Scottish High Court of Justiciary Decisons

IN BILL OF SUSPENSION BY CHRISTOPHER KELLY and MOHAMMED SARWAR v. THE PROCURATOR FISCAL, GLASGOW [1998] ScotHC 18 (3rd December, 1998)

In this Bill the complainers seek the suspension of a warrant granted on 5 November 1998 at the instance of the respondent by the sheriff of Glasgow and Strathkelvin for the citation of the first complainer for precognition on oath before the sheriff.

The application made by the respondent related to proceedings against the second complainer. On 15 December 1997 these proceedings were commenced by a petition which was presented to the sheriff, who granted warrant for his arrest. On 17 December 1997 the second complainer was brought before the sheriff for judicial examination. At its conclusion he was committed for further examination, and liberated on bail. On 30 September 1998 an indictment was served on the second complainer and he was cited to attend for trial at a sitting of the High Court of Justiciary at Edinburgh on 2 November. He was charged on this indictment along with a co-accused Mumtaz Hussain. On 15 October a motion by the co-accused for postponement of the trial was dropped, but on the motion of the Advocate-depute the court deserted the diet pro loco et tempore. We were told that the Crown intend that a fresh indictment in essentially the same terms would be served in due course on the second complainer and the co-accused.

The granting of the warrant by the sheriff followed a hearing at which he was addressed by the procurator fiscal depute. In accordance with normal practice neither of the complainers was present or represented. The sheriff was informed that the first complainer, who had acted as the second defender's solicitor since 1995, had declined to give information on precognition to the respondent, on the ground that such information was covered by the privilege relating to communications between solicitor and client. The sheriff was provided with a list of nine questions which the respondent proposed to put to the first complainer at precognition on oath. He was also informed that the respondent intended to take the unusual course of sending a copy of those questions to the first complainer in advance, so that he could take such legal advice as he considered appropriate. On 10 November notice was served on the first complainer advising him that by virtue of the warrant which had been granted by the sheriff he was required to attend at the Sheriff Court so that he could be examined in precognition on oath. In this Bill the complainers assert that the warrant granted by the sheriff is unlawful et separatim oppressive.

Before coming to the submissions which were addressed to this court, it is convenient to give a brief outline of the charges in the indictment which are themselves of substantial length.

The first three charges are directed solely against the second complainer. The first is a charge that he formed, and took certain steps to further, a fraudulent scheme to induce the Electoral Registration Officer for the City of Glasgow to add the names of persons and their qualifying addresses to the Register of Parliamentary Electors for the Govan Parliamentary Constituency by providing him with false statements to the effect that they had been resident at specified addresses within the constituency on 10 October 1996, which was the qualifying date for a parliamentary election. The second charge is a charge of attempting to pervert the course of justice, in which it is alleged inter alia that the second complainer, being conscious of his guilt in respect of the first charge, incited or attempted to procure Badar Islam to give a false affidavit in exchange for payment of the sum of £5,000. This is said to have been with the intent inter alia of producing false evidence for use in proceedings for defamation against newspapers which had published articles concerning alleged irregularities in relation to the registration of electors in the constituency. In the alternative, this charge alleges a contravention of section 75(2) of the Criminal Law (Consolidation)(Scotland) Act 1995. The third charge is a charge of contravention of certain provisions of the Representation of the People Act 1993.

The fourth charge, which is directed against both accused, alleges a further attempt to pervert the course of justice. It is alleged that they conspired together to pervert the course of justice by a pretence that the co-accused had issued to the second complainer a cheque for £5,000 by way of guaranteeing the repayment by Badar Islam of an alleged loan to him by the second complainer of the sum of £5,000. It is stated that in furtherance of that conspiracy :

As regards the nine questions, it is not necessary for present purposes to set out their terms in full. It is sufficient to state that the first two questions seek information as to communications between the complainers in regard to an action of defamation against a newspaper publisher in respect of an article published in the newspaper on 18 May 1997. The third and fourth questions seek information about what the second complainer told the first complainer about a cheque drawn by Mumtaz Hussain for £5,000 in favour of United Wholesale Grocers Limited and requesting the first complainer to meet Mumtaz Hussain. The remaining questions seek information as to what passed between the first complainer and Mumtaz Hussain, including what was said in regard to the cheque and a request that Mumtaz Hussain provide information relating to the issue of the cheque within the terms of an affidavit.

