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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Campbell & Anor v. Her Majesty's Advocate [2003] ScotHC 61 (13 November 2003) URL: http://www.bailii.org/scot/cases/ScotHC/2003/61.html Cite as: [2003] ScotHC 61 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Hamilton Lady Cosgrove
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Appeal No: XC494/03 OPINION OF THE COURT delivered by LORD HAMILTON in APPEALS by (1) SHOLA CAMPBELL Appellant; against HER MAJESTY'S ADVOCATE Respondent; (2) BRIAN HILL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: (1) M. Scott, Q.C., Shead; Beaumont & Co.:
(2) M. Scott, Q.C., Shead; Drummond Miller
Respondent:
Anthony, Q.C., A.D.; Crown Agent13 November 2003
[1] On 17 April 2001 the appellant Shola Campbell ("the first appellant") was, after trial on indictment in the Sheriff Court at Edinburgh, convicted of a restricted charge of assault to severe injury. On 7 August 2001 Brian David Hill ("the second appellant") was, after trial on indictment in the Sheriff Court at Perth, convicted of (1) theft by housebreaking and (2) reset of a motor car. Each appellant has appealed against conviction. In each case the grounds of appeal include a contention to the effect that the appellant's rights under Article 6 of the European Convention on Human Rights and Fundamental Freedoms had been infringed by the prosecutor's introduction of and reliance on hearsay evidence and that a miscarriage of justice had thereby occurred. Because of this common feature these appeals, together with a third appeal (where the Crown subsequently intimated that it was unable to support the conviction and the appeal was allowed), were appointed to be heard together in relation to that aspect of the appeals. Other grounds of appeal in each case remain undisposed of. [2] The first appellant was charged with assaulting Kirsty Ness to her severe injury. Prior to her trial she lodged and intimated a special defence of incrimination of Sarah Budden. The Crown led evidence from Kirsty Ness who testified that on the date libelled she had been assaulted by the first appellant with a crowbar in the dwellinghouse occupied by the first appellant and her husband. It was not disputed by the defence that the complainer had been assaulted in that place on that date but the complainer was challenged in cross-examination as to the identity of her assailant. She maintained a clear and positive identification of the first appellant as that person. At a later stage in the trial the Crown, under reference to section 259 of the Criminal Procedure (Scotland) Act 1995, sought to lead evidence of a tape recorded interview of Sarah Budden who had disappeared. That course of action was objected to on various grounds but the objection was repelled. A tape recording of the interview of her by police officers was thereafter played in the presence of the jury and copies of a transcript of that interview were made available to them. The grounds of objection then taken related to matters not the subject of argument at the present hearing and need not be discussed at this stage. However, in the course of the appeal proceedings a supplementary ground of appeal and relative devolution minute were allowed to be received in which it was contended that the prosecutor's leading of and reliance on Sarah Budden's statement (being her responses to questions in the course of that interview) was ultra vires and incompatible with the first appellant's Convention rights. The Crown accepted at the trial and still accepts that, unless the statement by Sarah Budden was available to it as evidence supporting the complainer's identification of the first appellant as the assailant, there was insufficient evidence in law to convict the first appellant of the crime charged. Certain directions, also the subject-matter of criticism in this appeal, were given by the presiding sheriff to the jury in relation to that hearsay evidence. The first appellant and certain other witnesses gave evidence at the trial exculpatory of the first appellant and incriminatory of Sarah Budden, who had been named in a special defence of incrimination. The verdict of the jury imports that they disbelieved the defence evidence. [3] The second appellant was indicted on three charges. He was acquitted of charge (2). On charge (1) it was alleged that, together with a co-accused, he had, on 4 or 5 August 2000, broken into a dwellinghouse in Blairgowrie and had there stolen various items of property. On charge (3) it was alleged that, together with the same co-accused, the second appellant, on 5 August 2000, had at another address in Blairgowrie stolen a motor vehicle and certain items of property contained in it. Evidence was led that two days after the housebreaking certain items of property stolen from the dwellinghouse were pawned at a local pawnshop. A male was observed on CCTV leaving the pawnshop after that transaction. Two police witnesses gave evidence at the trial positively identifying the second appellant as the person so leaving. It was agreed by a joint minute lodged at the trial that the second appellant and his then girlfriend were the joint tenants of a caravan and adjacent cellar at a site in Blairgowrie. Some three days or so after the thefts a substantial amount of property was recovered from the cellar and the caravan. From the cellar were recovered various items which had been stolen from the dwellinghouse referred to in charge (1). From the caravan were