of the road traffic accident, together with outrage about the special prison conditions, would result in a very dangerous situation for him in Taipei Prison. Unless he existed in a form of segregation and isolation, he would have to leave the cell for exercise and meals: he would inevitably meet other prisoners in the corridors, yards, and dining rooms. He was also concerned that, while the letter of undertaking dated 19 August 2015 (13/1) was no doubt written in good faith, there might be difficulties in ensuring that the conditions described were actually provided. Those conditions were so different from the conditions which the other prisoners had, with the cell-captain culture, overcrowding, intolerable heat, and having to go to the toilet in front of each other. [17] The appellant stated that the letter of undertaking dated 25 February 2014 (13/11) did not reassure him. First, the serious understaffing meant that what seemed “good on paper” was not in fact feasible. There had, for example, been a serious incident on 18 July 2015 when prison staff had been attacked with sharpened chop-sticks (11/7): the press release noted that one injured administrator advised the Minister of Justice that: “[T]he corrective institutions had been seriously understaffed for a long time, and the potential risks must be addressed . . .The Minister emphasised that the corrective institutions had been facing increasingly stringent and dangerous working conditions and the issue of understaffing must be resolved as a matter of urgency by increasing the number of guard and control staff to a reasonable level. In response to this, the Ministry of Justice has proposed a plan to replenish the manpower at corrective institutions. The aim is to achieve a staff-to-inmates ratio of 1:8 so that the problems and difficulties caused by understaffing can be resolved as soon as possible. . . .” [18] Thus the appellant considered that Taipei Prison had systemic problems. He was concerned that it would not be possible for the special measures promised by the authorities to be carried out such that he could safely serve his sentence in that prison. The appellant thought that none of the prisoners would own up to having any ill-will against him. Thus undertakings about screening and keeping apart potentially hostile prisoners would not be effective. The prisoners spent considerable time together, working, eating and so on

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lady Paton)

511

(see, for example, the photograph of many prisoners working together, p.14 of the Taiwan MOJ Agency of Corrections report on Prison Conditions, Chen Shui-bian (11/14)). While a letter to the Lord Advocate dated 5 January 2016 from the FCO (13/14) advised that the appellant would be “able to raise [any] concerns with the British Office staff whose details are contained in the attached Prisoner Pack”, that did not provide reassurance for the appellant, as he considered that the British Office in Taiwan was in a very difficult situation. He explained that there was no “embassy” as such in Taipei, but a British Office, whose staff would try to do their best, but there was little they could do in law and in practice. While it might be possible to speak to the liaison officer, there was little that the British Office could do about problems in Taipei Prison.

Evidence for the first respondent

[19] Professor Mong-Hwa Chin (aged 33; assistant professor at the University of Taiwan) stated that he had graduated in 2014. His professed expertise was criminal procedure and evidence, with a particular interest in wrongful convictions. He had a doctorate (the equivalent of a PhD) entitled: “The decision-making process of trial judges in Taiwan”. He taught criminal law and procedure on a regular basis. He had published two legal articles. He was a member of a non-governmental organisation assisting persons claiming that they had been wrongfully convicted (the Taiwanese Association for Innocence, established in 2012). He helped with the association’s work by attending meetings and providing opinions. To date, the association had achieved one exoneration. Otherwise he was an academic lawyer who was not permitted to practice law. His limited experience of Taiwanese prisons came from a student law class tour, and from visits to clients in prison. [20] Senior counsel for the appellant took an objection to the professor’s status as an expert. After a debate, it was accepted that the professor’s evidence should be allowed under reservation of competency and relevancy. Ultimately, in closing submissions, senior counsel submitted that little reliance could be placed upon the professor’s evidence: he was inexperienced; his professed expertise was criminal procedure and evidence; and when giving evidence, he showed a lack of the impartiality to be expected of a court expert, as he had consistently given answers supportive of the Taiwanese state/legal system/penal system (some of his answers being demonstrably inaccurate). Thus, it was submitted, the professor’s evidence could not be relied upon to satisfy the court that the Taiwanese assurances concerning the appellant’s prison conditions would be fulfilled. I consider that there is some force in those submissions. I shall therefore be discriminating in my approach when assessing what weight to give to parts of his evidence (a brief outline of which follows). [21] Taiwan had adopted the principle set out in art.3 of the ECHR (“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”), although Professor Chin accepted that, given Taiwan’s status (i.e. not recognised internationally as a “state”, and not a member of the United Nations), Taiwan was unable to sign international treaties. Taiwan was trying very hard to conform to international human rights standards. Two covenants relating to civil rights were recognised as part of domestic law (18/1), although it was accepted that Taiwan still had capital punishment. An independent committee of human rights experts had visited Taiwan and produced a report dated 1 March 2013 (15/2), which had been a milestone document.

5344.indd 511

07/12/16 4:54 PM

512 A

5344.indd 512

Dean v Lord Advocate (Lady Paton)

2016 S.C.C.R.

[22] The professor accepted that while Taiwan had entered into many treaties with many countries arranging, for example, for the transfer of prisoners, Taiwan had no extradition treaty with any country. The current request for the extradition of the appellant was the first time that the Taiwanese authorities had entered into an agreement with any state for the extradition of any person. [23] In relation to prisoners’ rights, Professor Chin explained that there were current proposals to amend the Prison Act to allow prisoners to seek a judicial remedy (para.6 of his affidavit). Meantime, it was not clear what legal route should be adopted by a prisoner seeking a judicial remedy in respect of treatment in prison. In particular, it was not clear whether any application should proceed in the criminal courts or in the constitutional courts (para.6 of his affidavit). In Professor Chin’s opinion, if the appellant was not given the special cell and conditions promised, he could in theory raise an action in the criminal courts based on legitimate expectation. However such a claim was not a “tried and tested route”; also funding might or might not be available. Professor Chin confirmed that he was aware of one court action concerning parole, but he was not aware of any prisoner having brought a court action to protest, for example, that he was not being given the government-approved minimum personal space (2.31 sq. metres: (11/6) p.3). [24] Professor Chin accepted that the subject of prisoners’ rights was not a popular cause in Taiwan. Until about 2008, there had been a legislative ban preventing prisoners from taking cases to court, leaving them with only the internal complaints system. Further reforms were expected, but legislation had not yet been passed. A prisoner’s court case might take eight months to a year. [25] Dr James McManus, LLB (Hons), PhD professor of law (2004–09, Glasgow Caledonian University) and a law lecturer (1976–2003, the University of Dundee), acted as an expert adviser to the Council of Europe Committee for the Prevention of Torture (the CPT) from 1992 to 2009. Other appointments included consultant to the English Prisons Inspectorate (1986– 88); commissioner with the Scottish Prisons Complaints Commission (1994– 99); working for the Northern Irish Human Rights Commission, and for the Republic of Ireland police and prison services on human rights awareness and monitoring; and membership (1988–94) and chair (2000–05) of the Parole Board for Scotland. Currently Dr McManus is a member of the CPT elected in 2009 in respect of the UK. [26] In connection with the Council of Europe, Dr McManus has carried out about 60 missions to many different countries, involving prisons and prison staff, NGOs, and human rights compliance issues. His publications include Prisons, Prisoners and the Law (1995, Greens Edinburgh). He has given expert evidence in several Scottish cases, including Napier v Scottish Ministers, concerning slopping-out, and Shahid v Scottish Ministers, concerning solitary confinement. [27] Senior counsel for the appellant objected to certain passages in Dr McManus’s report as hearsay. Evidence was allowed subject to competency and relevancy, and ultimately the objection was not insisted upon. [28] On receiving the instructions noted in para.9 above, Dr McManus read, “what little information (was) available in the public domain on the prison system of Taiwan” (p.2 of his report dated 31 August 2015). Before and after his planned visit to Taiwan, he was given copies of most (but not all) of the Taiwanese authorities’ undertakings: for example, he was apparently not provided with the letter dated 25 February 2014 (13/11), no copy being

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lady Paton)

513

attached to his report. He travelled to Taiwan on 19 August 2015. He met with staff at the British Office in Taipei. He visited Taipei Prison, spoke to staff, and was shown some areas of the prison, including the cell which the appellant would occupy, the outdoor exercise area to which it was stated he would have access, the factories (each with dining and recreation areas), and the punishment cells. Dr McManus did not see the prison conditions overnight. He examined some records, and met with four foreign prisoners selected by the prison authorities. He produced a report dated 31 August 2015 (10/5 and 13/5), which he adopted in his evidence. [29] The introductory paragraph (p.1) sets out matters regarded as relevant by the CPT (cf, their standards in (13/6) and (13/9)).He listed relevant matters as: Cell: size, occupation level, ventilation and heating, natural and artificial lighting, toilet facilities, general state of repair and cleanliness; Relevant wing: general conditions; Regime: total daily time out of cell and in association with other prisoners; availability of work, education, social and cultural activities, library, time in open air, gym and sports activities and religious activities; Medical services: availability of doctor, nurse, dentist, medicines and specialist services; Complaints system: operation, effectiveness, accessibility and fairness; Discipline system: offences, penalties, procedures; Contact with outside world: newspapers, radio, television, visits, phone calls, consular (or equivalent) access; Staffing: levels, training, specialists.

D [30] When giving evidence, Dr McManus emphasised his restricted remit, namely to assess, in the context of art.3 of the ECHR, the conditions in which it was said the appellant would be held. He had no remit to assess the conditions in Taipei Prison in general. He explained that a CPT mission assessing an entire prison normally consisted of a group of about six people, one being a qualified doctor. They would spend several days inspecting a prison. By contrast, he had been acting alone, was not a qualified doctor, and had conducted a twoâ&#x20AC;&#x201D;day visit (not involving being in the prison overnight). [31] At p.4 of his report, Dr McManus described the cell intended for the appellant. It was a room measuring 11.05 square metres (excluding the integral toilet and shower annex) in an entirely separate building some 50 metres distant from the main building containing all the prison cells. The room was situated on the second floor, near an observation office and a large convalescent cell with about 50 beds (p.4 of his report). The room had never previously been occupied. Dr McManus explained in evidence that the cell had been created two years previously as a â&#x20AC;&#x153;take-outâ&#x20AC;? cell: either to give a prisoner a rest from the mainstream, or to give the mainstream a rest from that prisoner. The cell had excellent natural lighting and ventilation, with a window which could be opened and had a view of the gardens. Additional ventilation was provided by a ceiling fan and an exterior wall-fitted extractor fan, both controlled from inside the cell. There was no heating system. Within the cell was a double bunk-bed, a table, a chair, and a four-shelf cupboard. There was a toilet and a shower. There were no electric sockets: thus any radio, television, or other electronic equipment would have to be battery-powered. The only access was by a stairway beside the reception: access was accordingly secure. There was a constantly staffed observation room overlooking the convalescent

5344.indd 513

07/12/16 4:54 PM

514 A

5344.indd 514

Dean v Lord Advocate (Lady Paton)

2016 S.C.C.R.

cell. The cell would be shared with one other foreign prisoner, to avoid circumstances amounting to solitary confinement: thus each occupant would have 5.5 square metres. In relation to fears about the safety of the appellant in view of his notoriety and unpopularity, the staff, security guards and locked doors would ensure that other prisoners could not easily gain access to him. Contrary to the normal rule that prisoners had to work during the day, Dr McManus understood that the appellant would be permitted to choose whether or not to go to work. If he wished, (for example, to avoid confrontations with other prisoners), he could remain in his cell. Dr McManus further understood that the appellant would be permitted books, papers, and possibly a battery-operated TV. So far as exercise outside was concerned, Dr McManus understood that prison staff would clear the outside exercise area of other prisoners when the appellant was taking exercise outside. As for contact with the outside world, arrangements for visits, radio, television and letters met the CPT standards, although the three-monthly access to telephone calls was “miserly” (p.11:cf, para.51 of the CPT standards (13/6): “It is . . . very important for prisoners to maintain reasonably good contact with the outside world. . . . The guiding principle should be the promotion of contact with the outside world”). [32] Assessing the circumstances which would be applicable to the appellant, and assuming that all the assurances given by the Taiwanese authorities would be honoured, Dr McManus concluded that the conditions were safe and art.3 compliant. For example, to satisfy CPT standards, a minimum of 4 square metres per person in multiple occupancy cells was required (CPT “Living space per prisoner” (13/9), and p.5 of Dr McManus’s report): the appellant would have 5.5 metres. If the appellant chose to go to work/education, he could be out of the cell from about 8.30 am to 5.30 pm (CPT standards (13/9) p.7). Of course, if he chose not to go, he would be locked in his cell all day. Dr McManus had spoken to the Director of the Prison, who had undertaken (verbally) that the appellant would be allowed to have outdoor exercise for a period of up to one hour per day (one hour per day being the minimum which the CPT considered necessary for every prisoner: (13/9) p.7).Admittedly that was not a written assurance. Also Dr McManus stated that short-term prisoners (serving a sentence of less than six months) were permitted outside exercise only two or three times per week, for about 20 minutes. Dr McManus noted at p.10 of his report: “Other prisoners clearly do not receive the minimum of one hour outdoor exercise each day as required by the CPT standards, but assurances have been given that Mr Dean would be permitted this.” In relation to the disciplining of the appellant (if that proved necessary), p.11 of the report explains: “It is understood that, should Mr Dean commit a serious disciplinary offence, any solitary confinement sentence would be served in his own cell. A minimum of one hour of outdoor exercise would be permitted.” When asked about any possible hostility from other prisoners towards the appellant, Dr McManus reiterated that he understood that the appellant would be able to choose whether to leave his cell to work with other prisoners, or whether to stay in his cell. Prisoners with whom Dr McManus had spoken simply made it clear that they did not wish to have anything to do with the special measures. When asked whether any particular measures would be put in place to guard or protect the appellant if he went out and mingled with

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lady Paton)

515

other prisoners, Dr McManus said that he was not aware of any particular measures. [33] As mentioned, Dr McManus’s remit was restricted to the conditions in which the appellant was expected to be detained. Nevertheless he had walked through the rest of the prison. Most of the prisoners had been at work or exercise, with the exception of short-term prisoners who remained locked in their cells. Dr McManus noted the following: Overcrowding in the prison: At the time of Dr McManus’s visit, the prison held 3,877 male prisoners, approximately 300 being foreigners, 17 of whom were UK citizens. That represented an overcrowding rate of 41 per cent (p.3 of the report). The prisoners had less than 1.5 square metres per person, ie, considerably less than the minimum of 2.31 square metres laid down by the Taiwanese Ministry of Justice statistics ((11/6) p.3) and much less than the minimum of 4 square metres space per prisoner in a multiple-occupancy cell as recommended by the CPT (CPT “Living space per prisoner in prison establishments” (13/9)). Dr McManus understood that the authorities were working hard to reduce overcrowding levels: a new secure prison was due to open on 1 September 2016, and a new open prison thereafter. But when shown the photograph at p.3 of the Taiwan MOJ Agency of Corrections report on prison conditions, prepared in the context of President Chen’s detention (11/14) and depicting 18–20 prisoners sleeping side-by-side on the floor of a cell measuring 6.37 ping (i.e. about 15 feet by 15 feet), Dr McManus stated categorically that such conditions were “clearly unacceptable” and not art.3 compliant. His report also noted information from the four foreign prisoners selected to speak to him as follows: “Their main complaint was about the lack of sleeping space—one of the prisoners . . . was serving a sentence of less than six months and thus spent the whole day in his cell apart from a few minutes exercise perhaps three times per week. The overcrowding problem was particularly bad at nighttime when it was necessary to step over people on the floor to get to the toilet. This sometimes caused aggression when someone was stood upon. . . .” Dr McManus’s ultimate conclusion was that the prison was “grossly overcrowded”, and that, despite the efforts of the Taiwanese authorities, the overcrowding appeared to have increased from 32 per cent overcrowding in May 2014 to 41 per cent overcrowding at the time of his visit in August 2015. Although he was not referred to any text in the fuller version of the CPT standards (revised 2015) lodged on behalf of the Lord Advocate (13/6), it is noteworthy that those standards wholly endorse Dr McManus’s view: for example, paras 44 and 46 are in the following terms: “44. . . . Ill-treatment can take numerous forms, many of which may not be deliberate but rather the result of organisational failings or inadequate resources. . . . 46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.” Restricted outdoor exercise: The CPT standard is a minimum of one hour’s outdoor exercise each day. In Taipei Prison, Dr McManus noted (pp.5 and

5344.indd 515

07/12/16 4:54 PM

516 A

Dean v Lord Advocate (Lady Paton)

2016 S.C.C.R.

10), that, quite apart from the very restricted outdoor exercise permitted to short-term prisoners: “(P.5) . . . prisoners spoken to indicated that they were not actually allowed much time in the open air each day, especially in the rainy season which it was at the time of the visit. As an alternative, they are offered exercise periods inside the corridors and the factories. . . . (p.10) . . . Poor time in the open air was mentioned by (prisoners spoken to). Those employed in the factories indicated that they were allowed 45 minutes once per week when it was not raining.”

5344.indd 516

Understaffing: Dr McManus notes at pp.2 and 5 of his report (10/5) that at the time of his visit to Taipei Prison, there were 98 staff on duty during the day and 46 at night. For a prison population of 3,877, that resulted in a staffprisoner ratio of one staff-member to 39 prisoners (1:39) during the day, and one staff-member to 84 (1:84) prisoners at night. Accordingly, as Dr McManus noted at p.5 of his report: “. . . the numbers (of staff) on duty at any one time were lower than one would expect for the size of the prison population. Extensive use of CCTV cameras, including one in each cell, compensates for this, though does not allow of full interaction between staff and prisoners.” According to CPT standards (13/6) p.23, para.27, understaffing may affect, inter alia, the ability to control inter-prisoner violence. An unusually low number of prisoner complaints: The complaints system is described at p.6 of the report. In evidence, Dr McManus commented that the number of complaints from prisoners recorded in the Complaint Register was unusually low: the culture in the prison seemed to be “against making complaints”. In relation to court actions, he notes (at p.7): “Prisoners also have access to the domestic courts and had raised some 62 lawsuits in the year to date (66 in 2014 and 82 in 2013). Many of these related to sentence calculation, parole and good time (remission), but others raised issues like moving cells. None, it seemed, related to prison conditions per se. . . . (The appellant) would also have access to the British Office staff in relation to any matter arising for him, and in particular to matters covered by the assurances given by the Taiwanese authorities.” A low medical staff-prisoner ratio: Medical services are covered at pp.6 and 10 of the report. At p.10, it is noted that: “The Medical Services appear to produce roughly the equivalent of seven full-time doctors for the establishment (i.e. one doctor per 553 prisoners), well below the CPT standard of one doctor per 350 prisoners. However there seemed to be no great problem for prisoners obtaining medical attention when needed. . . .” In evidence, Dr McManus explained that the nurses were members of prison staff, but the doctors came from the local military hospital. Psychiatric cover seemed particularly scanty, considering the number of prisoners on psychotropic medication. The prisoner pack issued to UK citizens advised, at p.10: “You will be required to pay for medical, dental treatment and medication unless the matter is an emergency . . . Waiting times for dental treatment can be particularly long.”

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lady Paton)

517

In cross-examination, Dr McManus emphasised the limited nature of his investigation into health care, in view of the nature of his remit and the fact that he had not been accompanied by a qualified doctor. The possibility of solitary confinement: Disciplinary measures and restraints are discussed at pp.7 to 8 of the report. It is noted that: “. . . solitary confinement is not used as a punishment, but a prisoner can be kept alone in a cell if he persistently offends or threatens to offend in a very serious way”. There were two or three cells used when prisoners were segregated, one cell being padded and others with a concrete plinth on the floor, no bedding and no other facilities (“the punishment block”). A document headed “The inmate treatment planning report on an individual case” dated 17 August 2015 (produced about a week prior to Dr McManus’s visit) relating to the appellant (13/7) stated at p.6 that: “. . . if [the appellant’s] behaviour is regarded as a serious offence, for example, assaulting prison officers or harming others, he will be punished by our criminal laws and moved into the cell of rule breakers . . .”. However the possibility of the appellant’s being segregated into the punishment block was ruled out by an undertaking given some two weeks later, in a letter dated 2 September 2015 (see para.10 above). Dr McManus explained that this change was a direct result of his intervention and comments during his visit to Taiwan in August 2015. Violent incidents: The inmate treatment planning report (13/7) at p.8 noted: “According to Taipei prison, from January 2011 to July 2015, there are 62 domestic prison violent incidents leading to injuries (57 minor injuries, four serious injuries, nine deaths) . . . It is inferred that the violent incidents caused by the foreign inmates are much slighter than the ones caused by the domestic inmates, and no death has resulted for foreign inmates so far.” Dr McManus confirmed that he had taken account of those statistics, and commented that, in his view, the level of control in the prison was very good. However in cross-examination he conceded that he had been unaware of the incident of the stabbing of a prison officer with sharpened chopsticks (11/7), the incident involving six prisoner suicides (11/9), and the sexual attacks referred to in (15/8) and (15/13).He also confirmed that a cell-captain culture was clearly not a good thing. Cleanliness: Shown an Amnesty International Report 2014/15 concerning Taiwan (11/1) which stated: “Prison conditions: Overcrowding, unsanitary conditions and lack of adequate medical care remained serious problems in prisons and detention centres. . . .” Dr McManus agreed that he might have to reconsider his initial assessment of Taipei Prison, which was that the prison appeared clean to his sight. In particular, he accepted that the level of humidity in Taiwan combined with dust and insects made sleeping on mats on the floor unacceptable. No international monitoring or control: Dr McManus confirmed that Taiwan was not a member of the Council of Europe or of the United Nations. There was no international monitoring of the Taiwanese prisons, although there were

5344.indd 517

07/12/16 4:54 PM

518 A

Dean v Lord Advocate (Lady Paton)

2016 S.C.C.R.

visits from Australians interested in the correctional field. Dr McManus confirmed that no one had ever previously been extradited from abroad to Taiwan. There was the problem with Taiwan’s status: many extradition treaties required a “state”, not a “territory”. [34] Taking an overall view, Dr McManus’s final conclusion (at p.11 of his report) on the very restricted question of the art.3 compliance of the conditions in which the appellant would be kept was that: “Given the assurances of the Taiwanese Authorities, the expert would conclude that the deficiencies identified (in the report) would not reach the minimum level of severity required to constitute a breach of article 3 of the European Convention on Human Rights.” [35] However Dr McManus did not give the same opinion in relation to the main detention building in Taipei Prison, emphasising that his remit had not been an assessment of the whole prison. When it was pointed out that the 17 UK nationals serving sentences in the main detention building did not appear to have received any special or improved conditions, but were apparently experiencing all the difficulties listed in para.33 above, Dr McManus acknowledged that the British Office in Taipei had either made no interventions on the UK nationals’ behalf, or any interventions made had been unsuccessful, (he rather thought the former). He also agreed that a letter from the FCO dated 5 January 2016 (13/14), stating that the appellant would be able to raise any concerns about his prison conditions with the British Office staff, gave no indication of any action or remedy which the British Office could take. Productions referred to by or on behalf of the appellant in the course of the evidence

[36] As noted above in para.16, the appellant referred to various productions in his evidence, including: [37] Inventory No 11 of Process • The Straits Times 12 February 2015 (11/9) “six inmates in Taiwan prison hostage drama commit suicide; siege ends”. • The South China Morning Post 12 February 2015 (11/13) concerning the same incident and commenting: “Taiwan President Ma . . . has demanded speedy reform of the island’s much-criticised prison conditions . . . (a commentator added) the incident exposes the serious over-congestion of prison cells in Taiwan, the unstable emotions of the inmates . . . and inadequate manpower, facilities and budgets in all prisons across Taiwan.” • A report from the Taiwan Ministry of Justice Agency of Corrections on Prison Conditions (possibly dated 2012) (11/14), untranslated, with a photograph at p.3 showing 18–20 prisoners sleeping side-by-side huddled together on the floor. President Chen (imprisoned in Taipei Prison for bribery) was given preferential treatment, including sharing a cell with one other person and having a desk. • A Taiwan Ministry of Justice Agency of Corrections report dated 26 February 2015 (11/16), untranslated, concerning hostages and suicides. [38] Inventory No 15 of Process (with three joint minutes 15, 34, and 41):

5344.indd 518

• Control Yuan (May 2010) review of Taiwan’s prisons (25/6) referring to obvious understaffing (including medical and pharmaceutical staff), overcrowding (“still a big problem”).

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lady Paton)

519

• Review of the Initial Reports of the Government of Taiwan on the Implementation of the International Human Rights Covenants. Concluding Observations and Recommendations adopted by the International Group of Independent Experts Taipei, dated 1 March 2013 (15/2), para.61 et seq of which provides: “61. The overcrowding of prisons is recognized by the Government of Taiwan as an ‘urgent problem’ (para.146 of the initial report). Overcrowded prisons lead to a variety of human rights problems, such as poor hygienic and health standards, lack of privacy, an increase of violence and often to conditions of detention that can only be qualified as inhuman or degrading treatment. . . . (Recommendations follow, including the construction of new prisons, measures to reduce the number of prisoners, and improvements in the prison health services.) 62. Article 9(4) ICCPR (the International Covenant on Civil and Political Rights) provides that anyone who is deprived of his or her liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of the detention and order release if the detention is not lawful (right to habeas corpus) . . . the Government of Taiwan admits that the writ of habeas corpus is not applicable to foreigners . . .” • Article on “room captain culture” by Taiwan Action for Prison Reform (“TAPR”) 21 March 2013 (15/8) describing stronger and more powerful inmates governing, bullying, and abusing weaker and vulnerable inmates (“prison reform in Taiwan [has] still a long way to go”). • A national news channel (NOW) March 2013 (15/15) describing sexual assaults on a teenage prisoner by a room captain in Taipei Prison. • The news channel NOW April 2013 (15/16) describing an inmate “violently tortured by other inmates from the same cell” who died due to the violent abuse. • Liberty Times April 2013 (15/14) describing a prisoner repeatedly beaten by another inmate resulting in his death, no preventative action having been taken by the prison management. • E-News of the Liberty Times dated 26 April 2013 (15/28) containing “enraged” comments from the father of the man who died in the road traffic accident, in particular stating: “I will offer a NT$ 1,000,000 for (the appellant’s) head . . . There will be retribution. . .waiting for (the appellant) and his girlfriend. . . .” • A compensation award of NT$ 7,550,000 had been awarded against the appellant by Taipei District Court. His departure from Taiwan had “caused a great uproar and the furious President Ma . . . has also ordered for his arrest through any possible channels. Some Taiwan citizens claiming to be underworld gangs offered to hunt down (the appellant) till he returns to Taiwan and faces trial”. • Article on sexual abuse in Taiwan prisons 30 April 2013 (15/13) by TAPR, referring to overcrowded prison cells, room-captain culture and lack of prison guards. • Article by an assistant professor in sociology, Taiwan University, October 2013 [15/25] noting that “overcapacity and guard ratio is the worst in East Asia . . . not just the daily living environments of inmates but the working conditions of inmates are all terrible”; referring further to insufficient medical service and inadequate “space, air, sunlight, water”. • A Public Television Service (PTS) item (15/12) describing inadequate food and poor air-flow in the violation room in Taipei Prison.

