APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Bonomy Lord Brodie	[2011] HCJAC 74 Appeal No: XC754/10 OPINION OF THE COURT delivered by LORD EASSIE in APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by IAN CHARLES BRAND Appellant; against HER MAJESTY'S ADVOCATE Respondent: and SCOTT WILLIAM BURNS Co-Accused; _______

Appellant: M E Scott, Q.C., C Mitchell; Paterson Bell, Edinburgh

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

Co-Accused: Kerrigan, Q.C., Anderson; Higgins, Morledge & Litterick, Alloa

22 July 2011

Introductory

[1] The appellant is the first named of three accused on an indictment being prosecuted by the respondent in the sheriff court. The co-accused are Scott William Burns - "Mr Burns" - and Jean Peddie Burns. The first charge on the indictment alleges that on 1 January 2010 at a specified locus the appellant and Mr Burns assaulted a named person by punching and kicking the individual in question to the individual's severe injury and permanent disfigurement. The second and third charges on the indictment concern solely and in turn Mr Burns and Jean Peddie Burns respectively and are of no pertinence to the issues in this appeal under section 74 of the Criminal Procedure (Scotland) Act 1995 - "the 1995 Act".

[2] At an early stage in the police investigation of the assault alleged to have been committed by the appellant and Mr Burns, namely on 5 January 2010, the police detained and interviewed Mr Burns in terms of section 14 of the 1995 Act. The interview thus took place before the decision, on 26 October 2010, of the Supreme Court of the United Kingdom in Cadder v HM Advocate [2010] UKSC 43; 2010 SCCR 951 and Mr Burns was not afforded any opportunity to obtain legal advice prior to or during that interview. During the course of the interview Mr Burns made certain qualified admissions respecting the incident, which may be seen as potentially inculpatory of him. He also made statements inculpatory of another person participant in the incident, whom he declined to name to the police.

[3] The indictment was in due course set down for trial at a sitting on 15 November 2010, with a continued first diet on 5 November 2010. Notices of incrimination were lodged by both the appellant and Mr Burns. Each incriminated the other in the assault libelled in charge 1 of the indictment. Further, the appellant lodged a notice in terms of section 259(5) of the 1995 Act intimating his intention to seek to lead evidence of the statements contained in the police interview of his co-accused, Mr Burns, on 5 January 2010. That application was the subject of debate before the sheriff at the continued first diet on 5 November 2010.

[4] At that debate it was accepted by all parties that the conditions under which Mr Burns was interviewed by the police were such that, in light of the Supreme Court of the United Kingdom's decision in Cadder v HM Advocate, the inculpatory statements made by Mr Burns in that interview were not admissible evidence available to the prosecution in its case against Mr Burns. In the discussion before this court, that remained the position accepted by all of the parties.

[5] The sheriff concluded that the application under section 259(5) of the 1995 Act to lead hearsay evidence from the police of what Mr Burns said to them in the interview on 5 January 2010 should be refused. The essence of his decision is expressed in paragraph [28] of his report to this court and is to the effect that to allow evidence of the interview to be led by the appellant would be to allow illegitimate evidence against Mr Burns to be led "by the back door", which would inevitably prejudice Mr Burns' right to a fair trial and which could not be resolved by directions to the jury. The sheriff granted leave to appeal against that decision. Given the nature of the issue, which plainly affects Mr Burns, and the context of this appeal this court invited the participation in these appeal proceedings of those representing Mr Burns. That invitation was accepted and accordingly Mr Burns was treated as an "interested party" with the opportunity to advance argument in support of Mr Burns' and the Crown's opposition to the application.

[6] Thus the issue in this appeal, broadly stated, is whether an accused, A, who has incriminated a co-accused, B, may lead hearsay evidence of an extrajudicial statement by B in which B says something which is self-incriminatory, but the statement would fall to be treated as inadmissible, were the prosecutor to seek to lead evidence of its having been made.

