Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2009/2009HCJ06.html
Cite as: 2010 SLT 239, 2010 SCCR 146, [2009] ScotHC HCJ_6, [2009] ScotHC HCJ_06, [2009] HCJ 06, [2009] HCJ 6, 2010 SCL 372, 2010 GWD 2-23

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HIGH COURT OF JUSTICIARY

[2009] HCJ 06

OPINION OF LORD BRODIE

in the cause

H.M. ADVOCATE

against

G and Others

________________

Crown: Ogg, QC, AD; Crown Agent

First Accused: Matt Jackson Advocate; Morrison & Haggerty

Second Accused: Iain Paterson, Solicitor Advocate; Iain McCafferty

Third Accused: Kerrigan, QC, Gavin Anderson, Advocate; Higgins Morledge & Litterick

23 December 2009

Introduction

[1] This case called before me at the High Court at Edinburgh for a continued preliminary hearing on 7 January 2009. The first accused was represented by Mr Matt Jackson, Advocate. The second accused was represented by Mr Iain Paterson, Solicitor Advocate. The third accused was represented by Mr Kerrigan, Q.C., and Mr Gavin Anderson, Advocate.

[2] The indictment contains 13 charges libelling incidents of serious sexual abuse and rape of two complainers: E, born on 13 April 1997; and, D, born on 21 May 1996, which is alleged to have occurred on various occasions between a date in 2001 and a date in 2007.

[3] There had been previous preliminary hearings on 25 August, 27 October and 18 December 2008. As appears from the Minutes of these Preliminary Hearings, parties have been concerned over the evidence of both complainers. A number of different difficulties have been anticipated in the light of investigations by and advice received from instructed experts. An indication of the extent of these difficulties is provided by perusal of the reports prepared by Professor Frank McPherson, Consultant, Clinical Psychologist, productions No 61 to 68. Professor McPherson is one of three psychologists who appear on the Crown list of witnesses.

[4] Child witness notices had been lodged by the Crown in terms of section 271A(a) of the Criminal Procedure (Scotland) Act 1995 in respect of D and E. These notices came before Lady Dorrian in chambers on 14 August 2008. She appointed that the notices should be disposed of at the Preliminary Hearing assigned for 25 August 2008 on the basis that the special measures sought were not standard special measures in terms of section 271A(14) of the 1995 Act. It was proposed that the evidence of the complainer, D, should be taken on commission as provided by section 271I and that the evidence of the complainer, E, should be taken by live television link as provided for by section 271J. A question having arisen as to what special measures would be appropriate for the purpose of taking the evidence of the complainers, the Crown did not move the section 271A applications on 25 August 2008 or at either of the subsequent continued preliminary hearings. At the continued Preliminary Hearing before Lord Uist on 18 December 2008, Mr Jackson, on behalf of the first accused, advised that Dr. Janet Boakes had been instructed with a view to her providing an opinion as to the ability of D to give evidence but that Dr Boakes had declined to provide an opinion. Professor Memon had been instructed on behalf of the third accused, however, and it was anticipated that she would be able to provide an opinion. Dates (22 and 23 January 2009) had provisionally been identified for a hearing of the child witness application in respect of D. Mr Kerrigan, for the third accused, confirmed that Professor Memon was available to give evidence on 22 and 23 January 2009. However, her report would not be available until 5 January 2009. Having heard from Mr Paterson on behalf of the second accused and the Advocate Depute on behalf of the Crown, Lord Uist on the joint motion of the representatives of the first, second and third accused, there being no opposition, continued the PreliminaryHhearing until 7 January 2009 to enable; those representing each of the accused to consult with Professor Memon with a view to confirming to the court on 7 January 2009 whether the child witness notice in respect of D, was opposed, and whether a hearing was therefore required; and the Crown to advise the defence in advance of the continued Preliminary Hearing as to the exact arrangements envisaged for the taking of the evidence of D on commission.

Submissions

[5] At the hearing before me on 7 January 2009 Mr Kerrigan took the lead for the defence, Mr Jackson and Mr Paterson adopting his position and joining in his motion which was to further continue the preliminary hearing to 22 January 2008 for the purpose identified by Mr Kerrigan.

