Scottish High Court of Justiciary Decisons

CRAIG BROWN JOHNSTONE GILLESPIE BARNES v. HER MAJESTY'S ADVOCATE [2000] ScotHC 90 (26th September, 2000)

[1] This is an appeal against conviction by Craig Brown Johnstone Gillespie Barnes who went to trial along with a number of co-accused, including James Joseph McGinley, on a charge of murdering Gary Harper by causing him to fall to the ground, seizing him by the hair, repeatedly punching, kicking and stamping on his head and body and repeatedly striking him with a belt, whereby he was so severely injured that he died. The appeal is based on the trial judge's decision to uphold an objection by counsel for McGinley and to refuse to permit counsel for the appellant to cross-examine McGinley on his previous convictions.

[2] Section 266 of the Criminal Procedure (Scotland) Act 1995 provides inter alia:

[3] A relatively short account of the circumstances as revealed by the evidence is sufficient. The attack on the deceased was initiated by McGinley but the appellant soon joined in - they both claimed to have been acting in self-defence. But the evidence generally indicated that the appellant continued the attack on the deceased after he was on the ground and that others joined in. It also indicated that the appellant and McGinley were still involved in attacking the deceased after the others had moved off. There was evidence that one of the attackers delivered blows with his feet after all the others had left. While the balance of the evidence suggested that the attacker in question was McGinley, one witness described the appellant's involvement in a way that could have been interpreted as indicating that he was last to break off the assault.

[4] McGinley, who was the first accused, gave evidence on his own behalf and, when his time came, so also did the appellant. The events giving rise to this appeal occurred, however, during McGinley's evidence. When his turn to cross-examine McGinley came, Mr. Hamilton, Q.C., the appellant's counsel at the trial, immediately made a motion to the trial judge for permission to cross-examine McGinley on his previous convictions. Initially, Mr. Hamilton argued that in his evidence in chief McGinley had "given evidence against" the appellant, but he soon acknowledged that this was not so. Mr. Jackson, Q.C., who argued the appeal, accepted that this was correct. It is therefore unnecessary to examine McGinley's evidence in chief. Despite the fact that McGinley had not given evidence against the appellant, Mr. Hamilton proceeded to cross-examine him, having given notice to the trial judge that he would renew his motion for leave to put questions to McGinley about his record. So, even before he began his cross-examination, Mr. Hamilton had indicated that he in effect intended to create a situation in which he could question McGinley about his record.

[5] In cross-examination McGinley said that, after he had left the deceased on the ground, he saw Gary Richford kicking the deceased. Significantly enough, Richford had pled guilty to a lesser charge at the start of the trial and the Crown had accepted that plea. Mr. Hamilton then asked McGinley about the appellant:

At that point Mr. Kerrigan, Q.C., counsel for McGinley objected and, after argument, the trial judge sustained the objection.

[6] In the course of the discussion, Mr. Hamilton explained his position with admirable frankness:

More specifically, Mr. Hamilton wished to use McGinley's record of crimes of violence in order to suggest that the evidence of certain witnesses had been affected by a justified fear of McGinley. He also wished to use it to attack McGinley's credibility and so to call into question his evidence that he was not the person involved in the closing stages of the assault. The trial judge plainly had doubts about the validity of both of these reasons for wishing to elicit McGinley's evidence but we need not explore the matter further since they would be of relevance only if the trial judge would have had a discretion to decide whether to allow the cross-examination. But Mr. Hamilton's position at the trial - and the primary position of Mr. Jackson at the appeal - was that, since McGinley had "given evidence against" the appellant, by virtue of Section 266(4)(c) his counsel was entitled as of right to cross-examine McGinley on his record. They referred to the decision of this court in McCourtney v. H. M. Advocate 1977 J.C. 68. Since a question about it was raised in the court below, we observe that the court in McCourtney gave its decision immediately but issued its reasons in writing later (1977 J.C. at p. 69).