The common law position
[7] Although the application before the sheriff was made in terms of section 259(5), read with section 261, of the 1995 Act the position prior to the enactment of those provisions was a matter of discussion before this court. The full bench decision in McLay v HM Advocate 1994 JC 159 was primarily concerned with the question whether an incriminatory statement by an incriminee who was not (at least at the relevant time) a co-accused could be led by an accused in support of his incrimination and whether the earlier decision in Perrie v HM Advocate 1991 JC 27 (which supplied a negative answer to that question) was sound. However, in addressing that issue the opinions delivered necessarily included a discussion of the basis whereon evidence of an incriminatory statement by a co-accused was evidence which might be tendered by the other accused A in support of A's incrimination of B.

[8] That basis is explained by the Lord Justice Clerk (Ross) at page 165G:

"I accept that at the first trial evidence of confessions made by Harkins [the incriminee, who had formerly been a co-accused of the appellant McLay, but who had been acquitted at that first trial] would have been admissible, but this would have been because he was an accused and statements by an accused person may be proved. No doubt such evidence might have incidentally benefitted the appellant; as the trial judge pointed out in his report, this was a case where the deceased must have been stabbed by a single assailant, either Harkins or the appellant. Harkins and the appellant each sought to incriminate the other, and accordingly any evidence tending to inculpate one would tend to exculpate the other. In these circumstances I accept that if evidence had been led at the first trial of confessions made by Harkins, such evidence would have assisted the appellant. But that evidence would not have been admissible for the purpose of assisting the appellant; it would have been admissible only because it was evidence against his co-accused Harkins. ...".

In his opinion Lord Penrose, at page 179D, put the matter thus:

"... The evidence of self-incriminatory statements is admissible only because the maker of the alleged statement is, at the material time, the subject of continuing proceedings, and it is admitted in relation solely to the allegations made by the Crown against him. Where the material is introduced into the proceedings at the instance of a co-accused, it is not in support of any positive case which is made by that co-accused, but rather in support of the Crown case on the view that the conviction of the maker of the statement must lead necessarily to the acquittal of the co-accused in question. It must always be at least conceivable that the jury's action in accepting such evidence as credible and reliable, against the interests of the person making the statement, could benefit a co-accused other than that person. The Crown may fail to prove concert. The conviction of the maker of the statement might lead inevitably to the acquittal of another person. But that could never properly be characterised as resulting from the admissibility of the self-incriminatory statement as evidence tending to support the acquittal. It will be an inference of fact necessarily arrived at in circumstances in which facts critical to the conviction of A have been established by sufficient, competent evidence where, in fact and law, that conclusion was sufficient of itself to exclude the possibility of other critical facts being established which could lead to the conviction of B. The inference, beneficial to B, would depend on the conclusion against A, not on the means by which it had been arrived at. So long as our criminal procedure permits the admissibility of evidence which is competent against some but not all of the persons charged on a single indictment, it is necessary to guard against the confusion of the evidence admissible against any particular accused person with the factual inferences that might fall to be drawn from the conviction of that person in assessing the weight of the case against another."

The matter was discussed more shortly by Lord Morison and Lord Sutherland. At page 175E Lord Morison observed:

"Further, the benefit which the appellant would have received at the trial from the evidence of Harkins' admissions would have been merely an incidental effect of the Crown's case against Harkins. The competency of such evidence would have derived only from the fact that the Crown was seeking to convict Harkins."

Lord Sutherland's opinion contains the following, short passage at page 176G:

"In the case of an incriminee who is a co-accused, evidence can competently be led of admissions by him because he is an accused person and admissions by an accused have always been acceptable as admissible evidence against him. The reason for this is explained in Dickson and it may also be a factor that such evidence is the best evidence available to the Crown, bearing in mind that the Crown cannot always call the accused to give evidence. The same applies to one accused incriminating another accused whom he cannot call as a witness without his consent."

Lord McCluskey dissented as respects the result of the appeal but to the extent that he discusses the leading by one accused of confessions by a co-accused (cf. page 169E) his observations are to the same effect as the views of the majority.

