Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> ANDREW THOMPSON v. PROCURATOR FISCAL, HAMILTON [1999] ScotHC 240 (5th November, 1999)
URL: http://www.bailii.org/scot/cases/ScotHC/1999/240.html
Cite as: [1999] ScotHC 240
[New search] [Help]
ANDREW THOMPSON v. PROCURATOR FISCAL, HAMILTON [1999] ScotHC 240 (5th November, 1999)
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Lord Justice Clerk Lord Sutherland Lord Caplan Lord Hamilton
|
Appeal No: 2238/97
OPINION OF THE LORD JUSTICE GENERAL
in
BILL OF SUSPENSION
by
ANDREW THOMPSON Appellant;
against
PROCURATOR FISCAL, Hamilton Respondent:
_______ |
Appellant: Scott, F.M. Davies; Balfour & Manson
Respondent: Menzies, Q.C., A.D., C.H.S. MacNeill, A.D.; Crown Agent
5 November 1999
The complainer in this bill of suspension is Andrew Thomson who was convicted at the Sheriff Court at Hamilton of nine charges of forcing open or entering motor vehicles and stealing articles from them. On 16 May 1997 he was sentenced to a period of three years probation. In the bill he asks the court to quash his conviction on the ground that in the course of the trial the Sheriff refused a motion that he should hold a trial within a trial.
The circumstances are fully narrated in the opinion of the Lord Justice Clerk of 22 January 1999 to which I gratefully refer. For that reason I can restrict myself to a brief account of the essential point. At the trial diet the parties lodged a joint minute of admissions which recorded their agreement that the offences had been committed; the only issue in controversy therefore was whether the complainer was the perpetrator. The procurator fiscal depute led a number of witnesses, including Detective Sergeant Hippman who spoke to an interview with the complainer the day after the last of the offences. In the course of his evidence the agent for the complainer objected to him giving evidence about the complainer's answers in the interview, on the ground that they had been obtained by an inducement which the police officers had offered to him. We were informed that the allegation was to the effect that the police officers had indicated that bail would not be opposed if the complainer admitted the offences. The complainer's agent moved the Sheriff to allow a trial within the trial as to the circumstances in which the interview took place. He argued that the complainer should be able to give evidence on the circumstances of the interview without forgoing his right not to give evidence at large on the charges. The Sheriff refused the motion and then heard the evidence of the police witnesses under reservation of the question of the admissibility of the evidence, to be determined at a later stage. The examination of Detective Sergeant Hippman was completed and he was cross-examined. Further evidence in corroboration was led from Detective Constable Hugh Craig. The parties then lodged a joint minute in which they agreed that the transcript of the interview with the appellant lodged by the Crown was accurate. The Crown led a further police witness and then closed their case, at which stage the procurator fiscal depute withdrew charge 10 on the complaint; no evidence was led for the complainer. The case for the Crown was that the answers given by the respondent displayed special knowledge of the circumstances of the offences which would have been known only to the perpetrator. After being addressed on behalf of both parties, the Sheriff convicted the complainer of the remaining nine charges on the complaint.
The essential contention on behalf of the complainer in this bill of suspension was similar to the submission made to the Sheriff: by refusing the motion for a trial within the trial, the Sheriff had denied the complainer the opportunity to challenge the admissibility of the evidence about the interview, except by means of giving evidence at large in his own defence. In the result, it was said, the complainer had not had a fair trial and there had been a miscarriage of justice. The bill of suspension was originally considered by a court comprising the Lord Justice Clerk and two other Judges and on 22 January 1999 they remitted it to this larger court so that we could review the law and practice relating to objections to the leading of evidence on extrajudicial admissions.
At the hearing before us the particular circumstances of the present appeal tended to drift into the background as counsel concentrated on the wider questions which inevitably came into prominence. In order to determine whether the Sheriff should have held a trial within a trial, one must first ask what a judge should do when asked to rule on the admissibility of a statement in a case where there is a dispute about the circumstances in which it was taken. That question cannot be answered without identifying the legal test which the judge should apply in deciding issues of admissibility. Only after this has been done can one consider in what circumstances a judge should hold a trial within a trial. It is to the first of those wider questions that I now turn.
Judge's role in determining admissibility
The present law on the admission of evidence about extrajudicial confessions is encapsulated in a passage from the opinion of Lord Justice Clerk Wheatley in Balloch v. H. M. Advocate 1977 J.C. 23 at p. 28:
"Suffice to say, a Judge who has heard the evidence regarding the manner in which a challenge to a statement was made will 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."
The stages by which the law developed until it reached this formulation can be easily traced in cases such as Miln v. Cullen 1967 J.C. 21; Thompson v. H. M. Advocate 1968 J.C. 61 and Murphy v. H. M. Advocate 1975 S.L.T. (Notes) 17. Once uttered, Lord Wheatley's formula soon swept all before it, being reflected, for instance, in the extempore ruling of Lord Cameron in H. M. Advocate v. Whitelaw 1980 S.L.T. (Notes) 25 before being applied in Tonge v. H. M. Advocate 1982 J.C. 130 and (without specific attribution) in H. M. Advocate's Reference No. 1 of 1983 1984 J.C. 52. It is within the personal knowledge of all the members of the court that the Balloch test has been used repeatedly in courts throughout the country for many years. Its most notable feature perhaps is that under it the judge's power to withhold evidence from the jury is very circumscribed and the real decision on whether the jury are entitled to take account of the evidence in question is left for the jury themselves.
The success which has attended Lord Wheatley's test is doubtless due in part at least to the fact that it appears at first sight to combine the twin virtues of simplicity and elegance. But on the complainer's behalf Miss Scott set out to show that these virtues are specious, concealing a profound error: in Balloch the court had abdicated to the jury what was in truth the historic and peculiar duty of the court to determine issues of the competence and admissibility of evidence, in particular the admissibility of evidence of extrajudicial confessions. In performing that duty the judges had been used to deciding issues of fact and to making judgments which were nowadays, wrongly, left to the jury.
So far as history is concerned, even the most casual reader of the works of Hume and Alison must have paused from time to time to marvel at the array of over-subtle and exotic objections - infamy, relationship, enmity and partial counsel, and interest and undue influence - which once could be stated to the admission of witnesses. This whole catalogue was to be swept away in the reforming statutes of the 1850s but, while they flourished, such objections were often pressed by counsel, in the hope of excluding a potentially damaging witness. Questions of fact could and did arise in connexion with such objections and appropriate evidence had to be led: for instance, of the conviction of a crime inferring infamy (Alison, Criminal Law vol. 2, pp. 443 - 444); and as to whether a witness had attempted to suborn three other witnesses or had been guilty of some officious conduct (Alison, Criminal Law vol. 2, p. 487). Similarly, where questions were raised as to the mental infirmity of a proposed witness, Alison (Criminal Law vol. 2, 436) describes it as being
"the province of the Court alone, to decide upon an objection of this description, as upon every other matter which relates to the admissibility of or legal objection to testimony. When, therefore, the objection of insanity or idiocy is stated, it is their duty to proceed to take the evidence that may be offered, and either to admit the witness, reject him, or admit him cum nota, as the justice of the case may seem to require."
The rule was that objections of these kinds had to be stated before the witness was sworn and there was then an examination in initialibus. The passages which I have selected, almost at random, from Alison - which could be matched with passages from Hume - demonstrate that, if the objection was relevant, a proof was held and the court determined the issue in the light of the evidence.
Although almost all traces of these procedures have vanished from our law, I mention them to underscore the point that in the first half of the nineteenth century there was nothing unusual in the presiding judges at a criminal trial hearing evidence on questions of fact in order to determine whether a witness was admissible. That being so, it would be surprising indeed if the court had never followed a similar procedure to decide the lesser issue of whether to uphold an objection, not to the admissibility of a witness as such but to the admissibility of a particular passage in his evidence. Yet, it was the contention of the Advocate Depute before us that, while the judges might have decided issues of admissibility after hearing evidence in cases where the evidence was not in conflict, they never did so when issues of credibility or reliability arose: to have decided such issues would have been to trespass upon the fact-finding province of the jury and so the decision on those issues of fact and, with it, the decision on the admissibility of the evidence would have been left to the jury.
If that truly had been the position, then the general statement by Alison which I have quoted would have been somewhat misleading since not "every ... matter" relating to the admissibility of testimony would have been the province of the court. Nor, in taking the crucial decision to exclude the evidence of the doomed L'Angelier's memoranda in the Madeleine Smith trial, would Lord Justice Clerk Hope have been right to emphasise that it was for the court, rather than for the jury, to consider whether the evidence was competent, since "evidence ought not to be admitted at all unless it is legally competent and admissible evidence": H. M. Advocate v. Madeleine Smith (1857) 2 Irv. 641 at p. 655. In view of what Alison and Lord Hope say, it is hardly surprising that examples can in fact be found of the court hearing conflicting evidence in questions of admissibility and reaching a view on the evidence, which it then used to decide the issue of admissibility. Two cases involving objections to the admission of evidence of a judicial declaration may serve as illustrations.
In H. M. Advocate v. Mary Elder (1827) Syme 71, the accused stood trial in the High Court, before Lord Justice Clerk Boyle and five other Judges, on an indictment charging her with murdering a servant by poisoning her. The Lord Advocate led evidence from the sheriff-substitute and another witness to the effect that, when she emitted two declarations, the accused was calm and collected. When the Lord Advocate moved to have the declarations read, counsel for the accused objected and said that he would lead evidence that at the time she had been suffering from a bout of hysterics, a condition to which she was prone. Lord Gillies (at p. 94) indicated that, if it was intended to prevent the declarations being read, it would be necessary to bring positive and special evidence of her having been unfit at the time. Since one of the proposed witnesses was not available, it was agreed to proceed with the Crown evidence and to reserve the declarations until the end of the Crown case. Among the witnesses led for the Crown was a Dr. Christison, the Professor of Medical Jurisprudence, who gave evidence about tests for the presence of arsenic in the deceased's body. At the end of the Crown case the Lord Advocate again moved that the declarations should be read and the Lord Justice Clerk (at p. 113) indicated that, as the objection was taken to the admissibility of the declarations, this was the proper time to bring evidence in support of it. Counsel for the defence then led two medical witnesses and the accused's sister to speak to her condition. The Lord Advocate called two further witnesses and defence counsel made a submission, which acknowledged (at p. 115) that "there was diverse and discordant evidence indeed, of the state of her mind at the time". "But," he added, "taken together, the testimonies were reconcilable, and to be reconciled, by giving credit to the witnesses called on his side." The Lord Justice Clerk (at p. 116) gave the decision of the court in these terms:
"The prisoner had been allowed every opportunity of bringing forward her proof. After the whole that had been led, and the ingenious argument at the Bar, it was the opinion of the whole Court, that it was impossible to prevent this evidence from going to the Jury. They would judge of its credibility. Dr. Christison's evidence was totally unconnected with the question. Objection repelled."
The declarations were accordingly read. In due course the accused was acquitted.
The second case worth noticing briefly is H. M. Advocate v. Mahler and Berrenhard (1857) 2 Irv. 634, which shows that, some thirty years later, in order to determine questions of the admissibility of evidence, the court was prepared to determine issues of fact on which the witnesses differed. One question which arose in that case was whether the judicial declaration by Mahler should be excluded on the ground that the sheriff-substitute had not been present in court when it was being taken. In evidence the sheriff-substitute said that he had certainly been present at the beginning of the process and at the end and his own impression was that he had been present the whole time, because the fact of the prisoners being foreigners had made him anxious to be present. The impression of the sheriff clerk "was rather the other way", though this seemed to rest more on what was customary rather than on any distinct recollection of the particular occasion. Lord Justice General McNeill observed that "The objections started [sic] were of considerable importance, and attended with considerable nicety and difficulty from the character of the evidence". In the event, having considered the two accounts, the court concluded that it did not appear to have been the case that the sheriff-substitute had merely come into the presence of the parties for the purpose of having the declarations read over. The court accordingly repelled the objection.
