Scottish High Court of Justiciary Decisons

WILLIAM M. McPHEE v. HER MAJESTY'S ADVOCATE [2001] ScotHC 43 (13th June, 2001)

[1] The appellant is William McAllister McPhee who went to trial with three co-accused at the Sheriff Court at Glasgow on an indictment containing various charges of reset, fraud and attempted fraud. After a trial lasting six weeks the jury convicted him of a charge of reset, a charge of attempted fraud and 15 charges of fraud. The fraud charges involved a total sum of £78,150. He was remitted to the High Court for sentence and in due course was sentenced to four years' imprisonment. He appealed against his conviction and sentence. At the outset of the appeal Mr. Targowski, Q.C., who appeared for the appellant, indicated that he was abandoning the appeal against sentence. It follows that we are not concerned with matters of sentence, unless the appeal against conviction is successful.

[2] Among the charges of fraud of which the appellant was found guilty was Charge 16 in which the Crown alleged that he had obtained £20,100 by fraud from the complainer, Mary Hood, who was aged 91. Although the appellant advanced a number of grounds of appeal in his Note of Appeal, he was given leave to appeal on two only and, at the hearing of the appeal, Mr. Targowski explained that he intended to argue only ground 3(b), which relates to Charge 16. We are therefore concerned only with the appellant's conviction on that charge.

[3] The charges on the indictment, including Charge 16, fell broadly into the category of "bogus workman" offences. Charge 16 concerned roof repairs. The charges required a considerable amount of preparation on the part of the Crown. Those in the procurator fiscal's office who were responsible for preparing for the trial realised that the complainer on Charge 16 would not be fit to give evidence in court. They therefore decided to make use of the exception to the rule that hearsay evidence is inadmissible in criminal trials. The exception is to be found in Section 259 of the Criminal Procedure (Scotland) Act 1995 which provides inter alia:

It should be noted that, although in the present case it was the Crown who wished to lead the hearsay evidence, the section applies to any party to criminal proceedings. So, for instance, the notice procedure applies just as much to the accused as to the Crown, where the accused wishes to avail himself of the section. That is a factor which requires to be borne in mind when interpreting the provisions.

[4] Section 262(1) defines a "statement" for the purpose of Section 259 as including

Similarly, under Section 262(2), for the purposes of Section 259, a statement is contained in a document where the person who makes it -

[5] The first diet was on 18 October and devolution issue minutes were lodged on behalf of the accused. These were debated on 28 October and the Sheriff continued the hearing until 1 November when he dismissed the minutes and refused leave to appeal.

[6] On that date also the Crown served a notice, in terms of Section 259(5) of the 1995 Act, indicating in the first paragraph that the procurator fiscal intended to apply to the court to have evidence of a statement by the complainer in Charge 16 admitted in evidence under Section 259 and that

One of the copy statements attached to the notice was a copy of Crown production 499, a statement which the complainer had given to Detective Constable Richmond on 29 July 1999. This statement concerned work to the driveway at the complainer's house and had nothing to do with work on the roof, which was the subject-matter of Charge 16, the only charge on the indictment involving this particular complainer. In short, the Crown attached the wrong statement to the Section 259(5) notice. The notice itself is actually somewhat carelessly drafted since the first paragraph refers to three statements, while the second paragraph, as produced by the word processor, referred to "the statement" in the singular and a letter "s" had been added in ink in the two places where we have placed it in square brackets. The resulting text is syntactically incoherent.

[7] The trial eventually began on 10 January 2000 and on 14 January, the fifth day of the trial, the procurator fiscal depute was leading the evidence of Detective Constable Lamb. She asked him to look at Crown production 494, the statement by the complainer to D. C. Lamb, which was mentioned in, and a copy of which was also attached to, the Section 259(5) notice. Mr. Hammond, who represented the appellant at the trial, objected to the question. It appears that a debate followed as to whether the Crown had established circumstances justifying the admission of hearsay evidence of the complainer's statement. The Sheriff ruled in favour of the Crown.