[9] The opinions which were delivered in McLay v HM Advocate were referred to by Lord Hope of Craighead in his speech in Regina v Myers [1998] AC 124. At page 143 of the report Lord Hope says of those opinions and the leading by an accused of evidence of a confession by a co-accused:

"These opinions make it clear that the following are the reasons which are commonly given for admitting this evidence. First, the evidence could - leaving aside the question of other objections - have been led by the Crown, because it is relevant to the Crown case against the defendant who made the statement and it has always been competent to lead evidence of admissions made by the defendant as part of the Crown case. Second, evidence which tends to incriminate the defendant who made the statement is relevant also to the defence of the co-defendant, where only one of them could have committed the crime. Third, as the statement contains an admission against the interest of the person who made it, it is more likely to be true than false and it is therefore evidence which should be made available at the trial. Fourth, the evidence of those to whom the statement was made or heard it being made is the best evidence of the fact that the statement was made, as the person who made it is not a compellable witness at his own trial. And fifth, as the defendant is a party to the proceedings at which the evidence is to be led, he or she has the protection which the law gives to accused persons in cases where evidence is to be led which may be incriminating."

[10] Accordingly, putting the matter yet more shortly, the basis upon which at common law accused A might lead hearsay evidence of an incriminatory statement by co-accused B is that the hearsay evidence was admissible against B as a statement against B's interest. Its relevance to the defence of the accused A depended upon its strengthening the prosecution case in particular circumstances in which establishing the facts proving the guilt of the accused would also exonerate, or tend to exonerate, the accused (A) who invoked the hearsay evidence.

[11] We would observe that there is nothing in these or any other common law decisions to which we were referred to suggest that an accused could lead evidence of a confession by a co-accused which the prosecutor would not be entitled to lead because, for example, the confession had been unfairly or illegitimately procured. Indeed the analysis which is discussed in the passages to which we have referred is, in principle, hostile to any proposition that an accused might nonetheless lead such confession evidence even if it were inadmissible as part of the Crown case. And in that context we note the fifth of the observations made by Lord Hope in the passage cited above and the quasi-parenthetical proviso in the first of those observations.

[12] While counsel for the appellant expressed certain reservations concerning some aspects of the terms of the Opinion of the Lord Justice Clerk in McLay, she accepted that at common law an accused could not lead evidence of an incriminatory statement made by the co-accused where evidence of the making of that statement would be inadmissible if the prosecutor were to seek to adduce it. Counsel for the appellant however stressed that the 1995 Act, in her submission, innovated on the law relating to the admissibility of hearsay evidence in criminal trials, and in particular, innovated upon the ability of an accused to lead evidence of hearsay statements by a co-accused. Her contention that the appellant was entitled to lead evidence of what Mr Burns had said to the police was thus primarily founded upon section 261 of the 1995 Act, taken with section 259 of that Act. We therefore turn to those provisions.

The legislation
[13] Strictly speaking, the innovation to which reference has just been made was effected by the Criminal Justice (Scotland) Act 1995 - "CJ(S)A" - which made a number of substantive legislative changes in advance of their being consolidated into the 1995 Act. So what are now sections 259 and 261 of the 1995 Act began life in the enactment of the CJ(S)A.

[14] Section 259 of the 1995 Act provides:

"Exceptions to the rule that hearsay evidence is inadmissible.

(1) Subject to the following provisions of this section, evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings shall be admissible in those proceedings as evidence of any matter contained in the statement where the judge is satisfied-

(a) that the person who made the statement will not give evidence in the proceedings of such matter for any of the reasons mentioned in subsection (2) below;

(b) that evidence of the matter would be admissible in the proceedings if that person gave direct oral evidence of it;

(c) that the person who made the statement would have been, at the time the statement was made, a competent witness in such proceedings; and

(d) that there is evidence which would entitle a jury properly directed, or in summary proceedings would entitle the judge, to find that the statement was made and that either-

(i) it is contained in a document; or

(ii) a person who gave oral evidence in the proceedings as to the statement has direct personal knowledge of the making of the statement.

