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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Wimpey Homes v. Procurator Fiscal [2003] ScotHC 16 (22 April 2003) URL: http://www.bailii.org/scot/cases/ScotHC/2003/16.html Cite as: [2003] ScotHC 16

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Wimpey Homes v. Procurator Fiscal [2003] ScotHC 16 (22 April 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Macfadyen Lord Carloway Sir Gerald Gordon	Appeal No: XJ295/02 OPINION OF THE COURT delivered by LORD MACFADYEN in STATED CASE in causis GEORGE WIMPEY UK LIMITED Appellants; against PROCURATOR FISCAL, Hamilton Respondent; and BARBARA ANN SWEETIN Appellant; against PROCURATOR FISCAL, Hamilton Respondent: ______

 

 

Appellant: R. Anthony, Q.C., A.D.; Crown Agent

Respondents: Brailsford Q.C.; Campbell Smith: Shead; Drummond Miller

 

22 April 2003

1. The appellants, George Wimpey UK Limited ("Wimpey"), and Barbara Ann Sweetin ("Mrs Sweetin"), were charged on summary complaint that on various occasions between 1 August 1998 and 5 June 1999 in the course of a property development business they made certain false and misleading statements about prescribed matters ("the statements"), contrary to section 1(1) and (2) of the Property Misdescriptions Act 1991 and Article 2 of the Property Misdescriptions (Specified Matters) Order 1992. Mrs Sweetin was an employee of Wimpey, and it was through her that they were said to have made the statements. The statements are said to have been made to a number of named persons who were prospective purchasers of dwellinghouses erected or to be erected at Wimpey's development at Avonlea Gate, Hamilton. The statements were averred to have been to the effect that:

"houses belonging to Scottish Homes at Highstonehall Road situated adjacent to said Avonlea Gate, Hamilton, were to be demolished and that said demolition would occur during 1999".

The averment in support of the falsity of the statements was in the following terms:

"the truth being that said houses were not scheduled for demolition during the period stated, and there were no plans for their demolition and that they have not been so demolished".

2. In each of the stated cases, five questions are proposed for the opinion of the court, but the issue raised can be formulated more simply. In short, the appellants contend that there was insufficient evidence to justify a finding that the statements were false in the respects averred. It was accepted on the appellant's behalf that there was sufficient evidence of the making of statements to the effect libelled. It was not disputed that the statements were about prescribed matters within the meaning of the relevant statutory provisions. What was disputed was that there was sufficient evidence to support a finding that the statements were false in the respects libelled.
3. Mr Brailsford, who appeared for Wimpey, submitted that to make out the case of falsehood set out in the libel the respondent required to prove (1) that the houses belonging to Scottish Homes at Highstonehall Road situated adjacent to Avonlea Gate were not scheduled for demolition during the period stated, (2) that there were no plans for the demolition of these houses, and (3) that they had not been so demolished. Although he initially presented the averments which required to be proved as comprising those three elements, he accepted that the first two elements might be regarded as two ways of expressing the same point. He accepted that there was ample evidence that the houses were not actually demolished. The critical issue was therefore whether there was sufficient evidence that their demolition was not scheduled or planned.
4. As already noted, the statements libelled related to "houses belonging to Scottish Homes at Highstonehall Road situated adjacent to said Avonlea Gate, Hamilton". It was the falsity of the statements relating to those houses that formed the substance of the charge. The Sheriff, in finding in fact (2), referred to "an area of Highstonehall Road and Ewart Crescent facing the newly constructed houses which had boarded up houses", and adopted the term "the older houses" as a shorthand reference to the houses in that area. In findings (7), (9), (10) and (11) the Sheriff dealt with various aspects of the evidence, and concluded, in finding (11):

"The older houses referred to by the prospective buyers and by [Mrs Sweetin] in the course of their meetings were the houses belonging to Scottish Homes at Highstonehall Road and Ewart Crescent, situated adjacent to said Avonlea Gate, Hamilton, and the same houses referred to as being in Ewart Crescent by [Mrs Sweetin] in the course of her statement ..., by the said Councillor Falconer [who wrote to Scottish Homes about the matter], by the said Fiona Martin [who interviewed Mrs Sweetin] and by the said Mrs Pat Harvey of Scottish Homes."

