Scottish High Court of Justiciary Decisons

Act: Jackson, Q.C., Forbes; Balfour + Manson LLP

Alt: McSporran, A.D.; Crown Agent

15 January 2008

Introduction

[1] By this appeal the appellant seeks, under section 65(8) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"), reversal of orders made by the trial judge (a) under section 65(3)(a) of the Act extending the time limit for commencement of his trial provided for in section 65(1)(b), and (b) under section 65(5)(b) extending the time limit for detention provided for in section 65(4)(aa)(ii).

[2] Section 65 of the 1995 Act (as amended) makes inter alia the following provisions:

[3] The appellant was indicted at the instance of the respondent on six charges. Charge 1 was a charge of murder by shooting. Charge 2 was a charge of assault by presenting a firearm. Charges 3, 4 and 5 were of statutory offences under the Firearms Act 1968 as amended. Charge 6 was a charge of attempting to pervert the course of justice. There were two associated indictments, one charging a further contravention of the Firearms Act 1968, and one charging contraventions of sections 103(1)(b) and 143(1) and (2) of the Road Traffic Act 1988. Hereafter in this Opinion references to "the indictment" are references to the indictment which contained the murder charge. The other indictments are referred to as "the associated indictments".

[4] After sundry procedure, which included (a) a trial which was commenced on 2 July 2007 but deserted pro loco et tempore on 10 July because of jury difficulties and (b) amendment of the indictment by the deletion of charge 6 as a consequence of a ruling that certain identification evidence was inadmissible, the appellant's trial on the indictment began on 11 July 2007.

[5] In the course of the trial, evidence was led from a Crown witness, Brian Adair, of an admission allegedly made to him by the appellant. Adair spoke to the appellant and the deceased being present together in his home; of an argument between them; of their leaving the house; and of his then hearing two gunshots. He then spoke to leaving the house and finding the body of the deceased nearby. He said that while he was tending to the deceased he received a call from the appellant on his mobile telephone, in the course of which the appellant said:

[6] The Crown were aware that Adair would or might give evidence about that alleged admission. A statement which he had given to the police contained a passage referring to the alleged admission. That statement was disclosed to the appellant's solicitors. The passage in the statement which referred to the alleged admission had, however, in the copy of the statement originally provided to the defence, been "redacted". In other words, that passage had been obscured so that it could not be read, although it remained evident that there was a passage which had been so obscured.

[7] Following Adair's evidence in chief, counsel for the appellant sought and obtained an adjournment in order to check the terms of the original handwritten version of Adair's statement. On so checking the handwritten statement, counsel learned for the first time that Adair's statement contained reference to the alleged admission which he had spoken to in evidence, and that that reference had been redacted from the copy statement disclosed to the defence.

[8] The following day counsel for the appellant, in the absence of the jury, moved the trial judge to desert the diet simpliciter. Counsel sought to support his motion by reference to a number of other aspects of the Crown's conduct in addition to the redaction of Adair's reference to the alleged admission. Having heard counsel and the Advocate depute, the trial judge refused the motion to desert the diet simpliciter, but deserted the diet pro loco et tempore. He set out his reasons for taking that course at length in a written judgment. The appellant brought a Bill of Advocation against the trial judge's refusal of the motion to desert the diet simpliciter. We have refused to pass the Bill for the reasons given in our Opinion in that process.

[9] Following the trial judge's desertion of the diet pro loco et tempore the Advocate depute made applications (a) in terms of section 65(3)(a) to extend the time limit of 12 months for commencement of the trial prescribed by section 65(1)(b), and (b) in terms of section 65(5)(b) to extend the time limit of 140 days for detention prescribed by section 65(4)(aa)(ii). Similar applications were made in respect of the associated indictments.

[10] Having heard the parties' submissions on the Advocate depute's applications, the trial judge granted the extensions of time sought.

[11] The appellant has appealed under section 65(8) against the trial judge's grant of those applications. The ground of appeal, set out in paragraph 2(v) of the Note of Appeal, is that the Crown has failed to show cause for granting the extensions of time sought, and that the trial judge therefore erred in granting them.

