APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Justice Clerk Lord Osborne Lord Eassie Lord Nimmo Smith	[2010] HCJAC 130 Appeal No: XC237/09 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in Appeal by DAVID PETER GALLAGHER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Lamb, Q.C., Gilbride; Paterson Bell, Edinburgh

Respondent: Cherry, Q.C., A.D.; Crown Agent

17 December 2010

The issue

[1] The issue which falls for decision in this appeal is the meaning of the expression used in section 266(4)(c) of the Criminal Procedure (Scotland) Act 1995 - viz, "the accused has given evidence against any other person charged in the same proceedings".

The procedural history

[2] The appellant was convicted after trial of the murder of Jason McMenamin. He was tried along with his brother, Francis Patrick Gallagher ("the co-accused"), who was charged with the same offence. The co-accused was acquitted by the jury. Prior to the trial the appellant lodged a special defence of alibi, his position being that, although he had been in his brother's company earlier on the day in question, he had left him and was elsewhere at the time of the murder. The co-accused, on the other hand, lodged prior to the trial a notice of incrimination against the appellant asserting that the latter had alone attacked the victim. At the trial the appellant maintained his special defence and the co-accused maintained his incrimination of the appellant.

[3] The appellant was the first accused. During the Crown case his counsel was careful to avoid asking any of the Crown witnesses questions, the answers to which might suggest that the co-accused had committed the crime charged. After the Crown case was closed, the appellant himself gave evidence in his own defence. That evidence was consistent with his alibi, namely, that at the time of the murder he was elsewhere; it was diametrically inconsistent with the co-accused's contention that he (the appellant) had been present at the locus of the crime and had assaulted the victim. In the course of cross-examination of the appellant counsel for the co-accused indicated to the court that he wished to raise a legal matter outwith the presence of the jury. The jury retired. A debate then ensued as to whether it would be proper in the circumstances for counsel for the co-accused to put to the appellant his previous convictions. In opposing that course of action counsel for the appellant argued that a successful defence of alibi for the appellant would not automatically mean conviction for the co-accused; the appellant had not intentionally damaged or harmed the defence of the co-accused or supported the Crown case. Counsel for the co-accused argued that the evidence of the appellant undermined the defence of the co-accused and that in these circumstances he was entitled to put the appellant's previous convictions to him.

[4] So far as appears from the minutes, no ruling was given by the court at that stage but, proceedings having resumed before the jury and counsel for the co-accused having put to the appellant that he was "a serious man of violence", an objection to that line of evidence was taken by counsel for the appellant. That objection was repelled. Thereafter counsel for the co-accused put the appellant's record to him.

[5] We were informed that, in substance, the whole record was put to him, no discrimination being made between offences importing dishonesty and other offences (including offences importing violence). The appellant had a long list of previous convictions, stretching from 1988 to 2004. These included a conviction for theft by housebreaking and three convictions for attempting to pervert the course of justice. They also included convictions for serious violence: a conviction in 1990 in the High Court for assault and robbery, for which he was sentenced to two years' detention, and a conviction in the High Court in 1998 for assault to severe injury and permanent disfigurement, for which he was sentenced to five years' imprisonment. He was also convicted in 1997 of a contravention of section 1 of the Prevention of Crime Act 1953 (possession of an offensive weapon) and in 2003 of a contravention of section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (to the like effect); in respect of each of these convictions he was sentenced to three months' imprisonment. Additionally, he had been convicted on numerous occasions (one of them in solemn proceedings) of drugs offences and on a number of occasions of breach of the peace. The burden of the cross-examination appears to have been directed to demonstrating that the appellant was a man of violence, which he ultimately - in face of his record - accepted. It was suggested to him by the cross-examiner that this went some way to explaining his behaviour in assaulting the victim, a suggestion which the appellant denied.