[6] Mr Kerrigan confirmed that although he had not yet consulted with Professor Memon, having had the benefit of her report, he was content that, if D's evidence was to be led, the most appropriate special measure would be by taking her evidence by way of commission. There was no issue in relation to the special measure proposed in relation to E. However, the focus of concern had moved from how the complainers' evidence should properly be led to whether it could properly be led. Mr Kerrigan drew my attention to two Minutes which he presented to the Court. One was a Devolution Minute in terms of Form 40.2A of the Act of Adjournal. The other was a Minute of Notice in terms of section 72(6)(b) of the 1995 Act. The grounds set out in the respective Minutes upon which the Minuter intended to raise a Devolution Minute and a Preliminary issue were virtually identical. Because of the prominence that Mr Kerrigan gave to it, I quote from the Devolution Minute. The grounds upon which it was presented are set out as follows:-

"That the complainers [D] and [E] have each been interviewed at various times by police officers and the Procurator Fiscal at Crown precognition in September 2008. Said interviews were conducted otherwise than in accordance with the Guidance on Interviewing Child Witnesses in Scotland (2003 Edition).

As regards Crown precognition, there is no record of the questions asked of each complainer, though there are indications of potential interviewer bias where the Crown was seeking to have the complainers confirm each other's account rather than simply to find out what each complainer says happened.

There is evidence that when the complainer [D] was precognosed by the Crown a second time, she had by then discussed her position with [E] and rehearsed what she was to say.

As the questions put to each complainer at Crown precognition are not recorded, it is impossible to know the basis upon which the complainer [D] changed her position from initially stating that [the Minuter] did nothing, to saying that he did the same things to her as [the co-accused].

All police interviews with each complainer focussed upon asking the complainer to recount what she had told someone else, as opposed to being asked to simply say what happened. Another feature of the police interviews was the repeated and inappropriate use of closed questions.

That in all the circumstances, the interviewing processes deployed by the police and the Procurator Fiscal had led to such cross-contamination of the evidence of each complainer that neither can be relied upon as a reliable witness to any of the allegations libelled against the Minuter. Their evidence is inadmissible. Were it to be led in any trial, the act of the Lord Advocate in adducing that fundamentally flawed evidence would constitute a violation of the Minuter's rights to a fair trial under Article 6 of the European Convention on Human Rights".

[7] Mr Kerrigan wished to insist on both Minutes, although late, with a view to persuading the court that the evidence of both complainers or one or other of them, was so tainted by the way in which they had originally been interviewed, that it should not be admitted. This argument might be supplemented by reference to an argument based on the phenomenon of false memory. Mr Kerrigan proposed that the case should be continued to 22 January 2008 with a view to hearing the evidence of Professor Memom and, at a continued diet, Dr. Boakes, (who was not available on 22 January). At one or the other of these diets, the Crown would be able to lead its experts if its position was that Professor Memom's evidence was not to be accepted.

[8] Responding, the Advocate Depute accepted that, having instructed an "audit" of the way in which the complainers had been questioned during the investigative process, there were matters which gave rise to concerns. However, on the advice available to the Crown it was considered that the children were capable of giving reliable testimony. The results of the audit had been disclosed to the defence. Additionally, D had intellectual and auditory difficulties which would impact on her giving evidence. However, there was a location, which the Advocate Depute described in detail, which would allow D's evidence to be taken on commission in an environment which was both "child friendly" and which had the benefit of advanced technology. The Advocate Depute opposed Mr Kerrigan's motion. He submitted that the special measures proposed in the Child Witness applications should be approved, that arrangements for taking the evidence of D on commission should go ahead and, after that had happened a trial should be fixed at a future continued Preliminary Hearing. He accepted that there might be a situation where, having heard the evidence in question, a judge might come to the view that that evidence simply could not be regarded as accurate or reliable and that then the judge would have a duty, as a matter of law, to rule the evidence inadmissible and direct the jury accordingly, but that was an exceptional circumstance and one that could only arise once the judge had heard the evidence.

[9] In a second speech, Mr Kerrigan reminded me that the whole purpose of the procedural reforms which had followed upon the recommendations of the Bonomy Committee, had been to bring issues before the Court at an early stage and not to leave them over for trial. He referred me to the Opinion of Lord Justice Clerk in N v HMA, otherwise GDN v HMA or Nulty v HMA 2003 JC 140, 2003 SCCR 378 at paragraphs 42 and 33. It was a question of law as to whether evidence was or was not admissible. The court could form a view based on the evidence of Professors Memon and McPherson and Dr. Boakes. Mr Kerrigan accepted that, having heard this evidence, he would be proposing to invite the judge to make an assessment of its potential quality without having heard it. Nevertheless, this was an exceptional case where it may by possible to make such an assessment even without hearing the evidence.