recovered certain items which had been in the motor vehicle when it was stolen. The Crown also led oral evidence from a witness who testified that she had seen the second appellant driving the motor car some time shortly after its theft. The evidence adduced and founded on by the Crown, which is principally in issue at this stage of this appeal, was hearsay evidence in the form of a statement made by the second appellant's former girlfriend in the course of a tape recorded interview of her by the police. That witness had subsequently disappeared. The Crown again relied on section 259 of the 1995 Act, the reason why she would not give evidence in the proceedings being that referred to in section 259(2)(c). A ground of appeal is that the presiding sheriff was not entitled to be satisfied that the Crown had taken all reasonable steps to find the witness but that ground does not fall to be discussed at this stage. For present purposes it is to be assumed that the whole requirements of section 259 were satisfied. The hearsay evidence was led in the form of a videotape by which the jury could see and hear the interviewee as she responded to the questions put to her. Copies of a transcript of that interview were also made available for their consideration. A devolution minute on behalf of the second appellant, in equivalent terms to that received on behalf of the first appellant, was in the course of the appeal proceedings allowed to be received. [4] Miss Scott, who appeared before us for both appellants, advanced two principal submissions in respect of both appeals. First, the appellant in each appeal not having had an opportunity at any stage to question the missing witness, the Lord Advocate, by adducing the hearsay evidence had acted, it was argued, incompatibly with the appellant's Convention right under Article 6(3)(d) and so ultra vires in terms of section 57(2) of the Scotland Act 1998. Second and in any event, the adducing and founding on the hearsay evidence had, having regard to the decisiveness of that evidence and the absence of necessary safeguards, resulted in each trial being unfair. Each conviction should be quashed. [5] Before narrating Miss Scott's development of the first principal submission, it is appropriate to set out the terms, in so far as material, of Article 6 of the Convention and of section 57(2) of the Scotland Act 1998. Article 6 provides:"(1) In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
...
(3) Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him ... ".
Section 57(2) of the Scotland Act 1998 provides:
"A member of the Scottish Executive has no power ... to do any ... act, so far as the ... act is incompatible with any of the Convention rights ... ".
The Lord Advocate is a member of the Scottish Executive. The Convention rights referred to include those set out in Article 6.
[6] Miss Scott submitted that the minimum right specified in Article 6(3)(d) was itself a Convention right, even though, in contrast to the right to a fair trial under Article 6(1), it was not an absolute right. Reference was made to Stott v. Brown 2001 SCCR 62, especially per Lord Bingham of Cornhill at pp. 70-73 and p. 80. Under section 57(2) of the Scotland Act 1998 the Lord Advocate had no power to act incompatibly with any Convention right and could be stopped from so acting if an accused would be a victim of such action (R. v. H.M. Advocate 2003 SCCR 19, especially per Lord Hope of Craighead at paras. [65] - [71]). Article 6(3)(d) was such a Convention right. Albeit European jurisprudence had tended not to view the minimum rights under Article 6(3) as discrete guarantees, the structure of the Scotland Act 1998 was such that it was ultra vires for the Lord Advocate to act incompatibly with an accused's right under Article 6(3)(d). The leading by the Crown of hearsay evidence which denied the accused an opportunity to examine or have examined the maker of the statement was, in so far as against the accused's interests, an ultra vires act which accordingly was null and void. Any evidence so adduced fell to be disregarded. It was immaterial to this submission whether the leading of such evidence affected the fairness of the trial. [7] The Advocate depute in response to this submission submitted that, in accordance with European jurisprudence, Article 6 fell to be read as a whole. Article 6(3)(d) did not of itself confer a Convention right. Accordingly, only if there would be a violation of the Convention right to a fair trial under Article 6 read as a whole could there be an incompatible act by the Lord Advocate within the meaning of section 57(2) of the Scotland Act 1998. [8] In our view Miss Scott's argument on this aspect of the appeal is unsound. In contrast to the right to a fair trial (which is absolute) the constituent rights comprised, whether expressly or implicitly, within Article 6 are not themselves absolute (Stott v. Brown, per Lord Bingham at p. 80E). The right of a person charged with a criminal offence to examine or have examined witnesses against him is such a constituent right. As a matter of European jurisprudence it is an aspect of the right to a fair trial set forth in Article 6(1) and as such must be read with and in the context of that right (Kostovski v. Netherlands (1989) 12 EHRR 434, especially at paras. [37] - [39]). The statutory purpose of section 57(2) of the Scotland Act 1998 is to ensure that members of the Scottish Executive, including the Lord Advocate, do not act incompatibly with any of the "Convention" rights. These