Scottish High Court of Justiciary Decisons

Hampson & Ors v. Her Majesty's Advocate [2002] ScotHC 326 (28 November 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Cameron of Lochbroom Lord Marnoch	Appeal Nos: 159/02 XC160/02 161/02 OPINION OF THE LORD JUSTICE GENERAL in NOTES OF APPEAL under section 74 of the Criminal Procedure (Scotland) Act 1995 by STEWART HAMPSON, IAN McMILLAN and JASON FOX Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellants: M. Scott, Q.C.; J. Hughes, Rutherglen: F. McMenamin, Q.C.; Ian McGarry, Glasgow: C. Shead; Roberts & Co., Rutherglen

Respondent: C. MacAulay, Q.C., A.D.; Crown Agent

28 November 2002

1. The appellants have appealed, with leave, against the granting, at a preliminary diet on 16 October 2002 under section 72 of the Criminal Procedure (Scotland) Act 1995, of an application by the Crown to authorise the use of a screen for the taking of the evidence of the complainer in a charge of rape on which they stand accused. Although it is not stated explicitly in the Crown's Minute of Notice, the Advocate depute in this court made it clear that what was sought was authority for the use of a screen whereby the complainer would not be able to see the appellants, whereas they would be able to see her by means of closed circuit television. When the application was granted the case had been set down for a sitting in Glasgow commencing on 7 October 2002. The case is now set down for a sitting in Glasgow commencing on 2 December.
2. According to the Minute of Notice the complainer is 29 years of age. Dr. J.P. McKane, consultant psychiatrist at Leverndale Hospital, with which the complainer has had a long history of contact, stated in a number of letters which were provided to the court that she suffers from a paranoid psychosis with secondary depression and obsessive, compulsive disorder. He described her as a vulnerable, anxious individual. He had serious doubts about her ability to give evidence if she was required to do so from the witness box in the conventional way. She had been briefly admitted to the hospital because of the stress associated with her fear of appearing in the witness box. She was terrified of being exposed to the gaze and view of the appellants. He described her as not well equipped to handle new or unfamiliar situations. The idea of speaking in any public forum would normally reduce her to "a quivering wreck". He noted in a letter dated 29 July 2002 that it was his opinion that he would have serious doubts about her ability to give evidence if a screen was not employed. He added that she might well end up in a state of collapse even if a screen was employed.
3. It is not in dispute that, whereas the complainer suffers from a mental disorder within the terms of section 1(2) of the Mental Health (Scotland) Act 1984, she does not come within any of the categories relating to persons over 16 years of age to which subsection (12)(b) of section 271 of the 1995 Act, as amended, applies. In particular she is not the subject of an order of the type referred to in sub-paragraph (i) of that paragraph. The application which was presented by the Crown was at common law. It was opposed by the appellants solely on the ground that it was incompetent.
4. The two lines of argument which were presented at first instance and in this court were that, first, the court never had the power at common law to grant such an application; and, secondly, that, even if the court had had such a power, it had been excluded by the enactment of section 271. The present form of that section was enacted by section 29 of the Crime and Punishment (Scotland) Act 1997. This provision extended the categories of person to which the section applied from children to certain persons over the age of 16 years, in terms of paragraph (b) of subsection (12).
5. Ms. Scott, who appeared for the appellant Hampson, and whose submissions were adopted by counsel for the other appellants, submitted that if a judge was entitled to authorise the use of a screen for the taking of the evidence of a witness, section 271 would be otiose. She drew the attention of the court to a report by the Scottish Law Commission in 1990 on the evidence of children and other vulnerable witnesses. There was nothing in that report or in the discussion in the House of Commons during the passage of the Crime and Punishment (Scotland) Bill 1997 to suggest that there was a power in the court at common law to authorise measures for the protection of witnesses. While the report of the Scottish Law Commission stated that there had been some practice of authorising the use of screens, there was no suggestion that this had been adopted in a case where this was opposed. It would be prejudicial to the accused, in respect that it was important that the accused should be able to see the witness and hear his or her evidence. She contrasted the position in Scotland with that in England where there were more extensive statutory provisions which would have covered the complainer in the present case. Miss McMenamin, on behalf of the appellant Fox, emphasised that the use of a screen might compromise the right of the accused to a fair trial, since the witness might not give truthful evidence if he or she were not facing the accused. In reply, the Advocate depute submitted that the position was simply that section 271 and its predecessors had decided to make particular provision for particular persons. There was nothing to take away from the common law power of the court to authorise the case of a screen where that was appropriate.
6. In normal circumstances a witness gives evidence in public from the witness box, makes known his or her identity, sees and is seen by the accused, is subject to cross-examination by or on behalf of the accused, and has no assistance in the expression of his or her evidence.
7. However, it is well recognised that there are witnesses who would be placed at an unfair disadvantage by the normal procedure, and on that account are regarded as vulnerable and in need of special measures to protect them. Such witnesses may normally be found within one or more of the following groups of person, namely, first, children; secondly, persons whose ability to hear, see or communicate is impaired, or who have a problem with their health, whether physical or mental; and, thirdly, persons who are vulnerable to attack, or fear of attack, or intimidation arising out of their giving evidence. We have said "within" such a group or groups, since whether an individual witness should be given such protection depends on, inter alia, the degree of his or her vulnerability.
8. Thus, without the need for statutory authority, a court in Scotland may authorise exceptions from the normal procedure. A few examples may suffice. When a young child gives evidence in court, he or she will normally be allowed to sit in the well of the court beside solicitors or counsel, who are without wigs and gowns. The court may allow a relative to sit beside the child. Guidance on these matters was provided by the memorandum of the Lord Justice General on child witnesses dated 26 July 1990. Where the witness is fluent only in a foreign language or is deaf and dumb, an interpreter will be authorised to express his or her evidence. There may be circumstances in which, however exceptionally, a witness may be entitled to give evidence anonymously and behind screens for reasons related to his safety (Smith v. H.M. Advocate 2000 S.C.C.R. 910).
9. These examples illustrate the common law power of the court to regulate its proceedings and in particular as to the manner in which witnesses may give their evidence. It is plain that the court has the power, and indeed the duty, to do so when this is necessary in order to meet the requirements of justice in the particular case. The parties in the present appeals indicated that they did not intend to present submissions in regard to the implications of the European Convention on Human Rights, and in particular Articles 3 and 8. However, it is clear that the provisions of those articles underline the need to respect the rights of witnesses to fair treatment.
10. It should not be assumed that the court will lightly alter the normal procedure in regard to the taking of the evidence of a witness. There requires to be sufficient to warrant this exceptional course. A departure from the normal procedure for the taking of evidence may involve some disadvantage to the accused. In doing justice between the parties, the court is required to strike a balance between, on the one hand, the rights of the accused, including the right to a fair trial, and, on the other, the rights of the witness.
11. It is of some interest to refer on that point to the judgment of the Court of Appeal in R v. X. Y and Z (1989) 91 Cr. App. R. 36, which was concerned with an application for the use of screens to obscure child witnesses from seeing or being seen from the dock, which was prior to the introduction of a statutory provision in England for this purpose. Lord Lane L.C.J. stated at page 40:

