Scottish High Court of Justiciary Decisons

THOMAS McANEA and RAYMOND DEAN and JOHN JOSEPH McGREGOR and DENNIS McGINNIS v. HER MAJESTY'S ADVOCATE [2000] ScotHC 81 (2nd August, 2000)

[1] The appellants are Thomas McAnea, Raymond Dean, John Joseph McGregor and Dennis McGinnis, who were all convicted at the High Court at Edinburgh of various charges of forging and counterfeiting bank notes and other documents, the details of which are not of importance for present purposes. The appellants have appealed against their conviction. Despite an initial and singularly unwise attempt by Mr. Kerrigan, Q.C., to present the appeal for McAnea on a different basis, in truth all the appeals raise the same short but important point.

[2] At the trial on 27 January 1998 the Advocate Depute called the first witness for the Crown, Brian McKinven, a scenes of crime officer, who gave evidence of having gone to an address in Beith Street in Glasgow for the purpose of taking photographs. At that point Mr. Kerrigan objected to the line of evidence, the basis of his objection being that "the taking of photographs in Beith Street followed an illegal warrant and that all action in respect of Beith Street [was] in fact invalid, including the taking of any photographs there." Counsel went on to explain that the objection did not simply apply to the search warrant for the Beith Street premises but to fourteen other warrants. All of the warrants were on a pre-printed form correctly headed "Search Warrant under the Forgery and Counterfeiting Act 1981" but the crave was for a warrant "in terms of the Forgery and Counterfeiting Act 1989, Section 24(1)". The Justice of the Peace "granted warrant as craved". There is in fact no Forgery and Counterfeiting Act 1989 and so the warrant was granted in terms of a non-existent section of a non-existent Act. From what was said in the court below and before us, we understand that the Advocate Depute had been aware on the afternoon of 26 January that the objection might be taken on this basis.

[3] The objection having been taken, the jury withdrew and Mr. Kerrigan addressed the trial judge, with counsel for the other appellants adopting his submissions. The Advocate Depute replied and submitted that the warrants in question were valid and that the search following on them, the productions seized during the search and the photographs taken of the crime scene were lawful. The Advocate Depute concluded his submission by arguing that the irregularity or defect in the warrant was limited and could be excused and that the officers did have authority under the Forgery and Counterfeiting Act 1981 to search the premises. Mr. Kerrigan then made further submissions and the trial judge took time to consider the matter. After the lunch adjournment he gave his ruling, in which he referred to a number of authorities. He concluded with the words "On the whole matter, therefore, I shall sustain the objection." Although he used the future tense, the Crown accept that this did not imply that any decision was being postponed.

[4] The Advocate Depute then said:

The trial judge granted the adjournment but added that the next morning he would want a clear indication of where the Crown was going.

[5] At this point in the narrative we note two matters. First, we understand that the minute of that day's proceedings was compiled and the part dealing with the trial judge's decision to uphold the objection was signed by the Clerk of Court, Mr. Dowie, before leaving the court that day. It records that counsel for McAnea objected to the line of evidence and that "Lord Cameron sustained the objection". Secondly, the trial judge indicates in his report to us - and the Advocate Depute accepted in the hearing before us - that without the evidence in question there would have been no Crown case for the appellants to answer. It is indeed plain from the remarks of the Advocate Depute which we have quoted that he sought the adjournment to consider the far-reaching effects of the trial judge's decision to sustain the defence objection.

[6] When he addressed the court the following morning, the Advocate Depute took a somewhat different tack. He began by stating that the previous day his Lordship had "ruled that the search warrants were invalid and that the effect of that was that the productions seized and photographs taken as a result of execution of the search warrants had been irregularly obtained". What he said about the evidence being inadmissible could not be transcribed. The Advocate Depute continued, however:

When the Advocate Depute proposed to refer to Lawrie v. Muir, Mr. Kerrigan intervened to say that he would respectfully ask the court to consider "this to be incompetent in the light of my Lord's ruling yesterday. This is, in essence, seeking to appeal a decision of the Court and, in those circumstances, I simply raise the question." The trial judge indicated that he would hear the Advocate Depute and then hear defence counsel both on the competency of the Advocate Depute's submission and on the substance of the submission. This he proceeded to do.

[7] The Advocate Depute addressed the court on the basis that the trial judge's ruling on the previous afternoon had related simply to the validity of the search warrants. He accepted that ruling but now wished to argue that, even though the warrants were invalid, evidence of the various matters which followed on the search of the various premises was none the less admissible. He was making the submission "having consulted the authorities last night" and having considered the matter overnight. If these submissions should have been made the day before, then he apologised for not having made them then. Mr. Kerrigan, on the other hand, argued that in effect the trial judge had ruled on the whole question, including the question of the admissibility of the evidence in consequence of an illegal search. The Advocate Depute was asking the trial judge to reconsider the matter on the basis of other reasons which he could have advanced and developed as part of his argument in response to the objection the day before.