(2) The reasons referred to in paragraph (a) of subsection (1) above are that the person who made the statement-

(a) is dead or is, by reason of his bodily or mental condition, unfit or unable to give evidence in any competent manner;

(b) is named and otherwise sufficiently identified, but is outwith the United Kingdom and it is not reasonably practicable to secure his attendance at the trial or to obtain his evidence in any other competent manner;

(c) is named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken;

(d) having been authorised to do so by virtue of a ruling of the court in the proceedings that he is entitled to refuse to give evidence in connection with the subject matter of the statement on the grounds that such evidence might incriminate him, refuses to give such evidence; or

(e) is called as a witness and either-

(i) refuses to take the oath or affirmation; or

(ii) having been sworn as a witness and directed by the judge to give evidence in connection with the subject matter of the statement refuses to do so,

and in the application of this paragraph to a child, the reference to a witness refusing to take the oath or affirmation or, as the case may be, to having been sworn shall be construed as a reference to a child who has refused to accept an admonition to tell the truth or, having been so admonished, refuses to give evidence as mentioned above.

(3) Evidence of a statement shall not be admissible by virtue of subsection (1) above where the judge is satisfied that the occurrence of any of the circumstances mentioned in paragraphs (a) to (e) of subsection (2) above, by virtue of which the statement would otherwise be admissible, is caused by-

(a) the person in support of whose case the evidence would be given; or

(b) any other person acting on his behalf,

for the purpose of securing that the person who made the statement does not give evidence for the purposes of the proceedings either at all or in connection with the subject matter of the statement.

(4) Where in any proceedings evidence of a statement made by any person is admitted by reference to any of the reasons mentioned in paragraphs (a) to (c) and (e)(i) of subsection (2) above-

(a) any evidence which, if that person had given evidence in connection with the subject matter of the statement, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;

(b) evidence may be given of any matter which, if that person had given evidence in connection with the subject matter of the statement, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and

(c) evidence tending to prove that that person, whether before or after making the statement, made in whatever manner some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself.

(5) Subject to subsection (6) below, where a party intends to apply to have evidence of a statement admitted by virtue of subsection (1) above he shall, [by the relevant time], give notice in writing of-

(a) that fact;

(b) the witnesses and productions to be adduced in connection with such evidence; and

(c) such other matters as may be prescribed by Act of Adjournal,

to every other party to the proceedings and, for the purposes of this subsection, such evidence may be led notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.

[(5A) In subsection (5) above, "the relevant time" means-(a) in the case of proceedings in the High Court-

(i) not less than 7 days before the preliminary hearing; or

(ii) such later time, before the trial diet, as the judge may on cause shown allow;

(b) in any other case, before the trial diet.]

(6) A party shall not be required to give notice as mentioned in subsection (5) above where-

(a) the grounds for seeking to have evidence of a statement admitted are as mentioned in paragraph (d) or (e) of subsection (2) above; or

(b) he satisfies the judge that there was good reason for not giving such notice.

(7) If no other party to the proceedings objects to the admission of evidence of a statement by virtue of subsection (1) above, the evidence shall be admitted without the judge requiring to be satisfied as mentioned in that subsection.

(8) For the purposes of the determination of any matter upon which the judge is required to be satisfied under subsection (1) above-

(a) except to the extent that any other party to the proceedings challenges them and insists in such challenge, it shall be presumed that the circumstances are as stated by the party seeking to introduce evidence of the statement; and

(b) where such a challenge is insisted in; the judge shall determine the matter on the balance of probabilities, and he may draw any reasonable inference-

(i) from the circumstances in which the statement was made or otherwise came into being; or

(ii) from any other circumstances, including, where the statement is contained in a document, the form and contents of the document.

(9) Where evidence of a statement has been admitted by virtue of subsection (1) above on the application of one party to the proceedings, without prejudice to anything in any enactment or rule of law, the judge may permit any party to lead additional evidence of such description as the judge may specify, notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.

(10) Any reference in subsections (5), (6) and (9) above to evidence shall include a reference to evidence led in connection with any determination required to be made for the purposes of subsection (1) above."

