Scottish High Court of Justiciary Decisons

ANDREW THOMPSON v. FRANK CROWE, PROCURATOR FISCAL, HAMILTON [1999] ScotHC 15 (23rd January, 1999)

In this Bill the complainer seeks the suspension of his conviction on 25 April 1997 in Hamilton Sheriff Court on nine charges of forcing open or entering motor vehicles and stealing articles from them. His complaint is based on the fact that the sheriff refused a defence motion for a trial within a trial. The competency of the Bill is not in dispute.

It is convenient at the outset to set out a brief account of the history of the case. On 20 March 1997 the complainer appeared in court on a summary complaint which contained a total of ten charges, to which he pled not guilty. The diet was adjourned for trial, and in due course the trial commenced on 24 April 1997. At the outset a joint minute of admissions was lodged. This recorded the parties' agreement as to the facts relating to the commission of the offences. The sole issue accordingly was whether they had been perpetrated by the complainer. Thereafter evidence was led by the prosecution. During the evidence of the fourth Crown witness, Detective Sergeant Alexander Hippman, the solicitor for the complainer objected to his giving evidence as to answers which the complainer had given at a police interview on 20 March 1997, the day following the last of the offences. The objection was on the ground that evidence about the interview was inadmissible in respect that the complainer's answers had been obtained by inducement offered to him by the police officers who interviewed him. The solicitor for the complainer moved the sheriff to allow a trial within a trial as to the circumstances in which the interview took place. According to the sheriff's report, "he submitted the accused's position was that he should be able to comment on the Crown's position without foregoing his right not to give evidence". The sheriff refused the motion. According to his report he did so for the following reasons:

Thereafter the sheriff heard the evidence of the police witnesses under reservation of the question of the admissibility of the evidence, which was to be determined at a later stage. Although it is not so stated in the sheriff's report, it appears from the minutes that this was in response to a motion for the defence. Thereafter the examination-in-chief of Detective Sergeant Hippman continued and he was cross-examined. Further Crown evidence was led from Detective Constable Hugh Craig, who was the corroborating officer. A second joint minute of admissions was lodged. In it parties were agreed that Crown production 1 was an accurate transcript of extracts of the interview. The trial was adjourned to the following day when the evidence of a further police officer, Police Constable Frank Thomson, was led. Thereafter the Crown case was concluded. At that stage the prosecutor indicated that he was not seeking a conviction in respect of charge 10.

At this stage the sheriff resumed consideration of the objection to the admissibility of the evidence in regard to the interview. Two points may be noted. Firstly, it is unclear whether the sheriff was addressed by the parties before he intimated his decision. In his report he stated that he had no note of any renewal of the arguments in regard to the admissibility. Secondly, it is reasonably clear that the sheriff gave his decision before calling on the solicitor for the complainer to state whether or not any evidence was to be led by the defence. No point is taken by the complainer in regard to either of these matters, since the burden of his complaint is that the sheriff failed to hold a trial within a trial when he was invited to do so.

No evidence was led on behalf of the defence. The sheriff was then addressed by the parties on the evidence. He accepted the evidence of the police officers as credible and reliable. There was, of course, no contradictor to their accounts as to the circumstances in which the interview took place. The sheriff found the complainer guilty of charges 1-9. The diet was adjourned for the obtaining of reports, and in due course on 16 May 1997 the sheriff made a probation order for a period of three years from that date.

For the complainer Mr. Taylor submitted that the decision of the sheriff to refuse a trial within a trial was so manifestly unfair that no reasonable sheriff would have so decided.

The holding of a trial within a trial is, of course, a procedure which may be adopted in a jury trial. Mr. Taylor submitted that in a summary case, such as the present, a trial within a trial would have taken the form of the sheriff hearing the evidence which the parties wished to lead as to the circumstances in which the interview had taken place. Thus he would have heard the evidence of the police officers on the one hand, and the evidence of the complainer on the other. Mr. Taylor said that the complainer would have given evidence that the police officers had said to him before the interview that if he was co-operative he would be released; that they wanted to "clear up" the investigation of the offences; and that they would "put in a good word" for him if he did what they suggested. Having heard that evidence the sheriff could have reached a decision as to whether or not evidence of the interview was or was not admissible. He did not require to reach an immediate decision on that point, and could have reserved his decision upon it until a later stage in the case. The evidence given at the trial within a trial would be excluded from the evidence on which he would determine the guilt or innocence of the complainer, whether or not he also gave evidence in his own defence.