[12] Mr Jackson dealt first with the extension of the 12 month time limit for commencement of the trial. The law relating to such extension was now to be found in Early v H. M. Advocate 2006 SCCR 583. In that case, Lord Justice Clerk Gill, with whom the other four members of the court agreed, reviewed the authorities on extension of the 12 month period. That review began with H. M. Advocate v Swift 1984 JC 83, in which a two stage test was laid down:

"At the first stage the court had to consider whether the Crown had shown a reason that might be sufficient to justify the extension. If they had, the second stage was for the court to consider whether, in the exercise of its discretion, it should in all the relevant circumstances grant the extension for that reason"

(Early, per Lord Justice Clerk Gill at paragraph 5, citing Lord Justice General Emslie in Swift at 88). Lord Gill went on, in paragraphs 6 to 11, to make a number of points about the Swift tests:

In paragraph [22] Lord Gill referred to Stenton v H. M. Advocate 1998 JC 278, and said:

"... an error on the part of the Crown is not necessarily fatal to an application of this kind. All that Stenton v H. M. Advocate decides is that it is not enough for the Crown merely to show that an error was made. They must explain why it was made and, before any question of discretion arises, the explanation must satisfy the court that the error is capable of being excused ..."

His Lordship continued, at paragraph [26]:

"In the light of an extensive review of the cases on section 65(3) and its predecessor, and with the benefit of counsel's submissions, I have come to the conclusion that it is unhelpful and inappropriate for the court to decide the question at stage 1 by classifying the Crown error as major or minor. In my view, there is no useful yardstick by which such a distinction can be applied. It requires the court to make a value judgment of a most uncertain kind. It leads to the making of fine and possibly unconvincing distinctions ... and sometimes it leads to surprising results";

and at paragraph [27]:

"But leaving aside these practical difficulties, I consider it wrong in principle that the question should turn on the single issue of whether the error is major or minor. In my view the court should simply decide the question on a consideration of the whole circumstances, as it does when the Crown is not at fault. The degree of gravity of the error is of course a relevant factor, but it is only one of many ... In short, the court should take into account all the circumstances that pertain to the commission of the error itself and to the subsequent history of the prosecution. On this approach, therefore, the court could hold that a grave error was excusable or that a lesser error was not."

At paragraph [30], his Lordship added:

"In the course of the discussion the advocate depute suggested that the gravity of the charge should be a relevant consideration at stage 1; otherwise there could be the undesirable consequence that the accused could escape prosecution on a grave charge. In my opinion, that suggestion is unsound. If the procedural history would lead the court to conclude that the error was otherwise inexcusable, I cannot see why the gravity of the charge can make it excusable."

[13] Mr Jackson submitted that this was a case in which the Crown failed the first part of the Swift test. The error on the part of the Crown was inexcusable. There was therefore no occasion to consider the second, discretionary, part of the test.

[14] It was common ground that the practice of redaction developed when there was a change in practice with regard to the disclosure to the defence of the police statements of Crown witnesses. Its proper scope was to avoid disclosure of personal details, such as telephone numbers or where the witness's children went to school. It was accepted by the Advocate depute, without hesitation, that it was not appropriate to redact any part of the statement which contained reference to relevant evidence which the witness would or might give. In the case of Adair's statement, the redacted passage came at the very end of the statement, after the witness indicated that he could identify the appellant. It extended to between one third and one half of a page. Mr Jackson made the point that the position of the redacted passage in the statement would not suggest that, contrary to the proper practice, the redaction took out material evidence.

[15] Mr Jackson drew our attention to the trial judge's treatment of the redaction issue in his judgment. He set out the information provided to him at the time of the motion for desertion. In February 2007, when counsel who appeared for the appellant at trial was first instructed, the appellant's solicitors, on counsel's instructions, wrote to the Crown stating that they required "all handwritten statements ... from all witness". Certain witnesses were specifically named, but Adair was not. The Crown replied that certain handwritten statements had been lodged as productions. No further handwritten statements were sent to the defence solicitors. In particular, no handwritten statement by Adair was provided. The trial judge referred to another inappropriately redacted statement given by Detective Sergeant Church, but the Advocate depute, interrupting Mr Jackson's submissions, informed us that the trial judge had misunderstood the situation, and that although that statement was originally disclosed with redaction, an un-redacted copy of it had subsequently been disclosed. Mr Jackson observed that the correction of that initial failure of proper disclosure in the case of DS Church's statement made the failure to provide an un-redacted version of Adair's statement all the more serious. Having narrated his understanding of the circumstances, the trial judge said:

