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Cite as: 2005 SLT 634, 2005 SCCR 208, [2005] HCJAC 16, [2005] ScotHC HCJAC_16, 2005 GWD 19-337, 2005 1 JC 259

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Brian Hill v. Her Majesty's Advocate [2005] ScotHC HCJAC_16 (24 February 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lord Nimmo Smith

Lord Brodie

[2005HCJAC16]

Appeal No: XC106/02

OPINION OF THE COURT

delivered by LORD MACFADYEN

APPEAL AGAINST CONVICTION

BRIAN HILL

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: C. Shead; Drummond Miller, Edinburgh

Respondent: S. Di Rollo, Q.C., ad hoc A.D.; Crown Agent

24 February 2005

Introduction
[1] The appellant stood trial in Perth Sheriff Court on an indictment libelling against him and a co-accused three charges - two of theft by housebreaking, and one of theft of a motor vehicle and its contents. His co-accused did not appear, and the trial proceeded against the appellant alone. The trial commenced on 30 July 2001, and on 7 August 2001 the appellant was convicted of the first charge of theft by housebreaking, acquitted of the second such charge and in respect of the theft charge was found guilty of reset.

[2] The appellant lodged a note of appeal which set forth eleven grounds on which it was submitted that a miscarriage of justice had occurred. One of these, ground (c), raised an issue as to whether the admission of the hearsay evidence of a witness, Ingrid Angela Greatorex, under section 259 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") was incompatible with the appellant's Convention rights under Article 6 of the European Convention on Human Rights. Argument was heard on that ground in this and another appeal on 30 September 2003. On 13 November 2003 the court refused the appeal so far as it had been argued and continued it in relation to the outstanding grounds of appeal (Campbell v H. M. Advocate; Hill v H. M. Advocate 2003 SCCR 779, paragraph [19]).

[3] When the case called before us for hearing in respect of the outstanding grounds of appeal, Mr Shead, who appeared for the appellant, intimated that he regarded grounds (c) and (e) as superseded by the decision of 13 November 2003; that he did not intend to argue grounds (g), (h) and (k); and that he did not propose to maintain ground (a) as it was formulated, although some of its content bore on the submissions he proposed to make in respect of ground (b). He then proceeded to argue grounds (b) and (d). Having done so, he intimated that he did not propose to make submissions in respect of grounds (f), (i) and (j). In the result, therefore, the only grounds of appeal that fall to be considered at this stage are grounds (b) and (d). All other grounds have either already been dealt with or been departed from.

Ground of appeal (b)
[4] Shortly stated, the thrust of ground (b) is that the sheriff erred in holding at the stage when he did that the requirements of section 259 for the admission of the evidence of Miss Greatorex in hearsay form had been satisfied. For the purpose of the argument considered at the hearing on 30 September 2003 it was assumed that the whole requirements of section 259 were satisfied (see paragraph [3], page 784E). Ground (b), however, requires us now to consider whether those requirements were in fact satisfied.

[5] At common law, the general rule in criminal proceedings is that, subject to certain exceptions, hearsay evidence is inadmissible. Section 259 introduced a number of statutory exceptions to that general rule. For the purpose of the present appeal it is sufficient to concentrate on the following provisions of section 259.