These cases adequately vouch the fact that, even in the days before accused persons could give evidence at their own trials, the court could and did decide even nice issues of fact in order to ascertain the factual basis on which they should determine the legal question of the admissibility of a particular item of evidence. Nor can the cases be set on one side as exceptional since in Barbara Simpson (1889) 2 White 298 counsel cited Mahler and Berrenhard as settling the procedure for the leading of evidence as to the circumstances in which a statement of an accused person had been made. The report of Simpson indicates that, after two witnesses as to the circumstances had been led, Lord Kyllachy repelled the objection. It is recorded (at p. 302) that "[t]he evidence led by the appellant as to the circumstances under which the statement was made was held evidence in the case" - which suggests that, if this had not been done, the evidence led on the point would not have formed part of the evidence in the case which the jury could consider. This in itself makes it clear that, although the jury must have been present in court when the evidence was led for the purpose of the objection, that evidence was regarded as being in a separate category, for the judge and not for the jury to consider. Only when the court made it evidence in the case did it become available for the jury's consideration in relation to the case as a whole. Most importantly for present purposes, both the factual and legal issues relating to the admissibility of the evidence were for the court and not for the jury to decide.
That the intertwined factual and legal questions relating to admissibility remained the exclusive province of the court forty years later is apparent from H. M. Advocate v. Aitken 1926 J.C. 83, a murder case involving an appellant aged about seventeen. Objection was taken to the admission of evidence about a statement which the appellant gave to a police officer. The police officer was examined and cross-examined on the circumstances. This was done in the presence of the jury: neither in the report nor in the minute book nor in the minute of proceedings is there anything to suggest that the jury were excluded. Once the evidence was out, it appears that only one aspect of the circumstances remained controversial. In deciding to uphold the objection and to exclude the statement, Lord Anderson applied the test as stated by the Advocate Depute in the case: "whether it would be fair in the circumstances of the accused person to admit the evidence of the statement as evidence". There is not the slightest indication that Lord Anderson considered that the jury had any role whatever to play in determining the admissibility of the evidence about the statement. His approach was commended by the distinguished editor of the second edition of Renton and Brown's Criminal Procedure (1928), p. 271 n. 9.
In H. M. Advocate v. Rigg 1946 J.C. 1 Lord Justice Clerk Cooper, sitting as a trial judge, applied the test formulated by Lord Anderson in Aitken in deciding whether to admit evidence of a statement by the appellant to a police officer. Again the case concerned a young man on trial for murder. When the statement had been taken, he had been in the police station for some hours. The Crown led evidence of the circumstances leading up to the statement and defence counsel then objected to evidence of its terms being received, on the ground that it would not be fair to admit it. Lord Cooper sustained the objection and disallowed the evidence, the critical passage in his decision being in these terms:
"Now, what happened? As I have observed, one statement had been taken in the afternoon, and a second - a long statement and a detailed statement - by the superintendent about 7 p.m. I have looked at the third statement now objected to with a view to acquainting myself with its general characteristics, and I find that it is in substance a detailed precognition of the accused, extending to upwards of 700 words, and giving a coherent and elaborate account of his movements and of the relevant facts of the preceding day and the day in question, with numerous references to persons, places, and hours. To my mind, it is quite incredible that such a statement could have been taken from any person, least of all from a person of the age and apparent experience and condition of the accused, as a truly spontaneous and voluntary statement in the sense in which that expression has been used in the decisions, or without such interrogation as would in common experience be indispensable to the taking of such a detailed precognition.
The ultimate test to be applied in determining questions of this kind is the test of fairness to the accused. Treating the matter not so much as one of technical competence as of the exercise of a just discretion in the light of the surrounding circumstances, so far as elicited, and of the inherent characteristics of the statement sought to be proved, I feel bound, in conformity to the principles of the decisions to which reference has been made, and particularly the case of Aitken, to sustain the objection and to disallow the evidence relating to this matter."
The report of counsel's argument tends to suggest that they did not focus on the nature of the statement attributed to the appellant. This makes it all the more striking that Lord Cooper did. Plainly, he examined the statement and found, in the characteristics which he noticed, a sufficient basis for holding that it could not have been a truly spontaneous and voluntary statement of the kind which would have been admissible. Lord Cooper saw the decision on admissibility as very much one which he, as the judge, required to take himself, using his own appreciation of the circumstances and applying the law as he understood it. It is equally apparent that it never crossed his mind that, in doing so, he was in any sense guilty of usurping a function of the jury in the law of Scotland.
Other examples of trial judges deciding the issue of the admissibility of evidence of a statement by the accused, while leaving it to the jury to assess the weight to be attached to the statement emitted in the particular circumstances, can readily be found in the books. I mention H. M. Advocate v. Lieser 1926 J.C. 88; H. M. Advocate v. Cunningham 1939 J.C. 61 and H. M. Advocate v. Fox 1946 J.C. 30. While the exact procedure adopted seems to have varied, the trial judge performs essentially the same role in each. The cases which I have cited paint a consistent picture, from the early nineteenth century through to the middle of the twentieth century, of trial judges taking legal decisions on the admissibility of evidence and of those judges, where necessary, hearing evidence on which they formed a view of the circumstances against which they required to determine the legal question. They also indicate that, although counsel made their submissions and the judge reached his decision on admissibility in the absence of the jury, the evidence bearing upon the point of admissibility was led in front of the jury who, in the event of the accused's statement being admitted, could take it into account in deciding what weight they attached to the statement.
Thus was the stage set for Chalmers v. H. M. Advocate 1954 J.C. 66, yet another murder trial in which the appellant was aged sixteen at the time of the offence. The murder took place on 24 July and the appellant gave a statement to the police on 26 July. Evidence of that statement was led before the jury without objection. On 7 August the appellant gave a second statement to the police, but at the trial the Crown did not try to lead evidence about it. On 15 August two police officers went in a police van to bring the appellant to the police station. He arrived at about 10.30 in the morning and at about 11.10 a.m. one officer cautioned him and asked him if he wanted his father to be present. A second officer again cautioned him and asked him if he wanted his father to be present. On both occasions the appellant said that he did not wish this. He was then questioned and a third statement was taken from him and written down. At about 11.45 a.m. three police officers took him in a van to a cornfield where the police found a purse belonging to the deceased at a spot pointed out by the appellant. At the trial the Advocate Depute did not try to lead evidence of the appellant's third statement and, instead, passed on to ask the police witness whether a search had been made in the cornfield. Defence counsel objected to the leading of evidence about that matter. The trial judge, Lord Strachan, repelled the objection and the evidence about the finding of the purse was led. He also allowed the Crown to lead evidence of a reply given by the appellant when he was cautioned and charged in the presence of his father at 2.25 in the afternoon.
The appellant was convicted and appealed on the ground that the trial judge had erred in admitting the evidence of the search in the cornfield and of the reply to caution and charge. The appeal was remitted to a bench of Five Judges who allowed the appeal, holding that the trial judge had been wrong to admit the evidence of the search. The Lord Justice General, with whom the other judges agreed, also indicated that the trial judge had been wrong to admit the evidence of the reply to caution and charge.
We are not, of course, concerned in this case with the merits of those decisions. It is noteworthy, however, that, having heard the evidence of the circumstances leading up to the events in the cornfield and the reply to caution and charge, Lord Strachan decided for himself the question of the admissibility of the evidence on those matters. Moreover, he clearly took the view that his decision to admit the evidence was a matter of law since he was comforted (1954 J.C. at p. 70) by the fact that, if he had erred in repelling the objection, his decision could be reviewed by the Court of Criminal Appeal. Equally clearly, this court proceeded on the same footing in dealing with the appeal. Once more I detect no hint in this case that any of the judges considered that any aspect of the matter of admissibility could be one for determination by the jury.
During the course of the first hearing of the appeal in Chalmers the court allowed the appellant to add to his stated reasons of appeal a ground to the effect that evidence of the circumstances attending the disputed actings and statement had been heard in the presence of the jury before any ruling as to admissibility was given. The point was argued at the end of the submissions for the appellant at the hearing before the Five Judges. So it came about that, having disposed of the appeal, the Lord Justice General added a passage (1954 J.C. at pp. 80 - 81) which was to become one of the most controversial statements in our law:
"There is one final matter which merits consideration. In this case, following certain precedents (such as Cunningham 1939 J.C. 61), the presiding Judge excluded the jury during the argument as to the admissibility of the evidence as regards the cornfield, but took the evidence as to the circumstances attending the interrogation in the police station and its sequel in the cornfield in the presence and hearing of the jury. In my view, this course is open to objection and should no longer be followed. In some cases (of which the present is an instance) such a course not only unduly ties the hands of counsel in examining and cross-examining witnesses, but almost inevitably leads to the disclosure to the jury, directly or by inference, of matters which ought to be withheld from their knowledge. When objection is taken to a line of evidence based upon the alleged unfairness of the methods used in eliciting it, the jury ought to be excluded, and the evidence bearing upon the attendant circumstances should be heard by the Judge in the absence of the jury, including, if so advised, the evidence of the accused himself. If, in the light of such evidence and argument, the Judge sustains the objection, the jury should be told nothing about the matter. If on the other hand the Judge repels the objection, the case will proceed in the presence and hearing of the jury, and, if either prosecution or defence choose to do so, the evidence bearing upon the attendant circumstances can be made the subject of examination and cross-examination a second time. In the end of the day it will be for the Judge to direct the jury that, in considering the weight and value of the evidence to which objection has been taken and repelled, it is for the jury to have regard to the attendant circumstances as proved before them, and, in so far as they may consider that the evidence objected to is not to be relied upon by reason of the circumstances in which it arose, to discount it or exclude it from their deliberations. I recognise that this procedure may give rise to difficulty and may not always achieve the desired ideal of avoiding prejudice to the accused. But it will at least minimise the risk of such prejudice to an extent unattainable by our past practice. In a murder trial the jury, being enclosed, will hear nothing of evidence which the presiding Judge has ruled to be inadmissible. In other types of cases the jury may acquire information through the medium of the Press; and all that can be done in such cases is to request the Press not to report the matter pending the conclusion of the trial, and to warn the jury to refrain from discussing the case with others, and from reading newspaper reports, during any overnight adjournment."
Lord Cooper was concerned to make a procedural change which was intended to avoid possible prejudice to the defence if the evidence about the circumstances in which a statement had been made were led in front of the jury. In future, he said, that evidence should be led in the absence of the jury; similarly, the submissions on the evidence should be made, and the trial judge's decision should be announced, in the absence of the jury. If the judge upheld the defence objection, evidence of the contents of the statement would not be given. If he repelled the objection, the evidence of the circumstances in which the statement was made would be led again in front of the jury who would also, of course, hear the evidence of the statement itself. In deciding what weight, if any, to attach to the statement, when considering their verdict, the jury would be entitled to have regard to the evidence of the circumstances in which it had been made.
Part of the separate opinion of Lord Justice Clerk Thomson is also important for present purposes. Having dealt with the substantive point, he went on (1954 J.C. at pp. 82 - 83) to make some observations on the matter of procedure:
"The question of whether evidence is admissible is primarily for the presiding Judge. In the interests of fair trial the law has laid down certain rules as to the circumstances under which statements made by an accused are admissible, and it is for the Judge to say if these have been transgressed. In order to decide the question he may have to hear evidence of the circumstances under which the accused came to give the evidence to which objection is taken. What the Judge has to decide is whether the legal safeguards were observed, so that it can be said that the evidence was freely and voluntarily given. This evidence ought to be heard outwith the presence of the jury. Experience shows that if the jury is present some prejudice to the accused is likely to occur. If the Judge rejects the evidence, that is an end of the matter. If the Judge admits the evidence, what the accused said becomes an item of evidence to be weighed by the jury in relation to the other elements in the case. But it appears to follow that the defence cannot be prevented from putting before the jury the circumstances under which the statement was made. These circumstances, although, in the opinion of the Judge who admitted the evidence, they may be insufficient to show that the safeguards imposed by the law were disregarded, may nevertheless, in the jury's view of the case as a whole, detract from or modify or destroy the ex facie value of the statement. Nevertheless, the effect seems to be to hand the whole thing over to the jury. The Judge says no more than that, on what he has heard in evidence outwith the jury's presence, the accused's position was adequately safeguarded and his statement falls to be accepted as a voluntary one. The jury, on what evidence they hear, which may be less or more than the Judge had before him, have the duty of weighing the truth of the statement in relation to the evidence as a whole, but, once one so puts it, it becomes clear that they are entitled to consider whether it was freely and voluntarily given. The only logical alternative is to refuse to allow the defence to put before the jury the circumstances under which the statement was made. In that situation, the Judge would say to the jury: 'In your absence I heard evidence on a legal point. I have now to tell you, and you are bound to take it from me, that the accused made a statement and he made it freely and voluntarily.'