5344.indd 519

07/12/16 4:54 PM

520 A

5344.indd 520

Dean v Lord Advocate (Lady Paton)

2016 S.C.C.R.

• A DVD containing a television programme broadcast in 2014 (15/17) and a trailer for the programme (15/22). The programme (which was shown to the sheriff) was described as depicting inmates sleeping shoulder-toshoulder on the floor with an open toilet in the corner. • SET News report dated 5 February 2016 (15/37) entitled: “Are you joking? British businessman Zain Dean rejects return to Taiwan only because of ‘inhumane’ prison conditions”. The article includes the following comments: “It has been revealed that in order to fight for extradition, the Ministry of Justice is offering a luxury prison cell, which contains a bunk bed, as well as a toilet and shower facilities. It has even proposed to cater for his religious and dietary requirements by providing hamburgers and pasta. It is truly a luxurious prison. The response from the Ministry of Justice is that because the UK has concerns over human rights in Taiwan’s prisons, the purpose of providing this document is for the Ministry of Justice to prove the prison conditions rather than to offer special treatment to Zain Dean . . . Cheng Ming-tang, the deputy Minister of Justice, said, ‘This is not tailored for Zain Dean. (The British government) has concerns over our prison conditions. We are just demonstrating that our prison facilities are not inhumane’ . . . Providing such generous conditions will surely devastate the family of the deceased victim.” • SET News report dated 2 May 2016 [15/38] entitled “(Conditions) even better than A-bian (Taiwan’s ex-president Chen)! Zain Dean’s 5-star prison cell is revealed. Deceased victim’s father: I might as well go and live there”. The article includes the following comments: “It seems that the authorities will have to negotiate conditions with Zain Dean in order to make him serve his sentence in Taiwan. The large prison cell being offered to him is of five-star quality . . . The father of . . . the deceased newspaper delivery man was furious after he learnt of the news. He said that if Zain Dean was to live in such a luxurious prison cell, he might as well go live there . . . Although the former president Chen Shuibian received preferential treatment, he still had to live in a (4.3 square metres) cell, but Zain Dean is being offered an en-suite room of more than (13.22 square metres) in size. The toilet used by Chen Shui-Bian was in an open space, so there was no privacy at all when he used the toilet . . . it makes people wonder on what basis does Zain Dean, the killer of a filial son, negotiate terms with Taiwan . . .” • Next Magazine internet article dated 12 May 2016 (15/39) entitled “(Exclusive) In order to extradite Zain Dean to serve his sentence, the Ministry of Justice is offering an en-suite twin room, together with hamburgers and spaghetti.” The article includes the following comments: “After killing the victim on the road, Zain Dean did not apologise or pay any compensation. What was even worse was that he appeared to be extremely arrogant, which really infuriated the public in Taiwan . . . Earlier this year, in order to extradite Zain Dean, the Ministry of Justice submitted a special official document with attached photos to the UK court, showing them that the prisons in Taiwan were not like what the outsiders had imagined at all, but in fact they had good facilities and good welfare . . . From the photos submitted to the UK court by the Ministry of Justice, it can be seen that if Zain Dean comes to Taiwan to serve his sentence, he will be living in a ‘luxury’ en-suite room (the facilities are then described, including the provision of special food such as hamburgers and spaghetti). In order to extradite Zain Dean back to Taiwan, the Ministry of Justice painted a rose-tinted picture of the prison conditions in Taiwan, but what is

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lady Paton)

521

it really like for inmates to live in a prison in Taiwan? More than ten people are crammed into a small cell and they sleep on the floor. It is difficult to understand whether it is because the Ministry of Justice offers ‘special care’ in the hope of getting Zain Dean to serve his sentence in Taiwan, or whether it had absolutely no regard for the human rights of the inmates in Taiwan. Chen Ming-tang, the Administrative Depute Minister of Justice, provided the following explanations. Zain Dean refused to serve his sentence in Taiwan on the basis of poor prison conditions in Taiwan. In response to this, the Ministry of Justice showed the UK our newly-renovated prison cell facilities. This was to prove that our prison conditions were not poor and that we would be able to provide special meals based on the religious requirements of different countries. However these facilities are scarce so they cannot be made available to all inmates. Therefore, even if Zain Dean comes to Taiwan, he may not be able to actually receive such treatment. (Written by: The Social News Team).”

Discussion and decision

[39] The request to extradite the appellant to Taiwan is unique. There is no precedent. To date, the Taiwanese authorities have not sought the extradition of any person to Taiwan, including Taiwanese nationals who have fled the country accused of crimes. As Professor Chin explained in evidence, other countries have not entered into international treaties with Taiwan as a result of the dubiety attached to Taiwan’s status in the world. As Dr McManus observed, most countries enter into extradition treaties with recognised “states”, and not with “territories”. [40] It seems that little is known in the UK about the conditions in which prisoners are held in Taiwan, and in particular in Taipei Prison. As discussed in paras 56 et seq below, there is no established UK or international system whereby the conditions in any prison in Taiwan, including Taipei Prison, are monitored. When asked for information on the subject, the staff at the British Office in Taipei were guarded in their response (see para.56 below). [41] This court nevertheless has to address the question whether, in relation to the conditions in which the appellant is intended to be held in Taipei Prison, “substantial grounds have been shown for believing that there is a real risk of treatment (of the appellant) incompatible with article 3 “(Saadi v Italy, para.128). A real risk means “more than mere possibility but . . . something less than the balance of probabilities” (Aldhouse v Thailand, para.26). “The burden of proof is less than proof ‘on the balance of probabilities’, but the risk must be more than fanciful” (Florea v Romania, para.21, quoting Torreggiani). I approach the question on the basis of the evidence led in court, applying the tests set out in Kapri v Lord Advocate; Saadi; Aldhouse; and Florea. [42] For the purpose of this exercise, I shall consider the evidence on the hypothesis that every effort would be made by the Taiwanese authorities and their prison staff to fulfil all assurances given (including those noted in para.10 above). I accept that, as this case is the first extradition request made by Taiwan to the UK (or indeed to any foreign country), and as the appellant’s particular circumstances and offence have made his case a high-profile one, there is a: “[S]ubstantial interest on the part of the judicial authorities of Taiwan to ensure the assurances are observed. Failure on their part would deny them the opportunity in future to pray in aid with any other jurisdiction their commitment to ensure assurances they offer will be observed and given practical effect”(para.19 of the note by Mr Dickson dated 21 June 2016).

5344.indd 521

07/12/16 4:54 PM

522 A

5344.indd 522

Dean v Lord Advocate (Lady Paton)

2016 S.C.C.R.

[43] Adopting this approach, I find that it is not necessary to explore whether there have been ambiguities or misunderstandings about past undertakings (for example, concerning time spent in custody in Scotland, or additional requests for extradition) as it is my opinion that even if it is assumed that every endeavour would be made to fulfil the assurances, there are nevertheless “substantial grounds . . . for believing that there is a real risk of treatment (of the appellant) incompatible with article 3” (Saadi, para.128). I have reached that conclusion for the following reasons. [44] I am satisfied beyond reasonable doubt on corroborated evidence that the main detention building in Taipei Prison suffers from gross overcrowding, significant understaffing, problems of unchecked and uncontrolled abuse and bullying of weaker prisoners, inadequate ventilation and toilet facilities, and inadequate opportunities for prisoners to exercise in the open air. Further I am satisfied beyond reasonable doubt on corroborated evidence that the appellant and his past offending behaviour have received such widespread adverse publicity in Taiwan that he is at particular risk of being the focus of hostility from prisoners within the prison. It is my opinion therefore that, were the appellant to be housed in the standard conditions in the main detention building, substantial grounds have been shown for believing that there is a real risk of treatment of the appellant incompatible with art.3 (Saadi, para.128). [45] I consider therefore that the only live question for this court to determine is whether the undertakings given and special arrangements proposed by the Taiwanese authorities, assuming they are fulfilled to the letter, would have the result that the appellant could serve his sentence in Taipei Prison without there being a real risk of treatment of him incompatible with art.3. [46] As noted above, I am working on the hypothesis that every effort would be made by the Taiwanese authorities, prison staff, and others, to fulfil and honour all the undertakings and special arrangements promised by the Taiwanese authorities. Thus I assume that the appellant would not be housed in the main prison building, but in the nearby building. He would occupy a special cell, in the company of one other foreign prisoner. He would have a bed, toilet and shower facilities, and a desk and chair. He would be able to choose whether or not to go to work during the day. He might at times be offered “western” food, such as spaghetti and hamburgers. He might be able to have books and papers, and to watch a battery-operated television (there being no electrical sockets in the cell). If and when taken out for exercise in the fresh air—which Dr McManus understood would, in the appellant’s case, be for up to an hour each day—other prisoners would be removed from the exercise area. [47] Such arrangements would, in my opinion, be viewed by the prison community in Taipei Prison (both staff and inmates), and by the public in Taiwan, as wholly exceptional. Other prisoners interviewed by Dr McManus wanted nothing to do with those arrangements, from which I infer that being so favoured by the authorities would cause significant animosity amongst other prisoners. That would be highly disadvantageous for the appellant, who is already notorious and unpopular because of his personal circumstances and the offences of which he has been found guilty. [48] The exceptional nature of the proposed arrangements was highlighted in the course of this litigation. Initially the Taiwanese authorities expected the appellant to occupy a standard cell. They undertook to reduce the number of fellow-prisoners in the cell, and to select non-violent prisoners. Thus the

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lady Paton)

523

appellant was intended to share the cell and its open communal toilet with fellow prisoners; have no bed, desk or chair; sleep on a mat on the floor; have no fan or other form of artificial ventilation; go to work each day with other prisoners; and take the minimal outdoor exercise available along with other prisoners. In the course of the extradition proceedings, the authorities undertook, stage by stage, to provide revised and improved arrangements, all as noted in para.10 above. Against that background, the comments of the Taiwan Justice Minister on 5 February 2016 quoted in para.38 above (“This is not tailored for Zain Dean”) are not, in my opinion, an accurate reflection of the facts. I consider that it is obvious that the special cell and conditions have been “tailored” for the appellant—tailored in the course of these extradition proceedings, in part with the benefit of advice from Dr McManus. I also consider that it is obvious that such special conditions have provoked, and will continue to provoke, considerable anger and resentment on the part of the deceased’s grieving family, the local Taiwanese people who are aware that the appellant (a foreigner) has been convicted of killing a Taiwanese newspaper delivery man, and other prisoners in Taipei Prison, who would resent the superior comfort, space and facilities in the special cell, resent the special food which he might receive, resent being excluded from the exercise area to allow the appellant to be there on his own (when time outside in the fresh air was so limited and precious), resent the appellant’s ability to choose whether or not to go to work/education, and resent the appellant’s immunity from being sent to the punishment block. [49] Thus the Taiwanese authorities would be placed in a difficult position. If they qualify or depart from the offer of the special cell and conditions all as set out in the various assurances in para.10 above, they might succeed in placating resentment against the appellant, but they would then conspicuously fail to honour the assurances given, and expose the appellant to the very conditions which I consider not to be art.3 compliant. [50] Against that background, I have carefully considered all the evidence. I am not satisfied that the exceptional arrangements described in the assurances remove the real risk of treatment of the appellant incompatible with art.3, for the following reasons. [51] Taipei Prison is grossly overcrowded and significantly understaffed. Despite the plans of the Agency of Corrections, the overcrowding appears to have increased from 32 per cent in May 2014 (the letter dated 7 May 2014) to 41 per cent in August 2015 (the month of Dr McManus’s visit). As is pointed out in the CPT standards (Rev 2015) (13/6) at pp.22–23: “Extract from the 7th General Report (CPT/Inf (97)10) ... 13. . . . An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened healthcare services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention . . . Inter-prisoner violence 27. . . . Tackling the phenomenon of inter-prisoner violence requires that prison staff be placed in a position, including in terms of staffing levels, to exercise their authority and their supervisory tasks in an appropriate manner.”

5344.indd 523

07/12/16 4:54 PM

524 A

5344.indd 524

Dean v Lord Advocate (Lady Paton)

2016 S.C.C.R.

[52] In the overcrowded and understaffed circumstances currently prevailing in Taipei Prison, I consider it highly doubtful that the prison, even with welltrained and well-motivated staff, has the capacity to be able to provide sufficient protection for the appellant in the context of the large numbers of prisoners who require supervision. [53] If the appellant were to decide to remain full-time in his cell for his own safety (thus being wholly segregated from other prisoners), he would not be able to work and earn parole; he would have little to do; he would have little exercise; he would in effect be held in solitary confinement in a locked cell which cannot be categorised as a “special unit” in which some degree of activity and interaction with others might be possible. The definition of solitary confinement includes a locked cell containing two occupants. Solitary confinement is generally accepted as very harmful to a prisoner’s mental and physical health: cf, the observations in Shahid v Scottish Ministers, paras 75 et seq; CPT “Living space per prisoner in prison establishments” (CPT/Inf (2015) 44) (13/9) at p.7: “Purposeful activities: The CPT has long recommended that prisoners should be offered a range of varied purposeful activities (work, vocation, education, sport and recreation). To this end, the CPT has stated since the 1990s that the aim should be for prisoners—both sentenced and on remand—to spend eight hours or more a day outside their cells engaged in such activities, and that for sentenced prisoners the regime should be even more favourable.” See too the CPT standards (CPT/Inf/E(2002)1-Rev 2015 English) (13/6): “A satisfactory programme of activities (work, education, sport, etc) is of crucial importance for the well-being of prisoners . . . prisoners cannot simply be left to languish for weeks, possibly months, locked up in their cell, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (eight hours or more) outside their cells, engaged in purposeful activity of a varied nature. Of course, regimes in establishments for sentence prisoners should be even more favourable.” (p.17), para.47. “Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard. . . .” (p.18), para.48. “Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should be as short as possible. . . .” (p.20), para.56. “. . . The CPT has always paid particular attention to prisoners undergoing solitary confinement, because it can have an extremely damaging effect on the mental, somatic and social health of those concerned. This damaging effect can be immediate and increases the longer the measure lasts . . . Clearly, therefore, solitary confinement on its own potentially raises issues in relation to the prohibition of torture and inhuman or degrading treatment or punishment. . . .” (p.29), para.53. “The CPT understands the term ‘solitary confinement’ as meaning whenever a prisoner is ordered to be held separately from other prisoners, for example . . . for the protection of the prisoner concerned. A prisoner subject to such a measure will usually be held on his/her own; however, in some States he/she may be accommodated together with one or two other prisoners, and this section applies equally to such situations.” (p.29), para.54. [54] On the other hand, if the appellant were to emerge from his cell, for example to go to work or exercise, he would be an easy target for other

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lady Paton)

525

prisoners. Even with an effective full-time personal escort or guard, he would in my opinion be at significant risk of attack. In any event, there was no evidence that the prison, overcrowded and understaffed as it is, could, or would, provide an effective full-time personal escort or guard for the appellant moving around the prison, outside the safety of his cell. [55] Further, I am not satisfied that there are sufficient medical staff and services available for the prisoners, including the appellant. Such evidence as the court heard suggested otherwise: see para.33 above. Dr McManus was careful to point out that a CPT inspection group would include a qualified doctor who would be better able to assess the prison’s medical cover and services. Without that authoritative assessment, on the information before this court, I have concerns that: (a) there are insufficient medical staff available for the large prison population; (b) there are insufficient pharmaceutical staff and resources for that population; (c) prisoners have to pay for non-emergency medical and dental treatment; (d) prisoners have to pay for non-standard makes of drugs. I note from the CPT standards (11/6) at p.39 that access to a doctor and dentist is regarded as important for prisoners. [56] It is also a matter of considerable concern that, in this case, there is no established UK or international system whereby the prison conditions in Taipei Prison are monitored, and whereby a route to remedial action may be pursued. If, for example, the Taiwanese authorities, despite their best endeavours, found themselves unable to fulfil any of the assurances given, there is no effective remedy, and therefore no fulfilment of criteria (6)–(9) in para.189 of Othman v United Kingdom. No external UK or international independent body (such as the Commission for the Prevention of Torture, or a committee from the United Nations) visits or inspects Taipei Prison, or has any power to ensure that the assurances given by the Taiwanese authorities and set out in para.10 above are enforced. Taiwan is not a signatory to the ECHR or the European Convention on Extradition (ECE), nor is it a member of the Council of Europe, or of the United Nations. The British Office in Taipei does not appear to be able to insist that assurances are enforced, or even to provide some degree of protection or assistance to a UK citizen inmate of Taipei Prison. There was certainly no evidence to suggest that the British Office had ever managed to achieve an improvement in conditions. The Consular Directorate of the FCO explained by letter dated 8 September 2015 (16/1): “We do conduct consular visits to prisons in Taiwan. We consider that passing on to third parties information obtained during the provision of consular support to our prisoners goes beyond our consular remit and could therefore jeopardize our consular access in the future . . . In this case, the information being withheld relates to conditions in prison in Taipei . . . Disclosure of the information that was given to us in confidence would damage our relationships with the individuals concerned: they would be more guarded and less co-operative in their dealings with us . . . Please find attached some information from public sources. . . .” A similar message was sent earlier by email dated 19 August 2015 (11/10), stating: “I am afraid that we are not in a position to provide you with an assessment of the treatment of British nationals in Taipei prison. Our consular staff are not experts on prison standards and do not have the access that would enable them to give factual evidence on this matter. Furthermore, in general, the FCO considers that passing on information obtained during the provision of consular support to our prisoners goes

5344.indd 525

07/12/16 4:54 PM

526 A

5344.indd 526

Dean v Lord Advocate (Lady Paton)

2016 S.C.C.R.

beyond our consular remit and could therefore jeopardize our consular access in the future. For these reasons, it would be more appropriate for you to gather information from organisations devoted to providing expert assessments of prison conditions. . . .” It is of note that, so far as Dr McManus was aware, the British Office in Taipei had, at the time of his visit, either never attempted to intervene on behalf of the 17 UK citizen prisoners in Taipei Prison in order to achieve improved conditions for them; or alternatively the consular staff had intervened, without noticeable effect. Dr McManus suspected the former, and his view is supported to some extent by the letter from the FCO dated 5 January 2016 (13/14) which gives no indication of any steps which the British Office would or could take on the appellant’s behalf were he to have concerns. [57] Another matter which I regard as important is the fact that there is no established route within the Taiwanese courts whereby a prisoner can seek a remedy in respect of prison conditions (contrast with the UK: see, for example, Shahid v Scottish Ministers). On the evidence, it would appear that the concept of “prisoners’ rights” is at a very early stage of development in Taiwan. There is no recognised tried and tested route available to a prisoner to raise a court action concerning his conditions of detention. Any such action would be a pioneering venture, and it is not clear whether the administrative or the criminal courts would be the appropriate forum (cf, Professor Chin, para.23 above). Funding might present difficulties, as might the availability of an interim remedy. Professor Chin was unaware of any such case having been pursued in the past. Thus it would appear that one of the fundamental CPT standards is unlikely to be met (para.54 of the CPT standards (Rev 2015) (13/6)). [58] For all these reasons, even taking into account the guidance given in Ahmad v United Kingdom referred to by Lord Drummond Young in para.73 below, I am satisfied that substantial grounds have been made out for believing that, even if all the undertakings and special conditions were to be fulfilled, there remains a real risk of treatment of the appellant incompatible with his human rights in terms of art.3 of the ECHR (cf, Saadi v Italy, para.128; Aldhouse v Thailand). Accordingly the appellant’s extradition to serve his sentence in Taipei Prison would not, in my opinion, be compatible with the Convention. As Blake LJ explained in Florea v Romania: “31 [I]f there are substantial grounds for fearing a real risk of treatment that would amount to inhuman or degrading treatment . . . removal (to the receiving state) is not possible, however compelling the public interest in return: see Badre’s case [2014] EWHC 614 and the speech of Lord Kerr of Tonaghmore JSC giving the judgment of the Supreme Court in R (E M (Eritrea)) v Secretary of State for the Home Department [2014] 2 WLR 409, paras 41–43 and 58–64. 32 The Supreme Court has clarified that the test is not whether a violation of human rights is systemic or systematic. However evidence of enduring problems with the system can support the existence of substantial grounds for a belief in a real risk of article 3 ill-treatment, despite the starting point of the presumption of compliance.” [59] I have reached this conclusion on the basis of evidence led before this appeal court which was not available at the extradition hearing before Sheriff Maciver (s.104(4) of the Extradition Act 2003). As a result, it is my view that the appeal under s.103 should be allowed, as the evidence referred to above would, in my opinion, have resulted in the sheriff’s deciding the art.3

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lady Paton)

527

question differently, such that he would have been required to order the appellant’s discharge (ss.87 and 104(1)–(4)). In terms of s.104(5) I propose that this court orders the appellant’s discharge, and quashes the order for his extradition. [60] I note that this unique case has a protracted history, which may, in part, be explained by the difficulties of litigating about prison conditions existing in another territory when so little information about those conditions is available in the public domain. In the result, the appellant has in fact been in custody in Scotland for a period longer than the period he would have served (with parole) had he received a four-year sentence in the Scottish jurisdiction. I would also add that it is possible that, in this particular case, the observations of Lord Drummond Young in para.66 below may not reflect the situation as it was in October 2013, when the unique memorandum of understanding relating to one individual (the appellant) was entered into. Bearing in mind the terms of the letter from the Home Office dated 22 October 2014 relating to Taiwan (11/12) quoted in para.10 above, and the introductory comment made by Dr McManus at the outset of his report, quoted in para.28 above, about reading “what little information (was) available in the public domain on the prison system of Taiwan”, the evidential hearing in this case might be regarded as something of a voyage of discovery.

Appeal in terms of s.108; devolution issue minutes

[61] It would follow from a decision to allow the appeal in terms of s.103 of the 2003 Act that it would not be necessary for this court to issue an opinion in terms of s.108, or to decide the devolution issue minutes. D

Expenses

[62] Any question of expenses should be continued. LORD DRUMMOND YOUNG [63] The present stage of proceedings concerns the question of whether acceding to the request by the Republic of China for the extradition of the appellant would contravene his rights under art.3 of the ECHR. In my opinion it would not do so. In explaining this conclusion, I propose to consider five general propositions that are in my opinion of crucial relevance to the present case. Thereafter I will discuss the application of those principles, and finally I will consider the details of the argument presented on behalf of the appellant that his return would be likely to result in a contravention of his art.3 rights.

General propositions

[64] First, it is, I think, worth emphasising the importance of extradition in maintaining the rule of law at both a national and an international level. It is obvious that the criminal law of a country could not be consistently and impartially maintained if those accused or convicted of crimes were able to escape due process of law by moving to another country. For this reason I consider that an essential policy consideration is that a request for extradition, if it conforms to the standard requirements of double criminality and speciality and comes from a country where the rule of law is respected, should normally be given effect, provided that the request is supported by adequate evidence that the subject of the request has committed a crime. Consequently refusal of such a request on a ground such as a failure of the requesting state’s prison system to conform to art.3 standards should be regarded as exceptional.