"(1)	Subject to the following provisions of this section, evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings shall be admissible in those proceedings as evidence of any matter contained in the statement where the judge is satisfied ―
	(a)	that the person who made the statement will not give evidence in the proceedings of such matter for any of the reasons mentioned in subsection (2) below;
	(b)	that evidence of the matter would be admissible in the proceedings if that person gave direct oral evidence of it;
	(c)	that the person who made the statement would have been, at the time the statement was made, a competent witness in such proceedings; and
	(d)	that there is evidence which would entitle a jury properly directed, or in summary proceedings would entitle the judge, to find that the statement was made and that either ―
		(i)	it is contained in a document; or
		(ii)	a person who gave oral evidence in the proceedings as to the statement has direct personal knowledge of the making of the statement.
(2)	The reasons referred to in paragraph (a) of subsection (1) above are that the person who made the statement ―
	(a)	is dead or is, by reason of his bodily or mental condition, unfit or unable to give evidence in any competent manner;
	(b)	is named and otherwise sufficiently identified, but is outwith the United Kingdom and it is not reasonably practicable to secure his attendance at the trial or to obtain his evidence in any other competent manner;
	(c)	is named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken;
	(d)	having been authorised to do so by virtue of a ruling of the court in the proceedings that he is entitled to refuse to give evidence in connection with the subject matter of the statement on the grounds that such evidence might incriminate him, refuses to give such evidence; or
	(e)	is called as a witness and either ―
		(i)		refuses to take the oath or affirmation; or
		(ii)		having been sworn as a witness and directed by the judge to give evidence in connection with the subject matter of the statement refuses to do so, ...
...
(5)	Subject to subsection (6) below, where a party intends to apply to have evidence of a statement admitted by virtue of subsection (1) above he shall, before the trial diet, give notice in writing of ―
	(a)	that fact;
	(b)	the witnesses and productions to be adduced in connection with such evidence; and
	(c)	such other matters as may be prescribed by Act of Adjournal,
	to every other party to the proceedings ...".

[6] We have quoted section 259(2) in full in order to indicate the range of circumstances in which it is contemplated that hearsay evidence will be admissible. The exception relied on by the Crown in the present case in relation to the witness Ingrid Angela Greatorex was, however, that set out in paragraph (c) of subsection (2), namely that she could not be found and that all reasonable steps had been taken to find her. She was named and otherwise sufficiently identified, as required by that paragraph. It was not disputed that at the time when the matter was raised before the sheriff, she had not been found. No issue arose as to the satisfaction of the requirements of paragraphs (b), (c) and (d) of subsection (1). Notice had been given in accordance with the requirements of subsection (5). The only live issue thus related to whether all reasonable steps had been taken to find the witness.

[7] Mr Shead advanced his submissions in respect of this ground of appeal in the context of two previous decisions of this court. The first was N v H.M. Advocate 2003 JC 140 (also reported sub nom. Nulty v H. M. Advocate 2003 SCCR 378). The circumstances of that case were that the appellant was charged on indictment with a number of sexual offences. When his original trial was part-heard, it was deserted pro loco et tempore. The appellant was re-indicted. By the time of the second trial, one of the complainers had become mentally unfit to give evidence, and the Crown gave notice under section 259(5) that they intended to rely on a transcript of the evidence which she had given at the first trial. The appellant objected to the admission of that evidence. The trial judge repelled that objection. The appellant was convicted, and appealed against his conviction. The first issue in the appeal was whether section 259 afforded the trial judge a discretion to refuse to admit hearsay evidence which satisfied the statutory tests of admissibility. The court answered that issue in the negative (per Lord Justice Clerk Gill at paragraph [23]). The Lord Justice Clerk went on to observe that he had reached that conclusion with regret (paragraph [24]). There were, he said, "bound to be cases in the circumstances of which hearsay evidence would be so prejudicial to the fairness of the trial that the only just and proper course would be to exclude it" (paragraph [25]). Accordingly, while noting that "section 259 has the further effect that when hearsay evidence is admitted under the section, the court has no power under the section thereafter to exclude it, or to direct the jury to disregard it", his Lordship added that the court was under a continuing obligation to take notice of article 6. Although it was agreed that section 259 did not per se contravene article 6, nevertheless the circumstances of the case might result in such a contravention (paragraph [28]). The trial judge was under a continuing duty under article 6 "to consider carefully the fairness of such evidence as the trial progresses" (paragraph [35]). The procedural implications of that obligation included that "if it should later become clear that the hearsay evidence is unfair to the party against whom it is led, the trial judge ... may have to uphold a submission of no case to answer; or desert the diet at his own hand; or direct the jury to disregard the hearsay; or direct the jury to acquit" (paragraph [36]). "[Even] where it is appropriate for the hearsay evidence to go to the jury, fairness requires that the trial judge should give an explicit direction about the dangers inherent in such evidence" (paragraph [37]). Laying stress on the fact that the Lord Justice Clerk had noted the unsatisfactory nature and possibly prejudicial effect of hearsay evidence, Mr Shead submitted that that consideration required to be borne in mind when considering the reasonableness of the steps taken to find a missing witness.