[8] In his report to this court the learned Sheriff indicates that, during the debate on this objection, the parties became aware that the complainer's statement to D.C. Richmond in Crown production 499 did not relate to the roof repairs which form the subject-matter of Charge 16. In the part of his report dealing with that objection, the Sheriff appears to suggest that, at that stage also, the parties became aware that there was indeed another statement, dealing with the roof repairs, which the complainer had given to D.C. Richmond. On the other hand, Mr. Targowski told us that the recollection of his junior, Mr. Hammond, was that he had not learned of the existence of this other statement until D.C. Richmond was giving evidence on 26 January, the thirteenth day of the trial. In any event, as the minutes indicate, during the evidence of D.C. Richmond the procurator fiscal depute moved the court in terms of Section 259 to allow the hearsay evidence of the complainer to be led in respect of this other statement, dealing with the roof repairs, which had not been attached to the notice. Counsel for the appellant objected, but the Sheriff repelled the objection. He accordingly allowed the hearsay evidence to be led and the second (correct) statement to be lodged as an additional Crown production 505, "all in terms of Section 259(9)". We pause to observe that, contrary to what the Sheriff thought, subsection (9) does not appear to apply in this particular situation. It is unnecessary to decide that point, however, since Mr. Targowski's crucial and wider submission was that the Sheriff had erred in allowing the hearsay evidence of the complainer's second statement to be led. The Advocate Depute accepted that, if that was so, there was insufficient evidence to support a conviction on Charge 16 and the appellant's conviction on that charge would have to be quashed.

[9] We begin by identifying the nature of the evidence which the Crown were allowed to lead. It was evidence of a representation of fact made by the complainer and, as such, it was a "statement" in terms of Section 262(1). Furthermore, it was a statement which the complainer had made and which had been embodied in a document in writing by D.C. Richmond. Presumably, this had been done with the complainer's knowledge, even though she had not actually signed the statement. Obviously, D.C. Richmond, who had taken the statement, had personal knowledge of the making of the statement. The statement was, accordingly, a "statement ... contained in a document" in terms of subsection (2) of Section 262. By repelling the defence objections, the Sheriff accordingly allowed the procurator fiscal depute, in terms of Section 259(1), to lead the evidence of D.C. Richmond as to the terms of the statement which the complainer had made to him about the roofing works and which he had embodied in the document that became Crown production 505.

[10] In the Sheriff Court the Crown admitted that, in the course of the extensive preparations for the trial, an administrative mistake had been made: a statement by the complainer to D.C. Richmond about work on the complainer's driveway (Crown production 499) had been attached to the Section 259(5) notice instead of her statement to the same officer about work on her roof (the statement which became Crown production 505). It appears that the defence accepted that this was what had happened and that the mistake had been made in good faith. The procurator fiscal depute also pointed out that the terms of the notice had informed the defence of the complainer's condition. In these circumstances the procurator fiscal depute submitted that the Sheriff should be satisfied, in terms of Section 259(6)(b), that there was a good reason for the Crown not giving notice in terms of subsection (5) and that he should allow the evidence to be led without notice. On the other hand, defence counsel submitted to the Sheriff that he should be slow to excuse an error by the Crown and that, since the defence did not know what was in the new statement, they would be prejudiced if the Crown were allowed to lead the evidence.

[11] According to his report, the Sheriff took the view that "a reading of Section 259(5) and 259(9) together permitted the leading of witnesses or productions not formally intimated and not included in any list lodged, for the purpose of leading a hearsay statement or with the leave of the court as additional evidence." He went on to say that he was satisfied that the circumstances in the present case

[12] In the hearing before us Mr. Targowski accepted that, by allowing an adjournment for the defence to study Crown production 505, the Sheriff had ensured that they were not in fact prejudiced. His submission was therefore one of pure competency: even though the defence had not been prejudiced, the Sheriff had erred in holding that there had been "good reason" in terms of Section 259(6) and had, accordingly, erred in allowing the evidence to be led without notice. In order to deal with that submission we require to look at how the section as a whole is intended to operate.

