Scottish High Court of Justiciary Decisons

GEORGE McCUTCHEON v. HER MAJESTY'S ADVOCATE [2001] ScotHC 114 (5th December, 2001)

[1] The point which is at issue in this appeal involves the re-consideration of the decision in Morrison v. H.M. Advocate 1990 J.C. 299, and this court of nine judges has been convened for the purpose.

[2] The appellant stood trial in the High Court on a charge of murder. During the course of the Crown case the prosecution led evidence as to the making and content of a statement which he had allegedly made shortly after the incident to which the charge related. For present purposes it is not necessary to refer to the terms of that statement, save to point out that, in resisting a motion by the defence that there was no case to answer, the Advocate depute founded on it as an admission by the appellant that he was responsible for the injuries which the deceased had sustained. The trial judge repelled the submission that there was no case to answer. The sole witness who was called by the defence was a police officer. He was on the Crown list of witnesses, but had not been called to give evidence in the Crown case. Defence counsel sought to elicit evidence from this witness of the making and content of a further statement by the appellant four days after the incident. This was recorded on tape during an interview at Baird Street Police Office in Glasgow after the appellant had been detained under section 14 of the Criminal Procedure (Scotland) Act 1995. The tapes on which the interview was recorded were Crown labels, and the transcript of the interview was a Crown production. It may be noted that parts of the content of this interview had been put to the appellant at his judicial examination, but the record of that examination was not made part of the evidence before the jury. The Advocate depute objected to the leading of evidence in regard to the further statement.

[3] At this point it is convenient to refer to the rules which were set out by the court in Morrison at pages 312-313:

[4] In developing her argument before the trial judge the Advocate depute did not dispute that what the appellant had said in the course of the interview was a "mixed statement", in the sense in which that expression was used in Morrison, namely a statement "containing material which is capable of being both incriminatory and exculpatory" (page 312). As hearsay, evidence of the statement it fell foul of Rule 1 in Morrison, and, since the Crown objected to the evidence, it did not qualify under Rule 2. Mr. Findlay, who appeared as counsel for the appellant at the trial and before this court, contended that, as a matter of fairness to him, the Crown could not pick and choose the statements which were to be put before the jury. Having led evidence of what the appellant had said at or about the time of the incident, it was unconscionable that they objected to what he said to the police at the first time of asking. They were trying to force the appellant to give evidence. The trial judge considered that the situation was covered by Rule 2 in Morrison and upheld the objection. The defence case was then closed. The appellant was in due course convicted. It may be noted that, according to the transcript of the proceedings, Mr. Findlay also sought to justify the leading of evidence of the statement as being admissible for the purpose of showing consistency, and hence as being in accordance with Rule 3 in Morrison. However, this contention was not pursued and it has played no part in the appeal before us.

[5] In support of the appeal Mr. Findlay submitted that it was wrong that the Crown should have, as he put it, the power of veto in regard to the leading of evidence of such "mixed statements" as they saw fit. It was inconsistent with fairness and the principle of equality of arms that whether the defence could lead evidence of a further "mixed statement" should be at the whim of the Advocate depute. It was artificial for the Crown not to put this evidence before the jury as part of what the accused had said as to his involvement. He pointed out that whether the defence sought to introduce such evidence was a tactical question for them, since they had to take into account the risk that the jury might choose to accept those parts of the statement which were incriminatory of the accused. Mr. Findlay also maintained that the Crown objection, which prevented the account which the appellant had given after the incident from being put before the jury, compromised his right to silence. If he was to put his account before the jury he would have had to go into the witness box to do so. He pointed out that there were cases in which there was a risk that an accused might not do himself justice if he were to give evidence.

[6] On the basis of these submissions Mr. Findlay invited the court to re-formulate Rule 2 in Morrison so as to remove the reference to lack of objection by the Crown, so that evidence as to the contents of a "mixed statement" could be led in evidence by the Crown or by the defence.

[7] In approaching these submissions, it is, in our view, important to bear in mind the reasons for the way in which evidence of the statements of accused persons has been treated.