5344.indd 527

07/12/16 4:54 PM

528 A

5344.indd 528

Dean v Lord Advocate (Lord Drummond Young)

2016 S.C.C.R.

[65] Secondly, the system of extradition law is based on arrangements concluded between the UK and other states and territories. These include treaties and analogous agreements, and also international arrangements such as the European Union Council Framework Decision on the European Arrest Warrant. In the present case, extradition is sought on the basis of a memorandum of understanding concluded between the government of the UK and the judicial authorities of the Republic of China (Taiwan) dated 16 October 2013. Although the memorandum of understanding relates only to the appellant, it still enjoys the status of an international agreement concluded between the governments of the UK and Taiwan. We have already held that Taiwan is a “territory” for the purposes of the Extradition Act 2003, and further that it has a functioning legal system and effective government: decision of 24 June 2015, at paras 18–19. The memorandum of understanding was concluded by the Home Office on behalf of the UK and by the judicial authorities of Taiwan on behalf of the Republic of China. Subsequent letters have been issued by Taiwan regarding the conditions under which it is proposed that the appellant should be held in prison. These have all been issued on behalf of the Ministry of Justice, which is a department of the executive of Taiwan. Thus all of the proposed arrangements have been agreed between the respective executives of the two countries. That is the normal way in which extradition arrangements are concluded. [66] Thirdly, extradition arrangements, of which the memorandum of understanding is an example, are concluded by the executive arm of government on behalf of the UK and by the appropriate agency of the executive in the other territory or territories concerned. So far as the UK is concerned, the decision as to whether or not to enter into an extradition arrangement with a particular territory is a matter for the executive arm of government. The courts should in my opinion respect the government’s decision to enter into such an arrangement, and should not act in such a way as to override the decision. The decision to enter into an extradition arrangement is ultimately that of the Home Secretary, and it is in my view material that in concluding such an agreement the Home Secretary will have access to a range of government services, including those available from the Foreign Office and Diplomatic Service as well as those within the Home Office. Thus it is likely that the Home Secretary will be better informed than the court can be as to whether it is desirable to enter into an extradition agreement with a particular territory, and as to what the terms of any such agreement should be. [67] Fourthly, when the UK enters into an extradition arrangement with a foreign territory, the courts should in my opinion assume that the requirements of the agreement, together with any supplementary undertakings, will be observed in good faith by the authorities of that territory. That is the fundamental basis upon which extradition arrangements proceed. It has been recognised in a number of cases; for example, in Deya v Kenya, Dyson LJ, delivering the opinion of the Divisional Court, referred at para.40 to: “a fundamental assumption that the requesting state is acting in good faith. That assumption may be contradicted by evidence. But the evidence required to displace good faith must possess special force”. Likewise, in Gomes v Trinidad and Tobago, Lord Brown of Eaton-underHeywood stated at para.36: “The extradition process, it must be remembered, is only available for returning suspects to friendly foreign states with whom this country has entered into multilateral or bilateral treaty obligations involving mutually

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lord Drummond Young)

529

agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations.” A similar presumption of good faith applies to assurances issued by the requesting state: Cato v Republic of Peru at paras 15 and 23. [68] As with any agreement at an international level, an extradition agreement takes effect as a matter of international law. While obviously the enforcement of international law presents much greater difficulties than the equivalent in domestic law, the extent to which a state observes its international obligations, or fails to do so, can be monitored by diplomatic and consular staff. If it becomes clear that a state is failing to implement its international undertakings, it is likely that other states will be reluctant to conclude agreements with it in future, which is a sanction in itself. In general, it can be said that states recognise, “the great desirability of honouring extradition treaties made with other states”: R (Ullah) v Special Adjudicator at para.24, Lord Bingham of Cornhill. We have been informed that the memorandum of understanding is the first extradition arrangement into which the Republic of China has entered; the Republic of China faces obvious difficulties because of its lack of recognition at an international level. That it seems to me, makes it especially likely that the requirements of the memorandum will be observed. [69] At this point I should briefly note the status of Taiwan, or the Republic of China. It was suggested in submissions for the appellant that Taiwan’s international status was a cause for concern in considering whether the memorandum of understanding and subsequent assurances are likely to be observed. The existence of Taiwan is not recognised by the UK, nor by the majority of other states. Nevertheless, as the court held in its earlier opinion, Taiwan has a functioning government and legal system; indeed, if those requirements were not satisfied Taiwan could not qualify as a “territory” for the purposes of the Extradition Act. Furthermore, a British diplomatic presence is maintained there, although it does not amount to a full embassy or consulate. Thus there is the possibility of monitoring Taiwan’s observance of the memorandum of understanding and subsequent assurances. For these reasons I am of opinion that the international status of Taiwan is not a factor of great significance in relation to extradition.

E Application of art.3 to extradition

[70] The issue that is now under consideration is the application of art.3 of the ECHR to the Taiwanese prison system. The application of art.3 to extradition has been considered in a large number of cases, both in Strasbourg and domestically. The principles laid down in these cases were recently summarised by Aikens LJ, issuing the decision of the Divisional Court in Elashmawy v Court of Brescia, Italy at para.49: “. . . (2) If it is shown that there are substantial grounds for believing that the requested person would face a ‘real risk’ of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country then Article 3 implies an obligation on the Contracting state not to extradite the requested person. (3) Article 3 imposes ‘absolute’ rights, but in order to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. In general, a very strong case is required to make good violation of Article 3. The test is a stringent one and it is not easy to satisfy. (4) Whether the minimum level is attained in a particular case depends on all the circumstances, such as the nature of the treatment, its duration,

5344.indd 529

07/12/16 4:54 PM

530 A

Dean v Lord Advocate (Lord Drummond Young)

2016 S.C.C.R.

its physical and mental effects and, possibly, the age, sex and health of the person concerned. . . . (5) The detention of a person in prison as a punishment lawfully imposed inevitably involves a deprivation of liberty and brings with it certain disadvantages and a level of suffering that is unavoidable because that is inherent in detention. But lawful detention does not deprive a person of his Article 3 rights. . . .” It is recognised, however, that when prison overcrowding reaches a certain level the resulting lack of space may constitute “the central element to be taken into account when assessing the conformity of a given situation within Article 3. As a general rule, if the area for personal space is less than [3 square metres], the overcrowding must be considered to be so severe as to justify itself a finding of a violation of Article 3”(ibid). The ECtHR has expressed the law in similar terms, notably in Gäfgen v Germany at paras 87–93. [71] The application of the art.3 test was considered in R (Ullah) v Special Adjudicator at para.24: “In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment.”

The expression “real risk” must, I think, be taken to indicate a significant or substantial risk of treatment contrary to article 3. In Saadi v Italy, the Strasbourg court stated, at paras 128–129: “In determining whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with art.3, the Court will take as its basis all the material placed before it or, if necessary, material obtained proprio motu . . . [The] Court’s examination of the existence of a real risk must necessarily be a rigorous one. “It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to art.3.Where such evidence is adduced, it is for the Government to dispel any doubts about it.”

The foregoing statement was commented on in Deya v Kenya at para.37: “We do not consider that the court is here saying that the legal burden of proving an Article 3 case shifts from the claimant to the defendant. In our judgment, the legal burden remains on the claimant.”

Ullah was cited in support. [72] A useful, and more recent, statement of the law on this issue is found in Aldhouse v Royal Government of Thailand at para.26: “(a) a fugitive must not be extradited if there are substantial grounds for believing he faces a real risk of treatment prohibited by art.3 in the receiving country . . .; (b) a real risk is more than mere possibility but it is something less than the balance of probabilities . . .; (c) in the absence of torture, which always violates art.3, there is no single feature of treatment that necessarily amounts to inhuman or degrading treatment or punishment. What amounts to such treatment depends on all the circumstances of the case . . .”.

5344.indd 530

[73] It has been held that the Convention, and in particular art.3, is not to be treated as a means by which Convention countries may impose their own

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lord Drummond Young)

531

standards on other states. The result is that, even if conditions in prison would amount to a breach of art.3 if they occurred in the UK, they might not necessarily do so if present in another non-Convention country. This issue was considered by the Strasbourg court in Ahmad v United Kingdom, when it was stated, at para.177: “[T]he absolute nature of art. 3 does not mean that any form of ill-treatment will act as a bar to removal from a Contracting State. . . . [T]he Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other states. . . . This being so, treatment which might violate art.3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of art.3 in an expulsion or extradition case. For example, a Contracting State’s negligence in providing appropriate medical care within its jurisdiction has, on occasion, led the Court to find a violation of art.3 but such violations have not been so readily established in the extra-territorial context. . . .” The court went on in that case (at para.178) to list a number of factors which tend to lead to the conclusion that there has been a violation of art.3 in a case involving ill-treatment of prisoners; these include an intention to debase or humiliate the prisoner, the absence of any specific justification for the measure imposed, the arbitrary punitive nature of the measure, the length of time for which the measure was imposed, and the fact that there had been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. The court added (at para.179) that it had been cautious in finding that removal from the territory of a contracting state would be contrary to art.3, and that such a finding would be unlikely in the case of removal to a state with a long history of respect for democracy, human rights and the rule of law. [74] Similar observations are found in the opinion of the divisional court in Richards v Ghana at para.57, where it was pointed out that a tension might be thought to exist between this, essentially contextual, application of art.3 standards and other statements by the Strasbourg court that the requirements of art.3 are absolute. The suggested reconciliation of this tension lay in the emphasis that is placed in the case law on the need for “very strong grounds” before a court would be willing to conclude that prison conditions in a non-Convention state attain the level of severity that amounts to inhuman or degrading treatment or punishment in such a way that art.3 is violated (para.58). [75] It follows from the foregoing authorities that in the context of extradition a strong case is required before it can be held that conditions in a foreign prison will result in a contravention of art.3. While overcrowding can amount to a breach of that article, if adequate assurances are given that special measures will be taken to ensure that the subject of extradition will be housed in a cell that is not overcrowded, I am of opinion that there will normally be compliance with the Convention. Furthermore, it must in my opinion be assumed that the authorities in the requesting state will act in good faith, and will observe any undertakings that they have given as to the conditions in which the subject of extradition will be housed. Finally, it is in my view clear from the authorities that the standards applicable to foreign prisons in non-Convention states need not be assessed in such a way as to impose fully Convention-compliant standards; it is enough that there is a reasonable level of such compliance.

5344.indd 531

07/12/16 4:54 PM

532 A

5344.indd 532

Dean v Lord Advocate (Lord Drummond Young)

2016 S.C.C.R.

Application to the request under consideration Undertakings given by Taiwan

[76] On the foregoing approach, I am of opinion that the appellant has failed to demonstrate a breach of art.3 such as to bar his extradition to Taiwan. The memorandum of understanding was entered into between the Home Office and the judicial authorities of Taiwan on 16 October 2013. Thereafter a number of undertakings have been given, which are summarized at para.10 above. Those undertakings represent an attempt by the Taiwanese authorities to meet concerns expressed in Scotland about the conditions in which the appellant would be held if he were returned to Taiwan and the length of the sentence that he would be made to serve. The concerns about the conditions of detention were based in large measure on the standards that would be required in a Scottish prison and the requirements of the ECHR, in particular art.3 thereof. On 23 December 2013 an undertaking was given by the Taiwanese authorities that all periods of detention in Scotland arising from the execution of their request would be deducted from the total period of detention that the appellant required to serve as a result of his conviction for the extradition offence. On the same date an undertaking was given that the sentence of four yearsâ&#x20AC;&#x2122; imprisonment would not be further reviewed. At this point I observe that a sentence of that order would be regarded in Scotland as well within acceptable limits for causing death by either dangerous driving or driving while under the influence of alcohol. [77] On 25 February 2014 a further important undertaking was given by the Taiwanese authorities to the effect that the appellant would be supervised by appropriate correctional staff and his safety would be secured by assigning him a cell with fewer inmates; those inmates would be foreign prisoners with no record of violence serving sentences for relatively minor offences and unconnected to criminal organisations. The same undertaking also included establishing clear channels of communication for complaints or requests and screening prisoners with ill intent towards the appellant, in such a way that any such prisoners would not come into contact with him. If necessary, the appellant would be separated from group activities and interaction with other prisoners. For reasons previously discussed, I am of opinion that the foregoing undertakings must be accepted as made in good faith. If they are implemented, they should in my view secure the appellantâ&#x20AC;&#x2122;s safety so far as that is practicable. [78] Following the issuing of the first opinion of the court in this case, on 14 August 2015 Dr James McManus was instructed by the Lord Advocate of behalf of the Taiwanese authorities to assess the conditions of detention proposed by the Taiwanese authorities. On 19 August 2015 a further undertaking was given relating to the cell in which the appellant would be held. The undertaking was that the cell would be consistent with art.3 of the ECHR. Details were given, and it is plain that the cell in question, which the appellant would share with one other foreign prisoner, is not overcrowded according to Convention standards. That undertaking was given by the Ministry of Justice and on the same date an undertaking to abide by the terms of all assurances given in respect of the appellant was given by the Director General of the Agency of Corrections. [79] On 31 August 2015 Dr McManus issued a report on the conditions in which the appellant would be held. This included additional assurances that had been given to him by the Taiwanese authorities. These related to the appellantâ&#x20AC;&#x2122;s safety, including clearing an exercise area for him should that be necessary. The appellant would be permitted to choose whether or not to apply for a place working in a factory or education group. While the assurances

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lord Drummond Young)

533

were not formally confirmed to the court by the Taiwanese authorities, they were made to a person known to be preparing a report for the court, and if there were any doubt about the matter it would clearly be possible to obtain formal confirmation. On 25 December 2015 certification was received that, in the event that consular staff at the British Office in Taipei raised an issue about a perceived breach of an assurance, the Taiwanese authorities would respond to ensure that the breach was remedied. Finally, on 31 May 2016 a letter was received from the Minister of Justice in the new Taiwanese Government confirming the foregoing assurances. [80] In the light of the foregoing assurances, and on the assumption, which I consider must be made, that the assurances will be observed in good faith, I am of opinion that nothing in the proposed conditions in Taipei Prison would amount to a breach of art.3 of the ECHR. While overcrowding appears to be endemic in Taiwanese prisons, the appellant will not be kept in overcrowded conditions. Understaffing is a problem, but the cell in which it is proposed that the appellant should be kept is in the hospital block, and the problems of understaffing should not have a serious impact on his safety.

Evidence of Professor Chin and Dr McManus

[81] The evidence of Professor Chin is summarized above at paras 21â&#x20AC;&#x201C;24. I accept that his evidence was not wholly satisfactory, and that it revealed doubts about the availability of judicial remedies for mistreatment of prisoners in Taiwan. That would be a strong consideration against extradition in the absence of any assurances given by the Taiwanese Government. In this case, however, the Taiwanese Ministry of Justice has given the assurance of 25 December 2015 to the effect that concerns raised by consular staff at the British Office would be responded to. The memorandum of understanding is an international agreement between states, having force in international law, and the assurances subsequently given by the Taiwanese Government are supplemental to that agreement and similarly have force in international law. In matters concerning the treatment of one countryâ&#x20AC;&#x2122;s citizens in another country, consular representations are the normal means of securing enforcement of any treaty or similar rights. In the present case, for reasons already discussed, I am of opinion that the court must treat the Taiwanese assurances as given in good faith, and that if there is any breach British consular staff can be expected to take action. [82] Dr McManus met staff at the British Office in Taipei and visited Taipei Prison, when he was shown areas of it including the cell which the appellant would occupy and the outdoor exercise area to which he would have access. He was also able to speak to foreign prisoners. He confirmed the nature of the cell intended for the appellant, and indicated that it was well lit and ventilated. It was adjacent to the convalescent cell, where an observation room was situated which was permanently staffed. Dr McManus concluded that Taipei Prison was seriously overcrowded, and that is a factor that would be of serious concern to this court if the appellant were to be accommodated in mainstream prison conditions. That problem, however, does not arise in view of the assurances that had been given about the cell in which the appellant is to be accommodated. Dr McManus also referred to understaffing, which could affect the prison authoritiesâ&#x20AC;&#x2122; ability to control inter-prisoner violence. In the present case, however, I am of opinion that the special arrangements for accommodating the appellant in a cell adjacent to the convalescent cell where there is a member of staff on duty at all times should provide a high level of protection. Furthermore, Dr McManus expressed the opinion that the level of

5344.indd 533

07/12/16 4:54 PM

534 A

Dean v Lord Advocate (Lord Drummond Young)

2016 S.C.C.R.

control in the prison was very good, although he conceded that there had been a number of violent incidents in Taiwanese prisons. Nevertheless, the special conditions proposed for the appellant are clearly designed to deal with any perceived threat to his safety. [83] I found Dr McManus’s evidence helpful in explaining the conditions in which it was proposed that the appellant should be held in the event of his extradition. Dr McManus was able to give a clear description of what would be involved. In my opinion the arrangements that he described are such that they would protect the appellant from any realistic threat of violence from other prisoners. Press and internet articles

[84] The court was referred to a substantial number of press and internet articles about the prison system in Taiwan. In general terms, these disclosed a degree of concern among prison reformers about the present conditions, although it was apparent that those concerns were not widely shared among the population as a whole. The articles and other documents confirmed the fact that there is serious overcrowding in Taiwanese prisons, and that a number of violent incidents have taken place in recent years. Nevertheless, the undertakings given by the Taiwanese Ministry of Justice in relation to the appellant are specifically designed to address these problems, and in my opinion they should be successful in doing so. In this connection, it is necessary to bear in mind the principle, affirmed in Ahmad v United Kingdom, that the ECHR does not require Convention states to impose art.3 standards on non-Convention states. As long as there is reasonable compliance with the Convention, that will suffice to permit extradition to take place. Furthermore, it is important at all times to bear in mind the principle that the courts should presume that agreements and undertakings entered into by other states will be observed and implemented in good faith. [85] Certain of the articles and other documents produced on behalf of the appellant suggested that the family of the man who was killed in the accident that formed the basis for his conviction were resentful and intent on revenge against him. In addition, some recent articles were critical of the conditions in which it was proposed that the appellant should be held, on the basis that these were much better than those enjoyed by ordinary prisoners. It is obviously necessary to approach press and internet articles of this nature with some circumspection. They cannot be relied on in respect of matters of detail. The articles did tend to indicate that there was a high level of resentment on the part of the victim’s family, and that there was some criticism of the conditions in which it was proposed that the appellant should be accommodated. Nevertheless, resentment on the part of a victim’s family is hardly unusual, and criticism of allegedly luxurious prison conditions is certainly not confined to Taiwan. I cannot believe that any resentment against the appellant, whether on the part of the victim’s family or more generally, cannot be controlled by the Taiwanese authorities. Proposed treatment of the appellant in Taipei Prison

5344.indd 534

[86] On the assumption that the assurances given by the Taiwanese Ministry of Justice are observed, I am of opinion that the treatment that is proposed for the appellant is adequate to satisfy the requirements of art.3 in a case involving extradition to a non-Convention territory. Overcrowding will not be a problem for the appellant because of the special conditions in which he is to be housed. Exercise will be available, to a reasonable degree. The appellant may work if he

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lord Drummond Young)

535

wishes to do so, and if he does so he will earn parole. That is obviously subject to any concerns about his safety, but the decision to work is his decision alone. [87] Two specific matters call for comment. First, in Taiwanese prisons a system exists whereby prisoners can earn eligibility for early release by performing work. If the appellant is unable to work because of concerns about his safety, that will have a prejudicial effect. Likewise, the Taiwanese authorities have stated that time spent by him in Scottish prisons will not count towards parole, although it will count as part of the basic sentence (letter of 23 December 2013, quoted at para.14 above). This undoubtedly represents a disadvantage to the appellant. It cannot, however, in my opinion be said that this amounts to inhuman or degrading treatment such as to amount to a contravention of art.3. [88] Secondly, concern has been raised about the fact that the appellant will be kept in what is effectively solitary confinement; unless he chooses to mix with other prisoners, his contacts will be confined to a single foreign prisoner who shares a cell with him. The reason for the solitary confinement, however, is concern for the appellant’s own safety. In the British prison system prisoners can be kept in solitary confinement for their own safety, for very obvious reasons. Reference was made to Shahid v Scottish Ministers. In that case, however, the reason that the prisoner’s solitary confinement was held to be illegal was a failure to observe the formal statutory requirements for such confinement. The serious nature of solitary confinement was recognised, of course, but if it is necessary for a prisoner’s safety it is plain that there is no alternative. Thus I cannot consider that confining the appellant to a cell with one other prisoner, with solitary exercise periods, will infringe art.3; exactly the same could be done, legally, in a prison in the UK. [89] A number of other concerns about the conditions in which he would be held in Taipei Prison and possible threats to his security were raised on behalf of the appellant. In general, I am of opinion that these were largely speculative, and in some cases trivial. They did not in my opinion satisfy the test of a “real risk” of inhuman and degrading treatment as they would be dealt with by the assurances given on behalf of the Taiwanese Government. Consequently I would disregard these concerns. I will, however, discuss them in more detail in the last part of this opinion. Before that, however, it is necessary to say something about the status of the assurances that have been given by Taiwan.

Assurances given by the receiving state

[90] As I have indicated, the argument presented on behalf of the Lord Advocate relied in large measure on the assurances given by Taiwan as to the treatment that the appellant will receive if he is imprisoned there. The test for the assessment of such assurances is that laid down by the ECtHR in Othman v United Kingdom, at paras 177–190. First, the court is obliged to examine “whether the assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment”. In assessing the practical application of such assurances, the first question is whether the general human rights situation in the receiving state excludes accepting any assurances whatsoever. The Court indicated, however, that it would only be in “a rare case” that the general situation in the country would mean that no weight at all could be given to assurances (para.188). In my opinion it cannot be argued that Taiwan is such a case. Taiwan has ratified the United Nations International Covenant on Civil and Political Rights [ICCPR] and the International Covenant on Economic, Social and Cultural Rights

5344.indd 535

07/12/16 4:54 PM

536 A

5344.indd 536

Dean v Lord Advocate (Lord Drummond Young)

2016 S.C.C.R.

[ICESCR]. These are broadly comparable to the ECHR. Furthermore, the court has already found that Taiwan has effective government and a functioning legal system, and no documentation or other evidence has been advanced by the appellant to suggest that there is a wholesale disregard of human rights in Taiwan. Indeed, the appellant lived there for a substantial period and only left following the legal proceedings that gave rise to the present request for extradition. [91] More specific criteria for the assessment of assurances are laid down in para.189 of Othman. The court is obliged to assess the quality of the assurances given and whether, in the light of the receiving state’s practices, they can be relied upon. A number of factors relevant to this question are enumerated. So far as material, these are as follows: “(1) [W]hether the terms of the assurances have been disclosed to the Court; (2) whether the assurances are specific or are general and vague; (3) who has given the assurances and whether that person can bind the receiving state; (4) if the assurances have been issued by the central government of the receiving state, whether local authorities can be expected to abide by them; (5) whether the assurances concern treatment which is legal or illegal in the receiving state; (6) whether they have been given by a contracting state; (7) the length and strength of bilateral relations between the sending and receiving states, including the receiving state’s record in abiding by similar assurances; (8) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers; (9) whether there is an effective system of protection against torture in the receiving state . . .; (10) whether the applicant has previously been ill treated in the receiving state; and (11) whether the reliability of the assurances has been examined by the domestic courts of the sending/contracting state.” [92] In my opinion sufficient of these criteria are satisfied in the present case for the court to accept the assurances given by the Taiwanese Ministry of Justice. As to the first and second, the terms of the assurances have been disclosed to the court, and they are in my view clear and unequivocal in their terms. As to the third criterion, the assurances have been given by the Director General of the Taiwanese Ministry of Justice charged with signing the memorandum of understanding and issuing the assurances. That in my opinion is an official at a sufficiently high level to bind Taiwan. In this connection, it should be noted that in English cases assurances have been accepted which were given by persons such as the President of the National Penitentiary Council (Cato v Republic of Peru), the Attorney General, signed by an official on his behalf (Ghana v Gambrah), the Executive Director of the Office of the Attorney General (Aldhouse v Thailand), and the Director of Prosecutions and Commissioner of Prisons (Devani v Kenya). In my opinion the present assurances are signed at a sufficiently high level. [93] As to the fourth criterion, the critical question is whether the assurances given by the Taiwanese Ministry of Justice will be binding on those responsible for the administration of the prison service. In my view it is clear that they will be treated as so binding; that is apparent from Dr McManus’s dealings with the prison service in respect of Taipei Prison, and also from statements made

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lord Drummond Young)

537

by officials in the letters sent on behalf of the Minister of Justice. On the fifth criterion, the assurances relate to the manner in which legal custody is organised in Taiwan. The sixth criterion is not satisfied, as Taiwan is not a contracting state in respect of the ECHR. As to the seventh criterion, this is the first occasion when a special extradition arrangement has been concluded between Taiwan and the UK. Nevertheless, although formal diplomatic relations are not maintained, the UK maintains a representative office in Taipei and has diplomatic and consular representation there. Nothing in the documents and evidence available to the court suggested that normal consular protection would not be available in the event that any difficulties arose between the appellant and the Taiwanese prison authorities. In their letter of 25 December 2015 the Taiwanese authorities undertook that, in the event that an issue were raised by British consular staff as to a perceived breach of an assurance, they would respond to ensure that the breach was remedied. The question of diplomatic representation is the subject of the eighth criterion. In this case, the FCO have confirmed by letter that the appellant will have access to the UK representative office. That in my opinion goes a long way towards satisfying the eighth criterion. [94] On the ninth criterion, Taiwan has ratified the ICCPR and the ICESCR. On the other hand, the evidence of Professor Chin was inconclusive as to the extent to which prisonersâ&#x20AC;&#x2122; rights would be entertained by the courts in Taiwan. For this reason I do not think that it can be said unequivocally that the ninth criterion is satisfied. Nevertheless, the existence of diplomatic and consular representation, and the letter from the FCO stating that such representation would be available, goes some way to countering this factor. The tenth criterion is not directly relevant, as the appellant has not previously been in custody in Taiwan. He has not, however, made any specific complaint of previous ill-treatment. Finally, as to the 11th criterion, the reliability of the assurances given by Taiwan is currently under examination by this court. [95] When the whole of the Othman criteria are taken together, I am of opinion that the assurances given by the Taiwanese Government can be relied on by this court. Those assurances have been provided at a high level within the Taiwanese Government. They are specific in their terms, and are clearly directed towards protecting the appellant against ill-treatment, whether through overcrowding or through attacks by fellow prisoners. The FCO has indicated that consular protection will be available in Taiwan. It is obviously important to any reasonable state or territory that its international undertakings and assurances should be observed; if they are not future dealings with other states are likely to be impaired. I think it clear that the Taiwanese Government will be well aware of this consideration. I am accordingly of opinion that the court should take the Taiwanese assurances into account in assessing whether returning the appellant to Taiwan would infringe his rights under ar.3 of the Convention.

Particular circumstances relied on by appellant

[96] As I have indicated, other concerns were raised about the conditions under which the appellant would be held in Taipei Prison if he were extradited. These related both to general prison conditions in Taiwan and to particular threats to the appellant. I have already stated that in my opinion these concerns did not amount to a â&#x20AC;&#x153;real riskâ&#x20AC;? of treatment that contravened art.3. In addressing the concerns raised by the appellant, I should reiterate the point that I have made previously, that it must be assumed that the Taiwanese authorities will act in good faith and will do their best to fulfil all of the assurances that have been given.

