Scottish High Court of Justiciary Decisons

MICHAEL McKENNA v. HER MAJESTY'S ADVOCATE [1999] ScotHC 253 (30th December, 1999)

The appellant, Michael McKenna, is charged on indictment with the murder of Robert Potts Halliday on 21 June 1999 by striking him repeatedly on the head with an axe. The crime is alleged to have been committed in premises at 9, Waddell Court, Kilmarnock. The appellant understands that it will be the Crown's position at his trial that the only persons present in those premises at the material time were the victim, the appellant and Colin Alexander Copeland. Mr Copeland has since died. He is said to have made statements to the police in which he exculpated himself and blamed the appellant for the death of Mr Halliday. The Lord Advocate gave notice, as required by section 259 (5) of the Criminal Procedure (Scotland) Act 1995, of his intention to apply to have evidence of those statements admitted at the appellant's trial in terms of subsections (1) and (2) (a) of that section. In response the appellant lodged two Minutes of Notice. In one Minute, the appellant contended that the Lord Advocate's actions in serving the section 259 notices infringed the appellant's right to a fair trial and therefore were actions incompatible with his rights under Article 6.1 and 6.3.d of the European Convention on Human Rights in terms of section 57(2) of the Scotland Act 1998, and section 6(1) of the Human Rights Act 1998. In the other Minute, the appellant sought a ruling that the proposed leading of evidence relating to the statements of the late Mr Copeland would be oppressive. Lord Caplan refused the applications, and granted leave to appeal.

Before this court it was explained that the parties anticipated that there might be evidence pointing to the appellant's guilt from a number of sources. The Lord Advocate had lodged as productions statements given to investigating officers by three witnesses who might say that the appellant had made self-incriminating comments to them. Two of the witnesses might speak to comments containing considerable detail. There was scientific evidence. There was evidence of blood staining on the appellant's shoes which had been linked to the victim. There were bloody footprints on the floor of the room where the victim was found which were said to match the soles of the shoes worn by the appellant. There was no relevant blood staining on the clothing of the late Mr Copeland. His shoes could not have made the footprints found. There might be evidence of the appellant disposing of clothing at his brother's house after the killing. There might be evidence of scratching on the appellant. The appellant had in general made no comment at interview or on judicial examination. On one occasion he denied killing the victim. There was one defence witness who might say that Mr Copeland admitted responsibility for the killing.

The court was asked to consider the argument on the assumption that there might be an incrimination of Mr Copeland. The situation then would be similar to that considered in Docherty v H. M. Advocate 1945 J.C. 89. That case demonstrated the difficulty a trial judge could have in giving proper directions in such circumstances. A.G.L. and E.D.B. v H. M. Advocate 1988 S.C.C.R. 62 was a further illustration of the same difficulty. The preponderance of the evidence suggested that the perpetrator in this case had to be one or other of the appellant and Mr Copeland. It was not alleged that the two men had acted in concert though at one stage it had clearly been contemplated that they might become co-accused. In such an extreme case the introduction of an eyewitness account of the appellant committing the murder would of necessity be of such enormity and gravity that it would properly be described as decisive evidence. It would be of such a decisive nature in the circumstances that it was hard to imagine that it would not be taken as the main evidence pointing to the appellant's guilt. The statements by Mr. Copeland were extremely detailed. They were more detailed than other possible sources of evidence. In the course of the police interview of Mr Copeland, the possibility of the appellant turning the tables on him and blaming him for the murder had been canvassed.

The evidence which the Crown intended to lead was of a character which the court would have been slow to allow as the law stood before the introduction of section 259. The reasoning in the authorities reflected an approach which was closely parallel to the Convention jurisprudence: Lauderdale Peerage case (1885) 10 App. Cas. 692; Irving v H. M. Advocate 1978 J.C. 28. The court would not admit hearsay of a deceased witness where that person had had an interest or it was perceived that the person had had an interest in the subject matter of the case. The Convention jurisprudence was found in Trevidi v United Kingdom 1997 E.H.R.L.R. Issue 5, 521; Saidi v France (1993) 17 E.H.R.R. 251; Bricmont v Belgium (1989) 12 E.H.R.R. 217; and Ferrantelli v Italy 1996-III Report of Judgments and Decisions 937. The appellant would be so materially disadvantaged by the admission of the evidence that there would necessarily be a violation of his Convention rights. He would not be able to challenge the truth and accuracy of Mr Copeland's statements without abandoning his right of silence and giving evidence. There was a basis for adverse criticism of Mr Copeland's character. Exploration of that issue might expose the appellant to prejudice if he were obliged to give evidence and submit to cross-examination. The argument in support of the section 72 Minute was the same, leading to the conclusion that to introduce the evidence of Mr Copeland's statements would be oppressive.

