Scottish High Court of Justiciary Decisons

"on 20 September 2000 at the Sheriff Court of Glasgow and Strathkelvin, Carlton Place, Glasgow having been sworn as a witness in the Fatal Accident Inquiry into the death of James Fraser and Daniel Heron then proceeding at said Sheriff Court you did depone that on 28 February 1999 there was a smoke alarm in working order in the hallway area of the basement flat (left) at 6 Melrose Street, Glasgow the truth being that there was no such alarm in said hallway at said address on said date."

"1. That the evidence given by the appellant at said FAI was incompetent. The appellant, who was not legally represented, received no warning at the outset of said FAI or at any other time that he could decline to answer on the ground that said answer could be self-incriminatory. Such a warning was required in terms of section 5(2) of the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976. In relation to the appellant's evidence in respect of said smoke alarms no warning was given to the appellant at any stage that he could decline to answer the questions by the Crown and sheriff. The evidence given by the appellant at said FAI was incriminatory and resulted in subsequent proceedings against the appellant. The appellant was thereby prejudiced by the failure to administer said warning. The failure to administer said warning rendered the appellant's evidence at said FAI incompetent. Accordingly this evidence, led by the Crown at the subsequent trial diet, could not in law found a charge of perjury. The learned sheriff erred in law in not dismissing said charge. Accordingly a miscarriage of justice has occurred.

2. That the learned sheriff erred in repelling an objection to the leading of the whole of a transcript of the proceedings at the FAI, production 18. Said transcript included reference to a smoke detector in the kitchen, its position, whether it was dismantled and whether it included a battery and the appellant's evidence in respect thereof. The evidence in respect of the kitchen smoke detector was irrelevant to the issue at the trial namely whether the statement made by the appellant at the FAI was false in respect of the smoke alarm in the hall. Said evidence was also prejudicial to the appellant. In repelling said objection the learned sheriff placed the character of the appellant in jeopardy. The learned sheriff further directed the jury at page 23 lines 16 to 22 that they could take account of said evidence in determining said charge. Said direction was erroneous, said evidence being irrelevant to said determination.

3. That a custodial sentence was inappropriate and excessive having regard to:

(a) The nature of the offence. The administration of justice was not

(b) The personal circumstances of the appellant. The appellant was a

(c) The terms of the social enquiry report. This highlighted the appellant's

"1. That the appellant has been denied a fair trial and there has been a miscarriage of justice following upon the failure of counsel for the appellant to represent him adequately at said trial. The appellant, who was not legally represented at the FAI, received no warning at the outset of said FAI or at any other time that he could decline to answer on the ground that said answer could be self-incriminatory in respect of any crime or offence. Such a warning was necessary prior to the appellant answering any questions concerning his premises and such a warning was required in terms of section 5(2) of the Fatal Accidents and Sudden Death Inquiries (Scotland) Act 1976. In relation to the appellant's evidence in respect of said smoke alarms no warning was given to the appellant at any stage that he could decline to answer the questions by the Crown and sheriff. The evidence given by the appellant at said FAI was incriminatory and resulted in subsequent proceedings against the appellant. The appellant was thereby prejudiced by the failure to administer said warning. The failure to administer said warning rendered the appellant's evidence at said FAI incompetent. The appellant's evidence at the FAI, led by the Crown at the subsequent trial, was inadmissible. No timeous objection was taken by the appellant's counsel to the admissibility of this evidence. Had a timeous objection been taken said evidence would have been excluded. The appellant's defence was accordingly not properly presented to the court."

" ... It appears that the point behind this first ground of appeal is that Sheriff McFarlane failed to warn the appellant in terms of section 5(2) of the Fatal Accidents and Sudden Death Inquiries (Scotland) Act 1976 and that, in consequence of that, the appellant gave self-incriminatory evidence at the Fatal Accident Inquiry without the opportunity being given to him of declining to answer questions. It is said that the evidence given by him at the Fatal Accident Inquiry was thus incompetent in consequence of Sheriff McFarlane's failure to administer a warning against self-incrimination. This incompetence is translated, it is said, to the criminal proceedings and the ground of appeal concludes by claiming that I erred in law in not dismissing the charge of perjury and thus permitted the occurrence of a miscarriage of justice.

