APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Osborne Lord Mackay of Drumadoon	[2010] HCJAC 38 Appeal No: XC615/08 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL AGAINST CONVICTION by SHER KHAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead; Barony Law Practice, Edinburgh

Respondent: G Bell, QC; Crown Agent

28 April 2010

The background circumstances

[1] On 1 September 2008 at a sitting of the High Court at Glasgow, the appellant was found guilty of charges (1), (3) and (4) in the Indictment which he faced. The charges of which he was convicted were in the following terms:

"(1) On 28 April 2007 at Ladbrokes Bookmakers, 146 Allison Street, Glasgow, you did assault Mohammed Nazir ... and did repeatedly punch him on the head and body to his injury; you did commit this offence while on bail, having been granted bail on 6 March 2007 on two occasions at Glasgow Sheriff Court;

...

(3) On 28 April 2007 at Ladbrokes Bookmakers, 146 Allison Street, Glasgow you did assault Deborah Tait ... and did strike her on the head with a knife or similar instrument to her injury and permanent disfigurement; you did commit this offence while on bail, having been granted bail on 6 March 2007 on two occasions at Glasgow Sheriff Court; and

(4) On 28 April 2007 outside Ladbrokes Bookmakers, 146 Allison Street, Glasgow, you did assault Gerald Byrne, now deceased, and did strike him on the neck with a knife or similar instrument and did thereafter stab him on the body with a knife or similar instrument all to his severe injury, permanent disfigurement and to the danger of his life and did attempt to murder him; you did commit this offence while on bail, having been granted bail on 6 March 2007 on two occasions at Glasgow Sheriff Court."

[2] On 23 September 2008, the appellant was sentenced to seven years and six months detention in cumulo on the charges on which he was convicted, the six months being attributable to the bail aggravations.

[3] The appellant has appealed against his conviction on several grounds. So far as they are relevant in the present context, they are in the following terms:

"...

(2) During the defence case, when the appellant was giving evidence, the Crown, in cross-examination, revealed the appellant's criminal record. Whilst he was being questioned by the Advocate depute, the appellant said words to the effect 'I've never been involved in an incident ... here ... such as this in my life.' The Advocate depute repeated the phrase 'Never in my life' rhetorically to the appellant. The appellant then said 'Yes I've had a speeding conviction, nothing serious'. The Advocate depute pressed on. He was asked about a breach of the peace conviction. The depute proceeded to quiz him about the remainder of his previous record. The Advocate depute made no motion in terms of section 266 of the 1995 Act before he began to quiz the appellant on the remainder of his (summary and non-analogous) record. There was no intervention by the trial judge during the aforementioned events. Counsel for the defence then intervened and made an objection, subsequently heard outwith the jury (sic) on three broad grounds, namely: (1) the Advocate depute should not have launched an attack on the appellant's character on such slender grounds - the utterances of the appellant being ambiguous and being open to ambivalent interpretation; (2) even if he was right to do so, he should have firstly made a motion to the judge in terms of section 266(5) outwith the presence of the jury before he brought the appellant's record out with the court's consent only; and (3) the evidence of at least part of his record having been put in open court without the appropriate motion being made, the appellant's trial was severely prejudiced and the judge should desert the proceedings (sic). After consideration of matters the judge decided that the appellant having breached section 266(4)(b) was liable to his record being disclosed. Thereafter, the jury came back and the Advocate depute put the rest of the appellant's record to him. By putting the record which includes a breach of the peace, an attempt to defeat the course of justice and various road traffic contraventions all at summary level, to the appellant in front of the jury irrevocably prejudiced the appellant's case. The Advocate depute erred in putting the record to the appellant without prior court sanction and notice to the prejudice of the defence team and ultimately the appellant. The accused can only lose the protection from revelation of his record if it was properly withdrawn by the court after the Advocate depute has made that motion outwith the presence of the jury. This did not initially happen: Graham v HM Advocate 1984 S.L.T. 67; Cordiner v HM Advocate 1993 S.L.T. 1991; Leggate v HM Advocate 1988 S.C.C.R. 391. A miscarriage of justice has occurred.

(3) Also the court must also consider said motion. The learned trial judge took the appellant's response as only evidence of his good character. It is submitted that his response, to vigorous questioning by the Advocate depute, could also have been habile (sic) to the fact that he had never been in the High Court before or been involved in something as serious this matter (a double assault and a separate attempted murder charge on indictment) which was something he had not been charged or convicted with before: this was not unequivocally giving evidence of his own good character; Leggate v HM Advocate (supra). Accordingly a miscarriage of justice has occurred.

