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Objections to evidence must be raised in line with Act: Appeal Court

12 January 2018

It is not enough to invoke the right to a fair trial, to raise an objection to admissibility of evidence at trial of which notice was not given at a prelimiinary hearing, then Criminal Appeal Court has ruled.

Lord Justice Clerk Lady Dorrian, Lord Menzies and Lord Turnbull made the ruling in refusing an appeal against conviction by Pradeep Bhowmick on a charge of being concerned in supplying cocaine.

The appellant had died but his brother and sister had been permitted to continue the appeal in his place.

At trial, objection had been taken to evidence of the accused's detention, and the subsequent recovery of his mobile phone, on the basis of lack of reasonable grounds to suspect possession of a controlled drug. This had not been raised by preliminary issue as required by s 79 of the Criminal Procedure (Scotland) Act 1995, but the judge allowed it to be heard. After hearing the evidence she ruled that the accused had been unlawfully detained but that the situation had been urgent and the police were entitled to preserve the crime scene, including the phone which had been lying there.

On appeal the Crown raised the question whether the judge had been entitled to hear the objection. The judge reported that she was aware of the terms of s 79A of the Act, by which an objection may not be raised for the first time at trial unless the court considers it could not reasonably have been raised before then, but explained that it had not been clear at the outset whether it was necessary to a fair trial that the objection be heard, and she decided to entertain it on its merits.

Delivering the opinion of the court, Lord Turnbull said that it was wrong to look at the restriction on the right to raise an objection at trial in isolation. "Any consideration of a fair trial issue would have to take account of the proceedings as a whole", he stated. "The process of disclosure, now governed by statute, enables the accused and his advisers to have a full understanding of the case to be led against him from an early stage, and long prior to service of the indictment...

"The requirement to raise an objection by way of preliminary issue in advance of the preliminary hearing has to be seen in the context of the whole structure for pre-trial preparation... There is nothing exceptional or onerous in a requirement to consider the disclosed material and its implications in advance of the preliminary hearing. Having done so, the accused and his advisers have ample opportunity to state any objections which they may wish to have heard...

"As noted above, even an objection raised at trial can be heard, subject to the court being satisfied that the party could not reasonably have raised it prior to that time. All of these measures, and the other aspects of the system identified, when taken along with the domestic law on the admissibility of evidence, contribute to the provision of a fair trial. It is inappropriate to examine any single factor in isolation."

He concluded: "In the present case the trial judge acted contrary to the legal requirements imposed upon her. She had no information which would have enabled her to conclude that the objection could not reasonably have been raised earlier. She was not invited so to conclude and she did not do so. There is no other dispensing provision attached to the mandatory requirement provided for by s 79A(4). In these circumstances the statutory provision required the judge to refuse leave to raise the objection and she ought not to have entertained it."

It followed that there had been no miscarriage of justice and the appeal was refused.

Click here to view the opinion of the court.


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