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Cite as: [2004] ScotHC 15

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Platt v. Her Majesty's Advocate [2004] ScotHC 15 (25 February 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Hamilton

Lord Caplan

Appeal No: XC287/02

OPINION OF THE COURT

delivered by LORD JUSTICE GENERAL

APPEAL

GORDON PLATT

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Jackson, Q.C., Forbes; Balfour & Manson

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

25 February 2004

[1] On 31 October 2002 the appellant was convicted after trial in the Sheriff Court of two charges of offences against the Misuse of Drugs Act 1971. The first was a charge of contravening section 5(3) by possessing heroin with intent to supply it to another or others. This arose out of the finding on the appellant's person of a quantity of powder containing heroin when he was detained at a police station. The second was a charge of contravening section 4(3)(b) in being concerned in the supplying of heroin to another or others.

[2] In support of proof of these charges the Crown founded on what was said by the appellant when he was interviewed by police officers. When the prosecutor sought to lead evidence from a police officer as to what the appellant had said, the appellant's solicitor objected on the ground that the appellant had been unfit to be interviewed. In order to deal with the objection the sheriff heard evidence in a trial within a trial as to the circumstances in which the interview took place. The prosecutor led the evidence of the police officers who had been present at the interview and a doctor who had examined the appellant. The appellant and a defence expert also gave evidence. Thereafter the sheriff repelled the objection and evidence about the interview was heard by the jury.

[3] The sole ground of appeal against conviction arises from the fact that in repelling the objection the sheriff stated that he decided, on the balance of probabilities, that the statement made by the appellant at the police station had been fairly obtained. It is maintained in the ground of appeal that the standard of proof which he ought to have applied was proof beyond reasonable doubt.

[4] For the appellant Mr. Jackson submitted that the initial question for this court was whether the sheriff was right in applying the standard of proof on the balance of probabilities. If he was not, the next question was whether the difference between the application of the one standard rather than the other had mattered, in effect whether there had been a miscarriage of justice. The discussion which was heard by the court was confined to the initial question, with which this opinion is solely concerned.

[5] Mr. Jackson submitted that in a trial within a trial the sheriff had to determine matters of fact and to apply his judgment to those facts in order to determine whether the statement had or had not been fairly obtained. The Crown case that evidence about the statement was admissible should be subject to the same standard of proof as its case that the accused was guilty. He emphasised that proof of the guilt of the accused frequently turned on whether the evidence as to his alleged confession was led before and accepted by the jury. Although there had to be corroboration, an alleged confession was often decisive. In reality the decision that such evidence was admissible was the single most important decision in the case. It was better to have one rule as to the standard of proof which was required of the Crown. If the standard which the Crown required to satisfy was merely the balance of probabilities, that would represent a very serious watering down of the protection of an accused.

[6] Mr, Jackson referred, in support of his submissions, to a passage in the opinion of the trial judge in H.M. Advocate v. Jenkinson 2002 S.C.C.R. 43 at page 46 where he agreed that the standard of proof in regard to whether evidence of a statement by the deceased had been fairly obtained, even where there was no dispute on the facts, was beyond reasonable doubt. Mr. Jackson also drew attention to the remarks of the Lord Justice General (Rodger) in Thompson v. Crowe 1999 SCCR 1003. At pages 1033-1034 he noted that counsel for the appellant had conceded that the appropriate standard of proof in deciding the issue of admissibility would be proof on a balance of probabilities. He added:

"I incline to the view that the concession was sound. In saying this, I am conscious that in England under section 76(2) of the Police and Criminal Evidence Act 1984, the Crown has to prove the necessary facts beyond a reasonable doubt. This reflects the position under the pre-existing common law. On the other hand, in Wendo v. The Queen [(1964) 109 C.L.R. 559] at pages 572-573 Sir Owen Dixon C.J., giving the judgment of the High Court of Australia, held that the appropriate standard of proof of the facts relating to the admissibility of a statement was the balance of probabilities. I have found no discussion of the point in any of the Scottish authorities to which we were referred; there is nothing in the cases, however, to suggest that, where trial judges used to decide whether a statement was admissible, they were conscious of applying a particularly high standard in determining whether the Crown had established the necessary factual basis. More positively perhaps, Parliament's approach to a not dissimilar point can be gauged from section 259 of the 1995 Act, which deals with the admission of other types of hearsay evidence. Subsection (8) provides that, where the trial judge has to be satisfied of any matter relating to the admissibility of that evidence, the judge is to determine the matter on the balance of probabilities. More generally, there is no requirement in our law that the Crown should prove every fact in a case beyond a reasonable doubt. The requirement is, rather, that, on the admissible evidence as a whole, the Crown should prove the accused's guilt beyond a reasonable doubt. It is not inconsistent with that approach for a judge to determine the factual basis for admissibility on the balance of probabilities".