[8] The second case to which Mr Shead referred was Aslam v H. M. Advocate 2000 JC 325. In that case the appellant was charged with fraud. A Crown witness, who was a former co-accused, went abroad. His citation was handed to his wife, who said that he was abroad because his father was ill, that she was in contact with him, and that he intended to return for the trial. A few days before the trial diet, the witness's wife informed the police that he was not going to come to court. Until then, the police had accepted what the witness's wife told them about his intention to return. The Crown served a notice under section 259(5). The sheriff refused the section 259 application on the basis that he was not satisfied that the witness was abroad, or that all reasonable steps had been taken to find him. However, he accepted that the Crown had not been at fault in accepting what the witness's wife said, and granted a three month extension of the twelve month time bar under section 65 of the 1995 Act to enable the Crown to make further efforts to trace the witness. The sheriff's decision was upheld on appeal. Mr Shead submitted that implicitly that decision recognised and emphasised the importance of obtaining, if at all possible, the direct rather than the hearsay evidence of the witness.

[9] Mr Shead submitted that the Sheriff's decision to admit the hearsay evidence of Miss Greatorex, made when it was made, was premature. It could not be said that at that stage the statutory criteria had been satisfied. By ruling, before the trial began, that the hearsay evidence was admissible, the sheriff had precluded the possibility that further steps might successfully have been taken to find the witness before the stage of the trial was reached at which a decision on the section 259 application required to be taken. There was nothing in the legislation to prevent a further application being made in the course of the trial. There was nothing to prevent the sheriff from giving an indication to the Crown that he was minded that, if certain further inquiries proved unsuccessful, the application would be granted, thus enabling the prosecutor to commence the trial assured of being able to lead Ms Greatorex's evidence in hearsay form if further efforts to trace her failed. Various suggestions had been made to the sheriff on the appellant's behalf as to further steps that might reasonably be taken with a view to finding Miss Greatorex. The Crown had inquired after the witness at what was thought to be her father's address, but that address was wrong. The defence had provided the correct address to the court. It was also suggested that inquiries should be made through the witness's mother, who lived in an identified part of Dundee. The witness had given birth to a child a few months before, and it was suggested that she might be traced through her doctor. If a witness warrant were issued, the Department of Social Security might be able to assist in finding her. Her unusual surname was of assistance in seeking to trace her. As the sheriff noted in his Report (page 5), the Procurator Fiscal Depute to some extent accepted these suggestions, and indicated that further inquiries could be made, at the witness's last known address and at her father's correct address, if the commencement of the trial were delayed by one day. In these circumstances, Mr Shead submitted, the Sheriff had misdirected himself in concluding, before the trial began, that the criteria set by subsection (2)(c) had been met. The risk of prejudice to the appellant through the admission of the witness's evidence in hearsay form required a rigorous approach to the statutory criteria. Particular care also required to be taken where, as Mr Shead submitted was the case in the present case, there was room for criticism of the manner in which the witness's statement had been taken. The sheriff had erred in excluding the possibility of further inquiry, when on a proper view of the circumstances the suggested inquiries were reasonable, were accepted by the prosecutor as practicable, and might have led to the witness being traced in time to give evidence in person. Without such further inquiry, it could not properly be said that all reasonable steps had been taken to find the witness.

[10] Mr Shead noted that in the decision of 13 November 2003 the Court took the view that on charge (1) there was a sufficiency of evidence against the appellant, even if Miss Greatorex's hearsay evidence were disregarded; and that hers was not the principal evidence supporting charge (3) (2003 SCCR 779 at 791, paragraph [19]). Mr Shead did not dispute that that was so. He maintained that Miss Greatorex's evidence was nevertheless important. The verdict which the jury had returned - guilty of charge (1), not guilty of charge (2) and guilty of reset in respect of charge (3) - suggested that they had been significantly guided by her evidence. In all the circumstances the correct conclusion was that the admission of the hearsay evidence without proper fulfilment of the statutory criteria resulted in a miscarriage of justice.

