APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: C76/97
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
APPEAL AGAINST CONVICTION
HER MAJESTY'S ADVOCATE
Appellant: Targowski, Q.C., Shead; Kerr, Chambers, Lynch, Paisley
Respondent: C.H.S. McNeill, A.D.; Crown Agent
17 December 1999
On 10 January 1997 the appellant was convicted in the High Court at Glasgow on a charge of murder. Since he was 15 years of age he was sentenced to be detained for life in accordance with section 205(2) of the Criminal Procedure (Scotland) Act 1995. The charge of which he was convicted was in the following terms:
"On 7 September 1996 at Garry Drive, Paisley you did assault Scott Ferguson, 9 Maree Road, Foxbar, Paisley, chase him, and repeatedly kick him on the body, and repeatedly strike him on the head and body with a knife or similar instrument whereby he was so severely injured that he died at the Royal Alexandra Hospital, Paisley later same date and you did murder him and you did previously evince malice and ill-will towards him".
He appealed against his conviction on a number of grounds, but the only one which has been insisted upon is that, for reasons which we will consider later in this opinion, the trial judge should have withdrawn the indictment from the jury.
In view of the scope of the argument in the appeal we will at the outset set out the history of the case in some detail. On the evening of 12 September 1995 the appellant was apprehended in the custody of his father at Stranraer. Later that night he was interviewed at Stranraer by police officers who had travelled from Paisley after they had been informed about his apprehension. The interview, which took place in the presence of his father, started at 1.08 a.m. on the following morning. After being cautioned the appellant made a statement in which he denied knowledge of the murder and gave details of an alibi. He stated that having left Paisley at "tea time" in the afternoon of 7 September in the company of his half-brother, David Deans, he had hitch-hiked his way with him to Girvan in order to stay in a caravan belonging to an uncle of his brother's girlfriend, Kelly Mains. He did not know the name of the uncle. He described how they obtained various lifts on the way to Girvan. According to the report of the trial judge he gave rather inadequate descriptions of the persons who had given them lifts. They reached Girvan at about 12.30 a.m. on the following morning. When they arrived at the caravan site they were surprised to find that the caravan was occupied by a woman and a child. The period for which she had rented the caravan had expired but she had delayed her departure. He and his brother left her in the caravan and walked down the road. They found an old caravan in which they spent the night. Later in the day they took up occupation of the caravan which they had come to Girvan to occupy. The appellant's sister, Katie McDermott, and Kelly Mains joined them there. The appellant said that he did not return to Paisley until 12 September, after being collected by his mother's boyfriend. Having returned to Paisley about 3 p.m. he met his father; and together they set off for Stranraer in order to cross to Ireland. Shortly after the interview the appellant was charged with having murdered Scott Ferguson. He made no reply.
On 16 September 1996 the appellant made a judicial declaration denying his involvement and dealing with statements which had allegedly been made by him in the hearing of police officers during the journey by police vehicle from Stranraer to Paisley. On 24 September 1996 the appellant was brought before the sheriff for judicial examination.
At this point it is useful to refer to the provisions of section 36 of the 1995 Act which relate to the judicial examination. Subsection (2) permits the prosecutor to ask questions in order to determine
"(a) whether any account which the accused can give ostensibly discloses a defence; and (b) the nature and particulars of that defence".
Subsection (10) states:
"Without prejudice to any rule of law, on the conclusion of an examination under this section the prosecutor shall secure the investigation, to such extent as is reasonably practicable, of any ostensible defence disclosed in the course of the examination".
Subsection (11) adds:
"The duty imposed by subsection (10) above shall not apply as respects any ostensible defence which is not reasonably capable of being investigated".
Lastly subsection (6)(b) requires that at the outset the accused is to be told by the sheriff that, if he answers any questions put to him at the examination under the section in such a way as to disclose an ostensible defence, the prosecutor is to be under the duty imposed by subsection (10).
In the present case the appellant was given the information which is required by subsection (6)(b). In the course of questioning by the procurator fiscal he disclosed a defence of alibi on the same general lines that he had given to the police at the interview on 13 September. On this occasion the questioning did not go into the same amount of detail.
At the trial of the appellant, which commenced on 6 January 1997, the Crown relied principally on the evidence of a sister of the deceased who gave evidence as to the appellant pursuing and striking the deceased; evidence given by two witnesses as to the appellant's presence in the area where, and about the time when, the murder was committed and evidence of a number of police officers as to the statements allegedly made during the course of the journey to which we have already referred.
The appellant gave evidence in his own defence, in the course of which he gave evidence as to the alibi to which we have already referred. He was robustly cross-examined by the Advocate depute in regard to the nature and detail of that defence, and in particular his evidence as to the journey with his half-brother from Paisley to Girvan. The Advocate depute put to him that he was lying about that.