rights have the same meaning as in the Human Rights Act 1998 (see Scotland Act 1998 section 126(1)). Under the Human Rights Act 1998 Convention rights are to be interpreted in accordance with the relative European jurisprudence (section 2). The like interpretation falls to be applied for the purposes of the Scotland Act 1998. Against the established approach of European jurisprudence to Article 6, it cannot, in our view, have been the intention of Parliament to render ultra vires an act of the Lord Advocate by reason only of its apparent inconsistency with Article 6(3)(d) when read in isolation from the right to a fair trial provided by Article 6(1). We accordingly reject Miss Scott's first principal argument. [9] Her second principal argument raises issues of general application and other issues which are special to the individual cases. A general issue which arises is the interrelationship between the Convention right to a fair trial (with particular reference to the right to examine witnesses or have them examined) and the domestic rule of Scots law that an accused person cannot, subject to certain statutory exceptions, be convicted of a crime except on the basis of corroborated evidence. Miss Scott's submission involved the proposition that where, in any case, the evidence relied on by the Crown would be insufficient in law without hearsay evidence being relied on, the trial would be unfair and any conviction secured would require to be quashed. For the purposes of considering this submission, it is assumed that all necessary preliminaries to the admission of hearsay evidence under section 259 of the 1995 Act have been complied with and that the trial judge has been satisfied that the person who made the statement will not give evidence in the proceedings for a reason mentioned in section 259(2). [10] Miss Scott noted at the outset that this court had ruled in Nulty v. H.M. Advocate 2003 S.C.C.R. 378 that section 259 did not give a trial judge any discretion to exclude evidence which qualified for admissibility in terms of the statute. For the purposes of determining whether there had been an unfair trial, it was necessary to consider (1) the significance of the evidence of the person whom the accused had not had an opportunity of examining or having examined and (2) the presence or absence of safeguards in the treatment of such secondary evidence. In European jurisprudence there had been a variety of expressions used to describe situations in which the use of secondary evidence would or might infringe the right to a fair trial. These included where the secondary evidence had "been relied on in the conviction" (Bricmont v. Belgium 1989 12 E.H.R.R. 217), "played a part in establishing facts which led to conviction" (Ludi v. Switzerland (1992) 15 E.H.R.R. 173, para. 47), been "mainly" the basis of the conviction (Unterpertinger v. Austria (1991) 13 EHRR 175) and been "solely or to a decisive degree" the basis of the conviction (Luca v. Italy (2003) 36 EHRR 46, para. 40). Reference was also made in this context to Kostovoski v. Netherlands, Asch v. Austria (1993) 15 EHRR 597, Artner v. Austria (1991) Series A 242, P.S. v. Germany (20 December 2001, unreported) and Birutis and Others v. Lithuania (28 March 2002, unreported). Although the language used appeared latterly to have become tighter, what mattered was whether the secondary evidence had been relied on for the purposes of the conviction. In Scottish cases where hearsay evidence had been adduced but there had been held not to have been an infringement of the accused's Convention right (Daly v. H.M. Advocate 2003 S.C.C.R. 393 and McKenna v. H.M. Advocate 2003 S.C.C.R. 399) there had been other important incriminatory evidence. Where a piece of evidence was necessary for conviction (as it would be in Scotland if there was only one other evidential source), such evidence was necessarily decisive. Accordingly, if there was an insufficiency of evidence without the hearsay, there would inevitably be an infringement of the Convention right. The only judicial observation which might be to a contrary effect was an obiter dictum in H.M. Advocate v. M. (now reported at 2003 S.L.T. 1151 at para [14]), a dictum which was inconsistent with the European jurisprudence. In the case of the first appellant, there was a clear insufficiency without the hearsay. While the position was less straightforward in the case of the second appellant, the hearsay was the only evidence pointing to an association between that appellant and the stolen goods; it was accordingly decisive. [11] In Scots law and practice there were, it was submitted, inadequate safeguards in place to counterbalance the prejudice inherent in the use at trial of hearsay evidence. The only statutory safeguard (section 259(4) of the 1995 Act) might in many cases be no real safeguard. The requirement for corroboration was no safeguard at all (Nulty v. H.M. Advocate, per Lord Justice-Clerk Gill at para. [26]). In England the court had various discretions in relation to the admission or rejection of secondary evidence. Reference was made to the Criminal Justice Act 1988, sections 25 and 26, and the Police and Criminal Evidence Act 1984, sections 82(3) and 78. The importance of such a discretion had been noted in the European Commission decision of Trivedi v. United Kingdom (1997) 89 D.R. 136. Such safeguards were not available in Scotland. In any event, any safeguard which might exist in a jury trial by the presiding judge giving full directions to the jury had not been