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Muddying the waters on admissibility of hearsay ev

1 August 03

Latest criminal cases, including hearsay; cross examination; trial within a trial; road traffic

by Andrew Lothian

The cover of a recent “New Statesman” proclaimed, with reference to a piece inside by Nick Cohen, “661 Crimes - That’s how many new offences Labour has created since 1997”.  When I was a boy and the Lord Justice General was Clyde, the only crimes known to the Law of Scotland were theft, various escalations of breach of the peace gone wrong up to and including murder and, in certain parts of the country, shameless indecency.  We will not find examples of all 661 in what follows, but I mention the article because it is very good (NS 7 July 2003) and because it might help in the argument for an increase in legal aid fees.

All of the following citations are to GWD 2003.

Admissibility of hearsay evidence

Part 16 contains three cases dealing with the admissibility of hearsay evidence and the interplay of art. 6 of the ECHR and s. 259(2)(c) of the Criminal Procedure (Scotland) Act 1995.  In each case, the appeal court was constituted by the same three judges, the Lord Justice Clerk, Lord MacLean and Lord Hamilton.

Daly v HMA (503) was an appeal against conviction for aggravated assault.  The defence incriminated M, one of the Crown witnesses, who was present when the trial began but then disappeared.  He could not be traced and eventually the sheriff granted an opposed Crown motion to allow the terms of a statement allegedly given to the police by M to be admitted in evidence in terms of the above section.  The appeal was on the basis that the sheriff had been mistaken in holding that he had no discretion about admitting the evidence and that its admission was in breach of the appellant’s art.6 rights.  The appeal court rejected these contentions, holding that once the statutory requirements had been satisfied the sheriff had no discretion to refuse the admission of the evidence.  This was really a piece of ordinary statutory interpretation and indeed it is difficult to see how such discretion could possibly exist. Even the widest discretion having to be exercised along the lines of something other than the judge’s preference at the time.  So far as the ECHR point was concerned, since there was clear evidence from the victim and another witness that the appellant was one of the perpetrators and the presiding sheriff gave directions which were not criticised as to how the jury should approach hearsay evidence, the admission of hearsay evidence was not of such materiality as to constitute a breach of the appellant’s rights.

McKenna v HMA (504) was an appeal by M against conviction for the assault and murder of X. At the time of the murder M was in the company of C, who gave a statement to police officers and was also interviewed twice on tape.  He said that he had been a witness to the assault and blamed M, who he said had also admitted the murder to him. C died before M’s trial.   After C’s death M lodged a special defence incriminating him.  The appeal was refused, the court dealing with the points made on M’s behalf in the following ways.

The trial judge did not have a general discretion to refuse to admit such evidence.  So long as the conditions set out in the section were satisfied, unless the court was satisfied that doing so would render the trial unfair and thus contravening the accused’s art. 6 rights, the evidence should be admitted.

It could not be said that M’s conviction was based to a decisive extent on C’s statements, M having made statements to others after the event and admitting murder to two other witnesses, as well as there being incriminating forensic testimony.

The trial judge had directed the jury properly about the manner in which they should approach the evidence; in particular it was emphasised that it was no part of the judge’s role to tell the jury what weight should be placed on particular parts of the evidence, that being the jury’s function in the light of the general directions as how to approach it properly given by the judge.