[15] Section 261 of the 1995 Act provides:

"Statements by accused.

(1) Subject to the following provisions of this section, nothing in sections 259 and 260 of this Act shall apply to a statement made by the accused.

(2) Evidence of a statement made by an accused shall be admissible by virtue of the said section 259 at the instance of another accused in the same proceedings as evidence in relation to that other accused.

(3) For the purposes of subsection (2) above, the first mentioned accused shall be deemed-

(a) where he does not give evidence in the proceedings, to be a witness refusing to give evidence in connection with the subject matter of the statement as mentioned in paragraph (e) of subsection (2) of the said section 259; and

(b) to have been, at the time the statement was made, a competent witness in the proceedings.

(4) Evidence of a statement shall not be admissible as mentioned in subsection (2) above unless the accused at whose instance it is sought to be admitted has given notice of his intention to do so as mentioned in subsection (5) of the said section 259; but subsection (6) of that section shall not apply in the case of notice required to be given by virtue of this subsection."

Construction of the legislation
[16] In summary, counsel for the appellant submitted that these statutory provisions, especially section 261, superseded the common law basis for the admission, at the instance of an accused, of a self-incriminatory statement by his co-accused, as expounded in McLay v HM Advocate. In her submission, the provisions in section 261(2) gave to an accused, A, a largely unconditional statutory right to lead hearsay evidence of any statement by the co-accused, B, which might be evidence "in relation to" accused A, irrespective whether that evidence was incriminatory of the co-accused B, were it to assist in A's defence. (Relating that proposition to the syntactical structure of section 261(2), the reference near the beginning of the text of that provision to "a statement made by an accused" equiparated with the co-accused B; and the later references to "another accused" and "that other accused" equiparated with accused A.). In contending for that construction of section 261(2), counsel for the appellant submitted that the provision should receive a wide construction, advancing the rights of the defence of accused A - in casu the appellant. In so far as the advancement of the defence of accused A might involve the leading of hearsay evidence incriminatory of the co-accused B, which would require to be excluded were the prosecutor to seek to adduce it, counsel for the appellant submitted that that matter could be suitably addressed by directions given by the trial judge to the jury. There was no reason to construe the phrase "in relation to" as being confined to evidence inculpatory of the co-accused incriminee.

[17] Again in summary, the position taken by the Advocate depute was that the provisions of section 261 of the 1995 Act gave rise to ambiguity as respects (i) the syntax of "that other accused" - about which there was a divergence of view among commentators; and (ii) what was meant by "evidence in relation to" whoever was "that other accused". Those ambiguities were sufficient to make appropriate reference to the Parliamentary debates.

[18] Examination of those debates confirmed, said the Advocate depute, that what became section 259, 260 and 261 of the 1995 Act were introduced as amendments to the Bill which became the CJ(S)A in the Committee Stage of the passage of the Bill through the House of Commons and were intended to implement recommendations made by the Scottish Law Commission in its report on "Hearsay Evidence in Criminal Proceedings" (Scot Law Com No.149) which was published in the course of the Parliamentary passage of the Bill. While the Scottish Law Commission recommended an extension of the circumstances in which hearsay evidence might be admissible in criminal proceedings, the Commission was clear that it did not intend, or recommend, any change in the law pertaining to the leading by one accused of hearsay evidence of a statement by his or her co-accused. The Advocate depute made particular reference to paragraphs 5.68, 5.74 to 5.75 of the Report and to Recommendation 11 in that Report, which Recommendation states:

"The recommendations in this Report should not apply to a statement made by a person who is an accused in the trial at the time when evidence of the statement is tendered."

[19] Accordingly, the Advocate depute submitted, section 261 of the 1995 Act required to be construed consonantly with the preceding common law position. The divergence of view among commentators as to whether the concluding words of section 261(2) - "that other accused" - referred to the accused who was the emitter of the hearsay statement or the accused who was the adducer of the hearsay evidence should be resolved as being a reference in favour of the former. And in any event, if that were not a correct view of the syntax, the words "in relation to" would require to be construed as meaning evidence relevant to the adducer by reason of the indirect benefit to him of securing in the particular circumstances of the offence the conviction of the emitter which the judges in McLay had described. In other words, "in relation to" required to be interpreted as being evidence against the confessor and not something ultroneously exculpatory of the adducer.