[6] Having been convicted the appellant, with leave, appealed to this court. The second ground of appeal was that the trial judge "erred in the exercise of his discretion in allowing counsel for the co-accused to disclose the previous convictions of the appellant". This ground was initially heard by a bench of three judges who remitted it to a larger bench. Part of the remit envisaged appears to have been a possible challenge to the ruling in McCourtney v HM Advocate 1977 JC 68 that, where section 141(f)(iii) of the Criminal Procedure (Scotland) Act 1975 (the pre-cursor of section 266(4)(c) of the 1995 Act) applied, a trial judge had no discretion to refuse to the co-accused the right to examine the accused as to his criminal record. At the opening of this appeal Mr Lamb, for the appellant, made it plain that he was not to advance any argument in relation to the availability of a discretion. This was in part because Parliament had, in passing the Criminal Justice Act 1995, revisited section 141 of the 1975 Act. It had by section 24(1)(b) of the former Act inserted into the latter a new subsection (1A) which had made the prosecutor's right under paragraph (f)(ii) subject to the discretion of the court. No equivalent provision had been made in respect of sub-paragraph (iii). The implication was that Parliament was content with the ruling in McCourtney.

Submissions for the appellant
[7] Mr Lamb's challenge was to the interpretation of what was then section 1(f)(iii) of the Criminal Evidence Act 1898 favoured by the House of Lords in the English appeal in Murdoch v Taylor [1965] AC 574. The leading speech was delivered by Lord Donovan who had accepted, subject to modification, the interpretation of the subparagraph favoured by the Court of Appeal in Reg. v Stannard [1965] 2 QB 1. That, as so modified, was that "evidence against [a co-accused]" meant "evidence which supports the prosecution's case in a material respect or which undermines the defence of the co-accused" (per Lord Donovan at page 592).

[8] Mr Lamb submitted that that "test" was too widely stated. The proper scope of "evidence against [a co-accused]" was evidence upon which the Crown could found in seeking a conviction of the co-accused. It was inconceivable that Parliament had intended to put an accused in the impossible position of either not testifying in support of his defence of alibi or being exposed during such testimony to his whole criminal record being disclosed at the instance of his co-accused. Murdoch v Taylor had subsequently been applied in England, including in Reg. v Varley [1982] 75 Crim App R 242, where Kilner Brown J in giving the judgment of the court had referred at page 246 to six established principles which were relevant. The fourth of these was as follows:

"If consideration has to be given to the undermining of the other's defence care must be taken to see that the evidence clearly undermines the defence. Inconvenience to or inconsistency with the other's defence is not of itself sufficient."

While in the present case the appellant's testimony was no doubt inconsistent with the co-accused's defence, it did not undermine it. Reference was also made to Reg. v Davis [1975] 1 WLR 345, R v Bruce (1975) 61 Crim App R 123, Reg. v Crawford [1997] 1 WLR 1329 and R v Kirkpatrick [1998] Crim LR 63. In Reg. v Adair [1990] Crim LR 571 at page 572 Ward J had spoken of an accused who would have "dropped [his co-accused] completely in it". In Scotland the Murdoch formulation had been referred to, but no definitive ruling had been given. In McCourtney the court had been prepared to adopt that formulation while being careful not to express any opinion on its correctness (pages 72-3). In Burton v HM Advocate 1979 SLT (Notes) 59 the court had apparently adopted the Murdoch test without hearing full argument on it. Doubts about it had been expressed by Lord Hunter and by Lord Dunpark in Sandlan v HM Advocate 1983 JC 22. Reference was also made to Barnes v HM Advocate 2001 JC 61 and Leggate v HM Advocate 1988 JC 127.

Submissions for the Crown

[9] The Advocate depute submitted that the proper approach to the legislation was to interpret the words used in their context, purposively. The words used should be given their ordinary and literal meaning, which here was their ordinary and natural meaning. The interpretation favoured in Murdoch v Taylor was consistent with that approach. It was not accepted that evidence "which undermines the defence of the co-accused" was a "somewhat refined concept" (cf Lord Hunter in Sandlan at page 32). The second limb in the Murdoch test had been consistently applied in England as a matter of interpretation of the 1898 legislation. The reference to the nature or conduct of the accused's defence being such "as to undermine the co-defendant's defence" had been preserved in the English amending legislation subsequently passed: see, in particular, Criminal Justice Act 2003, section 104. Proposition (5) in Varley had subsequently been refined in Reg. v Crawford, per Lord Bingham of Cornhill at page 1335. R v Lawson (2007) 1 Crim App R 11 was illustrative of a situation in which evidence of the accused had undermined the co-accused's defence (see per Hughes LJ at page 185). The evidence of the appellant to the effect that he was not there when the attack upon the victim took place clearly undermined the co-accused's defence that the appellant had been there and was alone the assailant. If the appellant's alibi evidence was accepted, it was bound to damage the co-accused's credibility and make it less likely that he simply stood by while the murder was committed. There was in any event compelling evidence against the appellant.

