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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Macfadyen
Lady Cosgrove
Lord Penrose
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[2006] HCJAC 28
Appeal No: XC1282/03
OPINION OF THE COURT
delivered by LORD MACFADYEN
in
NOTE OF APPEAL
by
MOHAMMED ARSHAD
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Appellant: Shead; Drummond Miller
Respondent: McConnachie, Q.C., A.D.; Crown Agent
8 March 2006
Introduction
[1] On 6 November 2003 at the High Court in Edinburgh
the appellant was convicted of a charge of breach of the peace and a charge of
incitement to murder. The charge of
breach of the peace involved the uttering of threats against the appellant's
son-in-law, Abdullah Yaseen and members of his family. The charge of incitement to murder was in the
following terms:
"(2) on 27 and
28 December 2001 at 17 Cleghorn Street, Dundee and at Moto Service Station,
Kinross and the Swallow Hotel, Invergowrie, Dundee for the purpose of inciting
a police officer known as Peter, c/o Tayside Police, Dundee, to murder Abdullah
Yasin, your son-in-law, c/o Tayside Police, Dundee, you did provide him with
photographs of said Abdullah Yasin and advise him that said Abdullah Yasin was
believed to reside at 3 Highgate Close, Walsall and could be found there or at
another address or addresses unknown in Dundee, Walsall or elsewhere in the
United Kingdom, and did indicate to said police officer known as Peter that you
wished members of the family of said Abdullah Yasin and in particular
Fasihuddin Ahmed and Ageed Fatima Ahmed, 3 Highgate Close, Walsall, assaulted
and injured and you wished said Abdullah Yasin to be murdered, request him to
commit said assaults and murder on your behalf, agree to pay him £1000 to
arrange for said assaults and murder to take place and pay him £200 as a
deposit for same and you did incite said police officer known as Peter to
assault said Fasihuddin Ahmed and Ageed Fatima Ahmed and to murder said
Abdullah Yasin."
[2] On 4 December 2003 the appellant was sentenced to seven
years imprisonment in cumulo with
effect from 6 November 2003.
[3] The appellant presented a note of appeal
against conviction and sentence. It
contained three grounds of appeal against conviction. When the appeal called for hearing on 17 February 2006, Mr Shead, who
appeared for the appellant, intimated that the third ground of appeal was not
to be insisted in. In the course of the
hearing, after he had advanced his submissions in respect of the first ground
of appeal, Mr Shead indicated that he had received instructions not to insist
in the second ground of appeal. As a
result the only matter for consideration at this stage is the first ground of
appeal. That ground of appeal relates to
a motion to adjourn the trial made on 31
October 2003 and refused by the trial judge.
The ground of appeal
[4] The first ground of appeal was in the
following terms:
"The trial judge erred in refusing a motion to adjourn the
trial. The motion was made because an
essential defence witness was ill and unable to travel from the United
States of America to give evidence. The information available suggested that he
would have been fit to give evidence by January 2004. His evidence was relevant to the central
issues at the trial.
The effect of the refusal to grant the motion was to deny the
appellant a fair trial at common law and by reference to Article 6(1) of the
European Convention on Human Rights.
Reference is made to s. 6 of the Human Rights Act 1998.
Separatim. In opposing the motion the Lord Advocate was
acting incompatibly with the appellant's right to a fair trial guaranteed by
Article 6(1). That act was ultra vires. Reference is made to section 57(2) of the
Scotland Act 1998."
The trial judge's decision
[5] The motion to adjourn made on 31 October 2003 proceeded on two
separate grounds. The first related to
the state of the appellant's mental health.
It is no longer maintained that the trial should have been adjourned on
that ground. The second related to the
availability of the defence witness mentioned in the first ground of
appeal. That witness was Roger W. Shuy,
said to be an expert in linguistics, who is based in Missoula,
Montana, USA. He had reported on the recording and the
transcript of the recording of meetings which had taken place between the
appellant and the police officer known as Peter, who is referred to in the
indictment. In her report, at pages 6 to
8, the trial judge dealt with that aspect of the matter in the following terms:
"I was advised that Professor Roger Shuy, a researcher from Montana,
who specialised in linguistics and was on the defence list of witnesses, was
not available due to incapacity. He had
had to undergo surgery. He would not be
available until some time at the beginning of 2004. He was the author of a
report, Defence Production no. 1 and had analysed the recording and transcripts
of the meetings between the appellant and the undercover policeman (Crown
productions 15, 16 and 17) and the associated tapes.