(4) It is submitted that the errors in paragraphs (2) and (3) above were compounded by the learned trial judge in his directions to the jury. Various Crown witnesses, Nos 3, 6, 8 and 9 were questioned, by defence counsel, as to their previous statements in order to demonstrate that their evidence (in the witness box) had not been consistent throughout and undermined their credibility and reliability. The police statements of the various witnesses were put to them regarding their evidence of description of the assailant. All questioning tended to be exculpatory on (sic) manner favourable to the appellant (sic). Coll, Petitioner, 1977 S.L.T. 58; Leckie v HM Advocate 2002 S.L.T. 595. In page 5, para. 1 the judge says 'There are matters put to witnesses, but the witnesses cannot remember them or does not know anything about them is not evidence....' and page 8, line 17, he says 'Firstly, you will recall we have heard pieces or bits from police statements, part of police statements of some of the witnesses read out and referred to. You can only accept the material you heard from those police statements as evidence, if it is accepted by the relevant witness in court, in the witness box.' There is no explanation as to how to deal with possible issues of credibility and reliability of witnesses and what adverse effect that might have on the assessment of the testimony of said witnesses. It is respectfully submitted that these parts of the trial judge's directions are insufficient and inadequate in the circumstances of this case where section 263 was heavily utilised by the defence and thus the jury were not specifically directed on a central issue in the defence case. It is submitted the jury, in said circumstances, could fail to apply the evidence in the correct legal framework thus denying the appellant a fair trial and that a miscarriage of justice has resulted."

[4] In view of the substance of grounds of appeal (2) and (3), it is appropriate to note that, at the time of his trial, the appellant had certain previous convictions. These were all at summary level. He had convictions, dated 20 April 2006 for, first, breach of the peace, aggravated by the offence having been committed whilst he was on bail; and, second, attempt to pervert the course of justice, again aggravated by a breach of bail. On 11 January 2007 he was convicted on four charges under the Road Traffic Act 1988, sections 3, 35(1), 87(1) and 143(1) and (2). Finally, on 3 April 2007, the appellant was convicted of a breach of the peace, aggravated by the offence having been committed whilst he was on bail.

[5] In relation to the contents of grounds of appeal (2) and (3), the trial judge explains in his Report to this court that he took the opportunity to have the relevant part of the evidence transcribed. It is in the following terms and formed part of the cross-examination of the appellant by the Advocate depute:

"Advocate depute:	You fled to Birmingham after committing this assault didn't you?
Accused:	If I fled to Birmingham after committing assault you prove that I fled. I am sure that you would have had some records from aeroplanes and my father took me down on the 19th or 20th I cannot recollect but with my girlfriend and my father drove us down. I remember he was stopping at a few petrol stations on the way with service stations.
Advocate depute:	But you didn't come straight back up to find out what all this was about. Your mother's been in custody. She has been interrogated and it's all been a complete mistake that you could presumably put right by going up and saying to the police 'look I was in Birmingham whatever your looking for me for it's not right'.
Accused:	I was glad my mother was released and I had nothing to do with it so I thought why should I take in any bother with any incident when other people what have happened, why should I get involved when I've never been involved in any incident such as this and that is the truth if that is what you are going to ask.
Advocate depute:	Never been involved in an incident such as this?
Accused:	Never in my life like this, no.
Advocate depute:	You've never been involved in an incident such as this in you life?
Accused:	In my life, never like this.
Advocate depute:	Okay.
Accused:	Yeah, I have had a road traffic for driving, speeding. That's all.
Advocate depute:	Pardon.
Accused:	That's all, that's what I have had, a road traffic, I have never been in the High Court. I have never stand in a box.
Advocate depute:	Hang on, hang on, hang on. Are you saying you have had a road traffic by that you have had a road traffic conviction?
Accused:	Uhuh.
Advocate depute:	And did you say that's all?
Accused:	No.
Advocate depute:	Pardon.
Accused:	No.
Advocate depute:	It sounded like that's all.
Accused:	No. That's all I am telling you.
Advocate depute:	That's all you are telling me.
Accused:	And if the ladies and gentlemen of the jury want to know anything more they can ask me.
Advocate depute:	Well they can't ask you but I will since you've, you've said, you've stood there on oath and said as I understand it, don't look to people in the court Mr Khan, they can't help you now.
Accused:	I'm not looking, I've done nothing wrong so I don't see...
Advocate depute:	Apart from a road traffic conviction. You say that's all or do you not say that's all?
Accused:	And I've got breach of the peace for drinking and that's all, drinking when I was about 16 or 17 in a park with mates.
Advocate depute:	Well, since you have raised it Mr Khan, you are the one whose credibility is on the line. What do you say then, is it a road traffic conviction and a breach of the peace when you were 16. Is that what you say?
Accused:	Yep.
Advocate depute:	Do you want to have a think about that?
Counsel for the accused:	Well I have an objection here before this goes any further."

