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Cite as: [2004] ScotHC 66

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Johnstone v. Her Majesty's Advocate [2004] ScotHC 66 (12 November 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Kirkwood

Lord Emslie

Appeal No: XC672/03

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

NOTE OF APPEAL AGAINST CONVICTION

GORDON JOHNSTONE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Adams Whyte

Respondent: Macleod, A.D.; Crown Agent

12 November 2004

[1] The appellant was convicted of a number of charges before the High Court at Edinburgh. Charge (1) was a charge of assaulting and robbing a lady aged 77 years in her home in Edinburgh on 7 July 2001. That charge stated that he pretended to her that he represented a bowling club and that he was selling confectionery and biscuits on behalf of the club, and induced her to allow him entry to her house, where he pushed her on the body, causing her to fall against furniture to her injury, and robbed her of a wallet, a purse and contents and £95 of money and four bank cards. Charge (4) was a charge of assaulting and robbing a lady of 71 years in her home in Glasgow on 8 July 2001. That charge stated that he pretended to her that he represented the Social Work Department and that he was delivering goods on behalf of that department and induced her to allow him entry to her house and there assaulted her, repeatedly pushed her into a chair, seized hold of her and pushed her to the floor, repeatedly threatened to kill her and repeatedly demanded money from her, searched her handbag, attempted to remove rings from her fingers and robbed her of a bank card and £49 of money.

[2] The first ground of appeal relates to the fact that the trial judge permitted the Crown to lead evidence under section 259 of the Criminal Procedure (Scotland) Act 1995 of statements made by the complainer in charge (1), on the ground that she was unfit to attend court and give evidence. It is not in dispute that, in the light of a letter from her doctor, the admission of her evidence in accordance with section 259(2)(a) of the 1995 Act was justified. However, it is maintained that, having regard to the appellant's right to a fair trial, the trial judge should have directed the jury to acquit. It is also maintained that the leading of the evidence by the Crown was incompatible with the appellant's right to a fair trial and, as a consequence of the terms of section 57(2) of the Scotland Act 1998, was ultra vires.

[3] The evidence which the trial judge admitted consisted of evidence given by a police constable as to statements made by the complainer to him on the afternoon of 7 July 2001, and as to the fact that two days later she picked out the appellant from a selection of photographs which had been shown to her by a detective constable. In addition he admitted evidence that on 12 June 2002 the complainer had identified the appellant at an identification parade as being the person who had attacked her.

[4] For the appellant Mr. Shead explained that the primary issue at the trial related to the identification of the complainer's assailant. The fact that the complainer had not given evidence in court meant that there was no question of a dock identification which was a competent and important part of criminal procedure (Holland v. H.M. Advocate 2003 S.C.C.R. 616). Moreover, the appellant was deprived of the opportunity of cross-examining her as to discrepancies between her description of the assailant and the actual appearance of the appellant. This removed much of the safeguard for a fair trial. Mr. Shead also pointed out that the primary means by which the Crown sought corroboration of the accounts given by the two complainers was by invocation of the Moorov doctrine. That was, in his words, a classic example of a conviction being based on the evidence of one person.

[5] Mr. Shead went on to submit that in Campbell v. H.M. Advocate; Hill v. H.M. Advocate 2003 S.C.C.R. 779 the court had been in error in rejecting the submission that the test for the fairness of a trial where evidence was admitted under section 259 was whether, without that evidence, there would be insufficient evidence to convict the accused. He invited this court to consider remitting this case to a larger court for the reconsideration of that decision, or referring the question to the Judicial Committee of the Privy Council. He submitted in any event that the decision fell to be distinguished in that it was concerned with the use of section 259 in respect of evidence providing corroboration for the primary witness, whereas in the present case the section was used in respect of the primary evidence itself.

