APPEAL COURT, HIGH COURT OF JUSTICIARY |
|
Lord Nimmo Smith
Lord Philip
Lady Paton
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[2008] HCJAC 12Appeal Nos: XC799/06, XC800/06 and XC801/06OPINION OF THE COURT delivered by LORD NIMMO
SMITH in APPEALS under section 74 of the
Criminal Procedure ( by PAUL DANIEL STEVENSON,
SCOTT GEORGE RANKINE and WILLIAM DANIEL STEVENSON Appellants; against HER MAJESTY'S ADVOCATE Respondent; _______ |
Act: Shead, McKenzie; Hunter & Robertson,
Alt: K. Stewart, A.D.; Crown Agent
Introduction
[1] These
appeals arise from events which are alleged to have taken place at an address
in
[2] The
appellants were originally indicted for trial on these charges in the
[3] Prior to the
commencement of the trial it was discovered that certain labelled productions,
namely a brick, a shovel, a brush and a broom ("the implements") were missing.
It appears that they had been destroyed approximately six months previously,
having been mistaken for rubbish which was being cleared out from the police
station where they had been stored. The Crown
moved the court to desert the diet pro
loco et tempore and to extend the time-bar.
These motions were opposed by the appellants who argued that the case
should be deserted simpliciter. On 16 October the Crown motion to desert the
diet pro loco et tempore was granted
and the motion to extend the time-bar was refused. On the same date an indictment was served on
the appellants citing them to a trial diet on
The first plea:
competency
[4] The first
preliminary plea was to the effect that proceedings on the most recent
indictment were incompetent as the date fixed for the first diet was less than
15 clear days after the date of service of the indictment, contrary to the terms
of section 66(6)(a)(i) of the Criminal Procedure (Scotland) Act 1995 ("the 1995
Act"). Before this court it was argued
on behalf of the appellants that the first diet was a peremptory diet and as
such provided a procedural safeguard for the protection of the accused. The failure to give the appellants the period
of notice provided for by section 66(6) of the 1995 Act rendered the indictment
incompetent. Counsel for the appellants
urged us to follow the approach adopted in
"The interest to be protected is not
that of the individual appellant but of the whole body of the public, and we
cannot adopt the view that the requirements of solemn criminal procedure are
only obligatory if and so far as any deviation may be thought to have adversely
affected the individual immediately in question. Were it once admitted that it was a question
of facts and circumstances in each case whether a serious deviation from
regular procedure should be ignored, the anchor of the entire system would drag"
[5] In H.M. Advocate v McDonald and Others 1984 SCCR 229, the respondents were cited to a
trial diet in the High Court on an induciae which was one day shorter than it
should have been. The questions which the
court of five judges in that case had to decide were whether, because the
period between service of the indictment and the trial diet was less than 29
clear days in terms of sections 75 and 111A of the Criminal Procedure
(Scotland) Act 1975 ("the 1975 Act"), the proceedings at the trial diet were
fundamentally null, regardless of the wishes of the respondents, and whether
the objection to the citation could be stated by the respondents at the trial
diet when they had failed to give notice of the objection within 15 days of the
service of the indictment in terms of sections 76(1)(a) and 108(1) of the 1975
Act.
[6] In delivering
the Opinion of the Court, Lord Justice General Emslie said at p. 237:
"As to the first of these questions
the answer is to be found by asking whether an objection of invalid citation -
want of due citation - can be waived by an accused."
He then cited examples of situations which the law regarded
as involving fundamental nullity even where the accused had concurred or
acquiesced, and went on,
"Invalidity of citation, however, has
never had in our law the consequence that proceedings at a trial diet fall to
be regarded as incompetent and fundamentally null because, while invalidity of
citation is open to objection by an accused, it is an objection which can be
waived."
[7] In the course
of their submissions, counsel for the appellants argued that the court's
decision on the question of fundamental nullity in McDonald was obiter. We reject this submission. The court required to decide that question
before it could decide the question of the competency of the objection at the
trial diet.
