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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Nimmo Smith
Lord Philip
Lady Paton
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[2008] HCJAC 12
Appeal Nos: XC799/06, XC800/06 and XC801/06
OPINION OF THE COURT
delivered by LORD NIMMO
SMITH
in
APPEALS
under section 74 of the
Criminal Procedure (Scotland) Act 1995
by
PAUL DANIEL STEVENSON,
SCOTT GEORGE RANKINE and WILLIAM DANIEL STEVENSON
Appellants;
against
HER MAJESTY'S ADVOCATE
Respondent;
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Act: Shead, McKenzie; Hunter & Robertson, Paisley: MacLeod,
Q.C., Templeton; McCusker McElroy, Paisley:
Ogg, Solicitor Advocate; Tod
& Mitchell, Paisley
Alt: K. Stewart, A.D.; Crown Agent
19 February 2008
Introduction
[1] These
appeals arise from events which are alleged to have taken place at an address
in Paisley on 26
December 2004. Charge 1 in the present indictment alleges
that the first appellant assaulted the first male complainer by striking him on
the head with a brick to his severe injury and permanent impairment. Charge 2 alleges that the second appellant
assaulted the second male complainer by throwing a brick or similar instrument
at him. Charge 3 alleges that all three
appellants committed a breach of the peace, in terms which are not relevant for
present purposes. Charge 4 alleges that
the second and third appellants assaulted the female complainer by seizing hold
of her wrists, pushing her into a hedge and striking her on the body with a
brush or similar instrument, all to her injury.
Charge 5 alleges that the first appellant assaulted the second male
complainer by throwing a shovel and a brush or similar instruments at him.
[2] The
appellants were originally indicted for trial on these charges in the Sheriff Court at Paisley at the sitting commencing on 18
April 2006,
with a first diet on 4 April 2006.
On 11 April 2006 the diet was deserted pro loco et tempore and the time-bar was
extended from 15 July to 15 October 2006.
The appellants were subsequently re-indicted for trial at the sitting
commencing on 10 July 2006, with a first diet on 27
June 2006. On 27 June 2006 the first diet was continued until 4
July 2006. On that date the case was adjourned to a sitting
commencing on 2 October 2006 with a new first diet on 19
September 2006. At the same time the time-bar
was extended to 15 November 2006.
[3] Prior to the
commencement of the trial it was discovered that certain labelled productions,
namely a brick, a shovel, a brush and a broom ("the implements") were missing.
It appears that they had been destroyed approximately six months previously,
having been mistaken for rubbish which was being cleared out from the police
station where they had been stored. The Crown
moved the court to desert the diet pro
loco et tempore and to extend the time-bar.
These motions were opposed by the appellants who argued that the case
should be deserted simpliciter. On 16 October the Crown motion to desert the
diet pro loco et tempore was granted
and the motion to extend the time-bar was refused. On the same date an indictment was served on
the appellants citing them to a trial diet on 15
November 2006,
with a first diet on 31 October 2006.
On 31 October the appellants tabled two preliminary pleas. Following a hearing on 6 and 8
November 2006
the sheriff repelled the first plea, repelled the second plea in hoc statu, and granted leave to
appeal to the High Court of Justiciary.
We heard the appeals in two stages.
The first plea:
competency
[4] The first
preliminary plea was to the effect that proceedings on the most recent
indictment were incompetent as the date fixed for the first diet was less than
15 clear days after the date of service of the indictment, contrary to the terms
of section 66(6)(a)(i) of the Criminal Procedure (Scotland) Act 1995 ("the 1995
Act"). Before this court it was argued
on behalf of the appellants that the first diet was a peremptory diet and as
such provided a procedural safeguard for the protection of the accused. The failure to give the appellants the period
of notice provided for by section 66(6) of the 1995 Act rendered the indictment
incompetent. Counsel for the appellants
urged us to follow the approach adopted in Hull v H.M.
Advocate 1945 JC 83, a case in which an accused charged on indictment in
the Sheriff Court was cited to a first diet on 7
September 1944 and thereafter to a trial sitting on 19 September
1944. The first diet was adjourned on three
occasions for the disposal of pleas to the relevancy. On the last of these occasions, on 14
September 1944, the sheriff purported to adjourn the first diet to 21
September 1944, a date two days after the trial diet.
No diet was called on 19 September 1944.