[7] Mr. Jackson pointed out that these remarks were obiter, and that no other member of the court had expressed a separate opinion on the point. He was also critical of what the Lord Justice General had said. It was important, he submitted, to bear in mind that the fact of the admissibility of evidence of an incriminating statement was not an incidental matter, such as the type of evidence with which section 259 of the 1995 Act was concerned. He also pointed out that the observations in Wendo v. The Queen were concerned with a comparison with the standard of proof which was required in regard to the admissibility of types of evidence which were incidental in character.

[8] In our opinion the submissions of Mr. Jackson in support of the ground of appeal were not well-founded.

[9] First, there is no doubt that the process by which a judge arrives at a decision in regard to the admissibility of evidence of an accused's statement is separate from the proceedings before the jury. When a question arises as to whether such evidence was fairly obtained, the judge has to resolve what Lord Justice General Rodger referred to in Thompson v. Crowe at page 1021 as "the intertwined factual and legal questions relating to admissibility". The resolution of those questions is the means by which the judge decides whether the evidence may be led before the jury. If he decides that the evidence may be led, he does not direct the jury that they are bound to hold that the evidence was fairly obtained. The jury can decide for themselves, on the basis of the whole evidence before them and in the light of considerations of fairness, what weight, if any, they give to that evidence. (Chalmers v. H.M. Advocate 1954 J.C. 66, per Lord Justice General Cooper at pages 80-81 and Lord Justice Clerk Thomson at pages 82-83).

[10] Secondly, we are not persuaded that by reason of some form of analogy, the standard of proof which has to be applied by the jury should also be applied by the judge in determining whether evidence of an accused's statement has been fairly obtained. In view of the presumption of innocence it is understandable that the Crown has the persuasive burden of proving beyond reasonable doubt that the accused is guilty. However, that standard does not apply to proof of the individual constituents of the Crown's case (see, e.g. Martin v. H.M. Advocate 1993 S.C.C.R. 803 at page 809). It is true that, if a question arises as to whether evidence of a statement by an accused was fairly obtained, it is for the Crown to satisfy the judge that this was the case. However, the Crown do not require to overcome a presumption that the statement was unfairly obtained. Where there is an issue in regard to the question of fairness, it is, as in other questions of the admissibility of evidence, for the judge to decide the relative strength of the cases for and against admissibility and, in our view, he should do so on the balance of probabilities.

[11] We appreciate the force of Mr. Jackson's observations that there are a significant number of cases in which evidence of an incriminating statement by an accused forms an important, if not a critical, part of the Crown's case. However, that does not demonstrate that as a generality the judge should apply the standard of proof beyond reasonable doubt. We do not consider that it is helpful to have regard to the terms of section 76(2) of the Police and Criminal Evidence Act 1984, since that provision was enacted against the background of the rules of evidence which apply in England and Wales. We note that a similar view to that which we have reached of the law of Scotland was reached in Australia (Wendo v. The Queen, per Dixon C.J. at paras. 1-2, and per Taylor and Owen J.J. at para. 14). In H.M. Advocate v. Jenkinson the trial judge appears (at page 52A) to have thought that in Manuel v. H.M. Advocate 1959 SLT 23 Lord Cameron had applied to the issue of admissibility of evidence the standard of proof beyond reasonable doubt. However, as Mr. Jackson acknowledged, it does not appear that Lord Cameron did identify or apply the higher standard of proof in regard to admissibility. No Scottish case or textbook authority was cited to use in support of such applications.

[12] In these circumstances the question whether the standard of proof applied by the sheriff made a practical difference does not arise. The appeal against conviction is accordingly refused.