The principal point which I have to make most strongly in the particular circumstances here is that this ground of appeal relates to a matter which was not brought before me at any stage of this case, either as a preliminary plea or as an objection to the leading of the evidence of what was said at the Fatal Accident Inquiry. The appellant had the benefit of senior counsel, objections were frequent and repeated and nowhere within my notes or the sheriff clerk's history of proceedings can I find any objection which can be regarded as being remotely related to the matter referred to in this first ground of appeal. Indeed, when Sheriff McFarlane's evidence was about to commence, there was an objection (which I deal with below) in relation to the content of the transcript of evidence but that objection was on a completely different basis and made no reference whatsoever to any failure to warn against self-incrimination. ...

The final point, which again I make only briefly since it was not an issue at the trial, is that whatever the position is in relation to the Fatal Accident Inquiry I was not asked to dismiss the charge at any time and if a miscarriage of justice has occurred, it has not occurred because of any failure to dismiss the charge of perjury. I assume therefore, that in order for this matter to proceed the appellant will at his appeal hearing require to argue that senior counsel failed in his responsibilities in that connection and that a miscarriage thus occurred. ...

The second ground of appeal, and the only one in relation to conviction upon which I can properly report, relates to an objection which was taken during the evidence of Sheriff Charles McFarlane. Sheriff McFarlane was sworn and was asked to confirm that he had conducted the Fatal Accident Inquiry in September 1999 (sic). He was then shown inter alia production No. 18 at this trial, which was an excerpt from the full certified transcript which was itself a production (production No. 2). He was shown label No. 1, which was the tape recording of the section of the evidence at the Fatal Accident Inquiry which included the evidence of the appellant. The full transcript, production No. 2, was not before me, although it was a production, and it was there only to demonstrate that the excerpt, production No. 18, was complete and accurate. The objection was taken by Mr. Gray at that point and was an objection which was clearly directed to the leading of the evidence contained in the transcript, production No. 18, which contained part of the evidence of the appellant at the FAI.

The objection was to evidence led and answers given in relation to a smoke detector which was found in the kitchen of the flat where the boys died. It was not an objection to the introduction of the tape itself or of the transcript of it: it was quite simply an objection to certain of the questions and answers contained therein. I am quite clear about that position, and underline it purely because of the existence of the first ground of appeal in this case and I confirm that in the course of the instant argument there was no mention whatsoever about a warning against self-incrimination. This was a totally separate issue which I dealt with after full argument from Mr. Gray and the procurator fiscal depute.

The context of this objection is that the Fatal Accident Inquiry into the deaths of the two young men was hearing evidence about a variety of arguably unsatisfactory features pertaining to the condition of the flat in which they died, and I had already been made aware of this during earlier objections, and had already allowed objections by Mr. Gray in relation to evidence which might tend to influence the jury improperly against the appellant in areas which were not directly connected with the perjury. Among those were matters which tended to show that other aspects of the flat's maintenance and condition were less than satisfactory not only in relation to fire safety but also generally. When I allowed those objections I made it perfectly clear in dealing with them that I would only allow the jury to hear evidence which was directly relevant to the charge: the charge being one of perjury in relation to the existence of a smoke detector in the hallway of the flat.

When the appellant gave evidence before Sheriff McFarlane on the matter of smoke detectors he dealt in that connection with two smoke detectors, claiming clearly that both of them were in position and were working. One of those smoke detectors he said, was in the hall and the other he said, was in the kitchen and there was an argument that he had perhaps changed his position during the course of his evidence at the Fatal Accident Inquiry about the condition of the smoke detector in the kitchen. Mr. Gray argued that I should not allow that part of the evidence relating to the condition of the smoke detector in the kitchen to be heard by the jury, since this may bring the appellant's character into issue and may improperly influence the jury against him. In the ensuing debate Mr. Gray focused his position on his objection more clearly to say that he had no objection to questions and answers about the existence of the kitchen smoke detector and that his objection dealt only with evidence about whether or not it was working, and any perceived change in the appellant's position about that during the Fatal Accident Inquiry evidence in that connection. He accepted that by this stage the jury already knew that a dismantled smoke alarm had been found in the kitchen of the flat, had photographs of it, and were aware that there may be an issue of whether or not that alarm had been dismantled by the appellant or by the tenants.

The Crown position was that they sought the whole chapter to be admitted, that the chapter could not be edited and still remain in context or even comprehensible to the jury. The Crown had libelled perjury only in relation to the hallway smoke alarm, having regard to the proper interpretation of the law where contradictory evidence is given on oath had not libelled perjury in relation to the kitchen one, and did not suggest any contrary position. Nonetheless it was important for the jury to have the whole picture of what was said by the appellant in relation to both of the smoke detectors in the house rather than an edited version which would make the whole area of what he said in evidence at the FAI unclear. It was argued that all of that evidence was highly relevant when dealing with a charge of perjury, since both the content and the context of what the appellant said about one of the smoke detectors was important for the jury to consider when dealing with what he said about the other smoke detector within the same premises. It was argued that this was on the basis that the Crown had to prove deliberate falsehood and the jury should be aware of the full and proper context of his FAI evidence concerning smoke alarms in the flat when considering whether perjury has been committed in his evidence in relation to the hallway smoke detector.