[7] At the trial the Advocate Depute argued somewhat tentatively that the passage of evidence which we have quoted might not be regarded as "evidence against" the appellant. But, on the assumption that it was evidence against the appellant, the Advocate Depute concurred in Mr. Hamilton's submission that counsel for the appellant had a right in terms of Section 266(4)(c) to cross-examine McGinley on his record. In formulating his initial objection Mr. Kerrigan said in effect that what was proposed was not within the purpose of the section. His overall submission was that in the circumstances the court had a discretion which was to be exercised in such a way as to ensure a fair trial for all the accused. It was simply not a legitimate use of the provision for counsel for one accused to choose to engineer a means of bringing in purely prejudicial material against a co-accused in the form of his previous record.

[8] At the end of the argument the trial judge sustained the objection on the ground that, in his opinion, McGinley had not given evidence against the appellant in the sense meant by Section 266(4)(c). In his report to this court the trial judge indicated that, since the trial, the more he had reflected on the point, the more he had come to think that the distinction which he made was mere semantics. Nevertheless he continued to feel unease at applying the approach in McCourtney in the circumstances of this case. Since he considered that it would have been unjust to permit the cross-examination of McGinley on his previous convictions, he had grave doubts whether the opinion expressed in McCourtney, that the trial judge has no discretion to refuse to allow the co-accused to cross-examine as to criminal record when Section 266(4)(c) applies, was correct. Having analysed the authorities referred to in McCourtney, the trial judge expressed the view that the decision in McCourtney should be reconsidered and that the court should hold that a trial judge had a discretion which he or she could exercise in deciding whether to permit this type of cross-examination.

[9] When the appeal first called before this court, the Crown had given an indication in writing that they favoured asking for a larger court to be convened to reconsider McCourtney and Mr. Jackson would have consented to that. But by the time of that hearing, the Crown had modified their view and no longer wished that to be the first step. In any event the court indicated that we should wish to hear argument and then decide whether to convene a larger court or to deal with the case in some other way. In particular we wished counsel to address us on whether subsection (4)(c) applied at all in these circumstances. At the hearing where the appeal was eventually argued, therefore, Mr. Jackson's primary position was essentially the same as Mr. Hamilton's at the trial: McGinley had "given evidence against" the appellant in terms of Section 266(4)(c) and counsel for the appellant had therefore been entitled as a matter of right to cross-examine McGinley on his record, even though counsel had deliberately engineered the situation, precisely with the aim of securing that right to cross-examine. Only if the court were against him on this primary submission would Mr. Jackson argue that McCourtney should be reconsidered. In that event, if it were held that the trial judge had had a discretion, Mr. Jackson envisaged arguing that he should have exercised it in favour of allowing cross-examination.

[10] For her part the Advocate Depute now argued that Section 266(4)(c) did not apply either, first, because McGinley's answers were not truly "evidence against" the appellant or, secondly, because the questioning had been deliberately engineered with the aim of eliciting the answers and so securing a right to cross-examine McGinley on his record. It would be inconsistent with the aims of the legislation to hold that the subsection applied in that situation. On that basis the appeal should be refused. We note that the Crown did not present this argument at the trial. If the court did not accept this submission, then the appeal should be sent to a larger court to reconsider McCourtney: if the trial judge had a discretion, then he would properly have exercised it in favour of McGinley and so would have refused to permit the cross-examination. On this second basis also the appeal should be refused.

[11] We are satisfied that the first limb of the Advocate Depute's argument is misconceived. As Mr. Jackson pointed out, McGinley's evidence that the appellant kicked the deceased is evidence which would be included in any summary of the evidence supporting the Crown case against the appellant. It supported the Crown case in a material respect and tended to undermine the appellant's defence that he was not the person who had kicked the deceased at the end of the incident. We refer generally to Murdoch v. Taylor [1965] A.C. 574, McCourtney 1977 J. C. at pp. 72 - 73 and Burton v. H. M. Advocate 1979 S.L.T. (Notes) 59. In our view therefore it was indeed "evidence against" the appellant.

[12] Mr. Jackson submitted that if that were so, then the subsection applied and, unless McCourtney were reconsidered, the appeal must succeed since the appellant's counsel had had a right to cross-examine and the trial judge had had no discretion to exercise to prevent that cross-examination.

[13] On an absolutely literal interpretation of subsection (4)(c), Mr. Jackson's argument would, of course, succeed. But, in interpreting a statutory provision, the court must have regard to the overall legislative intention and interpret Parliament's words within that context. On that approach we have no hesitation in rejecting Mr. Jackson's submission.