Evidence in support of the alibi was also given by the appellant's half-brother. In cross-examination the Advocate depute put to him that he had been avoiding the police who had been attempting to speak to him about the supposed alibi. The Advocate depute suggested to him that, if he had been able to back up what the appellant had said, he would not have acted in this manner. The appellant's brother accepted that he had been attempting to avoid the police, but said that the reason he had done so was because there had been a warrant for his arrest in respect of other proceedings. The defence also led supporting evidence from the appellant's sister and Kelly Mains. It was put to the appellant's sister that she had also been avoiding the police. It was elicited from Kelly Mains that a police officer had spoken to her about the evidence which she was able to give. The last witness in the defence case was Mr. Walter Hamilton, a witness on the Crown list of witnesses, who gave evidence contradicting evidence led by the Crown. Thereafter the text of the judicial examination of the appellant on 24 September 1996 was read out.
Before the closing of the defence case the trial judge, Lord McCluskey, expressed concern that there did not appear to have been any investigation of the defence of alibi with the appellant's half-brother, the woman who had been in occupation of the caravan or the drivers who had given the appellant and his half-brother lifts on their journey from Paisley to Girvan. In these circumstances ex proprio motu he allowed parties a short adjournment in order to consider whether they wished to lead further evidence under section 268 of the 1995 Act. In his report the trial judge states that he had in mind in particular that the Crown might offer evidence that some investigation of the alibi had been made or that it was not reasonably capable of being investigated. It may be noted that during the cross-examination of the appellant the trial judge had himself raised the question of whether the police had ever attempted to trace the drivers who had given him and his half-brother a lift, and referred to the fact that he had stated an alibi at his judicial examination. In the event neither party sought to tender any additional evidence, and the case for the defence was closed.
In his speech to the jury the Advocate depute maintained that the appellant's account about the journey was false because of the paucity of the detail which he had given about it and about the caravan. After he had completed his speech to the jury, Mr. Targowski, who appeared as counsel for the appellant, submitted to the trial judge, outwith the presence of the jury, that he should direct the jury to return a verdict of not guilty. At the outset he submitted that the Crown had failed in their duty under section 36(10), and that this failure had been so prejudicial to the appellant that the direction should be given. He went on to say that there had been no investigation of the alibi with the appellant's half-brother or sister. He pointed out that the Crown had founded on the fact that the appellant had not given details of the cars, drivers, conversation, roads, distances and times of arrival and being dropped off at various places. It had been put to the appellant that he was lying about the journey, and the Advocate depute had submitted to the jury that he had not been telling the truth. Yet this had taken place against the background that the Crown, which had a monopoly of investigation at an early stage, had made no investigation whatever of these matters. The police could have sought information by means of using a description of the appellant and his brother and their clothes; and advertisements could have been placed in the media. His submission was that "the matter has been conducted so prejudicially to the panel in that his credibility has been tested before the jury on matters that the Crown could have investigated and have not done so", in breach of the statutory duty under section 36(10). At the conclusion of this submission, the trial judge asked the Advocate depute whether there was anything which he wanted to submit. He replied that he had nothing to submit. During the course of a short exchange there occurred the following:
"LORD McCLUSKEY: There is no evidence at all to say that the Fiscal did, there is no evidence to say that he did not do certain things.
THE ADVOCATE DEPUTE: If inferences are to be drawn, so be it, but that is not a matter I can comment on."
After a short adjournment the trial judge refused the motion made by counsel, stating that he had reluctantly come to the conclusion that the trial should proceed. He stated:
"I do that because ultimately in matters of this kind, the question as to the acceptability of particular evidence and indeed the acceptability of the Crown case as a whole depends to a material extent upon the jury's view of the fairness of the procedure that surrounds the particular evidence of the prosecution of the case".
He went on to say that it appeared to him that the proper course was for him to draw the jury's attention to the circumstances and invite them to bear them in mind when they came to reach a verdict. Thereafter the jury returned to the courtroom and the trial judge proceeded to deliver his charge to the jury.
In his charge the trial judge told the jury that it appeared that the prosecutor had failed to perform his duty under section 36(10). He had not interviewed the appellant's half-brother or his sister or attempted, perhaps through the uncle of Kelly Mains, to identify the woman who had occupied the caravan and to discover further when the appellant and his half-brother arrived there. In regard to the account that a series of motorists had given them lifts on their way to Girvan, he expressed the view that it would not have been outwith the bounds of possibility to carry out an investigation about what happened in the space of two to three hours on the evening of 7 September. The trial judge then stated (on page 65 of the transcript):
"Now, ladies and gentlemen, I don't know what you shall make of that. It bears upon the whole question of the fairness of the prosecution and the evidence which has been led before you".
He went on to remind the jury that they were concerned with a murder trial of an accused who was 15 years of age and who was alleged to have confessed in the absence of his solicitor.
