APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C391/97
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEAL AGAINST CONVICTION
GARY JOHN BULLOCK
HER MAJESTY'S ADVOCATE
Act: Scott; Bruce Short & Co., Dundee
Alt: Gray, A.D.; Crown Agent
5 May 1999
The appellant is Gary John Bullock who was convicted at the Sheriff Court at Inverness on 29 January 1997 of three charges of theft by housebreaking, two charges of theft by breaking into other property and one charge of the theft of a motor vehicle. He was remitted to the High Court for sentence and on 11 March 1997 he was sentenced to five years imprisonment backdated to 14 August 1996. He has appealed against his conviction.
The Case against the Appellant
The theft charges covered a period from the beginning of December 1995 until 18 May 1996, but all except Charge 1 were alleged to have occurred not later than 14 May 1996. The Crown case was based on circumstantial evidence. Charge 5 on the indictment related to the theft of a car, registration number G 534 LFR, in Carlisle at about the end of March or beginning of April 1996. There was evidence from the proprietors of various bed and breakfast establishments in the Highlands that the appellant had been seen driving the car. There was evidence that the various items, mostly antiques and bric a brac, had been stolen from unoccupied premises. There was also evidence from a number of witnesses of the appellant selling items of the stolen property. On 16 May 1996 the appellant was arrested in Glasgow and at that time he had keys for the car in his possession. At the beginning of July the car was found in Ely Street in Glasgow and the Crown case was that the appellant had parked it there, some time around 16 May, and that it had remained there undisturbed - apart from attracting a couple of parking tickets - until July. Certain incriminating items, including stolen property, were found in the car. More broadly, the Crown sought a conviction on the basis of the appellant being in recent possession of the stolen property in criminative circumstances. The witnesses spoke to the appellant selling the stolen items within a relatively short time of the theft and the Crown invited the jury to infer that the items recovered from the car had been in the car when the appellant left it in Ely Street on 16 May - again, not long after they had been stolen.
There appear to have been two aspects to the defence: the first was to the effect that the appellant had not stolen the items but had bought them in various markets, so that, to that extent, the appropriate verdict might have been that the appellant was guilty of reset; the second aspect was a contention that the police had not really discovered certain items in his car and that they had concocted a false case against him, apparently in revenge for him having stolen certain documents from the police on an earlier occasion.
In presenting his appeal, Miss Scott accepted that there was sufficient evidence for the jury to be entitled to convict the appellant. She argued only his fourth and seventh grounds of appeal. During his trial the appellant was unrepresented. The trial began on Tuesday 21 January 1997, when the appellant indicated that he wished to represent himself. As we shall explain in more detail below, however, on the afternoon of Friday 24 January, in the course of cross-examining a police witness, the appellant indicated that he wished a solicitor to act on his behalf. The Sheriff refused to adjourn the proceedings to allow the appellant to try to arrange representation. This decision of the Sheriff forms the subject-matter of the fourth ground of appeal, in which the appellant states that the Sheriff ought to have told him that he could move to have the trial deserted. Before us, this ground was developed more widely, to the effect that the Sheriff had failed properly to consider the appellant's application and in particular to adjourn to see whether this could be arranged. In the seventh ground of appeal it is contended that, as a result of being forced to proceed without representation, the appellant was denied a fair trial.
Refusal to Adjourn to allow the Appellant to seek Legal Representation
The general background to the proceedings is of some relevance. The appellant appeared on petition on 14 August 1996, when he was represented and was granted Legal Aid. The duty solicitor recommended a local solicitor, who then acted for the appellant, but the appellant became dissatisfied with his services because, it was alleged, he did not visit him sufficiently frequently and was not preparing the case as the appellant would have wished. The appellant expressed his dissatisfaction by going on a hunger strike while on remand. It appears that, for whatever reason, the appellant was served with three indictments by the Crown and that this was a matter of concern to him. In due course the appellant changed his solicitor and was represented by Mr. Macara who appeared for him at a hearing on 25 November when the trial diet was adjourned until 20 January to allow the defence more time for preparation. The Sheriff who presided on that occasion was the Sheriff who was ultimately to conduct the trial. Despite the fact that the defence had wanted the adjournment, when the Crown then sought an extension of the 110-day period before the High Court on 6 December, the appellant instructed Mr. Macara to oppose the application. Mr. Macara refused to do so and withdrew from acting.
It was in these circumstances that, at the outset of the trial on Tuesday 21 January 1997, the appellant confirmed to the Sheriff that he wished to conduct his own defence. The proceedings were adjourned until the following day when the procurator fiscal began to lead the witnesses for the Crown. By the afternoon of Friday 24 January the Crown had led thirty witnesses, all of them being civilian witnesses. Some spoke to the housebreakings and thefts, others to the appellant selling items of property, while others again spoke to the appellant being in the various bed and breakfast establishments, and to seeing the motor car.
