APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Osborne
Lord Johnston
Lady Cosgrove
|
[2007] HCJAC 2
Appeal No: XC173/06
XC174/06
XC175/06
XC177/06
XC178/06
XC179/06
OPINION OF THE COURT
delivered by LORD OSBORNE
in
APPEALS UNDER SECTION 74
OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
MARK WEIR, DAVID MUIR,
JAMES GARTY, STEVEN HARVEY, LEE TOSH and ANDREW SELLARS
Appellants;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: Shead, Advocate; R S B Macdonald, Dundee; Reilly, Advocate;
Lawson Coull & Duncan,
Dundee; Lockie,
Advocate; Muir Myles & Laverty, Dundee;
McDonald, Advocate; Whelan &
Co, Arbroath; Kennedy, Advocate;
Campbell Boath & Co, Dundee;
Mayer, Advocate; Boyles, Dundee
Alt: Murphy, QC; Crown Agent
10 January 2007
The background
circumstances:
[1] The six appellants have been indicted
together on an indictment which contains a single charge in the following
terms:
"On 28 May 2005 at Queen Street
Railway Station, Dundas Street, West George Street, Buchanan Street, Gordon
Street, Union Street, Argyle Street, Jamaica Street, Bridge Street, Eglinton
Street and Bedford Street, all Glasgow, you did, whilst acting with others,
form part of a mob of evilly disposed persons which acting of a common purpose
did in particular at Bedford Street, Glasgow, conduct itself in a violent,
riotous and tumultuous manner to the great terror and alarm lieges and in
breach of the public peace and did shout, throw bricks and bottles or similar
instruments, run towards a group of persons to the prosecutor meantime unknown,
engage in fights, obstruct the flow of traffic and cause pedestrians and motor
vehicles there to take evasive action."
[2] Following
their indictment, the appellants lodged minutes raising preliminary pleas the
essence of which was that, by choosing to indict them in the way chosen, the
Lord Advocate had prejudiced their right to a fair trial by acting
oppressively. The appellants had
originally appeared on petition in Glasgow Sheriff Court on 31 May
2005, along
with 23 other co-accused. In relation to
five of those co-accused, the Crown had previously served a separate indictment
libelling an identical charge. That
indictment had proceeded to trial and all of the accused affected by it had
been convicted. Thereafter the Crown had
served the present indictment on the appellants. They understood that the Crown had served two
further indictments libelling an identical charge against two groups of six
individuals and intended to prepare a further indictment libelling an identical
charge against another six individuals, all named in the original
petition. It was contended that, by
proceeding in this manner, there was a high risk of prejudice to the appellants
where accused persons were indicted separately for the same offence. The appellants understood that the Crown
intended to rely upon what was described as identical evidence to that led
during the first trial, namely evidence from three police officers. The appellants contended that the Crown had
now had a "full dress rehearsal" of their case and that the Crown witnesses had
had the opportunity to consider their earlier evidence and might also have
discussed the evidence that they had previously given together. It was also contended that, on account of the
Crown having proceeded in such a manner, the appellants would not be in a
position to call any of the other individuals named in the pending indictments
as defence witnesses to be led during the trial. The appellants believed that their defence
would be prejudiced by the separation of trials. It was contended that the essence of the
crime with which the appellants had been charged, mobbing and rioting, required
there to be evidence led that the accused were "acting of a common
purpose". Accordingly, all of the
individuals alleged to have been acting with this common purpose ought to be
tried upon the same indictment. In these
circumstances, the appellants had sought conjunction of all of the outstanding
trials upon the same indictment.
[3] On 8
March 2006,
when the case called for trial, these preliminary issues were raised. Thereafter submissions were made to the
sheriff on the appellants' behalf. On 16 March
2006, after
considering the submissions made to him, the sheriff rejected the contentions
advanced. The sheriff concluded that he
was entirely satisfied that the Crown had a right to prosecute as they had
done, which was not subject to the control of the Court unless oppression, in
the sense of a material risk of real prejudice could be demonstrated, which he
held it had not. Following the
announcement of the sheriff's decision, the appellants sought leave to appeal
to this Court, which was granted.
[4] All of the
appellants have lodged grounds of appeal in slightly different terms. However, the essence of these is that the
sheriff has erred in rejecting the preliminary pleas advanced before him, which
were essentially to the effect that the course selected by the Crown involved
oppression and that the trials of all of the individuals who faced indictments
containing the same charge should be conjoined.