The motion to adjourn was opposed by the advocate-depute. My attention was drawn to the fact that the
trial had already been adjourned on a number of occasions, on defence motion,
one of which was on 19 September 2003, when a defence Minute of Postponement
called before Lady Paton. One of the
reasons advanced on that occasion was that Professor Shuy was incapacitated and
would remain so for about 6-8 weeks. The
Minute was refused. The advocate-depute
submitted that it was, accordingly, known to the appellant and his advisers
that Professor Shuy might well not be available for a trial in a sitting
starting on 28 October. In any event,
consideration of his report gave rise to doubts about the competency and
relevancy of his evidence.
I considered the terms of Professor Shuy's report. Such criticisms as he makes of the recordings
of the conversations and the transcripts appeared to be ones that were all
capable of being made by the defence in cross examination and I was at a loss
to understand how and why a linguistics expert would be required to enable them
to be articulated. I could not see from
the report that a professor of linguistics was in any better position to make
these criticisms than counsel was or that there arose any technicality or
speciality of the study of linguistics upon which the jury would require
instruction if they were to understand any criticism that counsel sought to
make. I also took note of the fact that
the defence did appear to have been aware of the real risk of the
unavailability of the witness as long ago as 19 September (sic) but had left it until 31 October to seek to found on his
non-availability, despite the fact that the case had called on 2, 16 and 29
October. It was difficult to avoid the
conclusion that had Professor Shuy's evidence truly been regarded as essential,
something would have been done about seeking a replacement witness or an
adjournment to a date that he would be available, prior to 31 October.
In all these circumstances, I reached the view that the
absence of Professor Shuy would not result in unfairness to the appellant and I
refused the motion to adjourn."
Procedural history
[6] It is evident from the foregoing excerpt
from the trial judge's report that the procedural history of the case played a
material part in her decision. It is
therefore convenient to set out at this stage a summary of that history. Although it was provided to us by the
Advocate depute, it is securely founded in the minutes and in other documents,
and we do not understand it to be disputed.
·
On 31
December 2001 the appellant appeared on petition in Dundee
Sheriff Court and was committed for further
examination.
·
On 7
January 2002 the appellant was fully committed, and released on
bail.
·
The appellant was indicted for trial in the High
Court in Glasgow in a sitting
commencing on 2 December 2002.
·
On 14
November 2002 the court dealt with a Crown motion to allow the
undercover police officers to give evidence anonymously.
·
On the same date an adjournment was sought by
the defence, and the case was adjourned to a sitting in Glasgow
commencing on 13 January 2003.
·
On 24
January 2003 a defence motion to adjourn was made on the grounds
that (1) new agents had been instructed, and (2) a psychiatric report on the
appellant was to be obtained. The case
was adjourned to a sitting of the High Court in Forfar commencing on 24 March 2003.
·
On 24
March 2003 the case called in Forfar and a further defence motion
to adjourn was made. The grounds for the
motion were (1) that a neuropsychiatrist was to be instructed to report on the
appellant, (2) that a linguistics expert was to be instructed to report on the
transcripts of the exchanges between the appellant and the undercover officers,
and (3) that the defence wished to precognosce on oath the person who had
tipped off the police. The adjournment was
opposed by the Crown. It was granted,
but only on the first of the three grounds advanced. The adjournment was to the sitting of the
High Court in Glasgow commencing on
6 May 2003.
·
Professor Shuy's report bears the date 7 May 2003. It is not clear when it came into the hands
of the defence agents.
·
On 12
May 2003 the case was further adjourned, on the ground that the
appellant was not fit to stand trial, to the sitting of the High Court in
Forfar commencing on 16 June 2003.
·
On 16 June the case called in Forfar. The appellant was then in a psychiatric
hospital. On defence motion the case was
adjourned to the sitting of the High Court in Stonehaven commencing on 28 July 2003.
·
On 28
July 2003 the case called in Stonehaven and was adjourned, on
defence motion, to the sitting of the High Court in Aberdeen
on 23 September 2003.
·
On or about 25 August 2003 the defence agents
received a letter from Professor Shuy dated 18 August 2003 in which he
intimated that he expected to undergo surgery as soon as possible, that 20
September had been identified as a tentative date, and that he would require
six to eight weeks recovery time thereafter, and suggested a continuance of the
case until the beginning of the year (2004).