Even before that Friday afternoon the Sheriff was clearly concerned by what he saw as the inept way in which the appellant was conducting his defence. The Sheriff felt that not only were the appellant's questions not assisting his case, but that he was also asking questions which might tend to make his position worse rather than better. For that reason, at the end of the day's proceedings on both the Wednesday and the Thursday, the Sheriff addressed the appellant and indicated that he would be prepared to arrange for the duty solicitor to be present the following day, not to act on the appellant's behalf, but to observe the proceedings and, if appropriate, to advise the appellant in the light of what he saw. On both occasions, the appellant turned down the offer which the Sheriff made.
On the Friday afternoon the procurator fiscal depute led the first police witness, Detective Inspector Prendergast. During his cross-examination of this witness, the appellant brought out the fact that the witness had first had contact with him in connexion with an earlier incident when he had tried to sell a Northern Constabulary major incident procedure manual and that this had resulted in criminal proceedings. As we understand it, the appellant's contention was that this earlier incident had triggered the hostility of the police towards him which was to explain why they had (wrongly) accused him of the thefts in the present proceedings.
In the course of his evidence in chief, the procurator fiscal asked Detective Inspector Prendergast to identify various items which were said to have been found in the motor car parked in Ely Street. Among the items which the Detective Inspector was asked to identify was Label Production No. 4, a handgun. It is important to note that, although the handgun was included in the list of productions, it was not referred to in any of the charges of the indictment: there was no averment that the appellant had stolen the gun nor was there any charge under the Firearms Act 1968 relating to his possession of the gun. The evidence about the gun was led before the appellant made his application for representation and the appellant did not object to it. At the hearing before this court the Advocate Depute very frankly accepted that, in the absence of any charge under the Firearms Act, if an objection had been taken and dealt with properly, it would have been sustained. He equally frankly conceded that he did not know why there was no charge covering the alleged possession of the gun, nor had he been able to discover on what basis the procurator fiscal depute had thought it proper to lead the evidence about the gun in these circumstances.
When the appellant came to cross-examine Detective Inspector Prendergast on the Friday afternoon, the witness indicated that not all of the items which had been recovered from the car had been produced in court. The appellant asked him whether he had listed the items in a notebook and the witness replied that they had all been recorded in his notebook. He also said that he had his notebook with him but, when asked if he could take it out so that he and the appellant could go through the list, the witness replied "no" and said that he had no requirement to produce his notebook. At this point the Sheriff intervened to ask whether there was a point in producing the notebook and the appellant said that he would like advice on the matter. The Sheriff said that he was not giving advice, but would give a ruling in law. The appellant then said "Okay, a ruling in law. Well, as I am not sure of your area there, I will carry on as I was doing." The Sheriff said "No, do you wish to pursue the matter of production of the notebook or do you not?" to which the appellant replied "I am not sure, I wouldn't know the elements." The appellant then said that he would "go through them from the solicitor" - by which he appears to have meant that he would rely on some information supplied by a solicitor, since he then refers to certain specific items and asks the witness about them. Although the witness was able to give specific answers to most of the questions, from time to time he indicated that he could not remember the position.
It was during this passage of cross-examination that the appellant suddenly asked if he could make an application and added "I need a brief". He then said "This man has got too much experience, I can't deal with it. I need a solicitor," to which the Sheriff immediately replied "The application is refused." "Refused is it?" asked the appellant and the Sheriff said "Yes. You have given me no reason at all why this should be the case and I can't see justification for getting one at this stage, it seems very surprising." He went on to say "You have conducted your own cross-examination up till now, why suddenly do you need a solicitor? The officer is not being argumentative or difficult; he is simply answering questions put to him." The appellant explained "His experience is obviously standing out. A solicitor, I am sure, would be able to converse a lot easier than what I am doing."
These exchanges took place in the presence of the jury, but they were then sent out and the Sheriff asked the appellant why, suddenly at this stage, he was asking for a solicitor when he had ignored the offers made on the previous days. The sheriff referred to the fact that the appellant had ignored those offers and said that, if he was satisfied that the appellant was getting into difficulties over the legitimate presentation of his case, then he would be only too glad to offer the services of a solicitor which, as the appellant well knew (he said), would certainly mean an adjournment of the trial and, again as he well knew, he could not expect any solicitor to come in, even supposing one was hanging around outside, to conduct the appellant's case instantly. The appellant said that the circumstances were slightly different since the procurator fiscal "has got open season on me now. I have got a criminal record and I am willing to bring it out", to which the Sheriff replied that it was the appellant who had brought out his own record. The appellant then said "Exactly. So now I need help with the rest of the trial because the circumstances are different and the rest of the trial, as I understand it, there are some 30 odd police officers who will be going up against me. These are experienced officers. I am asking if I can have the assistance of somebody who knows their way round the law a bit better."