The Sheriff then found:

"(12) That between August 1998 and January 1999 the older houses were not scheduled for demolition during 1999, there were no plans for their demolition and they have not been so demolished."

5. In his Note, the Sheriff states (at page 10 of the Stated Case):

"... I was satisfied there was sufficient evidence to link the evidence which Mrs Harvey gave regarding houses in Ewart Crescent to the houses belonging to Scottish Homes spoken to by the prospective purchasers.

Firstly, there was the evidence of the Trading Standards Officer who looked at the photographs and identified photograph number 6 of the site, as showing Ewart Crescent. Secondly, there was the evidence contained in the interview with [Mrs Sweetin], who said in relation to the older houses which she mentioned that a local had said to her that she was sure the houses were coming down because she wanted to buy her Council house in Ewart Crescent (across the road from the Wimpey development at Avonlea Gate) and Scottish Homes had refused to allow her to buy it ...

Thirdly, there was the letter of complaint dated 7^th December 1999 from the witnesses John Cole and Lee-Ann McCumisky which was produced by the defence and shown to these witnesses ... which stated in gremio in paragraph 2 that the accused also claimed that the residents of Highstonehall Road and Ewart Crescent had already received notification (i.e. of the demolition) two weeks prior.

Finally, there was the link that prospective purchasers had been referred in relation to this matter to the Trading Standards Authority by Councillor Alan Falconer who of course was the author of the letter to Scottish Homes of 8^th March 2000 to which Mrs Harvey was replying in her letter of 14^th March ... when she referred to the Scottish Homes houses at Ewart Crescent.

I considered that there was sufficient from this accumulation of evidence and links to satisfy me that the Scottish Homes houses spoken to by Mrs Harvey were indeed the Scottish Homes houses which had been referred to by [Mrs Sweetin] in her statement and by the prospective purchasers in their evidence and referred to generally in the complaint as "at Highstonehall Road situated adjacent to said Avonlea Gate, Hamilton".