It was held by the High Court of Justiciary that the trial diet was a
peremptory diet and if it was not called or adjourned or continued on the date
in the citation the instance fell, even although the accused acquiesced in the
procedure and no prejudice or injustice was suffered by him. Lord Justice Clerk Cooper said at page 88:
"The interest to be protected is not
that of the individual appellant but of the whole body of the public, and we
cannot adopt the view that the requirements of solemn criminal procedure are
only obligatory if and so far as any deviation may be thought to have adversely
affected the individual immediately in question. Were it once admitted that it was a question
of facts and circumstances in each case whether a serious deviation from
regular procedure should be ignored, the anchor of the entire system would drag"
[5] In H.M. Advocate v McDonald and Others 1984 SCCR 229, the respondents were cited to a
trial diet in the High Court on an induciae which was one day shorter than it
should have been. The questions which the
court of five judges in that case had to decide were whether, because the
period between service of the indictment and the trial diet was less than 29
clear days in terms of sections 75 and 111A of the Criminal Procedure
(Scotland) Act 1975 ("the 1975 Act"), the proceedings at the trial diet were
fundamentally null, regardless of the wishes of the respondents, and whether
the objection to the citation could be stated by the respondents at the trial
diet when they had failed to give notice of the objection within 15 days of the
service of the indictment in terms of sections 76(1)(a) and 108(1) of the 1975
Act.
[6] In delivering
the Opinion of the Court, Lord Justice General Emslie said at p. 237:
"As to the first of these questions
the answer is to be found by asking whether an objection of invalid citation -
want of due citation - can be waived by an accused."
He then cited examples of situations which the law regarded
as involving fundamental nullity even where the accused had concurred or
acquiesced, and went on,
"Invalidity of citation, however, has
never had in our law the consequence that proceedings at a trial diet fall to
be regarded as incompetent and fundamentally null because, while invalidity of
citation is open to objection by an accused, it is an objection which can be
waived."
[7] In the course
of their submissions, counsel for the appellants argued that the court's
decision on the question of fundamental nullity in McDonald was obiter. We reject this submission. The court required to decide that question
before it could decide the question of the competency of the objection at the
trial diet.
[8] In Kerr v Carnegie 1998 SCCR 168 the complainer, who was charged on summary
complaint in Greenock Sheriff Court, sought to argue that the proceedings
were rendered incompetent by the failure to fix an intermediate diet when the
case was adjourned for trial in terms of section 148(1) of the 1995 Act. It was accepted that no prejudice had been
caused to the complainer. The court
repelled the argument on competency on the ground that section 148 was administrative
in character, designed to make more efficient use of court time. It was directed to pre-trial preparation, and
was not specially conceived in favour of the accused. It was not fundamental to the achieving of a
fair trial.
[9] Kerr v Carnegie was followed in Hogg
v H.M. Advocate 1998 SCCR 338, in
which an appellant charged on indictment with three charges was not called upon
to tender a plea in respect of each of those charges at the first diet in terms
of section 71(6) of the 1995 Act. In
relation to one of the charges he had lodged a special defence of alibi, the
words of which, in accordance with the normal form, incorporated a plea of not
guilty. In rejecting the argument that
the proceedings were rendered null as a result of the failure to call upon the
appellant to tender a plea, Lord Justice General Rodger said that the purpose
of the first diet in Sheriff Court solemn procedure was similar to that of an
intermediate diet in summary procedure.
It was administrative in character and not specially conceived in favour
of the accused.
[10] Counsel for
the appellants again argued that the statement in Hogg that the proceedings were not rendered null by the fact that
the appellant had not tendered a plea to two of the charges at the first diet
was obiter. Again we do not agree. It was the de quo of the decision.
[11] More recently,
the effect of defects in procedure on the validity of subsequent proceedings
was considered in the case of Robertson v
Higson 2006 SC (PC) 22. Although that case was principally concerned
with the question of acquiescence on the part of the appellants tried and/or
sentenced on summary complaint by temporary sheriffs prior to the decision in Starrs v Ruxton, certain passages in the opinions of members of the Judicial
Committee of the Privy Council and in the High Court of Justiciary throw fresh light
on the meaning of the expressions "fundamental nullity" and "fundamentally
null".
[12] Lord Hope of
Craighead, after referring to cases in which, although the proceedings had been
affected by what was described as a fundamental nullity, the court refused to
suspend the proceedings, said at paragraphs [13] and [14]:
"What these cases tell us, as Lord
Macfadyen was right to point out in the High Court of Justiciary, is that the
question whether acquiescence is available or is excluded is not to be
determined by asking whether the decision in question was invalid or was a
fundamental nullity ... The determining factor is the nature of the defect
itself. Is it of such a kind that the
court has no alternative, irrespective of how the accused has reacted to it,
but to set aside the sentence or to quash the conviction.