Miss Scott emphasised that it was only when he found himself cross-examining Chief Inspector Prendergast, an experienced police witness, and facing the prospect of cross-examining a series of such witnesses, that the appellant made the request for representation. Whatever the merits or demerits of his previous position might have been, it was perfectly understandable that he should regard the circumstances as having changed at this point in the trial. His request should therefore have been regarded as both genuine and reasonable. The Sheriff should have treated it as such and should have taken steps to see whether representation could be obtained.
What in fact happened at this point was that the Sheriff turned to the procurator fiscal depute. He began by saying that he would like to hear the Crown's comments because he was effectively being asked to adjourn the trial in the middle of it so that an accused person, who had quite deliberately spurned the services of a solicitor, might now have those services. "My view is that this is a time-wasting tactic. What is the Crown's view?" The procurator fiscal said "The Crown would be opposing any such motion. This man has cross-examined some ...." - at which point the Sheriff broke in to ask "Do you consider that that view is a legitimate view?" and the procurator fiscal replied in the affirmative and added that "even if a lawyer was to be found who would wish to take over the case, effectively the only way in which to carry on would be for the court to desert the case pro loco. No lawyer is going to want to come into a case half-way through, not having heard the first half of the evidence. That causes all sorts of problems that the Crown is aware of, such as Mr. Bullock's status during the intervening period. He is remanded in custody now. He had been offered the assistance of a solicitor on numerous occasions. He quite openly and without a doubt indicated he was quite happy to carry on." The Sheriff then indicated that it was within his personal knowledge, from having presided at the first diet, that the appellant had the services of a solicitor at that stage and that subsequently a second solicitor was instructed. There was then a reference to the fact that on the Friday morning the proceedings had begun late because the appellant had made a specific request to see a solicitor and the procurator fiscal said that "it was felt prudent that perhaps he ought to have the benefit of a solicitor at that stage for his own protection", but that the appellant had decided to proceed along the course which he had taken. The procurator fiscal then said that she felt that the trial had been conducted as fairly as possible up to that point and "the game plan hasn't changed any". In particular the witness, Detective Inspector Prendergast, had paused before answering the appellant's question designed to elicit his previous criminal record. The Sheriff made some further remarks and then said "what I am trying to formulate in my mind with your assistance is whether this is an express attempt by the accused person not truly to seek the services of a solicitor but simply to delay the proceedings." The procurator fiscal said that she could not say what was behind the appellant's tactics and the Sheriff said that he could not do so either, but he could draw inferences. The procurator fiscal replied that it certainly seemed rather odd that he had waited until so late in the day to decide that he needed a solicitor. The Sheriff then observed that the reason for that was that, up to that point, the witnesses had been persons who were inexperienced in giving evidence. The procurator fiscal countered that argument by pointing out that the appellant had had the indictment for some time and that the list of witnesses included police officers so that, if he had thought that he was going to have difficulties with them, "he ought to have addressed that problem before the Crown went to the time and expense of bringing along the witnesses." The Sheriff then seemed to agree with the procurator fiscal that to grant the appellant's request would mean deserting the diet. The Crown had had difficulty in citing the witnesses to speak to the housebreakings because many of them lived elsewhere and the procurator fiscal said that it would be unthinkable to ask them to attend on a second occasion on the basis that the appellant had been unable to cope. There was further reference to the fact that the appellant had had two solicitors and had chosen to represent himse
With that the Sheriff turned to the appellant and said that he had heard the Crown's objection. "Take it from me, and this is not a matter that I intend to debate, that the Crown is absolutely correct. If the, if I were to grant your motion, the diet would need to be deserted. I regard that as a complete impossibility for any solicitor or advocate properly to represent you simply to come into the case now and what I would then require to do would be at my own instance to desert the diet so that the Crown would need to start again." The appellant then made reference to the history of his hunger strike and to his problem with his previous solicitors. The Sheriff made certain comments about what he understood the nature of the defence to be and added that the appellant had asked a number of questions which appeared to him to be quite pointless and he was "certainly coming rapidly to the view that they are pure time-wasting tactics and have no other point or purpose." The appellant indicated that he could not challenge what Detective Inspector Prendergast said he had found in the car, but he wanted to challenge him about the way he had done the scene of crime examination and whether there was any forensic science evidence in relation to any of the items recovered, anything such as the appellant's fingerprints within the vehicle.
There then followed further exchanges in which the Sheriff was in effect indicating that, since no solicitor could be expected to take over the case at this stage without consultation and instruction, the result would have to be that the diet would be deserted. This approach was supported by the procurator fiscal who thought that a solicitor could not put questions to the police officers without having dealt with the previous evidence. The Sheriff considered that desertion "would be a natural and probable consequence."