[14] Section 266 now embodies an amended version of a provision which first came into our law with the Criminal Evidence Act 1898. Until then, under both Scottish and English law, an accused person had not generally been allowed to give evidence in his own defence. The 1898 Act changed that and gave an accused the right, if he chose, to enter the witness box and give such evidence. While many of the usual rules were to apply to his evidence, in certain respects Parliament crafted a special set of rules which were, and are, designed to cater for his distinct position and to afford him a measure of protection not enjoyed by other witnesses. In particular, while he is to be subject to cross-examination, limits are placed on the scope of that cross-examination.

[15] So, under subsection (2) the accused's right not to incriminate himself is preserved by the rule that he cannot be called except on his own application. If, however, he chooses to give evidence, he loses the right not to incriminate himself in respect of the offence charged; in terms of subsection (3) he may therefore be asked any question about the offence even though the answer would tend to incriminate him in that regard. If an accused were treated as an ordinary witness, he would be liable to be cross-examined about any previous conviction or about any criminal charge or indeed about his bad character, with a view to casting doubt on his credibility or reliability. But in subsection (4) Parliament has enacted a powerful protection of the accused against cross-examination of that kind. He is not to be asked, and if asked is not to be required to answer, any question tending to show that he has committed or been convicted of, or been charged with, any offence other than that with which he is then charged. Similarly he is not to be questioned or required to answer questions tending to show that he is of bad character. The cumulative formulation ("shall not be asked, and if asked shall not be required to answer") makes for an emphatic declaration of the accused's right to this immunity.

[16] As Lord Justice Clerk Ross explained, giving the opinion of the court, in Leggate v. H. M. Advocate 1988 J.C. 127 at pp. 142 - 143, this right of the accused not to be cross-examined on these matters is not absolute. It is conditional in the sense that it remains intact unless one of the conditions set out in paragraphs (a) to (c) is fulfilled: if one of the conditions is fulfilled, then the right is lost and the accused may be cross-examined on these matters - but, in the case of paragraph (b) at least, only if the court permits this in the exercise of its discretion.

[17] Since paragraph (a) deals with a distinct situation, we can ignore it for present purposes. While paragraph (b) has given rise to notorious difficulties of interpretation, its broad purpose at least can be discerned: the accused loses his right to immunity from this particular type of cross-examination and is liable to be treated like any other witness, if his evidence or the conduct of his defence is of such a nature that it may be necessary, in order that the jury should be given a balanced picture of the evidence as a whole, for the Crown to be able to challenge the accused's credibility and reliability by bringing out these matters. Similarly, under paragraph (c), the accused loses his right to immunity and becomes like any other witness, open to the usual range of cross-examination, if he gives evidence against a co-accused. If that were not so, the co-accused would be denied the possibility of defending himself fully.

[18] The structure of the provision is significant. The principal aim of subsection (4) is to confer on the accused a protection - albeit conditional - against a particular type of cross-examination. Any proper interpretation of the provision must, accordingly, be such as to promote rather than to frustrate that aim. If an accused gives evidence of a type falling within paragraph (b), he will lose that protection and the Crown may have the right to cross-examine him on the forbidden topics. Similarly, if he gives evidence of a type falling within paragraph (c), he will lose that protection and, according to McCourtney, the co-accused will have the right to cross-examine on those topics. But, in each case, the right of the Crown or of the co-accused is a subsidiary right which arises only in the event of the condition materialising. The subsidiary nature of these rights is seen from the very fact that the purpose of Parliament in conferring them was to guard against the risk of injustice arising out of something which the accused had said in evidence. In that sense they provide both the Crown and the co-accused with a measure of protection against certain kinds of harm done to their case by the accused. That is the nature of the "benefit" - to use Lord Donovan's expression in Murdoch v. Taylor [1965] A.C. at p. 590 F - which is conferred upon them by paragraphs (b) and (c).