[20] In approaching these competing submissions, and particularly the Advocate depute's reliance on the Scottish Law Commission's report, we would observe first that the terms of section 261 do not mirror the terms of the draft Bill annexed to that report. The relevant clause in that draft Bill is clause 3(6) which reads: "Nothing in this Act shall apply to a statement made by the accused." The Explanatory Notes to the Bill states as respect that provision: "This subsection implements recommendation 11. (See paragraphs 5.71 to 5.77.)". It appears from the Hansard reports which we have obtained that the clause which became section 261 of the 1995 Act was introduced when the Criminal Justice (Scotland) Bill was being considered by the First Scottish Standing Committee on 20 April 1995. It was introduced as "New Clause 21" and is in all respects the same text as is to be found now in section 261 of the 1995 Act. The clause was introduced by the Parliamentary Under Secretary of State for Scotland, Lord James Douglas Hamilton, who said (cols. 203-204):

"New clause 21 will not be found in the commission's proposals. It has been introduced to deal with the particular difficulties that might arise if there is more than one accused. As a general rule, the new provisions as to evidence or hearsay do not apply to an accused. However, if there is more than one accused and one co-accused has made a statement relevant to the innocence or guilt of another co-accused but refuses to repeat that statement at the trial, we believe that the earlier statement should be admissible as evidence for - or indeed against - the accused who seeks to have it admitted; provided, of course, that all the necessary prerequisites for admitting such a statement are met."

[21] Even without such assistance as may be derived from that ministerial statement, it appears to us that section 261, in particular by employing the wide, or neutral, phrase "in relation to", innovates upon the common law position to the extent of allowing accused A to adduce hearsay evidence of a statement by co-accused B which is directly exculpatory of A while not being inculpatory of B. While we thus think that the terms of the statute have that result, it is not necessary for us to reach a concluded view on the matter since the statement emitted by Mr Burns says nothing of a positive nature exculpatory of the appellant. Its only possible evidential value to the appellant is that of assisting the Crown case and gaining such indirect or reflected benefit which might flow from securing Mr Burns' conviction, if the circumstances of the offence should be such that conviction of Mr Burns excludes the appellant's participation. The statutory provisions in section 261 of the 1995 Act do not, and in a sense cannot, alter the logic or relevance of a defence of incriminating a co-accused, which was explained in McLay v HM Advocate.

[22] Whether or not the terms of section 261(2) thus innovate upon the common law position in the manner to which we have just referred, we consider nonetheless that the true issue in this appeal remains whether in pursuit of his incrimination of a co-accused, an accused may lead evidence of a confession by that co-accused which is inadmissible were the prosecutor to seek to lead it. The proposition that evidence of a confession improperly or illegitimately obtained, which the prosecutor cannot lead as incriminatory of an accused, can nonetheless be placed before the jury by a co-accused in pursuit of proof of the same allegation, and thus in support of the prosecutor, is plainly a radical one. As already noted, it has no support at common law. In that context we would refer again to the particular aspects of the speech of Lord Hope in Regina v Myers which are mentioned in the concluding sentence of paragraph [11] of this Opinion. Had it been the intention of the legislature to sanction such a course, one would have expected clear and express language. But in our view there is nothing in the terms of section 261 - or the brief ministerial statement - which would point to an intention on the part of the legislature to permit evidence of a confession, improperly obtained, and thus not adducible by the prosecutor, to be put before the jury by an accused in support of his incrimination of the other accused. We note that in the final sentence of the ministerial statement there is a recognition that all other requisites require to be met; and one such requisite may be that the confession should not have been improperly obtained. The provisions of sections 259 to 261 of the 1995 Act are concerned with such objections as may arise from the hearsay rule. They are not concerned with such other, additional or discrete grounds of objection to the admission of the hearsay evidence in question as may arise in the particular case.