At that point the Sheriff gave his ruling:
"What I have heard is what is called an application for the accused to consult a solicitor, which in my view would involve desertion of the trial diet. If that view is wrong - and I do not consider it to be wrong, I consider it to be correct - at best it would involve a delay in the trial. Now that, which obviously affects the court and prosecution, the jury and all the witnesses, is undesirable but the overriding concept is the interests of justice. It appears to me from the examination and enquiries that I have made in looking into this matter that the application would benefit the accused and there is no doubt he would be assisted by a solicitor because he has shown, either deliberately or accidentally - I can't tell which - much of the cross-examination has been pointless, much of it has incriminated or tended to incriminate him and that is unfortunate but over the last few days I have come to the conclusion that that, in substantial terms - although I am quite sure Mr. Bullock doesn't understand all the legal implications - is deliberate and I have come to the conclusion that this is effectively a time-wasting tactic. It is clear that Mr. Bullock has had the benefit of legal advice; he has been offered the benefit of legal advice; he appears, so far as I can tell, to have rejected these offers and I made that conclusion. It is a difficult conclusion to make and in some ways the easy way out would be to desert the diet, but I am not here to take the easy way out. I am here to act in the interests of justice and insofar as this motion has procedural validity - and I am not too bothered about that - I will deal with the substance of it, the application to effectively have the trial delayed while a solicitor is consulted, is refused at this stage. The offer that I made before of having the duty agent present to observe and to advise, insofar as he is prepared to do so, does, of course, remain open. This is the third time that the offer has been made. It was rejected out of hand both times. It is impractical to do it today."
The Sheriff then asked the appellant if he wished him to arrange to have the duty solicitor present on the following Monday and in due course the appellant said that he should not refuse the offer. What then happened was that the cross-examination of Detective Inspector Prendergast was interrupted and two further civilian witnesses were led. At the conclusion of the proceedings for the day, the Sheriff returned once more to the matter of the duty solicitor:
"Mr. Bullock, as I am sure you are aware, by circumstances alone, the object which you were trying to achieve has been achieved. I don't believe that to be a realistic object. You did say that you had anticipated that the trial would be adjourned, you would consult a solicitor over the weekend and it would resume on Monday morning. There is nothing, of course, to stop you doing that. The trial is now adjourned to Monday morning. I think it is only fair to point out that the view of the fiscal as expressed to me and my view as well is that that is highly unlikely to be a realistic object. I would be very surprised if a solicitor was prepared to accept instruction at this stage of a trial at all and particularly to resume more or less immediately and thirdly to spend the weekend being instructed, preparing for it, but there is nothing in the world to stop you trying as far as that is concerned. Otherwise, so far as I am concerned, the matter stands adjourned until ten o'clock on Monday morning. Now, so far as the Sheriff Clerk is concerned and to make clear what the terms of my instruction are, the duty, or a duty agent who is on duty on Monday morning will have other responsibilities. The practicalities of this - and Monday is probably the worst day for it - it may be very difficult to achieve but I am going to ask the Sheriff Clerk to communicate with the duty agent and the direction he has is 'Would the duty agent please attend the court' - it is inappropriate that I speak to the duty agent - 'on Monday morning and observe this trial during the course of the morning?' and at the lunch adjournment that person will offer to speak to you and what he or she will say to you I do not know, but he may be prepared to advise you in relation to your conduct of the case. That's as far as the matter will go. Meantime, we are adjourned and you are back in custody."
On the Monday morning the duty solicitor was present and the Sheriff began by outlining the situation to him and allowing fifteen minutes for him to discuss the position with the appellant before proceedings began and the appellant resumed his cross-examination of Detective Inspector Prendergast.
As we explained at the outset, Miss Scott submitted not merely that the Sheriff had erred in refusing the appellant's application that he should be given an opportunity to obtain legal representation, but also that this refusal had resulted in the appellant not having a fair trial. Miss Scott developed that argument under reference in particular to various aspects of the proceedings from Monday 27 to Wednesday 29 January 1997. As she pointed out, by this time the Sheriff was aware that the appellant himself felt that he was not able adequately to cross-examine the police witnesses.
Detective Inspector Prendergast's Notebook
It will be recalled that the appellant requested legal representation when he had been asking Detective Inspector Prendergast about his notebook which apparently contained a list of the items found in the car. The witness refused to produce it. Although the Sheriff said that he would give a ruling on the point, he did not actually appear to do so at that stage. On the Monday morning, however, the appellant once more asked the witness to tell him all the items which had been found in the car. The Sheriff intervened to say that the witness could not answer the question and the appellant then asked if he could have the written record. At this point the Sheriff said to the witness "Just ignore it, Constable". When the appellant came to cross-examine Detective Constable Asgher and again tried to obtain a list of all the items found in the car, the Sheriff said "That is neither here nor there, Mr. Bullock. We know already that all the items in the vehicle are not in this court. That is manifest from the Detective Inspector's evidence." The appellant began "But surely if these items relate to the Crown's case ...." whereupon the Sheriff said "I have given a ruling" and the appellant replied "I asked you for legal assistance. You won't give it to me. I am trying to do the best I can and you are stopping me at every pass." To which the Sheriff replied "That is not correct, Mr. Bullock."
