APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Carloway Lord Bonomy NOTE: I am recirculating this draft, which I have amended in the light of the proposals you have each made. The amendments are shown in red. If either of you have any remaining concerns proposed, we had better have a meeting t discuss them. I am returning your initial proposals 12 August 2010. K.H.O	[2010] HCJAC INFO89 Appeal No: XM10/09 OPINION OF THE COURT delivered by LORD OSBORNE in PETITION TO NOBILE OFFICIUM by JOHN WILLIAM CORKISH Petitioner ; against HER MAJESTY'S ADVOCATE Respondent: _______

Petitioner: D Burns QC; Public Defence Solicitors Office, Falkirk

Respondent: G Allan QC AD; Crown Agent

27 August 2010

The background circumstances

[1] In 2008 James Scott MacDonald and Raymond Anderson, Senior, were indicted by the Crown on several charges, including reset, having possession of firearms, including three machineguns, without holding a firearms certificate in force at the time, contrary to section 1(1)(a) of the Firearms Act 1968, having possession of prohibited weapons, to which section 5 of that Act applied, namely three machineguns, without the authority of the Secretary of State or the Scottish Ministers, having possession of ammunition to which section 1 of that Act applied, contrary to section (1)(1)(b), as amended, and conspiracy to murder certain named persons. It was also averred that, in furtherance of the alleged conspiracy, the accused had, among other things, attempted to murder a named person by repeatedly discharging firearms at him and repeatedly shooting him on the body, all to his severe injury, attempting to murder another named person in the same way and did murder another named person by repeatedly discharging firearms at him. The indictment also contained a charge of attempting to pervert the course of justice by setting fire to a motor vehicle, with intent to destroy it and to avoid detection. The petitioner was listed as a Crown witness in the indictment.

[2] This indictment was brought to trial at the High Court in Glasgow in March 2008. The petitioner was called to give evidence by the Crown on 6, 7 and 11 March 2008. Because of certain problems concerning the jury in that trial, it was deserted pro loco et tempore on 11 March 2008, in the course of the cross-examination of the petitioner.

[3] In the course of his examination-in-chief on 7 March 2008, the petitioner did not identify Raymond Anderson as the person about whom he had given evidence. In so doing, it is accepted that he perjured himself. He also lied about a number of different aspects of his evidence during his examination-in-chief. In addition to that, he prevaricated during the course of his evidence. He was warned about his behaviour in the witness box on a number of occasions by the trial judge. On returning to court after a weekend break, on Monday 11 March 2008 the petitioner changed his evidence and did identify the accused Raymond Anderson. He also spoke about matters concerning which he had been unclear in his evidence the previous week. He completed his examination-in-chief and was then cross-examined by defence counsel. In the course of his cross-examination by counsel for the second named accused, Raymond Anderson, Senior, the trial was deserted for other reasons.

[4] A fresh trial was commenced later in March 2008. In this trial, on 31 March and 1 April, the petitioner gave evidence as a Crown witness. In the course of his examination-in-chief, he admitted that he had lied on oath at the previous trial. He was cross-examined on 1, 2, 3, 4 and 7 April 2008 by defence counsel. In the course of his cross-examination he admitted that he had lied about a number of matters during the course of his evidence at the earlier trial.

[5] At the conclusion of his evidence, the trial judge ordained that the petitioner should seek legal advice on the question of whether he had committed a contempt of court. In consequence, the petitioner obtained legal representation. The notes of the evidence at both trials were extended and provided to the petitioner's legal advisors. After further procedure, a hearing was fixed in relation to the issue of contempt of court, to take place on 1 June 2009. At that hearing, the petitioner accepted that he had been in contempt of court in respect of his perjury and prevarication at the first trial. Thereafter, the trial judge heard a plea in mitigation advanced on his behalf. Following upon that, the trial judge sentenced the petitioner to imprisonment for a period of one year for his contempt of court. The petitioner has brought the present petition for the purpose of appealing against that sentence, it being the only mechanism where by such an appeal can be brought. On 12 June 2009, the appellant was admitted to bail on certain conditions, pending the determination of his appeal.