5344.indd 537

07/12/16 4:54 PM

538 A

5344.indd 538

Dean v Lord Advocate (Lord Drummond Young)

2016 S.C.C.R.

[97] Great emphasis was placed in the appellantâ&#x20AC;&#x2122;s submissions on the fact that the main detention building in Taipei Prison, and indeed the prison system in Taiwan generally, suffers from overcrowding, understaffing, problems of uncontrolled bullying of weaker prisoners, inadequate ventilation and lavatory facilities, and inadequate opportunities for prisoners to exercise in the open air. I do not doubt that these criticisms appear in general to be well founded; there are serious deficiencies in the general prison system in Taiwan, at least measured according to Western European standards. Nevertheless these deficiencies are generally irrelevant to the position of the appellant in view of the assurances that have been given by the Taiwanese Ministry of Justice as to the conditions in which he will be kept. Furthermore, I am of opinion that the emphasis placed on hostility of other prisoners was significantly exaggerated. I do not doubt that the family of the victim of the incident that gave rise to the present proceedings will feel aggrieved towards the appellant. Nevertheless, the victim worked as a courier, and there is no suggestion that his family would have had any connections with organised crime, or even with powerful persons who might be prepared to avenge the victimâ&#x20AC;&#x2122;s death. It is not unusual for the families of the victims of crime to feel extremely aggrieved; that is as true in Scotland and the remainder of the UK as it is in Taiwan. Nevertheless, prison authorities are well aware that they must prevent private vengeance, and take effective steps to do so. That is one of the concerns that the Taiwanese authorities have sought to address in the assurances that they have given. [98] It was suggested on behalf of the appellant that the special arrangements made to accommodate concerns about the appellantâ&#x20AC;&#x2122;s imprisonment would be viewed by inmates and staff in Taipei Prison, and by the general public in Taiwan, as exceptional, and that this would work seriously to his disadvantage. It was further suggested that he was already notorious and unpopular because of the circumstances of the offence of which he has been convicted. That, it was suggested, would produce anger and resentment against the appellant, with the result that he would be subject to a serious risk of retribution by other prisoners. In my opinion there is little or no substance in this fear. In the first place, I think it highly dubious that the conditions in which the appellant is held would cause a serious degree of resentment. Dr McManus gave evidence that ordinary prisoners would not want arrangements of this nature. It seemed to me, however, that the reason for this was that they wished to feel part of the prison community, with friendships among other prisoners. If they enjoyed different conditions from other prisoners, that would destroy the bonds among them. Consequently their attitude to the conditions in which the appellant might be held was based not on resentment against his having those conditions but because they wanted to relate to their friends among the other prisoners, and could not do so if they were held in different conditions. Furthermore, the appellant was expected to share a cell with another prisoner, and there was no suggestion that that prisoner would be the subject of resentment. The undertaking was that that prisoner would be another foreigner, and the obvious reaction of the generality of prisoners would be that this is special treatment that foreigners enjoy because they are foreigners. That would distance them from the general prison population, and that would be perceived as a disadvantage in itself. [99] The conditions in which the appellant would be held would, measured against western standards, be considerably better than those endured by the majority of prisoners. Nevertheless it is important not to apply western standards too rigorously to conditions in a foreign prison. For example, given

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lord Drummond Young)

539

the photographic evidence that was available, sleeping on the floor appears to be what Taiwanese prisoners expect when they are in prison, and it may well reflect conditions in the poorer quarters of Taipei and other cities from which most of them are likely to come. The same is true of the other features that appear seriously inadequate to modern Western eyes. On 5 February 2016 the Taiwanese Deputy Minister of Justice was quoted in a news report on SET News as stating that the conditions that the appellant would enjoy were not tailored for him. The article was seriously critical of the provision of such “generous conditions”, suggesting that these would “surely devastate the family of the deceased victim”. I have already suggested that press and internet articles must be viewed with an appropriate level of scepticism. In any event, it is manifestly untrue that the conditions in question were not tailored for the appellant, in the light of the concerns that the UK had expressed about the conditions in which he would be held. In my view this makes no difference to the outcome of the case; it is not unknown for politicians to make misleading statements to the media, and it is appropriate for the courts to be sceptical about such statements. [100] It was suggested that the Taiwanese authorities would be placed in a difficult position in this respect: if they departed from the assurance regarding a special cell and conditions they might placate resentment against the appellant, but in that event they would fail to honour the assurances that had been given to the UK. In my opinion this is not a serious dilemma. It is the duty of any government to fulfil its obligations, and for reasons that I have already indicated the courts must act on the assumption that in an extradition case the government of a receiving territory will honour its assurances, provided that these satisfy the Othman criteria. Thus it must be assumed that the Taiwanese authorities will fulfil in good faith the obligations that have been given to the UK authorities. Moreover, I consider that the degree of resentment felt against the appellant has been grossly exaggerated in the submissions made on his behalf. No evidence was produced to suggest that the average prison inmate would be aware of who the appellant was, let alone feel any resentment against him. The existence of a number of hostile articles in the media in my opinion signifies little or nothing, as there was no evidence that these would be known to the average prisoner or even that they reflected a general mood of resentment within the prison. Prisons typically contain people guilty of very serious crimes, notably murder, and it seems to me to be most unlikely that the crime of which the appellant has been convicted, serious though it is, will rank especially highly. Furthermore, the humble background of the victim’s family does not suggest that they will be able to recruit avengers from criminal gangs or similar elements within the prison population. Furthermore, the Taiwanese authorities have agreed to take substantial measures to protect the appellant, and these must be taken into consideration. [101] If the appellant is concerned about his safety it is likely that he will remain within his cell, largely segregated from other prisoners, and will not be able to work and earn parole. This is perhaps the most significant criticism of the arrangements that are proposed by the Taiwanese authorities. Nevertheless, as I have already indicated, solitary confinement for the protection of a prisoner is countenanced within the Scottish Prison Service, and if it is necessary it is simply a feature of prison life that must be endured. It is not in fact proposed that the appellant will be in total solitary confinement; he will share a cell with another occupant, who may obviously change from time to time. The inability to work might be unfortunate in itself, although there would be nothing to prevent the appellant from reading or listening to

5344.indd 539

07/12/16 4:54 PM

540 A

5344.indd 540

Dean v Lord Advocate (Lord Drummond Young)

2016 S.C.C.R.

television or radio in his cell, subject to the limits of battery-operated appliances. The inability to work would prevent the appellant from earning parole, but in my view that cannot reasonably be considered an infringement of art.3. Furthermore, there would be nothing to prevent the appellant from going to work, if he considered that the risk of personal harm were sufficiently low. The choice between remaining in a relatively comfortable cell and running the risk of going to work is one for the appellant alone. As I have already indicated, I consider that the risks to the appellant from other prisoners resentful at his treatment or determined to revenge his crime were seriously exaggerated in the submissions made on his behalf. [102] As to the question of parole, the Taiwanese authorities have made it clear that time spent in prison in Scotland is unlikely to be taken into account in determining the parole to which the appellant is entitled. That, however, is merely a consequence of the fact that the appellant has fled Taiwanese jurisdiction. It does not in my opinion engage art.3 in any way. The same applies to the fact that if the appellant does not work in the prison workshops he will not earn parole; the terms on which parole may be granted do not in my view have anything to do with whether a prisoner is subjected to inhuman or degrading treatment, or anything else that might engage art.3. [103] Concerns were raised about the level of medical services available in the prison. Dr McManus had been unable to assess the medical services fully. Nevertheless, no hard evidence was produced to support such a contention. Furthermore, Taiwan is a country at a reasonably advanced level of development, and in such a country it would be expected that reasonable medical services are available. It is in my opinion irrelevant that they might not be at the same standard as those in the UK; art.3 of the Convention is not to be used to impose the standards of the UK and other contracting states on countries that are not contracting states. [104] For the appellant it was submitted that the conditions in Taipei Prison were not monitored by any established UK or international system. Given the relatively small number of UK nationals who are prisoners in Taiwan, the fact that there is no regular monitoring by the British authorities is hardly surprising. Nevertheless, assurances have been received from the FCO that consular services, or their equivalent in Taiwan, will be available to the appellant.That is the standard way in which assurances given in an international undertaking or assurance would be enforced. Consequently I cannot see that there is significant force in this argument. For this purpose the fact that Taiwan is not a member of the Council of Europe or of the UN is irrelevant. The fundamental point is that assurances given by a receiving state must be accepted as made in good faith; that appears very clearly from the authorities discussed above. [105] Reference was made to communications from the FCO of 19 August and 8 September 2015. The main thrust of those communications was to indicate that they were unwilling to provide an assessment of the treatment of British nationals in Taipei Prison and that they would not pass on to third parties information obtained during the provision of consular support to prisoners. A specific reason was given for the latter refusal; it could jeopardise consular access in the future. It is in my view obvious that the consular authorities must treat visits that they make in an official capacity in confidence, and thus the refusal to pass on information is exactly what would be expected. Likewise, I do not find it surprising that they state that they are not experts on prison conditions; their function is to deal with the limited number of prisoners who happen to be British nationals, and to deal with any complaints or issues

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lord Drummond Young)

541

that they have. That does not put them in a position to assess prison conditions generally; that seems to me to be obvious. Dr McManus was not aware that the British Office in Taipei had ever attempted to intervene on behalf of any prisoner who was a UK citizen to obtain improved conditions, or at least of any case where they had intervened with noticeable effect. Given the limited number of British prisoners, however, I cannot see that anything can be taken from this piece of information. [106] A further concern raised by the appellant was the lack of any established procedure whereby a prisoner could challenge prison conditions in the Taiwanese courts. Professor Chin suggested that the law in this area was developing, but that it remained at an early stage of development. In my view that is irrelevant for present purposes. The fundamental principle so far as the British courts are concerned is that the assurances made by the Taiwanese authorities must be taken in good faith. Furthermore, the usual recourse of consular representation would unquestionably be available; that is the standard means whereby international agreements are enforced.

Conclusion

[107] For all of the foregoing reasons I am of opinion that the appellant has failed to establish that there is any real risk of his being subject to treatment that infringes art.3 of the Convention. It must be assumed by the court that the Taiwanese authorities will honour the assurances that they have given to the UK.Those assurances were designed to ensure compliance with the Convention, and thus to engage with European standards on prison conditions, and in my view they must be regarded in that light. The element of solitary confinement, which is the major criticism that can be made of those arrangements, is designed for the purpose of securing the appellantâ&#x20AC;&#x2122;s safety, a concern that he himself has raised. In such cases, solitary confinement is used in the UK, and it does not contravene the Convention, where the rights under art.3 must be balanced against the right to life conferred by art.2 and the right to personal security conferred by art.5. Taiwan should not be held to a higher standard. [108] Finally, I should note that the arguments presented by the appellant to the effect that his art.3 rights would be contravened would be equally applicable to persons guilty of more serious offences such as murder; the arguments relate to prison conditions, not to the seriousness of the charges that the person subject to extradition faces. In my opinion the law of extradition would be open to serious criticism if, say, a terrorist or other mass murderer could not be extradited in spite of assurances such as those given by the Taiwanese authorities in the present case. In my opinion those assurances remove any real risk of inhuman or degrading treatment, and thus ensure compliance with art.3. [109] Consequently, in respectful disagreement with the majority, I would have refused the appeal under s.103 of the Extradition Act 2003. LADY CLARK OF CALTON [110] I have had the advantage of reading the opinions in draft of Lady Paton who chaired the court and of Lord Drummond Young. I am grateful to both of them for that privilege. I am in full agreement with the findings, reasoning and conclusions of Lady Paton, following some minor agreed revisions which have been incorporated into her final opinion. Had the opinion of this court been unanimous, I would not have thought it necessary to make any further observations. As that is not the result, it may be helpful to express some further views.

5344.indd 541

07/12/16 4:54 PM

542 A

5344.indd 542

Dean v Lord Advocate (Lady Clark of Calton)

2016 S.C.C.R.

[111] This is a case in which the appellant has maintained throughout the lengthy extradition proceedings, that the conditions in Taipei Prison are not art.3 (ECHR) compliant. This contention was opposed by the first respondent. I consider that in the circumstances of this case it was a very difficult task for the appellant and his legal advisers to obtain evidence about the conditions in Taipei Prison. The appellant had no personal experience based on serving any custodial sentence. Dr McManus confirmed the evidence of the appellant that there was very little information in the public domain about the prison system in Taiwan. Evidence of general conditions in Taipei Prison was readily available to the Taiwanese authorities and could have been made available to be led by the first respondent. The only witness brought by the first respondent from Taiwan was Professor Chin. His very limited experience of Taiwanese prisons was based on a student law tour and some visits to clients in prison. A second expert led by the first respondent, was Dr McManus. Dr McManus has extensive experience of prisons but knew very little about the prison system in Taiwan prior to his visit there. The remit of Dr McManus appears to have been deliberately framed by the first respondent to exclude a consideration by him of the general conditions in Taipei Prison. Thus in the absence of any oral evidence, for example, from a prison manager with experience of the general conditions in Taipei Prison, the court was left with the task of trying to piece together evidence from disparate and limited sources about the general conditions in Taipei Prison. [112] As the evidence emerged about the general conditions in Taipei Prison, which resulted in the findings by her Ladyship in the chair, I had difficulty in understanding the position of the first respondent. I consider that the evidence demonstrated that it is blindingly obvious that the general conditions existing in Taipei Prison are shocking and non-compliant with art.3. There was never any concession by the first respondent reflecting that. Indeed at some point in oral submissions, the solicitor advocate for the first respondent submitted that this court was not entitled to form an opinion about the general conditions in Taipei Prison and should confine its consideration to the proposed regime for the appellant set out in the undertakings. In my opinion, this court is not only entitled but bound to consider the general conditions in the prison in which it is proposed that the appellant be confined. Consideration of the undertakings becomes relevant once it has been accepted or the court has found that the general prison conditions in the proposed prison are non-compliant and the extent of that non-compliance. [113] Even in a jurisdiction, such as Scotland, where both the law and practice are imbued with the concept of giving practical effect to Convention rights, problems have arisen and breaches of art.3 have occurred. In the present case I consider that the problem is not limited to the serious nature of the systemic non-compliance with art.3. I am satisfied on the evidence that there exists a culture both at the political level and day-to-day decision-making at management level indicating that art.3 considerations are not given any priority in relation to the prison regime. The evidence of Professor Chin made it plain that the concept of prisonersâ&#x20AC;&#x2122; rights was a very undeveloped jurisprudence in Taiwan with little support politically or in popular thinking. [114] What has happened in the present case is that various sporadic ad hoc proposals and undertakings about a regime for the appellant have been made in the course of court proceedings. There was no evidence that anyone with knowledge of the Taipei Prison system has tried to work out, even assuming that was possible, how an art.3 compliant regime could be operated in respect of the appellant within a prison regime which is non-compliant in the way

07/12/16 4:54 PM

2016 S.C.C.R.

Dean v Lord Advocate (Lady Clark of Calton)

543

which I consider it to be. Reference was made in the evidence of Dr McManus to the special regime in Barlinnie Prison in Scotland devised for the prisoner convicted of the Lockerbie bombing as an example of a special regime. This was not an ad hoc arrangement. It was not a special regime which required to be devised and operated in circumstances where the general conditions in the prison were in breach of art.3. In my opinion the undertakings cannot be assessed in the abstract, divorced from the non-compliant regime in which they are supposed to operate. [115] I do not disagree with Lord Drummond Young about the importance of extradition in promoting due process of law. Nevertheless difficult questions may arise if, for example, a UK national seeks refuge in the UK to avoid being imprisoned under non-compliant art.3 prison conditions in circumstances where no effective legal remedy exists in a state or territory which is maintaining such non-compliant prison conditions. [116] In this jurisdiction, Parliament has legislated for a statutory regime which gives the courts powers and duties to consider extradition issues. At the heart of that consideration is a consideration of the ECHR implications. Without impugning the good faith of the Taiwanese authorities or UK diplomatic staff, I do not share the optimism expressed by Lord Drummond Young in para.68. Merely because this is the first extradition agreement into which the Republic of China has entered it does not follow that “that . . . makes it especially likely that the requirements of the memorandum will be observed”. In my opinion whether the undertakings would be observed would depend upon the practicalities of trying to run an art.3 compliant regime for the appellant in the context of an understaffed prison with systemic problems resulting in a non-compliant regime in a situation where staff, other prisoners and the public are likely to be resentful and angry about the special regime. [117] I also have concerns about the effectiveness of monitoring by the British diplomatic presence in Taiwan. There is no evidence of any history of effective diplomatic intervention by them of any kind in relation to prison conditions in Taiwan. This proposed diplomatic involvement gives a very limited form of protection, if it can be considered protection, to an individual in a territory where there is no effective legal remedy. I agree with the views expressed by the select Committee of the House of Lords in para.91 of the second report on extradition law published March 2015. It is stated: “The Home Secretary told us that the Home Office and Foreign and Commonwealth Office were reviewing the issue of monitoring (of assurances). We welcome the Government’s review . . . as we are concerned that the current arrangements via consular services fall well below what is necessary.” There was no information before the court about the outcome of the government’s review and whether any changes have been made to make diplomatic monitoring effective. [118] For the reasons given by the chair of the court which I have adopted and these further reasons, I agree with Lady Paton that the appeal in terms of s.103 of the 2003 Act should be allowed and that it is not necessary for this court to issue an opinion in terms of s.108, or to decide the devolution issue minutes. Note: On 4 November 2016, leave to the Supreme Appeal Court was refused: see Dean v Lord Advocate [2016] HCJAC 117 to be reported in the next issue. Note: The earlier case of Dean referred to in the opinion is reported as a summary on another point at 2015 S.C.C.R. 329.

5344.indd 543

07/12/16 4:54 PM

A Stated Case

4 October 2016

JAMES THOMAS GIBSON LAUGHLAN

Appellant

against JENNIFER HARROWER B

(Procurator Fiscal, Perth)

Respondent [2016] SAC (Crim) 30

Verdict—Charges arising out of same facts—Conviction of assault by striking with and being in possession of block of wood—Whether incompetent—Criminal Law (Consolidation) (Scotland) Act 1995 (c.39), s.47(1) C

The appellant was charged with (1) assaulting the complainer with a block of wood and (2) possessing the block of wood as an offensive weapon contrary to s.47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. The appellant had a grudge against the complainer because of the latter’s use of a communal garden area behind his flat as an access to a park, and the trial sheriff found that the appellant had the block of wood in order to prevent the complainer coming through the gate entrance to the garden and convicted him of both charges. The appellant appealed by stated case against his conviction on charge (2) on the ground that, having convicted him of charge (2) the sheriff could not also convict him of charge (1) on the same facts. Held that the two offences were quite different in character and the facts necessary to constitute them were different, that the appellant’s possession of the block of wood preceded and was separate in time to his use of it as a weapon in the assault, and that any overlap or partial overlap in the facts required to establish or prove the separate offences did not in itself involve double jeopardy and clearly not in the circumstances of this case (para.10); and appeal refused. Cases referred to in the opinion of the court: McLean v Higson, 2000 S.C.C.R. 764 Rodger v HM Advocate [2014] HCJAC 133; 2015 J.C. 215.

James Thomas Gibson Laughlan was convicted on the charges set out in the opinion of the court after trial at Perth Sheriff Court on 18 May 2016 and appealed to the sheriff appeal court against conviction on the grounds referred to in the opinion of the court. The appeal was heard on 4 October 2016 by Sheriffs Principal Stephen QC and Abercombie QC, and Sheriff Morris QC. For the appellant: Keenan, Solicitor advocate, instructed by Capital Defence Solicitors, Edinburgh, for Culley McAlpine, Solicitors, Perth. For the respondent: Cottam AD. On 4 October 2016 Sheriff Principal Stephen delivered the following opinion of the court.

G 544

5344.indd 544

07/12/16 4:54 PM

2016 S.C.C.R.

Laughlan v Harrower (SAC)

545

SHERIFF PRINCIPAL STEPHEN [1] The appellant was convicted after trial at Perth Sheriff Court on 18 May 2015 of the following charges: “(1) [O]n 22 February 2014 at Seven Acres Park, Perth, you James Thomas Green Laughlan did assault Fiona Duncan, care of the Police Service of Scotland, and did strike her on the head causing her to fall to the ground and did thereafter repeatedly strike her on head and body with a block of wood and your fists, all to her injury; (2) on 22 February 2014 at Seven Acres park, Perth, being a public place, you James Thomas Green Laughlan did, without reasonable excuse or lawful authority, have with you an offensive weapon, namely a piece of wood; contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, section 47(1) as amended.” The appellant appeals his conviction on both charges. [2] The events of 22 February 2014 took place at 7 Acres Park, Perth. The precise locus is the gate leading from 7 Acres Park to the garden area behind a block of flats at Newhouse Road, Perth. The appellant at that time lived in one of these flats. The appellant was observed in an agitated state near the gate holding a block of wood. On the evidence led it was clear that the appellant had a grudge against the female complainer mainly due to her using the communal garden area behind his block of flats as an access to and from the park when she was exercising her two dogs. The sheriff concluded that the appellant had the block of wood in order to prevent the complainer coming through the gate entrance into the garden and that he had the wood in his possession with the intention of using it to cause injury. In due course the complainer and a friend, Ivy McIntosh, did indeed, come from the park with their dogs heading towards the gate. The complainer intended entering into the communal garden area by the gate where the appellant was lurking. The appellant challenged the complainer and assaulted her by striking her three times on the head and body with the block of wood. In the course of the assault the complainer fell to the ground and the appellant continued his assault using his fists whilst both were on the ground. He evinced by his words also a degree of animosity towards the complainer delivered in vulgar language. The complainer sustained injury. In reply to caution and charge in respect of charge (2) the appellant accepted he had a block of wood. [3] This appeal has been granted leave to proceed solely in respect of question 2 of the stated case which is in the following terms: “2. On the facts stated was I entitled to convict the appellant of charge (2) having convicted him on charge (1)?” The sheriff was satisfied that there was sufficient evidence to convict the appellant of both charges and made discrete findings relating to both charges. The issue for this court is whether the appellant has been charged twice over on precisely the same facts and whether his conviction on both charges has resulted in what, has been described, as “double jeopardy”. [4] In his submissions the solicitor advocate for the appellant contended that the double jeopardy arose because the Crown relied on the same evidence for both charges, namely, the evidence that the appellant was in possession of a block of wood which he subsequently used in an assault on the complainer. In his submissions reliance is placed upon the decision of the High Court of Justiciary appeal court in McLean v Higson.

5344.indd 545

07/12/16 4:54 PM

546 A

5344.indd 546

Laughlan v Harrower (SAC)

2016 S.C.C.R.

[5] The advocate depute distinguished the facts of this case from McLean v Higson. In Rodger v HM Advocate, the approach to double jeopardy was set out clearly. In this appeal the species facti required to prove each charge were quite different and the sheriff was entitled to convict the appellant of both charges. [6] The only issue which this court requires to determine in this appeal is whether the sheriff was entitled to convict the appellant of both charges. The sheriff has set out clearly in her stated case the evidence upon which her findings are based. The findings which support the statutory charge of possession of an offensive weapon are findings 2â&#x20AC;&#x201C;6. These findings are supported by the evidence of the complainer and Mrs McIntosh together with the appellantâ&#x20AC;&#x2122;s reply to caution and charge. The appellant in his evidence admitted grabbing the pallet or piece of wood. The findings in fact in support of charge (1) may be found in findings in fact 7 onwards and amount to an assault by the appellant on the complainer using the wood and also by punching or striking her with his fists. [7] Against that background we observe that the charges are quite separate and distinct. Charge (1) is a common law charge of assault and charge (2) is the statutory charge prohibiting the carrying of offensive weapons in terms of s.47 of the Criminal Law (Consolidation) (Scotland) Act 1995. It is an offence for any person to have with him in a public place an offensive weapon. An offensive weapon is an article made or adapted for use for causing injury to a person or intended by the person having the article for use for causing injury to a person either by the person having it or some other person. The locus was undoubtedly a public place. Charge (1), on the other hand, requires proof of a deliberate attack on another with evil intent with or without a weapon. Accordingly, the facts necessary to constitute the two offences are different. In this case the evidence demonstrates clearly that the appellant had the piece of wood or offensive weapon with him in a public place prior to him using it. The appellant was, therefore, in possession of the offensive weapon prior to it being used. The appellant was seen waiting near the gate with the block of wood. The sheriff found that he was in an agitated state. The sheriff is entitled to infer that the appellant had the block of wood for the purpose of causing injury. Subsequently, when the complainer appears from the park the appellant, indeed, uses the wood for that purpose, namely, an assault on the complainer. That in itself lends weight to the inference drawn by the sheriff in finding in fact 5. [8] The Crown led evidence in support of each charge. The charge of having the offensive weapon with him preceded the assault and can be distinguished from the situation where an individual may, in the course of or immediately prior to an assault on another, pick up a piece of wood or brick or other offensive weapon and use it. Plainly the charges are distinct and the evidence points to there being a gap in time between the appellantâ&#x20AC;&#x2122;s possession of the wood and his use of it. [9] In McLean v Higson the Crown consented to the setting aside of the conviction in terms of s.47(1) on the basis that the appellant was convicted on the same species facti relied on by the Crown for that conviction and the assault charge. Thus, it was accepted that exactly the same conduct led to the sheriff convicting of both charges. In Rodger v HM Advocate the appellant was charged with a contravention of s.38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 and also a contravention of the Firearms Act 1968 by having in his possession a firearm or imitation firearm with intent to cause a person to believe that unlawful violence would be used against them. The

07/12/16 4:54 PM

2016 S.C.C.R.

Laughlan v Harrower (SAC)

547

appeal court was of the opinion that the species facti necessary to constitute the two statutory offences with which the appellants were jointly charged were not the same. The court acknowledged that it will not convict a person of more than one offence arising out of the same species facti. At para.14 of the opinion it is stated: â&#x20AC;&#x153;In this context, the Latin term species facti means simply the facts which must necessarily be established to constitute the offence in question. A body of evidence covering a course of conduct or sequence of activities may well involve the commission of offences with different species facti. Where two offences are charged there may be a partial overlap in the set of facts which has to be established for each offence. But in our view a partial overlap does not equiparate with identity in the species factiâ&#x20AC;? [10] Under reference to Rodger v HM Advocate, we are of the opinion that the sheriff was entitled to convict of both charges. The species facti required to constitute both offences are quite separate. The charges may be proved from the facts and inferences which can be drawn from the general body of evidence led by the Crown. The evidence in this case covers a course of behaviour on the part of the appellant firstly, being in possession of the piece of wood whilst in an agitated state, and secondly, using the wood in the course of his assault on the complainer. The crime of using a weapon is quite different in character and facts to the offence of having or possessing it. The appellantâ&#x20AC;&#x2122;s possession of the block of wood preceded and was separate in time to his use of it as a weapon in the assault. Any overlap or partial overlap in the facts required to establish or prove the separate offences does not in itself involve double jeopardy and clearly not in the circumstances of this case. We are, therefore, of the opinion that the appeal must be refused and we do so by answering the second question in the stated case in the affirmative.