Submissions for the
appellants:
[5] When these
cases came before us, counsel for the first named appellant, having outlined
the background to the matter, said that the primary focus of his submissions
would be on the matter of the conjoining of the trials to be held. He made clear that he did not intend to
challenge the test for oppression set forth in McFadyen v Annan 1992
S.C.C.R. 186. It was submitted that the
sheriff had been wrong to conclude that the contemplated trials of the
remaining 24 accused should not be conjoined.
Furthermore, he had failed to take into account relevant considerations
relating to the practicalities of a trial involving such a number of
persons. Indeed, the procurator fiscal
had not put information before the sheriff regarding any alleged practical
difficulties there might be in conducting a trial of 24 persons. No real explanation had been given to the
sheriff for the Crown's decision to bring the accused to trial in batches of
six persons. In short, the sheriff had
not been given essential information necessary to make a proper decision on the
matter. It was highly unsatisfactory
that the same witnesses should give the same evidence repeatedly in a series of
trials.
[6] In connection
with his submissions, counsel relied upon H.M.
Advocate v Clark 1935 J.C. 51, at pages 54-60. In that case it had been held that, while the
Court would not, in ordinary circumstances, interfere with the discretion of
the Crown, it was nevertheless within its power to disallow procedure which, in
its opinion, might lead to a miscarriage of justice and accordingly that, as
separate trials might in that case result in prejudice not only to the compearer,
but also to the panels, the indictment as it stood should not be remitted to an
assize. The case demonstrated that good
practice involved the holding of a single trial where a number of persons were
accused of acting with a common criminal purpose unless there were strong and
cogent reasons to the contrary. Counsel
also relied upon H.M. Advocate v O'Neill 1992 S.C.C.R. 130, in which it
was held that the practice of convening all participants in a crime in one
indictment was only a practice and not a rule of law which had to be applied
unless the Crown could advance a good reason to the contrary. Although, in ordinary circumstances, the
Court would not interfere with the discretion of the Crown, it was nevertheless
within its power to disallow procedure which, in its opinion, might lead to a
miscarriage of justice. The Crown's
right to prosecute was not subject to the control of the Court, unless
oppression in the sense of a material risk of real prejudice could be
demonstrated. The case of H.M. Advocate v O'Neill showed that there could be circumstances in which there
would be good reason for the Crown departing from the normal practice in
indicting accused together in relation to a common criminal purpose. In that case an issue of sufficiency of evidence
and the public interest prevailed. By
contrast, in the present case, the Crown had never explained why they had
chosen to follow the course of indicting the accused in batches. The case of H.M.A v Macleod & Others
(1888) 1 White 554 showed that there might be circumstances in which it would
be appropriate for the Crown to depart from the ordinary practice of a common
indictment, as, for example, in that particular case, which involved mobbing
and rioting. However, that course had
been taken there because it was considered to be "in the interest of the
panels".
[7] While
conjunction of indictments had been sought before the sheriff, it was accepted
that there might be cogent reasons why that course should not be followed. However, no such reasons had been advanced to
the sheriff. On the matter of the
competency of conjunction, counsel now accepted that that was something which
the Court itself could not order, as appeared from what had been said in H.M.A v Clark by Lord Anderson at page 57.
All that counsel could ask the Court to do was to desert the present
indictment pro loco et tempore. It would then be for the Crown to frame an
indictment against all the remaining 24 accused persons.
[8] Counsel for
the second named appellant adopted the submissions just narrated, but made
certain supplementary points. He agreed
that the Court could not compel the Lord Advocate to frame an indictment in a
particular way; it could simply prohibit
the taking by the Lord Advocate of a course which could be shown to be
objectionable. Counsel went on to draw
our attention to the decision in H.M.
Advocate v McWilliam 1994
S.C.C.R. 152. In that case two separate
indictments had been framed. The sheriff
had granted a motion to conjoin the two sets of proceedings. This Court had not commented adversely on the
following of that course. However, in
the circumstances of the present case, if there was concern over the competency
of such a course the Court could desert the present indictment, thus forcing
the Lord Advocate to follow a different course.
Finally, counsel pointed out that the possibility of holding a trial of
24 persons in a large building adapted for that purpose had apparently not been
explored.
[9] Counsel for
the third, fourth and fifth named appellants adopted the submissions of counsel
for the first and second appellants.