On behalf of the complainers, Mr. Jones submitted in the first place that there was a general rule that while a precognition might be taken in appropriate circumstances in the Crown's investigation of a charge, the same did not apply after service of an indictment containing that charge. In the present case the Crown had moved on from the stage of investigation to that of prosecution. There were no special circumstances relied on by the Crown which could justify departure from the general rule which he had stated.

In support of that submission Mr. Jones referred to Hume on Crimes II pages 81-82 where the author describes the duty of the magistrate to carry out the precognition of witnesses. The author states (at page 81):

At page 82 he states:

Mr. Jones said that, while the nature of the investigation of crimes had changed over the years, this principle still applied. What Hume had stated had never been doubted. He also drew attention to observations of the court in Carmichael 1992 S.C.C.R. 553 in which the Crown successfully advocated the refusal by a sheriff of a warrant to cite a witness for precognition on oath on the ground that she had given a precognition to the Crown which was materially different from her earlier statement to the police. At page 555F the court stated:

In that case the court was satisfied that the prosecutor had good reasons for wishing to precognosce the witness on oath and that his explanation for the view which he had taken ought to have been accepted by the sheriff. That case demonstrated that the court still exercised control over a precognition on oath by satisfying itself that an adequate explanation had been given.

We do not consider that this argument is well-founded. As the Advocate-depute pointed out, Hume describes a different procedure for the investigation of crime from that which is carried out in modern times: the magistrate required to complete the precognition relative to a charge before the matter passed into the hands of the prosecutor. While in modern practice there is still a distinction between investigation on the one hand and prosecution on the other, there is no obstacle to continuing the investigation after the service of a libel. Thus, for example, it is commonplace that, in order to deal with a matter which is raised by way of defence the Crown may take an additional precognition from a witness who is already included in the list annexed to the indictment. Again, we see no good reason why the Crown should not also be able to precognosce a witness further in order to be able to lead the most direct evidence on a subject rather than requiring to rely on inference. Quite apart from these examples, section 67(5) of the Criminal Procedure (Scotland) Act 1995 enables the Crown to give notice that, with the leave of the court, it will examine a witness who is not included in the list annexed to the indictment. If the argument for the complainer were correct, it would inhibit the duty of the Crown to see that there is included in its list of witnesses those whose evidence may have a bearing on the guilt or innocence of the accused (McLeod v. H.M. Advocate 1998 SCCR 77, per the Lord Justice General at page 97), and would tend to interfere with the duty of every citizen to give information to the Crown and defence alike in regard to the case in which he is to be called (H.M. Advocate v. Monson (1893) 1 Adam 114, per the Lord Justice Clerk (Macdonald) at page 11).

Mr. Jones next submitted that the first complainer was a person to whose evidence objection could properly be taken. Accordingly he was not a witness who might properly be examined at precognition. In the event the matters about which he was to be asked were covered by the privilege attaching to communications between solicitor and client, and he could not be compelled to answer. In this connection Mr. Jones referred to Alison's Principles of the Criminal Law of Scotland at page 137 where it was stated that an exception to the persons in respect of whom the judge - examinator might grant warrant to cite for the precognition was "anyone to whose testimony there would be a legal objection". At page 138 the learned author states, by way of example, that no authority could justify a magistrate in tendering an oath to a wife against her husband. He continues (at page 138-139):

Mr. Jones submitted that this was equally applicable to a solicitor in regard to communications between him and his client. He accepted that some of the questions which had been listed by the respondent might in themselves be unobjectionable at a trial. However, other questions, such as one which sought an account of the information provided by Mumtaz Hussain to the first complainer about the cheque, was plainly objectionable. Even if the initial question was unobjectionable, the answer might lead to supplementary questions of which the same could not be said. Unlike a document which was limited in its extent, there was no obvious limit to the extent of a person's knowledge. The only protection for a witness lay in the supervisory role of the sheriff, which he required to exercise not merely at the stage of the precognition on oath, but also when warrant to cite was being sought. Mr. Jones pointed out that following the service of the petition on the second complainer, the first complainer was involved in carrying out investigations on his behalf, as a result of which he became privy to information which was plainly covered by the privilege attaching to the relationship of solicitor and client. Any precognition of the first complainer on oath would thus be fraught with difficulty and danger.