In the event, by refusing the motion for a trial within a trial, the sheriff had denied the complainer an opportunity to challenge the admissibility of the evidence about the interview except by means of his giving evidence at large in his own defence. The argument in favour of a trial within a trial was stronger in a case such as the present in which the only live issue was whether the complainer had committed the offences, and where this depended critically on the admissibility of evidence as to his answers at the interview. These were relied upon by the Crown as showing special knowledge of the circumstances of the individual offences. Accordingly if the evidence as to his answers was admissible nothing further was required in order to complete the case against him.

In support of his submissions, Mr. Taylor relied on a number of lines of authority. He accepted that, although such a procedure by way of a trial within a trial had been known to take place in summary cases in the Sheriff Court, there was no authority which covered its application in that context.

Mr. Taylor founded on the observations of members of the court in the Full Bench decision in Chalmers v. H.M. Advocate 1954 J.C. 66. These observations, it may be noted, did not form part of the grounds of the decision to quash the conviction in that case, but indicated the practice which should be adopted. At pages 80-81 the Lord Justice General (Cooper) said:

Mr. Taylor pointed out that these observations represented an innovation at that time on the practice of dealing with objections to the admissibility of evidence of prior statements of accused persons. The older practice to which the Lord Justice General referred could be illustrated by H.M. Advocate v. Cunningham 1939 J.C. 61 and H.M. Advocate v. Rigg 1946 J.C. 1. Thus in Cunningham the admissibility of the evidence was decided by the judge in the light of evidence heard by the jury. Even if the judge decided that the evidence was admissible it would still have been open to the defence to invite the jury to decide whether the evidence of the statement should be discarded on the ground that it had not been fairly obtained (see the charge to the jury by Lord Moncrieff in Cunningham at pages 67-68). The underlying principle in the observations in Chalmers was that a trial within a trial was necessary in order to avoid prejudice to the accused person receiving a fair trial.

At the same time Mr. Taylor recognised that, as is well-known, over the years since the decision in Chalmers, judges have sought to curtail the use of a trial within a trial, without going so far as to disapprove of the observations in that case.

Firstly, in a number of later decisions judges have drawn attention to perceived disadvantages in such a procedure. Thus in Hartley v. H.M. Advocate 1979 S.L.T. 26 Lord Avonside at page 28 noted that in that case the objection that a confession had been obtained as a result of physical assault, threats, bullying and inducements

In Thompson v. H.M. Advocate 1968 J.C. 61 the Lord Justice General (Clyde) at page 66 set out a number of particular objections to the practice. He said:

The Lord Justice General went on to say, on the same page:

Mr. Taylor submitted that the various criticisms which were set out by the Lord Justice General were either ill-founded or overstated.

Secondly, there has plainly been a readjustment, or at any rate a restatement, of the boundary between the role of the judge and that of the jury. This was best seen in the decision in Balloch v. H.M. Advocate 1977 J.C. 23. In that case, giving the opinion of the court, the Lord Justice Clerk (Wheatley) said at page 28:

This test has been applied in subsequent cases, such as the Lord Advocate's Reference No. 1 of 1983, 1984 J.C. 52 and Harley v. H.M. Advocate 1995 S.C.C.R. 595.

Mr. Taylor pointed out that the implications of the approach of the Lord Justice Clerk in Balloch was virtually to eliminate a trial within a trial, since the only need for such a trial was where the evidence of the police was challenged. Further, where the facts were not in dispute, the only scope which the trial judge had to exclude evidence of a confession was where the situation was so extreme that the only view which could reasonably be taken by a jury was that the evidence had not been fairly obtained.