[8] The trial judge again considered the matter over the lunch adjournment and decided that he could properly entertain the further submissions of the Crown based on Lawrie v. Muir. Having taken account of those submissions, the trial judge gave effect to them and concluded:

The Clerk recorded this in the minute of proceedings:

Again, this was signed by the Clerk in the usual way.

[9] Thereafter counsel for the appellants presented a petition to the nobile officium seeking to challenge the trial judge's second ruling but the court held that the petition was incompetent at that stage and that the validity of the trial judge's ruling could be challenged only by an appeal in the event of conviction. The purpose of the present appeals is indeed to challenge the competency of the trial judge's decision to hold that the evidence was admissible and so to depart from his earlier ruling, sustaining the defence objection to the line of evidence.

[10] Before this court, as in the court below, the Crown accepted the trial judge's ruling that the search warrant was invalid. It is therefore unnecessary for us to consider that matter and we do not do so. Nor, for their part, did counsel for the appellants seek to argue that the trial judge's ultimate decision that the evidence was admissible would have been incorrect in law if it had been competent for the trial judge to consider the supplementary Crown submission. The issue between the parties before this court was therefore one of pure competency: whether, having sustained the defence objection to the line of evidence, the trial judge could, in the face of defence opposition, subsequently hear further Crown submissions on the admissibility of the evidence and, in the light of those additional submissions, in effect repel the objection and admit the evidence.

[11] In the opinion which he issued when ruling in favour of the Crown, the trial judge referred to the Advocate Depute's submission based on Lawrie v. Muir and related authorities and observed:

[12] In considering the competency of the trial judge's second decision, we begin by noticing, as he himself noticed, the circumstances in which the Advocate Depute asked the trial judge to hear additional submissions. On the afternoon of 26 January the Advocate Depute had been given notice of a possible objection to the line of evidence based on the defect in the search warrants. The Advocate Depute therefore had time to prepare in advance to meet the objection. And he clearly did so, since he advanced various arguments under reference to the authorities on the validity of search warrants. What we, like the trial judge, find surprising is that the Advocate Depute - who was, if we may say so, known for the care with which he prepared and presented his cases - should have entirely overlooked the obvious line of argument that, even if the search warrants were invalid, the evidence should none the less be admitted. The authorities descending from Lawrie v. Muir have been a very present help to many an Advocate Depute and procurator fiscal in time of trouble. We are therefore dealing with a situation where the motion by the Crown on 28 January for the trial judge to consider this aspect of the admissibility of the evidence arose not from some unforeseeable development but simply from the Advocate Depute's earlier omission to consider and advance a well-known line of argument which, in our experience, the Crown almost invariably put forward - not always successfully, of course - in such circumstances. It was not, perhaps, the most auspicious starting-point for the Crown submission.

[13] Despite the argument advanced by the Advocate Depute to the trial judge, it is plain from the terms of his first decision, as well as from the way in which it was minuted, that he did not simply decide that the warrants were invalid but also that the line of evidence relating to the searches and related matters was, accordingly, inadmissible. His decision the following day to admit that evidence was therefore a decision to reverse his earlier decision.

[14] In the hearing before us neither the Crown nor counsel for the appellants were able to refer to any authority dealing with the competency of a trial judge reversing a ruling on a defence objection to a line of evidence in such circumstances. Nor have we ourselves been able to find any. In this regard the court's decision that a trial judge has power to reconsider a ruling on admissibility reached on the basis of evidence led at a trial within the trial is not a relevant authority since the occasion to exercise that power arises only where there is a significant difference in the evidence bearing on admissibility as it subsequently emerges before the jury: Thomson v. Crowe 2000 JC 173 at pp. 198 F - 199 B and 202 F - I per the Lord Justice General. The Advocate Depute submitted that we should hesitate to innovate at this late stage in the development of our criminal procedure by holding that it was incompetent for a trial judge to reconsider and, if appropriate, to alter a ruling on a defence objection - even if it had been formally minuted. The subsumption of this submission was, of course, that the proper inference to draw from the absence of authority on the point was that the established view was that a trial judge was free to reconsider such decisions. Since neither the members of the court nor counsel had ever heard of judges doing this in practice, we incline to draw precisely the opposite inference from the absence of authority, viz. that a decision on a defence objection once formulated and stated in open court is final and cannot be reconsidered.