In our view the Sheriff's attitude to the appellant's attempt to elicit evidence about the items in the car was mistaken. The appellant had a defence to the effect that some items in the car had been stolen while others had been planted by the police. In these circumstances it was prima facie justifiable for him to ask the witnesses what items, apart from those listed as productions, the police had found in the car. It is conceivable that the question of the lack of any scientific examination of the items might have been of relevance. It was, of course, understandable that Detective Inspector Prendergast should have been unable to remember what all the items were, but the standard procedure in such circumstances is for the witness to use his notebook as an aide-memoire. There might have been good reasons why the appellant should not have been allowed to examine the notebook himself, but the Sheriff, conscious of the fact that the appellant would be unaware of the law and practice on this point, should not have directed the witness to ignore the appellant's question but should, rather, have told him that he could use the record in his notebook to refresh his memory when answering the appellant's questions. Similarly, he should not have stopped the appellant from putting questions to Detective Constable Asgher on the point.
We have pointed out already that the Advocate Depute himself was unable to justify the action of the procurator fiscal in leading the evidence from Detective Inspector Prendergast about the finding of the handgun. The matter of the handgun was raised by the appellant in cross-examination when he asked Detective Inspector Prendergast whether there was a procedure which the police had to follow when they found a handgun. The Sheriff directed the witness not to answer since the question was not "directed to the matter in which the witness is entitled to pursue the question". He was similarly told not to answer a question about the name of the firearms officer who had been asked to attend.
Evidence was led from Detective Constable Asgher and Detective Constable Currie of the finding of a number of maps in the car. The appellant did not cross-examine Detective Constable Asgher on the point, but he asked Detective Constable Currie whether they were from different parts of the country and was told that they were. He went on to ask if they were mainly street maps and the witness replied that he did not know. The appellant then asked the Sheriff whether the witness was allowed to look at the maps (which were in some kind of container). The Sheriff replied "No". In our view, it would certainly have been permissible for the witness to examine the maps to see whether they were mostly street maps. It may be that the Sheriff considered that the line of cross-examination was not relevant and, for that reason, said that the witness could not look at the maps. But, if the Sheriff was going to adopt that approach, then he should have explained the position to the appellant and invited his comments before ruling as he did.
Tape Recordings of Interviews
The Crown led evidence from Detective Constable Buchanan that he had interviewed the appellant on at least four occasions, but that he had not been able to assist with the police enquiries in any way at all, since he usually answered any question of potential interest by saying "no comment" or else he would not commit himself to answer. In cross-examination the appellant raised a number of points about what had been said during the interviews. Contrary to what the Sheriff had understandably thought, transcripts of the interviews had not been lodged by the Crown because of some technical difficulty; all that had been lodged were the tape recordings themselves and it appears that the appellant had at some point listened to the tapes. The appellant indicated that he could not play the tapes in court. Again, the Sheriff did nothing to explain to the appellant what might be done to deal with what was an unusual problem arising out of the fact that, due to no fault on the part of the appellant, no transcripts were available.
Crown Motion to Amend
Before closing the Crown case the procurator fiscal moved to amend the indictment by adding various items to the property which was alleged to have been stolen in charges 3 and 11. These items had been included in the list of productions but not in the charges themselves. The Sheriff indicated to the procurator fiscal that he viewed her motion with some disfavour, and he pointed out that, if the appellant had been represented, there would have been objections taken at the relevant time to evidence tending to show that these items had been among the items stolen since they had not been included in the charges. When he came to ask the appellant for his view, the Sheriff said that he had a right to object "but I wouldn't bother if I were you". Somewhat inconsistently, he then said that he was twisting the appellant's arm up his back telling him to object to the amendment. The appellant, who was plainly unable to understand the technical legal position, said that he had no opinion on the point and eventually said that there was no objection. Since the appellant had said that he was not objecting, the Sheriff indicated to the procurator fiscal that he could not see any point or purpose in intervening and that he would allow the amendment.