[8] One of the main reasons why hearsay evidence in a criminal case is in general inadmissible as evidence of the truth of what the witness has heard is "that it is not the best evidence, and is not delivered on oath, for the oath of the narrator cannot attach to the original statement that safeguard against falsehood" (Dickson on Evidence, 3rd Edn., para. 245). Thus, as this applies to evidence of a statement of an accused, "it has never been competent for the defence to avoid the giving of evidence by the accused by leading evidence of the accused having denied his guilt extrajudicially to friends or advisers as proof of his innocence" (Meehan v. H.M. Advocate 1970 J.C. 11 at page 13). There was no attempt in the argument before us to suggest that this long-established rule should be modified or that the reasons underlying it were unsound.

[9] An admission by an accused against his interest has been treated as standing in a different position. Lord Havers observed in R. v. Sharp at page 11:

As Lord Havers pointed out, the exception extended to include any matter which required to be established if the crime alleged was to be proved against the accused. Thus the prosecutor is entitled to found on evidence of an admission by an accused in proof of his guilt, whereas, by reason of the general rule against hearsay, the defence could not found on evidence of a statement by the accused as to his innocence. This again is not in controversy.

[10] We come then to a "mixed statement". Subject to what we say later, this expression has been applied to the whole of what an accused has said on a particular occasion, as distinct from particular words or passages in parts of what he said on that occasion. The courts in England and in Scotland have had to determine the appropriate way to treat the admissibility of what is said by the accused in the course of such a statement when a part of what he has said is capable of incriminating him and another part is capable of exculpating him. We use the words "capable of" advisedly since whether his words do in fact incriminate or exculpate him is a matter for those who are judges of fact. In this type of case the jury are the judges of fact.

[11] It is plain that it was consideration of fairness to the accused, that is to say fairness where the prosecutor was founding on part of the statement, which led the courts to hold that the defence were entitled to found on another part of his statement which was capable of exculpating him. An obvious example would be where an accused admitted that he had killed the victim but added that at the time he was acting in self-defence. In Owens v. H.M. Advocate 1946 JC 119 Lord Justice General Normand said at p. 124:

These remarks referred to evidence given by the accused in his own defence, but have also been applied to the prior statements of an accused (see Morrison at p. 310).

In a number of cases it has been pointed out that the need for treating evidence relating to a "mixed statement" in this way may be reinforced by a consideration of the relationship between its different parts. This in R. v. Sharp Lord Havers at page 15 observed:

A number of points may be noted. First, it is plainly desirable that there should be no doubt as to when the prosecutor is founding on a "mixed statement" so that the defence are entitled to found on part of it in exculpation of the accused. In our view if the Crown leads evidence of such a statement they should be taken as relying on it for the incrimination of the accused. Secondly, what the defence may found upon has in the past been often referred to as a qualification, excuse or explanation of the admission against interest. However, in practice the relationship between the two may not be susceptible of a sophisticated analysis. This is particularly so in the light of the common practice of tape recording police interviews, which are often of considerable length and detail. There was force in the observation of the Lord Advocate that it is difficult to determine the scope of a qualification, excuse or explanation. These considerations indicate that a broad approach should be taken to the question whether a part of the statement is so connected to the admission as to form a qualification, excuse or explanation. Considerations of fairness to the accused are reinforced by the need to provide the jury with comprehensible directions. In R. v. Duncan (1981) 73 Cr. App. R. 359 Lord Lane stated on behalf of the court at page 365:

[12] What then is the position if the defence seek to elicit evidence of a "mixed statement" by the accused? This may arise in the course of the cross-examination of a witness in the Crown case or in the course of the defence case. We do not accept the submission that to deny the defence the opportunity to use such evidence in exculpation of the accused is in some way unfair to him or compromises his right to silence. Mr. Findlay's argument on this point was its own undoing, since there is no logical way of stopping short of the result that evidence of all statements made by the accused, whether "mixed" or wholly exculpatory, would be admissible in his exculpation. Yet this would run counter to the general rule against the admission of hearsay, which Mr. Findlay expressly did not seek to question. Likewise, the submission that there is some unfair inconsistency between evidence of a "mixed statement" being admissible when it is led by the Crown and being inadmissible when it is led by the defence is misconceived. As we have already said, the justification for making part of the first admissible in exculpation is that this is necessary in order to secure fairness where the Crown have led evidence of other parts which are capable of incriminating the accused. The same justification does not apply when the defence seek to introduce a mixed statement. To secure the admission of the statement, the defence would be in the strange position of trying to show that it was in some way incriminatory. If they succeed in doing so, it would be odd indeed to regard the defence as entitled to counteract what they themselves have introduced. The truth of the matter is that the interests of the defence lie in the exculpatory words: those which tend to incriminate the accused pose a risk which they consider to be worth running.