[6] Following the objection raised by counsel for the accused at the trial, there followed submissions by him and by the Advocate depute to the trial judge concerning the situation which had developed. These were made outwith the presence of the jury. A transcript of these submissions and the decision of the trial judge made in the light of them is available to us. From that it appears that counsel for the accused contended that the Advocate depute's line of questioning, referred to above, had been unfair. He referred to the provisions of section 266 of the Criminal Procedure (Scotland) Act 1995 and particularly sub-sections (4) and (5) of it. Counsel contended that the appellant had not "given evidence of his own good character", the only basis upon which, in the circumstances, the questions of the Advocate depute might have been authorised by the court. Counsel pointed out that there had been no motion by the Crown under section 266(5).

[7] The Advocate depute responded by maintaining that the accused had given evidence of his good character. Questioning of the accused regarding his criminal record was appropriate and relevant to his credibility. The Advocate depute then made a motion in terms of section 266(5) for permission to conduct a questioning of the accused concerning his criminal record. Thereafter the trial judge decided that the exception to the general prohibition contained in section 266(4) referred to in sub-section (4)(b) had been met and granted the permission the Advocate depute sought.

[8] In view of the circumstances that we have narrated, when this appeal came before us, we decided to invite the Advocate depute to address the court first, which he did. He made the following submissions.

Submissions of the Advocate depute

[9] The question arose of whether the Advocate depute at the trial had breached the rule enacted by section 266(4) of the 1995 Act. It was submitted that that had not occurred. The questioning of the Advocate depute had not been designed to elicit the previous convictions of the appellant, nor had it been of a careless nature. The position was that the appellant, without being asked, revealed his conviction for speeding. He had then used the words "that's all" voluntarily. It could thus be said that by doing so he had set up his own good character. No objection had been taken to the questioning by the Advocate depute until a much later stage. On a fair reading of the appellant's evidence he had sought to portray himself as of good character. It might be said that the trial Advocate depute had been somewhat tardy in making his motion under section 266(5). However, it had been appropriate that that motion should have been granted, which was what happened.

[10] The second issue which arose, on the assumption that the foregoing submission was wrong, was whether what had occurred amounted to a miscarriage of justice. There was no peremptory rule that, if the prohibition in section 266(4) were contravened, a miscarriage of justice would inevitably be brought about. In that connection the Advocate depute relied upon Templeton v McLeod 1985 S.C.C.R. 357 and Cordiner v HMA 1991 S.C.C.R. 652 at pages 664-665 and 669-670. It was important to note that counsel for the appellant at the trial had not objected to the course taken until a very late stage. Had the trial Advocate depute made the motion that he should be allowed to ask the relevant questions at an earlier stage, it could be taken that that motion would have been granted. In response to a question by the court, the Advocate depute maintained that the appellant had put his character in issue having regard to the evidence which he gave. In that evidence he had endeavoured to establish himself as someone with only one previous conviction. The trial judge had been perfectly justified in allowing leave when the application was finally made. In connection with that submission the Advocate depute relied upon Leggate v HM Advocate 1988 S.C.C.R. 391; and Drummond v HM Advocate 2003 S.C.C.R. 108. In any event, the evidence concerned had been given without objection by counsel for the appellant. In that connection the Advocate depute referred to Robertson v Frame, O'Dalaigh v Frame, and Ruddy v Griffiths 2006 SCCR 151, particularly paragraphs 14, 44, 49, 50 and 55. It could not be said that a fundamental nullity had come into being. There was no absolute definition of such a concept. In that connection the Advocate depute relied on Adam v HM Advocate 2006 S.C.C.R. 354. In all the circumstances no miscarriage of justice had occurred.