5344.indd 547

07/12/16 4:54 PM

A Appeal Against Conviction

5 October 2016

SEAN BARRY MOYNIHAN

Appellant

against HER MAJESTY’S ADVOCATE B

Respondent

[2016] HCJAC 85 Solemn procedure—Judge’s charge—Prior inconsistent statements— Failure to direct jury on limited purpose for which statements can be used—Whether misdirection leading to miscarriage of justice

The appellant was charged with rape, having used a knife to threaten the complainer. The complainer had made statements to the police which were inconsistent with her evidence, including a statement in which she had referred to first seeing a knife after the appellant had walked with her on a path and then gone with her into some bushes, and that she had not seen the direction in which he had gone after the incident was over. In her evidence she said that the appellant had held a knife to her throat before they went into the bushes, and that after the incident he had gone to get his car which was in Elderslie. In their speeches counsel had referred to the inconsistencies between the complainer’s earlier statements and her evidence. In his charge to the jury the judge had made no reference to these matters, saying only that he had not dealt with the evidence in detail because counsel had dealt it perfectly adequately. The appellant was convicted and appealed to the High Court on the ground that the judge’s failure to deal with the inconsistencies had constituted a misdirection leading to a miscarriage of justice. The Crown conceded that it had been a misdirection, but submitted that it was not a material one and had not led to a miscarriage of justice Held (1) that there is a tension between a judge’s obligation to provide the jury with such guidance and assistance as can properly be given in relation to the accurate assessment of the quality of, and weight to be given to, certain types of evidence (Practice Note 18 February 1977) and the desirability of the judge not straying too far into the jury’s territory of determining any issues of credibility and reliability. Although in certain cases a judge may require to touch upon the evidence to demonstrate where a sufficiency might be found as a matter of law, it will rarely be necessary for him to delve into passages which affect only credibility and reliability, where these have already been explored by the parties (para.18); (2) that the existence of any obligation on the judge to direct the jury on prior statements will depend on the facts and circumstances of the case, that the fact that there has been reference to a prior statement at some point during the trial does not mean that a direction is inevitably necessary, but that it is likely that a direction will require to be given where the witness has “adopted” a statement as part of his evidence and that part is material to proof of the charge, the judge would require to direct the jury on how such adoption operates, in the context of s.260 of the Criminal Procedure (Scotland) Act 1995, as a matter of law, and that otherwise, the jury may consider that it is only what the witness remembered and spoke to in court which mattered (para.19); (3) that where a prior statement is relied upon solely for the purposes of the assessment of credibility and reliability in terms of s.263(4) of the 1995 Act, a 548

5344.indd 548

07/12/16 4:54 PM

2016 S.C.C.R.

Moynihan v HM Advocate

549

judge may wish to provide the jury with assistance on that matter and in some situations such a direction may be required, but that the nature of the legal direction ought to be to direct the jury on the limited purpose for which they may use such prior statements, and not to tell the jury that they can use a prior inconsistent statement when assessing credibility and reliability, that such use is obvious and very often already clear from the speeches to them, that it is to tell the jury that they cannot use such statements, unless they are adopted, as proof of fact (para.20); and (4) that in this case, the advocate depute and counsel for the appellant had addressed the significance of the inconsistencies in their speech, and the trial judge had directed the jury that they should have regard to what each had said in their speeches and explained that he had not gone into the evidence as this had already been done, that although the judge could have told the jury that they could use any discrepancies to test credibility and reliability, this might have been seen as unduly condescending and an attempt to provide the jury with a glimpse of the obvious, that if a legal direction were required at all, it would have been one in favour of the Crown by stating that the content of the statements, insofar as not accepted as truth, could not be used as proof of fact but only to test credibility and reliability, that the absence of this direction could only operate in the appellant’s favour in that, if the jury erroneously treated the complainer’s prior statements as capable of proving fact, that would have supported the lines of defence, and that in any event, no miscarriage of justice can be seen to have occurred where the issue of credibility and reliability in the case of the complainer was firmly before, and resolved by, the jury as an essential element of their verdict (para.22); and appeal against conviction refused. Observed that in Niblock v HM Advocate, infra, the Lord Justice Clerk (Gill)’s comment, at para.16, that the need to give a direction applied generally where it had been legitimate to refer to a witness’s prior statement was made in the context of the evidential import of the statement being a necessary element for proof of the charge (para.19). Lumsden v HM Advocate [2011] HCJAC 89; 2011 S.C.C.R. 648; 2012 J.C. 133 distinguished. Dictum in Haggerty v HM Advocate [2009] HCJAC 31 approved. Sentence—Order for lifelong restriction—Rape by person with bad record—Whether starting-point of 17½ years and nine year punishment part excessive

Sentence—Order for lifelong restriction—Punishment part—Whether competent to take account of post-conviction offence—Prisoners and Criminal Procedure (Scotland) Act 1993 (c.9), ss.2(2)(b), 17—Criminal Justice (Scotland) Act 2003 (asp 7), Sched.1 Section 2(2)(b) of the Prisoners and Criminal Procedure (Scotland) Act 1993, as inserted by Sched.1 of the Criminal Justice (Scotland) Act 2003, provides that in fixing the punishment part of an order for lifelong restriction (OLR), the court shall take into account any previous convictions. The appellant who was aged 30 at the time of the offence, and had a bad record including a previous conviction for rape in 2009, for which he had received an extended sentence of nine years with a custodial element of six years, was convicted of rape in 2014 and had an OLR imposed. At the time of the imposition of the OLR he had been sentenced to 32 months’ imprisonment for a post-conviction offence which was due to expire in December 2019. He had also been formally recalled to prison under s.17 of the 1993 Act in respect of his 2009 sentence.

5344.indd 549

07/12/16 4:54 PM

550 A

Moynihan v HM Advocate

2016 S.C.C.R.

The sentencing judge said that he would have imposed a determinate sentence of 17½ years, reduced it by 20 per cent as representing the public protection element, and have halved the resultant period, but that because of the ’complication of the s.17 order’ he was reducing the ’normal reduction’ from seven years to five, thus arriving at a punishment part of nine years. The appellant appealed to the High Court against the length of the punishment part. Held (1) that the period of 17½ years was excessive, and should have been 15 years, from which 20 per cent fell to be deducted, leaving 12 years (para.27); and (2) that the adjustment to take account of the subsequent conviction was not authorised by the legislation (para.27), and punishment part reduced to six years. Cases referred to in the opinion of the court:

Foye v HM Advocate [2011] HCJAC 94; 2011 S.C.C.R. 636; 2012 J.C. 190; 2011 S.L.T. 1175 Haggerty v HM Advocate [2009] HCJAC 31 Lumsden v HM Advocate [2011] HCJAC 89; 2011 S.C.C.R. 648; 2012 J.C. 133 Munro v HM Advocate [2010] HCJAC 78 Niblock v HM Advocate [2010] HCJAC 21; 2010 S.C.C.R. 337 S v HM Advocate [2011] HCJAC 125; 2012 S.C.C.R. 319 Sim v HM Advocate [2016] HCJAC 48; 2016 S.C.C.R. 303 Younas v HM Advocate [2014] HCJAC 114; 2014 S.C.C.R. 628; 2015 J.C. 180; 2014 S.L.T. 1043. Sean Barry Moynihan was convicted of rape after trial on 29 June 2015 in the High Court at Glasgow before Judge Dunlop QC and a jury and was subsequently made the subject of an order for lifelong restriction with a punishment part of nine years. He appealed to the High Court against the length of the punishment part on the grounds referred to in the opinion of the court. The appeal was heard on 8 September 2016 by the Lord Justice General (Carloway), Lady Paton and Lord Menzies. For the appellant: Scullion QC, instructed by Gilfedder & McInnes, Solicitors, Edinburgh for McCusker, McElroy & Gallanagh, Solicitors, Johnstone. For the respondent: McSporran, AD. On 5 October 2016 the Lord Justice General delivered the following opinion of the court. LORD JUSTICE GENERAL

Introduction

[1] On 29 June 2015, at the High Court in Glasgow, the appellant was found guilty of the rape of A P on a cycle track in Johnstone on 2 October 2014. He was made the subject of an order for lifelong restriction with a punishment part of nine years. In the course of the cross-examination of the complainer, statements which were inconsistent with her testimony were put to her. In his charge to the jury, the trial judge made no mention of these statements. The appeal against conviction raises the issue of whether it was incumbent upon the judge to advise the jury of the use to which such statements might be put.

5344.indd 550

07/12/16 4:54 PM

2016 S.C.C.R.

Moynihan v HM Advocate

551 A

The evidence

[2] The complainer testified that she was 19. She was walking home on the cycle path between Johnstone and Linwood. At about 2.30 pm the appellant, whom the complainer referred to as “Sean”, went past her as if he was out jogging. The complainer said that the appellant was a stranger to her. He had then stopped and put his hands on his knees as if resting. She walked past him. He disappeared for about two minutes before coming up behind her and holding a knife to her throat. He put his arm roughly around her shoulder and walked her some distance into the trees. He told her to take all her clothes off, which she did. He put his jumper down and told her to sit on it. He still had the knife. He threatened to stab her. She was crying by this time. He kissed her on the lips and penetrated her digitally. She had ended up on her hands and knees. He put his penis in her mouth. He had put on a Halo condom and then raped her. [3] The complainer had been terrified. She had various scratches to her legs, hands, arms and lower back as a result of the incident. She had lost her headphones, which were recovered at the scene. Afterwards, the appellant had told the complainer to sit down for ten minutes to let some people pass on the path. She had a cigarette in the trees. She had not smoked any cannabis, although a roach was found later on the path. At some point, the appellant had told her that his name was Sean, although he was known as Gavin. The appellant had asked her about her mother and stepfather. She had told him her first name. She might have told him her surname. [4] The appellant and the complainer had then walked back to the path. As she was looking in her handbag, he was suddenly “gone”. The complainer met a male friend as she walked away. She told him what had happened. After contacting three other male friends, she phoned her stepfather to pick her up as “something bad” had happened. He did that, along with the complainer’s mother, and phoned the police. [5] The complainer gave a short statement to the police at her home and a fuller one the next day (3 October).The latter (Pro.26) is a 13-page handwritten prose narrative of events recorded by the police. It is signed by the complainer on each page. Certain parts of it were put to the complainer in crossexamination. The first extract contained a description of the complainer being pushed into the “bushes” and walking “a short bit in”. The appellant had let her go and was standing in front of her. The statement continues “It was then that I seen he had a knife”. The complainer agreed that this is not what she had said in her evidence because “everything’s mixed up in my head, and I’m nervous”. It was hard to remember whether she had told the police that the first time that she had seen the knife was when she was already in the bushes. When giving her statement, she was getting confused and mixed up. The line taken in cross was that the complainer had made up the bit about the knife to explain why she had not screamed or struggled when still on the path. It was also put that the complainer had referred to the appellant in her testimony as Sean because she had met him at Tesco in the weeks before the incident. The complainer denied meeting him at Tesco. [6] The cross continued by asking the complainer about certain personal information about herself, which the appellant had been able to narrate when he was later interviewed by the police. One aspect of this was that she had told the appellant that she did not have a boyfriend because “all guys are psychos”. The complainer accepted that she could have said this, but could not remember. A second statement (Pro.28), dated 7 October, was put to the complainer. Again this is a handwritten prose narrative recorded by the police and signed on each page. On the third of the five pages, it states “I remember

5344.indd 551

07/12/16 4:54 PM

552 A

Moynihan v HM Advocate

2016 S.C.C.R.

when I was sitting . . . after it happened, him asking me if I had a boyfriend—I told him ’no’ as they’re all psychos”. The complainer accepted that this was “information” which she had provided to the police, but she could not remember it. She explained that “everything’s been a mess for me . . . I can’t think straight”. She said that she had been telling the police the truth and accepted that it appeared that this was a conversation that she had had with the appellant. The complainer admitted having Halo condoms in her house, but said that she would not have carried them about. [7] The next matter related to the end of the incident. It was put to the complainer that the appellant had told her that he was going to get his car at Elderslie and that she had seen him walking off in that direction. She denied this. She maintained that she had no idea of where he had gone. The context of this line was the fact that the complainer had her phone with her and could have called the police immediately after the appellant had left. The complainer denied telling the friend, whom she had met shortly after the incident, where the appellant had gone. She said that she did not think that she had told him that she had seen the appellant walk off towards Elderslie. She could have said this, but could not remember. The contention was that the complainer did not want the appellant found by the police. She had not told the police that the appellant had handled her phone and that his fingerprints might be on it. She explained that “At that point, everything was all overwhelming and it was hard to, like, say everything.” She did not want to hand over her phone in case she did not get it back. She accepted that she did not tell the police that her assailant’s name was Sean until 7 October, when she said that the police mentioning a person called “Gavin” had triggered this memory. [8] The appellant did not testify. He had been interviewed by the police. He maintained that he had previously met the complainer at Tesco and they had flirted with each other. Subsequently, he had just got lucky one day when he had met her again on the cycle path and she had initiated sexual contact. She had provided the Halo condom. After the incident, they had conversed and the complainer had smoked a joint. [9] The police failed to recover the relevant images from Tesco’s CCTV system, despite having been asked to do so by the appellant’s law agents. There was evidence from a passer-by that he had noticed a male and a female in the bushes. He had not noticed anything untoward. Both had looked at him. The male friend, whom the complainer had met, adopted part of his statement to the police that the complainer had told him that her attacker had walked off towards Elderslie. [10] The trial judge reports that the defence may have succeeded but for one mistake, indicating that the appellant’s account had been too clever. The appellant had told the police that he had kissed the complainer passionately and deeply. He thereby knew that she had a tongue pierced with a stud. The complainer had never had a tongue piercing, but a friend did have. The appellant had mixed up the photographs of the two girls on Facebook, where he had also acquired intimate knowledge of the complainer’s lifestyle and had thus been able to provide the police with details of it. Speeches and charge

5344.indd 552

[11] The advocate depute approached the issue of the complainer’s credibility and reliability partly by anticipating the defence speech. She dealt with the complainer’s use of the appellant’s first name when first describing the incident in court. She mentioned that the complainer had not initially told the police that the appellant had told her his name. This had been explicable because of

07/12/16 4:54 PM

2016 S.C.C.R.

Moynihan v HM Advocate

553

the complainer’s state of mind. She had provided a detailed description of the appellant and later identified him on emulator sheets and aVIPER identification parade. Even if the appellant and the complainer had met at Tesco previously, would that have mattered? In relation to the roach, the advocate depute had asked the jury to apply the “so what” test. [12] The advocate depute turned to the discrepancy between the complainer’s testimony and her statement on the point at which she had seen the knife. Again, the “so what” test ought to be applied. This was a matter of detail, “an understandable misrecollection in the circumstances of a terrifying ordeal at knifepoint some time ago”. In relation to the other matters about her phone and what she had told the friend about where the appellant had gone after the incident, they were all for the jury “to weigh up when you decide whether to accept her evidence or not”. [13] The defence speech was a comprehensive one. It focused on the account given by the appellant at interview and its coincidence with other evidence in the case, notably that of the passer-by. The complainer’s action, in not immediately contacting the police or her parents, was referred to. Counsel then turned to the evidence of the complainer and explained: “[I]t is often said in these courts that in order to assess whether a witness has given honest and reliable evidence, you should check whether the witness had been consistent when asked to describe those events. If someone changes their story every time they’re asked to describe an event, it may cause you to doubt whether they are telling the truth, or at least to doubt whether you are prepared to rely on the accuracy of their account.” He asked the jury to compare the complainer’s testimony with what she had said to the police, especially about the time when she had first noticed the knife. He suggested that the complainer had changed her account to explain why she had not screamed and struggled. After dealing with other matters, counsel dealt with the discrepancy between the complainer’s testimony about where the appellant had gone and her description to the male friend, whom she had met shortly afterwards. Reference was made to the complainer’s failure to mention the appellant’s name when first, or second, interviewed. It was suggested that the complainer was not telling the truth. She was trying to avoid providing the police with information which would have led to the identification of the alleged attacker. [14] The trial judge’s charge is succinct. It commences by referring to the speeches. The judge directed the jury that they must “give equal attention to what each has said in support of his or her own case, and in criticism of the other’s”. He explained that, whereas the speeches had focused on the evidence, he had to deal with the law. He gave the jury the standard directions on credibility and reliability, stating that, if any of the evidence caused a reasonable doubt, the jury had to acquit. Towards the end of his charge, the judge added: “I have not dealt with the evidence in any detail as both the advocate depute and (counsel for the defence) have dealt with it perfectly adequately in the course of their speeches.”

The judge did not explore the evidence at all. In that respect his charge might be described as in the traditional mode. It did not mention the significance of prior inconsistent statements. G

5344.indd 553

07/12/16 4:54 PM

554 A

Moynihan v HM Advocate

2016 S.C.C.R.

Ground of appeal and submission

[15] The ground of appeal relates to the absence of directions on the evidential value of prior inconsistent statements used to challenge the credibility of the complainer. Particular emphasis was placed on the defence contention that the complainer had withheld information, which would have assisted the police in identifying the alleged assailant, notably that he had told the complainer his name during the incident and that, after the incident, he had walked off in the direction of Elderslie. The discrepancy in the appearance of the knife was stressed, as was the conversation about all boys being psychos. The fundamental point was that the complainer had previously made statements which differed from her evidence. In these circumstances, the trial judge ought to have directed the jury on the evidential value of these prior statements, which were admissible in terms of s.263(4) of the Criminal Procedure (Scotland) Act 1995. This was a requirement and not a matter for the judge’s discretion (Niblock v HM Advocate, LJC (Gill) at para.17; Haggerty v HM Advocate, Lord Hardie at para.6; Lumsden v HM Advocate, Lord Malcolm at para.5). The judge had failed to direct the jury that they could compare the complainer’s testimony with what was contained in her statements. This error was compounded by a failure to give the jury the standard direction on how to approach inconsistencies in the evidence (Munro v HM Advocate, Lord Carloway at para.23). The misdirection had been a material one. [16] The advocate depute conceded that the failure to give any direction on “the evidential value” of prior statements had amounted to a misdirection. However, it had not been a material one and had not resulted in a miscarriage of justice. The timing of the knife’s appearance was a minor inconsistency. The content of the statement had not been adopted, nor had that relative to the “psycho” remark. Their relevance, and that of the statement about the appellant’s post-incident direction of travel, was restricted to testing credibility and reliability. They were peripheral in the context of what was a strong Crown case. Parties had dealt with the issue in their speeches. Although the charge was silent on the value of the statements, there had been clear directions on how to assess the complainer’s testimony in general. The jury were directed on the need to accept the complainer’s evidence before they could convict. Niblock v HM Advocate was concerned with the significance of the adoption of part of a statement necessary to prove identification. Lumsden v HM Advocate involved a previous complete denial that the offence had happened. In Haggerty v HM Advocate it was held that the misdirection had not resulted in a miscarriage of justice (see also S v HM Advocate). It would have been clear to the jury that the inconsistencies were to be taken into account in assessing the complainer’s credibility and reliability. Munro v HM Advocate had not said that a direction on inconsistencies was essential. Decision

5344.indd 554

[17] In Younas v HM Advocate (LJC (Carloway) at para.56; see also Sim v HM Advocate), it was emphasised that it remained primarily for the parties to address the jury on what parts of the evidence were, or were not, significant and to make such submissions on credibility and reliability as they thought appropriate. The distance over which the judge should traverse the arena of fact was very much a matter for his judgment, based upon his unique understanding of the true issues of fact in contention during the trial. [18] There is a tension between a judge’s obligation to provide the jury with such guidance and assistance as can properly be given in relation to the accurate assessment of the quality of, and weight to be given to, certain types

07/12/16 4:54 PM

2016 S.C.C.R.

Moynihan v HM Advocate

555

of evidence (Practice Note 18 February 1977) and the desirability of the judge not straying too far into the jury’s territory of determining any issues of credibility and reliability. Although in certain cases a judge may require to touch upon the evidence to demonstrate where a sufficiency might be found as a matter of law, it will rarely be necessary for him to delve into passages which affect only credibility and reliability, where these have already been explored by the parties. [19] The existence of any obligation on the judge to direct the jury on prior statements will depend on the facts and circumstances of the case. The fact that there has been reference to a prior statement at some point during the trial does not mean that a direction is inevitably necessary. However, it is likely that a direction will require to be given where the witness has “adopted” a statement as part of his evidence and that part is material to proof of the charge (ie, Niblock v HM Advocate, LJC (Gill) at para.14. The judge would require to direct the jury on how such adoption operates, in the context of s.260 of the Criminal Procedure (Scotland) Act 1995, as a matter of law. Otherwise, the jury may consider that it is only what the witness remembered and spoke to in court which mattered. In Niblock v HM Advocate, the Lord Justice Clerk (Gill) stated (para.16) that the need to give a direction applied generally where it had been legitimate to refer to a witness’s prior statement. That comment was made in the context of the evidential import of the statement being a necessary element for proof of the charge. [20] Where a prior statement is relied upon solely for the purposes of the assessment of credibility and reliability in terms of s.263(4) of the 1995 Act, a judge may wish to provide the jury with assistance on that matter and in some situations such a direction may be required. However, it is important to assess precisely what the nature of the legal direction ought to be. It is correctly set out by Lord Hardie, delivering the opinion of the court, in Haggerty v HM Advocate (at para.6) as being to direct the jury on the limited purpose for which they may use such prior statements. Put another way, it is not to tell the jury that they can use a prior inconsistent statement when assessing credibility and reliability. Such use is obvious and very often already clear from the speeches to the jury. It is to tell the jury that they cannot use such statements, unless they are adopted, as proof of fact (see also S v HM Advocate, Lord Bonomy at para.8). In that sense, the direction, if given, will often be one which favours the Crown rather than the defence. [21] Insofar as it might be thought that the dictum of Lord Malcolm, delivering the opinion of the court, in Lumsden v HM Advocate (at para.5) might be interpreted as requiring a direction in every case, it is important to note that he recognised expressly that every case depends upon its own facts and circumstances. Lumsden was also special insofar as the prior statement amounted to a total denial that the offending had taken place. The present case is quite different. [22] In this case, the advocate depute and counsel for the appellant had addressed the significance of the inconsistencies in their speeches. The trial judge had directed the jury that they should have regard to what each had said in their speeches and explained that he had not gone into the evidence as this had already been done. Although the judge could have told the jury that they could use any discrepancies to test credibility and reliability, this may have been seen as unduly condescending and an attempt to provide the jury with a glimpse of the obvious. If a legal direction were required at all, it would have been one in favour of the Crown by stating that the content of the statements, insofar as not accepted as truth, could not be used as proof of fact but only to

5344.indd 555

07/12/16 4:54 PM

556 A

Moynihan v HM Advocate

2016 S.C.C.R.

test credibility and reliability. The absence of this direction could only operate in the appellant’s favour in that, if the jury erroneously treated the complainer’s prior statements as capable of proving fact, that would have supported the lines of defence. In any event, no miscarriage of justice can be seen to have occurred where the issue of credibility and reliability in the case of the complainer was firmly before, and resolved by, the jury as an essential element of their verdict. The appeal against conviction must be refused. Sentence

[23] The appellant was aged 30 at the time of the offence. He had a previous conviction for rape in 2009, for which he received a nine-year extended sentence with a custodial element of six years. He had an earlier conviction for assault and robbery in 2004, which attracted a five-year sentence. After his release from the 2009 sentence, he had been convicted of assaults on three different occasions. Post-conviction, he had assaulted a fellow prison inmate (a notorious murderer) to his severe injury and permanent disfigurement. On 22 October 2005, he had been sentenced to 32 months in custody for that offence. He had also been formally recalled to prison under s.17 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in respect of the prior sentence for rape. [24] The trial judge explains that, had he imposed a determinate sentence, it would have been one of 17½ years. He regarded the offence as at the top end of those of its type given the degree of pre- and post-incident planning. He deducted 20 per cent, as representing the protection of the public element, which left 14 years. He would normally have simply halved that amount to reach the appropriate punishment part. However, there was the added “complication of the s.17 order”, which was due to expire in December 2019. He adjusted the “normal reduction down from seven years to five”, thus arriving at the punishment part of nine years. However, he explains in his report that he also took into account the post-conviction sentence of 32 months since, to do otherwise, would have nullified its effect. [25] The appellant accepted that the criteria for an order for lifelong restriction were met and that an OLR was an appropriate sentence. The contention was that a nine-year punishment part was excessive; based, as it was, on an excessive starting-point of 17½ years (Foye v HM Advocate). [26] The judge had taken into account an irrelevant factor. He had made the deduction of 20 per cent from the headline sentence, but had then added on two years to the resultant seven years, produced by halving the determinate sentence, to take into account a period of custody of 32 months. Section 101A(2)(a) of the 1995 Act permitted the court to have regard to any conviction in respect of an offence occurring before the principal conviction. The judge had departed from the procedures in s.2(2)(aa) and (b) of the 1993 Act. [27] The court agrees that the period of 17½ years is excessive, notwithstanding the nature of the offence and the appellant’s previous convictions. The court will take, as its starting-point, 15 years. From this, it will deduct three years, consistent with the trial judge’s assessment of 20 per cent. It will set the punishment part at half of the remaining amount; that is to say six years. Such an approach is consistent with the legislation, which provides that the punishment part is to be the amount appropriate to satisfy the requirements for retribution and deterrence (ignoring the period necessary for the protection of the public) taking into account the seriousness of the

5344.indd 556

07/12/16 4:54 PM

2016 S.C.C.R.

Moynihan v HM Advocate

557

offence, or of the offence combined with other offences on the same indictment and any previous convictions (1993 Act, s.2(2)(aa) and (b)). The judgeâ&#x20AC;&#x2122;s adjustment to take into account the subsequent conviction is not authorised by the Act.