Counsel for the sixth named appellant emphasised that the sheriff had
not given proper reasons for his decision.
The prospect of serious prejudice to the appellants emerged from a
situation in which the same three witnesses might be required to give evidence
upon the same topics on several different occasions. There would be no particular difficulty
attached to the mounting of a trial of 24 persons in this case, since the issues
involved were straightforward. The
charge of mobbing and rioting was a simple charge. The only controversial issues likely to arise
would be those of identification of the participants. In any event, the need to furnish the
appellants with a fair trial should take precedence over issues of
practicality.
Submissions for the
Crown:
[10] The Advocate depute
indicated that he intended to deal with the details of the sheriff's decision,
the practical aspects of the case, the authorities, and the conclusions which
the Court should draw. He then proceeded
to examine the details of the sheriff's decision, which were to be found at
page 14 and following of his judgment.
The terms of his decision revealed no error, it was submitted. One of the important features of the
situation was that the sheriff had practical knowledge regarding the facilities
that were available in Glasgow, where there was but one Sheriff Court building. It was, of course, the case that in Glasgow a large enough building could be identified
to allow a trial to be held involving 24 accused persons, provided that suitable
modifications to the building could be effected. However, what was practicable did not include
what was theoretically possible. The
real question was whether it was necessary for such arrangements to be made, no
doubt at very substantial cost. In H.M. Advocate v Macleod, the Court contemplated that, in
a case of mobbing and rioting, the numerous accused should be tried in batches. There was nothing inherently objectionable in
such a course. In H.M. Advocate v Clark,
Lord Justice Clerk Aitchison contemplated that where there was a large number
of persons alleged to have acted in concert, as for example in a case of
mobbing and rioting, it might not be practicable to bring them all to trial on
the same indictment. Once again, the
Court did not consider that the holding of separate trials in such a situation
was inherently objectionable. Further,
in H.M. Advocate v O'Neill, Lord Justice General Hope,
as he then was, characterised the custom of bringing to trial all persons
against whom concerted activity was alleged as a practice and not a rule.
[11] As regards the
size of the batches of accused persons contemplated as being brought to trial
in the present case, the Advocate depute said that there was no particular
significance in them. There was no
question of ringleaders being selected to stand trial together, or in any
particular batch. The batches identified
were of such a size that they could practicably be fitted into a jury court.
[12] The central
issue in the contemplated trials was that of identification of those persons
involved. There was no serious issue
about whether there had been a serious disturbance on the occasion in
question. The authorities relied upon by
the appellants, in general, involved alleged crimes of dishonesty, where there
were several persons accused. The nature
of the present case was different. It
did not involve a situation where there was a conspiracy, or plan, to commit
some particular offence. The situation
here was that mobbing and rioting had developed, involving a number of
people. In the cases of H.M. Advocate v O'Neill and H.M. Advocate
v Clark, identifiable
prejudice was present. The trials in
those cases would have involved examination of the actings of persons not named
in the indictment. The same situation
was not present here. In H.M. Advocate v McWilliam, the fourth person had not even been named. Accordingly, in those cases prejudice was
readily identifiable. They could
therefore be distinguished.
[13] It was
appropriate to examine carefully the prejudice alleged to be inherent in the
handling of the present case by the Crown.
That prejudice was said to arise out of the circumstance that, if the
accused were tried in batches, certain police witnesses would require to give
evidence several times. As regards that
suggestion, it was submitted, first, that in a case where the trials were to be
conducted before juries, each jury would come afresh to hear the evidence of
the witnesses concerned. They could, in
the normal way, assess the credibility and reliability of those witnesses. A further consideration was important, if it
were the case that the evidence of these witnesses altered in any material
respect as between one trial and another; an immediate criticism of their evidence could
be mounted on behalf of the accused, upon the basis that they had made prior
inconsistent statements in their earlier evidence. It was wrong to assume that, in successive trials,
the evidence of these witnesses could be expected to be upon exactly the same
topics. As was recognised in Stirling v Herron 1976 S.L.T. (Notes) 2, while the witnesses would, no doubt,
give evidence repeatedly on the general matter of the disturbance, they would
require to give evidence about any participation on the part of the particular
accused involved in each trial once only.
The fact that the evidence of the common witnesses would be re-assessed
afresh in each case was recognised as an important consideration by Lord
Justice General Hope in H.M. Advocate v
O'Neill at page 141. In all these circumstances no prejudice had
been shown to be involved in the course selected by the Crown.