Mr. Jones pointed out that in granting the warrant the sheriff had decided that he could not have regard to the privilege attaching to communications between client and solicitor. One of the reasons which he had given for this view was that the appropriate time for raising the issue of that privilege, if it was to be raised by the second complainer, was at the trial. This did not meet the point to which Alison alluded that by means of the precognition on oath the prosecutor would have become privy to information which should have been withheld. If the rule referred to in Alison no longer applied it would also mean that a witness who had been cited for precognition under section 67A of the Criminal Procedure (Scotland) Act 1995 would be under a compulsion to answer questions without regard to any question of privilege, with the result that once more the prosecutor could become privy to information which was covered by privilege. That section did not appear to make any allowance for a reasonable excuse for a witness declining to answer a question, and there would be no contradictor, let alone a presiding judge to resolve an objection.

Mr. Jones accepted that it was recognised that there was an exception to the privilege where it was alleged that the solicitor had been the instrument by means of which the client perpetrated a fraud. Thus in M'Cowan v. Wright (1852) 15 D. 225, which was concerned with the reduction of deeds granted by a bankrupt on the ground of fraud at common law, the Lord Justice Clerk (Hope) at page 233 said:

In Micosta S.A. v. Shetland Islands Council 1983 S.L.T. 483, the Lord President (Emslie) at page 485 observed:

The Crown were unable to point to an exception which covered the present case. There was no suggestion in the terms of the indictment that the first complainer had been acting as the hand of his client in the commission of fraud or some other illegal act. In these circumstances, it was submitted, the information which was sought from the first complainer was covered by the privilege.

In considering these submissions it is important to bear in mind that it is to the warrant to cite the first complainer for precognition on oath that the Bill of Suspension is directed. It follows that if any question can properly be put to the first complainer in regard to the charges on the indictment, the attack on the warrant must fail. In the present case the prosecutor has taken the unusual course of giving advance notice of a number of questions which are intended to be put to the first complainer. However, it is plain that at a precognition on oath the prosecutor would not be restricted to these questions, but might ask other questions whether or not they were following up an answer which had been given to any of them. The significance of this point is that the list of questions includes two questions which are plainly directed to discovering what information Mumtaz Hussain provided to the first complainer in regard to the cheque which had been drawn on the Trustees Savings Bank plc for £5,000 in favour of United Wholesale Grocers Limited, including the date on which he had issued that cheque and to whom. Further they include a question seeking to discover whether the first complainer requested Mumtaz Hussain to provide information in regard to the issuing of such a cheque within the terms of an affidavit. Accordingly it is obvious that these questions are directed to part of the res gestae alleged in charge 4 of the indictment. In Hume II 350 the author states:

However, the questions which have been listed should also be looked at in the light of a wider consideration. Charge 4 contains the allegation that the second complainer and Mumtaz Hussain conspired together to pervert the course of justice, one of their objects being to prevent the police and criminal authorities from ascertaining the truth as to the second complainer's involvement in the matters alleged in the second charge. We do not understand the remarks of the Lord President in Micosta S.A. as restricting the exemption from the privilege to the situation in which a solicitor has himself been a party to the fraud or other illegal act. The Advocate-depute founded on the following passage in Dickson on Evidence 3rd edition section 1678:

As the Advocate-depute pointed out, the common law in England was to the same effect. He referred us to the leading case of The Queen v. Cox and Railton (1884) 14 Q.B.D. 153, a decision of the Court for Crown Cases Reserved. Giving the decision of the court Steven J. at pages 166-167 discussed the scope of the privilege in regard to communications between solicitor and client. On the latter page he stated:

The same principle underlies section 10 of the Police and Criminal Evidence Act 1984 which has superseded the English common law, as was pointed out by Lord Goff of Chieveley in R. v. Central Criminal Court, ex parte Francis & Francis [1989] A.C. 346. In his analysis of the law he pointed out at page 394 that the English common law was to the same general effect as the law of Scotland, quoting the passage from Dickson to which we have already referred. If, as is alleged in charge 4 of the indictment, the second complainer used the services of the first complainer in order to further his conspiracy to pervert the course of justice, any privilege arising out of communications between solicitor and client will not exclude the questioning of the first complainer in regard to those matters.

In these circumstances we are satisfied that the submissions which were advanced by Mr. Jones are not well-founded. Accordingly we will refuse to pass the Bill.