[16] The trial judge, in his judgment, went on to consider the explanation offered by the Crown. He recorded that the Advocate depute accepted that Adair's statement should not have been redacted. Two explanations were tendered. The first was that Adair had been in fear of his life, and at the time he gave the statement it was judged that revealing the part which came to be redacted would place him in danger. Of that explanation, the trial judge observed that the sensible and obvious course would have been to withhold disclosure of Adair's statement until he was in protective custody, which happened a few days later. The second explanation was that it was thought not to be clear whether Adair would "speak up" to that part of his statement. That explanation the trial judge regarded as "extraordinary and incomprehensible". He said: "If such a factor were a proper basis for redaction then I imagine that in many cases the entire body of civilian statements could be redacted."

[17] Other points made by the Advocate depute to the trial judge related to other aspects of disclosure in respect of Adair's statement. One point was that when advising the defence, in response to the request for handwritten statements, that they would be available in court at the trial, the Crown asked the defence solicitors to confirm that that was sufficient and received no response. Another was that in October 2006 the tape of Adair's statement was requested. A tape was provided, which was understood to contain the redacted passage. In the event it proved to be blank, but the defence did not listen to it, and therefore did not realise that it was blank.

[18] The trial judge went on to express the view that:

[19] In relation to the extension of the 140 day period for detention, Mr Jackson accepted that the Criminal Procedure (Amendment) (Scotland) Act 2004 had repealed section 65(7) of the 1995 Act, which precluded extension of the previously applicable 110 day period when the cause for the delay was attributable to any fault on the part of the prosecutor, and that the test under section 65(5) was now equiparated with that under section 65(3), namely "cause shown". He submitted, however, that the court should nevertheless apply a strict standard in considering an application for extension of the 140 day period. In that connection, he referred to the observations made by Lord Hardie in H. M. Advocate v B 2006 SCCR 692.

The Crown submissions

[20] The Advocate depute began his submissions by accepting that if he could not persuade the court that the Crown's error was excusable, the appeal would succeed. He sought, however, to explain what had happened in more detail. The practice with regard to redaction had developed since disclosure of the police statements of witnesses had become a routine practice. At the material time, there was no Crown Office guidance given to procurators fiscal, and no clear precedents. He accepted that the general principle was that evidence should not be redacted, and that consequently the passage in question ought not to have been redacted from Adair's statement. That was the initial error. It was, however, an excusable one, when viewed in the light of what happened thereafter.

[21] So far as the first explanation offered to the trial judge was concerned, the position was that at the material time the Crown understood that certain witnesses feared the consequences of giving evidence, and sought to be taken into protective custody. Adair was in that category. The procurator fiscal depute dealing with the matter was anxious that disclosure of the statement should not be delayed. She was not aware when Adair would be taken into protective custody. Accordingly, evidently as a temporary measure, the reference to the appellant's alleged admission was redacted to allow the rest of the statement to be disclosed without delay.

[22] So far as the second explanation was concerned, the position was that the procurator fiscal depute was unsure whether the reference to the appellant's alleged admission formed part of Adair's statement or was merely a note appended to it of something that he would never give in evidence. She wished to clarify that at precognition. Again that was accommodated by the redaction.

[23] According to the Advocate depute, the precognition of Adair was completed about 24 July 2006. During the first week in August a version of Adair's statement was sent to the defence solicitors. Because the covering letter was not specific in identifying the material enclosed with it, it was not possible now to assert categorically that the statement sent at that stage was un-redacted. The procurator fiscal depute, however, believed that it was. The Advocate depute offered a suggestion as to how the defence solicitors might have failed to appreciate that the statement sent then was different from the redacted one originally disclosed - that it might have been thought to be a copy of something previously disclosed, and therefore discarded without its being noticed that there was an additional passage that had been redacted from the earlier copy - but that suggestion was no more than speculation.