[23] Counsel for the appellant complemented her submission that section 261(2) of the 1995 Act gave an accused an essentially unlimited entitlement to lead hearsay evidence of a co-accused by a reference to Nulty v HM Advocate 2003 SCCR 378. Counsel pointed out that at paragraph 20ff of his opinion, the Lord Justice Clerk (Gill) found that section 259 of the 1995 Act did not give to the court a general discretion whether to admit hearsay evidence. Accordingly, hearsay evidence, which met the requirements of section 259, required to be admitted, although, as counsel naturally recognised, there was an overriding duty on the trial judge to ensure a fair trial by continuing to monitor the fairness of the admission of the hearsay evidence. Counsel submitted that accordingly the hearsay of the co-accused should be admitted, subject to that overriding question of fairness. The co-accused's rights under Article 6 of the European Convention on Human Rights and Fundamental Freedoms - "ECHR" - would, said counsel, only be breached if his confession were adduced by the Crown. The requirement to ensure protection from self-incrimination by the provision of legal advice was a requirement which only affected the prosecutor. The position of the co-accused would, said counsel, be adequately protected by directions to the jury.

[24] We would observe that while the court in Nulty v HM Advocate held that the terms of section 259 of the 1995 Act did not accord to the trial court a discretion whether to admit hearsay evidence, the court in Nulty was not, of course, concerned with the admission of evidence of a confession by an accused where that evidence was objectionable on grounds other than that it was hearsay. The objection in the present case is, of course, not that the admission of the evidence of the statement by Mr Burns would be unfair by reason of its being hearsay, but by reason of its containing a confession which has been improperly obtained, in the respect that Mr Burns was not accorded appropriate protection from self-incrimination. For our part, we do not consider that the conclusion that section 259 did not confer discretion excludes there being some cases in which admission of hearsay evidence may, solely by reason of its being hearsay, be so plainly and predictably productive of an unfair trial that the trial judge would be justified in refusing to admit the evidence at the outset. Consistently with the view already expressed, we therefore do not consider that the decision in Nulty v HM Advocate requires a court to admit hearsay evidence which is objectionable by reason of factors other than its being hearsay.

Directions to the jury
[25] Ultimately, recognising the obvious problem of admitting at the instance of one accused, in support of an incrimination, confession evidence which is inadmissible at the instance of the prosecutor, the solution which counsel for the appellant canvassed was that matters could adequately be dealt with simply by directions being given to the jury.

[26] In examining that proposition it is necessary to consider the form which such directions would require to take and the consequent nature of the exercise which a jury would be required to perform. In effect, the judge would require to instruct the jury that in considering whether it was proved on the evidence that B had committed the criminal act with which he was charged by the Crown, no account could be taken of the confession or incriminatory remarks which it was said that B had made, because that confession or those incriminatory remarks had been improperly procured and were not admissible evidence against him. The judge would then require to go further and direct that on the other hand, as part of A's defence of incrimination, the confession or incriminatory remarks were admissible in considering whether the evidence demonstrated that B had committed those same criminal acts; and that the relevance of that defence was that finding B to have committed those acts operated in the particular circumstances to exclude A as the perpetrator.

[27] The inconsistency between those two directions is, in our view, plain; and it is likely that many juries would have great difficulty in following those directions and applying them. Counsel for the appellant submitted that there was a distinction between leading evidence to ensure the conviction of the co-accused and leading evidence to assist in the exculpation of the accused. However, in the context of leading a statement which is only incriminatory of the co-accused, which is the position in the present case, we do not see that the analysis of its relevance to the defence of the appellant is other than that explained by the judges in McLay v HM Advocate. The terms of section 261 of the 1995 Act do not alter that fundamental matter of logic or relevance. If however, contrary to that view, there be in the case of a defence of incrimination of a co-accused some distinction between evidence of the confession being led as exculpatory, as opposed to inculpatory, the distinction is of such subtlety that we doubt whether many jurors would comprehend it sufficiently to avoid prejudice to the co-accused.