Note: See also Oâ&#x20AC;&#x2122;Neill v HM Advocate, infra, p.538.

5344.indd 557

07/12/16 4:54 PM

A Appeal Against Conviction

7 October 2016

PATRICK O’NEILL

Appellant

against HER MAJESTY’S ADVOCATE B

Respondent

[2016] HCJAC 86 Solemn procedure—Judge’s charge—Prior inconsistent statements— Failure to direct jury on limited purpose for which statements can be used—Charge not otherwise unblemished—Whether failure to direct on inconsistent statement misdirection leading to miscarriage of justice

The appellant was charged with assault with intent to rape. In her evidence the complainer made a number of statements which were inconsistent with her police statement. The trial sheriff made no reference to these inconsistencies in her charge to the jury. She also failed to direct the jury that in order to convict they must accept the complainer as credible and reliable, and her directions on distress were confusing. The jury asked to see the complainer’s police statement but were told they could not see it because a witness’s evidence was what she said in the witness box. The appellant was convicted and appealed to the High Court on the ground of misdirection. The Crown submitted that the issue of credibility and reliability had been adequately tested in cross-examination and were covered by the general directions on the assessment of evidence. Held (1) that the critical direction would be that the statement, insofar as not adopted, could not be used as proof of fact of its contents, that the extent to which a direction on a prior inconsistent statement might be required in any case must be seen in the context of the charge as a whole, and that the charge in this case was anything but otherwise unblemished (para.17); and (2) that in the circumstances this was a case in which such a direction was required, that the misdirection was a material one and a miscarriage of justice had occurred (para.18); and appeal allowed and conviction quashed. Masocha v HM Advocate [2015] HCJAC 15; 2016 S.C.C.R. 548 and Moynihan v HM Advocate [2016] HCJAC 85 distinguished. Cases referred to in the opinion of the court: Masocha v HM Advocate [2015] HCJAC 15 Moynihan v HM Advocate [2016] HCJAC 85; 2016 S.C.C.R. 548.

Patrick O’Neill was convicted of assault with intent to rape after trial in January 2016 at Aberdeen Sheriff Court before Sheriff Cowan and a jury. He appealed to the High Court against conviction on the grounds referred to in the opinion of the court. The appeal was heard on 21 September 2016 by the Lord Justice Clerk (Dorrian), Lord Menzies and Lady Clark of Calton. For the appellant: Moggach, instructed by Faculty Services Ltd for Gavin Bain & Co, Solicitors, Aberdeen. For the respondent: Edwards QC, AD. On 7 October 2016 the Lord Justice Clerk delivered the following opinion of the court. 558

5344.indd 558

07/12/16 4:54 PM

2016 S.C.C.R.

O’Neill v HM Advocate

559

LORD JUSTICE CLERK [1] This appeal relates to a conviction on a charge of assault with intent to rape. The appellant had also been found guilty of simple assault, and being concerned in the supply of cannabis. He had pled guilty to a statutory breach of the peace. The grounds of appeal are: (i) that the sheriff erred in failing to direct the jury in relation to an inconsistent prior statement by the complainer to the police, which had been the basis for a significant part of the crossexamination, and referred to in the defence speech; and (ii) that in directing the jury in relation to distress, the sheriff had erred in failing to advise them that the distress required to be spontaneous, genuine and arising directly from the conduct complained of. [2] The evidence of the complainer was that she had been in the company of her boyfriend and the appellant in the course of the evening, latterly at her own flat; they had all been drinking, and her boyfriend had vomited over the carpet; she argued with him, and asked him to leave, meaning leave the room, not the flat; he however misunderstood and left the flat, but remained outside causing a commotion; the complainer’s mother arrived and entered the flat; the appellant seemed annoyed at the boyfriend, wanting to go outside and speak to him; the complainer stopped him from doing so; the appellant assaulted her by putting his hands to her face and squeezing her cheeks together and pushing her head back; he then slapped her on the face with some force; at that point the complainer’s mother left; although there had been no discussion to this effect, the complainer thought her mother would contact the police; thereafter the events narrated in the charge occurred; the appellant admitted most of these, stating that he had been “chancing his arm” with the complainer. She had been looking out of the window at her mother leaving. The appellant was on the same sofa. When asked if she wanted the events to happen she said “no”. She repeatedly told the appellant that she was with her boyfriend, and “This wasn’t happening between me and him”. The complainer gave evidence that when her mother first arrived the appellant had made inappropriate remarks about her mother, and put his arm around her. The complainer told him to get off her mother. She also stated that the appellant was a stranger to her and that she had first met him that day. [3] Certain aspects of the police statement put to the complainer in crossexamination were consistent with her evidence in chief. However: • She said she didn’t know her boyfriend was outside the flat prior to her mother arriving, had not heard him banging or shouting to get in, yet her statement referred to his presence at that time. • In her statement she said she had prevented the appellant from leaving the house, that he had kissed her, and that this preceded an altercation between the appellant and the complainer’s mother. In her evidence she said that what she had said in the statement was untrue, and in fact that when the appellant had been heading towards the door, seemingly to try to get at her boyfriend who was on the other side of it, he squeezed the complainer’s face really hard and pressed her head backwards. His hand was on her mouth and his thumb and fingers on either side of her face. He then slapped her with a “forceful enough” blow. No mention of the slap had been made in the statement. • She accepted that she had given the police an untrue account of the circumstances in which her mother had been asked to leave the flat. In evidence she mentioned the advances made to her mother, and said that her mother left after the complainer had been assaulted by the appellant,

5344.indd 559

07/12/16 4:54 PM

560 A

• • B • •

O’Neill v HM Advocate

2016 S.C.C.R.

realising that the police should be called but that the complainer could not do it. In her statement she said that she heard her mother say “let go of me” but “I can’ remember what he was doing to her”. In her statement she said the reason her mother left was that she had taken exception to the presence of a syringe, and that the complainer had forced her mother to leave. She agreed she told the police she had gone to the window to check that both her mother and her boyfriend had left, but this was not true. Although she told the police that the appellant had managed completely to remove her trousers and pants, her evidence in court was that these items had not been completely removed from her legs. A similar issue arose in relation to the appellant’s clothing, her statement indicating that he stood and removed his trousers and pants, her evidence suggesting that they were not completely removed. She was challenged about that part of the statement in which she said that she had encountered the appellant a number of times in passing, and said “hi”. The sheriff did not recall any specific question being put, but it may be presumed that this evidence was raised to challenge her assertion in court that the appellant was a complete stranger to her whom she had met for the first time that night.

[4] In her report the sheriff states (para.18): “With regard to the statement as a whole, the witness stated in evidence that there were parts which were correctly recorded but incorrect as to the facts. She explained why she had not told the truth, and in my view, the few points which she accepted as incorrect were either more or less irrelevant or not entirely inconsistent with her position in the witness box.” D

From this it appears that a deliberate decision was taken not to direct the jury on the issue. [5] The sheriff gave conventional directions to the jury that evidence is what is said from the witness box, that the content of questions is not evidence, nor are suggestions made to a witness unless the witness agreed with them. She added: “If something is put to a witness who can’t remember, or who doesn’t know, then that’s not evidence, and what’s said in speeches is not evidence.” [6] The sheriff made no mention of the statements which had been put to the complainer in this case, the effect of them, or the way in which the jury might use the evidence relating to them. When the jury returned to ask if they could see the statement, the sheriff said: “The answer to the question is quite short, and it is “no”. I remind you of what I said to you about a witness’s evidence is what is said in the witness box.”

5344.indd 560

[7] The sheriff gave the jury relatively standard directions about corroboration, without explaining the extent to which distress might be used as corroboration. The extent to which distress might be available as corroboration was not covered. The sheriff later referred to distress in the context of explaining that to determine whether the appellant’s alleged belief in consent was reasonable the jury had to look at the whole circumstances of the case. She went on to say: “One aspect of the evidence that I do have to warn you about, ladies and gentlemen, it’s available to you and it’s relevant, but you have to be very careful about what you make of it, is any question of distress exhibited by (the

07/12/16 4:54 PM

2016 S.C.C.R.

O’Neill v HM Advocate

561

complainer). First of all you’ll have to decide whether she was or not. That’s a question of assessing the evidence and what you decide comes from the evidence. Distress is available to you to corroborate a certain amount of other evidence, the fact that something has happened which caused her distress, but it does not go in any way to the nature of what happened. The fact of distress cannot corroborate, for instance, sexual element or lack of consent, that sort of thing. You have to be very careful what you do with evidence or distress.” [8] The sheriff’s report suggests that the directions given were adequate in the context of the trial, where the appellant had “admitted the physical aspects of the charge (with the exception of digital penetration which the jury deleted)”. The sheriff does not explain why this should have prevented a fuller explanation of the role which distress may play in a trial, particularly in a case in which the Crown were relying on the distress as corroboration. [9] It is worth noting several other points in relation to the sheriff’s charge: 1. 2.

Surprisingly, in a case such as this, she did not tell the jury that it was essential for conviction to follow that they should find the complainer to be credible and reliable in the essentials of her evidence. At pp.6–7 of the charge the sheriff expounds on the nature of circumstantial evidence saying this: “In this case, the Crown has led evidence about facts and circumstances and it says that, when you take them together, they link the accused to the commission of the crimes charged beyond reasonable doubt. The defence, on the other hand, say that you should not draw that conclusion, that you are being asked to speculate or guess and that you must not do that. So you will have to decide what facts are proved, what weight you give to each of the facts that you find proved, taking these facts together how powerful and convincing a body of evidence is presented to you, what conclusions do you draw from it and, in particular, can you infer the accused’s involvement in the commission of each of the crimes?” The sheriff’s directions as to the interplay between differing sections of the Sexual Offences (Scotland) Act 2009 and the verdicts available to the jury, covered seven pages and were rather difficult to follow. The advocate depute described them as “impenetrable”.

[10] The first ground of appeal narrates that various parts of the statement were put to the complainer for the purpose of identifying prior inconsistencies in terms of s.263(4) of the 1995 Act. In the defence speech these inconsistencies were referred to as reflecting on the credibility and reliability of the complainer, in anticipation that there would be a direction thereanent. The jury asked to see the statement, and the sheriff quite properly refused to allow this. The sheriff’s report seems to proceed on a misunderstanding that the appellant’s position on appeal was that the jury should have been given the statement. That is not the case: the complaint is that a direction should have been given, and that the jury’s request underlined the need for an appropriate direction, since it showed they were concerned about the issue. The problem was compounded by the direction that they could not see the statement because evidence was what was said in court only. [11] On the issue of distress, defence counsel had submitted that the evidence would allow the jury to conclude that any distress observed was unconnected with the relevant charge. This was a matter about which the

5344.indd 561

07/12/16 4:54 PM

562 A

O’Neill v HM Advocate

2016 S.C.C.R.

sheriff required to direct the jury, the distress being relied upon by the Crown for corroborative purposes. [12] The Crown’s written argument accepted that the inconsistencies between the complainer’s evidence and her statement were such that the sheriff ought to have given a direction to assist the jury in approaching these, but the advocate depute withdrew that concession, having considered the case of Masocha v HM Advocate. The issue of the credibility and reliability of the complainer were adequately tested in cross-examination and covered by the general directions relating to assessment of evidence. Analysis

[13] In Masocha the court emphasised that the evidence in a trial is for the jury to assess and it is not for the court to trespass on that territory. In that case, in relation to the general challenges to credibility and reliability the issues were well focused. The court was not persuaded that any issue of a prior inconsistent statement arose in relation to the complainers on charges which remained before the jury. The jury had been given a clear direction that, for a conviction to follow, they required to accept both complainers as credible and reliable in their essentials. No further direction was required. However, evidence had been given in relation to prior statements allegedly made, but denied, by witnesses on charges which were withdrawn. The absence of directions about these statements was held to be fatal to the convictions. [14] The extent to which a trial judge may be required to give a direction on the issue of prior statements will depend very much on the circumstances of the case, the content of the statements, and the evidence given in relation to them. The paradigm situation in which a direction will be required is where any issue arises as to the “adoption” of a statement by a witness. Whether, and to what extent, a direction on the use of prior statements will otherwise require to be given will vary with each case. [15] This issue was recently considered by the court in the case of Moynihan v HM Advocate. In that case also the complainer had been cross-examined as to prior statements inconsistent with her testimony on oath, and the trial judge made no reference to the statements in his charge. In delivering the opinion of the court, the Lord Justice General (Carloway) said this (para.18): “There is a tension between a judge’s obligation to provide the jury with such guidance and assistance as can properly be given in relation to the accurate assessment of the quality of, and weight to be given to, certain types of evidence (Practice Note 18 February 1977) and the desirability of the judge not straying too far into the jury’s territory of determining any issues of credibility and reliability. Although in certain cases a judge may require to touch upon the evidence to demonstrate where a sufficiency might be found as a matter of law, it will rarely be necessary for him to delve into passages which affect only credibility and reliability where these have already been explored by the parties.”

5344.indd 562

[16] The court noted that the obligation to direct the jury on prior statements will depend on the facts and circumstances of the case, and the fact that reference has been made to a prior statement does not automatically mean that a direction is required. The court went on to say (para.20): “Where a prior statement is relied upon solely for the purposes of the assessment of credibility and reliability in terms of section 263(4) of the 1995 Act, a judge may wish to provide the jury with assistance on that matter and in some situations such a direction may be required.”

07/12/16 4:54 PM

2016 S.C.C.R.

O’Neill v HM Advocate

563

[17] The critical direction would in fact be that the statement, insofar as not adopted, could not be used as proof of fact of its contents. We accept entirely the generality of these observations. However, the extent to which a direction might, in any individual case, be required, must also be seen in the context of the charge as a whole. In each of Masocha and Moynihan the charge was otherwise unblemished, and in each case the trial judge had clearly directed the jury as to the need for the jury to accept the complainer as credible and reliable in all essentials before they could convict. In the present case, the charge was anything but otherwise unblemished. In the first place, there was no direction that, for conviction to follow, the jury required to accept the complainer as credible and reliable. Further, the directions suggesting that the Crown case was to be approached as a circumstantial one, meant that the jury might have considered the evidence of the complainer merely to be one more element in that case to be weighed in the balance. When the jury asked about the statement they were told that they could not see it because “a witness’s evidence is what they said in the witness box”. Whilst this latter observation is correct as far as it goes, it at least ran the risk that, in the absence of a direction, the jury might think they were unable to use the statement even for the obvious purpose of a cross-check on reliability and credibility. Finally, the context was also of a charge which was, as a whole, confusing. The directions on the issue of distress whilst apparently a direction in favour of the defence, were nevertheless confusing, since the jury were told that the evidence was “available to you and relevant” but they were left in the dark about what its possible relevance might be, in light of the direction which followed. The directions in relation to the permutations of verdict available to the jury on a simple charge of assault with intent to rape, were very difficult to follow. [18] In all the circumstances therefore we are satisfied that this is a case in which a direction was required, that the misdirection in context was a material one and that a miscarriage of justice has occurred. We will accordingly allow the appeal in relation to ground 1.

5344.indd 563

07/12/16 4:54 PM

A Appeal Against Conviction

1 November 2016

ROY BROWN

Appellant

against LAURA McPHERSON B

(Procurator Fiscal, Ayr)

Respondent [2016] SAC (Crim) 32

Statutory offence—Threatening messages—Whether text of message requires to be objectively of menacing character—Communications Act 2003 (c.21), s.127 C

Stated case—Appeal against refusal of submission of no case to answer—Requirements of stated case Section 127 of the Communications Act 2003 makes it an offence to send a message that is grossly offensive, indecent or menacing by means of a public electronic communications network. The appellant was charged with sending two Facebook messages of a menacing character in that they were of a threatening nature to the complainer, mother of his son, within a period of about ten minutes, seeking access to the child. There was a history of conflict between the appellant and the complainer, and the appellant had been at one time subject to special conditions of bail prohibiting him contacting the complainer. The first message, which it was accepted was not itself menacing, was followed up by a message that the appellant “will see [the child] if it kills me . . . remember there is no bail or anything now”. The complainer gave evidence that she felt distressed and threatened by the messages, and the Crown relied on the background history of the conflict between the appellant and the complainer to prove the menacing nature of the messages. The trial sheriff repelled a submission of no case to answer, and the appellant was convicted. He appealed to the sheriff appeal court by stated case, the only question being whether the sheriff erred in repelling the submission. Held that in assessing the nature of messages which pass between parties for the purpose of criminal liability the court should not only have regard to the background but must undertake an objective assessment of the words deployed, that that analysis should allow the court to recognise whether the boundary has been crossed between words which may be unwelcome, intemperate or even upsetting and words which are menacing and threatening, that, had the sheriff made that objective assessment she would have recognised that the messages did not contravene s.127 of the 2003 Act for the very simple reason that the messages lacked menace, that the second message contained nothing more than an expression by the appellant of his determination to pursue his quest for contact with his son, that there was no explicit threat or menace, that at its highest it contained both factual information and a vague warning, but that it was, however, an entirely equivocal statement, and, that the sheriff had erred in focusing on the complainer’s reaction, and it was not open to her to repel the no case to answer submission (para.10); and appeal allowed and conviction quashed. Observed, that, even in a case such as this where there is no point other than the question whether a no case to answer submission ought to have 564

5344.indd 564

07/12/16 4:54 PM

2016 S.C.C.R.

Brown v McPherson (SAC)

565

been sustained or repelled, findings in fact must be stated, that in this appeal findings in fact had been requested and provided in the form of a supplementary note which, in itself, was irregular, as it denied the parties the opportunity of subjecting the draft findings in fact to scrutiny and adjustment (para.11).

Cases referred to in the opinion of the court: Director of Public Prosecutions v Collins [2006] UKHL 40; [2006] 1 W.L.R. 2223; [2006] 4 All E.R. 602 Wingate v McGlennan, 1991 S.C.C.R. 133; 1992 S.L.T. 837.

Roy Brown was convicted on 3 May 2016 of a contravention of the Communications Act 2003 after trial before Sheriff Cunninghame in the sheriff court at Ayr in the terms set out in the opinion of the court and appealed to the sheriff appeal court against conviction on the grounds referred to in the opinion of the court. The appeal was heard on 1 November 2016 by Sheriffs Principal Stephen QC and Turnbull and Sheriff O’Grady QC For the appellant: Ogg, Solicitor advocate, instructed by Paterson Bell, Solicitors, Edinburgh. For the respondent: Goddard AD

On 1 November 2016 the appeal was allowed. Sheriff Principal Stephen subsequently delivered the following opinion of the court. SHERIFF PRINCIPAL STEPHEN [1] The appellant appeals his conviction at Ayr Sheriff Court on 3 May 2016 of the following offence: “(1) [O]n 23 November 2015 at 23 George McTurk Court, Cumnock and elsewhere you Roy Brown did send, by means of a public electronic communications network messages to E. C., your former partner [c/o] Police Service of Scotland, Glasgow, that were of a menacing character, in that through a social media network you did send messages that were of a threatening nature: contrary to the Communications Act 2003, section 127(l)(a).” [2] The sheriff’s stated case contains a single question for this court in the following terms: “Did the court err in repelling the submission of no case to answer?” [3] The background to this case as set out by the sheriff in her stated case has a domestic character. The appellant and the complainer had been in a relationship until April 2012. There is a child of that relationship ‘W’ (date of birth 4 October 2011). After the separation the appellant apparently had some limited supervised contact with the child. It appears that relations between the appellant and the complainer had not been cordial and the complainer had not encouraged any communication from the appellant and was not disposed to allow contact between the appellant and their son. [4] The charge relates to two Facebook messages from the appellant to the complainer’s Facebook account posted at 2.15 pm and 2.26 pm on 23 November 2015. They are in the following terms: “2.15 pm—why are you doing this to spite “W’ against me or something got ur shitty lawyers letter lol must admit quite funny really ‘W doesn’t

5344.indd 565

07/12/16 4:54 PM

566 A

5344.indd 566

Brown v McPherson (SAC)

2016 S.C.C.R.

remember me get a grip we both know that aint true please ‘E’ am begging you a will not screw up with “W’ a love our wee guy and u know a do”; and “2.26 pm—and also a get tht u hate me and probably wish a was dead but believe me when a tell you a will see ‘W if it kills me a will remember there is no bail or anything now.” [5] The complainer became distressed and upset on seeing that the appellant had sent the messages and before she read either. She took the second message to be a threat and believed the appellant knew her address and might attend uninvited. The complainer had, indeed, instructed her solicitor to reply to the letter from the appellant’s solicitor seeking to contact with the child. The complainer had refused that request for contact. [6] The complainer attended Ayr Police Station and reported the matter providing a copy of the Facebook messages. There is no dispute as to the content of the messages and that they had been sent by the appellant from his Facebook account to the complainer’s. The complainer had not blocked the appellant’s access to her Facebook page. [7] It was argued on behalf of the appellant that the sheriff had erred in repelling the no case to answer submission. In respect of the first message, there was nothing menacing or threatening at all in that communication. The second message did not contain any threat. Although the complainer felt distressed and threatened she conceded under cross-examination that the message may have had a perfectly innocent purpose. It was insufficient that the complainer felt distressed and threatened. Indeed she said she was upset and distressed to see that the appellant had sent her any message and that was before she had read the contents. It was necessary for the Crown to show objectively that the message was threatening or menacing and they had not done so. In order to prove the charge it was necessary that the Crown prove that the message sent by the appellant was either grossly offensive or of an indecent obscene or menacing character. The sheriff had failed to apply an objective test to the messages. [8] The Crown rely on the nature of the message being menacing and that the context is important. The appellant had been subject to special conditions of bail preventing him from communicating with or contacting the complainer. It was, indeed, correct that these bail conditions no longer applied. On his release from prison the appellant engaged lawyers to seek contact with his son. The complainer was not minded to allow contact and she, herself, had engaged lawyers. The first message could be characterised as unpleasant but otherwise unobjectionable. The second message should properly be construed as threatening. There was an implied threat. The appellant would go to any lengths to have contact with his son. The complainer felt threatened and distressed and took the second message to be a threat and reported it to the police. Against that background and given these facts and circumstances the Crown had led sufficient evidence to prove the charge. [9] Section 127 of the Communications Act 2003 makes it an offence to send a message that is grossly offensive, indecent or menacing by means of a public electronic communications network. This section is designed to protect the public from threatening or menacing messages, inter alia. The actus reus of the offence is the sending of the message of the proscribed character by the means mentioned in the section. The Communications Act 2003 is a UK Statute. Regard may be had to case law from England and Wales. In Director of Public Prosecutions v Collins the House of Lords considered this offence. The offence of which the appellant was convicted cannot be proved unless the

07/12/16 4:54 PM

2016 S.C.C.R.

Brown v McPherson (SAC)

567

content of the message was of a “menacing character”. When analysing a message to determine whether it is menacing or threatening that message needs to be examined in the context in which it was sent. A menacing message is one which conveys a threat. In the Divisional Court in DPP v Collins Sedley LJ made the following observation on what may be “menacing”: “. . . fairly plainly if it is a message which conveys a threat—in other words, which seeks to create a fear in or through the recipient that something unpleasant is going to happen”. Conviction of this offence does not depend upon the message being received or the recipient’s reaction or state of mind following receipt of the message. In DPP v Collins it was emphasised that the message or messages must be assessed objectively. Lord Bingham of Cornhill at para.8 observed: “The offence is complete when the message is sent. Thus it can make no difference that the message is never received, for example because a recorded message is erased before anyone listens to it. Nor, with respect, can the criminality of a defendant’s conduct depend on whether a message is received by A, who for any reason is deeply offended, or B who is not. On such an approach criminal liability would turn on an unforeseeable contingency.” Therefore the messages require to be considered objectively in the context in which they are sent. The reaction of the recipient or complainer is not the determining factor. [10] On an objective analysis the first message is in the nature of a plea to the complainer not to turn his son against him. It was conceded that it is unobjectionable. The second message is a continuation of the first and returns to the issue of the child and contact with the child. That, in our view, is the context in which the messages should be assessed. The exchange relates to the issue of contact with the child of the relationship. Clearly, the complainer did not wish the appellant to have contact either with her or with her son. That, in itself, may explain the complainer’s distress and upset. Contact can, of course, be a Trojan Horse to effect continued communication with an estranged and unwilling former partner. However, any court will be aware of the difficulties and upset that can arise in such family disputes but in assessing the nature of messages which pass between parties for the purpose of criminal liability the court should not only have regard to that background but must undertake an objective assessment of the words deployed. That analysis should allow the court to recognise whether the boundary has been crossed between words which may be unwelcome, intemperate or even upsetting and words which are menacing and threatening. In our opinion, had the sheriff made that objective assessment she would have recognised that the messages did not contravene s.127 of the 2003 Act for the very simple reason that the messages lack menace. We agree that the first message is not objectionable at all. We are not persuaded that the second message contains anything more than an expression by the appellant of his determination to pursue his quest for contact with his son. There is no explicit threat or menace. The second message plainly reiterates the appellant’s determination to see his son and contains words to the effect that he is no longer subject to bail conditions. At its highest this message contains both factual information and a vague warning. It is, however, an entirely equivocal statement. Of course, the findings of any sheriff who has heard evidence deserve respect. Nevertheless, it appears to us, that the sheriff has erred in focusing on the complainer’s reaction. Clearly, the messages are directed solely to the complainer, however, on a plain reading and analysis of the

5344.indd 567

07/12/16 4:54 PM

568 A

Brown v McPherson (SAC)

2016 S.C.C.R.

messages we decern no threatening or menacing words. Accordingly, it was not open to the sheriff to repel the no case to answer submission. We therefore propose to allow the appeal and answer the question posed in the stated case in the affirmative. [11] Finally, the manner in which the sheriff has stated her case for the appeal court has caused certain difficulties in this appeal. Where the sufficiency of evidence is the matter which the appellant wishes to bring under review the practice on how to state a case should be clear. Even in a case such as this where there is no point other than the question whether a no case to answer submission ought to have been sustained or repelled findings in fact must be stated. In this appeal findings in fact have been requested and provided in the form of a supplementary note which, in itself, is irregular, as it denies the parties the opportunity of subjecting the draft findings in fact to scrutiny and adjustment. Guidance on the form of a stated case especially where there has been a submission of no case to answer is given in Wingate v McGlennan by the Lord Justice Clerk (Ross). It is summarised conveniently in Renton and Brownâ&#x20AC;&#x2122;s Criminal Procedure at 31-20â&#x20AC;&#x201C;31-21.