[11] The Advocate depute submitted that in determining whether, in terms of section 259(2)(c), all reasonable steps to find the witness had been taken, the sheriff had a considerable discretion to assess the nature of the case and the nature of the hearsay evidence and to determine the stage at which the application to admit it was made. Despite the fact that there were further steps which it was possible to take, the sheriff was entitled to rule that the hearsay evidence was admissible for the reasons which he gave in his report. The sheriff said (at page 4 of his Report):

"It seemed to me that the correct approach was, first, to assess whether the steps described by the Crown prima facie fell within the description of 'all reasonable steps which, in the circumstances, could have been taken' in terms of section 259(2)(c). I was so satisfied. ...

In my opinion, the second step I required to take was to consider on their individual merits the other steps which the defence submitted ought to have been taken."

The sheriff proceeded to do that, rejecting the suggestions that it was reasonable to attempt to trace the witness's mother and make inquiries through her, or that inquiries should be made of the witness's friends and associates, or through her general medical practitioner, or by a further approach to the Department of Social Security. He noted the procurator fiscal depute's willingness to make further inquiries at the corrected address of the witness's father, but observed:

"It seemed to me, however, that the Crown's efforts ought to be tested at the point that the application was before the court. ... Standing that the (apparently) correct information about the witness's father's whereabouts was given only during the course of the hearing, I did not consider that that was a relevant factor in considering the test to be applied."

The whole of that reasoning reflected an approach which the sheriff was entitled to take in the circumstances. The Advocate depute further submitted that it was desirable that the section 259 application should be brought to the attention of the court in advance of the commencement of the trial, and that the decision should be made as soon as possible. The sheriff was not bound to defer his decision to await further inquiries. The sheriff was entitled to take account of the fact that the appellant and the witness were in a relationship in assessing what likelihood there was that further inquiries would be fruitful. What was reasonable was a matter of circumstance, and one relevant consideration was the relative seriousness of the case. There was no good reason for holding that the statutory criteria required to be applied with particular stringency. Ground of appeal (b) should therefore be rejected.

Ground of Appeal (d)
[12] This ground of appeal relates to the treatment of evidence of a search of a Vauxhall Chevette motor car, which was linked with the appellant. Certain stolen items were found in the car. Objection was taken to the admission of evidence of the search. The sheriff heard a trial within a trial, after which he repelled the objection. Subsequently, the police officer who had given evidence in the trial within a trial gave evidence before the jury. His evidence on the latter occasion differed materially from his evidence in the trial within a trial. The objection to the admissibility of the evidence of the search was renewed. The sheriff at that stage held that the evidence should not have been admitted. He dealt with that matter by directing the jury to ignore the evidence of the search. It is now submitted that the Sheriff erred in following that course. He should, it is submitted, have deserted the trial pro loco et tempore.

[13] The police officer whose evidence gave rise to the difficulty was Detective Constable James Smith who, along with another officer, conducted the scene of crime examinations at the loci of the first two charges on the indictment. They were directed to John Street, Blairgowrie, where the car had been found. DC Smith was asked if he examined it, and the defence solicitor objected to the admissibility of evidence of any search of the car. A trial within a trial was then held. DC Smith's evidence in the trial within a trial was that the car was unlocked, had suffered accident damage and was situated on a public road. He had information that another car, a silver Vauxhall Cavalier, stolen from the locus of the second charge, had approached the Chevette, and its occupants had looked at the Chevette before driving off in the Cavalier. DC Smith also had information that the Chevette was linked to the appellant, who, he knew, had previous convictions for housebreaking. He explained that he examined the car for three reasons, namely (i) to ascertain whether it had been used by the criminals responsible for one or both of the housebreakings, (ii) to establish if it had been stolen, and (iii) more generally, because it had been left on the public highway in a damaged condition. He did not consider that it was necessary to apply for a search warrant. In the car were found two bottles of spirits later identified as taken in the housebreaking referred to in charge (1), as well as items further linking the car with the appellant. A later search found in the car a part of the grandfather clock referred to in charge (1).