"Such a trial must be conducted fairly. The prosecution has great resources through the police and at that stage, at an early stage, an accused (although he will ultimately get legal aid) has virtually no investigative resources in early stage and you have to judge whether or not the prosecution has in that sense been vitiated by unfairness against him and you consider that when you weigh up the whole circumstances of whether or not the Crown has proved the case beyond reasonable doubt".
In presenting the appeal Mr. Targowski relied on two main factors. First, there had been an apparent failure by the prosecutor to comply with the duty set out in section 36(10). He accepted that the evidence which the woman in the caravan might have given was not particularly important, contrary to what the trial judge had thought, since she would only have been able to say that the appellant and his half-brother arrived after midnight. As the murder had taken place about 9 p.m. it would still have been possible for the perpetrator to reach Girvan by that time. What was of importance was the evidence which motorists might have been able to provide as to the whereabouts of the appellant during the earlier part of the evening. The trial judge had given the Advocate depute an opportunity to lead evidence to show that the appellant's alibi had been investigated, to such extent as was reasonably practicable, but he had not done so, nor even provided an explanation in court as to what had been done or attempted to be done by way of investigation. Mr. Targowski remarked that his position would have been difficult to maintain if the Crown had given an adequate explanation. Secondly, standing the apparent failure to comply with the duty under section 36(10), the Advocate depute had not been entitled to cross-examine the appellant with a view to showing that he was unable to provide satisfactory details of his alibi, and on this ground to seek to discredit it in his speech to the jury. Mr. Targowski accepted that it was not enough for him to show that there had been an apparent failure to comply with section 36(10). What mattered was that the appellant had been prejudiced in the circumstances of the present case. Although the ground of appeal stated that the appellant was prejudiced by the Crown's failure to perform the statutory duty, Mr. Targowski did not assert that the appellant had thereby been deprived of the benefit of evidence which might have been obtained by the Crown carrying out an investigation. He accepted that whether any evidence would have been obtained, and, if so, whether it would have been of assistance to the defence was speculative. The prejudice with which he was concerned was prejudice which arose from the cross-examination of the appellant and the submission which the Advocate depute had made to the jury in reliance on that cross-examination. This directly impinged on the credibility of the appellant. Mr. Targowski accepted that the Advocate depute would have been entitled, in view of the Crown evidence, to put to the appellant in broad terms that his alibi was untruthful. What he could not do was to take the appellant to task as to the lack of details in his account, cross-examine him at length to that effect, and found on the fact that there had been no evidence providing any detailed support for the alibi.
In these circumstances, Mr. Targowski submitted, the trial judge should have acceded to his motion and acquitted the appellant. It was for the trial judge to decide whether there had been unfairness to the appellant. He misdirected himself in leaving that matter to the jury. The question which he had put to the jury was too broad. The point at issue was not whether there had been a fair trial but whether the appellant had been irremediably prejudiced by the conduct of the prosecutor.
The discussion in the present appeal raises a number of questions in regard to section 36(10) which have not been considered in any previous decision of this court. In particular, what is the underlying purpose of that provision? What are the implications, if any, of that subsection in regard to the evidence in, and the conduct of, the trial?
The origin of section 36(10) lies in an amendment to the Bill which led to the Criminal Justice (Scotland) Act 1995. As can be seen from the report of the discussion in the House of Lords (Hansard vol. 560, cols. 367-370), Lord McCluskey proposed the amendment in the light of his own experience of a case in which an accused had given a detailed account of alibi at his judicial examination. He explained that for administrative reasons, or by some kind of oversight, this had not been investigated. At his trial a large number of alibi witnesses gave evidence. The jury took four minutes to acquit him, evidently thoroughly convinced of the soundness of the alibi that he had advanced. The amendment proposed by Lord McCluskey included an explicit duty on the part of the prosecutor to disclose the full results of the investigation to the accused not later than the date of service of the indictment. However, in view of the fact that the imposition of a general statutory duty of that kind was not acceptable to the Lord Advocate, who took part in the discussion, he did not insist on that part of the amendment.
Mr. Targowski did not claim that the terms of section 36(10) were mandatory, but accepted that they should be treated as giving a direction to the prosecutor. He also accepted that it was plain that the subsection had in mind the public interest, which lay in the prosecutor being put in possession at an early stage of all the information which was material to the conduct of the prosecution. However, he submitted that the subsection was also conceived in the interest of the accused who stated a defence at judicial examination. It appears that the trial judge took a similar view since, in the course of giving his decision on the motion made by Mr. Targowski, he observed:
"That duty is not one which exists solely in order to protect persons accused of crime. It is a duty conceived in the public interest to secure the proper investigation by the police of the case".