This seems to me to be a situation where logic must yield. It is impossible to ask a jury to accept as an item of evidence a statement made by an accused while preventing it from considering the circumstances under which it was made. As the circumstances under which a statement is made must include the relationship between the giver and the receiver, the questions asked and so forth, its value as evidence depends on the extent to which it was voluntarily and freely given. The jury's problem is to find out the truth; in their search for the truth a statement made freely by the accused may be of immense significance, but the degree of that significance must depend for the jury on their view of its spontaneity."
Although Chalmers can be seen as making a distinct break with previous practice, it is vital to notice just how limited was the change which the court envisaged. The only difference in the new approach would be that in future the jury would be absent when the evidence about the circumstances surrounding a statement was led for the purpose of obtaining the trial judge's ruling on admissibility. The nature of the trial judge's role would, on the other hand, remain exactly the same: in other words, the judge was to continue to consider the circumstances revealed in the evidence and to decide whether the evidence about the statement should be admitted. This was indeed what happened, for instance, in the trial of Peter Manuel in 1958 where, as the Lord Justice General records, the Chalmers procedure was used and the trial judge, Lord Cameron, then ruled on the admissibility of statements made by him: Manuel v. H. M. Advocate 1958 JC 41 at p. 49. Similarly, the Chalmers procedure was used, for instance, in Brown v. H. M. Advocate 1966 S.L.T. 105.
In Chalmers both Lord Cooper and Lord Thomson took the opportunity to make certain comments on the respective roles of the judge and the jury. Those comments, no doubt, gave expression to points which had occurred to the judges when they were considering the new procedure. But the respective roles of the judge and jury were not in substance changed under the new procedure: it had always been for the judge to determine the admissibility of the evidence of a statement and for the jury to determine the weight which they should give to it. Similarly, the circumstances surrounding the statement had always been relevant both to the matter of admissibility and to the matter of weight. In these respects nothing had changed. So the remarks of the Lord Justice Clerk would have been apposite even if the court had not decided to change the procedure. None the less the aspect of the jury's role which he and Lord Cooper discussed was to prove important for the future development of the law.
The Lord Justice Clerk, whose discussion was the fuller and with whose views the other members of the court agreed, began by declaring that the question of the admissibility of evidence was "primarily" for the judge and that the law had laid down "rules" as to the circumstances in which a statement made by an accused was admissible. "It is for the Judge to say if these have been transgressed." That is the premise from which the Lord Justice Clerk begins. Moreover, when he says that questions of admissibility of evidence are "primarily" for the trial judge, he is not suggesting that, as a technical matter, questions of the admissibility of evidence ever become a matter for the jury. Rather, as the rest of the passage makes clear, the Lord Justice Clerk was simply recognising that, where the judge allowed the statement to go to the jury because he considered that it had been freely and voluntarily given, the jury would be likely to have to consider the same issue of the free and voluntary nature of the statement when considering what weight, if any, to attach to it. In reality, both the judge and the jury would be considering the same question - the judge in order to decide whether evidence of the statement was admissible, the jury in order to decide what weight to attach to it. The Lord Justice Clerk rejected the idea that the trial judge could impose his view on the jury by giving them a direction to the effect that the statement had been given freely and voluntarily: the jury had to be free to consider that matter for themselves and, in that sense, "the effect seems to be to hand the whole thing over to the jury."
In making these observations the Lord Justice Clerk was doing nothing more than reflecting what had been the position in trials long before Chalmers. For instance, in H. M. Advocate v. Fox 1947 J.C. 30 Lord Moncrieff repelled a defence objection and allowed evidence of a statement to be led. At the time of his ruling he explained to the jury (1947 J.C. at p. 32) that
"Ladies and gentlemen, this is a case where the decision as to law, which is mine, and the decision as to facts, which is yours, rather interact on one another. Please understand that, in what I have said, I have only decided that the statement has not yet been shown to be other than competent as evidence. It is only available as evidence, though competent, if you decide the question of fairness in favour of the police. If you hold, as a matter of fact, that, although competent to have it before you, it is tainted by such unfairness as results from undue pressure or undue inducement, or from concealment of a right to be advised, then these are questions of fact for you. Please understand that, while the statement is before you, it is for you to give it or to refuse to give it a value; I do not give it a value, I only let it come before you so that you may value it."
In his charge to the jury Lord Moncrieff, having referred to the failure of the police to tell the accused that he was entitled to be advised by a solicitor, said (1947 J.C. at p. 32):
"I do not think, however, that, having in view the complete intelligence, the adult age of the accused, and the general tenor of the events which preceded his arrest and the events which followed, that circumstance alone is likely to induce you to hold that the statement was unfairly taken. Still you must have the circumstance in view and give it such value as you think right."
In these passages Lord Moncrieff is at pains to explain to the jury that, while he has reached a view, for the purposes of admissibility, on the issue of whether the statement was unfairly taken, the issue remains at large for the jury when they are considering what value to give to the statement. Doubtless, trial judges had long been in the habit of charging juries along these lines, but, despite this, the fact that the issue of voluntariness or fairness would often come to be considered by the jury was seized upon by the court subsequently, when the new procedure in Chalmers proved unpopular and the court was considering how questions of admissibility should be handled.
The Test of Admissibility
For Chalmers did indeed prove unpopular with the judges. Their views surfaced in a considered obiter passage in the opinion of the court delivered by Lord Justice General Clyde in Thompson v. H. M. Advocate 1968 J.C. 61 at p. 66:
"We should add that the trial within a trial procedure laid down in Chalmers v. Lord Advocate, which was followed in this case, was an innovation in the law of Scotland in 1954. Experience has shown that it has several undesirable features. Apart from the repetition of evidence (first before the judge alone, and then before the jury) with the consequent addition to the length of time occupied by the trial, it affords an opportunity for the reconstruction of evidence for the second trial after the witnesses have seen how they are cross-examined in the first one. Moreover the jury in the second trial have no opportunity of testing the consistency of the evidence in the two trials, because they are not present at the first one, whereas the judge is, although he cannot properly disclose the inconsistencies to the jury. It seems unfair to both sides that the judge should be put in a stronger position than the jury to decide on a matter where the ultimate responsibility for deciding rests exclusively with the jury.
It appears that the procedure laid down in Chalmers' case may have to be reconsidered, particularly as these trials within trials are increasing in number. It would be unfortunate if the law of Scotland in regard to confessions were to reach the stage it reached in England, which induced Parke B. in Reg. v. Baldry (1852) 2 Den. C. C. 430 to say (at p. 445): 'I confess that I cannot look at the decisions without some shame when I consider what objections have prevailed to prevent the reception of confessions in evidence ... justice and common sense have, too frequently, been sacrificed at the shrine of mercy.' If the question is whether the confession has been freely and voluntarily given - and that is usually the question - and if, as seems clear, the jury must have an opportunity of determining whether the confession was fairly obtained, in cases where the confession is part of the Crown evidence in the trial, it seems difficult to justify a separate trial on this matter before the judge alone as well. It would seem that there is much to be said for leading the evidence once and for all before the jury. If the judge takes the view that the Crown has not led evidence that the confession was freely and voluntarily given, he can at the end of the day direct the jury to disregard the evidence on the confession, or, if the Crown case is otherwise insufficient, he may direct them to return a verdict of not guilty. But if he considers that the confession was freely and voluntarily given, then he leaves the matter to the jury. Time would be saved and the interests of the accused would be quite adequately safeguarded in this way. Until the decision in Chalmers is to be reconsidered, however, the present trial within a trial procedure would appear to have to go on."
On analysis the passage contains two distinct elements which tend perhaps to be run together but which must be kept distinct.
The first is the view that the practice of holding a trial within a trial does not work well - it involves evidence being led twice, with the result that trials take longer; evidence which is given before the judge and is the subject of cross-examination may be altered in the light of that cross-examination when subsequently given before the jury and the judge cannot tell the jury this; the judge is therefore put in a better position to assess the evidence than the jury whose responsibility it actually is to do so. These are perceived disadvantages of the system of holding a trial within a trial - the quotation from Baldry relates to the substance of decisions and therefore appears out of place. If the desire of the court had merely been to eliminate those disadvantages, then all that would have been required would have been for the court to reconsider Chalmers and to indicate that the practice which had existed before Chalmers should be followed: in other words, the trial judge should hear any evidence relating to admissibility in the presence of the jury and then, in the absence of the jury, hear submissions and decide the question.
But it is clear that the thinking of the court had gone further. It is this new thinking which constitutes the second element in the passage. The Lord Justice General is hinting at quite a different scheme in which "the evidence" would be led once and for all before the jury. But, crucially, by "the evidence" Lord Clyde means the evidence including the terms of the accused's statement. So, under this scheme, all the evidence about the circumstances in which the statement was given and about its terms would be led in front of the jury. At the end of the case, if the judge took the view that the Crown had not led evidence that the statement had been freely and voluntarily given, then, depending on the other available evidence, he could either "direct the jury to disregard the evidence on the confession" or direct them to acquit the accused. If on the other hand he considered that the confession had been freely and voluntarily given, then he would leave the matter to the jury - presumably to consider what weight should be attached to it. The justification for adopting such an approach is said to lie in the fact that, even under the existing (Chalmers) approach, the jury required to consider whether a statement had been freely and voluntarily given. If the jury had to consider that issue and if the question of admissibility depended on it, the court saw little advantage in a trial within a trial and much to be said for simply leading all the evidence before the jury.
The Lord Justice General is in effect contemplating a seismic shift in the law - from a system, whether pre- or post-Chalmers, under which the admissibility of a statement is determined by the judge before the Crown leads it to a system under which the "admissibility" of a statement is determined by the judge after its terms are given to the jury. Any such change really empties the concept of admissibility of all content since evidence which has been led before the jury has by definition been admitted and cannot be unadmitted. All that the judge can do, if it turns out that the statement was not freely and voluntarily given, is to direct the jury to disregard it.
Although the court thought that no such scheme could be introduced unless Chalmers were reconsidered, this proved to be unduly pessimistic. These obiter reflections in Thomson were in fact the original blueprint for the substantially similar system which in effect came into existence as a result of Lord Wheatley's opinion in Balloch. The change did not occur overnight. The trial within a trial procedure continued to be used - for example, in Murphy v. H. M. Advocate 1975 S.L.T. (Notes) 17 and, most notably, in Balloch itself. Nevertheless the practice of the court did change: in Balloch counsel for the appellant referred to "the present practice of leaving it to the jury to decide if a confession was fairly elicited" and said that it was "open to challenge". That challenge was firmly rejected by the court.
The appellant in Balloch had been convicted of murder, part of the Crown case being evidence of a confession which he had made to police officers. The trial judge, without the jury, heard the evidence of the circumstances in which the appellant had made the confession and ruled that it was admissible. As can be seen from the report of the argument and from the account in the Lord Justice Clerk's opinion, the submission that the confession evidence should be excluded depended on the supposed combined effect of a number of elements in the circumstances leading up to the moment when the appellant broke down and made the incriminating statement. Lord Wheatley records (1977 J.C. at pp. 27 - 28) that the Advocate Depute put a different picture of the relevant circumstances and finished by arguing that
"In all these circumstances it could not be said that no reasonable jury could hold that the statement 'I did it for Marion's sake' had been fairly and properly obtained, and accordingly the trial Judge had properly left the question of fairness, subject to proper directions thereon, to the jury".