5344.indd 568

07/12/16 4:54 PM

A Appeal Against Sentence

3 November 2016

SCOTTISH POWER GENERATION LTD

Appellants

against HER MAJESTY’S ADVOCATE

Respondent B

[2016] HCJAC 99 Sentencing—Guidance—Health and Safety—Use of English Guidelines—Health and Safety at Work etc Act 1974 (c.39), ss.2(1), 33(1)(a) Sentence—Health and Safety—Failure by large company to maintain machinery causing severe injury—Whether starting-point of £2,500,000 excessive—Health and Safety at Work etc Act 1974 (c.39), ss.2(1), 33(1)(a)

Sentence—Discount for guilty plea—Health and Safety—Failure by large company to maintain machinery causing severe injury—Whether discount of 15 per cent insufficient—Criminal Procedure (Scotland) Act 1995 (c.46), s.196 In November 2015 the English and Welsh Sentencing Council produced Guidelines for sentencing in health and safety offences after February 2016 irrespective of the date of the offence. (Guidelines issued in 2010 had applied only to fatal accidents.) The 2015 Guideline categorised offences in terms of culpability and harm factors. “High culpability” cases are cases falling far short of the appropriate standard of care, and “medium culpability” cases are cases where a system was in place but there was a failure to adhere to or implement it sufficiently. Having assessed the case on this basis the sentencer is required to consider the seriousness and likelihood of the harm arising, including the number exposed to risk and whether it caused significant harm; if the likelihood of harm is high, the case will fall into category 2. Having assessed the categories of culpability and harm the sentencer has then to consider where to place the offender in a table selected by reference to the offender’s turnover, offenders with a turnover of £50 million or more being placed in the “large” table. The appellants, who were part of a multi-national corporation and had a turnover of £1.3 billion, pleaded guilty to contravening ss.2(1) and 33(1)(a) of the Health and Safety at Work etc Act 1974 in respect of a valve which they had failed to maintain and monitor after it had been identified by them in 2009 as faulty, but had not repaired it. As a result of this failure an employee suffered severe injury in October 2013 by burning; he had undergone five operations, involving two skin grafts, had spent four weeks in hospital and was still receiving out patient treatment; he had been medically retired in December 2015. The sentencing sheriff, having taken account of the 2015 Guidelines found that the appellants’ culpability was high and that the harm caused was in category 2, for which the guidelines provided a starting-point of £1,100,000 and a range of £550,000 to £2, 900,000 in the case of a large organisation. The sentencing sheriff fixed a starting–point of £2.5 m which he reduced to £1.75m.on account of the early plea. The appellants appealed to the High Court against the sentence, submitting that the sheriff had erred in applying the Guidelines which were mechanistic

569

5344.indd 569

07/12/16 4:54 PM

570 A

Scottish Power Generation Ltd v HM Advocate 2016 S.C.C.R.

and inconsistent with the discretionary nature of sentencing in Scotland, that the culpability involved was only medium, and that the breach was localised and out of character. Held (1)(i) that there was no reason to depart from the approach taken in Geddes v HM Advocate (infra), that, although with many types of offence, sentencing decisions will be instantaneous, if not quite instinctive, once the material is ingathered and understood, guidelines from the Sentencing Council will often provide a useful cross-check, especially where the offences were regulated by a UK statute (para.35); (ii) that there was no need to use the 2015 Guideline in a mechanistic or formulaic fashion that if, in this case, the sheriff was correct in identifying the levels of culpability and harm, the product was a broad range of between £550,000 and £2.9m,with a starting-point of £1.1m, within which to work applying discretionary increases or decreases to or from the starting point of £1.lm according to, respectively, any aggravating and mitigatory factors, that even then, having reached a figure at the end of that calculation, there remained the proportionality exercise based upon the offender’s turnover, that in such circumstances, describing the Guideline in pejorative terms relative to the generally looser Scottish approach to sentences was misplaced, that, similarly, the somewhat startling submission, that the use of guidelines of the type under consideration here was productive of inconsistency and inefficiency, was simply not accepted (para.37); (iii) that, as was pointed out in Geddes, it was important to look at existing Scottish precedent to discover what levels of penalty were appropriate, albeit that this task may involve a cross-check with any relevant guidelines (para.38); and (iv) that where the court has said that regard should be had to guidelines in England and Wales in a particular field, such as UK health and safety regulation, it meant to such guidelines as were in current use and would be applied by the courts of England and Wales to the offence, had it happened in that jurisdiction, that it would be bordering on the ridiculous to apply a guideline which was out of date, and that accordingly, the appropriate guideline to have regard to, as a cross-check, in this case, was the 2015 version (para.47); and (2)(i) that the sheriff ought to have identified the mitigatory and aggravating factors and adjusted the “starting point” up or down accordingly, which could not have involved moving “out of the range”, as the sheriff had contemplated, that, a figure ought to have been reached and that only then could the proportionality check relative to means have been carried out to adjust the figure, but that such an exercise was not that described in the sheriff’s report (para.48); (ii) that if the Guideline were used as a method of calculating the appropriate fine, the court would have reached the same figures as the sheriff by applying the “high” culpability factor and the harm category 2, that the contentions to the contrary by the appellants were rejected, that this produced a startingpoint of £1,100,000 and a range of £550,000 to £2,900,000, that the court would then have to have regard to the low number of employees exposed, that this would not have decreased the starting-point figure, that the fact that the offence was a significant cause of actual harm could have increased it and might even have moved the category to level 1, thus producing a starting-point of £2,400,000 and a range commencing at £1,500,000, that the mitigatory factors would have kept the figure to the lowest level of that range, that if that range were not selected, although these factors would have reduced the figure from the starting-point, the “very large” nature of the appellants’ parent group would have prompted a significant increase back to, and probably greater than, the starting-point of £1,100,000 in order to meet the test of the fine being “sufficiently substantial to have a real economic impact which will bring

5344.indd 570

07/12/16 4:54 PM

2016 S.C.C.R. Scottish Power Generation Ltd v HM Advocate

571

home to both management and shareholders the need to comply with health and safety legislation” (para.50); and (iii) that a full one-third discount would involve too substantial an amount of money relative to the total, but that a discount of 20 per cent would seem reasonable (para.51); and appeal allowed and fine of £1,750,000 quashed and fine of £1,200,000 substituted. Geddes v HM Advocate [2015] HCJAC 43; 2015 S.C.C.R. 230; 2015 S.L.T. 415 applied.

Cases referred to in the opinion of the court:

Balmoral Group v HM Advocate, 1996 G.W.D. 10-581 Dundee Cold Stores v HM Advocate [2012] HCJAC 102; 2012 S.L.T. 1173 Ferguson v HM Advocate [2014] HCJAC 19; 2014 S.C.C.R. 244; 2014 S.L.T. 431 Geddes v HM Advocate [2015] HCJAC 43; 2015 S.C.C.R. 230; 2015 S.L.T. 415 Gemmell v HM Advocate [2011] HCJAC 129; 2012 S.C.C.R. 176; 2012 J.C. 223; 2012 S.L.T. 484 HM Advocate v BP Oil Grangemouth Refinery, 2002 G.W.D. 5-160 HM Advocate v Discovery Homes (Scotland) [2010] HCJAC 47; 2010 S.C.C.R. 765; 2010 S.L.T. 1096 HM Advocate v Graham [2010] HCJAC 50; 2010 S.C.C.R. 641; 2011 J.C. 1; 2010 S.L.T. 715; HM Advocate v McCourt [2013] HCJAC 114; 2013 S.C.C.R. 646; 2014 J.C. 94; 2013 S.L.T. 1081 HM Advocate v McKeever [2016] HCJAC 43 HM Advocate v Munro & Sons (Highland) [2009] HCJAC 10; 2009 S.C.C.R. 265; 2009 S.L.T. 233 HM Advocate v Svitzer Marine, Lord Turnbull, 13 November 2015, unreported HM Advocate v Transco, Lord Carloway, 25 August 2005, unreported L H Access Technology v HM Advocate [2009] HCJAC 11; 2009 S.C.C.R. 280 Markarian v R (2006) 228 C.L.R. 357 Milligan v HM Advocate [2015] HCJAC 84 Neill v HM Advocate [2014] HCJAC 67 R v Balfour Beatty Rail Infrastructure Ltd [2007] 1 Cr. App. R. (S.) 65 R v F Howe and Son (Engineering) (1999) 2 Cr. App. R. (S.) 37 R v Friskies Petcare (UK) (2002) 2 Cr. App. R. (S.) 401 R v Newton (1983) 77 Crim. App. R. 13 Scottish Sea Farms v HM Advocate [2012] HCJAC 11; 2012 S.L.T. 299 Sutherland v HM Advocate [2015] HCJAC 115; 2016 S.C.C.R. 41; 2016 S.L.T. 93 Tate and Lyle Sugars v HM Advocate, 1991 G.W.D. 8-471. Scottish Power Generation Ltd pleaded guilty on indictment on 12 May 2016 in the sheriff court at Dunfermline before Sheriff MacNair QC to the charge set out in the opinion of the court and were fined £1,750,000. They appealed to the High Court against the sentence on the grounds referred to in the opinion of the court.

The appeal was heard on 19 October 2016 by the Lord Justice General (Carloway), Lord Brodie and Lord Bracadale. G

5344.indd 571

07/12/16 4:54 PM

572 A

Scottish Power Generation Ltd v HM Advocate 2016 S.C.C.R.

For the appellants: Gray QC, B T Smith, instructed by Pinsent Masons LLP, Solicitors, Glasgow. For the respondent: Brown QC, AD. On 3 November 2016 the Lord Justice General delivered the following opinion of the court. LORD JUSTICE GENERAL

Introduction

[1] This appeal concerns the level of fine which is appropriate in respect of breaches of health and safety regulations by a very large corporation. It raises the issue of the extent, if any, to which the Scottish courts should have regard to guidelines produced by the Sentencing Council of England and Wales. General

[2] On 12 May 2016, at the Sheriff Court in Dunfermline, the appellants pled guilty, under the procedure permitted by s.76 of the Criminal Procedure (Scotland) Act 1995, to a charge which libelled that: “[B]etween 1 March . . . and 12 October 2013 . . . at Longannet Power Station . . . you . . . being an employer, and having a duty . . . to ensure . . . the health, safety and welfare at work of your employees, and . . . in particular a duty to ensure . . . that work equipment was maintained in an efficient state, in efficient working order and in good repair, did fail to ensure . . . the health and safety at work of your employees who were required to conduct plant checks within Unit 4 . . ., a task which required them to access an area in close proximity to leak off pipework which . . . incorporated a valve which could be manually opened and closed, . . . the valve having been identified by you as faulty in that it was missing an index plate designed to limit the rotation of the hand wheel which opened and closed it, and you did fail to provide and maintain plant and a system of work that were . . . safe and without risks to the health of . . . employees . . . in that you failed to ensure that the valve was maintained in an efficient state, in efficient working order and in good repair and failed to have a system in place to adequately manage and monitor the status of the valve after it had been identified by you as faulty . . . and in consequence thereof, on 12 October 2013, David Roscoe, your employee, was conducting routine plant checks within . . . Unit 4, when he observed steam emitting from pipework . . . being connected to the valve, and turned the valve to close it, whereupon he was engulfed in high-pressure high-temperature steam to his severe injury, permanent disfigurement and permanent impairment: contrary to section 2(1) and section 33(1)(a) of the Health and Safety at Work Act 1974.” [3] On 31 May 2016 the sheriff fined the appellants £1,750,000, reduced for the early plea from £2,500,000.

5344.indd 572

Facts

[4] The accident involved a faulty valve installed in pipework through which high-pressure, high-temperature steam passed. The valve was in the basement area of one of four generating plants. The area was little used by personnel. The valve, which was operated by manually turning a spoked wheel, had been installed in about September 2007, when it had been given a certificate of test and compliance. On 6 May 2009, it was identified as having a fault. An index plate and mechanical stop, which prevented the wheel rotating back through from the closed position to open, were missing. It was apparently not known

07/12/16 4:54 PM

2016 S.C.C.R. Scottish Power Generation Ltd v HM Advocate

573

by the appellants whether the valve had been installed without this plate and stop or whether they had been removed later. The fault was registered and the appropriate work order for a repair was issued. [5] Steps were taken to prevent the valve being operated meantime. A padlock was placed on it. The only key to that was kept in the permit office. It had a label attached to it, known as a “red peril” label. The key required to be signed out before it could be removed. [6] The repair order was cancelled on 7 November 2011 by a mechanical workshop engineer. The reasons for this are apparently also unknown to the appellants. The valve had not been repaired. [7] The padlock was last seen in March 2013, when certain work was carried out on the system. Sometime after that, it had been removed. The appellants have no record of who removed it, and hence who took the key from the permit office, nor when that had happened. [8] On 27 September 2013, steam was noticed coming from the valve. A work order for the valve to be cut out and replaced was raised, but the contractor doing this did not observe that the index plate was missing. The order stated that the work should be carried out within one to four weeks. [9] On 12 October 2013, an employee of the appellants, namely David Roscoe, was conducting routine checks when he noticed steam coming from pipework associated with the valve. He turned the wheel in an attempt to close the valve. He was unaware of the fault. The valve turned through the closed position and into open mode. Mr Roscoe was immediately engulfed in high temperature steam under pressure. It was accepted that Mr Roscoe had been a good and conscientious employee. When he had attempted to close the valve, he was doing no more or less than that which he was employed to do. [10] Mr Roscoe, who was aged 53, had managed to get away after a second or two. He went to an emergency shower located a short distance away. He was able to radio for help. Nevertheless, the front of his lower body and his legs were very badly burned. His arms and neck were also affected. He underwent five operations. Two skin grafts were required. He was an in-patient for four weeks. He has had, and continues to receive, out-patient treatment, including counselling for post-traumatic stress disorder. He was medically retired in December 2015. His life has been significantly affected. His mobility has been impaired. He had previously been a keen swimmer, walker and canoeist. He has recently been able to return to swimming, but is self-conscious about his appearance. He will require to apply emollients for the rest of his life. He cannot expose his arms or legs to sunlight. He has permanent scarring, although this will fade to a degree in time.

The guideline

[11] The Sentencing Council of England and Wales has, as one of its central purposes, the promotion of greater consistency in sentencing, whilst maintaining the independence of the judiciary. Its president is the Lord Chief Justice and its members include Lord Justices of Appeal, High Court and Circuit Court judges as well as legal professionals and others involved in the justice system. It produces sentencing guidelines after extensive public consultation. [12] In 2010, the council’s predecessor, namely the Sentencing Guidelines Council, had issued its “Corporate manslaughter and health and safety offences causing death: definitive guideline”. Clearly this was concerned only with fatal cases. It consisted of listings of factors which would make an offence more or less serious. Although it was said (p.5) in relation to fines, that,

5344.indd 573

07/12/16 4:54 PM

574 A

5344.indd 574

Scottish Power Generation Ltd v HM Advocate 2016 S.C.C.R.

“Smallness does not by itself mitigate, and largeness does not by itself aggravate”, size, in the sense of means, was relevant.The financial consequences of a fine required to be considered. There was very little actual guidance on the level of fines. It was said that they required to be punitive and sufficient to have an impact. An appropriate fine for corporate manslaughter ought seldom to be less than £500,000 and may be measured in millions of pounds. Where a breach of health and safety regulations resulting in death had occurred, the fine should seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more. [13] On 3 November 2015 the Sentencing Council published the “Health and safety offences, corporate manslaughter and food safety and hygiene offences: definitive guideline”. This is applicable in England and Wales to all sentences after 1 February 2016, notwithstanding the date of the offence. It was produced with a view to achieving greater consistency in this area of sentencing, when the level of offending was low and many judges had little experience in this area. This was all against a background in which there was a widespread view that the sentences imposed on large corporate offenders were far too low. The guideline provides a range of fines appropriate to particular offences and categories within each offence indicative of seriousness. There is a starting-point (Step one) for each category, from which the sentencer can start calculating a provisional sentence. Further features of the offence or offender, which are regarded as aggravating or mitigatory factors, will be taken into account (Step two). There are then a number of other factors which may require a final adjustment to the level of fines. [14] Step one concerns, first, a determination of the offence category by reference to culpability and harm factors set out in tables. “Very high” involves a deliberate breach or flagrant disregard of the law. “High” is either that the offender fell “far short” of the appropriate standard by, for example, allowing breaches to subsist over a period of time, or a “serious and/or systemic failure within the organisation to address risks”. “Medium” would include a situation where a system was in place, but it was not sufficiently adhered to or implemented. Secondly, Step one involves identification of a category based on the risk of harm created by the offence. This assessment requires a consideration of both the seriousness of the harm and the likelihood of that harm arising. Seriousness will be at Level B if the harm risked is physical or mental impairment which, whilst not involving lifelong dependency on thirdparty care (Level A), has a substantial and long-term effect on the victim’s ability to carry out day-to-day activities or on his or her ability to return to work. If the likelihood of harm is “high” then it will fit into harm category 2. If it is “medium”, then it would be category 3. Two further factors have to be considered before fixing upon a category. The first is whether the offence exposed a number of persons to the risk. The second is whether the offence caused significant harm. Either can involve moving the harm category up (but not down). [15] Step two involves the selection of a table within which to place the offender. These are fixed by reference to levels of turnover. The “large” table is for organisations with a turnover of £50 million or more. However, there is a caveat that, in the case of “very large organisations”, it may be necessary to move outside the range in order to achieve a proportionate sentence. The sentencer has to reach a starting-point in accordance with the appropriate table. [16] As will be seen, the sheriff selected “high” culpability and harm category 2. For a large organisation, this produces a starting-point of £1,100,000 and a

07/12/16 4:54 PM

2016 S.C.C.R. Scottish Power Generation Ltd v HM Advocate

575

range of £550,000 to £2,900,000. However, the task for the sentencer is then to determine where, within the range, the sentence should lie. This involves a consideration of any mitigatory factors (eg, no previous convictions, voluntary steps to remedy the problem, co-operation, good health and safety record) or aggravating features (eg, previous convictions, cost-cutting at the expense of safety, poor health and safety record). [17] Once all of this has been done, there must be a consideration of certain listed financial factors to ensure that the fine is proportionate. Step three requires checking whether the fine is proportionate to the overall means of the offender. The stated principle is that the fine must be “sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation”. This is derived from dicta in some of the recent cases in England (infra). Steps four and five (and seven to nine) are not relevant for present purposes. Step six is the reduction for an early plea.

Mitigation

[18] It was submitted to the sheriff that the breach was localised and the case was one in which there had been an unexplained failure in a system. It was accepted that the appellants had failed to have a system which adequately managed and monitored the status of the valve, but it was only one of 280 located over the four plants. It was accepted too, that, if the valve wheel was to be turned, the risk of harm was “high”. However, that risk only involved a few maintenance engineers. The appellants had a well-resourced system for the management of health and safety, which it took very seriously. They had suspended work immediately after the accident and had fully co-operated with the Health and Safety Executive in their investigations. [19] It was the contention of the appellants that the sheriff should not have any regard to the 2015 Guideline. Only guidelines approved by the High Court, such as the former (2010) Guideline, (endorsed in HM Advocate v Discovery Homes (Scotland)) could be regarded as relevant. The sheriff ought to follow the principles set out in R v Balfour Beatty Rail Infrastructure Ltd which had been followed in HM Advocate v Munro & Sons (Highland) at paras.24 and 26; see also Scottish Sea Farms v HM Advocate and Dundee Cold Stores v HM Advocate. The 2015 Guideline was mechanistic and formulaic (yet complex and confusing). It applied to English sentencing practice, whereas in Scotland the appropriate guidelines were in Scottish Sea Farms. [20] Despite having produced the 2015 Guideline for the sheriff’s information, the Crown commented that the tables were “not helpful”. Rather, the court should continue to have regard to the earlier (2010) Guideline.

The sheriff’s reasoning

[21] The sheriff reports that he determined that he should “have regard to the (2015) guidelines”. There was no reason for the levels of fine to be different north and south of the border. The ratio of the Scottish cases did not restrict the court to considering only guidelines in force when these cases had been decided. In any event, the factors to be considered according to the 2015 Guideline did not differ, to any material extent, from those in the Scottish cases, such as Scottish Sea Farms. [22] The sheriff considered that the circumstances of the offence demonstrated a breach of duty falling far short of the appropriate standard. The risk posed by the faulty valve had been high. An acceptable short-term measure, namely the red peril key, and the work order, had been put in place.

5344.indd 575

07/12/16 4:54 PM

576 A

Scottish Power Generation Ltd v HM Advocate 2016 S.C.C.R.

Nothing had been done about the work order. It had been cancelled for reasons which were not explained. The padlock had been removed prior to the work being carried out, again for unexplained reasons. The key had been taken from the office without any signature. The valve was in a dangerous condition from March 2013. When it was noted to be leaking, the system had failed to connect any new fault with that which had existed since 2009. The appellants had produced no explanation for any of these failures. [23] The sheriff took the view that these failures fell within the description of “high culpability” in the 2015 Guideline. The guideline described such a case as one where the offender “fell far short” of the appropriate standard by allowing breaches to subsist over a long period of time, or involved serious and/or systemic failures to address risks to health and safety. The sheriff did not consider that the circumstances fell into the “medium” category. Rather, there was no proper system in place at all. On one view, he reasoned, this case involved a deliberate breach of, or flagrant disregard for, the law, which would have put it into the “very high” culpability category. He was prepared to give the benefit of the doubt on this to the appellants in the absence of information on the level at which the relevant decision to remove the red peril padlock had been taken. The fact, that only a few employees might have been at risk, did not reduce the likelihood of harm. [24] The appellants were owned by Scottish Power Generation Holdings Ltd, a subsidiary of Scottish Power Ltd, who were in turn part of the multinational conglomerate Iberdrola SA. The sheriff found that the accounts produced by the appellants were of limited assistance. They were not consolidated and did not disclose the finances of the group of companies. The appellants’ turnover was just over £1.3 billion in 2014 and 2015, with the appellants sustaining losses for both years. It was accepted that the appellants could pay any fine which was imposed. [25] The sheriff reports that “applying the guidelines”, the company fell within the description of “very large”; being one with a turnover in excess of £50 million. The “starting point” for a fine for an offence of “high” culpability with a harm category of “2” was £1.1 million, with a range between £550,000 to £2.9 million. He then stated that, having regard to “the factors referred to above and the size of the company, together with the lack of any record and the steps which have been taken since to improve safety”, he selected a fine towards the upper end of the range. Had there been no mitigating factors, he would have moved outside the range, which would have been permitted if the offence had been a significant cause of harm, but he considered £2.5 million appropriate as a “starting point”. This was reduced to £1.75 million to take into account the early plea of guilty. He added that he looked at the level of fine “through the prism of the pre-guideline Scottish decisions” and, apart from the level, which was higher in the guideline, he considered that he took into account the factors which had been considered relevant in the Scottish cases. Submissions Appellants

5344.indd 576

[26] The first ground of appeal was that the sheriff had erred in applying the 2015 Guideline. Instead, in line with the plea-in-mitigation made, he ought to have followed the guidance set out by the High Court in Scottish Sea Farms v HM Advocate; Dundee Cold Stores v HM Advocate; HM Advocate v Munro & Sons (Highland); and HM Advocate v Discovery Homes (Scotland). The second ground, which was ancillary to the first, was that the guideline was mechanistic

07/12/16 4:54 PM

2016 S.C.C.R. Scottish Power Generation Ltd v HM Advocate

577

and formulaic. It was inconsistent with the discretionary nature of sentencing in Scotland. Application of the guideline was apt to interfere with the proper exercise of judicial discretion (HM Advocate v Graham). The court had warned against the dangers of applying guidelines from England and Wales too rigidly, particularly having regard to the existence of a different sentencing regime in Scotland (Milligan v HM Advocate). Guidelines involved a rigid or mechanistic approach not appropriate in Scotland, given the differences in sentencing purposes, practices and regimes between the two jurisdictions (Sutherland v HM Advocate). Although the 2010 Guideline had been adopted in part in a number of cases, including Scottish Sea Farms, it did not follow that the 2015 Guideline, which vastly increased the level of fines, should automatically be followed in Scotland. [27] The 2015 Guideline was retroactive in effect. It prescribed a mechanistic and formulaic approach. The 2010 Guideline had not accepted that the level of fine should be fixed by reference to turnover or profit. The 2015 Guideline was complex and sometimes confusing. There was a potential for double counting. Although tariffs were set for companies with a turnover up to £50 million, there was virtually no guidance on the nature of any uplift for “very large organisations”. In England, it was routine for the Crown to produce a schedule on the question of sentencing and for a response to be made by the defence (R v Friskies Petcare (UK)). Such involvement was contrary to the neutral position of the Crown on questions of sentence. Proofs in mitigation were relatively commonplace in England (R v Newton). That was in contrast to the Scottish position where they were seldom required. It was usually possible to agree the mitigatory and aggravating factors. The absence of appeals in Scotland was testimony to the consistency in the Scottish sentencing regime. This had enabled legal advisers to provide advice with a degree of confidence. These aspects of Scottish practice were important to the efficiency of the system. The flexibility in the Scottish approach was to be preferred (see e.g. HM Advocate v Svitzer Marine). The Crown had not sought the application of the 2015 Guideline, although they had brought it to the court’s attention. [28] The third ground of appeal was that, in any event, the sheriff had misapplied the 2015 Guideline. He miscategorised the offence as falling into the “high culpability” category and in assessing the likelihood of harm as “high”. He had therefore reached an inappropriate sentencing range. Having selected a starting-point of £2.5 million, he had failed to modify that under reference to the mitigatory features. He had failed to have sufficient regard to the sophisticated management structures which the appellants had in place to ensure the safety of a large workforce, consisting of 434 employees and contractors, who were operating in inherently dangerous circumstances. The risks were controlled by a highly developed health and safety management system. The competence of those responsible for that system had been demonstrated by the absence of previous convictions and a good safety record. This included the maintenance of plant, including valves. [29] This had been one of 280 similar valves. The system in place had not been impugned by the Crown. The sheriff had failed to conclude that the breach was localised and out of character. The appellants had pled to a failure to have in place an adequate system and not to failing to have any system in place. The breach more properly fell to be regarded as one of medium culpability, to the effect that systems had been in place but had not been sufficiently adhered to or implemented. In relation to the category of risk, the valve was not one in frequent use. It did not require to be in operation as part