However, as the Advocate depute pointed out, the subsection contains no provision as to what the prosecutor is to do with such information as he has obtained. There is no stated sanction if he fails to investigate the defence which is stated at the judicial examination, or if he does not make known to the accused whatever information is obtained by this means. On the other hand, as the Advocate depute submitted, there is a well recognised practice which the Crown is expected to follow. As the Lord Justice General remarked in McLeod v. H.M. Advocate 1998 SCCR 77 at page 98C-D:
"Our system of criminal procedure, therefore, proceeds on the basis that the Crown have a duty at any time to disclose to the defence information in their possession which would tend to exculpate the accused...Equally, as was seen in Downie (1952 J.C. 37) and has been seen repeatedly over the years since then in cases such as Ward (1993 S.C.C.R. 595), the Crown will respond to specific requests from the defence for information or for the production of statements or other items where the defence can explain why they would be material to the defence...Again, when they respond in this way, the Crown are not merely acting out of kindness but are performing their duty to impart information which supports the defence case in the particular situation where they have been made aware of the possible significance of these items for the defence of the accused".
When that statement of the practice expected of the Crown is taken in conjunction with the terms of the subsection it is plain that, while the general purpose of the subsection is that the prosecutor should be placed in possession of information relating to a stated defence at an early stage in the proceedings, there is an incidental and potential benefit to the accused. This might, according to the circumstances of the case, take the form of the provision of information supportive of that defence. In others it might take the form of the Crown reconsidering its attitude to the charges or even to the prosecution as a whole. It is of interest to note that, when the Lord Advocate of the day indicated to the House of Lords in the debate to which we have referred that a statutory duty of disclosure by the prosecutor would not be acceptable, he did not dispute that in the generality of cases the procurator fiscal should consider himself under a duty to make such evidence or material known to the defence. He said that procurators fiscal were given general instructions to that effect. However, there might be cases where no evidence was found or where, in revealing a particular matter, danger to witnesses might result if the full nature of the investigation were revealed.
The absence of any statutory duty on the part of the prosecutor to communicate the results of his investigation, and the absence of any sanction in respect of any failure on his part to investigate the defence or his non-disclosure of the information obtained by means of such an investigation, points strongly to the conclusion that the subsection is administrative in character and that any pursuit of the question whether an investigation has been carried out, to what extent and with what results, belongs to the stage of proceedings before the case goes to trial. In the present case there is nothing to indicate that prior to the trial any application to the prosecutor for information was made, or that the prosecutor refused or delayed to respond to such a request. For these reasons we consider that the submission that the trial judge should have directed the jury to acquit the appellant is not well founded.
While what we have said above is sufficient for the disposal of this appeal, we should add that the submission made by Mr. Targowski that such matters could properly be raised at the trial would have a number of important implications. It appears to involve that at least normally the Crown should lead evidence that the subsection has been complied with. The evidence adduced by the Crown would not be necessary to enable the prosecutor to be able to cross-examine the accused as to the truth or otherwise of his defence, as Mr. Targowski accepted, but to enable him to cross-examine to the fullest extent that he considered appropriate without running the risk of the accused being able to claim successfully that he should be acquitted. He could not obtain any decision from the trial judge as to whether the section had been complied with until, at the earliest, he was in the course of cross-examining the accused. This points inevitably to the conclusion that the prosecutor would be driven to leading such evidence in the vast majority of cases. If Mr. Targowski is correct, that evidence would be of no interest to the jury since it would not bear on any of the issues which they were required to consider. There would presumably require to be room not only for cross-examination of that evidence but also contradictory evidence led by the defence. It is quite possible that the evidence might contain information prejudicial to the accused so that it might be necessary to resort to the hearing of evidence outwith the presence of the jury. The question whether the subsection had been complied with might not necessarily be a straightforward question, since it could depend on whether the investigation had or had not gone as far as was reasonably practicable. Thus the introduction of evidence or argument as to whether or not the section had been complied with would be fraught with practical difficulty.
We should add that it is plain that in the present case until the trial judge referred to the subsection during the cross-examination of the appellant it had not occurred to the defence to take any point about it. The true state of the evidence was, as the trial judge himself observed in the passage which we quoted earlier in this opinion, that there was none as to whether the prosecutor did or did not do certain things. However, in his charge to the jury the trial judge appears to have assumed that there had been a failure to comply with the subsection. There was no basis for this except on the view that it was for the Crown to lead evidence to show that the subsection had been complied with. The trial judge made no reference to the question of what was reasonably capable or reasonably practicable.
Having regard to the views which we have expressed, we are entirely satisfied that the trial judge was correct in declining to acquit the appellant on the ground put forward by Mr. Targowski. However, he was also wrong, as the Advocate depute and Mr. Targowski agreed, in leaving it to the jury to decide whether the conduct of the prosecutor had been unfairly prejudicial to the appellant.
In these circumstances the appellant's appeal against conviction is refused.