The second line of authority on which Mr. Taylor relied related to the application of Article 6(1) of the European Convention on Human Rights. In Funke v. France (1993) 16 EHRR 297 the European Court of Human Rights held that there had been a breach of Article 6(1) in respect of an infringement of the right to a fair trial. This was because the conviction of Mr. Funke for the refusal to provide certain documents was regarded as an attempt on the part of Customs officials to compel him to incriminate himself. In Murray v. United Kingdom (1996) 22 EHRR 29 the court distinguished Funke. In Murray the court observed that while the right to remain silent under police questioning and the privilege against self-incrimination were generally recognised international standards which lay at the heart of Article 6, those standards were not absolute. In that case an accused person had been cautioned under an order relating to proceedings in Northern Ireland and informed that adverse inferences could be drawn at his trial if he elected to remain silent and not answer police questions. At his trial adverse inferences were drawn by the court from the fact that he had not answered police questions and that he had not given evidence at the trial. The European Court held that there were safeguards built into the order and that there was no compulsion to give evidence, in respect that his insistence on maintaining his silence throughout the proceedings did not amount to a criminal offence or contempt of court. Neither was silence in itself regarded as an indication of guilt. Accordingly, having regard to the circumstances of the particular case, it was commonsense that an explanation from the applicant was reasonable. Therefore drawing of inferences was not unfair.

In Saunders v. United Kingdom (1997) 23 EHRR 313 the applicant complained that he had been denied a fair hearing because of the use at his criminal trial of statements obtained from him by inspectors of the Department of Trade and Industry in exercise of their statutory powers of compulsion. It was held by the European Court that there had been a violation of section 6(1) of the Convention. The court observed that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself were generally recognised international standards which lay at the heart of the notion of a fair procedure under that Article. The right not to incriminate oneself presupposed that the prosecution in a criminal case sought to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right was closely linked to the presumption of innocence contained in Article 6(2) of the Convention (para. 68). The court noted that the question for it was whether the use made by the prosecution of the statements obtained from the applicant by the inspectors amounted to an unjustifiable infringement of the right not to incriminate oneself. It had to be determined whether he had been subject to compulsion to give evidence and whether the use made of the resulting testimony at his trial offended against the basic principles of a fair procedure inherent in Article 6(1), of which the right not to incriminate oneself was a constituent element (para. 69). The court concluded that the essential point was the use to which evidence obtained under compulsion was put in the course of the criminal trial. It upheld the claim that the transcripts of his answers, whether directly self-incriminating or not, were used in the course of the proceedings in a manner which sought to incriminate him (para. 71-72). The court stated that it was unnecessary to speculate on the reasons why the appellant chose to give evidence at his trial and decide whether the right not to incriminate oneself was absolute or whether infringements of it might be justified in particular circumstances. It rejected the proposition that complexity of corporate fraud and the vital public interest in the investigation of such fraud and the punishment of those responsible justified the use of the answers which had been obtained compulsorily in a non-judicial investigation to incriminate the accused during the trial proceedings. Accordingly there had been an infringement of the right not to incriminate oneself (para. 73-74).

Mr. Taylor pointed out that in Saunders the Commission had taken the view that the accused must have been subject to additional pressure to give evidence rather than exercise his right to remain silent at the trial. Accordingly he did not have an unfettered choice. He could not point to a compulsitor in the present case. However, the only way in which the complainer could effectively challenge the evidence as to what he had said at the interview was by giving evidence himself as to the circumstances in which it took place. In view of the sheriff's decision to refuse to hold a trial within a trial, the only way in which he could make that challenge was by giving evidence in his own defence. The fact that this was the only course of action available to him in the circumstances detracted from his right to silence. He could not assert that right to silence without losing the opportunity to challenge the evidence.

Mr. Taylor submitted that the approach of the European Court of Human Rights was similar to that of the High Court in Chalmers. He accepted that the right to silence was not absolute. Exceptions could be found in the limited opportunity which a judge, and more recently the prosecution, had to comment on the failure of an accused person to give evidence. He also pointed out the requirement, which is one of long-standing, that an accused person is required to give notice of a special defence.

The last authority on which Mr. Taylor founded was derived from the speech of Lord Fraser of Tullybelton in R. v. Brophy [1982] A.C. 476. In that case the evidence which an accused person had given in a voir dire that he had been a member of the I.R.A. was held to be inadmissible in his trial in which one of the charges was that he belonged to the I.R.A., contrary to section 19(1)(a) of the Northern Ireland (Emergency Provisions) Act 1973, as amended. In giving the leading speech, with which the other members of the judicial committee agreed, Lord Fraser said at page 481:

Lord Fraser went on to illustrate the importance of the principle of the freedom of the accused to testify at the voir dire by reference to the explanation by Lord Hailsham of St. Marylebone in Wong Kam-Ming v. The Queen [1980] AC 247 at page 261.