[14] I
do not think that we need to consider what kinds of defects there might be,
outside the class of cases which have already been recognised, that might fall
into the category of defects that are incurable. I agree with Lord Macfadyen that there are no
unequivocal criteria by which to recognise that kind of nullity... As the Lord Advocate said, the expression
'fundamental nullity' has no absolute meaning.
It all depends on whether the court is willing to grant the remedy
sought."
[13] At paragraphs
[49] and [50] Lord Rodger of Earlsferry said:
"Several of the judges below pointed
out that it is impossible to extract from the authorities criteria by which to
identify what counts as a fundamental nullity.
This is because the term 'fundamental nullity' is conclusionary in nature: it is used to describe those defects for
which the court will always supply a remedy.
On a slightly modified version of Lord Macfadyen's analysis, ... it is
clear that in the case of some defects which prima facie justify suspension the conviction or sentence will be
allowed to stand if the person entitled to challenge it acts in such a way as
to give rise to an inference that he has accepted or acquiesced in it; in the case of other defects the court will
suspend the conviction or sentence even if the complainer has accepted or
acquiesced in it. As Lord Macfadyen ... commented,
the policy of the law determines into which category a defect falls.
[50] Into
which category, then, does the defect in the present proceedings fall? In principle, if suspension is to be
permitted despite the complainer's acquiescence, the defect must be
sufficiently serious to overcome the policy of the law in favour of upholding
convictions and sentences which the complainer has accepted and which have been
treated as valid for a considerable period."
[14] In the passage
cited with approval by both Lord Hope and Lord Rodger, Lord Macfadyen, in the
High Court of Justiciary (2005 JC 10, at paragraph [66]) said:
"There are, in my opinion, no
unequivocal criteria by which to recognise a nullity that cannot be overcome by
implied consent. I do not consider that
any common thread can be seen as running through the cases. It is, it seems to me, a matter of the policy
of the law in each case whether the defect should be regarded as of such a
nature or of such gravity as to be incapable of being overlooked, even if the
accused may be taken to have consented to its being overlooked."
[15] In the present
case the question of acquiescence does not arise since the appellants have been
alive to the defect in citation from the beginning and took the point at the
first opportunity. They were represented
at the first diet on 31 October 2006 and were able to make such use of
the diet as they wished. Accordingly it
is not suggested that the shortening of the induciae by one day caused them any
prejudice.
[16] Although Lord
Justice General Emslie's statement in McDonald
and Others v H.M. Advocate that
invalidity of citation had never had the effect of rendering proceedings at a
subsequent trial diet incompetent was made in the context of waiver by an
accused of his right to object, it is clear from the later cases that, where
questions of waiver and acquiescence do not arise, defects in citation will not
have the effect of rendering subsequent procedure incompetent where there is no
prejudice or injustice to an accused. As
in Kerr v Carnegie it is relevant to the question of prejudice to consider
the purpose of the provisions of section 66(6) relating to the first diet. As was pointed out in Hogg v H.M. Advocate the
purpose of the first diet is similar to that of the intermediate diet in
summary procedure. It is not specially
conceived in favour of the accused but is of an administrative nature directed
to pre-trial preparation. In Kerr v Carnegie the intermediate diet was omitted altogether but the court
nevertheless held that subsequent procedure was not rendered incompetent.
[17] In the present
case a first diet took place. The
appellants were not prejudiced or disadvantaged. In these circumstances we are clearly of the
view that the shortened induciae did not represent a defect in procedure
sufficiently grave to have the effect of rendering subsequent procedure
null. The appeals on this ground accordingly
fail.
The second plea: oppression
[18] This plea arises from the loss of the implements. The plea is to the effect that each of the
appellants is severely prejudiced by the loss of these objects to such a degree
that they cannot receive a fair trial, no direction by a sheriff can cure the
deficiency in the evidence, and accordingly the actings of the Crown in
re-indicting the appellants without including these objects as labelled
productions are unfair and oppressive.
As we have said, the sheriff repelled this plea in hoc statu.