[14] Under reference to Lavery v Murray 1963 SLT (Notes) 3 the sheriff held that for the search to be regular he had to be satisfied either that it was carried out in circumstances of urgency, or that the items had been found in the course of an ordinary routine inspection. He held that urgency had not been established. He concluded, however, on the basis of DC Smith's evidence that the search could properly be described as an ordinary routine inspection. He regarded it as significant that the car was found to be unlocked. The police had a legitimate interest, if not a duty, to inspect an unlocked damaged vehicle on the public highway. The information connecting the car with the housebreaking and with the appellant was merely incidental, and did not make the routine inspection unlawful. The sheriff held further that even if the search were unlawful, the irregularity could in the circumstances be excused (Lawrie v Muir 1950 JC 19; Fairley v Fishmongers of London 1951 JC 14). He therefore repelled the objection.

[15] When DC Smith's evidence continued before the jury, it differed from what he had said in the trial within a trial. The differences were summarised by the sheriff in his Report at page 12. They were: (1) that he said that he conducted a scene of crime investigation of the car, including taking swabs from the steering wheel and gear lever in the hope of finding sweat or skin particles for DNA examination; (2) that the information about the silver Cavalier was received by him while a colleague was making door-to-door enquiries in John Street; and (3) that the Chevette had earlier been found by other police officers, at which stage it was unlocked, with the key in the ignition; those officers had removed the key, locked the car and taken the key to the police station; another officer had brought the key from the station, and when he and DC Smith first arrived at the car it was locked. Evidence was also given by PC Hillman, who had found the piece of the grandfather clock, which disclosed that her search was not conducted until some three days later.

[16] At the end of the Crown case the appellant's solicitor invited the sheriff to reconsider the admissibility of the evidence of the stolen property found in the car. The sheriff did so, and took the view that the differences between the evidence of DC Smith in the trial within a trial and his evidence before the jury were material. The sheriff explained his reasoning in his Report (at page 13) in the following terms:

"Given that the car had earlier been attended by other police officers who had removed the ignition key and secured it, the justification for further attendance at the car could no longer be an ordinary routine inspection - while no evidence had been led from the officers who had attended earlier, it was difficult to envisage that they had not carried out whatever inspection the police would routinely carry out on an apparently abandoned car which was unlocked and damaged. If they had not carried out an inspection at all, that was evidence that such an inspection was not routine procedure at all. Whatever the position, there seemed to be no reason for the search if it was not in fact principally to do with a suspicion that it was connected to the housebreakings rather than that suspicion being merely incidental to a routine inspection. The search was therefore irregular."

The sheriff went on to take the view that in the changed circumstances the irregularity could not be excused. He therefore directed the jury to ignore the evidence of DC Smith and PC Hillman.

[17] In support of this ground of appeal, Mr Shead made reference to Thomson v Crowe 2000 JC 173, which was concerned with the admissibility of statements by an accused. In that case the court reviewed the use of trial within a trial procedure. Mr Shead founded on a passage in the Opinion of the Lord Justice General, Lord Rodger of Earlsferry, which, although expressed in terms of the admissibility of statements, is equally applicable mutatis mutandis to the admissibility of evidence of a search. His Lordship said (at 202F-G)

"If the judge admits the evidence of a statement and fresh circumstances emerge in subsequent evidence which cast doubt on that ruling, the defence may renew their objection and invite the judge to reconsider the ruling. On reconsideration the judge may confirm or reverse the original ruling in the light of the new evidence. If the evidence of the statement has not yet been led, the judge may exclude it. If it has been led, the judge may direct the jury to disregard it or, if, because of its likely impact, the judge considers that the jury could not realistically be expected to put the evidence out of their minds, then, depending on the circumstances, the judge may desert the diet pro loco et tempore."