6. Mr Brailsford submitted that the Sheriff's reasoning was flawed. None of the evidence on which he founded justified the conclusion that it had been proved that "houses belonging to Scottish Homes at Highstonehall Road situated adjacent to Avonlea Gate ... were not scheduled for demolition during the period stated, ... [and] there were no plans for their demolition". The letter from the complainers referred to in finding (7) related to the statements made by Mrs Sweetin, not to whether the Highstonehall Road houses were scheduled for demolition. The record of the interview with Mrs Sweetin mentioned in finding (9) related exclusively to Ewart Crescent, not Highstonehall Road. Mrs Harvey's letter, referred to in finding (10) likewise related exclusively to Ewart Crescent, not Highstonehall Road. Nothing in that letter could properly be construed as evidence of the true state of affairs with respect to the houses in Highstonehall Road. The Sheriff was no doubt entitled to conclude that the complaints related to the whole category of houses labelled by him "the older houses", namely Scottish Homes houses both in Ewart Crescent and in Highstonehall Road, but there was no justification for construing Mrs Harvey's letter as referring not only to the houses in Ewart Crescent, but also those in Highstonehall Road. The respondent had offered to prove, in relation to the Scottish Homes houses in Highstonehall Road, that the truth was that they were not scheduled for demolition and their demolition was not planned. No evidence in support of that averment had been led. Mrs Harvey's evidence related only to the houses in Ewart Crescent.
7. Mr Brailsford also advanced a subsidiary submission that, if Mrs Harvey's evidence could be regarded as an adminicle of evidence as to the falsity of the statements relating to the houses in Highstonehall Road, that evidence was uncorroborated, because evidence that the houses had not in fact been demolished did not support the conclusion that they were not scheduled for demolition.
8. Mr Shead, who appeared for Mrs Sweetin, adopted Mr Brailsford's submissions, and restated the first of his arguments in slightly different terms. The respondent, he submitted, had specified the houses to which the statements related as being "houses belonging to Scottish Homes at Highstonehall Road situated adjacent to said Avonlea Gate, Hamilton". It was in relation to those houses, and those houses alone, that it was averred that the truth was that they were not scheduled for demolition during the period stated and that their demolition was not planned. Mrs Harvey gave evidence only about Ewart Crescent. If the respondent had sought to amend the complaint in the course of the trial to make reference to houses in Ewart Crescent as well as those in Highstonehall Road, such amendment might have been allowed. But no such amendment had been proposed. Since the complaint remained in its original form, it was not open to the Sheriff to treat evidence that houses in Ewart Crescent were not scheduled for demolition as proving the falsity of a statement that houses in Highstonehall Road were due to be demolished.
9. The Advocate depute accepted that in order to support the conviction there required to be corroborated evidence that the statements were false and misleading. He accepted that the complaint had not been amended in the course of the trial, and that the point in issue required to be considered in light of the averments in the complaint. In the end, we understood the Advocate depute to accept that Mrs Harvey's evidence related to Ewart Crescent, and could not be treated as evidence that the Highstonehall Road houses were not scheduled for demolition. He submitted, however, that it would have been open to the Sheriff to return a verdict of guilty under deletion from the libel of the words "at Highstonehall Road". With that deletion, the statements could be regarded as relating to "houses belonging to Scottish Homes situated adjacent to said Avonlea Gate", and Mrs Harvey's evidence likewise could be regarded as relating to that category of houses. The Advocate depute, under reference to section 183(1)(c) of the Criminal Procedure (Scotland) Act 1995, submitted that it was open to us to set aside the Sheriff's verdict, and substitute an amended verdict of guilty of the charge libelled under deletion of the words "at Highstonehall Road".
10. The Advocate depute further submitted that Mr Brailsford's second submission was ill-founded. Corroboration of Mrs Harvey's evidence could properly be found in the fact that the houses in question had not been demolished.
11. In our opinion the appellants' primary argument must succeed. The respondent chose to frame the libel as it is framed. He offered to prove that the statements related to "houses belonging to Scottish Homes at Highstonehall Road situated adjacent to ... Avonlea Gate", and that those statements were false, "the truth being that said houses were not scheduled for demolition during the period stated, and there were no plans for their demolition" (emphasis added). The Sheriff was no doubt right that Highstonehall Road and Ewart Crescent together comprised, for some purposes, a single category of "older houses". It does not, however, follow in our opinion that the distinction between Ewart Crescent and Highstonehall Road can be completely elided when it comes to deciding what has been proved as to the falsity of the statements. It is, in our view, clear that the evidence given by Mrs Harvey, which would have supported the libel if it had related to houses in Highstonehall Road, cannot be interpreted as extending beyond its terms. It related to Ewart Crescent. It did not relate to Highstonehall Road. There is therefore, in our opinion, no support in the evidence of Mrs Harvey for the falsity of the statements relating to houses in Highstonehall Road.
12. We do not consider that there is any merit in the appellants' alternative submission. If there had been primary evidence from Mrs Harvey that the statements relating to houses in Highstonehill Road were false, the fact that it was clear that those houses had not been demolished within the contemplated time would, in our opinion, have been capable of being construed as supporting the truth of Mrs Harvey's evidence, and thus of affording corroboration of the falsity of the statements. In the event, however, the point does not arise.
13. We do not consider that the resultant difficulty for the respondent can be overcome in the way proposed by the Advocate depute. While it is frequently open to a jury or a Sheriff to return a verdict of guilty under deletion of words or phrases from the indictment or complaint, we do not consider that it would have been legitimate for the Sheriff to have followed that course in the present case by deleting from the description of the houses in respect of which the false statement was made the words "in Highstonehall Road". The effect of such a deletion would not have been to reduce the scope of the offence, but on the contrary to expand it. It would have involved the deletion of a restrictive definition of the subject of the false statements. The result would have been to find the appellants guilty of something with which they had not been charged, namely making false statements in relation to houses in Ewart Crescent. Since we take the view that it would not have been open to the Sheriff to return a verdict of guilty under such deletion, it follows that we do not consider that it is open to us to substitute such an amended verdict under section 183(1)(c).
14. In the result, we shall answer questions (1), (4) and (5) in each stated case in the negative. In view of the negative answer to question (1), questions (2) and (3) do not arise. It follows that the conviction of each appellant falls to be quashed.