As was observed by the Lord Justice General in Montgomery v H. M. Advocate, unreported, 16 November 1999: "The only right which Article 6(1) protects is the right to a fair trial and so, in considering a case founded upon that Article, the court is concerned only with whether the appellants will receive a fair trial..... The appellants' rights under the Human Rights Convention exist.....to ensure that any trial which the appellants face is fair. In this respect the protection afforded to accused persons under the Convention is similar to the protection afforded by the plea of oppression: Hamilton v Byrne 1997 S.C.C.R. 547 at p. 549 E-F." Intimation of a notice or notices under section 259 of the 1995 Act anticipates a course of events which may happen at the subsequent trial. The prosecutor may apply to the trial judge to have evidence about the statements of the deceased witness admitted. On the other hand, in the proper exercise of his or her discretion, the prosecutor may elect to close the Crown case on the basis of the other evidence available to the court with the result that the contentious material is never tendered in evidence. If that were to happen in the present case, the issue whether the appellant had received a fair trial would be determined wholly without reference to the evidence anticipated in the section 259 notices. One of the present applications falls within section 72 (1) (d) on the basis that the oppression issue is a matter which might be resolved with advantage before the trial diet. The devolution issue, on the other hand, has its focus in the proposition that if the prosecutor were to make an application at the trial diet for the contentious evidence to be admitted that would be an act of the Lord Advocate that necessarily, and at that point, infringed the appellant's Convention rights by depriving him of a fair trial. It was accepted that the mere service of the notices could not have that effect, notwithstanding the terms of the Minutes, in respect that at that stage the proposition would have to be tested on the assumption that the prosecutor might not seek leave to introduce the evidence as matters developed at the trial. It was recognised that it was in extreme circumstances only that an accused person could contend in advance of trial that the introduction of evidence under section 259 would be so prejudicial to the prospects of a fair trial that the court could determine the issue in advance.

An irregularity in the admission of evidence according to the rules of national law may be of such materiality that it is sufficient in itself to amount to a miscarriage of justice and to undermine a conviction. One can envisage situations in which the court might determine in advance that evidence obtained irregularly should not be admitted at trial. Recoveries under a defective search warrant might come into that category. But, more generally, the question whether there are obstacles to a fair trial can be resolved in the normal course only in the light of the proceedings as a whole, and having regard to the whole evidence led. In Ferrantelli, at page 949, the court said:

There is a similar observation in Saidi at page 264, para 40.

In relation to section 259, the trial judge's function is prescribed. Where the judge is satisfied that the requirements of subsection (1) are met, and the reason that the relevant evidence will not be given by the originator of the statement falls within subsection (2), as it does where that person has since died, evidence of the statement is admissible. The admission of hearsay evidence of statements by persons who have died is justified on grounds of necessity: Scottish Law Commission Report No 149, 1995, "Hearsay Evidence in Criminal Proceedings", para 4.47. The rules of national law regulate the matter. As a matter of domestic law there is no possible objection to the competency of the course proposed by the Crown. The trial judge must, of course, direct the jury as to the differences between hearsay evidence and other evidence that they have heard in court and on oath. Those directions will typically refer to the absence of oath or affirmation, and to the fact that the statement was not subject to cross-examination. In the present case it may be that the evidence will disclose grounds for criticism of Mr Copeland which may bear on his credibility or reliability as a source of evidence. He may be represented to the jury as a person having a material interest in exculpating himself and in incriminating the appellant. The trial judge may have to give explicit directions that the hearsay evidence may be unreliable. These, however, are the commonly available means of ensuring that juries apply their minds to the relevant and material considerations which arise out of the evidence. The court has an obligation to ensure that a trial is fair irrespective of the accused person's Convention rights. In the ordinary course that obligation extends to hearing and ruling on objections to the admission of evidence, and to formulating and giving proper directions on the use which may be made of evidence in arriving at a verdict. The issues which arise in relation to the admission of hearsay evidence of statements of deceased persons are not dissimilar in kind from other issues of admissibility. There is similarly no fundamental objection in Convention jurisprudence to the fairness of proceedings in which use is made of hearsay evidence. Trivedi, a decision of the Commission, provides the clearest example of the general approach to this matter. The application was held inadmissible. The hearsay statement of a witness had been relied on at trial. The witness had become incapacitated and could not appear at the trial. It was held that the requirements of Articles 6.1 and 6.3.d were satisfied by the procedures at trial which tested the evidence of the witness's condition, and which allowed for investigation into the statements and for comment on them by the defence and by the judge in summing-up. In general, the procedural requirements of Scottish criminal law provide the same safeguards for the accused's position.