Discussion
[10] The Criminal Evidence Act 1898 (a British statute), as enacted, provided by section 1:

"Every person charged with an offence ... shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person. Provided as follows:-

...

(f) A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless -

...

(iii) he has given evidence against any other person charged with the same offence;

..."

That section was repealed as regards Scotland by the Criminal Procedure (Scotland) Act 1975, which re-enacted the provision in essentially the same terms (section 141). The latter section was amended by section 1 of the Criminal Evidence Act 1979 to substitute for the final words of paragraph (f)(iii) ("with the same offence") the words "in the same proceedings". Section 141 was repealed by the Criminal Procedure (Scotland) Act 1995 which provided in its place for the accused as witness the following provisions:

"266(1) Subject to subsections (2) to (8) below, the accused shall be a competent witness for the defence at every stage of the case, whether the accused is on trial alone or along with a co-accused.

...

(4) An accused who gives evidence on his own behalf in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with, any offence other than that with which he is then charged, or is of bad character, unless -

...

(c) the accused has given evidence against any other person charged in the same proceedings."

The current provision is accordingly, in so far as concerns the present issue, in essentially the same terms as those in which it was expressed in 1898. The principal object of section 1 of the 1898 Act was to allow an accused person to be a witness in his own defence, which in general had not been permissible under the pre-existing law. As well as affording an accused person that entitlement, the statute protected the accused in a number of respects. These included protecting him against inquiry into any previous convictions and into any bad character (para (f)). That protection might, however, be lost if he gave "evidence against any other person charged ..." (subpara (iii)).

[11] The meaning of that provision appears first to have come up for decision in Reg. v Stannard where the Court of Appeal at page 9 observed that the statutory words were capable, as a matter of language, of meaning either "(a) has the evidence or any part of it been adverse in a material respect to the case which the co-defendant is maintaining - viz.: has it undermined his defence or tended to establish or support the prosecution case? - or (b) has evidence been given with an intention or object of saying something so adverse?" It answered that question by preferring the first alternative. At page 12 it emphasised that a mere conflict between a version of fact given by one defendant and another defendant was "quite insufficient" to amount to evidence given by one against the other. It continued:

"Unless in addition to conflict it can be clearly seen that the version of the defendant who is said to be vulnerable to cross-examination is one which tends to support in a material respect the case of the prosecution against his co-defendant or to undermine the defence of his co-defendant, the conditions of subparagraph (iii) are not satisfied."

The formulation of the alternative questions appears to have had its origin in the Crown argument (see page 7), though there the first alternative was formulated as "that the evidence or any part of it has been adverse in a material respect to the extent of undermining the co-defendant's defence or tending to establish or support the prosecution case ...".

[12] It should be noted that, on the facts of that case, the appellant gave evidence which clearly tended to support the Crown case - he incriminated his co-defendants; the question whether he "undermined" their defences may, strictly, not have arisen.

[13] The same issue arose for decision in the House of Lords in Murdoch v Taylor. Their Lordships again rejected the contention that for evidence to be "against" a co-defendant it required to import a hostile intent on the part of the defendant. Again, as in Stannard, on the facts of the case the evidence of the defendant clearly supported the prosecution case in a material respect, but Lord Donovan at page 592 expressly endorsed, subject to a modification, the two-limbed interpretation of "evidence against", namely "evidence which supports the prosecution's case in a material respect or which undermines the defence of the co-accused". Lord Evershed agreed with Lord Donovan. Lord Morris of Borth-y-Gest said at page 584:

"If, while ignoring anything trivial or casual, the positive evidence given by the witness would rationally have to be included in any survey or summary of the evidence in the case which, if accepted, would warrant the conviction of the 'other person charged with the same offence', then the witness would have given evidence against such other person. Such other person would then have that additional testimony against him."