Mr Shead submitted that this was a case which fell clearly into the last category considered by the Lord Justice General. It was an obvious case for desertion. That was particularly so when the evidence was before the jury only because a police officer had not been straightforward in the evidence which he gave in the course of the trial within a trial.

[18] As Mr Shead pointed out, the sheriff in his Report does not expressly mention the possibility of desertion. That is, perhaps, unsurprising, given that the appellant's solicitor did not move the sheriff to desert the trial. What the sheriff did say (at page 14 of his Report) was this:

"That the jury had heard about evidence which was eventually ruled as inadmissible was a circumstance which could not have been predicted, certainly by me, standing the earlier evidence of DC Smith. It is a risk of the trial within a trial procedure. It is difficult to imagine what else the presiding judge can do other than to give the jury an appropriate direction. The issue is ultimately one of fairness to the appellant. In my opinion, however unfortunate it was that a witness gave materially different evidence before the jury, it cannot be said that it is per se unfair to the appellant that the evidence was led, provided, as here, appropriate directions were given to the jury at the end of the trial. No doubt there might be circumstances where even such directions to the jury would not resolve the unfairness to an accused in having inadmissible evidence led before the jury ... In this case, however, I decided that the evidence of the search of the Chevette was a sufficiently distinct part of the evidence that the jury would readily be able to put it to one side when carrying out their deliberations."

[19] The Advocate depute submitted that the circumstances in which it came about that the evidence of the search was originally held to be admissible then later held to be inadmissible had no bearing on the determination of the correct course to be followed when the original decision was reversed. The sheriff had a discretion to exercise in deciding what to do about the fact that the jury had heard inadmissible evidence. It was, in terms of the Lord Justice General's observations in Thomson v Crowe, a matter of circumstance whether a direction to the jury to ignore the inadmissible evidence would be sufficient to secure a fair trial for the accused, or whether desertion was necessary. The course taken by the sheriff in the present case was within the proper scope of his discretion.

Interaction of grounds of appeal (b) and (d)
[20] Mr Shead submitted that at the stage of considering whether a miscarriage of justice had occurred, it was not appropriate to look separately at the two grounds of appeal which were maintained, and judge whether each individually supported the conclusion that there had been such a miscarriage. Rather the proper approach was to consider whether the cumulative of effect of the errors which had occurred was that the appellant had suffered a miscarriage of justice.

Discussion
[21] Section 259 introduced certain exceptions to the common law rule that in criminal proceedings hearsay evidence is inadmissible. It is implicit in the section that it is preferable that the direct evidence of the witness be available. It is for that reason that the section lays down criteria which must be satisfied before hearsay evidence may be admitted. We agree with the observations of the Lord Justice Clerk in N v H. M. Advocate to the effect that the admission of hearsay evidence involves a risk of prejudice to the right of the accused to a fair trial, and that, in accordance with its obligations under article 6 of the European Convention on Human Rights, the court must be alive to that risk. We accept the submission that that risk is a factor to be born in mind when applying the test set by section 259(2)(c) for the admission of hearsay evidence of a witness who cannot be found. The risk of prejudicing a fair trial by the admission of hearsay evidence is a factor which ought, in our view, to be taken into account when determining whether the steps taken to find the missing witness amount to "all reasonable steps". It does not appear to us that the sheriff had that consideration in mind when determining the section 259 application. Of course, he did not have the benefit of the Lord Justice Clerk's observations in N v H. M. Advocate. Nevertheless, it seems to us that it can be said that, in not keeping in mind the potential risk of unfairness inherent in admitting hearsay evidence, the sheriff left out of account a consideration which was relevant to the proper assessment of whether the steps taken to find the witness amounted to "all reasonable steps".