Mr. Taylor related these observations to the procedure in England under section 76 of the Police and Criminal Evidence Act 1984. Under that procedure the trial judge determined the admissibility of the confession at the outset and after having heard evidence as to the circumstances in which it was obtained. If the challenge failed, the prosecution evidence of the confession and the circumstances in which it was obtained would be given in the presence of the jury. The jury were required to consider the probative value and effect of the evidence of the confession. Where the issues explored in the trial within a trial were explored again in front of the jury, the trial judge had to give appropriate directions to the jury. These might include the possible effect of an alleged inducement on the probative value of the evidence (see Archbold Criminal Pleading, Evidence and Practice, 1998 edition, para. 15-365). Mr. Taylor submitted that the effect of section 76 of the English Act was to incorporate a similar procedure to what had been laid down in Chalmers. Adopting the reasoning of Lord Fraser, an accused person could almost never make an effective challenge of the admissibility of his statement unless he gave evidence himself. He was thus virtually compelled to give evidence for that purpose. However, he could not do so as a witness in his own defence without running the risk at the same time of incriminating himself. Accordingly the sheriff's decision was an unreasonable one.

Mr. Taylor accepted that it was a matter for the discretion of the sheriff as to whether he should or should not allow a trial within a trial, and it was no doubt because he approached the matter in this way that he described the sheriff's decision not to allow one as being so manifestly unfair that no reasonable sheriff would have so decided. However, it is plain that Mr. Taylor's argument involves the assertion of a principle that an accused person who wishes to give evidence in order to challenge the admissibility of evidence as to a prior admission by him should be entitled to do so in a trial within a trial and not be required to give evidence generally in his own defence in order to do so.

At this point it is convenient for us to give our provisional views in regard to the authorities on which Mr. Taylor relied. The observations of the members of the court in Chalmers indicate a method of giving effect to that principle in solemn proceedings. However, it is plain that the reason for those observations was not that there was anything unjust or unfair in an accused person having to give evidence in his own defence if he wished to challenge the admissibility of evidence as to his having made a prior admission. The reason was that there was a risk of the accused being prejudiced as a result of the jury hearing about matters which ought to be withheld from their knowledge. They could include material which reflected on the substance of his alleged admission.

The decisions in Funke, Murray and Saunders provide examples, in widely differing circumstances, of the resolution of the question whether evidence as to the prior conduct or statements of the accused might properly be used in evidence against him at his trial. They do not appear to shed any direct light on the principle which underlies Mr. Taylor's submissions.

The case of Brophy is capable of being distinguished from the present case, as the Advocate depute contended. It was not concerned with the refusal of a voir dire but with the question whether a statement made by an accused at the voir dire was admissible in evidence against him at his trial. The reasoning of Lord Fraser was that this offended against the principle that no man was to be compelled to incriminate himself. Compulsion could be found in the practical consideration that the only way in which he could made an effective challenge of the admissibility of evidence was by giving evidence himself at the voir dire.

While none of these authorities seem to us, in our provisional view of the matter, to provide direct support for Mr. Taylor's submissions, the observations of Lord Fraser in Brophy are nonetheless of some significance for what they may be considered to imply. It may be argued that they provide support for the view that, in order to enable an accused to make an effective challenge to the admissibility of evidence as to his prior admission, he should be able to do so by way of a procedure outside the main body of the trial, such as a voir dire, since if he can make that challenge only by giving evidence in his own defence, his "right to silence" would be impaired.

If such an argument is well-founded in Scotland, it would follow that the accused should be afforded the opportunity of giving evidence related solely to the question of admissibility and not forming part of evidence relating to his guilt or innocence. Procedure by means of a trial within a trial would, at least in solemn procedure, be a means of giving effect to this. These propositions seem to us to raise questions of general importance in the development of the law which have not hitherto been considered in Scotland.