[6] The following undisputed averments are made in support of the present petition. It is said that the petitioner attended for precognition by the Crown on 22 April 2007. At that time he was informed about special measures which could be taken at the forthcoming trial to offer him a level of protection, such as the use of screens, or a closed circuit television link. As a result of that conversation, the petitioner understood that special measures would be taken at the trial. In the event, at the first trial, no such measures were taken. The petitioner was thus required to give evidence unprotected in open court at that trial. He found that experience highly stressful. As a result of the experience of the first trial, the Crown applied to the court for special measures to be taken prior to the second trial for the purposes of the facilitation of the leading of evidence. The trial judge granted that application and, at the second trial, the petitioner was permitted to give evidence from behind screens.

[7] It is averred that at the time of both trials, the petitioner suffered from a number of medical conditions, including ischaemic heart disease, diabetes, angina, problems with fainting, anxiety and depression. At the material time he was taking a large number of prescribed drugs which rendered him liable to anxiety, depression, confusion, low blood pressure, muscle pain and cramps. According to a Dr Skett, a reader in pharmacology, it was more likely than not that the inability of the petitioner to answer questions put to him in court adequately was, to a significant extent, caused by the medication he was prescribed at the material time, as appears from a report dated 1 July 2008. In the course of the first trial, the petitioner in fact suffered attacks of angina on 10 March and 11 March 2008. The case was adjourned to enable him to obtain treatment. At the second trial, the petitioner again required medical attention during the course of his evidence.

[8] It is also averred that the petitioner had been under real and substantial threat to his person and that of his family from the accused prior to and during both trials. As a result of such threats, the petitioner had been offered protection under the witness protection scheme at the highest level. Due to the personal isolation that such a level of protection would have involved, he refused that level of protection and accepted a lesser level of protection. Thus in April 2007, he was relocated from his home and given police security. It was considered by those involved in the witness protection scheme in Strathclyde Police that the associates of the accused would be likely to make efforts to "silence" the petitioner, as appears from an affidavit of a police officer produced on the petitioner's behalf.

[9] It is also averred that the petitioner in fact spoke up against the accused in the first trial after initially failing to identify the second named accused. At the second trial he gave evidence against both accused. That evidence was of high importance in the case against the accused, both of whom were found guilty following the second trial. The giving of that evidence was a highly stressful experience for the petitioner because of the level of threat to which he had been subjected, his medical condition and the prescribed medication that he was then taking. It is said that his evident difficulty in giving evidence was caused by those factors. Despite them, however, he did give evidence against the accused. As a result of having given that evidence, the petitioner has required, for his own safety, to assume a new identity and to remove himself from the context in which he lived, and from his friends and family. It is averred that the petitioner's health continues to deteriorate. Having been subjected to imprisonment for a short period of time, it is considered that he would be under a high level of threat within the prison estate.

[10] As a result of the petitioner's incarceration, it is said that the witness protection programme which had been necessary for his protection might itself be adversely affected. In that connection reference is made to an affidavit produced on the petitioner's behalf by an Assistant Chief Constable of Strathclyde Police. Against this background, it is contended in the petition that the disposal by the trial judge of the matter of the petitioner's contempt of court has resulted in the imposition of an excessive sentence.

The hearing before us

[11] At the hearing, senior counsel for the petitioner explained the undisputed factual background to the matter, to which we have already referred. He explained that the petitioner continued to accept that he had committed perjury and had prevaricated at the first trial, in particular, by not recognising the accused. However, following a weekend adjournment on Monday 11 March 2008, he had changed his evidence and identified the accused. In the second trial he had given evidence of identification. It was not accepted that he had prevaricated in any way at the second trial. It was conceded that, during the course of proceedings, he had been warned by the trial judge concerning the need for him to give frank and honest evidence. It was the case that during the course of the second trial the petitioner had become ill and had required to attend hospital. The petitioner's difficulties at the first trial had been exacerbated by the failure of the Crown to take special measures to facilitate his giving of evidence. Following the sentence of imprisonment imposed by the trial judge, the petitioner had spent two weeks in custody in solitary confinement because of the risks that he faced in prison. Were he to be returned to prison he would require to be treated in the same way. There was available to the court an affidavit from an Assistant Chief Constable with Strathclyde Police which expressed the opinion that, were the sentence of imprisonment imposed upon the petitioner to remain undisturbed, that could have a general adverse effect with regard to reluctant witnesses who, it might be, operate on the fringes of criminality, but were not themselves actively engaged in crime and deter them from speaking to the police and providing information. Such persons, given their proximity to the commission of crime and their considerable fear of the perpetrators, were reticent to provide full information to police officers when questioned. If the sentence imposed upon the petitioner were to be implemented, that could have a deleterious effect on future cases and the ability of police officers to reassure potential witnesses concerning their position.