[24] As the trial judge noted, there was a subsequent request for the tape of Adair's statement. A tape was sent. The Advocate depute stated that the tape was unedited, and was therefore understood to contain the whole of Adair's statement, including the passage redacted from the typewritten version originally supplied to the defence. Unfortunately, it transpired that the tape was blank. It appears, however, that despite having requested it, the defence solicitor did not listen to it, and therefore did not discover that it was blank. If he had done so, and requested a complete copy, it would, according to the Advocate depute, have been provided.

[25] The Advocate depute also reminded us that the complete handwritten version of Adair's statement was available in court at the trial, as the Crown had indicated it would be when responding to the defence solicitor's letter of 16 February 2007.

[26] The Advocate depute submitted that there was no question of the Crown having acted in bad faith. On the contrary, the procurator fiscal depute had been at pains to provide full disclosure. It had been wrong to redact the particular passage from Adair's statement, but the explanations offered indicated that once the difficulties which had led to redaction (the fears for Adair's safety, and the uncertainty as to whether the passage in his statement truly reflected evidence he could give) had been overcome (by his being taken into protective custody and by his being precognosced, respectively), the intention was to provide an un-redacted copy of his statement. The procurator fiscal depute believed that that had been done, but because of the deficiency of the listing of enclosures in the letter of early August was not in a position to demonstrate that it had been. The error, so the Advocate depute submitted, came to lie in the failure to have a proper record of what was disclosed. Subsequent events - the disclosure of what was thought to be a complete tape-recording of the statement (albeit it turned out to be blank), and the availability of the handwritten statements in court - demonstrated that the Crown did not intentionally withhold disclosure. In all these circumstances, the Crown's error could be regarded as excusable.

[27] In a brief response to the Advocate depute Mr Jackson accepted that the redaction from Adair's statement was in an unusual place, where redaction would not normally be expected, but he submitted that that was unimportant. One would not normally expect evidence of substance to come after the reference to the witness's ability to identify the appellant. He further submitted that a defence solicitor would not discard a disclosed statement without examining it, as the Advocate depute had suggested. Finally, he accepted that the appeal turned on whether the Crown error was excusable. If it was excusable, the court would be entitled to exercise its discretion to extend the time limits.

[28] As we are bound to do, we approach this appeal on the basis of the law as laid down in Early. We must therefore consider first whether the reason for the applications is one for which the Crown is responsible (Early, paragraph 6). That question need not, however, detain us, because it is clear on the narrative which we were given and which we have set out that the need for the extensions of time sought arises because of the trial judge's desertion of the diet pro loco et tempore, and that the principal reason for that desertion was the prejudice caused to the defence by the Crown's failure to disclose an un-redacted copy of Adair's statement containing the passage which referred to the telephone call in which the appellant allegedly made the comment which constituted an admission of his guilt.

[29] The next question which we must consider is what the Crown error was, and why it occurred (Early, paragraph 8). The initial error was clearly the disclosure of Adair's statement with a material piece of evidence redacted from it. It was common ground that it was inappropriate to redact a passage which was material to the evidence which the witness could give going to the merits of the case. Redaction is appropriate only to remove confidential details such as the witness's telephone number. Two reasons were advanced by the Crown for the redaction of the passage dealing with the alleged admission. The first related to the fact that the witness was understood to be in fear of his life. That would not, in our view, justify unqualified redaction of the reference to the alleged admission. The trial judge pointed out that disclosure could have been delayed until the witness was in protective custody. That is, in our view, a sound observation. It was, however, further explained to us that the procurator fiscal depute dealing with the matter was anxious to effect disclosure without delay, and did not know when the witness would be taken into protective custody. That, we think, could be regarded as justifying the redaction as a temporary measure, so long as full disclosure was effected once the witness was in protective custody. The second reason offered for the redaction was an uncertainty about whether the passage dealing with the alleged admission reflected evidence which the witness was willing to give, or was something which he would never say in the witness box. We see some force in the trial judge's comment that if everything that a witness might not speak to were redacted, most civilian witnesses' statements would be subject to wholesale redaction. Again, however, we were offered a further explanation, namely that the procurator fiscal depute intended to clarify the witness's position at precognition. It seems to us, again, that the explanation can be regarded as justifying redaction as a temporary measure, pending clarification of the witness's position.