[19] It is
convenient at this point to give a brief account, in chronological order, of
the authorities to which reference was made before us. In Maciver
v Mackenzie 1942 JC 51 Lord
Justice General Normand, in a passage applied in Tudhope v Stewart 1986 JC
88, said at page 54 that the test of whether articles required to be
produced was whether the real evidence was essential for proving the case
against the accused, and not for the purpose of testing the credibility of the
Crown witnesses.
[20] Maciver v Mackenzie was referred to in Anderson v Laverock 1976 SLT (Notes) 14. In that case a number of
salmon were found in the accused's car near the River Tweed during the close
season. The fish were examined in the
police station by police officers and by a water-bailiff, whose evidence was
that the fish were marked with holes or tears of the type made by cleeks or
gaffs. The accused did not have the
opportunity of examining the fish or having them examined. The fish were not produced at the trial. The accused was convicted, but on appeal his
conviction was quashed. In their opinion
the court referred to "the canons of justice and fair play" and held that,
since the accused had not been given the opportunity of examining the fish
himself or having them examined, the conviction could not stand.
[21] Anderson v Laverock
was of course decided before the incorporation of the European Convention on
Human Rights into our domestic law in 1998, but it can be seen from the
Commission decision in Jespers v Belgium (1981) 27 D.R. 61 that the
application of Article 6 of the Convention leads to a similar result. At paragraphs 55 to 58 the Commission
referred to the principle of "equality of arms", expressing the view that the
"facilities" referred to in Article 6, paragraph 3(b), which everyone
charged with a criminal offence should enjoy, include the opportunity to
acquaint himself, for the purposes of preparing his defence, with the results
of investigations carried out throughout the proceedings. It was the right of the accused to have at
his disposal, for the purposes of exonerating himself or of obtaining a
reduction in his sentence, all relevant elements that had been or could be
collected by the competent authorities.
[22] The leading
Scottish case to which reference was made is McFadyen v Annan 1992 JC
53, in which a Full Bench held that, in cases of alleged oppression, the
question for the court was whether there was such prejudice to the prospects of
a fair trial that it would be oppressive to require the accused to face trial,
the test of oppression being the same in such cases as in any other
situation. In solemn proceedings, the
court required to ask whether the risk of grave prejudice to the prospects of
the accused receiving a fair trial was so grave that no direction by the trial
judge to the jury could be expected to remove it.
[23] Reference was
made to other cases in which objects had not been lodged as productions. In McKellar
v Normand 1992 SCCR 393 the appellant
was charged with the reset of a bed and a blanket, neither of which was produced
at her trial. The court held that while
it was good practice for items which were the subject of a charge of this kind
to be produced if it was convenient to do so or, failing production, for labels
relating to them to be produced in their place, the question was always
whether, in the absence of the items or labels, injustice was likely to result
to the accused, which was not the position in that case.
[24] In McQuade v Vannet 2000 SCCR 18 a tape recording taken from CCTV cameras which
covered the locus had been deleted. The
appellant took a plea in bar of trial on the ground that the destruction of the
video record prevented a fair trial taking place. It was held that the sheriff correctly
repelled the plea on the ground that any prejudice was possible rather than
actual and could not be said to be grave until more was known about it. If, having heard the relevant evidence, the
sheriff was persuaded at trial that the prejudice was so grave that he could not
arrive at a fair verdict, he could desert the diet. In Rose
v H.M. Advocate 2003 SCCR 569 a
similar situation, involving the deletion of a tape recording, arose. The appellant lodged a devolution minute on
the ground that the absence of the video tape created a material risk of his
not receiving a fair trial, contrary to his entitlement under Article 6 of
the Convention, since it deprived him of the opportunity to fortify the
credibility and reliability of a witness who had seen the tape recording. It was held that the correct question at the
pre-trial stage was not whether there was a material risk of the appellant not
receiving a fair trial, but whether the circumstances were such that he could
not receive a fair trial. Since there
was no agreement as to what could be seen on the tape recording, and whether it
would have supported the defence and undermined the evidence of the complainer,
this was not a case in which it could be affirmed before the trial that for the
proceedings to continue against the appellant would involve a breach of his
right to a fair trial under Article 6.