It was against this background that the court rejected the argument for the appellant. The court's reasoning was explained by the Lord Justice Clerk (1977 J.C. at p. 28):
"The law on this subject has been canvassed in many cases, some of them very recent, such as Jones v. Milne 1975 S.L.T. 2; Murphy v. H. M. Advocate 1975 S.L.T. (Notes) 17; and Miln v. Cullen 1967 J. C. 21; and we find it unnecessary to rehearse the trend of these authorities. Suffice to say, a Judge who has heard the evidence regarding the manner in which a challenged statement was made will normally be justified in withholding the evidence from the jury only if he is satisfied on the undisputed evidence that no reasonable jury could hold that the statement had been voluntarily made and had not been extracted by unfair or improper means. Applying the test to the instant case, we are of the opinion that, to say the least, the question was so open that the trial Judge acted perfectly correctly in allowing the issue to go to the jury for their determination. That having been done, it is not suggested that proper directions thereanent were not given to the jury by the Judge. In point of fact the Judge's directions to the jury on this point were wholly in consistence with the law that has been laid down.
Counsel for the applicant made the somewhat startling proposition that in any event a Judge should be reluctant to remit such a question to the jury because of the difficulty of a jury understanding what is involved in unfairness. That proposition not only flies in the face of the test which the Judge has to apply in deciding whether the evidence should be admitted to or excluded from the jury, but would appear to desiderate that the Judge should usurp the function of the jury in what ex hypothesi has become a question of fact."
Since this passage really lays down the current law, it deserves careful scrutiny. First, the court still envisages, in theory at least, that a trial judge may actually be called upon to rule on the admissibility of a statement before the jury hear evidence of its terms, since Lord Wheatley describes the limited circumstances in which the judge will be "justified in withholding the evidence from the jury". Secondly, whereas under the old law the judge considered "whether it would be fair in the circumstances of the accused to admit the statement as evidence" (Aitken 1926 J.C. at p. 86) and withheld the evidence if he considered that it would not be fair to admit it, here the court changes the emphasis so that a trial judge is not justified in withholding evidence except in particular circumstances. Thirdly, whereas under the Aitken test the judge decides whether the statement has been given fairly and voluntarily and so can properly be admitted, under the formulation in this passage - which develops the reasoning in Thompson - the judge does not decide that issue at all: he merely decides whether any reasonable jury could hold that the statement had been voluntarily made and had not been extracted by unfair or improper means. Finally, whereas under the old procedure the judge had to decide admissibility even if the evidence on the issue was disputed, under the new approach the judge can withhold the statement only if the evidence of the surrounding circumstances is "undisputed". Since in the majority of cases, the evidence will be disputed, this test means that in practice a trial judge will usually have to allow evidence of the statement to be led. As a well-informed commentator on the decision observed, on this approach there was little necessity for the procedure by way of a trial within a trial ("A Question of Fairness" 1977 S.L.T. (News) 141 at p. 142). Not surprisingly, that procedure soon fell into virtual desuetude.
The transformation in our law which Thompson and Balloch effected is remarkable by any standard. Particularly remarkable is the fact that it occurred without Chalmers or any of the long line of cases which preceded it ever being overruled. The result has been to create a somewhat strange legal landscape. The general rule is that evidence of a statement by an accused is admissible if a reasonable jury could consider that it had been voluntarily made and had not been extracted by unfair or improper means; but every so often one comes across outcrops of an older, different, approach. So, for instance, if the accused has been arrested on a charge and a police officer subsequently asks him a question relating to the matter, the answer is regarded as inadmissible (Wade v. Robertson 1948 J.C. 117). In this area the general rule does not apply: the judge cannot simply allow the evidence of the answer to go to the jury and direct them to consider whether it was voluntarily made and not extracted by unfair or improper means - as they might conclude, perhaps, if they heard a tape recording of a quietly conducted interview in which the police officers posed a number of questions and the accused person gave considered answers. In truth, as Lord Justice Clerk Thomson explained in Chalmers, cases like Wade contain rules of law laid down by the judges as to the circumstances in which evidence of a confession is admissible and it is the duty of the judge to say if those rules have been transgressed. Such legal rules prescribed by judges are manifestations of the pre-Balloch approach which regards the judge rather than the jury as having the primary responsibility for deciding in what circumstances evidence of a confession by the accused can properly be taken into account by the jury.
The success of the new approach in sweeping away the old is at first sight surprising but can perhaps be accounted for. As I observed at the outset, the formula used by the Lord Justice Clerk in Balloch is both brief and elegant. It is therefore easily absorbed, easily remembered and easily applied. Equally importantly perhaps, the approach may be attractive to judges, since in most cases it relieves them of the need to decide what can be crucial questions of admissibility and passes those questions to the jury to answer. Moreover, decisions on admissibility do indeed sometimes involve decisions on controversial matters of fact. So it can be argued that it is more in keeping with the spirit of a system of trial by jury for the jury to decide, having looked at the facts, whether they should consider the confession as part of the evidence against the accused. Lord Cameron made exactly this point both extrajudicially ("Scottish Practice in relation to admissions and confessions by persons suspected or accused of crime" 1977 S.L.T. (News) 265 at p. 267) and judicially in H. M. Advocate v. Whitelaw 1980 S.L.T. (Notes) 25 at p. 26 in a passage which was incorrectly transcribed and should read:
"Now since the case of Chalmers there has been growing a feeling that, as it is both the right and the duty of the jury to hear and pass judgment on all the relevant evidence, evidence as to statements of a possibly incriminating character alleged to have been made by an accused person is prima facie of the highest relevance and the jury's function should not be in fact usurped and, unless it is abundantly clear that the rules of fairness and fair dealing have been flagrantly transgressed, it would be better for a jury seised of the whole evidence in the case and of all the circumstances, under such guidance as they should receive from the presiding judge, themselves to take that decision as to the extent to which, if at all, they will take into account evidence of statements given by a suspect after due caution."
With this we reach what is really the heart of the matter. In the course of the argument before us the Advocate Depute came to recognise that there had indeed been a change in the approach of the court in Balloch. He maintained, however, that the new approach was preferable, precisely because, in a system of trial by jury, in principle matters of fact should be determined by the jury and not by the judge, who should simply deal with matters of law. He acknowledged that this principle could not be regarded as absolute since in Section 259 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") Parliament had specifically provided for certain matters of fact, relating to the admissibility of hearsay evidence, to be decided by the trial judge on the balance of probabilities (subsection (8)). None the less for the first day of his submissions the Advocate Depute's position was that the court should uphold the principle by affirming the law as laid down in Balloch.
Although it would be wrong to deny the apparent attractions of such an argument, it is in fact fundamentally unsound. What the judge is being asked to decide is whether evidence of a statement by the accused is admissible - in other words whether evidence of that statement can be led before the jury. It is a logical impossibility to answer that question by first leading the evidence and then directing the jury as to the basis upon which they should either disregard it or take it into account. It follows that, by definition, the question of admissibility is one for the judge rather than for the jury and, if the judge requires to determine issues of fact in order to answer that question, then the determination of those issues of fact is a matter properly falling within the area of responsibility of the judge.
The problem is in no sense peculiar to Scots law. Precisely the same problem must arise in any system of trial by jury where decisions have to be taken about admitting or excluding evidence. In Ajodha v. The State [1982] AC 204, in an appeal to the Privy Council from Trinidad and Tobago, Lord Bridge observed (at pp. 220 - 221):
"It has to be remembered that the rule requiring the judge to be satisfied that an incriminating statement by the accused was given voluntarily before deciding that it is admissible in evidence is anomalous in that it puts the judge in a position where he must make his own findings in fact and thus creates an inevitable overlap between the fact-finding functions of judge and jury. In a simple case, where the sole issue is whether the statement, admittedly made by the accused, was voluntary or not, it is a commonplace that the judge first decides that issue himself, having heard evidence on the voir dire, normally in the absence of the jury. If he rules in favour of admissibility, the jury will then normally hear exactly the same evidence and decide essentially the same issue albeit not as a test of admissibility but as a criterion of the weight and value, if any, of the statement as evidence of the guilt of the accused."
Although the criteria of admissibility in Scots law may be different, the statement of Lord Bridge describes, exactly, the respective roles of the judge and jury as they are described in the older Scottish authorities. In my view the overlap in the fact-finding function is indeed, as Lord Bridge says, inevitable and must be accepted in any system if, like Scots law, it attaches importance to the principle that only legally admissible evidence should be placed before the jury. This principle is itself no more than one aspect of the long-established wider principle of Scots law and many kindred systems, that an accused person has a right to a fair trial. It follows also that, although they may be minimised, any inherent disadvantages of this necessary procedure for determining admissibility must be accepted - in particular the possible need for the judge to reach a view on the credibility of an accused who gives evidence on the point.
The main defect in the approach enshrined in Balloch has already been noted: in effect it robs the concept of the admissibility of evidence of all real content in those cases where evidence of the statement is actually admitted and the jury are told that it is for them to decide whether they can take it into account. But another important consequence of the approach is that the court no longer takes responsibility for decisions on admissibility except in the most extreme case where the only possible reasonable view is that the evidence is inadmissible. In all other cases the jury are left to decide whether they can have regard to the evidence and to do so on the basis of their view as to whether the statement was freely and voluntarily given or extracted by unfair or improper means. The effect - and indeed the intended effect - of this approach is that, even if the trial judge considers on undisputed facts that a statement was obtained by unfair or improper means, the judge must still allow the evidence of that statement to go before the jury if he also considers that a reasonable jury could hold that the means had not been unfair or improper. This approach greatly diminishes the power of the judge to ensure that the accused has a fair trial. Nor can any damage readily be put right by the Appeal Court since, as is apparent in Balloch, the test means that the court cannot and will not intervene unless it can be said that no reasonable jury could have held that the means had been unfair or improper - in other words that the trial judge had erred in allowing evidence of the statement to be led before the jury. Although an appeal can sometimes succeed even on that exacting standard (for example, Codona v. H. M. Advocate 1996 S.C.C.R. 300, especially at p. 321 C), the Appeal Court has no more scope than the trial judge for determining the admissibility of the statement in such a case. Therefore, even if all three judges regard it as having been extracted by unfair or improper means and consider that it should not have been admitted, they ought not to quash the conviction unless they can say that no reasonable jury could reach a different view. Not only does such a system make it harder to do justice in an individual case, but it also means that the courts cannot develop meaningful rules for having the issue determined consistently - making it at best difficult for them to fulfil a basic requirement of justice, that like cases should be treated alike.
The test prescribed in Balloch suffers from another serious drawback: it distorts the procedure by which the accused has a right to make a submission of no case to answer at the end of the Crown case - under Section 97 of the 1995 Act in solemn proceedings and under Section 160 in summary proceedings. This procedure was not introduced into our law until the Criminal Justice (Scotland) Act 1980 (Section 19) and so the judges in Balloch could not have foreseen this particular consequence of their approach. By their terms Sections 97 and 160 require the judge to determine whether "the evidence led by the prosecution is insufficient to justify the accused being convicted". Although this is not spelled out, the proper basis for determining the sufficiency of evidence in a jury trial must be the evidence which the jury are entitled to take into account - the evidence led by the Crown which is legally admissible. Under the present system, however, evidence is admitted and led on behalf of the Crown and the decision on whether the jury can lawfully take it into account is postponed, not being taken until the jury come to consider their verdict. In determining the defence submission of no case to answer the judge may therefore require to include as part of the evidence for the Crown a statement which he himself would have regarded as extracted by unfair means and as inadmissible but which he had none the less been unable to withhold in terms of the Balloch test. Moreover, it may be evidence which the jury will in due course require to leave out of account because they too regard it as having been extracted by unfair means. As a result the judge may have to conclude that the Crown has led sufficient evidence in a case where, had he determined the issue of admissibility himself and excluded the accused's statement, the Crown would have been left with insufficient evidence and the judge would have upheld the defence submission. In the words of Lord Justice Clerk Ross in Runham v. Westwater 1995 S.C.C.R. 356 at p. 360, the accused is thus "deprived of the right conferred upon him" under Section 97. The accused's right under that section can be vindicated only if the decision on the admissibility of evidence in a jury trial is taken, as it should be, when the Crown attempts to lead the evidence in question, with the result that the Crown case comprises only legally admissible evidence and the judge can uphold or reject the defence submission on the basis of that admissible evidence.