applied in these appeals. The explicit directions indicated by the Lord Justice-Clerk in Nulty v. H.M. Advocate at para. [37] had not been given by either sheriff. The minimal caution which the sheriff had given at the first appellant's trial had fallen well short of that requirement; while the directions given by the sheriff at the second appellant's trial had been fuller, they were still inadequate. Each appeal should be allowed. [12] The Advocate depute submitted on this aspect of the appeal that the test of whether there had been an infringement of the Convention right was one of the overall fairness of the proceedings (Nulty v. H.M. Advocate, McKenna v. H.M. Advocate and Daly v. H.M. Advocate). Where hearsay evidence had been admitted, there were a number of measures which the trial judge could take if it became apparent that reliance by the Crown on such evidence would result in an unfair trial. He could sustain a submission of no case to answer, desert the diet, direct the jury to disregard that evidence or even direct an acquittal. Whether in the event of conviction there had been a breach of Article 6 depended essentially on the facts and circumstances of the particular case. The mere fact that the hearsay evidence was necessary to satisfy the requirements of corroboration did not necessarily lead to unfairness. The circumstances and content of the hearsay statement required to be viewed against the character and weight of the primary evidence adduced. The materiality or decisiveness of the hearsay evidence had to be viewed in the context of the whole evidence in the particular case. In the case of the first appellant, the complainer had given clear and positive evidence in court against the appellant, including identification of her as the perpetrator of the assault; she had stood up to a lengthy and robust cross-examination. In her statement, which had been before the jury in the form both of a tape recording played to them and a transcript of the interview, Sarah Budden had spoken of the first appellant fighting with and hitting the complainer and of her later wiping a crowbar said to have been used in the assault; she had not, according to her statement, been present throughout the assault. Although Sarah Budden had not been questioned by the defence, she had put her own character in issue by admitting in the course of the interview to having been involved in drug trafficking. The jury was in a position to assess her evidence, together with the complainer's oral evidence and the oral exculpatory evidence led by the defence at the trial. The fact that Sarah Budden was an incriminee (as in McKenna v. H.M. Advocate and Daly v. H.M. Advocate) was simply a factor to be taken into account. The sheriff's directions to the jury as to how they should approach Sarah Budden's evidence had provided a sufficient safeguard. The observations of the Lord Justice-Clerk in Daly v. H.M. Advocate at para. [37] constituted simply guidance as to the form of directions. As regards the second appellant, there was in relation to charge (1) sufficient evidence without reliance on the missing witness. In relation to charge (3) there was primary evidence of the second appellant's guilt in the form of testimony by an independent third party of seeing him driving the stolen car shortly after its theft. The hearsay corroborating evidence was before the jury in the form of a videotape of the interview of the former girlfriend played in the jury's presence and a transcript of the words used was made available to them. The sheriff had given full directions to the jury as to their approach to the hearsay. There had been no infringement of Article 6. The appeals, in so far as rested on the grounds argued, should be refused. [13] It is a fundamental and inflexible rule of Scots criminal law that, subject to certain statutory exceptions which are immaterial for present purposes, a person cannot be convicted of a crime or a statutory offence on the uncorroborated testimony of one witness, however credible (Morton v. H.M. Advocate 1938 J.C. 50, per Lord Justice-Clerk Aitchison at p. 52). When that case was decided there was no question but that the two (or more) sources of evidence required, in general, to be in primary form. Subject to certain exceptions, secondary (hearsay) evidence was not admissible in proof of a criminal charge. There were, however, as Lord Justice-Clerk Gill noted in Nulty v. H.M. Advocate at para. [24], at common law certain exceptions to that rule. These included where the maker of the statement was dead; but the court in such a case had a discretion to exclude such evidence if there were grounds for a reasonable suspicion that it was not true or that it was a coloured or one-sided version of the truth. The enactment of section 17 of the Criminal Justice (Scotland) Act 1995 (now consolidated as section 259 of the Criminal Procedure (Scotland) Act 1995) introduced a wider range of circumstances in which hearsay evidence was admissible in criminal proceedings. The statute identified a number of conditions of which the trial judge required to be satisfied before the hearsay evidence was admissible. These included that the reason why the maker of the statement would not give evidence in court was within a list of reasons specified in section 259(2) of the Act. For the purposes of the present appeals the relevant reason is that prescribed by section 259(2)(c), namely, that the maker of the statement"is named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken".