[13] What is now Section 259 was originally enacted as Section 17 of the Criminal Justice (Scotland) Act 1995 and owed its origin, though not its precise form, to recommendations in Chapter 6 of the Scottish Law Commission Report (No. 149) Evidence: Report on Hearsay Evidence in Criminal Proceedings (1995). The Commission recommended that, while the rule against the admission of hearsay evidence should be retained in criminal cases, a number of exceptions should be introduced. The mechanism by which that was achieved is found in Section 259. The key provision is subsection (1), which provides that, "subject to the following provisions of this section", hearsay evidence "shall be admissible" where the judge is satisfied of certain matters set out in paragraphs (a) - (d). It is important to notice that the judge is not given any kind of discretion in the matter. Where he is satisfied of one of the matters in the relevant paragraphs and the requirements of the section are met, the evidence is admissible.

[14] The Commission considered, however, that, if a party wished to adduce hearsay evidence in this way, he should be required to apply to the court for leave to do so. They also considered that, where the ground of application was that the maker of the statement was physically unable to give evidence in person - because he was dead, ill or abroad or could not be found - the application should be made before the trial diet, wherever possible. This was because, if the application were simply made during the trial and it was disputed, this could result in the trial being adjourned, which would be inconvenient, especially in the case of a jury trial. The Commission also thought that the other side should be given sufficient notice to allow them to consider whether there were any lawful objections to the admission of the evidence. This might involve making inquiries as to whether the alleged obstacle to the giving of oral evidence actually existed. If the evidence was to be admitted, the other side should also have time to investigate the truth of the contents of the statement and the credibility and reliability of the maker of the statement.

[15] These are all substantial reasons why, in the interests both of justice and of the efficient running of criminal trials, any party who wishes to introduce hearsay evidence under this procedure should, wherever possible, give notice before the trial diet. Under the Commission's original recommendations, in the case of a sheriff and jury trial, the party would have required to give notice before the first diet, but Parliament departed from that particular requirement, presumably on the view that the circumstances justifying the leading of hearsay evidence would frequently not arise, or at least would not be finally ascertained, until shortly before the trial diet. So the requirement in subsection (5) is that notice should be given before the trial diet. That gives the maximum amount of flexibility, while still allowing the parties to make all the necessary investigations before the trial begins. In an appropriate case this may, of course, mean that the trial diet has to be postponed or not called while those investigations take place. In other cases, it may be appropriate to adjourn or not to call the diet in order to see whether the witness will recover or return from abroad. But, for all these reasons, the requirement that notice should indeed be given before the trial diet remains important.

[16] Of course, that requirement could not be made absolute. In particular, paragraphs (d) and (e) of Section 259(2) envisage hearsay evidence being introduced in circumstances which could not be known before the trial since they would emerge only in the course of the trial. In accordance with paragraph 6.8 of the Law Commission report, Section 259(6)(a) therefore provides that notice is not required in such cases. It is equally apparent that there may be cases where, for example, a potential witness dies or falls ill or disappears during the trial. Again, in this second category of cases it would not be possible to give notice of the contingency or of the intention to lead hearsay evidence before the trial diet. Where one of these events happened, the Commission envisaged that an application to lead hearsay evidence could be made and granted even though no notice had been given before the trial. They added (paragraph 6.8):