For these reasons I am satisfied that the rule in Balloch is unsatisfactory and should not be applied. Indeed the Advocate Depute eventually accepted that it could not stand unamended; he therefore suggested certain refinements which I consider - and reject - below. In my view the correct course is for the court to overrule Balloch and to revert to the previous law as it applied in Scotland up to the time of Chalmers. In doing so, Scots law will once more accord to the judiciary in full measure the power to exclude statements obtained by improper methods, a power which has been regarded as a necessary hallmark of any civilised system of criminal jurisprudence (Wong Kam-ming v. The Queen [1980] AC 247 at p. 261 per Lord Hailsham of Saint Marylebone). Once again, accordingly, it will be for the trial judge to decide questions of the admissibility of the evidence of statements by the accused, just as it is for the trial judge to decide all other questions of admissibility. The decision will depend, of course, on the facts of the particular case and, where there are conflicts in the evidence about the circumstances, it will be for the trial judge to resolve those conflicts and so to settle the factual basis upon which to take the decision. The judge will exclude the statement if it was taken in circumstances which render it inadmissible under any rule laid down by the law. In other cases the judge will admit the statement if the Crown satisfies the court that it would be fair to do so, by proving that the statement was made freely and voluntarily and was not extracted by unfair or improper means.
At the hearing Miss Scott conceded that the appropriate standard for the judge to apply in deciding an issue of admissibility would be proof on a balance of probabilities, rather than proof beyond a reasonable doubt. In other words the Crown would have to prove, on a balance of probabilities, that the statement was made freely and voluntarily and that it was not extracted by unfair or improper means. Not surprisingly, the Advocate Depute did not demur. We therefore heard no argument on the point which in any event does not, strictly speaking, arise for decision.
I incline to the view that the concession was sound. In saying this, I am conscious that in England, under Section 76(2) of the Police and Criminal Evidence Act 1984, the Crown has to prove the necessary facts beyond a reasonable doubt. This reflects the position under the pre-existing common law. On the other hand, in Wendo v. The Queen (1964) 109 C.L.R. 559 at pp. 572-573 Sir Owen Dixon C.J., giving the judgment of the High Court of Australia held that the appropriate standard of proof of the facts relating to the admissibility of a statement was the balance of probabilities. I have found no discussion of the point in any of the Scottish authorities to which we were referred; there is nothing in the cases, however, to suggest that, where trial judges used to decide whether a statement was admissible, they were conscious of applying a particularly high standard in determining whether the Crown had established the necessary factual basis. More positively, perhaps, Parliament's approach to a not dissimilar point can be gauged from Section 259 of the 1995 Act, which deals with the admission of other types of hearsay evidence. Subsection (8) provides that, where the trial judge has to be satisfied of any matter relating to the admissibility of that evidence, the judge is to determine the matter on the balance of probabilities. More generally, there is no requirement in our law that the Crown should prove every fact in a case beyond a reasonable doubt. The requirement is, rather, that, on the admissible evidence as a whole, the Crown should prove the accused's guilt beyond a reasonable doubt. It is not inconsistent with that approach for a judge to determine the factual basis for admissibility on the balance of probabilities.
Trial within a Trial
The question which now arises is whether the judge requires to hear the evidence relating to the circumstances of a statement in a trial within the trial. The submission for the complainer is that in the circumstances of the present case the Sheriff ought to have adopted that procedure. The procedure is usually discussed in the context of jury trials but counsel for the complainer argued that it should be used in appropriate cases under summary procedure. This was said to be such a case. Although the specific issue in the case therefore concerns summary procedure, I have found it helpful to begin by considering the matter in the context of trial by jury.
As the argument developed, it became apparent that it was necessary to identify precisely what is meant by a trial within a trial. In English law the term which is frequently used to describe the equivalent procedure is "voir dire". When the judges referred to a trial within a trial in Chalmers, they were thinking of a procedure in which evidence was led before the judge but in the absence of the jury, the whole purpose of the innovation being to avoid the jury hearing the evidence in question. On the other hand, before the Police and Criminal Evidence Act 1984 came into force, Archbold, Criminal Pleading, Evidence and Practice (41st edition, 1982), paragraph 15-27, could say:
"At the appropriate time, whenever that might be, the judge conducts a trial on the voir dire to decide the question of admissibility. This will normally be done in the absence of the jury, but only at the request or with the consent of the defence" (emphasis added).
Similar statements are to be found in the pre-1984 cases and, from them, one can see that evidence can be led on the voir dire in the presence of the jury. This in turn makes it clear that the essential characteristic of the hearing of evidence on the voir dire is not the absence of the jury but the fact that it is discrete from the hearing of the evidence in the substantive trial. In other words all the evidence relating to the issue of admissibility is taken together, so as to constitute a distinct chapter. As is apparent from some of the cases discussed below, the evidence is "ring-fenced" and can be used only for the purpose for which it was led.
As I pointed out above, a somewhat similar approach can be detected in Barbara Simpson where evidence was led in front of the jury about the circumstances in which the appellant had made a statement. After Lord Kyllachy gave his ruling admitting the statement, "[t]he evidence led by the appellant as to the circumstances under which the statement was made was held evidence in the case". It appears to have been thought that, if that had not been done, the evidence of the circumstances would have remained outside the body of evidence in the substantive case. There is no sign, however, of a similar procedural step in later cases where it seems to be assumed that the jury can take the evidence into account in determining the weight to be attributed to the statement. Be that as it may, the essential characteristic of a trial within a trial as being something distinct from the rest of the trial is of particular importance in relation to summary procedure. If the only purpose of holding a trial within a trial were that it allowed evidence to be led in the absence of the jury, then there could be no room for a trial within a trial in summary procedure where the judge who deals with admissibility also decides the substantive issue of guilt or innocence. But once it is realised that the trial within a trial can be used to cordon off the evidence led in it, it soon becomes apparent that the procedure can have a place in summary proceedings. I examine that point more fully below.
It seems clear that the practice of holding a trial within a trial without the jury was unknown in Scots law until Chalmers. Up until that time the evidence relating to the circumstances in which a statement had been made was led in front of the jury who retired only for the phase during which the submissions were made and the decision was announced. It is worth noting that there appears to be no reported case in which the accused gave evidence on the point. The court in Chalmers decided that that procedure was open to objection and should no longer be followed because it tended to tie the hands of counsel in examining and cross-examining the witnesses and also tended to lead to the disclosure to the jury of matters which ought to be withheld from their knowledge. They also envisaged that the accused could be a witness. It is not hard to figure cases where, for instance, in resisting the admission of evidence of a statement, the defence would wish to be able to refer to the accused's previous convictions or perhaps to a habit of drug-taking in order to elucidate the relevant circumstances but, if possible, would not wish the jury to become aware of those matters. In such a case the trial within a trial allows the relevant circumstances to be explored before the judge who has to rule on admissibility, but at the same time avoids any risk that the jury may become aware of prejudicial matter which has no direct bearing on their decision as to the accused's guilt or innocence of the charges in the indictment. In cases of this kind a court should ordinarily use the procedure if the defence ask for it. On the other hand there may be cases where, because of the nature of the circumstances surrounding the emitting of the statement or for other tactical reasons, the defence prefer to have the evidence about the circumstances led in front of the jury.
The arguments in Chalmers in favour of adopting the trial within a trial procedure are essentially practical. The argument advanced by counsel for the complainer in the present case is quite different and raises an issue of importance which was not considered in Chalmers or indeed in any other Scottish authority. The defence position at the trial in this case was that they did not intend that the complainer should give evidence at large after the Crown case was closed. On the other hand, they did wish to lead his evidence to show that he made the statement only because he had been told that, if he did so, he would be released on bail. In other words the defence wished to lead the evidence of the complainer in relation to the single issue of the admissibility of the statement without exposing him to general cross-examination on the substance of the charges. This was the reason why the complainer's agent moved the Sheriff to hold a trial within the trial so that he could hear the evidence relating to admissibility - including the complainer's evidence - and then rule on the matter before the close of the Crown case. The Sheriff refused the motion and the complainer did not give evidence. It was submitted that, by refusing to hold a trial within the trial, the Sheriff had failed to ensure a fair trial since he had made it impossible for the complainer to deploy his full case against the admissibility of the statement without requiring to answer questions, the answers to which might tend to incriminate him (Section 266(3) of the 1995 Act). In this way the complainer had been put under improper pressure to abandon his right not to incriminate himself; he had resisted that pressure but at the cost of not being able to give the evidence necessary to advance his case against the admissibility of the statement. His right to a fair trial had therefore been breached. Although the argument is novel in Scots law, its origin is not far to seek since it is to be found in outline in Renton & Brown's Criminal Procedure (sixth edition), paragraph 24-61.
Perhaps the clearest statement of the point of principle is to be found in the opinion of Clayden A.F.C.J. in the Federal Supreme Court of Rhodesia and Nyasaland in Chitambala v. The Queen [1961] R. & N. 166 at pp. 169 - 170. The passage, which is quoted with approval by Lord Edmund Davies in Wong Kam-ming v. The Queen at p. 257, is in these terms:
"In any criminal trial the accused has the right to elect not to give evidence at the conclusion of the Crown case. To regard evidence given by him on the question of admissibility as evidence in the trial itself would mean either that he must be deprived of that right if he wishes properly to contest the admissibility of a statement, or that, to preserve that right, he must abandon another right in a fair trial, the right to prevent inadmissible statements being led in evidence against him ... To me it seems clear that deprivation of rights in this manner, and the changing of a trial of admissibility into a full investigation of the merits, cannot be part of a fair trial."
Clayden A.F.C.J. went on to observe ([1961] R. & N. at p. 170) that "evidence given by an accused must be disregarded on the issue of guilt". It is noteworthy that in Chitambala the Federal Supreme Court were dealing with a case which had been tried before the Resident Magistrate in Lusaka, sitting without a jury. The underlying philosophy of this general approach is articulated by Lord Hailsham in Wong Kam-ming where he says (at p. 261):
"I have stated elsewhere (Director of Public Prosecutions v. Ping Lin [1976] A.C. 574) that the rule, common to the law of Hong Kong and that of England, relating to the admissibility of extra-judicial confessions is in many ways unsatisfactory, but any civilised system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary. For this reason it is necessary that the defendant should be able and feel free either by his own testimony or by other means to challenge the voluntary character of the tendered statement. If, as happened in the instant appeal, the prosecution were to be permitted to introduce into the trial the evidence of the defendant given in the course of the voir dire when the statement to which it relates has been excluded whether in order to supplement the evidence otherwise available as part of the prosecution case, or by way of cross-examination of the defendant, the important principles of public policy to which I have referred would certainly become eroded, possibly even to vanishing point."
The main part of this passage was quoted with approval by Lord Fraser of Tullybelton, with whom the remaining Lords of Appeal concurred, in R. v. Brophy [1982] A.C. 476 at p. 482.
Subject only to a reservation in respect of the standard of proof, I find the reasoning of Lord Hailsham compelling, in particular his emphasis on it being of very great importance that the courts should insist that before extrajudicial statements can be admitted in evidence the Crown should prove that they have been properly obtained. Because this important matter has to be addressed in the course of the Crown case, it follows that the accused must be able to give any necessary evidence on the point at that stage. This separates and distinguishes the accused's right to give evidence in relation to the admissibility of evidence of a statement from his right to give evidence on other matters, such as alibi or self-defence. Because the situations are different, there is no inconsistency in holding that the accused has a right to give evidence during the Crown case only in relation to admissibility, while insisting that on other matters his sole right is to give evidence after the Crown case is closed and subject to cross-examination at large. For that reason I reject the Advocate Depute's argument that the accused's evidence on admissibility should be treated in the same way as his evidence on other matters.
