Scottish High Court of Justiciary Decisons

Cochrane v Her Majesty's Advocate [2002] ScotHC 318 (06 November 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Osborne	Appeal No: C930/00 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION by RONALD COCHRANE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant; P. Wheatley, Solicitor Advocate; Gilfedder McInnes

Respondent: Hanretty, QC, AD; Crown Agent

6 November 2002

Introduction

1. On 9 November 2000 the appellant was convicted on indictment at Perth Sheriff Court of two charges of reset and a charge of conspiracy. He appeals against the conviction for conspiracy on two grounds, namely (1) that he enjoyed immunity from prosecution on that charge and (2) that the charge itself did not disclose a crime known to the law of Scotland.

The background

2. In August 1998 Scott Middleton and William Francis Cardno were tried on indictment at Perth Sheriff Court on two charges, one of which was in the following terms:

"(2) on 7 November 1997 at Langside Farmhouse, Langside Road, Braco, Perth and Kinross, you Scott Middleton and William Francis Cardno did disable the telephone line to said house, approach said house then occupied by Irenee Florence Beckett or Sinclair, aged 86 years, instruct her to open the door, pretend to her that you were Police Officers, break into said house, place said Irenee Florence Beckett or Sinclair in a state of fear and alarm for her safety and thereafter rob her of 5 antique chairs, 2 brooches, a pair of earrings, 2 ashtrays, an antique table, an antique chair, a jewellery box, 2 lacquer boxes, a jewel box, a cigarette box, a string of pearls, a necklet, a quantity of wine and whisky, a biscuit tin, an antique coal bunker and a cigarette box."

3. Middleton did not appear for trial. The Crown proceeded with the indictment against Cardno. The appellant was a Crown witness. The Crown case was that the appellant had supplied a van to Middleton and Cardno which they had used in the robbery. In evidence in chief the appellant denied that he had supplied the van. The appellant also gave evidence that soon after the robbery took place his house was searched by the police. The implication of that line of evidence was that the police were searching his house for items taken in the robbery. The appellant was also asked about certain telephone conversations that had taken place between himself and the two accused while they were on remand in Perth prison. He denied having had these telephone conversations, but it is accepted on his behalf that there was evidence that those conversations did take place.
4. It is agreed that when the appellant took the oath he was not warned by the sheriff that he need not answer any question the answer to which would tend to incriminate him. During the appellant's evidence in chief the procurator fiscal did not suggest to him that he had committed any crime and it is agreed that in the course of his evidence the appellant did not admit to having committed any crime.
5. On 23 October 2000 the appellant was prosecuted at Perth Sheriff Court on the indictment to which this appeal relates. Charge 2 of the indictment was in the following terms:

"(2) between 1 November 1997 and 7 November 1997, both dates inclusive, at the house occupied by you at 9 Mayfield Road, Scone you did conspire with William Francis Cardno, 24 Goshen Road, Scone and Scott Middleton, 47 Kincardine Road, Auchterarder, to break into 'Langside Farmhouse', Langside Road, Braco, and in furtherance of said conspiracy you did provide said William Francis Cardno and said Scott Middleton with a motor van and said William Francis Cardno and said Scott Middleton did break into said premises and there rob Irene Florence Becke or Sinclair (sic), then aged 86 years of 6 chairs, 2 brooches, a pair of earrings, 2 ashtrays, a table, 2 jewellery boxes, 2 lacquer boxes, 2 cigarette boxes, a string of pearls, a necklet, a quantity of wine and whisky, a biscuit tin and a coal bunker;".

6. The solicitor who defended the appellant did not take a plea to the relevancy of this charge. He argued a plea in bar of trial to the effect that the appellant had immunity from prosecution on the charge by reason of his having given evidence for the Crown as a socius criminis at the trial of Middleton and Cardno. The sheriff repelled the plea on the basis that the conditions for such a plea laid down by a court of five judges in O'Neill v. Wilson (1983 JC 42) were not met. In particular, the appellant had not been called as a witness at the earlier trial for the purpose of giving evidence that he was an accomplice of Middleton and Cardno in the robbery. He had not been asked questions the answers to which could be expected to incriminate him. In any event, in the opinion of the sheriff, he had not incriminated himself. The sheriff also considered that charge (2) in the indictment against Middleton and Cardno was different in nature from charge (2) in the present case. He rejected an argument that the matter was not to be determined by the actual wording of the charges but rather by the whole facts and circumstances upon which the charge was based. He considered that that argument was ruled out by the decision of the court in O'Neill (supra).

Submissions for the appellant

7. The solicitor advocate for the appellant argued that in reality charge (2) in the indictment against Middleton and Cardno and charge (2) against the appellant were related to the same course of criminal conduct. In giving evidence at the trial of Middleton and Cardno the appellant was in effect giving evidence as a socius criminis. Therefore, having given evidence as a Crown witness in that capacity, he was entitled to immunity from prosecution on a charge that related to the same, or substantially the same, facts and circumstances. The solicitor advocate for the appellant recognised that the same argument had been put forward and rejected in O'Neill v Wilson (supra). He suggested that the rule in O'Neill was unsatisfactory since it operated unfairly against an accused person in the position of the present appellant. He invited us to remit this case to a court of seven judges with a view to having O'Neill reconsidered.
8. The solicitor advocate submitted that in any event the conspiracy charge was irrelevant because it charged no more than a conspiracy to break into the house. The crime of conspiracy is committed when an agreement is formed to do an act that is criminal per se (Gordon, Criminal Law, 3rd ed, I, 6.57 and I, 6.67). Merely to break into a house is not a crime according to the law of Scotland (Macdonald, Criminal Law of Scotland, 5th ed, at p. 24; Gordon, op. cit., II, 15.50; HM Adv. v Forbes, 1994 SCCR 163). Therefore the libel did not disclose a relevant charge.