[14] The Advocate depute
went on to submit that, in any event, it would be incompetent for the Court to
order the conjunction of indictments.
All of the authorities before H.M.
Advocate v McWilliam had
recognised that a decision as to the persons to be included in a particular
indictment was a matter for the Crown, not the Court. It was, of course, recognised that the Court
could order separation of trials, in appropriate circumstances. It was true that in H.M. Advocate v McWilliam,
the sheriff had ordered the conjoining of indictments, although the Crown had
appealed against that decision, but had lost.
It appeared from the report of the case that the issue of competency was
not argued. In these circumstances H.M. Advocate v McWilliam was, in this respect, of dubious authority. That circumstance was of little practical
importance because, if the Court were to consider that prejudice would be
involved in following the course selected by the Crown in this case, what it
could do would be to decline to allow the indictment against the present
appellants to go to trial. If that were
the decision of the Court, plainly the Crown would require to think again as to
its approach to the case. However, there
was no prejudice justifying such a course.
In all these circumstances, these appeals ought to be refused.
[15] Counsel for
the first and second named appellants replied.
Decision:
[16] The appellants in these appeals have
raised two objections to the course which the Crown have chosen to follow. In the first place, it has been contended
that that course has involved a departure from the proper course of indicting
in a single indictment all persons against whom concerted criminal activity is
alleged. In the second place, it has
been contended on their behalf that the course followed by the Crown here of
seeking to conduct several trials against batches of accused persons would
result in real and material prejudice in the circumstances of this case.
[17] Dealing with
the first of these objections, plainly it has been recognised for many years
that, in the absence of some good reason to the contrary, the participants in
the commission of some alleged crime should be convened under the same
indictment. In that connection we refer
to what was said by Lord Murray in H.M. Advocate
v Monson (1893) 21 R. (J.) 5; 1 Adam 114.
However, it has been recognised that it is competent to proceed in
another way. In this connection we draw
attention to the observations of Lord Justice Clerk Aitchison in H.M. Advocate v Clark at page 55, where he said:
"There are many cases in which two or
more persons may be concerned in the commission of a crime in which the Crown
may be justified, for one reason or another, in not proceeding against all the
persons concerned although libelling all has having acted in concert. A typical instance is where one of the
persons concerned has absconded and cannot be found. Again, the incapacity of a conspirator from
age or illness to stand trial may be a sufficient reason for not indicting him
although he is named as a conspirator in the indictment. Or again, the number
of persons acting in concert may be so large, as, for example, in a case of
mobbing and rioting, that it may not be practicable to bring them all to trial
on the same indictment. I am unable,
therefore, to agree to the view that the course followed by the Crown is in any
way incompetent."
[18] In that case
the Court went on to decline to remit an indictment to an assize in which one
of several conspirators was not included, upon the ground of identifiable prejudice. Commenting on H.M. Advocate v Clark at page 140 in H.M. Advocate v O'Neill,
Lord Justice General Hope said:
"As Lord Justice Clerk Aitchison
pointed out in Clark at page 55, there is no doubt that
in the ordinary case the Court will only with the greatest reluctance interfere
with the discretion of the Crown. But
its power to do so is beyond question, and in all these cases where oppression
is alleged, or where it is suggested that there is a material risk of grave
prejudice to the accused, the ultimate decision must rest with the Court. That, it seems to me, is the true ratio of Clark, which is accurately reflected by the rubric of the report in
that case - that, while the Court would not, in ordinary circumstances,
interfere with the discretion of the Crown, it was nevertheless within its
power to disallow procedure which, in its opinion, might lead to a miscarriage
of justice."
Against this background, we cannot conclude that there is any
inherent impropriety in the course which the Crown intends to follow in
bringing to trial the appellants and other persons alleged to have been
involved in the incident of mobbing and rioting concerned. The Crown have explained that its purpose in
bringing to trial the remaining 24 accused, including the appellants, in
batches of six accused is justified by the practicalities of the
situation. While it might be possible to
mount a trial of 24 accused persons in a suitably adapted building which
might be able to be identified, the Crown considers that the only practicable
course is to mount successive trials of six accused persons in each case in
existing court buildings. We are unable
to say that the decision to proceed in that way is, in itself,
unreasonable.