The speech of Lord Fraser of Tullybelton in R. v. Brophy is of particular interest. The House of Lords were dealing with an appeal by the Crown from a decision of the Court of Appeal in Northern Ireland in a case where the trial had been conducted before Kelly J., sitting without a jury, under the Northern Ireland (Emergency Powers) Act 1978. In that respect the procedure was similar to the summary proceedings in this case where the Sheriff was sitting, of course, without a jury. The respondent was charged on indictment with 49 counts, including 12 of murder, 36 of causing explosions or possessing explosives or firearms and one, count 49, of belonging to an illegal organisation, the I.R.A. The Crown case was based on a number of statements which the respondent was alleged to have made to the police after his arrest. He challenged the admissibility of the statements on the ground that they had been induced by torture or inhuman or degrading treatment while he was in custody. Kelly J. held a voir dire on the issue of admissibility and the respondent gave evidence, inter alia admitting expressly that he had been a member of the I.R.A. Having considered the evidence led, the judge excluded the evidence of the statements from the substantive trial, with the result that the respondent was acquitted of all but count 49. On count 49 the judge admitted as evidence in the substantive trial the defendant's admission during the voir dire that he had been a member of the I.R.A. On that basis he convicted the respondent of count 49. The Court of Appeal allowed his appeal against conviction on the ground that that evidence had been inadmissible. The House of Lords refused the Crown appeal without calling upon counsel for the respondent.
In giving judgment in the Court of Appeal Lord Lowry C.J. had observed (R. v. Brophy [1981] N.I.L.R. 79 at p. 94 E) that "it is only relevant evidence which is protected" against admission at the substantive trial. In the appeal to the House of Lords the Crown argued that the respondent's confession to having been a member of the I.R.A. had not been relevant to the issue in the voir dire and that the judge had therefore been right to admit it. Lord Fraser first rejected the argument on a ground relating to the particular facts and then continued:
"I would rest my opinion of relevance also on a wider ground. Where, as in this case, evidence is given at the voir dire by an accused person in answer to questions by his counsel, and without objection by counsel for the Crown, his evidence ought in my opinion to be treated as relevant to the issue at the voir dire, unless it is clearly and obviously irrelevant. The accused should be given the benefit of any reasonable doubt. Of course if the accused, whether in answer to questions from his own counsel or not, goes out of his way to boast of having committed the crimes with which he is charged, or if he uses the witness box as a platform for a political speech, his evidence so far as it relates to these mattes will almost certainly be irrelevant to the issue at the voir dire, and different considerations will apply to its admissibility at the substantive trial. But on any reasonable view of the respondent's evidence in this case, it cannot be said to be clearly and obviously irrelevant.
Once it has been held that the material part of the respondent's evidence was relevant to the issue at the voir dire, a necessary consequence is, in my opinion, that it is not admissible in the substantive trial. Indeed counsel for the Crown did not argue to the contrary. If such evidence, being relevant, were admissible at the substantive trial, an accused person would not enjoy the complete freedom that he ought to have at the voir dire to contest the admissibility of his previous statements. It is of the first importance for the administration of justice that an accused person should feel completely free to give evidence at the voir dire of any improper methods by which a confession or admission has been extracted from him, for he can almost never make an effective challenge of its admissibility without giving evidence himself. He is thus virtually compelled to give evidence at the voir dire, and if his evidence were admissible at the substantive trial, the result might be a significant impairment of his so-called 'right of silence' at the trial. The right means 'No man is to be compelled to incriminate himself; nemo tenetur se ipsum prodere' see R. v. Sang [1980] AC 402, 455, per Lord Scarman. The word 'compelled' in that context must, in my opinion, include being put under pressure. So long as that right exists it ought not to be cut down, as it would be if an accused person, who finds himself obliged to give evidence at the voir dire, in order to contest a confession extracted by improper means, and whose evidence tends to show the truth of his confession, were liable to have his evidence used at the substantive trial. He would not receive a fair trial, as that term is understood in all parts of the United Kingdom."
Although Lord Fraser's observations are not, of course, binding on this court, the weight to which they would in any event be entitled is only enhanced by the fact that, as the last sentence shows, he considered that the argument of principle applied as much in a Scottish context as in the context of the other legal systems of the United Kingdom.
Again, I find the reasoning which I have quoted compelling. As Miss Scott submitted, Lord Fraser identifies a quite fundamental reason for holding a trial within a trial. It may at first sight appear startling, even to a lawyer, that the respondent in Brophy could give evidence admitting that he was a member of the I.R.A. and yet the judge was not entitled to use that evidence to convict him of the charge of being a member of that organisation. That line is drawn, however, just exactly because of the importance which the law attaches to two principles. The first is the principle that the court should admit only evidence which is admissible according to the rules of the legal system in question. The other is the principle that no man is to be impelled to incriminate himself - meaning inter alia that a person who committed the crime with which he is charged cannot be impelled to contribute to his own conviction by admitting it. There is no doubt that this principle or privilege, though asserted only in respect of "capitall crymes" in the Claim of Right, 1689 c.13, has long been recognised as applying more generally in Scots law (Hume, Commentaries vol. 2, pp. 336-337 and Alison, Criminal Law vol. 2, pp. 586-587). I find it unnecessary for present purposes to identify the precise scope of the privilege or to determine whether the values which underpin it in our law are in all respects the same as those articulated by Justice Goldberg, writing for the United States Supreme Court, in Murphy v. Waterfront Commission 378 U.S. 52 (1964) at p. 55. It is enough that any system which recognises these two principles must ensure that its trial procedures respect them. A trial within a trial provides an appropriate procedural solution - permitting the accused to give any evidence necessary to support his objection to the admissibility of a statement but in a manner which means that he does not thereby give evidence against himself in the substantive trial.
Brophy was, of course, an unusual case, but it is not difficult to envisage other cases where essentially the same problem might arise - where, for instance, the accused wished to lead evidence to the effect that he had been caught committing one of the offences libelled but had been pressurised into making a false admission of other offences. In such circumstances the accused would be entitled to give evidence admitting the single offence in a trial within the substantive trial in order to deal with the matter of admissibility. For the reasons given by Lord Fraser, the accused's admission in the trial within the trial could not be used against him in the substantive trial.
A question which has caused difficulty in systems where the voir dire has been used is whether the Crown can ever make any reference in the substantive trial to the evidence of the accused in the trial within the trial. While reserving my opinion until such a case arises for decision, I note that in Wong Kam-ming both the majority of the Board ([1980] A.C. at pp. 258 F - 260 D and Lord Hailsham [1980] A.C. at pp. 261 E - 262 A) agreed on the approach which should be taken. They held that, if the judge ruled that the statement was inadmissible, then no reference whatever could be made to what the accused had said in the voir dire. The position would be different, however, if the judge held that the statement was admissible and the accused subsequently gave evidence - relevant to the jury's determination of the weight to be attached to it - about the circumstances in which the statement had been made. If the accused departed materially from the evidence which he had given on the same matter in the voir dire, then their Lordships could see no reason why the discrepancies should not be elicited and demonstrated in cross-examination. Lord Edmund-Davies envisaged indeed that the Crown might lead evidence of what the accused had said in the voir dire in rebuttal.
When these various points are considered, it becomes clear that the hostility to the trial within a trial procedure which has been expressed in many Scottish cases is in certain respects misconceived. The criticism tends to be based on the possible effect which the procedure will have in lengthening trials, on inconvenience to jurors and on the risk that evidence when led for a second time before the jury will be tailored in the light of the cross-examination in the trial within a trial. All these are disadvantages which are indeed inherent in the procedure and which will be more or less serious in any particular case. They should not be exaggerated, however: the voir dire has operated without undue difficulty for many years in other parts of the United Kingdom as well as in the Commonwealth and a similar procedure operates in the United States. In any event what the criticisms tend to overlook is that the existence of such disadvantages, even if substantial, cannot be a conclusive argument against the use of the procedure. For the reasons which I have sought to explain, there are situations where the general duty to ensure a fair trial will impose on the judge a particular duty to hold a trial within a trial since, otherwise, the accused will be unable properly to challenge the admissibility of evidence against him. In such circumstances the holding of a trial within a trial is unavoidable and any attendant practical disadvantages of the procedure, though unfortunate, are the price which society must pay in order to achieve the important objective of ensuring that persons charged with crimes receive a fair trial.
Even though a trial within a trial may be the best way of securing a fair trial, it will not, of course, always work perfectly. As Lord Cooper acknowledged in Chalmers (1954 J.C. at p. 80), it may give rise to difficulty and may not always achieve the desired ideal of avoiding prejudice to the accused. In particular, difficulties are likely to arise where the judge hears evidence in the trial within a trial and decides on that basis to admit the statement, but then the evidence of the circumstances is subsequently led before the jury and comes out differently, in a form which would mean that the statement should be excluded. The court has to respond to such difficulties, always bearing in mind its duty to ensure a fair trial. The appropriate response will depend on the exact circumstances. If the terms of the statement have not yet been put to the jury, I can see no reason why the defence should not renew the objection or why the judge should not give a further ruling in the light of the new evidence. It is relevant to notice that, though the judge cannot now reconsider his ruling on an objection in England and Wales because of the terms of Section 78 of the Prisoners and Criminal Evidence Act 1984, the judge could do so under the pre-existing law. See Archbold, Criminal Pleading, Evidence and Practice (41st edition), paragraph 15-28, citing R. v. Murphy [1965] N.I.L.R. 138 at p. 150 per Lord MacDermott C.J. and R. v. Watson (1980) 70 Cr. App. R. 273. If the terms of the statement have been given to the jury before the additional evidence emerges, the problem may be more complicated. Where the judge concludes that evidence of the statement should not have been led, then he will, of course, take no notice of that evidence in determining a no case to answer submission. Where there remains a case to answer, it will be possible in many cases for the judge, having regard to the evidence as a whole, simply to direct the jury to disregard the statement. There may, however, be cases where the likely impact of the statement on the jury is such that the judge feels that they could not realistically be expected to put it out of their minds when considering their verdict. If the judge is of that opinion, then, depending on the reason for the change in the evidence, it may be appropriate for him to desert the diet pro loco et tempore.
It was after considering these points as they emerged in argument that, as I have mentioned, the Advocate Depute came to accept that he could not support the test in Balloch in an unqualified form. On the second day of his submissions he therefore proposed two refinements to that test.
The first was that, where there is no substantial dispute on the relevant facts surrounding the giving of a statement, the judge should allow the matter to go to the jury, unless he is satisfied on the undisputed facts that the statement was not obtained fairly. As the Advocate Depute explained, this would mean that, provided that there is no dispute on the facts, the issue of fairness is for the judge rather than for the jury; where there is a dispute on the facts, the whole matter should go to the jury. I cannot accept this proposed rule: not only is it devoid of support in any of the authorities but it is also inconsistent both with the position in Scots law, up to and including Chalmers, and with the position in other comparable systems. Moreover, it is manifestly unworkable. The Advocate Depute had to accept that, if either party cross-examined the witnesses of the other party on any issue of significance and the witnesses did not concede the point, there would be a substantial dispute on the relevant facts and the judge would have no alternative but to allow the matter to go to the jury, even if he were satisfied that the statement was not obtained fairly. The Advocate Depute could therefore cross-examine freely, secure in the knowledge that he was increasing the chances of the statement being led in front of the jury. Defence counsel, on the other hand, would be put under unacceptable pressure to refrain from cross-examination, knowing that it would almost inevitably result in the evidence of the statement becoming known to the jury. Such a manifestly unbalanced rule could only wreak injustice.
The second proposed refinement began with a reaffirmation of the basic tenet of Balloch, that the resolution of disputed matters of fact is the province of the jury. None the less the judge should determine the admissibility of a statement in exceptional circumstances, where the evidence of the content of the statement or the evidence of the surrounding circumstances would, if led before the jury, inevitably result in such prejudice to the accused that he would be unlikely to receive a fair trial. Exceptional circumstances of this type would include the kind of situation which arose in Brophy and the situation where the evidence would disclose analogous previous convictions of the accused. I reject this proposed refinement also for the same basic reason - that it not only finds no support in the authorities but is actually contradicted by them. It is moreover inconsistent with the basic principle that all matters relating to the admissibility of evidence should be determined by the judge. A purely secondary criticism is that the proposed test for identifying the exceptional cases where a judge would deal with the evidence would be difficult to operate in practice.
