Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lady Smith Lord Osborne	[2013] HCJAC 107 Appeal Nos: XC536/11 XC617/11   OPINION OF THE COURT (No 2)   delivered by LORD CARLOWAY   in the Bills of Advocation by   HER MAJESTY'S ADVOCATE,   Appellant;   against   (First) ARK; and (Second) AR   Respondent:   _______

 

Act: PW Ferguson QC, AD ; the Crown Agent

Alt: Clancy QC, MD Jackson; McSparran McCormick, Glasgow

Alt : Anthony QC; Fleming & Reid, Glasgow

3 May 2012

 

1. Procedural History

[1] The respondents, who are members of the Order of the Good Shepherd, were indicted to a first diet at Paisley Sheriff Court on 21 December 2010 charged with assaults on pupils during their tenure as, respectively, teacher and headmistress of Dalbeth Approved School, Bishopton, during the years 1970 to 1972. The pupils were all female teenagers at the material time and will have come from troubled backgrounds.

[2] More specifically, the first respondent is charged with repeated assaults on three complainers, each having a common theme involving the use of a carpet beater. The first charge is the most serious, being of assault to severe injury and permanent disfigurement. It contains a libel that the first respondent forced the complainer to drink anti-psychotic medicine, detained her in a room by tying her to pipe work and depriving her of nourishment. The remaining charges are of assault to injury only. That is also the level of severity in the remaining four charges, which are libelled against the second respondent. One of these has the same complainer as in one of the charges against the first respondent. The libel of forcing the complainers to drink the medicine appears in three of the charges against the second respondent, as is that of detaining the complainers against their will and depriving them of nourishment.

[3] It should be noted at the outset that the respondents first appeared on petition as early as 3 February 2010, when they were granted bail. No point is taken relative to unreasonable delay on the part of the Crown. No plea is tendered concerning the fitness of the respondents to stand trial, notwithstanding their advancing years. Rather, when they appeared at the first diet, the first respondent lodged a devolution minute (infra), which detailed the loss of potential sources of evidence as a result of the passage of time, but not linked specifically to any plea in bar. The minute contends that the respondent could not obtain a fair trial in terms of Article 6 of the European Convention. The minute specifically departs from any suggestion that the prosecution is oppressive. Indeed, it states that the test for oppression is itself "incompatible" with Article 6. The second respondent lodged a plea in bar of trial on the basis that it was oppressive to prosecute her "on charges of such an age (40 years)". This was accompanied by a similar narrative (infra) as was contained in the devolution minute relative to the loss of evidence. In due course, the second respondent also lodged a devolution minute in identical terms to that of her co-accused.

[4] After sundry adjournments of the first diet, prompted by defence motions for more time to prepare or joint motions by both Crown and defence, the sheriff heard argument on the preliminary plea and devolution minutes on 26 and 27 May and 6 June 2011. On 26 July 2011, the sheriff, according to the court minutes:

"Sustained the 1^st leg in both devolution minutes in respect of both accused and deemed that both accused would not have a fair trial in terms of section 6 of ECHR. Dismissed the case quoad both accused".

 

He did not address any argument based upon oppression, which was said to be the second leg.

[5] The Crown presented Bills of Advocation relative to this decision. There was an argument about the competency of the Bills, standing the ability of the Crown to seek leave to appeal in respect of a decision at a first diet. That matter was only resolved in the Crown's favour with the issue of the court's Opinion on 3 April 2012.

 

2. The Hearing before the Sheriff

[6] The facts as narrated in the devolution minutes are as follows:

"4 ...numerous potentially exculpatory materials and individuals are no longer available to [those representing the respondents] because of the excessive passage of time since these offences are alleged to have occurred.

5 ...in particular, but without prejudice to the generality the following sources of potentially exculpatory sources of evidence are no longer available to the defence; namely,

5.1 Lack of availability of witnesses, particularly doctors, social workers, nurse, inspectors, school board members and other persons due to the passage of time since the alleged incidents took place.

5.2 Lack of medical records and social work reports in relation to the complainers relevant to the period in question, and beforehand (standing the belief that many were abused prior to being sent to the said Dalbeth Approved School). This evidence being required, inter alia, to assist the then school psychologist... who is now 86 to give evidence on his views of the pupils at the said school at that time.

5.3 Lack of Social Work Service Group and Scottish Education Department returns and other regulatory information regarding Dalbeth Approved School for the relevant period".

 

The first respondent's minute has an additional paragraph as follows:

 

5.4 ...while enormous amounts of paperwork have already been disclosed by the Crown relative to certain complainers it was not known until very recently that this indictment would ever be brought and that consequently those representing the [respondents] could not have known what, if any, of this disclosed material would be of relevance".