[19] We turn now to
deal with the second contention advanced on the part of the appellants to the
effect that there was a material risk of real prejudice to them in the course
which the Crown had chosen to adopt. The
basis of this argument was that the three police witnesses who had given evidence
in the first trial of five accused persons would require to give evidence again
in the trial of the appellants and in succeeding trials. Thus, the first trial could be seen as a
"dress rehearsal" for the appellants' trial, which had conferred upon the
prosecutor an advantage at the expense of the appellants. In order to evaluate this submission, it is
appropriate to consider the nature of the evidence which these witnesses might
give in the appellants' trial. In the
first place, we understand that they would give evidence about the general nature
of the incident which has given rise to the indictment, of a serious
disturbance, characterised as mobbing and rioting. In the second place, the witnesses would be
likely to give evidence identifying the appellants as having been involved in
that incident. While we recognise that
evidence regarding the general nature of the incident, which may not be
seriously disputed, would be given in the appellants' trial for the second
time, any evidence that these witnesses might give identifying the appellants
as participants in that incident would obviously be given in their trial for
the first and probably the only time.
Thus the repetition of evidence already given in the first trial would
occur only in relation to the incident generally, a matter not said to be
controversial. So far as the evidence of
identification is concerned, that evidence would be unique to the appellants'
trial. In these circumstances, we are
not persuaded that there is any material difference between these witnesses
testifying in the appellants' trial and of police witnesses giving evidence of
identification in any trial. In relation
to the controversial matters, there is no question of evidence having been
rehearsed.
[20] In any event,
even if the situation existed that evidence might be given for a second time in
the appellant's trial on a controversial matter, we are not persuaded that that
state of affairs would give rise to the prospect of serious prejudice to the
appellants. As was pointed out by Lord
Justice General Hope in H.M. Advocate
v O'Neill at page 141, in relation to
a similar argument advanced in that case:
"The credibility and reliability of
all the witnesses will be for the jury to assess, but it will open to the
sheriff to remind them that those witnesses who gave evidence in the previous
trial have had that advantage and that the jury should take this into account
in their assessment of their evidence."
Indeed, one might point out that where witnesses have given
evidence in a trial which they require to repeat in a second or subsequent
trial, the evidence of those witnesses may be critically examined by reference
to what they have said on oath on the first occasion. That puts those witnesses in a more
unfavourable position than they would have been had they been giving evidence
on the topic in question for the first time.
For these reasons, we are not persuaded that there is any material risk
of prejudice to the appellants arising from the circumstance that three police
witnesses may give evidence in their trial, who have already given evidence in
the trial of the first five accused to be tried.
[21] Before us
there was some discussion as to the possibility of the Court "conjoining" the
indictment which the appellants faced with the indictments now brought against
the remaining 18 accused persons. It was
pointed out that indictments were conjoined by the sheriff in H.M. Advocate v McWilliam, without unfavourable comment
in this Court. Having regard to the view
which we have taken, it is not necessary for us to decide whether such a course
is competent. However we note that in H.M. Advocate v McWilliam, no submission was made to the
sheriff that the course which she decided to follow was incompetent. The issue of the competency of the course
taken, it appears, was not raised in this Court either. In these circumstances, we cannot regard that
case as authority for the view that the conjoining of indictments by the Court is
a competent course. We feel bound to say
that we are of the opinion that it is not.
As was pointed out by
Lord Anderson in H.M. Advocate
v Clark, at page 57:
"The powers of the Lord Advocate as
regards the instance of an indictment and the procedure at the trial are
undoubtedly wide, but they are not absolute.
It may be that the Court cannot compel the Lord Advocate to follow a
procedure which they believe to be right, but I have no doubt that they can
prevent him from pursuing a procedure which they adjudge to be wrong, and this,
the Court is always entitled, and indeed bound, to do where it is shown that,
by abuse of procedure, an accused person is so prejudiced in his defence that a
miscarriage of justice may ensue. As I
consider that the proposed procedure of the Crown is bad, I am of opinion that we
can interpel the trial of this case from proceeding, and I think we ought so to
do."
Thus, in appropriate cases, the Court may order the
separation of trials of persons who, in the first instance, have been made
subject to a single indictment. Equally,
it can refuse to remit for trial an indictment on which it considers that some
additional accused person should have been arraigned, as was done in H.M. Advocate v Clark. However, we consider that the
Court could not competently order that two or more indictments, framed by the
Crown, should be tried together in a single trial.
[22] In all these
circumstances, the appeals are refused.