For these reasons I am satisfied that the defects in the Balloch test cannot be remedied by grafting on to it the qualifications proposed by the Advocate Depute. His valiant efforts to modify the test simply served to confirm that, as I have already held, it is unsatisfactory and should no longer be applied.
I turn now to deal with the position under summary procedure. As Chitambala and Brophy show, the trial within a trial procedure can play a vital role even where it is a judge who has to decide both the issue of admissibility in the trial within the trial and the issue of guilt or innocence in the substantive trial. The opinion of Lord Lowry C.J. in Brophy [1981] N.I.L.R. at pp. 86 G - 88 A contains a useful survey of three Commonwealth cases, all involving non-jury trials. From what is said in Brophy, in particular, it follows that a trial within a trial will in principle be the appropriate procedure to adopt in summary proceedings in our law. The Advocate Depute submitted, however, that any system under which a judge in summary proceedings held a trial within a trial and then excluded evidence would be inconsistent with the indication given by Lord Justice General Cooper in Clark v. Stuart 1950 J.C. 8 at p. 11 that in summary proceedings
"it seems to me that only exceptional circumstances ... justify the exclusion of an important chapter of evidence outright, with the effect of placing matters beyond the control of any appellate tribunal. The normal and proper course would be to allow such evidence under reservations as to competency, so that the question of law could, if necessary, be examined by a higher Court."
Lord Cooper was speaking in the context of a system in which there could be no retrials and the earlier part of his opinion shows that this was what he had in mind when he spoke of matters being placed beyond the control of any appellate tribunal. That particular argument no longer has force since, under Sections 183(1)(d) and, if appropriate, 191(3) of the 1995 Act, the court can set aside the verdict of the lower court and grant authority to the Crown to bring a new prosecution in accordance with Section 185. I should accordingly wish to reserve my opinion on the weight to be attached to this particular statement in our current system.
In any event Lord Cooper indicated that the rule which he was laying down was subject to exceptions. More importantly, in Runham v. Westwater 1995 S.C.C.R. 356 Lord Justice Clerk Ross specifically recognised that a refusal by a sheriff to rule on an issue of admissibility before the end of the Crown case in a summary case could deprive the accused of his right under the equivalent to Section 160 of the 1995 Act. Referring to Clark v. Stuart he said:
"We have come to the conclusion that the present case is sufficiently unusual and exceptional. What is complained of is an irregularity of procedure in that the sheriff erroneously considered that it was not competent for him to rule upon the admissibility of this reserved evidence at the conclusion of the Crown case. As a result of his holding that he could not rule upon that matter, the complainer has been placed in the position that he was not able to put forward his submission of no case to answer under section 345A of the Criminal Procedure (Scotland) Act 1975 in the knowledge of whether or not the particular evidence, which has been allowed under reservation, was admissible. The submission which was made had to be made upon the basis that the evidence led by the Crown included the evidence which has been allowed under reservation. If the sheriff had appreciated that it was competent for him to rule upon that matter of admissibility at the conclusion of the Crown case, he has told us that he would have done so. If he had done so and had upheld the objection taken to the evidence which had been allowed under reservation, then he would have had to consider whether there was sufficient evidence in law on the basis only of the admissible evidence that had been led before him.
It therefore appears to us that, as a result of the sheriff holding that it was not competent for him to make the ruling at that stage, the complainer has been deprived of the right conferred upon him under section 345A of the Act of 1975. He was forced to put forward his submission of no case to answer without knowing whether the evidence objected to was to be held admissible or not. We are accordingly satisfied that that was prejudicial to the complainer and we are not persuaded that that is something which can necessarily be rectified at a later stage."
This passage confirms that there is no reason why a judge in a summary case who has held a trial within the trial should not forthwith rule on the admissibility of evidence of a statement of the accused and so be in a position properly to consider any no case to answer submission at the close of the Crown case.
Decision on the Appeal
In the present case the agent for the accused moved the Sheriff to hold a trial within the trial at which the complainer, who did not intend to give evidence on his own behalf at the close of the Crown case, would give evidence relating to the admissibility of the proposed Crown evidence about his answers to questions on the offences in the complaint against him. The Sheriff refused the motion, giving as his reasons, first, the reluctance over a period of years by the bench to sanction a trial within a trial except in the narrowest of circumstances and, secondly, that, bearing in mind that a summary criminal trial is a proof before answer with the opportunity to decide on the admissibility, the relevance and competency of evidence at the conclusion of the trial, he considered that it was inappropriate to sanction a trial within a trial. For the reasons which I have given, I am satisfied that the Sheriff's approach, though entirely understandable in the light of the existing decisions of this court, was in fact erroneous and that his decision to refuse to hold a trial within the trial was prejudicial to the complainer. The Advocate Depute indicated that, if we were to reach that view, we should simply pass the bill and quash the convictions. In those circumstances I am of the opinion that the bill should be passed and the complainer's convictions quashed.
Human Rights
I should record that Miss Scott based part of her argument in support of the appeal on Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and on the privilege against self-incrimination, which is not mentioned but is none the less said to lie at the heart of the notion of a fair procedure under Article 6 (Saunders v. United Kingdom Reports of Judgments and Decisions 1996-VI 2044; (1996) 23 E.H.R.R. 313 at paragraph 68; Murray v. United Kingdom Reports of Judgments and Decisions 1996-I 30; (1996) 22 EHRR 29 at paragraph 44). Since none of the European Court of Human Rights cases considered the nature or scope of the privilege in a way which added to what could be derived from the other material which was placed before us, I did not derive any real assistance from them. For that reason I shall not extend this already lengthy opinion by examining them. I should also record that Miss Scott, doubtless anticipating possible procedural complications, specifically eschewed any argument based on Section 57(2) of the Scotland Act 1998 and the Lord Advocate's membership of the Scottish Executive. I have therefore not considered the possible implications, if any, of that section for the complainer's argument.
Summary
Finally, it may be useful if I enumerate in summary form the main practical conclusions which I have reached.
1. Balloch should be overruled. In all cases it is for the trial judge to decide whether any evidence, including evidence of a statement by the accused, is legally competent and can be led.
2. The judge must decide any issues of fact which are necessary to enable that legal decision to be taken.
3. Since the trial judge has to determine any issue of fact before ruling on admissibility, if the facts are disputed, the judge must first hear all the relevant evidence, including any evidence which the accused wishes to give on the point.
4. If the defence ask for the evidence on admissibility to be heard in the absence of the jury, the judge should ordinarily grant that motion.
5. The Crown cannot use any evidence given by the accused in the trial within a trial as proof of his guilt. There may, however, be circumstances in which the accused can be cross-examined about that evidence if he subsequently gives evidence in the substantive trial which is materially different. Cf. Wong Kam-ming. Other witnesses can, of course, be cross-examined on any differences in their evidence.
6. Where an issue arises on the evidence, it is for the Crown to satisfy the judge that the statement is admissible. The appropriate standard of proof would appear to be the balance of probabilities, as the defence conceded in this case.
7. The judge will exclude evidence of a statement if it was taken in circumstances which render it inadmissible under any rule laid down by the law. In other cases the judge will admit the statement if the Crown satisfy the judge that it would be fair to do so, by proving that the statement was made freely and voluntarily and was not extracted by unfair or improper means.
8. Any ruling on the admissibility of the evidence of a statement should be given, in both solemn and summary proceedings, after the evidence of the circumstances had been led and any submissions on the evidence have been heard. In this way, any defence submission that there is no case to answer will fall to be made on the basis of the legally admissible evidence led by the Crown.
9. Where the judge admits the evidence of a statement, evidence of the circumstances in which it was taken remains relevant to any determination of the weight which should be attached to it.
10. If the judge admits the evidence of a statement and fresh circumstances emerge in subsequent evidence which cast doubt on that ruling, the defence may renew their objection and invite the judge to reconsider the ruling. On reconsideration the judge may confirm or reverse the original ruling in the light of the new evidence. If the evidence of the statement has not yet been led, the judge may exclude it. If it has been led, the judge may direct the jury to disregard it or, if, because of its likely impact, the judge considers that the jury could not realistically be expected to put the evidence out of their minds, then, depending on the circumstances, the judge may desert the diet pro loco et tempore. In the case of a summary trial, the judge will disregard the evidence in reaching a verdict; only rarely would it be appropriate for the judge in a summary trial to desert the diet on the ground that it would be impossible to disregard the evidence in reaching a verdict.
I cannot conclude without acknowledging the assistance which I derived from the written and oral submissions of counsel as well as from the volumes of authorities which the defence agents and Crown Office had co-operated in preparing.
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Lord Justice Clerk Lord Sutherland Lord Caplan Lord Hamilton
|
Appeal No: 2238/97
OPINION OF THE LORD JUSTICE CLERK
in
BILL OF SUSPENSION
by
ANDREW THOMPSON Appellant;
against
PROCURATOR FISCAL, Hamilton Respondent:
_______ |
Appellant: Scott, Davies; Balfour & Manson
Respondent: Menzies, Q.C., MacNeill; Crown Agent
5 November 1999
I am in full agreement with the Opinion of your Lordship in the chair. I would add a few observations of my own.
Although this appeal arises out of the refusal by the sheriff to hold a trial within a trial, it has led to the discussion of a fundamental question: Is the admissibility of evidence of a statement by the accused a matter for the judge, and not the jury, to decide?
An essential characteristic of a system of criminal procedure, such as we have in Scotland, is the determination of what is and what is not competent evidence against an accused person. In some instances the question of the admissibility of evidence of a statement by the accused is determined by reference to an established legal rule, as in Wade v. Robertson 1948 J.C. 117. In other cases admissibility depends on the more general question whether the statement was made freely and voluntarily. In the latter type of case, much will turn on the facts of the particular case and what is perceived to be their significance.
In this context the Lord Justice Clerk (Wheatley) in delivering the opinion of the court in Balloch v. H.M. Advocate 1977 J.C. 23 at page 28 stated:
"Suffice to say, a Judge who has heard the evidence regarding the manner in which a challenged statement was made will 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. Applying that test to the instant case, we are of the opinion that, to say the least, the question was so open that the trial judge acted perfectly correctly in allowing the issue to go to the jury for their determination. That having been done, it is not suggested that proper directions thereanent were not given to the jury by the judge. In point of fact the judge's directions to the jury on this point were wholly in consistence with the law that has been laid down.
Counsel for the applicant made the somewhat startling proposition that in any event a judge should be reluctant to remit such a question to the jury because of the difficulty of a jury understanding what is involved in unfairness. That proposition not only flies in the face of a test which the judge has to apply in deciding whether the evidence should be admitted to or excluded from the jury, but would appear to desiderate that the judge should usurp the function of the jury in what ex hypothesi has become a question of fact".
That statement of the law has been adopted in subsequent cases which I need not detail.
In the passage quoted the Lord Justice Clerk indicated that it was for the judge to decide "whether the evidence should be admitted to or excluded from the jury", and that for this purpose he should apply the test which he formulated. It may be noted that this was not the test of the admissibility of the evidence against the accused, which was whether the statement had been voluntarily made and had not been extracted by unfair or improper means. Thus when the judge was referred to as "admitting" evidence, that word was used in a different sense from holding the evidence admissible as competent evidence against the accused.
The statement of the law by the Lord Justice Clerk involved that the correct course for the judge was to "admit" evidence to the jury (i) where the relevant evidence was in dispute; and (ii) where, even if there was no such dispute, a reasonable jury could hold that the statement was fairly obtained.
In my view these restrictions on the power and duty of the judge to decide the question of admissibility are not in accordance with sound principle. In Hume and Alison there is no trace of the idea that questions of admissibility were to be decided by anyone other than the judge. In the older authorities the principal examples of admissibility relate to the question whether a person was a competent witness. In the course of dealing with such cases Alison, vol. 2 page 436, states:
"It is the province of the court alone, to decide upon an objection of this description, as upon every other matter which relates to the admissibility of or legal objection to, testimony".