5344.indd 577

07/12/16 4:54 PM

578 A

Scottish Power Generation Ltd v HM Advocate 2016 S.C.C.R.

of the ordinary functioning of the plant. The number of persons trained to use it was restricted to a small group. The likelihood of harm was therefore low. [30] The fourth ground was that, in all the circumstances, the sheriff, having accepted that there were no aggravating factors present and that all of the recognised mitigating factors were present, had selected a starting-point of ÂŁ2.5 million which was excessive. Respondent

[31] The respondent maintained that the broad principles set out in the 2015 Guideline were not new and repeated much of what had been contained in the 2010 Guideline, which the court had already stated could be noticed for the purposes of sentencing in Scotland. Nevertheless, the specific figures in the tables were not helpful for the Scottish sentencer. The guidance from existing Scottish case law remained extant. [32] As a generality, guidelines produced by the Sentencing Council were usually of assistance in Scotland. The purpose of sentencing for offences was universal. The objective was the same, namely punishment, retribution, deterrence and rehabilitation. It was desirable that there should be consistency in sentences throughout the different jurisdictions of the UK. The 2015 Guideline was particularly relevant where, as here, the offence was a statutory one common to both jurisdictions. [33] Sentencing Council Guidelines were often applied in other cases where the law was governed by UK statutes such as causing death by driving (Neill v HM Advocate; HM Advocate v McCourt; and HM Advocate v McKeever) and in indecent images cases (HM Advocate v Graham). The guidelines have been described as providing a useful cross-check for sentences in Scotland (Sutherland v HM Advocate) even if the court has repeatedly warned against too rigid an adherence to them and their application in a mechanistic fashion. That did not prevent them being considered where they were helpful. [34] In health and safety cases, the court had recognised the value of the 2010 Guideline (Scottish Sea Farms Ltd v HM Advocate). Although the 2015 Guideline introduced tables, which set out ranges of fines to be imposed and in that way could be described as mechanistic and formulaic, apart from that innovation, the broad principles repeated those of the earlier edition. There was nothing within the criteria said to be relevant in the guideline which would not be considered relevant to a sentencer in Scotland. As was said in Dundee Cold Stores v HM Advocate, in cases involving breaches of health and safety regulations, the court had to assess: first, the seriousness of the breach; secondly, the aggravating and mitigating factors; and, finally, the financial position of the offending company. The authoritative statement, detailing the purpose of fining a corporate entity, was that any fine should reflect the means of the offender, but should not be said to stand in any specific proportion to turnover or profit (Scottish Sea Farms Ltd v HM Advocate). The objective ought to be to achieve a safe environment for the public and bring that message home, not only to those who manage a corporate offender, but also to those who are its shareholders. Decision

[35] The focus in the appeal was primarily on the applicability of the 2015 Guideline from the Sentencing Council of England and Wales. The court has, on several occasions, encouraged sentencers to â&#x20AC;&#x153;have regard toâ&#x20AC;? guidelines from south of the border in appropriate cases, notably, but not exclusively, G

5344.indd 578

07/12/16 4:54 PM

2016 S.C.C.R. Scottish Power Generation Ltd v HM Advocate

579

those involving UK statutory offences. In Geddes v HM Advocate, for example, it was said (LJC (Carloway) at para.18) that: “[W]hile the court has encouraged sentencing judges to ‘have regard’ to the English Guideline in death by dangerous driving cases, it has not said that it should be interpreted and applied in a mechanistic way (Neill v HM Advocate [2014] HCJAC 67, Lady Clark at para.11). In order to ensure a degree of consistency in this jurisdiction, albeit paying due regard to local circumstances, it may be equally important to have regard to existing precedent.”

B There is no reason to depart from that approach in this case. However, although with many types of offence, sentencing decisions will be “instantaneous, if not quite instinctive . . . once the material is ingathered and understood” (Ferguson v HM Advocate, LJC (Carloway) at para.103 citing Gemmell v HM Advocate, LJC (Gill) at para.59), guidelines from the Sentencing Council will often provide a useful cross check, especially where the offences are regulated by a UK statute (Sutherland v HM Advocate, LJC (Carloway) at para.20). [36] There are over 200 High Court full- or part-time judges and sheriffs, each one of whom may be called upon to fine corporations for serious breaches of health and safety regulations. They will have varying degrees of experience in the selection of the appropriate fine. The contention from the appellants that Scotland represents a sentencing idyll, in which the courts have created a model of consistency universally admired by legal professionals specialising in the regulatory field, is not one which is immediately accepted. Guidelines on sentencing, whether in the form of an opinion from the High Court (Criminal Procedure (Scotland) Act 1995, ss.118(7) or 189(7)) or other approved source, can be helpful in achieving consistency, especially in fields not routinely encountered in the criminal courts. [37] In relation to the 2015 Guideline, there is no need to use it in a mechanistic or formulaic fashion. As will be seen, if, in this case, the sheriff was correct in identifying the levels of culpability and harm, the product is a broad range of between £550,000 and £2.9m, within which to work applying discretionary increases or decreases to or from the starting-point of £1.1m according to, respectively, any aggravating and mitigatory factors. Even then, having reached a figure at the end of that calculation, there remains the proportionality exercise based upon the offender’s turnover. In such circumstances, describing the guideline in pejorative terms relative to the generally looser Scottish approach to sentences is misplaced. Similarly, the somewhat startling submission, that the use of guidelines of the type under consideration here is productive of inconsistency and inefficiency, is simply not accepted. [38] As was pointed out in Geddes, it is important to look at existing Scottish precedent to discover what levels of penalty are appropriate, albeit that this task may involve a cross-check with any relevant guidelines. In the regulatory field, despite its relatively recent date, HM Advocate v Munro & Sons (Highland) was said (Lord Nimmo Smith at para.22) to have been the first case in Scotland in which the principles, to be applied in determining the level of fine for causing death as a result of a breach of s.3 of the Health and Safety at Work etc Act 1974 (employers’ duty to non-employees), were scrutinised in any depth. However, that is not to say that there were no prior instances in which fines had been levied. Those reported in brief in Green’s Weekly Digest from the 1990s, reflect the perception, noted by the Sentencing Council, that fines were

5344.indd 579

07/12/16 4:54 PM

580 A

5344.indd 580

Scottish Power Generation Ltd v HM Advocate 2016 S.C.C.R.

being set at remarkably low levels, even in cases involving death. Some of these point to a regime in which the High Court was restricting fines which sheriffs considered appropriate. For example, in Tate and Lyle Sugars v HM Advocate, a fine of £250,000 was reduced to £100,000 having regard to the levels of fine in England. The court looked at the profits of the appellants but considered that the sheriff had erred in taking into account the turnover of the group of companies of which they were a part. In Balmoral Group v HM Advocate, a fine of £100,000 was reduced to £35,000. By the 2000s, the perception at first instance must have remained that these levels were too low. In HM Advocate v BP Oil Grangemouth Refinery, two BP subsidiaries were fined a total of £1m by a sheriff in respect of a non-fatal (indeed non-injury) incident involving the leak of highly inflammable liquid or vapour from a fractured pipeline caused by over-pressurisation. This does not seem to have been appealed. [39] In Munro & Sons, the court noted HM Advocate v Transco, in which a fine of £15m had been levied on a utility company whose defective gas pipe had caused the deaths of an entire family. The court in Munro & Sons was considering an appeal against fines imposed by the High Court upon a family company (with a turnover of about £2m) of only £3,750 (discounted from £5,000) for a breach causing the death of one person and serious injury to another. The respondents had pled financial hardship relative to a fine of, say, £50,000. The court analysed the respondents’ financial situation before increasing the fine to £30,000 (discounted from £40,000). [40] The court in Munro & Sons cited with approval the approach of the Court of Appeal in R v Balfour Beatty Infrastructure Services (p.370), in which Lord Phillips CJ cited (at para.22), with approval, the judge at first instance’s summary of principles derived from R v F Howe and Son (Engineering) including a view that, historically, fines for breaches of s.3 had been “too low”. Although it was not possible to say that a fine should stand in any specific relationship with turnover or net profit, the objective ought to be “to achieve a safe environment for the public and bring that message home, not only to those who manage a corporate defendant, but also to those who own it as shareholders”. That generality apart, the court identified a number of relevant factors to be used in determining the level of fine, including specific mitigatory and aggravating elements. Interestingly, Lord Phillips approved of a comment that consistency may not be a primary aim of sentencing in this area because of, it seems, the different levels of turnover and the desire to achieve proportionality. [41] Returning to the relationship of the fine to turnover, Lord Nimmo Smith in Munro & Sons quoted Lord Phillips’ remark (at para.42) that: “Knowledge that breach of this duty can result in a fine of sufficient size to impact on shareholders will provide a powerful incentive for management to comply with this duty. That is not to say that the fine must always be large enough to affect dividends or share price. But the fine must reflect both the degree of fault and the consequences so as to raise appropriate concern on the part of shareholders at what has occurred.” The reference to consequences is significant in distinguishing between cases where no injury has occurred, those where serious injury has resulted and those involving fatality. [42] Munro & Sons was followed by HM Advocate v Discovery Homes (Scotland), involving a fatal accident to an employee of a small building firm (£2.9m turnover) and a breach of s.2 of the 1974 Act. The ability of the respondents to pay a substantial fine was in issue. The court, which increased

07/12/16 4:54 PM

2016 S.C.C.R. Scottish Power Generation Ltd v HM Advocate

581

the £5,000 fine (discounted from £7,500) imposed by the sheriff, to one of £40,000 (£60,000) noticed the 2010 Guideline and stated (LJG (Hamilton) at para.17) that, notwithstanding that it only had statutory effect in England and Wales, the guideline would “no doubt, in the future be noticed for the purposes of sentencing on like offences in Scotland”. However, since the guideline post-dated the offence, it had to be disregarded. Its preceding consultation paper had emphasised the need to base any fine on turnover, but the court declined to follow that approach since neither party had advocated it. The court nevertheless noted the material increases in fines for this category of offending, illustrated in L H Access Technology v HM Advocate, which was again a fatal case, in which fines of £240,000 (discounted from £300,000) were imposed on companies with turnovers of between £2.7m and £3.7m. In each case, the financial position of the companies was an important factor in determining the level. [43] Discovery Homes (Scotland) had made it clear that the High Court expected sentencers to take note of the 2010 Guideline. The matter was revisited in Scottish Sea Farms v HM Advocate. This involved a double fatality, with two employees having been suffocated, and two others being injured. The High Court reduced the fine from £600,000 (discounted from £900,000) to £333,335 (£500,000). In [so] doing, the court (Lady Dorrian at para.18) followed Munro & Sons in its endorsement of the principles in Balfour Beatty Rail Infrastructure Services. In particular, the need to achieve a safe working environment and to bring that message home, not only to the management, but also to the shareholders, was emphasised. The court took the view that this approach was reflected in the 2010 Guideline. The relevant aggravating and mitigatory factors were set out in the guideline which the courts in Scotland ought to notice. [44] Fines of £135,000 (discounted from £200,000) and £66,000 (£100,000) which had been imposed by a sheriff were reduced to £50,000 (£75,000) and £44,000 (£66,000) in Dundee Cold Stores v HM Advocate. That was a non-fatal case, involving a severe injury to an employee who fell through a roof. According to the court (at para.24), the sentencer must first assess the seriousness of the case, the consequences of the breach (especially fatality) being an important consideration. The initial assessment required to be adjusted under reference to any aggravating or mitigatory factors noted in Scottish Sea Farms and hence the 2010 Guideline. Finally, the financial position of the offender must be taken into account. In that regard, it is curious that the court in Dundee Cold Stores, whilst being highly critical of the sheriff, made little reference to the turnovers of the three companies concerned and the part they played in the sentencing exercise. As with several of the Scottish cases, it is a bit of a mystery how the substituted fine levels were arrived at other than by “instinctive synthesis” (Gemmell v HM Advocate, LJC (Gill) at para.59, comparing Markarian v R). [45] Returning to cases at first instance, in HM Advocate v Svitzer Marine, a fine of £1,700,000 (reduced from £2,000,000) was imposed upon a subsidiary of the AP Moller-Maersk shipping conglomerate for a breach of s.2 of the 1974 Act, leading to the sinking of a tug carrying out towing operations on the Clyde. Three crewmen were drowned. The fine followed a s.76 plea, but the sentencing judge limited the level of discount because of the very large sums of money involved. Leave to appeal was refused at first and second sift. [46] In relation to the appropriate level of fine, the recent Scottish cases illustrate that there is a significant difference between cases in which the offender is a relatively small company in terms of turnover (Munro & Sons;

5344.indd 581

07/12/16 4:54 PM

582 A

5344.indd 582

Scottish Power Generation Ltd v HM Advocate 2016 S.C.C.R.

Discovery Homes (Scotland); L H Access Technology; and possibly, Dundee Cold Stores) and those where the offender is, or is part of, a large corporation (BP Oil Grangemouth Refinery; Svitzer Marine; cf, the much earlier Tate and Lyle Sugars). It may be said that Scottish Sea Farms involved a relatively low fine for a company with a large turnover (£94m) but it was decided before the 2015 Guideline. Having regard to these cases, and recognising also the significant difference between fatal and non-fatal cases, this court would have been considering a starting-point (before any discount for an early plea of guilty) of about £1.5m in this case. That has regard to the serious nature of the breach, which the court analyses in much the same way as the sheriff, the mitigating circumstances, the serious injury to the employee, the absence of any fatality but then the fact that the appellants are part of a multi-national corporation. [47] Returning therefore to the significance of the guideline, where the court has said that regard should be had to guidelines in England and Wales in a particular field, such as UK health and safety regulation, it means to such guidelines as are in current use and would be applied by the courts of England and Wales to the offence, had it happened in that jurisdiction. It would be bordering on the ridiculous to apply a guideline which was out of date. Accordingly, the appropriate guideline to have regard to, as a cross-check, in this case, is the 2015 version. [48] The sheriff did have regard to the 2015 Guideline. Exactly how he did this is not entirely clear. He states, for example, that, “Applying the guidelines” a particular figure and range is reached. The calculation which follows may be seen as an attempt to follow the numbered steps in the guideline through to the final figure. In that respect, the sheriff’s attempt may be flawed. If the sheriff was applying the guideline, once he had completed Step two (which he did), he ought to have identified the mitigatory and aggravating factors and adjusted the “starting point” up or down accordingly. This could not have involved moving “out of the range”, as the sheriff had contemplated. A figure ought to have been reached and only then could the Step three proportionality check relative to means have been carried out to adjust the figure. Such an exercise is not that described in the sheriff’s report. [49] On the other hand, it may be that, having reached the initial Step two figure and range, the sheriff was just using it as a general cross-check on his ultimate selection of £2,5000,000 as a “starting point”, as those words are understood in Scottish sentencing practice and rather than a term of art in the guideline. The problem with that perhaps generous analysis is that the sheriff does not explain how, looking through the prism of pre-guideline Scottish decisions, as he put it, he arrived at £2,500,000. Certainly, there is no precedent cited by him which would justify such a figure in a non-fatal case. As the sheriff recognises, insofar as the guideline may be applied, it will produce a far higher level of fine than those in the Scottish cases cited to him. The reasoning of the sheriff is therefore, to this extent, uncertain. [50] If the guideline were used as a method of calculating the appropriate fine, the court, as already noted, would have reached the same figures as the sheriff by applying the “high” culpability factor and the harm category 2. The contentions to the contrary by the appellants are rejected. This produces a starting-point of £1,100,000 and a range of £550,000 to £2,900,000. However, the court would then have to have regard to the low number of employees exposed. This would not have decreased the starting-point figure. The fact that the offence was a significant cause of actual harm could have increased it and may even have moved the category to level 1, thus producing a starting-point of £2,400,000 and a range commencing at £1,500,000.

07/12/16 4:54 PM

2016 S.C.C.R. Scottish Power Generation Ltd v HM Advocate

583

However, the mitigatory factors would have kept the figure to the lowest level of that range. If that range were not selected, although these factors would have reduced the figure from the starting-point, the “very large” nature of the appellants’ parent group would, at Step three, have prompted a significant increase back to, and probably greater than, the starting-point of £1,100,000 in order to meet the test of the fine being “sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation”. [51] In short, using the 2015 Guideline as a cross-check to the figure of £1,500,000, the sum selected as a “starting point” in conventional Scottish sentencing parlance, prior to a discount for the early plea, seems reasonable. In relation to that level of discount, the court has noted the approach of Lord Turnbull in Svitzer Marine that a full one-third discount would involve too substantial a sum of money relative to the total (see Gemmell v HM Advocate, LJC (Gill) at para.74). In Svitzer Marine the discount selected on a s.76 plea was 15 per cent (of £2m). The fine here is lower, but approaching the matter in a similar way to Lord Turnbull, a discount at a slightly higher level of 20 per cent would seem reasonable to reduce the starting-point of £1.5m by £300,000 to produce a fine of £1,200,000. [52] The appeal is accordingly allowed. The court will quash the figure of £1,750,000 and substitute one of £1,200,000.

5344.indd 583

07/12/16 4:54 PM

SUMMARY Lyons v Fraser (Procurator Fiscal, Selkirk)—[2016] HCJAC 92—29 July 2016 Contempt of court—Failure to appear as witness—Whether can be purged by subsequent appearance B

The petitioner failed to appear as a witness at a trial because he “did not wish to incriminate the accused”. He was arrested and appeared at a later diet at which he gave evidence incriminating the accused. He was found guilty of contempt. He appealed to the nobile officium on the ground that he had purged his contempt by subsequently appearing and giving evidence. In giving the opinion of the court (the Lord Justice General (Carloway), Lady Paton and Lady Smith) refusing the appeal the Lord Justice General said: ... [3] Contempt of court is constituted by conduct that denotes wilful defiance of or disrespect towards the court, or wilfully challenges or affronts the authority of the court (Robertson and Gough v HM Advocate, 2008 J.C. 146, LJC (Gill) at para.29). There is no doubt that a failure to appear to give evidence at a trial normally constitutes contempt, where that failure is deliberate (Petrie v Angus (1889) 2 White 358, LJC (Macdonald) at p.363). The fact that the witness subsequently appears will not necessarily affect that position (HM Advocate v Bell, 1936 J.C. 89, LJC (Aitchison) at p.92). In this case the petitioner deliberately did not turn up to court in order to avoid giving evidence against the accused. The finding of contempt was in those circumstances entirely justified. [4] The concept of purging a contempt applies in cases where there is, or may be, prevarication. In that situation, the court, in its discretion, may allow the witness to continue to give evidence. It may ultimately hold that the contempt has been “purged” (Robertson and Gough, LJC (Gill) at para.43). The concept has no application here. In any event, it is not suggested that there was any error in the exercise of the sheriff’s discretion. . . . For the petitioner: Findlater, instructed by Wardlaw, Stephenson Allan, Solicitors, Galashiels. For the respondent: Fairley QC, AD.

G 584

5344.indd 584

07/12/16 4:54 PM

SUMMARY Burke v Laing (Procurator Fiscal, Tain)—[2016] SAC (Crim) 31—5 October 2016 Sentence—Road traffic—Causing serious injury by dangerous driving—Falling asleep at wheel—Whether community payback order excessive—Road Traffic Act 1988 (c.52), s.1A—Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c.10), s.143(2) The appellant pleaded guilty of causing serious injury by dangerous driving, in that he fell asleep while driving and his car collided with another vehicle whose driver and passenger suffered serious injury in the form of bruising and, in the case of the passenger, a fractured collar bone. The appellant sustained more serious and lasting injury and had to be airlifted to hospital. He was sentenced to a community payback order requiring him to do 200 hours unpaid work (reduced from 300 to take account of the plea and disqualified from driving for 28 months (reduced from three and a half years to take account of the plea) and until he passed the extended driving test. The sheriff submitted that a custodial sentence should have been in contemplation. In delivering the opinion of the court (Sheriff Principal Stephen QC and Sheriff Morris QC) allowing the appeal Sheriff Principal Stephen said: ... [7] . . . The court is obliged to take into account the nature of the injuries and the fact that the offender himself suffered most severely from the effects of the collision. The seriousness of his injuries is a factor which can be regarded as mitigatory. [8] The offence of causing serious injury by dangerous driving in contravention of the Road Traffic Act 1988, s.1A is a relatively recent offence. The provision has effect in relation to driving offences occurring after 3 December 2012. No Scottish cases were cited and we are not aware of Scottish decisions which consider this offence. R v Smart, [2015] EWCA Crim 1756, an English Court of Appeal decision was referred to by the appellant (Tab 5 of the appellant’s bundle). In that case the dangerous driving involved prolonged and, therefore, dangerous overtaking whereby an oncoming motor cyclist sustained very serious injuries including a below-knee amputation. The appeal court considered the definitive guidelines issued by the Sentencing Guidelines Council in England and Wales. The English decisions make reference to the sentencing guidelines for cases of causing death by dangerous driving as there is no sentencing guideline in place for this recent offence. The appeal court in Smart had regard to the sentencing guidelines although it appears that the sentencing judge had not. Likewise, in this case it appears that the sheriff was not referred to the sentencing guidelines which apply in England and Wales. Nevertheless, they form a relevant consideration in this jurisdiction if approached with care. We agree with the submission made on behalf of the appellant that had the sheriff been referred to the guidelines, as we have, that the circumstances of the current offence would fall within level 3 which relates to driver fatigue or “driving when knowingly deprived of adequate sleep or rest”. Level 3 is the least serious category in the definitive guidelines for causing death by dangerous driving. [9] However, each case turns on its own facts and circumstances. In assessing the level of the appellant’s culpability it is necessary to consider whether there are any aggravating and mitigating factors with regard to both the offence and the offender. There are no further aggravating features of the

585

5344.indd 585

07/12/16 4:54 PM

586 A

Burke v Laing (Sy)

2016 S.C.C.R.

driving such as prior excessive speed; overtaking when it is dangerous; drink or drugs which appear in other reported cases. Indeed, the appellant has an unblemished driving record and no previous convictions at all. He has expressed remorse and concern for the consequences of him falling asleep at the wheel. We take the view that the sheriff may also have fallen into error in considering the type of road to be an aggravating factor. The character of the road being one with a single undivided carriageway in each direction is a matter of fact. In the absence of other aggravating features relating to the appellant’s driving, in this case the type of road has relevance in the context of the consequences of the collision namely the injuries sustained by the parties involved. It is a matter of speculation that injuries would be either lessened or more serious if the accident had occurred on a motorway where there is a central reservation but where the volume of traffic and speed would be expected to be higher. The court must sentence having regard to the facts and the actual consequences of the dangerous driving which involves an assessment of the injuries suffered. Accordingly, we consider that the sheriff erred in assessing the appellant’s driving as “moving towards the upper end of dangerous driving”. [10] We therefore consider there is force in the argument that the sentence imposed is excessive in the sense that the circumstances do not point to a custodial sentence being the appropriate sentence. If a custodial sentence is not called for then a community payback order should not be imposed given that it is an alternative to custody. In these circumstances we propose to quash the community payback order and substitute a financial penalty of £1,500. In keeping with the sheriff’s decision to apply a discount of one-third we will reduce that to £1,000. Similarly, a period of disqualification is obligatory and carries with it the requirement that the extended test of competence to drive be passed. We take the view that a period of disqualification of two years is appropriate standing the appellant’s past exemplary driving record. We will therefore quash the disqualification and re-impose a period of two years with the requirement, of course, that the extended test of competence to drive be passed before the appellant can re-apply for a driving licence.That requirement satisfies any public safety and protection concerns. For the appellant: Duff. For the respondent: Carmichael AD.

5344.indd 586

07/12/16 4:54 PM

Compatibility issue Statement of uncontroversial evidence—Whether compatible with European Convention on Human Rights Ashif v HM Advocate 437

Road traffic—Causing serious injury by dangerous driving— Falling asleep at wheel—Whether community payback order excessive Burke v Laing (Sy) 585

Contempt of court Failure to appear as witness—Whether can be purged by subsequent appearance Lyons v Fraser (Sy) 584

Solemn procedure Judge’s charge—Prior inconsistent statements—Failure to direct jury on limited purpose for which statements can be used Moynihan v HM Advocate 548

*657940*

2016 S.C.C.R. 437–586

SCOTTISH CRIMINAL CASE REPORTS

Double jeopardy Charge of assault and murder—Accused convicted under deletion of averments of murder—Whether acquitted of murder HM Advocate v Coulter 464

December 2016 2016 S.C.C.R. 437−586

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

496

Ashif v HM Advocate 437 Brown v McPherson 564 Burke v Laing (Sy) 585 Clyde and Co. (Scotland) LLP v Richardson 480 Dean v Lord Advocate 499 HM Advocate v Coulter 464 HM Advocate v ER 490

Laughlan v Harrower Lyons v Fraser (Sy) McMultan v HM Advocate Moynihan v HM Advocate O’Neill v HM Advocate Scottish Power Generation Ltd v HM Advocate

544 584 496 548 558 569