Discussion

[10] The defence (I use this expression to comprehend all three accused whose positions I took to be the same) wish to object to the admissibility of the oral evidence which the Crown proposes to adduce from two children, E who is 11, and D who is 12. Through the processes of precognition and disclosure, parties will have a good idea of what it is the Crown may be able to adduce but just what that evidence will turn out to be is not yet known.

[11] The basis upon which it is contended that the evidence is inadmissible is as set out in the Minutes for the third accused (and the representatives of the other accused indicated their intention to lodge similar Minutes). Put shortly, it is suggested that the interviewing processes deployed by the police and the procurator fiscal have led to such cross-contamination of the evidence that neither complainer can be relied upon as a witness to any of the allegations against the Minuter. It is contended that for the Crown to adduce the evidence would be to contravene the right of the accused to a fair trial.

[12] The Advocate Depute accepted that both witnesses are critical to the success of the Crown case. Unless both are found to be credible and reliable the Crown cannot succeed in respect of any of the charges. There can therefore be no question but that the defence must be entitled to deploy every argument and lead any evidence available to them with a view to discrediting this evidence. As I see it, the only issue before the Court is when this should happen, and, in particular, whether it should happen at a hearing beginning on 22 January 2009 and concluding at some future date, as contended for by Mr Kerrigan, or whether it should happen in the course of the trial, as contended for by the Advocate Depute.

[13] Mr Kerrigan put his Devolution Minute into the forefront of what he had to say but he did not explain what effect it had over and above his Preliminary Issue Minute beyond characterising the two Minutes as offering him both "belt and braces" and reminded me that in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate has no power to do anything which is incompatible with a Convention right.

[14] The issues I have to determine are those focused in section 72(6)(b)(i) and (ii) of the 1995 Act and rule 40.5(2) of the Act of Adjournal: whether or not it was inappropriate to dispose of the preliminary issue raised in the two Minutes and the Child Witness notices at either this or a future continued Preliminary Hearing and what orders it is appropriate to make. I take the view that the basis for my decision has to be essentially pragmatic.

[15] There is no reason in principle why the course advocated by Mr Kerrigan should not be followed. While what is guaranteed by article 6 of the Convention is a fair trial, looking at the proceedings as a whole, the Appeal Court has recognised that the discrete act of the Lord Advocate in tendering a particular item of evidence might, in itself, render the trial unfair: N v HMA 2003 JC140. Mr Kerrigan was correct to say that the objects of the procedural reforms associated with the Bonomy Committee include the early identification and resolution of issues which can be determined in advance of trial with a view to abbreviating any eventual trial or avoiding the need for trial entirely. The formulation of section 72(6)(b)(i) encourages early disposal. It is commonplace to deal with objections to the admissibility of evidence, with or without the leading of oral testimony, at a Preliminary Hearing. In N v HMA supra at paragraph 32 the Lord Justice Clerk described dealing with an objection based on a contravention of the guarantee of fairness, prior to trial as "exceptional" and in R v A (No2) [2002] 1 AC 45 at paragraph 107, an authority cited by the Lord Justice Clerk, the cases where this would occur are described as "rare and isolated", but everything must depend on the facts. Here, on the information before me, I cannot exclude the possibility that the question of the admissibility of the complainers' evidence is capable of being dealt with as a preliminary issue. That, however, is not the test I must apply. What I have to decide is whether it is inappropriate to dispose of the defence objection as a preliminary issue or, rather, attempt to dispose of it as a preliminary issue, because, as Mr Kerrigan accepted, it may turn out that the question cannot be determined before the evidence of the children is led.

[16] I have come to the conclusion that it would be inappropriate to attempt to dispose of the objection contained in the two Minutes for the third accused as a preliminary issue and that for the following reasons.