The third case is N v HMA (505) referred to supra.  This was an appeal against conviction on charges of shameless indecency and unlawful sexual intercourse involving three sisters, V, E and A.  The first trial was deserted  pro loco et tempore after V and E had given evidence.   When the case came to trial again, V was unfit to testify.   Following McKenna v  HMA 2000 SLT 508 the trial judge held that he had no discretion to refuse, granted a Crown motion to admit a transcript of V’s evidence (see  HMA v N 2000  SCCR 431.)    In the appeal two main points were argued.   The first was that what the section allowed was the admission of “evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings” and what had been admitted here was a statement made by V while giving oral evidence.  The appeal court, while having reservations about the way the section was expressed, held that the evidence was properly admitted, the “criminal proceedings” referred to being those ongoing and not other criminal proceedings. the particular phrase reading “otherwise than while giving oral evidence in court in criminal proceedings shall be admissible in those proceedings…”  However the appeal was allowed, the court holding that in the whole circumstances the allowing of this evidence did infringe the appellant’s ECHR right to a fair trial.  It was observed by the court that the trial judge had a continuing duty to consider the fairness of hearsay evidence admitted under sec. 259 as the trial progressed and if the evidence did go to the jury to give explicit directions about it.  The Lord Justice Clerk was of the opinion that the discretion which the court had previously had to exclude hearsay evidence had been removed by the section.  I think it is fair to say that the prevailing situation is not one about which anyone is especially happy.

Material questions

Another appeal of some substance is Tant v HMA (686) in which the appellant had been convicted of rape in respect of one woman (“Y”) and indecent assault in respect of another (“X”) in April and November 2000.  The second charge was actually one of attempted rape but the jury found that not proven. Before cross-examining X, the appellant had applied for permission in terms of the Criminal Procedure Act 1995 sec 275(1)(c) to ask whether she accepted that she and Tant had had sexual intercourse with her consent some three months previously.  The trial judge refused the request as being liable to open up the sort of evidence which the act sought to exclude.  However the appeal court allowed the appeal to the extent of quashing this conviction, holding that the question sought to be posed was one material to Tant’s defence and that to refuse to allow it was contrary to the interests of justice.  It was also argued, but without success, that the trial judge’s decision excluded material which might have had an effect on the jury’s assessment of credibility and that accordingly the other conviction should also be quashed.

Trial within a trial

Jeffrey v Higson (618) takes another look around the estate that is the trial within a trial: briefly, the magistrate had refused to allow one and the appeal court said that she should have.  Thompson v Crowe 1999 SLT1434 was considered and commented upon.  Among other things to which the appeal drew attention to was the fact that the ratio of that case applies to summary as well as solemn procedure, that the fact that a trial within a trial adds to the length of proceedings must be accepted in the interests of justice (one in the eye for the bean counters, this), that the procedure allows the accused to give evidence in a limited context and that broadly speaking the procedure is necessary whenever a preliminary matter of fact has to be established in a certain way before subsequent evidence becomes admissible.

Road traffic

Moving to the world of road traffic, it is, I suppose, a tribute to human ingenuity that fresh points under the Road Traffic Act 1988 continue to be thought up.  In Lammey v Brown (646), where a breathalyser revealed a count of below 50, a police constable told the accused that in the circumstances he might have his breath specimen replaced by one of blood or urine, the type of specimen to be decided by the officer, then before the election was made, oh horror, the officer told the accused that if he did the specimen would be blood.  Ah well, as the act does not say that this should not happen, and anyway it was not unfair, the appeal failed.  On a much more grave matter, Sharp v HMA (698) was an unsuccessful appeal against a sentence of seven years’ detention imposed on a first offender aged 18 at the time of the offense for causing death by dangerous driving.  The facts were that the appellant had deliberately driven at speed on the wrong side of the road at another car, swerving at the last moment and mounting the pavement, killing one young person and seriously injuring two others.   In spite of the fact that the appellant was of excellent character and in employment and had shown remorse, the sentence was held not to be excessive.  The court laid particular stress on the fact that the appellant had deliberately courted danger.

And finally…for those of a philosophical bent who enjoy such questions as “Is a cricket bat in which first the handle and then the blade have been replaced the same bat that we started with?”,  McAuley v Brown (506) confirms that, for the purposes of the Criminal Law (Consolidation)(Scotland) Act 1995 sec. 49, a lock knife with a broken locking mechanism is not only a broken lock knife but, inadvertently, a folding pocket knife and as such not struck at by the act.