I repelled the submission made by Mr. Gray that the transcript should in some way be edited to remove questions concerning the kitchen smoke alarm and any change that may exist in his position about its condition. I took the view that the evidence was highly relevant in the context of a charge of perjury about false statements in relation to another smoke alarm claimed by him to have been in the house at the same time. It seemed to me that the evidence in relation to such a closely related issue was highly relevant when the issue of veracity of his evidence was being looked at. Additionally, I consider that it would have been virtually impossible physically to separate what he said about one smoke detector and what he said about the other one, and no suggestion was ever made to me about how that allegedly irrelevant evidence could in fact be separated from the evidence, which was agreed to be relevant and was not subject to objection. Production No. 18 could not have been properly understood and the position of the appellant himself may also have been prejudiced by such an exercise. ...

The specific complaint contained in the ground of appeal is that by allowing that evidence to be admitted, the character of the appellant was placed in jeopardy. I cannot see how that can be argued in the context of this trial. No reference was made at any stage to the character of the appellant and great care was taken to ensure that no reference was made at any stage to the fact that he let other properties, that he was a professional landlord, or anything about him personally. Equal care was taken to ensure that the jury were not aware of publicity which this case had received, and as indicated above to remove from them all photographs taken of the premises which may tend to give the jury a view about its overall condition. I cannot see how the question and answers concerning the kitchen fire alarm could introduce to the jury aspects of the character of the appellant, particularly since when he subsequently gave evidence in this trial he said exactly the same to the jury as he had said to Sheriff McFarlane. His position was that the evidence given by him to the Fatal Accident Inquiry was truthful and he repeated that evidence at this trial. The issue was one of credibility and 'character' did not enter into the equation at any stage.

The ground of appeal goes on to say that at page 23 of the charge I gave the jury a direction that they could take account of the evidence of the transcript and in so saying, suggests that I in some way placed the character of the appellant before them. It is self-evident that this is not what that portion of the charge deals with and it is important to note that there is a complete sentence which starts at line 14 and ends at line 23 and the whole of that sentence has to be read, not simply the part of it set out in the ground of appeal. It is perfectly clear that that sentence tells the jury that they must remember that the allegation of perjury relates only to the hall smoke detector, but that the evidence in the case about the other smoke detector may be relevant in that connection. The evidence did not only come from the transcript: it came from a number of other sources, including the fire officers, the young man who survived the fire, the mother of one of the deceased boys, the appellant himself (in his evidence at the trial) and his defence witness Mr. Howat. Accordingly, the whole body of evidence concerning the existence of smoke detectors was very full covered, entirely linked to the issue whether there was a smoke detector in existence in the hallway and dealt with, not only as an aspect of the Crown case but also as an important aspect of the defence case."

"If, accordingly, the evidence was incompetent, the only remaining question is whether perjury can attach to it. Now, that matter appears to me to be concluded beyond all doubt against the Crown upon authority which I am bound to follow. The most authoritative statement of the law is the statement contained in Hume in his Commentaries on the Criminal Law. Baron Hume says this: 'The oath, in that part of it which is challenged as false, must be pertinent to the point at issue: it must relate to some of those substantial facts, which may have an influence in the decision of the interest that is at stake in the proceedings where the oath is made'. It is not possible to get a more authoritative statement of the law than that. Exactly the same doctrine is laid down by Burnett in his Criminal Law, by Alison, and by Lord Justice Clerk Macdonald, than whom there is no greater authority. I will not occupy time in reading what they say, because what they say is simply what Hume said in the passage I have read.

I accordingly in this case, without difficulty reach the conclusion that the second objection to the relevancy of the indictment is well-founded and must be sustained. I desire to add this observation. The rule that perjury cannot attach to incompetent evidence is not a technical rule; it is a rule of substance. The foundation of the rule is that incompetent evidence is so prejudicial to the administration of justice that the courts will not assign to it the character of perjury and will treat it as if it had not been given. That rule has been laid down by lawyers of great distinction with a proper appreciation of what justice requires, and in my view it is a rule that should be rigidly adhered to."