Scottish High Court of Justiciary Decisons

IAIN DAVID SUTHERLAND and JAMES YAIR v. PROCURATOR FISCAL, KILMARNOCK [1999] ScotHC 169 (25th June, 1999)

The appellants were charged that on 26 June 1993 they committed various assaults against Clive Thomas Hamilton. On 13 September 1995, they were found guilty after trial at Kilmarnock Sheriff Court. They appealed by stated case but on 31 January 1996 the appeals were continued to enable a statement to be obtained from a potential witness. Thereafter there were further continuations and new grounds of appeal were eventually lodged. On 26 February 1997, the court decided that evidence from two additional witnesses, Suzanne Alana Gibson and Kirsten Napier, should be heard. In pursuance of a remit to me, I heard the evidence of Kirsten Napier on 17 June 1997 and that of Suzanne Gibson on 26 June 1997. Regrettably, however, it was not until 19 May 1999 that the appeal was again heard before this court. At that hearing, it was contended on behalf of both appellants that the evidence of those two witnesses would have been bound to lead to acquittal of the appellants or, at all events, that it would have had a material bearing upon the decision of the case and that it could not be said that the sheriff would have convicted had he had that evidence before him.

At the time of the incident on 26 June 1993, both appellants were serving police officers. On that date, Hamilton with three friends, Anthony Doak, Matthew Long and Mark Bell, were in a public house in Largs until closing time which was after 1 a.m. All four intended to return to West Kilbride and made arrangements with a friend of Hamilton to collect them in a car. The group then waited for the car on a pavement near a lane known as Gallowgate Lane. As they waited, an unmarked police car containing the appellant Yair and three other officers, Colin Davidson, Michael Firth and Gordon Taylor, passed by. An incident then occurred as a result of which Hamilton was arrested and taken to a police station. The appellant Sutherland was in the charge bar area of the police station and a further incident occurred there. Following on these incidents, Hamilton was charged with breach of the peace and police assault. He stood trial on 14 and 18 March 1994 and was acquitted. Thereafter, he made a complaint about the behaviour of the police officers which in due course led to the prosecution of the two appellants along with P.C. Davidson. Davidson was acquitted on 25 August 1995. Yair was found guilty of seizing hold of Hamilton by the neck and arms and repeatedly striking his head against the bonnet of a motor car at the locus at Gallowgate Lane, and of seizing hold of Hamilton by the neck and arms and repeatedly striking his head against a door at the entrance to Largs police office. Sutherland was found guilty of assaulting Hamilton and striking him on the head with his elbow within Largs police office.

The case before the sheriff turned entirely on questions of credibility. Broadly speaking, Hamilton and his friends said that they had been standing peacefully waiting for the car to collect them when the unmarked car, containing the four officers in plain clothes, passed them. The officers had first of all behaved in a provocative manner and later approached them in a threatening and aggressive way before assaulting Hamilton (whom they appeared to recognise) and Doak and taking them to the police station. At the police station, according to Hamilton and Doak, Yair forced Hamilton's head against the door. Later Sutherland came out from behind the charge bar and assaulted Hamilton by striking him with his elbow. The police officers, on the other hand, claimed that there had been a larger group of youths standing on the pavement who behaved in a disorderly manner and shouted and swore at the officers, committing a breach of the peace for which Hamilton was arrested. They claimed that Hamilton struggled violently and that Doak attempted to assist him, whereupon both were taken to the police station. They denied that Hamilton's head was struck against the door and claimed that he required to be restrained within the police station because he was still struggling violently. There was some evidence that Hamilton had sustained a number of injuries, but although that evidence did play some part in the sheriff's reasoning, it does not appear that it gave unequivocal support to either version of the incident.

Having considered the evidence, the sheriff came to very clear conclusions on credibility. He says, for example:

The sheriff expresses similar views about what took place in the police station and a little later continues:

The sheriff goes on to refer to the injuries, which were consistent with blunt force trauma, and to say that it was to Hamilton's credit that he had refrained from identifying Davidson among those who assaulted him, which led to Davidson's acquittal. Turning to the defence, he sheriff says that he considered the whole defence case and did not believe one word of it. He continues:

The sheriff then refers to the circumstances of the attack in the police station, to an admission by Sutherland that there was a picture of Hamilton on display in Largs police station and to certain other circumstances. He then continues:

The sheriff then refers to certain other circumstances about the evidence as to the incident in the police station which he regarded as helpful but which I need not narrate in detail.

It is apparent, therefore, that the sheriff has considered the evidence very fully and given full reasons for the view which he took. In his note to the stated case the sheriff also deals with a number of points raised by the defence and rejects them for reasons which he explains. In particular, the sheriff deals with evidence given by a consultant in accident and emergency medicine called on behalf of the defence, who apparently gave evidence to the effect that the injuries which Hamilton appeared to have from certain photographs taken of him shortly after the incident were not consistent with his account of how they were sustained. The sheriff notes that the evidence was based on photographs which were indistinct and on a doctor's notes which, the sheriff accepts, were not a completely accurate record of what Hamilton had said; but he rejects the defence medical evidence on the ground that it was inconsistent with the evidence of Hamilton and Doak together with that of a solicitor and a doctor who saw Hamilton's injuries some time after the incident.

