Scottish High Court of Justiciary Decisons

GRAEME MASON v. HER MAJESTY'S ADVOCATE [2000] ScotHC 70 (26th June, 2000)

[1] The appellant is Graeme Mason who went to trial along with a number of co-accused on an indictment containing two charges. He was convicted of the second charge, of being knowingly concerned in the evasion of the prohibition in force at the time on the importation of cannabis resin contrary to Section 170(2) of the Customs and Excise Management Act 1979. He now appeals against that conviction. Although his amended grounds of appeal contained two grounds, Mr. McVicar explained that he intended to argue the second ground only.

[2] That second ground arises out of the evidence given by a Crown witness, Hannah Martin, who was a lady who had been living with the appellant during the period of the offence. On her own evidence it was clear that, for part of the time at least, she had been aware that, when carrying large sums of money on trips to Spain and otherwise, she had been involved in the very scheme for smuggling cannabis resin into this country which formed the subject matter of the charge against the appellant and his co-accused. In that sense she was truly a socius criminis. The rule established by our law is that a socius criminis, who is called by the Crown to give evidence in respect of the crime in which she was involved, cannot subsequently be prosecuted for that crime. In other words she has an immunity from prosecution in respect of that matter. Where a witness is aware of that rule, it may indeed be a legitimate tactic for the defence to attack the credibility of the witness by drawing the jury's attention to this fact and to suggest that the witness may have had an incentive to give false evidence against the accused in order to secure her own immunity from prosecution. Where defence counsel choose to impugn the witness's testimony on that ground, it may well be appropriate for the trial judge to remind the jury of that criticism. We refer to the comments of Lord Justice General Emslie in Docherty v. H.M. Advocate 1987 J.C. 81 at p. 95.

[3] In this particular case, however, the situation was somewhat different. In the course of her evidence Hannah Martin did indeed make statements which indicated that the police had pointed out to her the risk that she would be prosecuted if she did not speak up about the events relating to the offence. But in addition it appeared that she thought that, despite giving evidence for the Crown, she still faced the prospect of possible prosecution for her involvement in those matters. Her mistaken belief that she might still be prosecuted was not challenged by defence counsel in cross-examination or re-examination.

[4] It was against that background that, after the conclusion of all the evidence in the case, Mr. Smyth, who represented the appellant at the trial, sought a ruling that, in addressing the jury and dealing with the credibility of Hannah Martin, counsel could make reference to the rule of law that a socius criminis who gave evidence for the Crown about the crime in which she had participated could not subsequently be prosecuted for that crime. Not surprisingly, the trial judge declined to give that ruling. In his report to this court he explains succinctly that "There was no factual basis in the evidence for a submission that knowledge of that rule had influenced the witness." That ruling was, we may respectfully say, clearly correct. And indeed Mr. McVicar did not seek to challenge it before us.

[5] None the less he sought to persuade us that the trial judge had failed to give a direction which was necessary in the circumstances of the trial. We freely confess that we found difficulty in following the submission, but in the end it appeared to be strictly limited. The submission took as its starting point the fact that the witness was indeed mistaken about her legal position. That mistake might have induced her to give false evidence supporting the Crown case against the appellant and the other accused, in the belief that she might thus win favour with the prosecuting authorities and so persuade them not to proceed against her, or else in the belief that she might thus provide possible grounds of mitigation of any eventual sentence. Since that was a risk in this case, it was one to which the trial judge had been bound to draw the jury's attention - even though, for whatever reason, the appellant's representative had not in fact chosen to make this criticism of Hannah Martin's evidence in his speech to the jury.

[6] In support of that proposition Mr. McVicar referred to the words of Lord Emslie in Docherty where he said that in some circumstances it would remain proper for the trial judge to comment on the credibility of a socius and added (1987 J.C. at p. 95):

Mr. McVicar submitted that the duty, as envisaged by the Lord Justice General, applied not simply when the criticisms of a witness were made in the course of the defence speech to the jury, but also where they were made in the course of the leading of evidence. We reject that interpretation of the passage. When evidence is being led, counsel put questions to witnesses; they do not make criticisms of the witnesses. The time for making criticisms is when counsel address the jury. It is plain therefore that the Lord Justice General meant that the trial judge would normally be well advised to remind the jury that they should take into consideration the criticisms made by counsel when presenting the defence case in the speech to the jury. Mr. McVicar readily conceded that the trial judge had fulfilled that duty to the letter. In our view nothing more was required of him in this case. Obviously, indeed, in any case where defence counsel have chosen not to press a particular line of criticism of a witness when addressing the jury, the trial judge will be justified in hesitating to advance it himself, since he knows nothing of the circumstances which may have influenced counsel's decision. More particularly, in this case, as the trial judge points out, it would have been potentially perilous for him to do more than to remind the jury of the position of the various defence counsel in relation to Hannah Martin's credibility, since counsel for one of the co-accused, Healy, had specifically invited the jury to treat her as a credible and reliable witness.

[7] The directions given by the trial judge on this matter were not open to criticism and this ground of appeal must accordingly be refused. It follows that the appeal against conviction is refused.