The Sheriff appears to have thought that, since the appellant had indicated that there was no objection to the Crown amending the indictment to add the various items, he had really no reason to intervene by refusing the procurator fiscal's motion. That would be an entirely proper attitude to adopt if an accused person were being represented by a competent legal adviser. Here, however, the appellant was not represented and, as the Sheriff himself appears to have appreciated, he did not really understand the nature or importance of the point. In some ways the appellant's attitude was not surprising since, as we have noted, the Sheriff had said to him that "I wouldn't bother [objecting] if I were you". At all events the appellant does not seem to have understood that the amendment was potentially prejudicial to his position. In particular, among the items which the Crown added to Charge 11 was "a quantity of keys" and the keys in question (Label Production No. 52) had been identified by the witness Kenneth Livingston as relating to vehicles and premises on the Fasnacloich Estate. Charge 11 itself concerned theft by housebreaking from Fasnacloich House. By amending the charge the procurator fiscal depute put herself into the position of being able specifically to address the jury on the basis that the appellant had stolen the keys from there. We understand that she proceeded to do so. Whatever the position might have been without the amendment, any competent legal representative would have sought to resist the amendment which could only facilitate the Crown's position. It is equally clear that, if the point had been argued, the Sheriff would have refused the Crown's motion to amend. He appears to have thought that, although the motion was prejudicial to the position of the unrepresented appellant, he could do nothing to protect him. The lack of representation can therefore be seen to have had an adverse effect on the appellant's position.
Comments on Appellant's Presentation of his Case
As Miss Scott pointed out, not only did the Sheriff actually stop the appellant from asking questions, but in addition, on a number of occasions in the presence of the jury, he commented adversely on the appellant's conduct of his case. For instance, in his cross-examination of Detective Inspector Prendergast on the Monday morning, after the appellant had asked some questions which do indeed appear to have been of doubtful relevance, the witness asked if it was proper for him to continue and the Sheriff said "I can understand your difficulties, Detective Inspector. I personally have never quite heard cross-examination like this before, nor I suppose have you. I certainly regard it as entirely irrelevant to the proceedings and basically a waste of everybody's time." A little while later, when he came back to the point, the Sheriff again stopped him, saying that the matter had no relevance to the situation before the court. Later on again, still with the same witness, the appellant had asked him about the circumstances in which the car had come to be searched by the police. The Sheriff allowed him to ask a number of questions and then said "Come on, Mr. Bullock, this is pointless, you are making a legitimate point but you are labouring it". A little later he told the appellant that he was beating the point to death: "Leave it alone". When the appellant persisted, the Sheriff told the witness not to answer the question.
What appears to have been a singularly unfortunate incident occurred during the appellant's cross-examination of Detective Constable Asgher, just after the Sheriff had ruled that he could not be asked to list all the items found in the car. The appellant asked a question which is recorded in the shorthand notes in these terms "Right, so of the items taken out of the car were every, were all the items taken from that car bagged and sealed?" After the question had been answered and another two questions asked, the Sheriff said "Did you mean that question, Mr. Bullock?" and went on to say "Did you hear the question? Often, I have done it myself, questions have slips of the tongue. You asked if all the items taken from 'my car' were bagged and sealed, did you not?" The appellant said "I thought I said 'the car', but there we are, I stand corrected." The Sheriff said "No, you definitely said 'my car'". The appellant replied "I stand corrected. Thanks for your advice and your assistance." The Sheriff then directed the witness not to answer the next two questions which the appellant put to the witness.
Doubtless, the Sheriff thought that the appellant had referred to "my car" and that this would seem to imply that he was accepting a close connexion with the car which had been found by the police. Presumably, although this is not spelled out, the Sheriff intended to correct any such impression in the minds of the jury. In fact, however, the shorthand note bears out the appellant's position that he had formulated the question properly. If that is so, then because he wrongly implied that the appellant had made a significant slip of the tongue, there is a risk, at least, that the Sheriff's intervention hindered rather than helped the appellant.
Miss Scott submitted that, having regard to all the circumstances, the Sheriff had erred in refusing the appellant's application for legal representation and that this had led to his trial not being one which could properly be regarded as fair. The right to a fair trial and the consequential right of an accused person to have his defence presented to the court are rights which are recognised in our law and which find convenient expression in the words of Lord Justice General Hope in Anderson v. H.M. Advocate 1996 JC 29, 43 - 44:
"The basic principles are not in doubt. On the one hand there is the right of the accused to a fair trial. That right includes the right to have his defence presented to the court. Whether he is represented by counsel, by a solicitor-advocate or by a solicitor, his right is to representation in such a way that his defence will be presented to the court. This is in order that he may receive a fair trial on the charge which has been brought against him."
Those rights in our domestic law correspond to the right enshrined in Article 6 of the European Convention on Human Rights and in particular in Article 6(3) which provides inter alia that a person charged with a criminal offence has the right
"to defend himself in person, or through legal assistance of his own choosing or , if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require".