The evidence of the two additional witnesses heard in 1997 is fully set out in the report which I wrote following the hearing of their evidence. It is not, I think, necessary to repeat much of the evidence of Kirsten Napier. She was Doak's girlfriend at the time of the prosecution of the appellants but was not a witness to the incident in 1993. In summary what she said was that, although she did not remember precisely what had happened, there had been some discussion between Hamilton and Doak before the case about what their evidence was going to be. This had involved going over some of the details of the incident, such as which side the door was on in the police station, and what had happened to Hamilton within it. A girl Gillian McFarlane, who had at one time been a girlfriend of Hamilton, had been present and she also had mentioned her involvement and asked questions of the boys. Kirsten Napier said that she herself had pretended to be a lawyer asking questions. I must say that it seemed to me that Kirsten Napier was doing her best to minimise the extent of the discussions but, so far as her evidence went, it could not be said to involve or suggest the concoction of a false story. On the other hand, it may be significant that, in a comment on the new grounds of appeal dated 5 December 1997, the sheriff observed, firstly, that it had been put to Hamilton at the trial that he wanted revenge on the police, and that he had denied that and the sheriff believed him; and further:

The evidence given by Suzanne Gibson was, in my view, very much more significant. Her family had left West Kilbride and moved to England in order to get away from some trouble in the West Kilbride area. Hamilton was one of those whom they sought to avoid and it appeared in the course of her evidence that one of the problems had been that Hamilton had attempted to involve Susanne Gibson's brother in drug dealing. Suzanne Gibson became a witness because she had read a newspaper account of the trial of Sutherland and Yair which had been passed to her by her brother. Having read it, she said to her father that it was wrong, and as a result her father contacted the police. She had met Hamilton in December 1993 and had known Hamilton's girlfriend Gillian McFarlane well, and as a result had met him on a number of occasions. She knew that Hamilton had had an incident with the police because he spoke of it many times and said that he had got one up on the police and had a chance to get glory over the police. With regard to what Hamilton said about the incident in question, I said in my report:

Suzanne Gibson was cross-examined about the relationship between her family and Hamilton, about the circumstances in which she had learnt of the trial about the timing of her conversations with Hamilton and it was suggested to her, inter alia that she might be trying to get back at Hamilton, which she denied.

It is, of course, impossible to form a view about the credibility or reliability of any witness's evidence from hearing that witness alone without considering any other evidence that may be available. I would, however, say that Suzanne Gibson appeared to me to be an impressive witness, confident and clear in her recollection and unshaken by any cross-examination and that the circumstances in which she came to give evidence tended, in my view, to support her credibility. In effect, she volunteered to be a witness because of her reaction to the news of the result of the trial of Sutherland and Yair. It seems to me, therefore, to be clear that had her evidence been available at the trial the sheriff would have required to give very serious consideration to it before accepting Hamilton and Doak as credible and reliable witnesses.

It is not, I think, necessary to narrate the submissions on either side in this appeal in any detail. For the appellants, it was submitted that the evidence of Suzanne Gibson and, possibly to a lesser extent, that of Kirsten Young must have made a significant impact on the credibility and reliability of the witnesses whom the sheriff accepted. For the Crown, it was submitted that this was not a case like Marshall v. Smith 1983 S.C.C.R. 156 in which evidence had been demonstrated to be false nor like Hall v. H.M. Advocate 1999 S.C.C.R. 130 in which the question related to a critical witness for the prosecution since there was other evidence, that of Doak and Bell, which the sheriff had accepted as to the nature of the incident in the street. Both the appellants and the Crown accepted that the relevant tests are those laid down in Cameron v. H.M. Advocate 1987 S.C.C.R. 608 and that every case must turn on its own facts.

The test set out in Cameron supra (at p. 619) is as follows:

As I have indicated, I regard Suzanne Gibson as a witness at least prima facie credible and one whose evidence would have to be seriously considered. The most material part of her evidence, in my opinion, is that in which she said that Hamilton freely and repeatedly acknowledged that at the start of the incident he had been drunk and waving his arms about and that he had continued to do so even after the police intervention. That evidence, it seems to me, could well have had an impact on the credibility of Hamilton as a witness. The other evidence about the relationship of Hamilton and Doak, and Kirsten Young's evidence about discussion of the evidence which was to be given at the trial, might, in the light of Suzanne Gibson's evidence about Hamilton's admissions, have assumed greater significance than it would have done, if taken by itself. Accordingly, despite the very clear view as to the credibility of Hamilton and Doak taken by the sheriff it seems to me that the evidence is at least likely to have had a material part to play in the assessment of the credibility of Hamilton and Doak and therefore in the determination of the critical issue at the trial. In all the circumstances, therefore, in my opinion this appeal should be allowed.

The Advocate depute submitted that in the event of the appeal being allowed authority should be given for a fresh prosecution. He submitted that this was a case which was clearly one of great public concern since it was one of an alleged assault by police officers and the charges were very serious. The delays which had occurred, which were very substantial, had not been caused by any fault on the part of the Crown. On the other hand, for the appellants it was submitted that in view of the long lapse of time since the incident in 1993 and the fact that there had been significant publicity about the trial, it was inappropriate to authorise a fresh prosecution. The lapse of time would inevitably have dimmed recollections and it was pointed out, in particular, that even by 1997 Suzanne Gibson's recollection had been affected, as appeared from certain passages in her evidence.

Had it not been for the very long delay, I would have had little difficulty in concluding that authority should be given for a fresh prosecution. It does, however, seem to me that the lapse of time is so great, and the probability that recollection will have been significantly affected so high, that this is not a case in which authority for a fresh prosecution can be granted.

I am in full agreement with the opinion of Lord Coulsfield, and accordingly I agree that the appeals should be allowed and that authority for a fresh prosecution should not be given.

I also agree that, for the reasons given by Lord Coulsfield, these appeals should be allowed and the relative convictions quashed. I agree that in the particular circumstances described authority to bring a new prosecution should in each case not be granted.