[25] Finally,
reference was made to Sinclair v H.M. Advocate 2005 SC (PC) 28, a case
which related to the failure of the Crown to disclose police statements which
could have been used to undermine the credibility and reliability of a Crown
witness. At paragraph 33 Lord Hope
of Craighead said:
"First, it is a fundamental aspect of
the accused's right to a fair trial that there should be an adversarial
procedure in which there is equality of arms between the prosecution and the
defence. The phrase 'equality of arms'
brings to mind the rules of a medieval tournament - the idea that neither side
may seek an unfair advantage by concealing weapons behind its back. But in this context the rules operate in one
direction only. The prosecution has no
Convention right which it can assert against the accused. Nor can it avoid the accused's Convention
right by insisting that the duty does not arise unless the accused invokes it
first. Secondly, the prosecution is
under a duty to disclose to the defence all material evidence in its possession
for or against the accused. For this
purpose any evidence which would tend to undermine the prosecution's case or to
assist the case for the defence is to be taken as material. ...".
[26] Before us, it
was accepted by their counsel that the appellants had to satisfy us that they
could not receive a fair trial in the absence of the implements as labelled
productions. It was submitted that this
was so, because the disappearance of the implements gave rise to a serious and
incurable difficulty. It deprived each
of the several appellants of the opportunity to prove unambiguously by
scientific examination that traces of their DNA were absent from productions on
which the Crown would have relied for conviction. Now the presiding sheriff could only direct
the jury as to the possibility that, if the productions had been examined for
DNA or made available to the defence, such evidence might have been forthcoming. This would altogether lack pungency as
compared with what the defence might have been able to say had the Crown
analysed the productions for DNA or disclosed to the defence that they were
being offered the opportunity to have such an analysis carried out for the
several appellants. The loss or
destruction of these productions meant that the defence were permanently
deprived of that opportunity, and thus the appellants could not be guaranteed a
fair trial. It was also suggested that,
had the implements been available for examination by a defence medical expert,
an opinion could have been expressed as to whether they were respectively
capable of causing the complainers' injuries.
[27] The Advocate
Depute pointed to the fact that the three complainers had been listed as Crown
witnesses, and indicated that the Crown had not had tests carried out on the
implements. This led counsel for the
appellants to submit that the failure of the Crown to explore the possibility
that the implements did not bear the DNA of all or any of the appellants, and
thus to seek evidence which might have led to the exculpation of the
appellants, constituted a breach of the appellants' rights under Article 6
of the Convention.
[28] In our opinion
the sheriff correctly decided to repel the plea in hoc statu. It seems to us
to be quite impossible to affirm at this stage that the appellants cannot
receive a fair trial. The appellants
founded strongly on Anderson v Laverock, but in our opinion that case, which was an appeal after
conviction, turned on evidence on which the Crown relied, following examination
of the condition of the fish, as yielding an inference as to the manner in
which the fish had been unlawfully taken out of season. The accused had been given no comparable
opportunity. This was a clear example of
a lack of equality of arms. In the
present case, there is no suggestion that the Crown will seek to rely on
evidence about the condition of the missing implements. Recognising this, the bold submission by
counsel for the appellants was that it was the Crown's duty to have the
implements examined. This was advanced
as a proposition of general application:
it was submitted that it was the duty of the Crown, wherever articles
were recovered in the course of a criminal investigation, regardless of the
availability of, for example, compelling eye-witness evidence, to have the
articles examined for evidence that might lead to the exculpation of the
accused. The authorities referred to do
not appear to us to yield such a proposition:
the furthest they go is to establish that, if the Crown seek to rely on
evidence yielded by an examination of articles recovered in the course of a
criminal investigation, then the defence must in fairness have a similar
opportunity for examination of the articles.
In any event, we view with a degree of scepticism the argument that the
loss of the implements has deprived the defence of the opportunity of having
them independently examined. As has been
seen in the summary of the procedure given at paragraph [2] above, many months
elapsed without any attempt by the defence to have the implements examined
while they were still available, and it was only once it had become known that
they were lost that the appellants' advisers first raised the question of
forensic examination. In any event, it
is not obvious at this stage that, without access to the implements, the
defence will be unable to obtain a medical opinion as to the causation of the
complainers' injuries: such opinions are commonly expressed even when the
weapons have not been recovered.
[29] The defence
will have all the usual opportunities during the course of the trial to make
submissions about and to exploit the loss of the implements. The significance of that loss will require to
be assessed by the sheriff in the context in which it is raised, and
appropriate decisions made then. We are
not to be taken to be expressing any view about these issues in advance of the
trial: it is sufficient that in our
opinion it is impossible to say at this stage that the appellants cannot
receive a fair trial or that the requirements of the law cannot otherwise be
complied with. For these reasons the
appeals on this ground also fail.
Result
[30] We shall accordingly refuse the appeals
and remit to the sheriff to proceed as accords.