The basic principle is, accordingly, not in doubt. As Miss Scott herself recognised, the real question in this case is how that general principle is to be applied in a situation where the appellant had, quite deliberately and for reasons which he thought sufficient, chosen from Tuesday until the Friday afternoon to exercise his right to defend himself in person. During that time a great deal of evidence had been led from witnesses whom the Crown had required to bring from widely scattered parts and whom it would be difficult to reassemble for any fresh proceedings. These were factors which the Sheriff was clearly entitled to take into account in deciding what course he should adopt.
It emerges from the narrative which we have given that the Sheriff took the view that the appellant's motion for representation was really a time-wasting tactic. We are conscious that the Sheriff was potentially in a better position than this court to reach a conclusion on that matter since he had observed the appellant conducting his case. On the other hand, there is a risk that a judge, perhaps understandably wearied by questioning which he regards as unhelpful or worse, may too readily reach a conclusion that an accused person is simply wasting time. We note that, when he eventually came to give his definitive ruling on the appellant's application, the Sheriff expressed the view that much of the appellant's cross-examination had been "effectively a time-wasting tactic". Any court must be vigilant to avoid the interests of justice being defeated or delayed by any such ploy. None the less, we think it right to observe that, although the leading of evidence had not begun until the Wednesday morning, by Friday afternoon the court was hearing the thirtieth witness. This is scarcely a rate of progress which in itself speaks of conspicuous time-wasting by the appellant. Indeed, the Sheriff himself remarked to the appellant that he had not fallen into the trap of using his cross-examination to make speeches.
It appears, however, that the impression which the Sheriff had formed shaped his approach to the appellant's application. The only conceivable basis on which the Sheriff can have thought it possible to reject the application immediately - as he did - without hearing any argument from him is that he considered that it was not genuine, but simply another time-wasting tactic. That this was indeed his view emerged when he subsequently turned to the procurator fiscal and sought her endorsement for that view - which she gave at the second time of asking.
The circumstances of the application do not, however, appear to us to bear out the Sheriff's reaction that the appellant was simply wishing to waste time. The reason which the appellant advanced was that he had (himself) opened up the matter of his previous criminal record and was now facing an experienced police witness; he did not feel competent to deal with him or with the other police witnesses who were to come. The fact that he made the application promptly, when questioning the first police witness, appears to us to confirm that - whatever its merits - the reason which he gave for making the application was genuine. Moreover, there is nothing in what the appellant says about his application to suggest that he thought that it would lead to a long delay in the proceedings. Rather - rightly or wrongly - he tells the Sheriff that, when he made the application on the Friday afternoon he felt that "with the weekend approaching I would spend the weekend with him and we would start Monday and carry on from where we left off to deal with the police officers side of it." If that was indeed the basis on which the appellant made the application - and we do not understand that it was really challenged - then, even if it was unrealistic, it belies the suggestion that the appellant's purpose in making the application was simply to waste time.
The Sheriff and the procurator fiscal depute took the view that the appellant's application could not possibly work out in the way in which he envisaged. The Sheriff appears to have accepted the contention that, even if a solicitor could be found who would be willing to be instructed, the solicitor would not be prepared to take up the proceedings from the point which had been reached and would inevitably have asked for the diet to be deserted. The Sheriff was clearly of the view that he was not prepared to desert the diet at that stage in the trial. If he had remained of that view when a solicitor had agreed to represent the appellant and the solicitor had continued to act, the solicitor would simply have had to represent him to the best of his or her ability in the particular circumstances where the solicitor was taking over at that particular stage in the trial. We refer to Beatson v. H.M. Advocate 1949 S.L.T. (Notes) 32 where the court appears to have envisaged that in principle a new counsel could be expected to take up a case from the point at which the previous counsel had been dismissed. In any event, whatever the difficulties, it appears to us that, even without having taken part in the earlier stages, a solicitor could have dealt more effectively with a number of the issues which arose in the present case. We therefore see no sufficient basis for the Sheriff's view that the appellant's application should be refused because granting it would necessarily entail deserting the diet.
What the Sheriff should have done was to grant the application and thus afford the appellant an opportunity to see whether he could obtain legal representation to deal with the police witnesses. If on Monday morning it appeared that no solicitor was available or prepared to take on the defence, it would then have been a matter within the Sheriff's discretion to decide whether in the interests of justice he required to desert the diet, or to give the appellant further time to seek representation, or to order the trial to proceed with the appellant continuing to represent himself. In exercising this discretion he would have had to consider a range of factors. On the one side would be the difficulties which might be faced by an unrepresented accused, particularly if the nature of the trial was such as to involve complex legal issues. On the other hand he would need to ponder the fact that the appellant had previously dismissed his legal representatives, the stage which the trial had reached and the difficulties which would be faced by the Crown in attempting to remount the prosecution, including the inconvenience to witnesses, a substantial number of whom did not live in Scotland. If, having weighed the various factors, the Sheriff had decided to proceed with the trial, it might have been very difficult for this court to say that he had not been entitled to exercise his discretion in that way. We express no view on the matter, however, since the situation does not arise because of the Sheriff's peremptory refusal of the appellant's motion on the Friday afternoon.