The decision of the Court in Bricmont is not helpful in the present case. The Court found that the Belgian proceedings before the Court of Appeal had relied on the "accusations" or "submissions" of the Prince of Belgium, the claimant: page 241, para 84. The Prince's status as a party disqualified him from the benefit of certain provisions of the Code of Criminal Procedure which were available only to witnesses: [page 224 para 28 (b)]. His "accusations" or "submissions", so far as material,

were never the subject of confrontation, despite repeated requests that confrontation should be arranged. It is difficult to relate the procedures described to any equivalent in Scottish procedure. But it appears that the material relied on, as evidence, was irregularly obtained. None of the steps which might have given the Prince the status of a witness were taken. The Belgian Court of Appeal nevertheless relied on the material in arriving at its conclusion. So far as one can compare the situations, the treatment of the "accusations" or "submissions" as evidence would be an irregularity in Scots criminal procedure which might give rise to a miscarriage of justice whether or not there was corroboration.

The second part of the court's observation in Ferrantelli emphasises the need to consider the question of fairness of the trial in the light of the whole circumstances. The requirement for corroboration ensures that, however cogent, the statements of Mr Copeland could never be sufficient for a conviction. The narrative of the other possible sources of evidence against the appellant in the present case suggests that when the Crown case is completed there may be sufficient evidence to support a conviction without reference to the contentious statements, and that, if they are relied on, there may be ample corroboration for the statements if they are viewed as a primary source of criminative evidence against the appellant. In Saidi hearsay constituted the whole basis for the conviction : page 270, para 44. The circumstances were quite different from the present case. The procedures adopted denied the applicant the opportunity of confronting witnesses who were alive and available. But so far as one can compare the cases it is clear that in the present case the hearsay which may be introduced could not have the criminative effect of the evidence admitted in Saidi. The trial judge would be bound to acquit the appellant if the only evidence against him derived from Mr Copeland. If at the close of the Crown case there were a case to answer it would inevitably be on the basis that some or all of the other sources of evidence pointing to guilt had come before the jury. The relative weight of the several possible sources is impossible to predict. One could form a view on that matter only in the light of the proceedings as a whole.

The sole issue at this stage is whether this court could make the declaratory finding sought, out of context of the evidence at the trial, to the effect that an application for the admission of the evidence of Mr Copeland's statements would necessarily be a breach of the appellant's Convention rights. There is no basis in authority, either domestic or Convention, on which one could reach that view. The relative weight of different sources of evidence would depend on views which could be formed only after the whole evidence had been led. The interaction of any issue which might arise from directions to meet the requirements of Docherty and A.G.L. and the weight to be given to a source of evidence such as the statements of Mr Copeland would again depend on the view one formed retrospectively of the proceedings as a whole. It may be that the trial judge would require to give very particular directions on the need to use caution in considering the statements if indeed the preponderance of the evidence pointed to the perpetrator as necessarily being one or other of the appellant and Mr Copeland. But that cannot support the present appeal. Mr Copeland's interest in exculpating himself is similarly a matter which may require particular focus in directions. In that connexion it is only to be observed that in Irving Lord Cameron did not adopt the argument on the effect of the Lauderdale case which was advanced before the court. The oppression argument must fail on the basis that it was simply a reformulation in domestic language of the Convention test.

Nothing in this opinion would preclude the appellant from raising the devolution issue afresh in the light of events at the trial, or otherwise instructing an appeal on grounds which related inter alia to the use, if any, made of Mr Copeland's statements at the trial. Each party will require to consider the approach to be adopted to the statements. The appellant may require to consider whether to give evidence and be subjected to cross examination in the light of his approach to Mr Copeland's statements. But his position in that respect will be no different from the position, which would have obtained if Mr Copeland had survived and appeared at the trial.