[12] Senior counsel said that the present position was that the petitioner had had to move his place of residence again. His change of name had been completed. He submitted that the court should consider a non-custodial disposal. It was appropriate to note that, in the original proceedings, the representative of the Crown had stated that the prosecuting authorities did not wish action to be taken against the petitioner. They themselves did not intend to prosecute him. Finally, senior counsel indicated that the petitioner had a minor record of convictions of his own. He had served a limited custodial sentence in the 1980s.

[13] Following upon our hearing the submissions of senior counsel for the petitioner, the Advocate depute said that he had a contribution to make. The petitioner had been a material and significant witness in support of the Crown case. There had in fact been three trials. The first had been aborted and in that trial he had not given evidence. However, as narrated he had given evidence in the second and third trials, as it were. The case brought to trial and which had resulted in convictions had had the most sinister overtones, as might be evident from the terms of the charges brought. The Crown accepted that the petitioner's safety was a justifiable concern and that his safety and life could have been at risk because of the evidence that he had given. His continuing safety might still be in jeopardy. In connection with the evidence given by the petitioner at the first trial at which he had testified, the Crown had been given an opportunity to consider its position as regards a prosecution of the petitioner. That consideration had been undertaken by the Law Officers themselves. A decision was taken not to prosecute.

[14] The petitioner's difficulties arose in part from the fact that he had been closely associated with the first-named accused near whom he had lived. The petitioner had indeed been involved in "dressing" masks which might have been used in the perpetration of the murder. However, it could not be asserted with certainty that they had been used on that occasion. The Crown well understood that the petitioner had testified that he had set the sights on a firearm and had been present when the first-named accused had discharged that firearm and a handgun or handguns on waste ground near his home. That had occurred some weeks before the murder. He had also been involved in the acquisition of the motor vehicle involved about a week before the murder.

Our determination

[14] We have formed the view that the disposal selected by the trial judge following upon the petitioner's admitted contempt of court was, in all the circumstances, inappropriate and excessive. In reaching that view we are influenced by several factors, to which we consider the trial judge gave insufficient weight, resulting in the imposition of an inappropriate and excessive sentence by reason of their cumulative effect. It is evident that the petitioner was under great stress at the time of his giving of evidence in what has been described as the first trial in which his evidence was given. That was created by a justifiable fear for his own safety and was exacerbated by the fact that the special measures which the Crown had indicated could and would be taken at that trial were not in fact taken to assist his giving evidence, due to a failure in communication. After time for reflection on what had been said to him by the trial judge, the petitioner gave evidence implicating the accused. He did so again at the subsequent trial in respect of which there was no finding of contempt, albeit that the trial judge seemed to have been concerned about his conduct in the witness box. Furthermore, at the material time, the petitioner was taking medication for a number of conditions which was likely to have had the effect we have indicated. However, perhaps the most powerful consideration that has influenced our decision is the material now available to us from an Assistant Chief Constable of Strathclyde Police to the effect already described. Plainly, it is of the first importance that persons who may be in close proximity to the commission of serious crime might be deterred from furnishing information and evidence to the police if difficulties which they may encounter in doing so may result in the kind of disposal selected in this case. In our opinion, that is a matter of great significance in a case such as the present one, in which charges of the most grave and sinister kind were brought to trial. Plainly that consideration played a major part in the decision taken by the Crown at the highest level not to prosecute the petitioner. That is a circumstance to which the trial judge appears to have given little or no weight. While we can readily understand his indignation at the commission of perjury in the first trial, he appears to us to have given insufficient weight to the wider implications of the disposal which he selected. In all these circumstances we have concluded that that disposal must be quashed. In its place, the petitioner will be admonished.