[6] In Campbell v. H.M. Advocate; Hill v. H.M. Advocate the court observed, at paragraph 15, that the general rule under the Convention that an accused person should have the opportunity of examining or having examined witnesses against him was not an absolute right. The most recent cases indicated that a violation of the right to a fair trial would, or might, arise if the conviction had been based solely or to a decisive degree on statements made by persons whom the accused had not, at any stage, had the opportunity to examine or have examined. As the court pointed out in paragraph 16, most of the situations in which it had been held that there had been a violation of Article 6(1) and (3)(d) could not arise in Scotland, where there was a requirement for the corroboration of all crucial facts, and hence a conviction could not be based solely on the evidence of a single witness, whether in primary or in secondary form. The court also observed in paragraph 16 that the expression "to a decisive extent", as used in the European authorities, appeared to be concerned with the significance of the evidence as a matter of weight. We see no reason to doubt the soundness of the general approach taken by the court in that case. It is therefore necessary to consider the evidence of identification which was admitted under section 259 in the context of the evidence as a whole.

[7] The first and most striking point about the remainder of the evidence is that it was not in dispute at the trial that the appellant was guilty of charges (2) and (3) on the indictment. It was a matter of admission that the appellant was shown by closed circuit television cameras at the Royal Bank of Scotland, St. Andrew Square, Edinburgh obtaining and attempting to obtain money from two automatic telling machines by means of using the bank cards of the first complainer about an hour after the incident to which charge (1) related. It is clear that in his speech to the jury the Advocate depute relied on this evidence not only to prove that on any view the appellant had stolen the cards from the complainer, but also to support her identification of the appellant as her assailant. It also falls to be borne in mind that, even if the complainer had given evidence but had been unable to identify the appellant in court, it would have been open to the Crown to lead evidence of her identification of the appellant at the identification parade. Furthermore, as the trial judge pointed out in his report, the solicitor advocate for the appellant at the trial took full advantage of being able to exploit differences between the complainer's description of the appellant and his real appearance in regard to matters of age, height, accent and clothing. He also founded on the fact that in selecting the appellant from the photographs which were shown to her two days after the incident she had been only 80% certain of her identification, and that at the identification parade she had not been 100% certain and had referred also to a stand-in, who was younger than the appellant and had a different colour of hair.

[8] As we have already noted, the Crown sought to use the evidence relating to charge (4) to provide corroboration using the Moorov principle. In the passing we observe that it is incorrect to treat corroboration by this means as if it enabled an accused to be convicted on the basis of the evidence of one person. The whole point of corroboration on this principle is that the similarity between incidents, each of which is spoken to by a single witness, is such as to demonstrate an underlying unity between them so that the evidence of each witness corroborates that of the other or others. In the present case the Advocate depute was able to point to the fact that the two incidents had occurred within a short period of each other. In each case the complainer had been an elderly woman on her own, who gave entry to her house as a result of false pretences, and the assailant sought to obtain money or credit cards, and for that purpose used a degree of violence.

[9] In the light of the evidence as a whole we consider that the case against the appellant in regard to charge (1) was not based to a decisive degree on the evidence of the police officers as to the complainer's identification of the appellant as her attacker. We therefore reject the proposition that the appellant did not, in the whole circumstances, have a fair trial.

[10] The second ground of appeal relates to the admission of evidence relating to the obtaining and analysis of a DNA sample from the appellant by means of mouth swabs on 22 February 2002 after the appellant had been arrested. The Crown relied on a match between the result of that analysis and the analysis of DNA evidence from an empty beer can at the home of the complainer in charge (4). She gave evidence that she had given the appellant a can of beer to drink after he had obtained entry to her house and before he assaulted her.

[11] Detective Sergeant Alexander Walker gave evidence that he had taken the mouth swabs, understanding that he had authority to do so in the case of any person who had been arrested. He said that the appellant had been fingerprinted and given all samples voluntarily. Sergeant Eamon Keane gave evidence that he had been present when the mouth swabs were taken from the appellant by Detective Sergeant Walker. He said that at that time there was a general instruction from the Chief Constable that mouth swabs were to be taken from all adult males who were detained or arrested in connection with serious offences within certain specified categories. This included the type of offence for which the appellant had been arrested. According to the report of the trial judge he also stated that he understood that the authority of someone of the rank of inspector or above should have been obtained prior to taking the swabs.

