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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General
Lord Osborne
Lord Johnston
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[2006] HCJAC 90
Appeal No: XC334/06 and XC335/06
OPINION OF THE COURT
delivered by THE LORD
JUSTICE GENERAL
in
NOTES OF APPEAL
y
(1) JULIE
CAROLINE BRITZ (section
71(2) Appeal)
and
(2) JULIE CAROLINE BRITZ (devolution minute
appeal)
Minuter;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Act: A. Ogg, solicitor
advocate; McCusker McElroy & Co., Paisley
Alt: A. Mackay, A.D.; Crown Agent
7 December 2006
[1] The appellant
has been indicted, along with two co-accused, in the Sheriff Court at Dunoon on a charge of assault to
severe injury, permanent disfigurement and permanent impairment. At a first diet she gave notice by minute of
a preliminary issue in respect of an objection to the admissibility of certain
evidence. By her minute she contended
that a line of evidence pertaining to her identification by the complainer at a
specified identification parade should not be admitted in evidence. She maintained that that identification
parade, in so far as it related to her, had been conducted unfairly by the
police officers responsible for it. In
particular, the stand-in participants were not of similar age, height, dress or
appearance to the minuter. At the
hearing the solicitor appearing for the minuter referred to a production
entitled "The Scottish Home and Health Guidelines on the Conduct of
Identification Parades". It was
submitted that the manner in which the identification parade had been conducted
did not meet the guidelines and was unfair.
A co-accused, who was heavily pregnant at the time, had also been on
that parade; the only step taken in respect
of the difference between her and others had been the use of a curtain.
[2] Along with
the notice under section 71(2) the appellant had lodged a devolution
minute. By it she maintained that it was
ultra vires of the prosecutor to lead
evidence of dock identification of the minuter as perpetrator of the alleged
crime. In that minute she narrated the
circumstances of the identification parade and maintained that any dock
identification would inevitably have been tainted by the earlier proceedings at
the identification parade. Dock
identification in such circumstances would, she maintained, have been contrary
to her right to a fair trial in terms of Article 6 of the European Convention
of Human Rights.
[3] Some
confusion appears to have occurred before the sheriff as a result of the
solicitor for the appellant addressing her first on the devolution minute. The sheriff became aware of the section 71(2)
minute only after the conclusion of the solicitor's submissions. Although there appears to have been some
reference to Thompson v Crowe 1999 SCCR 1003, the sheriff
was not addressed specifically on why she should have a "pre-trial" on the
admissibility of evidence of the identification parade. In response to the solicitor's submissions
the procurator fiscal depute had submitted that the section 71(2) minute should
be repelled. What had occurred at the
identification parade was a question of fact.
That was a matter for the jury and not for the judge. It should not be subject to a preliminary
plea. Reference was made to Holland v H.M.
Advocate 2005 SCCR 417.
[4] The sheriff
repelled the section 71(2) notice. In
her report to us she observes that Thompson
v Crowe concerned a statement and
its admissibility "and therefore I differentiated it from the present
case". She also noted that Thompson v Crowe arose from a summary trial, not from proceedings on
indictment. For the same reasons she
repelled the devolution minute.
[5] The appellant
has, with leave of the sheriff, appealed against her determination on each
minute. Miss Ogg on her behalf submitted
that the sheriff had erred in repelling the section 71(2) minute. The issue of admissibility in indictment
proceedings (which was a question of law) should have been determined by the
sheriff, either before the trial or in a trial within the trial (Thompson v Crowe). She should at least
have "considered" the preliminary issue at the first diet (section 71(2); Wright v
H.M. Advocate 2006 SCCR 455) and
not repelled it. Reference was also made
to Howarth v H.M. Advocate 1992 S.C.C.R. 364.
Miss Ogg, on the other hand, accepted that the devolution minute raised
an issue of the fairness of the trial as a whole - an issue which could not
ordinarily be determined until the trial was over (Holland v H.M.
Advocate, per Lord Rodger of Earlsferry at para. 41). It was, however, premature to repel the
devolution minute.
[6] The advocate
depute accepted that any question of the admissibility of evidence, including
the resolution of any factual issue upon which the question of admissibility
depended, was a matter for the judge or sheriff, not for the jury. The sheriff had not identified whether there
was any factual dispute about the circumstances of the identification parade
which required to be resolved before the legal issue of admissibility could be
determined. If there was no dispute
about these factual circumstances, the sheriff would be able to determine the
issue of fairness, and accordingly of admissibility, on the basis of
submissions. He did not seek to support
the position adopted by the procurator fiscal depute. Although he was unable to point to any
reported decision in which the issue of fairness of an identification parade
had been held to be a question of law, he accepted that Thompson v Crowe covered
all issues of fairness touching upon admissibility. The appropriate course in relation to the
section 71(2) minute was to allow the appeal and to remit it back to the
sheriff to hear the evidence (or, if the relevant facts were agreed, to hear submissions)
on the issue of admissibility. The
devolution minute appeal should be allowed and that minute remitted to the
sheriff with a direction that it be continued to the end of the trial.