[8] In Kerr v Carnegie 1998 SCCR 168 the complainer, who was charged on summary
complaint in
[9] Kerr v Carnegie was followed in Hogg
v H.M. Advocate 1998 SCCR 338, in
which an appellant charged on indictment with three charges was not called upon
to tender a plea in respect of each of those charges at the first diet in terms
of section 71(6) of the 1995 Act. In
relation to one of the charges he had lodged a special defence of alibi, the
words of which, in accordance with the normal form, incorporated a plea of not
guilty. In rejecting the argument that
the proceedings were rendered null as a result of the failure to call upon the
appellant to tender a plea, Lord Justice General Rodger said that the purpose
of the first diet in Sheriff Court solemn procedure was similar to that of an
intermediate diet in summary procedure.
It was administrative in character and not specially conceived in favour
of the accused.
[10] Counsel for
the appellants again argued that the statement in Hogg that the proceedings were not rendered null by the fact that
the appellant had not tendered a plea to two of the charges at the first diet
was obiter. Again we do not agree. It was the de quo of the decision.
[11] More recently,
the effect of defects in procedure on the validity of subsequent proceedings
was considered in the case of Robertson v
Higson 2006 SC (PC) 22. Although that case was principally concerned
with the question of acquiescence on the part of the appellants tried and/or
sentenced on summary complaint by temporary sheriffs prior to the decision in Starrs v Ruxton, certain passages in the opinions of members of the Judicial
Committee of the Privy Council and in the High Court of Justiciary throw fresh light
on the meaning of the expressions "fundamental nullity" and "fundamentally
null".
"What these cases tell us, as Lord
Macfadyen was right to point out in the High Court of Justiciary, is that the
question whether acquiescence is available or is excluded is not to be
determined by asking whether the decision in question was invalid or was a
fundamental nullity ... The determining factor is the nature of the defect
itself. Is it of such a kind that the
court has no alternative, irrespective of how the accused has reacted to it,
but to set aside the sentence or to quash the conviction.
[14] I
do not think that we need to consider what kinds of defects there might be,
outside the class of cases which have already been recognised, that might fall
into the category of defects that are incurable. I agree with Lord Macfadyen that there are no
unequivocal criteria by which to recognise that kind of nullity... As the Lord Advocate said, the expression
'fundamental nullity' has no absolute meaning.
It all depends on whether the court is willing to grant the remedy
sought."
[13] At paragraphs
[49] and [50] Lord Rodger of Earlsferry said:
"Several of the judges below pointed
out that it is impossible to extract from the authorities criteria by which to
identify what counts as a fundamental nullity.
This is because the term 'fundamental nullity' is conclusionary in nature: it is used to describe those defects for
which the court will always supply a remedy.
On a slightly modified version of Lord Macfadyen's analysis, ... it is
clear that in the case of some defects which prima facie justify suspension the conviction or sentence will be
allowed to stand if the person entitled to challenge it acts in such a way as
to give rise to an inference that he has accepted or acquiesced in it; in the case of other defects the court will
suspend the conviction or sentence even if the complainer has accepted or
acquiesced in it. As Lord Macfadyen ... commented,
the policy of the law determines into which category a defect falls.
[50] Into
which category, then, does the defect in the present proceedings fall? In principle, if suspension is to be
permitted despite the complainer's acquiescence, the defect must be
sufficiently serious to overcome the policy of the law in favour of upholding
convictions and sentences which the complainer has accepted and which have been
treated as valid for a considerable period."
[14] In the passage
cited with approval by both Lord Hope and Lord Rodger, Lord Macfadyen, in the
High Court of Justiciary (2005 JC 10, at paragraph [66]) said:
"There are, in my opinion, no
unequivocal criteria by which to recognise a nullity that cannot be overcome by
implied consent. I do not consider that
any common thread can be seen as running through the cases. It is, it seems to me, a matter of the policy
of the law in each case whether the defect should be regarded as of such a
nature or of such gravity as to be incapable of being overlooked, even if the
accused may be taken to have consented to its being overlooked."