[11] Turning to ground of appeal (3), the Advocate depute said that he had dealt with subject matter of that ground of appeal in connection with the submissions relating to ground of appeal (2). There was no more that he wished to say about the matter. On a proper interpretation of the evidence given by the appellant, he had been engaged in endeavouring to establish his own good character.

[12] The Advocate depute then proceeded to make submissions in connection with ground of appeal (4). It was necessary for the court to read the trial judge's charge as a whole. Certain passages were important in the present context. These were to be found in the transcript of the charge from page 4, line 6 to page 7, line 4. In that passage the trial judge had explained clearly to the jury what was and what was not evidence. The Advocate depute also drew our attention to the passage at page 8, lines 14 to 24, where the trial judge dealt specifically with evidence derived from police statements. Beyond these passages in the charge, there was nothing else of significance to the present context. In particular, there was no specific direction regarding the evidential status of prior inconsistent statements by witnesses.

Submissions on behalf of the appellant

[13] Counsel for the appellant said that, in relation to grounds of appeal (2) and (3), the question arose of whether section 266(4)(b) had been engaged at all; in other words the question was whether the accused had "given evidence of his own good character". Counsel submitted that he had not. No question arose in the present case of the appellant having waived his protection under section 266(4) of the 1995 Act. There had been an objection to the course followed by the Advocate depute at the trial, albeit late. In this connection counsel referred to Cordiner v HM Advocate 1991 S.C.C.R. 652 and Barr v HM Advocate 2005 SCCR 680, at paragraphs 17ff. There had occurred a miscarriage of justice on account of what had happened. The whole previous convictions of the appellant had been disclosed to the jury, including his conviction of attempt to pervert the course of justice, which connoted dishonesty. That was an important matter. The situation had come into being on account of the conduct of the trial Advocate depute. Furthermore, the trial judge had given no direction to the jury relating to the significance, or lack of it, of the previous convictions that had been revealed.

[14] Turning to ground of appeal (4), counsel for the appellant pointed out, as had been acknowledged by the Crown, that the normal directions given in relation to prior inconsistent statements had not been given. The absence of such directions amounted to a misdirection in the circumstances. Unfortunately detailed information was not available concerning the witnesses to whom prior inconsistent statements had been put in evidence, or what their evidence was. Details of their evidence and of their police statements were not available. The trial judge had touched on the matter of these statements at page 8 of the transcript, lines 18 to 24. However, he had not gone far enough. A miscarriage of justice had occurred in this regard also.

The Decision

[15] Section 266(4) of the 1995 Act, so far as material, provides as follows:

"(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 -

...

(b)  the accused or his counsel or solicitor has asked questions of the witnesses for the prosecution with a view to establishing the accused's good character or impugning the character of the complainer, or the accused has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of the witnesses for the prosecution or of the complainer... ."

[16] The only part of this sub-section which has any potential application in the circumstances of this case is to be found in the words "or the accused has given evidence of his own good character", appearing in sub-section 4(b). Thus, it is only upon the basis that the accused, now the appellant, did give evidence of his own good character that any questioning of him concerning his previous convictions might have been legitimate, with the permission of the court.

[17] The provisions of sub-section (5) should also be noted. It provides:

"(5) In a case to which paragraph (b) of sub-section (4) above applies, the prosecutor shall be entitled to ask the accused a question of a kind specified in that subsection only if the court, on the application of the prosecutor, permits him to do so."

The trial judge in this case, to whom an application under sub-section (5) was ultimately made, did, of course, grant permission for the kind of questioning prohibited by the principal provision of sub-section (4). Following upon the grant of that permission, questioning was then undertaken by the prosecutor of the appellant concerning his previous convictions. Against this background, the issue which must be considered is whether the appellant had indeed "given evidence of his own good character". We proceed upon the basis of the transcript obtained by the trial judge of the exchanges which took place before objection was taken by counsel for the appellant at the trial.