[28] In support of her contention that matters might be satisfactorily resolved by directions to the jury, counsel for the appellant also pointed to the existing need, where evidence of a statement by one accused inculpating another accused is made outwith the presence of that other accused, for a direction to be given to the jury that the statement does not constitute evidence against that other accused. While the need to give that direction does arise in practice, we consider that the exercise which the jury is called upon to perform in that situation is different from that which would be required in the situation postulated by counsel for the appellant. That exercise essentially involves the jury excluding or discarding that evidence. It does not require them to exclude that evidence and then include that evidence in deciding what is ultimately the same question of fact. It may also be added that one of the reasons for excluding confessions unfairly obtained is that such confessions may be unreliable. It may be objected to counsel for the appellant's proposition that, in so far as it is thought not to be in the public interest to deploy an illegitimately obtained confession to convict an accused, it is also not in that interest to deploy such a confession to secure acquittal by means of incriminating the co-accused.

[29] In these circumstances we have come to the conclusion that the sheriff was correct in his view that the prejudice to Mr Burns of the admission of the police statement could not satisfactorily be resolved by a direction to the jury.

Article 6 ECHR

[30] Counsel for the appellant also invoked ECHR article 6(3)(d) under which the appellant had the right "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him". Reference was made to the judgment of the European Court of Human Rights of 13 July 2006 Popov v Russia (Application No.26853/04). In addition, counsel for the appellant further submitted that since, she said, the Lord Advocate was insisting on proceeding against both the appellant and Mr Burns on a single indictment, one had in that insistence an act of the Lord Advocate giving rise to a devolution issue.

[31] As the Advocate depute pointed out, and as counsel for the appellant accepted, the right to examine witnesses conferred by article 6(3)(d) of the Convention is not absolute. At paragraph 176 of its judgment in Popov v Russia, the Strasbourg Court stated that the admissibility of evidence is primarily a matter of domestic law and that the essential aim of this paragraph of article 6 was "equality of arms". It is in our view not evident how that principle might be breached if the appellant were not entitled to lead evidence incriminating his co-accused which the prosecutor is not entitled to lead. Counsel also pointed to the observation of the European Court of Human Rights at paragraphs 178 and 179 in Popov v Russia to the effect that equality of arms need not entirely exhaust the content of paragraph (3)(d) and that there may be exceptional circumstances which might prompt the court to conclude that failure to hear a witness was incompatible with Article 6(3)(d). While counsel drew attention to that part of the judgment, we did not understand her to suggest that there were exceptional circumstances in this case and we, for our part, do not consider any such special circumstances to have been demonstrated.

[32] We would add that we do not regard the submission of counsel to the effect that a devolution issue arises to be well-founded. It is of course open to the appellant, or any of the co-accused, to move for a separation of trials. The appellant has not done so. Thus, in our view, it is incorrect to say that the Lord Advocate is insisting on indicting the appellant and Mr Burns together. Whether the trials should be separated is, of course, ultimately a matter for the court.

[33] For his part, counsel for Mr Burns in expressing what he described as "an entirely utilitarian standpoint", endorsed separation of trials as the appropriate course for the appellant to follow. In a decision given on 11 January 2011 in HM Advocate v Rita Heyster and Another, in which the circumstances were broadly similar, Lord Kinclaven had granted separation of trials. Counsel further submitted under reference to paragraph 9-56 of Renton & Brown Criminal Procedure that the court might separate the trials ex proprio motu.

[34] We did not understand counsel for Mr Burns to be inviting this court itself to separate the trials. In our opinion that is essentially a matter for the sheriff to decide, should the question be further canvassed before him. We note that at paragraph 22 of his Report, the sheriff expressed the view that it is only after the court's decision in relation to the principle issue posed by the appellant's application under section 259 that any decision in relation to separation of trials can properly be taken. As we have already stated, we consider that the sheriff reached the correct decision on that application and this appeal is accordingly refused.