[15] In the present
case the question of acquiescence does not arise since the appellants have been
alive to the defect in citation from the beginning and took the point at the
first opportunity. They were represented
at the first diet on
[16] Although Lord
Justice General Emslie's statement in McDonald
and Others v H.M. Advocate that
invalidity of citation had never had the effect of rendering proceedings at a
subsequent trial diet incompetent was made in the context of waiver by an
accused of his right to object, it is clear from the later cases that, where
questions of waiver and acquiescence do not arise, defects in citation will not
have the effect of rendering subsequent procedure incompetent where there is no
prejudice or injustice to an accused. As
in Kerr v Carnegie it is relevant to the question of prejudice to consider
the purpose of the provisions of section 66(6) relating to the first diet. As was pointed out in Hogg v H.M. Advocate the
purpose of the first diet is similar to that of the intermediate diet in
summary procedure. It is not specially
conceived in favour of the accused but is of an administrative nature directed
to pre-trial preparation. In Kerr v Carnegie the intermediate diet was omitted altogether but the court
nevertheless held that subsequent procedure was not rendered incompetent.
[17] In the present
case a first diet took place. The
appellants were not prejudiced or disadvantaged. In these circumstances we are clearly of the
view that the shortened induciae did not represent a defect in procedure
sufficiently grave to have the effect of rendering subsequent procedure
null. The appeals on this ground accordingly
fail.
The second plea: oppression
[18] This plea arises from the loss of the implements. The plea is to the effect that each of the
appellants is severely prejudiced by the loss of these objects to such a degree
that they cannot receive a fair trial, no direction by a sheriff can cure the
deficiency in the evidence, and accordingly the actings of the Crown in
re-indicting the appellants without including these objects as labelled
productions are unfair and oppressive.
As we have said, the sheriff repelled this plea in hoc statu.
[19] It is
convenient at this point to give a brief account, in chronological order, of
the authorities to which reference was made before us. In Maciver
v Mackenzie 1942 JC 51 Lord
Justice General Normand, in a passage applied in Tudhope v Stewart 1986 JC
88, said at page 54 that the test of whether articles required to be
produced was whether the real evidence was essential for proving the case
against the accused, and not for the purpose of testing the credibility of the
Crown witnesses.
[20] Maciver v Mackenzie was referred to in
[21] Anderson v Laverock
was of course decided before the incorporation of the European Convention on
Human Rights into our domestic law in 1998, but it can be seen from the
Commission decision in Jespers v Belgium (1981) 27 D.R. 61 that the
application of Article 6 of the Convention leads to a similar result. At paragraphs 55 to 58 the Commission
referred to the principle of "equality of arms", expressing the view that the
"facilities" referred to in Article 6, paragraph 3(b), which everyone
charged with a criminal offence should enjoy, include the opportunity to
acquaint himself, for the purposes of preparing his defence, with the results
of investigations carried out throughout the proceedings. It was the right of the accused to have at
his disposal, for the purposes of exonerating himself or of obtaining a
reduction in his sentence, all relevant elements that had been or could be
collected by the competent authorities.
[22] The leading
Scottish case to which reference was made is McFadyen v Annan 1992 JC
53, in which a Full Bench held that, in cases of alleged oppression, the
question for the court was whether there was such prejudice to the prospects of
a fair trial that it would be oppressive to require the accused to face trial,
the test of oppression being the same in such cases as in any other
situation. In solemn proceedings, the
court required to ask whether the risk of grave prejudice to the prospects of
the accused receiving a fair trial was so grave that no direction by the trial
judge to the jury could be expected to remove it.