"The judge had the duty on this and all other occasions of endeavouring to see that justice was done. Those were high sounding words. They meant that he had to see that the system operated fairly not only to the defendant but also to the prosecution and also to the witnesses. Sometimes he had to make a decision as to where the balance of fairness lay.

He had to come to the conclusion in the circumstances that the necessity of trying to ensure that the children would be able to give evidence outweighed any possible prejudice to the defendants by the erection of the screen".

12. It is, of course, the case that legislation has introduced innovations by providing the court with the statutory power to authorise special measures for the protection of certain categories of witnesses, currently set out in subsection (12) of section 271 of the 1995 Act. It is to be noted that section 271 appears, prima facie, to go beyond the scope of what the court could have authorised on the strength of its common law power, by enabling it to authorise the taking of the evidence of a witness on commission or by means of a live television link from outside the courtroom. In the case of sexual offences, statutory provision has been made for the exclusion of members of the public (section 92(3) of the 1995 Act), and for restricting the scope for the questioning of complainers (sections 274 of the 1995 Act and the Sexual Offences (Procedure of Evidence)(Scotland) Act 2002).
13. We are satisfied that, prior to the coming into force of the legislation which led up to section 271 in its present form, it was competent for a court in Scotland, in an appropriate case, to authorise the use of a screen for the taking of the evidence of a particular witness, so that the witness did not see the accused, but means were provided by which the accused could see the witness. Such a departure from the normal procedure would require to be justified by reference to, inter alia, the vulnerability of the witness. As is narrated in the report of the Scottish Law Commission to which we have referred, such measures were authorised on a number of occasions in the 1980s, and it is possible that it was only then, with the introduction of new technology, that it became possible to provide arrangements by which the accused could see the witness by means of an arrangement for a one-way screen or by closed circuit television. Such an arrangement did not, we consider, affect the rights of the accused to any significant extent. No doubt the use of a screen would call for the judge to give the jury appropriate directions that no inference adverse to the accused should be drawn from the taking of such a measure, if in the circumstances he considered that such a course was advisable.
14. The question then is whether the legislation has excluded the power of the court to authorise this. It does not follow, in our view, from the fact that section 271 authorises the use of a screen, subject to the matters which require to be taken into account in accordance with subsections (7) and (8), in respect of persons who fall within certain categories, that the section should be taken as depriving the court of the power to consider whether in the case of any person who does not fall into any of these categories, the use of a screen should be authorised.
15. It is important to note that the effect of a person falling into one of the categories set out in subsection (12) of section 271 is that he or she qualifies for consideration in terms of the section. That is to say, it is unnecessary for anything further to be done in order to show that he or she is entitled to such consideration. It is understandable that at the time when the Crime and Punishment (Scotland) Bill 1997 was being considered in Parliament, the view was taken that to include any person suffering from mental illness would open too wide a door since such a person might not necessarily be in need of special measures. However, it does not follow that the court cannot take congnizance of the fact that a particular person who is suffering from mental illness and is not the subject of an order of the type referred to in sub-paragraph (i) of paragraph (b) of section 271(12), may be in need of a measure for his or her protection when giving evidence. If there is such a person, it is only a court which can identify him or her and decide whether, and if so what, measures should be authorised for his or her protection. For this reason, and also for the reason that section 271 provides measures which may well go beyond what a court could authorise at common law, we reject the submission that the recognition of a continuing common law power in the court would render section 271 otiose.
16. Having regard to the foregoing we are satisfied that the application made by the Crown was competent. Given the competency of the application, no question arises as to whether the court should have exercised its discretion in the way in which it did. We shall accordingly refuse the appeals.