[18] The potentially relevant material begins with a question by the Advocate depute concerning the reason why the appellant did not return from Birmingham, his mother having been taken into custody and interrogated. He proceeded to say that he saw no reason why he should get involved "when I've never been involved in any incident such as this and that is the truth if that is what you are going to ask." We see that statement as no more than a denial of involvement in the incident which was the subject of the prosecution and also a statement that he had never before been involved in any similar incident. We cannot interpret that answer, which was repeated at the invitation of the Advocate depute as itself an assertion of good character. Thereafter, rather than asserting good character, the appellant went on voluntarily to disclose that he had a road traffic conviction. We have to say that we are surprised that, at that stage, the trial judge did not consider it appropriate to invite the jury to withdraw, in order to furnish an opportunity for a discussion as to the direction in which the cross-examination was proceeding. Equally, it is surprising that, if the Advocate depute intended to proceed to question the appellant concerning his previous convections, presumably upon the basis of his view that the appellant had given evidence of his own good character, he did not then make an application for permission to follow that course in terms of section 266 (5). However, that is not what happened. On the contrary, the Advocate depute proceeded to ask further questions plainly inviting the appellant to give further evidence regarding his previous convictions. In consequence of his doing so, the appellant then disclosed that he had a conviction for breach of the peace. Immediately before objection was belatedly taken to the line of cross-examination by counsel for the appellant, the Advocate depute asked the question narrated which was evidently a precursor to putting further material concerning the appellant's previous convictions to him.

[19] Looking at this material, we conclude that, before the matter became the subject of discussion before the trial judge in the absence of the jury, the appellant had not given evidence of his own good character. What he had done was to deny involvement in the matter which is the subject of the prosecution or any similar matter, assert that he had never previously been an accused person in the High Court and, under questioning by the Advocate depute, reveal his possession of certain criminal convictions. In these circumstances, we have concluded that the trial judge had no basis before him upon which, in the exercise of his discretion, he could grant permission to the prosecutor to cross-examine the appellant concerning his criminal record. Yet that is what he did. As we have indicated, the sequel was that the appellant was then cross-examined concerning all elements of his previous convictions, including his conviction for attempt to pervert the course of justice on 20 April 2006. That conviction had significant relevance to his credibility.

[20] We agree with the submission made before us by the Advocate depute that it does not necessarily follow from that state of affairs that the appellant's conviction must be quashed. In view of the terms of section 106(3) of the 1995 Act the question remains of whether a miscarriage of justice has come into being in consequence of these events. We have no hesitation in concluding that it has. In the present case, for the purposes of the trial, the appellant had lodged a special defence of incrimination and, more particularly, a special defence of alibi. It is obvious from those circumstances that the credibility of the appellant was a crucial issue at the trial. We feel bound to conclude that the illegitimate revelation to the jury of the appellant's conviction for attempt to pervert the course of justice, in particular, would inevitably be gravely prejudicial to the appellant's position and an obstacle to his having a fair trial. Accordingly, upon this basis, we shall quash the appellant's convictions and allow the appeal.

[21] Having regard to the conclusions that we have reached in relation to grounds of appeal (2) and (3), it is unnecessary for us to reach a view upon the subject matter of ground of appeal (4). However, we think it appropriate to make one or two observations about that. It is plain from the terms of this ground of appeal itself and also from what is said by the trial judge at page 8, lines 14-24, of the transcript of his charge that certain Crown witnesses were questioned as regards previous statements made by them to the police. It is said that the purpose of this questioning was to demonstrate that the evidence of the witnesses in the witness box had not been consistent with things said by them in police statements. It may be that that questioning constituted an important part of the defence case. However, we find ourselves unable to reach any conclusion in relation to these matters, since we have no detailed information concerning the evidence actually given by these witnesses, or what evidence the jury heard as to what may have been said by them in prior statements made to police officers. In this situation, we find ourselves unable to evaluate the contentions which are made in ground of appeal (4).

[22] The position might have been different if we had been given some assistance by the trial judge in his Report to this court concerning these matters. Despite the detailed nature of ground of appeal (4), he simply states there that he has no observations to make in relation to it. It might reasonably have been expected that he would have furnished the court with summaries of what had been said in evidence by the Crown witnesses specified in the ground of appeal and in what way their evidence in the witness box may have differed from any police statements said to have been given by them, which had been put to them during their evidence.

[23] In his directions to the jury in the passage to which we have referred, the trial judge simply states that the jury could accept material from police statements as evidence only if it had been accepted by the relevant witnesses in the witness box. While that may generally be true, his directions make no reference at all as to how the jury should approach a situation in which, as apparently occurred, an attack was mounted on the credibility of these witnesses upon the basis of prior inconsistent statements. We find that a surprising omission. To have done that would have been plainly necessary and in accordance with normal practice. However, in the circumstances here, in which the appellant's convictions must be quashed on other grounds, this aspect of the matter possesses no practical significance.