The defence agents thus appear to have been aware of Professor Shuy's
prospective unavailability from about 25 August, not from 19 September as
indicated by the trial judge in the third paragraph of the excerpt from her
report quoted in paragraph [5] above.
·
A minute of postponement was lodged and called
before Lady Paton on 19 September 2003. It was opposed by the Crown. The minute of proceedings records that the
minute of postponement was refused, "in respect that the Crown have raised an argument with regard to the admissibility of
the evidence of Professor Roger Shuy, referred to in the Minute, his report not
being available at this hearing, and the number of previous
postponements". It is not recorded, and
was not explained to us, why Professor Shuy's report was not available to the
court on that occasion.
·
The case next called on 2 October 2003.
A motion to adjourn on account of the appellant's illness was
granted. The adjournment was to the
sitting of the High Court in Dunfermline due to commence
on 20 October 2003.
·
On 13
October 2003 an interlocutor was pronounced appointing a hearing on
16 October in respect of a devolution minute lodged on the appellant's
behalf. It raised an issue under Article
6 of the European Convention on Human Rights, in respect of (1) the appellant's
inability, by reason of his mental state, to give instructions for his defence,
and (2) the unavailability of Professor Shuy.
·
On 16
October 2003 the devolution minute was withdrawn.
·
On or about 21 October 2003 a further letter from Professor Shuy,
dated 13 October 2003,
reached the appellant's solicitors. It
explained that Professor Shuy had undergone surgery, that his recovery would be
slower than had been expected, and that he could not consider overseas travel
until mid January 2004.
·
On 29
October 2003 the case called in Dunfermline
and was transferred to Edinburgh.
·
On 31
October 2003 the case called in Edinburgh. By that date the case had been adjourned on
seven occasions, all on defence motion.
The defence had been aware since 25 August that Professor Shuy would not
be available as a witness until early 2004.
The hearing on 31 October 2003
[7] At the hearing of the appeal, we had
before us a transcript of the hearing before the trial judge on 31 October 2003. The passage dealing with the second ground on
which the adjournment of the trial was moved begins at page 20/11. Counsel referred to Professor Shuy's letter
of 13 October 2003
(20/15). The trial judge noted its terms
and pointed out that it did not tell her anything about what relevance his
evidence would have at the trial (20/23).
Counsel explained that Professor Shuy was a research professor of
linguistics, with a very distinguished academic record (21/1-9), and that he
had made an analysis of the recording of the conversations between the
undercover policeman and the appellant, and asserted that his evidence was
"obviously a crucial part of the case" (21/12-16). Professor Shuy's report was then laid before
the trial judge (22/23). The trial judge
questioned whether the points made required to be dealt with by an expert
(23/4). Counsel suggested that there was
a cultural clash between the undercover officer and the appellant, whose native language was not English (25/9-13) (although he
had lived in Dundee from an early age). The trial judge continued to question whether
the points made in Professor Shuy's report required expert evidence, and could
not be made by cross-examination (26/4-10).
[8] The Advocate depute's submissions are
recorded at page 32 et seq. At 33/4-7 he made the point that Professor Shuy's
report raised difficult issues of the competency and relevancy of his
evidence. The trial judge observed that
it was impossible to tell what expertise Professor Shuy was asserting
(33/8-13). The Advocate depute offered
certain criticism of Professor Shuy's report (33/14 to 35/1). He submitted that his evidence would usurp
the function of the jury (35/10-16).
[9] On the basis of these submissions the
trial judge concluded (at 35/21-25):
"I am not satisfied that good reason is advanced in support
of the motion for adjournment which is made on behalf of the [appellant] and
therefore I refuse that motion."
The appellant's submissions
[10] In submitting to us that the trial judge
had erred in refusing to grant an adjournment on the ground of Professor Shuy's
unavailability, Mr Shead drew our attention to the fact that the Scottish Legal
Aid Board ("SLAB") had granted sanction for the employment of Professor
Shuy. His attendance to give evidence
would be expensive. It was therefore
evident that SLAB must have been satisfied that Professor Shuy's attendance as
a witness was in the interests of justice.
A substitute expert would have required fresh sanction from SLAB.