[19] The construction which Mr. Jackson invites us to put on the subsection turns the provision on its head and undermines the intention of Parliament to give an accused person the right, as a rule, to give evidence without the risk of finding his previous criminal actings or bad character being exposed, perhaps in considerable detail, to the jury, with all the possible repercussions for his case. On Mr. Jackson's approach, counsel for the co-accused can use the subsection, not to provide the co-accused with a remedy for an injury which he has suffered, but to advance the co-accused's interests at the expense of the accused's by deliberately forcing the accused to injure the co-accused's case, with the express intention of thereby stripping away the accused's immunity and exposing him to this kind of cross-examination. What was intended to be a remedial measure is transformed into a powerful weapon for deliberately inflicting on an accused the very type of harm from which Parliament intended to shield him. That cannot be right.

[20] In advancing his submission, Mr. Jackson drew attention to the fact that in Murdoch v. Taylor Lord Pearce had specifically envisaged ([1965] A.C. at p. 587 D -F) the situation where one accused's counsel

In this passage Lord Pearce was describing one of the types of case where he, alone of their Lordships, envisaged that a trial judge might have a discretion to refuse to allow cross-examination under the equivalent of subsection (4)(c). None the less, the passage showed, said Mr. Jackson, that the case of a deliberate stratagem had been before their Lordships and yet all the others had held that the provision applied and conferred an absolute right to cross-examine. Even Lord Pearce, who considered that there was a discretion to refuse to allow such cross-examination, did not question that the provision applied. Mr. Jackson went on to observe that in McCourtney "the distinguished counsel" for the appellant, who referred to Murdoch, must equally have been aware of the possibility of counsel for one accused using this deliberate ploy in cross-examining a co-accused. Despite this, senior counsel - and by implication his junior also - had not been able to suggest any situation where the trial judge might use his discretion to refuse to allow cross-examination under the equivalent of subsection (4)(c). See 1977 J.C. at pp. 73 - 74.

[21] Neither in Murdoch nor in McCourtney was the court concerned dealing with a case of this kind. Any observation or implication in their opinions must therefore be regarded as obiter. In particular, in the absence of any indication that their Lordships were ever asked to address the kinds of argument which we have just considered, we are not persuaded that we should treat their reasoning as being persuasive on this point.

[22] For similar reasons we reject Mr. Jackson's argument based on a passage in Lord Donovan's opinion where he noted ([1965] A.C. at p. 593 B - D) that the wording of the equivalent provision in English law was sufficiently wide to suggest that, if one accused gave evidence against another, he would lose his immunity from the forbidden type of cross-examination, even at the hands of the Crown. His Lordship said that, if the Crown sought to avail themselves of the provision, it should be construed as conferring on the trial judge a discretion to refuse that line of cross-examination. Mr. Jackson argued that, even though he perceived difficulties to which the wording of the provision could give rise, Lord Donovan did not for that reason deny the plain meaning of the words. Rather, while holding that the provision applied according to the full extent of its wording, he envisaged dealing with any resulting difficulties by implying a discretion in the judge. Similarly, said Mr. Jackson, in this case the court should apply the plain meaning of the words and, if we thought that the provision so interpreted might give rise to injustice, send the appeal to a larger court to reconsider the decision in McCourtney denying the existence of a discretion. We simply observe, however, that in the passage in question Lord Donovan was dealing with a different point and in particular one where there was no suggestion of the Crown deliberately setting out to engineer the fulfilment of the condition now contained in paragraph (c).

[23] We are accordingly satisfied that the interpretation of subsection (4)(c) advanced on behalf of the appellant is unsound and that it was not intended to confer a right to cross-examine on a co-accused whose counsel deliberately forced the accused to give evidence against the co-accused with the avowed purpose of putting himself in a position to exercise that right and thereby damage the credibility and reliability of the accused. We stress that our decision, and the reasoning upon which it is based, are confined to the situation where the questions are put with this one purpose in mind. Our reasoning would not apply, for instance, where the accused's answer resulted from a question put recklessly or carelessly. That being so, Mr. Jackson failed to persuade us that there would be difficulty in knowing where to draw the line between cases falling within the provision and those cases, such as the present, where the court is asked to adopt an interpretation which frustrates the intention of Parliament in enacting it. We observe, finally, that our reasoning - which is, we suspect, much the same as that on which the trial judge rested his decision - is not based on mere semantics, but on what we regard as the real substance of the provision.

[24] The appellant's appeal against conviction is accordingly refused. We shall continue the case to a date to be afterwards fixed so that counsel may address us in relation to his appeal against the trial judge's decision not to fix a "designated part" in terms of Section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.