As regards the first appellant, it is not disputed that the sheriff was entitled to be satisfied with respect to Sarah Budden that that reason was made out; although there is an outstanding issue on that matter in the second appellant's case, for present purposes it is to be assumed that the sheriff was in that case also entitled to be so satisfied with respect to the former girlfriend. Section 259(4) makes provision for certain modes of challenge of the credibility of the maker of a statement who does not give evidence in court. Certain procedural provisions are also made.
[14] It is plain that in enacting the 1995 Act Parliament envisaged that, subject to compliance with its provisions, hearsay evidence would be admissible against an accused person. There is nothing in the statute which precludes its use when that use is a necessary ingredient of corroboration of an essential fact which the prosecutor has to prove. An accused is, however, entitled to a fair trial in accordance with his Convention rights under Article 6 and in Nulty v. H.M. Advocate this court recognised that, although section 259 conferred no statutory discretion on the trial judge, that judge had a duty to ensure that the accused before him or her received a fair trial. That duty might include an obligation in certain circumstances to exclude or to have disregarded hearsay evidence. In considering whether a fair trial can be, or has been, ensured it is proper to have regard to the jurisprudence of the European Court of Human Rights, in particular to its treatment in decided cases of alleged breaches of Article 6 with reference to the guarantee provided in the first part of Article 6(3)(d). In doing so it is, however, necessary to bear in mind that the decided cases in many instances arose in jurisdictions where the procedural and evidential rules are different from those which apply in Scotland; in particular, in none does there appear to be a rule equivalent to the inflexible rule of Scots law requiring corroboration of essential facts. It is also to be borne in mind that in accordance with European jurisprudence it is primarily for individual States to regulate the admissibility of evidence (Schenk v. Switzerland (1988) 13 E.H.R.R. 342, para. [46]; Kostovski v. Netherlands, para [39]; Asch v. Austria, para. [26]; Luca v. Italy, para. [38]). [15] The general rule under the Convention is that an accused person should have the opportunity of examining or having examined witnesses against him. That rule is not, however, an absolute right. It has been recognised that a fair trial may take place, notwithstanding that not every witness against the accused has been made available for questioning. As Miss Scott drew to our attention, the language used by the European Court on applying Article 6(3)(d) has varied. No single formulation has been adopted. The indications, however, from the most recent cases are that a violation of the right to a fair trial will or may arise if the conviction has been based solely or to a decisive degree on statements made by persons whom the accused has not, at any stage, had the opportunity to examine or have examined. In Luca v. Italy a conviction for a drugs offence was based solely on statements made by a person to the public prosecutor before the trial; neither the accused nor his lawyer was given an opportunity at any stage of the proceedings to question that person. In considering whether there had been a violation of Article 6(1) and (3)(d) the Court at para. [40] observed that, in accordance with earlier authority, there were occasions on which it was necessary in certain circumstances to refer to depositions made during the investigative stage but,"where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6".
A violation was found to have occurred in that case. In P.S. v. Germany the same formulation was used in the context of a case where the child complainer was the only person who spoke directly to the alleged sexual offence. Her evidence was available only in statement form. A conviction followed. A violation was held by the Court to have occurred. In Birutis and Others v. Lithuania the applicants were convicted of causing or taking part in a riot which occurred in a prison in which they were then detained. The prosecutor relied in court on the statements of 17 anonymous witnesses who were mostly other detainees. Although other evidence was led at the trial, the third applicant's conviction was based solely on these anonymous statements. In his case there was held to have been a violation on that ground. In the case of the other two applicants there was, in addition to the anonymous statements, other evidence against them which it was held that these applicants could have challenged. Against that background the Court concluded "that the first and second applicant's conviction was not based solely, or to a decisive extent, on the anonymous evidence". However, it noted that these statements were taken into account by the trial court, that issues about the credibility of the makers of them had been raised and that the domestic courts had not availed themselves of their statutory opportunity under domestic law to examine, of their own motion, the manner and circumstances in which the anonymous statements had been obtained. On that ground it was held that there had been a violation also in respect of each of those applicants.