This passage underlines the significance of the past tense which Parliament has used in paragraph (b) of subsection (6): the applicant must satisfy the judge that there was good reason for not giving notice before the trial diet. As Mr. Targowski pointed out, the judge must be satisfied that, at the point before the trial diet when the party might be expected to give any notice of an intention to lead hearsay evidence, there was good reason for his not giving such notice of this particular evidence. This is quite different from the kind of provision which is found, for instance, in Section 65(3) of the 1995 Act, allowing a judge to extend the twelve-month time-limit in Section 65(1) "on cause shown". In a provision of that kind, the Crown has to show cause why the judge should extend the time-limit. The cause is one which relates to the extension of the time-limit by the judge and it may involve circumstances prevailing at the particular time when the motion is made. By contrast, in Section 259(6)(b) the judge is not required to consider whether there is a good reason for allowing the evidence to be led. That would be inconsistent with the scheme of the section which, as we have already noted, does not involve an exercise of discretion and makes evidence admissible provided that the conditions laid down in the section are fulfilled. Rather, the focus in the paragraph is on the pre-trial period and the judge simply has to decide whether there was a good reason why the party did not give the notice that would normally require to be given in accordance with subsection (5). In other words, the good reason relates back to the pre-trial stage. The trial judge's only function is to decide whether or not there was a good reason for not giving the notice at that stage. If he decides that there was good reason of that kind and is satisfied as to the other matters in subsection (1), then the evidence is admissible under Section 259(1).

[17] Here the Sheriff pointed out that the error of the Crown in appending the wrong statement to the notice arose in the course of preparing what he described as "a huge case" for trial. The Crown had intended to give proper notice and had failed to do so only because of this error. He therefore decided that, provided that he gave the accused's representatives an opportunity to familiarise themselves with the correct statement, no prejudice to them would arise. In our view, in approaching the matter in this way the Sheriff applied the wrong test. Under the statute the only question for him was whether there had been "good reason" for the Crown not to give notice before the trial diet in accordance with the requirement imposed by subsection (5). The plain answer is that there was no good reason - as is indeed shown by the fact that, before the trial diet, the Crown realised that they would have to give notice if they intended to lead this evidence. The only reason why they did not in fact give the requisite notice was that they made a mistake. The reason for that mistake was, however, wholly unexplained. Even supposing, therefore, that certain "mistakes" could constitute a "good reason" for not complying with a statutory requirement of this kind, this was clearly not one of them. Since the only question which the Sheriff had to determine was whether there had been good reason for not giving the notice, the issue of prejudice to the accused was irrelevant. That issue might have been relevant, of course, if the Sheriff had been required to consider whether or not he should exercise a statutory power to admit evidence, on cause shown, despite a failure to give the proper notice. But, as we have stressed, not only does subsection (6)(b) contain no such power but a power of that kind would be inconsistent with the scheme of the section. We are accordingly satisfied that the Sheriff erred and that the Crown advanced no good reason for not having given the notice required by Section 259(5) in respect of the complainer's statement to D.C. Richmond about roof repairs.

[18] In these circumstances, the Crown failed to bring themselves within either of the situations in subsection (6) where they were not required to give notice in terms of subsection (5). Hearsay evidence remains inadmissible in criminal proceedings except in so far as it is rendered admissible by the exception to the common law rule created by Section 259(1). In terms of subsection (1) hearsay evidence is to be admissible only "subject to" the other provisions of Section 259, which include, of course, subsection (5). Since the Crown failed to show that either branch of subsection (6) applied to the complainer's statement, the admissibility of the evidence relating to that statement was "subject to" the requirement in subsection (5) that the Crown should have given notice of the intention to apply to lead this evidence before the trial diet. Since the Crown had failed to give that notice, the conditions for the evidence being admissible under subsection (1) were not fulfilled and the evidence was, accordingly, not admissible in terms of the subsection. It was therefore not admissible at all, according to our law. Counsel for the appellant objected timeously to the evidence being admitted. In those circumstances, the Sheriff ought not to have allowed the evidence of the complainer's statement about the roof repairs to be led. Since the Crown accept that, without this evidence, there was insufficient evidence to warrant the conviction of the appellant on Charge 16, there has been a miscarriage of justice in respect of the appellant's conviction on that charge. We shall accordingly allow the appeal and quash the appellant's conviction on Charge 16. Having done so, we shall consider any submissions which counsel may wish to advance in respect of sentence.