If the law were to be developed in this way, it would run counter to a number of decisions such as Balloch, which have substantially restricted the scope for a trial within a trial and hence for the judge resolving the question of admissibility. One of the results of this restriction is that at the close of the Crown case the accused does not know whether the challenged evidence is admissible or not. He may thus be handicapped in exercising his statutory right to make a submission that there is no case to answer. In Balloch the Lord Justice Clerk said, as we have already noted, that a judge would normally be justified in withholding the evidence from the jury "only if he is satisfied on the undisputed relevant evidence that no reasonable jury could hold that the statement had been voluntarily made and had not been extracted by unfair or improper means". Thus, apart from that exception, the jury would decide the question of admissibility under appropriate directions as to the law to be applied. The underlying thinking was that questions of fact and degree were more appropriately left to the jury. (In passing we note that upon a similar view it was held in Low v. H.M. Advocate 1987 S.C.C.R. 541 that the question whether a statement in that case was a precognition and hence inadmissible was correctly left to the jury to decide). This may be compared with the view taken in Chalmers and in earlier cases that, while it was for the judge to determine the question of admissibility, his decision did not foreclose the question of fairness or propriety. If the evidence of alleged admission was not ruled by the judge to be inadmissible it remained a question for the jury as to what value should be attached to the evidence as to the statement in the light of the circumstances in which it was made.

While there has been this change of view as to what may appropriately be decided by the judge when the objection to the admissibility of the evidence was based upon the general ground of fairness, it is to be noted that in regard to other related questions of admissibility it has been assumed that it is appropriate for the decision to be taken by the judge (Wade v. Robertson 1948 I.C. 117; Johnston v. H.M. Advocate 1993 J.C. 187; and McDonald v. H.M. Advocate 1987 S.C.C.R. 581).

So far, we have considered the implications of Mr. Taylor's submissions for solemn procedure. As regards summary procedure, it is difficult to see why the rationale for a trial within a trial, as expounded in Chalmers, should be relevant to that procedure, since the sheriff hears all the evidence and is the judge of both fact and law. If, however, the submission by Mr. Taylor is well-founded, there would seem to be no reason why the principle should not apply to both solemn and summary procedure. However, its application in summary cases would seem to involve the need to consider what evidence should be heard by the sheriff and at what stage he should make his decision as to the admissibility of the disputed evidence. In Clark v. Stuart 1950 J.C. 8 it was held that in proceedings before a summary court only exceptional circumstances would justify the exclusion outright of an important chapter of evidence, and that the normal and proper course was to allow such evidence under reservation as to competency, so that the question of law could, if necessary, be examined by a higher court. The decision in Clark may suggest that, regardless of his decision as to admissibility, the sheriff should hear the disputed evidence, in case that decision is afterwards held on appeal to have been wrong. As regards the stage at which he may make the decision, even if it might not be strictly necessary that he should make it immediately after he has heard the evidence at the trial within a trial, it appears that, in order to be consistent with the principle on which he is proceeding, he should make it not later than the closing of the Crown case (cf. Runham v. Westwater 1995 S.C.C.R. 356).

Having regard to the general importance and the novelty of the point of principle which has been raised by Mr. Taylor's submissions, and the possible need to reconsider the line of decisions of which Balloch forms part, we consider that it is appropriate that the present case should be remitted for hearing before a court of five judges.

In the light of the above discussion the principal questions to which the hearing should be directed appear to us to be the following:

(i) In solemn proceedings should an accused who wishes to give evidence in

(ii) In solemn proceedings should the decision as to the admissibility of evidence

(iii) If the answer to the first of these questions is in the affirmative, does the same

In preparation for the hearing the parties should prepare and lodge for the benefit of the court fresh written submissions containing their full arguments and reasoning, together with a citation of authorities. The parties should co-operate in producing one set of photocopies of the authorities. It is important that we should emphasise that owing to the novelty of the first of the three questions it is essential that the court should have a full account of any materials which bear on the relationship between a trial within a trial (or voir dire) and the "right to silence", which may be illustrated in other jurisdictions and in decisions relating to the European Convention on Human Rights. In regard to the second of these questions it will be necessary to identify the Scottish cases which may be affected by the decision taken in the present case and to explore the approach which has been adopted in other jurisdictions, in particular in England, to the respective roles of judge and jury. Prior to the hearing before the bench of five judges the case will require to be put out for a procedural hearing in order to ensure that the necessary preparations for the main hearing have been carried out or are in hand.