Submissions for the Crown

9. The advocate depute submitted that O'Neill v Wilson (supra) was correctly decided. The principle in O'Neill restricts immunity to the case where the accused has in an earlier trial given evidence for the Crown expressly as an accomplice in relation to the same crime as that with which he himself is now charged. That principle is in the public interest. It would not be in the public interest to widen the scope of the immunity to the extent contended for on behalf of the appellant.
10. The advocate depute argued that the conspiracy charge was relevant because, when it narrated the acts done by Middleton and Cardno in furtherance of the conspiracy, it could clearly be inferred that those were the acts which the appellant had conspired with them to do. In any event, no plea to the relevancy of the charge had been taken in the court below and therefore the point could not be taken in this appeal (Criminal Procedure (Scotland) Act 1995, s. 118(8)).

Decision

Immunity

11. It is not disputed that the decision in O'Neill v Wilson (supra) is fatal to the submission made on this point on behalf of the appellant. In our view, it will be opportune if we re-state the principles laid down in the opinion of Lord Justice General Emslie in that case. The rule is that a Crown witness is afforded immunity from prosecution only where he gives evidence as an accomplice in the crime charged. In that event his immunity covers only the libel in support of which he has given evidence. That rule is founded on a practical consideration, namely the public interest in the conviction and punishment of offenders. In certain cases unless the evidence of a socius criminis were available to the Crown, all of the perpetrators would escape conviction. Without immunity the evidence of a socius criminis would not be available at all. He would not be bound to answer any questions the answers to which would tend to incriminate him and he would require to receive a warning to that effect (O'Neill v Wilson, supra, Lord Justice General Emslie at p. 49).
12. In our view the rule in O'Neill v Wilson is a sound one. It is based on sound practical considerations and it does not require to be widened in its scope. On the contrary, we consider that it would be against principle and against the public interest if the rule were to be widened as the solicitor advocate for the appellant has proposed.
13. For a witness such as the appellant the protection of immunity was not a necessity. The appellant was not led at the earlier trial in order to confess that he had participated in the crime libelled against Middleton and Cardno, or for that matter in any other crime. Like any witness, other than a socius, the appellant was entitled at any stage of his evidence to decline to answer any question the answer to which might in some way incriminate him (O'Neill, supra, Lord Justice General Emslie at p. 50). In the event, no such question was put to him and he was therefore never in the position where any such warning was required. There is no good reason why he should enjoy immunity in such circumstances. Moreover, since a witness who is a socius should be granted immunity only to the extent necessary to obtain his evidence on the libel to which he speaks, that immunity applies only in respect of any subsequent libel against the socius in the same terms. Since it was never suggested that the appellant had broken into the house, the libel on which the appellant was later tried was materially different.
14. We reject the proposal that O'Neill v Wilson should be reconsidered and accordingly refuse this ground of appeal.

Whether the conspiracy charge discloses a crime

15. In our opinion the conspiracy charge in this case does not disclose a crime. The authorities referred to by the solicitor advocate for the appellant establish that in the law of Scotland it is not a crime to break into a house; but that it is a crime to break into a house with intent to steal (HM Adv v Forbes, supra, at p. 166E; Gordon, op cit., at II, 15.50). The libel in this case alleges that the appellant conspired with Middleton and Cardno to break into the house and that in furtherance of that conspiracy he provided them with a van. It then narrates that Middleton and Cardno broke into the premises and robbed the occupier. We reject the submission for the Crown that that further narration creates a necessary inference that the conspiracy was a conspiracy to break into the house and rob the complainer. If that had been the nature of the conspiracy, that should have been specified in the charge before the charge proceeded to narrate what was done in furtherance of it. The crime of conspiracy is completed upon the formation of the agreement itself (Gordon, op cit, I, 6.57; 6.67). The conspiracy libelled was simply a conspiracy to break into the house. The nature of the conspiracy cannot be widened by the occurrence of subsequent events.
16. We conclude therefore that the charge against the appellant was irrelevant. That, however, is not the end of the matter.

Can the question of relevancy be raised in this appeal

17. Section 118(8) of the 1995 Act provides as follows:

"(8) No conviction, sentence, judgment, order of court or other proceeding whatsoever in or for the purposes of solemn proceedings under this Act -

(a) shall be quashed for want of form; or

(b) where the accused had legal assistance in his defence, shall be

suspended or set aside in respect of any objections to -

(i) the relevancy of the indictment, or the want of specification

therein; or

(ii) the competency or admission or rejection of evidence at the

trial in the inferior court,

unless such objections were timeously stated."

In our opinion, section 118(8) presupposes that, in the absence of a timeous objection, a person can proceed to trial, and to ultimate conviction, on an irrelevant charge.

18. The solicitor advocate for the appellant argued that the point was one of competency rather than of relevancy since the charge was a nullity. In our opinion that argument is unsound. A plea to competency can be taken where the proceedings are fundamentally null; for example, where a crime is libelled that cannot be tried in the court in question, or where the indictment has not been served upon the accused. But where the proceedings have been regularly conducted in all respects and the objection goes to the terms of the libel itself, that is a matter of relevancy which can and should be raised as a preliminary plea (Renton and Brown, Criminal Procedure, 6th ed, paras. 9.02 to 9.04).
19. The result is, in our view, that by reason of the failure of the appellant's solicitor to take a plea to relevancy at the trial, the conviction on this charge cannot be suspended or set aside in these proceedings (1995 Act, s. 118(8)(b)(i)).

Disposal

20. For these reasons we shall refuse the appeal.