[30] The focus therefore shifts to why full disclosure was not made once the witness was in protective custody and his position was clarified at precognition. A statement of Adair was allegedly sent to the defence solicitors in early August, shortly after he was precognosced. If that had been an un-redacted version of the statement in question, disclosure would have been effected, and the temporary disclosure of the redacted version would have been corrected. We were told that the procurator fiscal depute concerned is convinced that the unredacted version of Adair's statement was what was sent to the defence solicitors on that occasion. Unfortunately, the practice at that time did not involve the clear identification of enclosures in the covering letter. The result is that the procurator fiscal depute's belief cannot be vouched. We do not consider that we can accept the Advocate depute's speculation that the statement was sent in August in un-redacted form, but the defence solicitor discarded it thinking mistakenly that it was simply a copy of what had been received previously. We are therefore left in the position that we cannot tell whether the un-redacted statement was sent. We know that counsel for the appellant did not receive it before the trial. The Crown cannot demonstrate that it was ever sent. What we can accept, from what the Advocate depute told us, is that the procurator fiscal depute, who was seeking in general to be properly helpful to the defence, genuinely, but for aught the Crown can demonstrate, mistakenly thought that she had disclosed the un-redacted statement.

[31] Subsequent events afford some support for the view that the Crown was not deliberately concealing the redacted part of Adair's statement. The disclosure of the tape of the statement, in what was thought to be unedited form, is consistent with that position. We accept the Advocate depute's statement that if the defence solicitor had discovered that the tape was blank, another unedited copy would have been provided. Moreover, the availability of the un-redacted handwritten version of the statement in court at the trial, and the fact that it had been indicated months earlier that that would be the case, is also consistent with an intention to make unqualified disclosure.

[32] Having examined the circumstances put forward in explanation of the Crown's error, we must next consider the crucial question whether that error was excusable or inexcusable (Early, paragraph 22). We need not classify it as major or minor, for the reasons explained by Lord Justice Clark Gill in Early at paragraphs 26 and 27. The trial judge said in his judgment: "the Crown has deliberately concealed from the defence passages of evidence of crucial import". Had that been an appropriate characterisation of the Crown's behaviour, it would, in our view, have been difficult to avoid the conclusion that the error was inexcusable. In the light of the explanations offered, however, we do not consider that that characterisation is appropriate. No doubt the redaction was deliberately done when it was done. We can, however, as we have said, accept that it was originally intended as a temporary measure, and that the intention was to make full disclosure once the witness was in protective custody and had been precognosced. The error on the part of the Crown that remains to be taken into account is their failure to ensure, and be in a position to demonstrate, that once these steps had been taken, full and unqualified disclosure was made. That failure, we accept, was not deliberate. It can, we think, be characterised as an "administrative mishap" (cf Early, paragraph 9), albeit a serious one. We take the view, having regard to the whole circumstances (Early, paragraph 27), that it should properly be regarded as an excusable error.

[33] The trial judge's approach to the applications for extension of the time limits was, in our opinion, flawed. It appears from the passage in his Report quoted in paragraph [18] above that he did not first consider the question of whether the Crown's error was excusable and then go on to consider whether to exercise the discretion conferred on him by the statute, but instead treated the whole matter as one for his discretion. We therefore consider that the matter is open for us to consider de novo. For the reasons which we have set out, we take the view that the Crown's error was excusable. We therefore have a discretion to grant or refuse the applications. Taking account of the broader range of considerations relevant at that stage, including in particular the serious nature of the principal charge and the public interest that the appellant should stand trial in respect of it, we are satisfied that it is proper to grant the applications. We therefore take the view that the trial judge reached the correct result, albeit without following in detail the guidance given in Early.

[34] We do not consider, having regard to the legislation as it now stands, that the criteria for judging the application to extend the 140 day period are any different from those applicable in relation to extension of the 12 month period.

[34] The appeal is therefore refused in relation to both applications.