That formulation may suggest that his Lordship had in mind only evidence which positively supported the prosecution's case (which was all that arose in the instant case) but he does not disassociate himself from Lord Donovan's more comprehensive test. Lord Pearce agreed with both Lord Morris and Lord Donovan on this matter (page 586), although he dissented on another aspect of the case. On the question of what amounted to "evidence against" Lord Reid observed at page 582:

"... I find great difficulty in agreeing with what I understand to be the unanimous view of your Lordships."

But, as the immediately following passage shows, his doubt arose from a comparison between the language of para (f) and that of para (e) of section 1. He added, however:

"If this provision has this wide meaning, an accused person with previous convictions, whose story contradicts in any material respect the story of a co-accused who has not yet been convicted, will find it almost impossible to defend himself, and if he elects not to give evidence his plight will be just as bad. But I have been unable to find any satisfactory solution for the problem set by this proviso and therefore I shall not dissent." (p. 583)

Lord Reid's concern was thus about the implications of the majority's view, whichever formulation was adopted.

[14] That concern is not without cogency and Lord Donovan's attempts at pages 593-4 to allay it are not wholly convincing. But this does not assist the present appellant who takes no objection to the first limb of Lord Donovan's test and, like Lord Reid, is unable to offer any satisfactory solution.

[15] The result is that, although the ratio of Murdoch v Taylor is not binding on this court, it is a decision of a highly persuasive authority in the interpretation of a British statute, which at the time applied in both jurisdictions. It has been observed that it would be unfortunate if there should be any difference in such a matter between the two jurisdictions (Hackston v Millar (1906) 8 F (J) 52, per Lord Justice Clerk Macdonald at page 54). This interpretation was regularly followed and applied in England and Wales until new statutory provision was made in 2003. The language of the currently applicable Scottish provision is essentially the same.

[16] In Scotland the court in McCourtney v HM Advocate applied the Murdoch test, albeit being careful to express no opinion as to its correctness. In Burton v HM Advocate the court appears, from the relatively brief report, to have proceeded on the basis that Murdoch (in its two-limbed formulation) represented the established law of Scotland. That is difficult to accept, given the careful reservation of its opinion by the court in McCourtney. On the other hand, Lord Hunter in Sandlan at page 32 suggests that Burton may have approved the Murdoch test and that reconsideration of it would be a matter for a larger court.

[17] In Sandlan Lord Hunter, with whom Lord Dunpark agreed, considered (pages 31-2) that:

"... the application of the words of the proviso in plain English may in many cases be a safer course than the application of a formula which certainly in its second limb is a somewhat refined concept. A trial judge will usually have to reach a decision on this matter under pressure in the course of a trial, and may have to do so at a stage when it is by no means clear what 'the defence' of the co-accused is to be. In such circumstances the second branch of Lord Donovan's formula may not even be available."

He preferred to apply the words of the proviso "according to their plain terms ...".

[18] At least part of Lord Hunter's concern was the practical issue of whether, at the stage when the judge would require to rule as to whether the accused had given "evidence against" his co-accused, it would be known what the co-accused's defence was. Lord Ross, the third member of the court, did not share that concern. At page 33 he said:

"With reference to what your Lordship has said with regard to proviso (f)(iii) of section 141(1) of the Act of 1975, I regret that I cannot agree entirely with your Lordship's observations. In particular I do not share your Lordship's view that the second limb of the test adopted by Lord Donovan (undermining the defence of the co-accused) is a somewhat refined concept. There should be no problem where the co-accused has given evidence before the accused as in McCourtney v HM Advocate 1977 JC 68. Where the co-accused has not yet given evidence, however, I recognise that in some cases it may not be clear what the evidence of the co-accused is to be, but in many cases I would expect it to be quite obvious what the co-accused's defence is. The nature of the co-accused's defence should be apparent when the co-accused has lodged a special defence, or where evidence has been led by the Crown of an extra-judicial statement of the co-accused which he has not challenged, or where there has been full and adequate cross-examination of the Crown witnesses by the co-accused's counsel, and in such instances I am of opinion that there should be no great problem in determining whether the accused has given evidence undermining his co-accused's defence.