[16] Most of the situations in which it has been held by the Court that there had been a violation of Article 6(1) and (3)(d) could not arise in Scotland. Against the requirement for corroboration of all crucial facts, a conviction could not be based solely on the evidence of a single witness, whether in primary or in secondary form. Violations of the Convention right have been established where the principal witness against the accused has not been made available for questioning or, in circumstances where there have been a number of principal witnesses, where none of them has been made so available. No case was cited to us in which a violation was held to have occurred in circumstances where the accused had had an opportunity to question or have questioned the complainer or other direct or central witness and other supporting evidence was in statement form. "To a decisive extent", as used in the European authorities, appears to be concerned with the significance of the evidence as a matter of weight. It is not concerned with any rule that a conviction cannot be based on a single source of evidence. The fact that the hearsay is required to meet the rule about corroboration does not of itself render that hearsay "decisive" in the European sense. [17] In these circumstances we are not persuaded that in every case in which hearsay evidence is a necessary ingredient of the Crown's corroborated proof there will be a violation of Article 6(1) and (3)(d). It will, however, be necessary for the trial judge to address, in the context of the whole evidence in the case, the significance of any hearsay evidence relied on by the Crown and to take appropriate action to ensure that the accused's entitlement to a fair trial is not violated thereby. Where in a jury trial the verdict is left to the jury's determination, the judge will require to give to the jury, as the factual decision-makers, appropriate directions as to how they should approach the hearsay evidence. Such directions are necessary to protect the accused against the disadvantage which may arise from the absence of an opportunity to cross-examine in person the maker of a statement, the truth or reliability of which is in issue at the trial. The extent, if any, to which the credibility of the maker of the statement has been effectively tested by the adducing of evidence under section 259(4) of the Act will also require to be taken into account. The guidance by Lord Justice-Clerk Gill in Nulty v. H.M. Advocate at para. [37] should be borne in mind - though failure to adhere to his Lordship's exact words will not in every case lead to a miscarriage of justice. [18] In the case of the first appellant, we are not satisfied that the circumstance that the Crown case depended for corroboration on the hearsay evidence of Sarah Budden of itself resulted in that appellant's trial being unfair. The principal evidence identifying the appellant as the perpetrator of the assault came from the complainer; it was supported by limited evidence originating from Sarah Budden. However, the circumstance that the Crown case was dependent for its corroboration on the hearsay evidence made it incumbent on the trial judge to give full directions to the jury on how they should approach that evidence. In her charge the sheriff confined her directions on this matter to "a word of caution", which she expressed as"would you remember that it has not been possible to test [the hearsay evidence] either in examination for the Crown or in cross-examination for the defence for its credibility or strength ... ".
She then directed them that, if they decided that they could not rely on Sarah Budden's statement, there was then insufficient evidence in law to support identification of the first appellant as the perpetrator of the assault and that the jury would be bound to acquit. That "word of caution" fell far short of the kind of directions subsequently identified by Lord Justice-Clerk Gill in Nulty v. H.M. Advocate and which ought to have been given to the jury in the circumstances of this case. On that ground we allow the first appellant's appeal against her conviction.
[19] As regards the second appellant, it is clear that there was sufficient evidence to convict him on charge (1), even if the hearsay evidence is disregarded. We are not persuaded that that hearsay was "decisive" in the European sense. In relation to charge (3) (on which he was convicted of reset) the principal evidence was from a witness who testified in court that she saw him driving the stolen vehicle shortly after its theft. The hearsay evidence supported that evidence by associating the second appellant with property contained in the car when it had been stolen. We are not persuaded that the Crown's reliance on that hearsay as corroboration of the principal evidence led to a violation of Article 6(1) and (3)(d). In this case the sheriff's directions to the jury were full and, in our view, adequate for the purpose of their treatment of that hearsay. Although he did not use the exact words later advocated by Lord Justice-Clerk Gill, his directions were in substance to the same effect. In all the circumstances we shall refuse the second appellant's appeal in so far as it proceeds on the ground argued at this hearing. This appeal will be continued in relation to the outstanding grounds of appeal.