[12] The trial judge reached the conclusion that he was not satisfied that the procedure which had been followed was in conformity with section 18(6) of the Criminal Procedure (Scotland) Act 1995, which states, inter alia, that a constable may, with the authority of an officer of a rank no lower than inspector, take from the person of an accused "from the inside of the mouth, by means of swabbing, a sample of saliva or other material".

[13] However, having regard to the overall test which had the authority of the decision in Lawrie v. Muir 1950 JC 19, he considered that he should excuse the irregularity and admit the evidence of the taking of the mouth swabs and the subsequent analysis. He observed that Detective Sergeant Walker had a genuine belief that he was entitled to take the swabs. It was clear that the irregularity was administrative in the sense that if he had sought permission it would automatically have been granted, particularly in view of the Chief Constable's instructions. It was also clear from the evidence that the appellant willingly consented to the taking of the swabs.

[14] Mr. Shead accepted that the DNA evidence was not decisive in this case. However, the Advocate depute had wished to rely on it as a cross-check on the reliability of evidence of the complainer on charge (4). It was not an academic matter. He submitted that whether Detective Sergeant Walker had a genuine belief was nothing to the point. So also was the fact that there had been no deceit or entrapment. Mr. Shead submitted that an accused would naturally have assumed that any request which had been made was lawful. No doubt it was of practical importance to the police force to obtain DNA evidence. However, that should not be allowed to deny an accused the protection which had been intended by the legislation. In balancing matters it was important to bear in mind that the appellant faced a serious allegation, and he had suffered palpable prejudice. The introduction in 2003 of subsection (6A) of section 18 of the 1995 Act, which enabled a constable, or at a constable's direction a police custody and security officer, to take from the inside of the person's mouth, by means of swabbing, a sample of saliva or other material, demonstrated that what had been done in the present case was not in accordance with the law.

[15] In reply the Advocate depute observed that it appeared that at the trial there had been a confusion between the statutory requirement which applied in the case of persons who had been arrested and detained, and from whom samples were sought to be taken so that they might be available as evidence in a trial, and the instruction of the Chief Constable which was concerned with the collection of information for a database. In regard to the circumstances of the case he drew the court's attention to the excusal of an irregularity in Hepburn v. Vannet 1997 S.C.C.R. 698, where the relevant warrant did not cover the participation of an English police officer in a search. In that case the court observed that the search would have been carried out anyway. There was no trickery or deceit on the part of the police who were acting in good faith. It could easily have been Scottish police officers who found the drugs to which the charges related. The irregularity was excused. Hence the sheriff was entitled to hold that the evidence of the results of the search was admissible.

[16] We are entirely satisfied that the trial judge was entitled to exercise his discretion as he did in the light of the circumstances in which the Detective Sergeant had acted in good faith. There was no trickery or deceit and the appellant freely agreed to the taking of the samples. It is plain that, if the appropriate procedure had been followed, authority would have been given by an officer of the appropriate rank.

[17] Mr. Shead went on to assert that the taking of the swabs was in violation of the appellant's rights under Article 8 of the European Convention on Human Rights. This had been raised at the stage of appeal as a devolution issue. It was not a matter which was put to the trial judge. The only ground which Mr. Shead could advance as showing cause why a devolution minute should be entertained at the stage of appeal was that the appellant had been given leave to proceed with his appeal against conviction. However, the only significance of the granting of leave was that the appellant was permitted to present his appeal in court. The question whether there was special cause remains, and in our view no special cause has been shown. However, even if we had taken the contrary view, we are not satisfied that the admission of this ground of appeal would lead to any different result. In the first place it appears to us that the relevant "act" was that of the police rather than that of the Lord Advocate (McGibbon v. H.M. Advocate 2004 S.C.C.R. 193). Mr. Shead suggested that this decision also should be reconsidered, but we are not satisfied that there is any sound reason for doing so. In any event the ultimate question is not whether there had been a breach of the appellant's rights under Article 8 - as to which we remain unconvinced - but whether, as a consequence, he was denied a fair trial. The various considerations which we have mentioned above in connection with the admission of the evidence at common law seem to us to be relevant also in regard to the question of fair trial. In these circumstances this ground of appeal is also rejected.

[18] The appeal against conviction is accordingly refused.