[13] It is, however, important to distinguish the situation, which does not arise in the present case, where the defence seek to lead evidence of a statement of the accused which has a close connection in time, place, and circumstances to a statement which has been led in evidence by the Crown. In such a situation the two statements may be regarded as so interconnected that they require to be treated as parts of a single statement.

[14] The second rule in Morrison plainly envisages that, where the Crown do not object to the leading by the defence of evidence of a "mixed statement" the parts of it which are exculpatory of the accused should be treated in the same way as if evidence of the statement had been led by the Crown. While it may be that there has been an increasing practice of the Crown in conceding such admissibility - from which the Lord Advocate did not appear to be inclined to depart - we consider that it rests on no secure principle. It cannot be justified either on the basis of a fiction that the evidence is being led at the behest of the Crown or on the basis of an assumption that the Crown will seek to rely upon any part which is capable of incriminating the accused. To leave the question of admissibility for later resolution in the light of the Crown's ultimate approach to it would, we consider, be likely to be productive only of uncertainty and doubt which, as we have clearly indicated, it is desirable to avoid. Nor can what is envisaged in the second rule in Morrison be justified on the basis that a waiver by the Crown can confer admissibility on evidence which would not otherwise be admissible. The question of admissibility is a question of law, the answer to which cannot be affected by the inaction of the Crown. Thus, to this extent, we agree with Mr. Findlay that the lack of objection by the Crown should not affect the position. The result of following what Rule 2 says about the effect of the lack of objection by the Crown is illustrated in Khan v. HM. Advocate 1992 J.C. 32. At pages 40-41 the court pointed out that the result of the application of the rule in that case was wholly unsatisfactory. They observed:

It follows that it should be clearly understood that there is no duty on the Crown to lead evidence of a mixed statement, or to refrain from objecting if the defence seek to do so.

[15] In these circumstances we are of the opinion that, where the defence seek to introduce evidence of a statement by the accused, evidence of its terms, if admissible at all, will be admissible for the limited purpose referred to in Rule 3 of Morrison, and that the question of admissibility is unaffected by lack of objection by the Crown. We accordingly disapprove of the words in Rule 2 of Morrison "or where evidence is led by the defence without objection by the Crown".

[16] Having regard to what we have said above we are of the opinion that rule 2 in Morrison is in need of correction insofar as it stated that the admissibility of evidence of a mixed statement was the same where it was led by the defence without objection from the Crown as where it was led by the Crown. It may be convenient for future reference if we re-state the main rules and in so doing take account of the opinion which we have expressed. The main rules which apply are as follows:

(i) It is a general rule that hearsay, that is evidence of what another person has

(ii) Thus evidence of what an accused has been heard to say is, in general, not

(iii) There is, however, an exception where the Crown have led evidence of a

[17] What we have said above should, of course, be understood as subject to all considerations as to the weight which should be attached to evidence of what an accused has said in his own exculpation. As the court observed in Morrison at page 313, it will normally be appropriate for the trial judge to remind the jury that the statement was not made on oath, and was not subject to cross-examination, leaving it to the jury to determine what weight should be attached to the statement in such circumstances.

[18] We should add that if a situation should arise in which the defence lead evidence of a statement which is wholly or partly exculpatory and the Crown do not object, the trial judge will require to direct the jury that evidence of the statement is admissible solely for the purpose indicated in para. (ii) above.

[19] In the present case the appeal turns on whether or not the trial judge was correct in sustaining the objection by the Advocate depute. In the light of our earlier discussion it is plain that he was correct in doing so. This appeal accordingly is refused.