Having rejected the appellant's application, the Sheriff none the less appeared to leave it open to the appellant to try to find representation over the weekend. The appellant did not do so and on Monday morning proceedings continued with the appellant still unrepresented. We attach no importance to the fact that the appellant took no steps to obtain the services of a solicitor - it is entirely understandable, given the Sheriff's ruling, the overwhelmingly negative comments which the Sheriff had made during discussion on the Friday and the lack of any guidance to the appellant as to how he might obtain legal assistance. The discussion surrounding the application had, however, revealed a new element in the situation: that the appellant felt that he lacked the necessary expertise to question the police witnesses. This new element supplemented the Sheriff's own view that the appellant's earlier attempts to cross-examine witnesses had not assisted his case and had at times seemed to harm it. In that situation it is clear that there was, at the very least, a risk that the appellant would not be able to handle his defence adequately and that the trial would not be fair. It appears to us that the way in which the proceedings were conducted after the weekend compounded the problems and did indeed lead to a trial which, looked at as a whole, cannot be regarded as fair.
The Crown was, of course, legally represented. The procurator fiscal depute was well aware that the appellant was representing himself and had no legal training. Despite this, she took at least two steps which, as she must have been well aware, would inevitably have led to objections by the defence if the appellant had been legally represented. We refer in the first place to the leading of evidence (on the Friday afternoon) designed to show that the appellant possessed the handgun, even though the Crown had not included a charge under the Firearms Act. As we have already noted, the Advocate Depute was unable to advance any argument as to why that might have been legitimate in the circumstances. The significant point is not simply that the procurator fiscal depute was leading evidence to which an objection might properly have been taken; more importantly, evidence that the appellant possessed a handgun was both irrelevant to his guilt of the charges against him and at the same time highly prejudicial. It should not have been led. The other contentious step which the procurator fiscal took was to lead evidence designed to show that the appellant had stolen various items which were not included in the charges on the indictment and then to move to amend the charges. Again, the procurator fiscal depute must have been well aware that, if the appellant had been legally represented, there would have been objections to both these steps. We also note that the procurator fiscal led evidence that a binocular case contained screw-drivers, of possible significance in relation to thefts by housebreaking, even though the screw-drivers had not been mentioned on the list of productions. On this matter the Sheriff directed the jury to ignore the presence of the screw-drivers. We cannot avoid the conclusion that, consciously or unconsciously, the procurator fiscal depute took advantage of the fact that the appellant was unrepresented in order to pursue her case in a way which would have been impossible if the appellant had been represented.
The position of a judge dealing with an unrepresented accused is never an enviable one. Nor do we underestimate the problems which confronted the Sheriff in handling a trial with the appellant conducting his own defence. Unfortunately, in this case it can be said not just that in some respects the Sheriff failed to do enough to ensure a fair trial, but that certain of the steps which he took actually contributed to making the appellant's trial unfair. Perhaps most obviously, the Sheriff's approach to the appellant's attempts to lead evidence about the items which the police recovered from the car was misconceived: as the Sheriff must have known - even though the appellant did not - it would have been consistent with usual practice for the police witnesses to consult their notebooks to refresh their memories. The Sheriff's approach prevented the appellant from leading evidence which would, arguably, have had a bearing on the line of defence which he was advancing. In much the same way the Sheriff ruled that Detective Constable Currie was not allowed to look inside some kind of container to see whether maps recovered from the car were, as the appellant suggested, town plans. Again, we see no legal basis for ruling that the witness was not allowed to do that. Nor did the Sheriff do anything to assist the appellant when, due to some technical difficulty, there were no transcripts of the interviews with the appellant and, apparently, no means for him to play the tapes of the interviews in court. The passages in the tapes might - or might not - have supported the appellant's contentions about what had occurred at the interviews. More generally, some, at least, of the comments which the Sheriff made in front of the jury when stopping the appellant from pursuing particular lines of questioning would have tended to put the appellant's defence in a poor light. Finally, in relation to both the handgun and the amendment of the charges on the indictment, the Sheriff allowed the procurator fiscal depute to take steps which were in themselves liable to make the trial of the unrepresented appellant unfair.
While it is no part of the Sheriff's function to act as defence counsel, he must ensure not merely that an unrepresented accused is given every opportunity, within reasonable limits, to bring out any points which he wishes to make, particularly in cross-examination, but also that no advantage is taken by the prosecutor, whether deliberately or unintentionally, of the fact that the accused is unrepresented. Our conclusion is that, when the various elements to which we have referred are taken together, in the circumstances of this unusual case, it cannot be said that the appellant was seen to have a fair trial. There has accordingly been a miscarriage of justice and we shall allow the appeal and quash the convictions.