[15] If that is the rule which emerges from the practice of the court, then we should not readily admit an exception to that rule since, in general, there is much to be said for the view of Lord Justice Clerk Hope that "The rules of criminal procedure ought to be fixed and definite, not arbitrary, uncertain, or variable": Frasers v. H. M. Advocate (1852) 1 Irv. 1 at p. 28. We do not hold that the rule thus established by practice may not admit of rare exceptions, but we should not sanction a departure from it simply to repair an omission by the prosecutor and on the prosecutor's plea that it is necessary to serve the ends of justice. The established rules exist to assist both the Crown and the defence by making the procedures predictable, thus ensuring that trials proceed in an orderly fashion. Admittedly, the rule imposes a certain discipline on counsel, but that is no bad thing. If you are required to put all your eggs in one basket, you will take correspondingly greater care in arranging and carrying them. By contrast, if decisions formally announced by a trial judge in open court could immediately be re-opened by any losing counsel who could bring forth - or dream up - a further argument, the potential for delay, uncertainty and even abuse is obvious. Moreover, any supposed rule, which cut off the Crown's right to reopen a decision on the admissibility of evidence only when the defence had relied on the decision to their prejudice, would require the trial judge to adjudicate on frequently contentious and inherently difficult collateral issues as to whether or not the defence would really be prejudiced if a particular decision were re-opened. Happily, our casebooks do not record judges having to tackle such awkward side-issues.

[16] We recognise, of course, that there will be occasions when a trial judge will have ruled incorrectly on an objection. If the ruling is against the defence, then it may well be that, if the Crown waive any objection, the matter may be reconsidered. We refer to the general approach indicated by Lord Justice General Normand in Lowson v. H. M. Advocate 1943 J.C. 141 at p. 143. In any event, if the pannel is convicted, the defence have a remedy in an appeal. If the point is wrongly decided against the Crown, then - although the Lord Advocate has power to refer any point of law under Section 123 of the Criminal Procedure (Scotland) Act 1995 - the Crown has no similar way of putting the matter right by appealing if the pannel is acquitted. But this disadvantage for the Crown forms no basis for questioning the approach which gives finality to such a decision: if the Crown cannot put matters right, this is simply one aspect of the general scheme of our present system of solemn criminal procedure under which the Crown has no right of appeal against an acquittal.

[17] For these reasons we are satisfied that it was incompetent for the trial judge to give effect to the supplementary submissions of the Advocate Depute and to reverse his decision to uphold the defence objection. In an admirably concise submission for the second appellant, Mr. Targowski, Q.C., placed considerable weight, however, on the fact that the trial judge had re-opened his decision after it had been minuted. Miss Scott supplemented that submission with a reference to R. v Cross (1973) 57 Cr. App. R. 660 where the Court of Appeal Criminal Division held that in an appeal against sentence it could set aside a judgment which had not yet been recorded by the proper officer of court. In reaching their decision the Court of Appeal drew an analogy with the practice of trial courts in England in matters of sentence. This argument for the appellants, based on the signed minute, would, of course, serve only to reinforce the conclusion which we have already reached on a somewhat wider basis.

[18] We hesitate to attach particular weight to the Court of Appeal decision on this matter since it proceeds on the basis of English law and practice on altering sentences and we were not invited to explore the equivalent Scots law. More importantly, perhaps, in the present case we are not dealing with the final sentence of the court which concludes the trial proceedings, but rather with one of what may be a whole series of interlocutors sustaining or repelling objections in the course of a trial. We do not, of course, overlook Lord Justice Clerk Macdonald's remark that "The principle of criminal procedure is written record of the proceedings": Burns v. Williamson (1897) 2 Adam 308 at p. 314. But the fact of the matter is that the trial judge does not usually see, far less sign, the clerk of court's minute recording such interlocutors. Indeed we were referred to no authority prescribing when the clerk of court has to compose and sign the minute of a particular decision. In practice, the time when he does so may well vary according to the circumstances - for example, the complexity of the procedural matter to be recorded, what other duties the clerk has to perform and the time of day when the point occurs. Not infrequently, the clerk may not have an opportunity to compose and sign the minute until after the court has risen for the day. Therefore, to ascribe finality to a decision only when it has been formally embodied in a signed minute would be to place the finality of the decision beyond the control of the trial judge who made it. Indeed finality might depend on an act which was performed by the clerk of court while the trial was actually adjourned. That approach would introduce precisely those elements of chance and uncertainty which a well-regulated system of criminal procedure strives to avoid. Therefore, while the fact that in this case the interlocutor had been recorded in a signed minute is indeed sufficient to show that it was in the circumstances irrevocable, for the reasons which we have given, we do not consider that the preparation and signing of the minute were necessary to make it so.

[19] Since it is agreed that without the evidence excluded by the trial judge's first decision there was no Crown case for the appellants to answer, we shall allow the appeals and quash their convictions.