[11] Mr Shead submitted that there had been
procedural flaws at two levels in the way in which the matter had been
considered by the trial judge. In the
first place, the trial judge had not had the relevant papers in advance of the
hearing. In the second place, the trial
judge had had no detailed information in advance as to what the Crown case was
to be. The trial judge had been
confronted with the issue of adjournment with incomplete knowledge of the
circumstances relevant to the critical issue, namely the competency of
Professor Shuy's evidence. The test
which the trial judge ought to have applied was whether Professor Shuy's
evidence was necessary to ensure that the appellant had a fair trial. The trial judge had not, however, had the
benefit of any detailed analysis of Professor Shuy's report. What took place before the trial judge was
not the right way to resolve
the serious issue about the competency of his evidence. In effect, the issue of competency was
foreclosed by the trial judge's decision before it was properly
considered. Without proper consideration
of the question of competency, there was no adequate reason for refusing the
motion for adjournment.
The Crown submissions
[12] The Advocate depute submitted that at the
hearing on 31 October 2003
the main focus of the appellant's submissions was on his own unfitness, a point
no longer maintained. The submissions
made on the appellant's behalf to the trial judge did not explain what would be
lost to the appellant's case if Professor Shuy's evidence was not heard. There was nothing laid before the trial judge
to suggest that there had been any change of circumstance since Lady Paton's
decision of 19 September 2003. When the
appellant learned of the difficulty over Professor Shuy's availability, there
was nothing to prevent him from seeking an alternative witness. The only explanation of the relevancy of
Professor Shuy's evidence (as expert linguistics evidence) offered by Mr Shead
in response to questions from the court had related to the passage at page 12
of his report relating to frames of reference.
Nothing said to the trial judge or to this court supported the view that
linguistics evidence was required to enable the jury to undertake its
task. The appellant did not give
evidence. There was therefore no
evidence that he was confused by the language of the undercover police officer,
misunderstood him, or experienced any linguistic difficulty in dealing with
him. In that situation, Professor Shuy's
evidence would not have been admissible.
Further, the Advocate depute submitted, Professor Shuy's report was not
an impartial expert report. It went
beyond his expertise as an expert in linguistics. It was a partisan effort to discredit the
tape recordings of the meetings between the appellant and the undercover police
officer. The trial judge was entitled to
take the view that Professor Shuy's report armed the defence with lines of
cross-examination, the points being capable of being as well made in that way
as by the leading of Professor Shuy's evidence.
The absence of Professor Shuy's evidence as a result of the refusal of
the motion to adjourn did not result in the appellant being deprived of a fair
trial.
Professor Shuy's report
[13] We have had the opportunity of considering
Professor Shuy's report at greater leisure than was available to the trial
judge. We were able to invite Mr Shead
to explain to us the respects in which Professor Shuy offered real expertise
which would have assisted a jury in coming to a fair decision on the
interpretation of the evidence of the exchanges between the undercover officer
and the appellant. As we understood him,
the only passage in the report on which he specifically relied in that regard
was the passage at page 12 relating to "frames of reference".
[14] It seems to us that to a substantial
extent the views expressed by Professor Shuy in his report went beyond the
proper scope of his claimed expertise in linguistics. The first point which he made was that "The
undercover officer lacks scientific objectivity". That does not seem to us to depend to any
extent on the science of linguistics.
His second point was that "The undercover officer is vague and ambiguous
in his representation of proposed illegal activity". That point is elaborated under reference to
the practice of the FBI in the United States of
America.
Professor Shuy accepts that he is "unacquainted with the requirements of
Scottish undercover law enforcement officers".
That chapter of the report also seems to us to go beyond the science of
linguistics. It is based on knowledge of
FBI practice but ignorance of Scottish practice. Looking at the matter from the Scottish point
of view, it seems to us clear that the vagueness criticised by Professor Shuy
is the very avoidance of leading the suspect that would be expected in Scottish
practice. Professor Shuy's third point
is that "The undercover officer fails to capture all the evidence on
tape". Again the point seems to us to be
nothing to do with linguistics. It is a
glimpse of the obvious that if the tape is not started at the beginning of the
conversation, what was said before the tape was started is lost. The point can be made in cross-examination,
without the support of expert evidence.