[23] Reference was
made to other cases in which objects had not been lodged as productions. In McKellar
v Normand 1992 SCCR 393 the appellant
was charged with the reset of a bed and a blanket, neither of which was produced
at her trial. The court held that while
it was good practice for items which were the subject of a charge of this kind
to be produced if it was convenient to do so or, failing production, for labels
relating to them to be produced in their place, the question was always
whether, in the absence of the items or labels, injustice was likely to result
to the accused, which was not the position in that case.
[24] In McQuade v Vannet 2000 SCCR 18 a tape recording taken from CCTV cameras which
covered the locus had been deleted. The
appellant took a plea in bar of trial on the ground that the destruction of the
video record prevented a fair trial taking place. It was held that the sheriff correctly
repelled the plea on the ground that any prejudice was possible rather than
actual and could not be said to be grave until more was known about it. If, having heard the relevant evidence, the
sheriff was persuaded at trial that the prejudice was so grave that he could not
arrive at a fair verdict, he could desert the diet. In Rose
v H.M. Advocate 2003 SCCR 569 a
similar situation, involving the deletion of a tape recording, arose. The appellant lodged a devolution minute on
the ground that the absence of the video tape created a material risk of his
not receiving a fair trial, contrary to his entitlement under Article 6 of
the Convention, since it deprived him of the opportunity to fortify the
credibility and reliability of a witness who had seen the tape recording. It was held that the correct question at the
pre-trial stage was not whether there was a material risk of the appellant not
receiving a fair trial, but whether the circumstances were such that he could
not receive a fair trial. Since there
was no agreement as to what could be seen on the tape recording, and whether it
would have supported the defence and undermined the evidence of the complainer,
this was not a case in which it could be affirmed before the trial that for the
proceedings to continue against the appellant would involve a breach of his
right to a fair trial under Article 6.
[25] Finally,
reference was made to Sinclair v H.M. Advocate 2005 SC (PC) 28, a case
which related to the failure of the Crown to disclose police statements which
could have been used to undermine the credibility and reliability of a Crown
witness. At paragraph 33 Lord Hope
of Craighead said:
"First, it is a fundamental aspect of
the accused's right to a fair trial that there should be an adversarial
procedure in which there is equality of arms between the prosecution and the
defence. The phrase 'equality of arms'
brings to mind the rules of a medieval tournament - the idea that neither side
may seek an unfair advantage by concealing weapons behind its back. But in this context the rules operate in one
direction only. The prosecution has no
Convention right which it can assert against the accused. Nor can it avoid the accused's Convention
right by insisting that the duty does not arise unless the accused invokes it
first. Secondly, the prosecution is
under a duty to disclose to the defence all material evidence in its possession
for or against the accused. For this
purpose any evidence which would tend to undermine the prosecution's case or to
assist the case for the defence is to be taken as material. ...".
[27] The Advocate
Depute pointed to the fact that the three complainers had been listed as Crown
witnesses, and indicated that the Crown had not had tests carried out on the
implements. This led counsel for the
appellants to submit that the failure of the Crown to explore the possibility
that the implements did not bear the DNA of all or any of the appellants, and
thus to seek evidence which might have led to the exculpation of the
appellants, constituted a breach of the appellants' rights under Article 6
of the Convention.
[28] In our opinion
the sheriff correctly decided to repel the plea in hoc statu. It seems to us
to be quite impossible to affirm at this stage that the appellants cannot
receive a fair trial. The appellants
founded strongly on
[29] The defence
will have all the usual opportunities during the course of the trial to make
submissions about and to exploit the loss of the implements. The significance of that loss will require to
be assessed by the sheriff in the context in which it is raised, and
appropriate decisions made then. We are
not to be taken to be expressing any view about these issues in advance of the
trial: it is sufficient that in our
opinion it is impossible to say at this stage that the appellants cannot
receive a fair trial or that the requirements of the law cannot otherwise be
complied with. For these reasons the
appeals on this ground also fail.
Result
[30] We shall accordingly refuse the appeals
and remit to the sheriff to proceed as accords.