[7] For several
decades prior to 1999 there was current in Scottish criminal jurisprudence the
view that issues of fairness in indictment proceedings were essentially matters
for a jury to determine (see Thompson v
H.M. Advocate 1968 J.C. 61; Balloch
v H.M. Advocate 1977 J.C.
23). The practice of holding, where an issue
of admissibility arose, a trial within a trial, which had been advocated by
Lord Justice-General Cooper and his colleagues in Chalmers v H.M. Advocate
1954 J.C. 66, was disapproved, one judge (Lord Avonside) going so far as to
describe it as a "lamentable process" (Hartley
v H.M. Advocate 1979 S.L.T. 26 at
page 28).
[8] In Thompson v Crowe a court of five judges, having reviewed the law and practice
in relation to objections to the admissibility of evidence, reinstated the
earlier practice. At page 1033D-F Lord
Justice General Rodger said:
"In my view the correct course is for
the court to overrule Balloch and to
revert to the previous law as it applied in Scotland up to the time of Chalmers. In doing so, Scots law will once more accord
to the judiciary in full measure the power to exclude statements obtained by
improper methods, a power which has been regarded as a necessary hallmark of
any civilised system of criminal jurisprudence (Wong Kam-ming v The Queen
at p. 261 per Lord Hailsham of St. Marylebone).
Once again, accordingly, it will be for the trial judge to decide
questions of the admissibility of the evidence of statements by the accused,
just as it is for the trial judge to decide all other questions of
admissibility. The decision will depend,
of course, on the facts of the particular case and, where there are conflicts
in the evidence about the circumstances, it will be for the trial judge to
resolve those conflicts and so to settle the factual basis upon which to take
the decision. The judge will exclude the
statement if it was taken in circumstances which would render it inadmissible
under any rule laid down by the law. In
other cases the judge will admit the statement if the Crown satisfies the court
that it would be fair to do so, by proving that the statement was made freely
and voluntarily and was not extracted by unfair or improper means".
[9] Thompson v Crowe was concerned with the admissibility of a statement, but, as
the final clause in the sentence at page 1033E shows, the principle applies to
all questions of admissibility. Thus, if
an issue is raised as to the admissibility of evidence of an identification
made at an identification parade, whether on the basis of the unfairness of the
procedure adopted or otherwise, it is for the judge or sheriff to rule upon
that issue, incidentally resolving, in so far as it may be necessary to do so for
that purpose, any factual issues which may arise. If the judge or sheriff holds the evidence,
or the line of evidence, to be inadmissible the jury will hear nothing of
it. If, on the other hand, the judge or
sheriff rules that it is admissible, the evidence can be laid before the jury,
which will, however, be entitled to take its own view of the circumstances in
which the challenged evidence arose and consequentially of the weight, if any,
to be given to that evidence (Chalmers v
H.M. Advocate, per Lord Justice-Clerk
Thomson at pages 82-3). It should also
be noted that the test for withholding evidence from a jury referred to in Howarth v H.M. Advocate, adopting the test laid down in Lord Advocate's Reference No. 1 of 1983) 1984 J.C. 52; 1984 S.C.C.R. 62, is no longer applicable,
both these cases having been decided during the currency of the view referred
to in paragraph [7] above.
[10] These
principles apply equally to solemn and summary proceedings (Thompson v Crowe, per Lord Justice-General Rodger at pages 1043G-1044A).
[11] In solemn
proceedings in the Sheriff Court the court is required to "consider"
any preliminary issue at the first diet (section 71(2)). Preliminary issues include a duly intimated
objection by a party to the admissibility of evidence (section
79(2)(b)(iv)). As was observed in Wright v H.M. Advocate at para. [16], the legislation was framed with a view
to facilitating the resolution of preliminary issues before trial. There may, however, be cases, such as Wright, in which that is not possible or
practicable and where the resolution requires to be made in the context of the
trial itself. The sheriff was, however,
in error in repelling the section 71(2) minute.
[12] We shall
accordingly allow the appeal in respect of the section 71(2) minute and remit
to the sheriff to proceed as accords in light of this Opinion. We shall also allow the appeal in respect of
the devolution minute and remit to the sheriff with a direction to continue
consideration of that minute until the trial diet.