[22] Although ground of appeal (a) put forward the contention that an application under section 259 to lead hearsay evidence could not competently be entertained prior to the commencement of the trial, that contention was not maintained before us. In our opinion it is not incompetent for the matter to be raised before the commencement of the trial, and indeed there may be considerable advantage in its being raised at as early a stage as possible. If the point is raised before the commencement of the trial, however, it may not be possible to reach a concluded view at that stage as to whether the criteria for admission of the hearsay evidence have been fulfilled. In our view the sheriff erred in concluding that the question whether all reasonable steps had been taken ought to be determined at the point when the application was before the court, and that information as to possible further inquiries, proffered in the course of the hearing, is not a relevant factor. The point at which the matter must be determined is the point at which it is proposed to introduce the hearsay evidence. Until then, the possibility of taking further steps to find the witness remains open. If the issue is raised in advance of that point, as it may be, a final determination may therefore have to be deferred, if it is suggested that there are further reasonable steps that can be taken.

[23] When the matter came before the sheriff, the situation was that the defence suggested several possible steps that might be taken with a view to finding the witness. One of these, namely to repeat the attempt to trace the witness through her father, now that his correct address was known, seems to us to be obviously something that ought to have been done before it was concluded that all reasonable steps had been taken to find the witness. The procurator fiscal depute appears to have accepted that that step could be taken. In face of that attitude on the part of the prosecutor, we are of opinion that the Sheriff erred in concluding that the statutory criteria had been satisfied. The prosecutor was prepared to accept a day's delay in the commencement of the trial while these steps were undertaken. In any event, it might have been possible to start the trial, because the question of admissibility did not need to be determined until the stage at which an attempt to adduce the hearsay evidence was actually made. Any reluctance on the part of the prosecutor to start the trial without an assurance that he would be able to lead the witness's evidence in one form or another could, in our view, have been met by the sheriff indicating that, if the proposed further steps proved fruitless, he would be minded to grant the section 259 application. In all of these circumstances, when account is also taken of the considerations discussed in paragraphs [21] and [22] above, we are of opinion that the sheriff erred in holding, before the commencement of the trial, that without the suggested further steps being taken, it could be affirmed that all reasonable steps to find the witness had been taken. In our opinion, therefore, the Sheriff ought not to have decided to admit the hearsay evidence of Miss Greatorex at the stage when he did so.

[24] As ground of appeal (d) was argued before us, no challenge was made to the soundness either of the sheriff's original decision after the trial within a trial to admit the evidence of the search of the car, or of his subsequent decision that that evidence ought not to have been admitted. The only issue is whether it was within the scope of the sheriff's discretion to deal with the matter as he did, by directing the jury to ignore the evidence of the search, or whether in order to secure the appellant's right to a fair trial it was necessary to desert the trial pro loco et tempore.

[25] It is clear from Thomson v Crowe that there may be cases where a direction to ignore the erroneously admitted evidence may suffice to secure a fair trial, and on the other hand that there may be cased where that is an inadequate remedy and where desertion is necessary in order to avoid unfairness. The primary consideration on which the choice of remedy turns is whether the impact of the evidence on the jury is likely to be such that they could not realistically be expected to put it out of their minds. It seems to us that the sheriff applied his mind to that matter, and concluded that a direction would be sufficient. But for one factor, we do not consider that that conclusion can be faulted. That factor, however, is that by the time the jury came to have to implement the direction to ignore the evidence of the search, they already had before them the difficult task of evaluating the untested hearsay evidence of Miss Greatorex. To pile the task of putting out of their minds one obviously incriminating strand of evidence upon the difficult task of properly evaluating another incriminating strand of hearsay evidence was, in our view, to ask too much of the jury. The combination of difficulties was such, in our view, that it could not properly be said that fairness to the appellant could be secured by directing the jury to ignore the evidence of the search.

Result
[26] We conclude, therefore, that the sheriff (1) erred in ruling when he did that the hearsay evidence of Miss Greatorex was admissible, and (2) further erred in concluding that the admission of the inadmissible evidence of the search of the car could be overcome by a direction to ignore that evidence. In all the circumstances, we are satisfied that there was in those respects a miscarriage of justice. We shall therefore allow the appeal and quash the conviction.