[17] The objection advanced in both Minutes is based on doubts as to the reliability of the witness's evidence. The case is therefore to be distinguished from those where the objection to the admissibility of evidence is based on the legality of its acquisition or where it offends against a general rule of law, such as the rule against hearsay. The evaluation of the reliability of evidence is usually regarded as a jury function. That is not to say that there may not be circumstances where evidence can be assessed by a judge as being so manifestly unreliable that it cannot be used as a basis for conviction. In such a case the judge who has heard that evidence would be under a duty to direct the jury to disregard it or, if appropriate, to acquit. However, initially at least, Mr Kerrigan does not propose that a judge should hear the evidence of the two witnesses. Rather, what he proposes is that a judge should hear the evidence of a number of psychologists who will offer opinions as to the reliability of such evidence as the children might be asked to give at a future date, having regard to the material available to the psychologists as to the circumstances in which the charges on the indictment were investigated and, in particular, how the children were questioned about the matters which now appear in the indictment. Without excluding the possibility that the judge who heard such evidence might be able confidently to determine that the children's evidence simply could not be reliable, I rather doubt whether such a decision would be possible without the judge having heard the children's evidence in relation to the charge on the indictment. As far as the complainer D is concerned, whose evidence it is proposed should be taken on commission, it might be possible for that evidence to be taken and then to be available to the judge hearing the objection on admissibility with the result that he could have reference both to the child's evidence and what the expect witnesses have to say about it. That course is not available in respect of E in whose case the special measure proposed is giving evidence at trial by a remote television link.

[18] Because of what I see as the difficulty of coming to a concluded view as to the reliability of evidence without having heard it, I consider that Mr Kerrigan's proposal presents a real risk that the hearing of expert evidence will be inconclusive and therefore abortive. Unless the judge hearing the objections as a preliminary issue is prepared to uphold it, there will therefore be the need to duplicate the leading of the evidence of the psychological experts because even if the defence is unsuccessful in its objection to admissibility, it is to be anticipated that it would wish to deploy a similar argument before the jury, under reference to the evidence of the same psychologists. A further feature of Mr Kerrigan's proposal is further delay. It is true that the dates of 22 and 23 January 2009 have been secured but Mr Kerrigan indicated that at least one further day would be necessary. Arranging a day that suited the convenience of everyone involved is likely to take time.

[19] In all the circumstances I considered it appropriate to defer consideration of the matters raised in the defence minutes until the trial. Mr Kerrigan painted a picture of the disruption and inconvenience which would follow from this course. I took him to be referring to a trial within a trial at which the experts would give the evidence he wished to be led at a preliminary hearing. If that were the only option available to the trial judge I would see the force in Mr Kerrigan's position. I do not see it as the only option. Nor do I see it as the most expedient option. How the matter is dealt with would be for the trial judge but one way forward would be for all the evidence, that of the children, that of the experts, and anything else, to be led before the jury. The defence could then make such submissions as it deemed appropriate. In the light of these submissions the trial judge would then give the jury such directions as he considered appropriate. In the circumstance of the present case, in the event that the judge accepted the defence submission that the evidence of one or other of the children simply could not be relied upon and that it would be accordingly oppressive for the Crown to ask for a conviction on the basis of that evidence or, alternatively, that it would be in breach of the right to a fair trial guaranteed by Article 6 of the Convention to do so, he would no doubt direct the jury to acquit. I would see nothing in such a course which is contrary to the guidance available from N v HMA supra and in Sharon Harkins v HMA, 14 November 2008, unreported.

[20] Although the defence contention is that it would contravene the Minuter's Article 6 rights to adduce the girls' evidence and the objection can be framed as one to the admissibility of evidence I do not see this as precluding the jury hearing the evidence before the decision as to its reliability is made. Indeed the decision whether it is to be regarded as reliable is a jury question and therefore, on the Crown's contention, for the jury to answer. I see that there may be an antecedent question which is whether the evidence is capable of being regarded as reliable which would be a question for the judge. On the defence contention that question should be answered in the negative, thereby taking the matter away from the jury. However, there is no reason why the judge cannot be invited to do that after he, together with the jury, has heard all the evidence at trial. At the close of the evidence the Minuter would be able to submit that it would be incompatible with his Article 6 rights for the Crown to seek a conviction. The trial judge would then be able to make an assessment based on all the evidence and the directions that he might give in respect of that evidence. There are cases where it is convenient for evidence or evidence about evidence to be heard outwith the presence of the jury to preserve the possibility of the objected to evidence being excluded and the Crown seeking a conviction on the basis of such other evidence as is available to it. This is not such a case. The defence seek to impugn two sources of evidence, that of D and that of E. If either is held to be incapable of being relied upon that is an end of the matter.