There is no suggestion whatever that any different approach was appropriate when the question of admissibility related, not to the witness, but to some part of his evidence. In the reported cases of last century there are a number of examples of an objection being taken to the admissibility of evidence of a confession by the accused. When the objection was taken the judge made his decision upon it before that evidence was heard, and for that purpose would permit defence counsel to cross-examine the witness in order to set up the circumstances which were thought to be favourable to the objection, and, where appropriate, examine further witnesses (see H.M. Advocate v. Mahler and Berrenhard (1857) 2 Irv. 634; H.M. Advocate v. Proudfoot (1882) 4 Coup. 590; and H.M. Advocate v. Simpson (1889) 2 White 299). It is clear that the evidence which was heard in this way was heard for the purpose of enabling the judge to decide whether or not the confession evidence was admissible. In the case of Simpson the report states explicitly that, upon the objection being repelled, the evidence led by the accused as to the circumstances under which the statement was made was held evidence in the case. This made it clear that, although the jury heard that evidence, it was regarded as being in a separate compartment for the special purpose of enabling a decision on the objection to be arrived at. The cases show that there was some variation in the practice which was adopted. Thus in H.M. Advocate v. Fox 1947 J.C. 30 at the initial stage the witness was asked to identify and not to read the statement. The objection was dealt with at the end of the Crown case, and only when the objection had been repelled was the statement read to the jury.
The practice to which I have referred was, in my view, in accordance with sound principle. A decision as to the admissibility of evidence is a legal ruling, namely that the jury are entitled to take that evidence into account in considering the case against the accused. It remains a matter of law whether or not, in order to reach a decision as to that ruling, it is necessary to resolve a question of fact or of mixed fact and law. The fact that in those earlier cases the judge directed the jury that, despite his ruling that the evidence as to the statement was admissible, it was a matter for them to decide what weight should be attached to that evidence (as in the charge of Lord Moncrieff in H.M. Advocate v. Cunningham 1939 J.C. 61 pages 67-68) did not mean that the jury were entitled to review the judge's decision as to the admissibility of the evidence. They were able to exercise their well-understood function of determining what weight, if any, should be given to that evidence. Both judge and jury would consider the question of fairness, but for different purposes.
It is, I consider, worthwhile considering the practical effect of leaving questions as to the admissibility of evidence to the jury. Firstly, this means that the judge would require to leave the matter to them even where he was entirely satisfied that evidence was inadmissible by reason that the statement had been obtained by unfair or improper means. He could not disclose his own view to them without running the risk of being criticised for usurping their function. Secondly, the defence would be placed at a disadvantage in regard to the making of submission of no case to answer under section 97 or section 160 of the Criminal Procedure (Scotland) Act 1995, and in deciding whether and to what extent any evidence should be led by them. Thirdly, where the question of admissibility has been left to the jury it may well be difficult, if not impossible, for an accused to appeal on the ground that the evidence was inadmissible. It may be unclear what part, if any, the evidence played in their decision. Even if it is clear that the conviction hinged on the jury relying on the evidence of the accused's confession, the effect of the test set out in Balloch and later cases is that the admissibility of the confession evidence cannot be called in question on appeal unless no reasonable jury could have decided that it was admissible. If on the other hand the ratio of the decision in H.M. Advocate v. Codona 1996 S.C.C.R. 300 is that the confession evidence in that case was inadmissible, it follows that the same decision was open to the trial judge, despite the clear implication of Balloch.
I return to the passage from the Opinion of the Lord Justice Clerk in Balloch. The Advocate depute in a later part of his submissions, and sensible no doubt of the difficulties created by the statement in that and later cases which endorsed a similar test as to whether evidence should be "admitted" to a jury, conceded that there were two situations in which it was open to the judge to decide the question of admissibility for himself, but maintained that these were the only exceptions. Since the first of these situations was based on a view as to the respective roles of judge and jury, I will consider it at this stage. The judge, he said, should be able to determine admissibility where the relevant evidence was not in dispute. Hence he was not entitled to do so where they were in dispute. The Advocate depute's concession made considerable inroads into the proposition which lay at the heart of his submission, namely that the judge should not usurp the function of a jury as masters of the facts. However, the assessment of matters of fact involves a number of inter-related functions, including the weight to be attached to the evidence and the inference which should be drawn from it. If it is open to the judge to exercise these functions, why is he not also entitled to exercise the function of deciding what evidence should be accepted and what evidence rejected? It was incorrect for the Advocate depute to submit, as he did, that if the relevant facts were not in dispute, the only question for the judge was one of pure law. The application of the law to the facts involves such questions of weight and inference. Secondly, the concession made by the Advocate depute did not seem to me to be supported by any coherent principle. For a judge to reach a conclusion on the facts which are pertinent to the question of admissibility is entirely different from the role of the jury as masters of the facts in determining the guilt or innocence of the accused. Thirdly the test propounded by the Advocate depute seemed to be entirely unworkable and to be capable of working injustice. Not much would be required in order to bring about a question as to whether there was a dispute about the facts. It is not difficult to see that the defence could well be inhibited in questioning witnesses lest they gave the impression that there was one. Likewise it would be relatively easy for the Crown to create such an impression .
Your Lordship in the chair has provided a number of graphic examples from this century and the last of cases in which, for the purposes of resolving the question of admissibility, the judge reached a conclusion as to the facts. There are comparatively few examples of outright contradiction in the evidence thus considered. This may well be because prior to 1898 the accused was not a competent witness. Thereafter, and prior to Chalmers v. H.M. Advocate 1954 J.C. 66, counsel would no doubt be chary about calling the accused in order to dispute the admissibility of the statement lest the prosecutor be given the opportunity of cross-examining him as to his guilt. The first reference to the evidence of the accused being heard in this context occurs in Chalmers, and within the discussion about a trial within a trial.
For these reasons I agree with your Lordship in the chair that the proposition that the power of the judge to determine the admissibility of confession evidence is circumscribed in the way set out by the Lord Justice Clerk in Balloch is unsound, and that decision should be overruled.
I turn then to consider procedure by way of a trial within a trial. While this was an innovation which was introduced by the decision in Chalmers, it is important to note, against the background of the earlier decisions, that there was nothing new in the conception of evidence being heard in regard to the objection which was separate from the evidence in the trial, on the basis of which the judge decided the question of admissibility. The decision in Chalmers made no difference to this or to the respective roles of judge and jury. The difference which was advocated in Chalmers was that the evidence in regard to the objection was to be heard without the jury being present. As can be seen from the Opinion of Lord Justice General Cooper at page 80, it is clear that the reasons why this procedure was advocated was because in some cases, including that of Chalmers, the fact that the evidence was heard by the jury tied the hands of counsel in examining and cross-examining witnesses and almost inevitably led to the disclosure to the jury of matters which ought to have been withheld from their knowledge. Thus there was, on the one hand, the risk that justice would not be done to the objection, and, on the other hand, the risk that evidence which emerged in the course of an examination of the circumstances of the confession might be prejudicial to the accused at his trial, despite any directions to the jury to put that aside.
Over the years a number of objections to procedure by way of a trial within a trial have been expressed, notably by Lord Justice General Clyde in Thompson v. H.M. Advocate 1968 J.C. 61 at page 66. The Advocate depute summarised and elaborated on these objections, which were mainly concerned with the situation where the objection was repelled. Court time could be taken up by a repetition of the evidence. The accused would be given the opportunity to improve evidence which he had given at the trial within a trial. The jury would not be aware of any discrepancy between the evidence which they heard and that which had been given before. If, on the other hand, the judge left the matter of admissibility to the jury, he was relieved of the awkwardness of having to make a decision on credibility against the accused in the middle of the trial. Further, the jury would not gain the impression that something unfavourable about the accused was being kept from them. It is not difficult to see that, as a practical matter, there are disadvantages either way, whether the jury are or are not present during the time when the evidence relating to the objection is heard.
However, consideration of the competing claims of either way of proceeding are overtaken, in my view, by a much more fundamental consideration. This can be put positively: the right to a fair trial implies a right in the accused to take objection to the admissibility of evidence which is distinct from his right to give evidence. The existence of a right implies freedom to choose whether or not to exercise it. To fetter the opportunity to take objection by insisting that it can exercised only at the price of giving evidence by way of defence runs counter to this. Put negatively, the accused should not be required to run the risk of incriminating himself in order to substantiate his objection to the evidence. This seems to me to point clearly to the conclusion that it is in accordance with an accused's right to a fair trial that, where the facts relating to an objection to confession evidence are in dispute, procedure by way of a trial within a trial should be adopted.
The second situation in which, according to the Advocate depute, it would be open to the judge to decide the question of admissibility, even if the facts were in dispute, was where there were exceptional circumstances in the content of a statement made voluntarily by the accused, or where there were, exceptionally, circumstances surrounding the obtaining of the statement which would inevitably result in such prejudice to the accused if the jury were to hear that evidence that the accused was unlikely to receive a fair trial. Otherwise the judge should not resolve a dispute as to the facts. The Advocate depute appeared to have in mind cases such as R. v. Brophy (1982) A.C. 476 in which the accused could not justify his assertion that he had been unfairly treated without revealing that it was due to something in his past criminal record or behaviour.
I see no good reason why the occasion for a trial within a trial should be limited to such circumstances. For reasons which I have stated earlier in this Opinion it is for the judge to resolve the dispute as to the admissibility of the confession evidence. There is no principle of law which would cramp his power to do so in the way submitted by the Advocate depute. Furthermore, considerations of fairness point to the conclusion that the accused should not be denied the opportunity to give evidence in support of his objection to the admissibility, separately from any evidence which he gives at the trial.
As regards summary procedure, it might seem at first sight that there is something surprising in the suggestion that, where the sheriff is the judge of both law and fact, he should hear evidence relating to a question of admissibility in a trial within a trial. If, in the case of solemn procedure, the question were simply whether the evidence should be heard in the presence of the jury or not, that surprise would harden into firm conviction that such procedure was not appropriate in summary cases. However, the fundamental point here is not a trial within a trial, but the separate nature of the enquiry which the judge may have to conduct when objection is taken to the admissibility of evidence and that objection cannot be resolved without evidence being heard as to the circumstances in which the confession was obtained. That point is directly applicable to summary procedure. The decision as to admissibility should be given after the evidence of the circumstances has been given and any submissions in this matter have been heard.
I therefore agree with your Lordship in the chair that the Bill should be passed and the complainer's convictions quashed.
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Lord Justice Clerk Lord Sutherland Lord Caplan Lord Hamilton
|
Appeal No: 2238/97
OPINION OF LORD SUTHERLAND
in
BILL OF SUSPENSION
by
ANDREW THOMPSON Appellant;
against
PROCURATOR FISCAL, Hamilton Respondent:
_______ |
Appellant: Scott, F.M. Davies; Balfour & Manson
Respondent: Menzies, Q.C., A.D., C.H.S. MacNeill, A.D.; Crown Agent
5 November 1999
I agree with the opinion of your Lordship in the chair and have nothing useful to add.
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Lord Justice Clerk Lord Sutherland Lord Caplan Lord Hamilton
|
Appeal No: 2238/97
OPINION OF LORD CAPLAN
in
BILL OF SUSPENSION
by
ANDREW THOMPSON Appellant;
against
PROCURATOR FISCAL, Hamilton Respondent:
_______ |
Appellant: Scott, F.M. Davies; Balfour & Manson
Respondent: Menzies, Q.C., A.D., C.H.S. MacNeill, A.D.; Crown Agent
5 November 1999
I agree with the opinion of your Lordship in the chair and have nothing to add.
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Lord Justice Clerk Lord Sutherland Lord Caplan Lord Hamilton
|
Appeal No: 2238/97
OPINION OF LORD HAMILTON
in
BILL OF SUSPENSION
by
ANDREW THOMPSON Appellant;
against
PROCURATOR FISCAL, Hamilton Respondent:
_______ |
Appellant: Scott, F.M. Davies; Balfour & Manson
Respondent: Menzies, Q.C., A.D., C.H.S. MacNeill, A.D.; Crown Agent
5 November 1999
I agree with the opinions of your Lordship in the chair and of the Lord Justice Clerk. I accordingly concur in the disposal proposed.
© 1999 Crown Copyright