Unless and until the decision in Burton v HM Advocate 1979 SLT (Notes) 59 has been reconsidered by a larger Court, trial judges will require to apply the test approved of in that case, and, with all respect, I would not anticipate any undue difficulty in applying the test in both its branches."

[19] On this matter we prefer the views of Lord Ross. The sub-paragraph only arises if, after the close of the Crown case, the accused gives evidence on his own behalf. In the nature of things, the issue of whether his prior record or bad character can be put to him under sub-paragraph (4)(c) will only arise when he is cross-examined - ordinarily, at least, in cross-examination on behalf of the relative co-accused. The accused's own account will have been given in evidence-in-chief and, even where no evidence has as yet been given by the co-accused, the latter's defence ought, as Lord Ross said, properly to be identifiable. The issue as to whether the accused's evidence is "against" the co-accused (in the sense either of supporting in a material respect the prosecution's case against that co-accused or undermining his defence) ought to be capable of being decided on an informed basis. It will have been in the interests of any co-accused who was minded to invoke the sub-paragraph to make clear what his defence is, so that any objection to its being invoked can properly be repelled.

[20] Barnes v HM Advocate dealt with a special situation which does not arise in this case. However, at page 64 in concluding that the evidence in question was "evidence against" the appellant, the court said:

"It supported the Crown case in a material respect and tended to undermine the appellant's defence that he was not the person who had kicked the deceased at the end of the incident. We refer generally to Murdoch v Taylor; McCourtney at pp. 72-3 and Burton v HM Advocate. In our view therefore it was indeed 'evidence against' the appellant."

There is thus an implicit approval of the two-limbed test adopted in Murdoch v Taylor and applied in Burton v HM Advocate.

[21] There is accordingly, in our view, nothing in the Scottish jurisprudence which seriously puts in doubt the correctness of the interpretation of "evidence against" laid down in Murdoch v Taylor in respect of the earlier, and essentially identical, statutory provision. That is not to say that the provision might not merit reconsideration. The consequences of the wide meaning adopted in Murdoch v Taylor caused Lord Reid disquiet. An accused with a significant record, and particularly an accused who has been incriminated by a co-accused, may find himself on the horns of an unenviable dilemma - to advance his defence by his own testimony but risk his record being disclosed in cross-examination or not to testify at all. That may have been the present appellant's predicament. But, if the law is unsatisfactory in this respect, then it is for Parliament and not this court to remedy it.

[22] In the present case the first limb is not satisfied but the second limb plainly is. The co-accused's defence was that, while he was present at the time of the assault, the appellant was also present and he and he alone assaulted the victim. The appellant's testimony clearly undermined that defence. If believed, it put the co-accused's defence in jeopardy and materially increased the chances of his conviction.

[23] In these circumstances the appellant's sole outstanding ground of appeal must be rejected.

[24] Mr Lamb raised what he described as a "subsidiary" matter, later developed into two such matters. The first concerned the adequacy in the circumstances of the trial judge's direction that "it makes no difference to this fundamental principle [the presumption of innocence] that an accused may have previous criminal convictions whatever the nature of these convictions might be"; the second concerned the propriety in the circumstances of allowing the whole record of the appellant (including his record of violence) to be put to him in cross-examination. But these matters are raised far too late. This appeal has been outstanding since May 2009 and has already been through one diet of appeal hearing (where the sufficiency of evidence was challenged), judgment being issued in January 2010, when the appeal was continued to be heard by an enlarged bench on the ground discussed in this Opinion. Each of these matters could, if of substance, have been raised much earlier. Were they to be considered now, a further continuation would be required to obtain a report from the trial judge on each matter. Moreover, as regards the second matter, it is far from clear that any application was made at the trial to restrict the previous convictions which could properly be put to the appellant.

[25] In the whole circumstances this appeal is refused.