The fourth point in the report is that "The undercover officer does not
take 'no' for an answer". We would not
expect him to do so. The fifth point is
that "The officer fails to understand that his frame of reference is different
from Arshad's frame of reference". While
this, as Mr Shead appeared to recognise, is the closest that Professor Shuy
comes to making a point based on linguistics, we are not persuaded that it
needs the support of expert evidence, and cannot simply be made in
cross-examination. In this part of his
report, Professor Shuy again goes beyond his expertise (at page 15), by
offering a view on the "going rate" for solicitation of murder in the United
States, as if that were applicable in Scotland.
The sixth point made in the report is that "The officer has a conflict
in the elapsed time of December 27 taped meeting with the announced times on
the transcript". Again we fail to see
what that has to do with expertise in linguistics. Finally, the point is made that "The officer
interrupts Arshad, thus preventing him from expressing himself fully". That too, in our view, is a point perfectly
capable of being made by cross-examination, without the support of expert
evidence.
Discussion
[15] It seems to us that there is some force in
the point made by Mr Shead that the way in which the motion to adjourn the
trial was dealt with before the trial judge was unsatisfactory. As he pointed out, the trial judge did not
have sight of Professor Shuy's report in advance of the hearing. It appears, too, from the transcript that she
did not rise to take time to read the report thoroughly. The submissions which she heard were
superficial. The questions of the
competency and relevancy of Professor Shuy's evidence were not fully explored
in the course of the hearing. In these
circumstances we consider that it would be unsatisfactory to deal with the
appeal by simply considering whether the decision to refuse the motion to
adjourn was one which was within the discretion of the trial judge. Instead, we are of opinion that we should
consider afresh the question whether an adjournment should have been granted,
taking into account the whole material which was put before us at the hearing
of the appeal.
[16] While we accept that the proper test is
whether the refusal of an adjournment prejudiced the appellant's right to a
fair trial, we do not consider that that question can be answered by reference
exclusively to the appellant's assertion that Professor Shuy's evidence was
crucial to his defence. We consider that
we must make an objective assessment of the significance of Professor Shuy's evidence,
as foreshadowed in his report, and assess the significance of the loss of that
evidence against the procedural history of the case and the way in which, in
the event, the trial proceeded.
[17] It is, in our view, essential to take into
account the procedural history of the case, which we have set out fully in paragraph [6]
above. There had been seven previous
adjournments on defence motion, and one transfer. The unavailability of Professor Shuy had been
known to the defence agents from 25
August 2003. It had been the
subject of a minute of postponement heard on 19 September. That minute had been refused. There had been no real change of circumstance
between 19 September and 31 October. A
devolution minute raising Professor Shuy's unavailability as an Article 6 issue
had been raised and abandoned. Despite
all that, no attempt had been made to obtain an alternative expert. We accept that to seek an alternative expert
would have involved seeking further sanction from SLAB, but nothing was said to
us which suggested that an alternative expert could not have been obtained in
this country. Professor Shuy's
"eminence" does not, to our mind, rule out alternative
expert witnesses, if expertise was required.
[18] In the event, the appellant did not give
evidence. There was no suggestion that
he did not understand the undercover police officer, or that there was any
linguistic difficulty that explained away what he was recorded as having
said. In that situation, it is not clear
what relevancy, if any, Professor Shuy's evidence would have had.
[19] It seems to us, however, that the most
telling justification for refusal of the motion to adjourn is to be found in an
examination of Professor Shuy's report.
The trial judge expressed the view that it did not bring to bear any
relevant expertise. On the fuller
examination to which we have been able to subject the report, we are satisfied
that the trial judge's impression was correct.
The majority of the points made by Professor Shuy are not founded on
expertise in linguistics. Some of the
points are based on American practice, and fail to consider whether the same
point can be made with the same force in the context of Scottish practice. Some are obvious. The majority are capable of being made by
cross-examination, and do not require the support of expert evidence. Looking at the matter as a whole, little, if
anything is lost by the exclusion of Professor Shuy's evidence. In that situation, we do not consider that it
is necessary to reach a concluded opinion on the formal question of competency.
[20] We should add that we do not regard the
fact that SLAB sanctioned Professor Shuy's employment as a consideration of any
weight. The decision made by SLAB no
doubt depended on the representations made to them about the relevancy and
importance of the evidence in question.
We do not know in what terms these submissions were made.
[21] Taking these considerations together, we
are satisfied, looking at the whole matter afresh, that the trial judge reached
the correct conclusion, and was right to refuse the motion to adjourn.
Result
[22] The appeal against conviction is therefore
refused. The case will be continued to
enable the appeal against sentence to be considered.