 

[7] In considering the minutes, the sheriff had regard to the fact that Dalbeth had been set up under the Children and Young Persons (Scotland) Act 1937 and, at the time of the complainers' attendance there, the Approved School (Scotland) Rules 1961 were in force. These specified that the headmaster required to make certain reports and keep certain records. They permitted the pupils to request an interview with him, or a manager or inspector of the school, and the request required to be logged. Certain types of punishment had to be recorded in a book. The sheriff assumed, no doubt correctly, that, during Dalbeth's existence, there would have been substantial documents, registers and records, including medical records, in existence. It was not disputed that those could not be found. In addition, it was agreed that the evidence of a substantial number of potential witnesses, including a housemistress and the nurse, was not available because these witnesses were now deceased.

[8] The sheriff's reasoning, following upon the submission made to him, commences with the recognition that:

"There is, in law, no rule that a crime can prescribe. I am not persuaded, as a general rule, that the passage of time alone will seriously undermine the prospects of a fair trial. Each case has to be determined on its own facts and circumstances".

 

However, noting that the allegations were of physical abuse, some of the incidents of which were bound to have required medical attention, he concluded that:

"If allegations of this type were to be made... the absence of medical records would be grossly prejudicial to the Accused".

 

He then reasoned as follows:

 

"... that as a consequence of the passage of time, the loss of records and the death of potential witnesses the risk of prejudice to both Accused is so grave that it would be impossible to direct a jury in such a way that that prejudice could be avoided".

 

On that basis he sustained the contention to this effect in the minutes. He concluded that the dictum of Lord Wolfe in R v B [2003] EWCA Crim 319 (at para 28) was apt, viz:

"...that because of the delay... the appellant was put in an impossible position to defend himself. He was not...able to conduct any proper cross-examination of the complainant. There was no material that he could put to the complainant to suggest that she had said something had happened on one occasion which could be established to be incorrect. There was no material in the form of notes that were given to the doctors which showed that she had changed her account. All that the appellant could do was say that he had not committed the acts alleged against him. ...to say to a jury, when faced with allegations of the sort that were made here, "I have not done it" is virtually no defence at all".

 

3. Submissions

 

(a) CROWN

 

[9] The advocate depute submitted that the sheriff had taken the wrong approach and had not applied the correct test. That test was set out by the Lord Justice-Clerk (Ross) in McFadyen v Annan 1992 JC 53 (at 60) and was whether the delay has irretrievably prejudiced the prospects of a fair trial. That involved asking whether the risk of prejudice from the delay "is so grave that no direction by the trial judge could be expected to remove it". The absence of records and witnesses, in circumstances in which it was not known what the records would have revealed, or the witnesses would have said, did not of itself render a trial unfair, since that applied in very many cases (HM Advocate v McGill 1997 SCCR 230, LJG (Rodger) at 238).

[10] The sheriff, in directing the jury, would be able to point out the prejudicial effects, which the passage of time may have had, and the extent to which the jury would have to scrutinise the evidence of the complainers with care (ibid at 239, under reference to the dictum of the Lord Justice General (Hope) in McDowell v HM Advocate, 5 January 1996, unreported, Crown Office Circular A3/96, at p 6).

[11] The sheriff would have a duty to monitor fairness throughout the trial and if, at the conclusion of the evidence, the prejudice was so grave that a direction could not cure it, he would have a duty to desert the diet. The loss of lines of inquiry was not sufficient (eg Murphy v HM Advocate 2007 SCCR 532, Lord Bonomy at para [43], Lord Osborne at paras [51]-[53]) as there could be clear and forceful directions from the trial judge (eg ibid, Lord Carloway at 537). The test was a high one. An accused required to demonstrate that, prospectively, the proceedings as a whole would "necessarily", "inevitably or at least with practical certainty" be unfair (Transco v HM Advocate 2004 SCCR 553, Lord Maclean at para [7], Lord Osborne at para [21] following Lord Hamilton in Heasman v Taylor & Partners 2002 SC 326 (at 345) and HM Advocate v M(R) 2003 SCCR 632 (at para [14]), and Lord Hamilton at paras [42] - [44]). There was no known criminal case in Scotland in which there had been a successful plea in bar of trial based upon the absence of evidence. The test in McFadyen v Annan (supra) had been approved in Montgomery v HM Advocate 2001 SC (PC) 1, Lord Hope at 28, following Stuurman v HM Advocate 1980 JC 111, Lord Justice General (Emslie) at 122; 2000 JC 111, Lord Justice General (Rodger) at 117).

 

(b) RESPONDENTS

[12] The first respondent submitted that the sheriff had not erred in law. He had been correct in concluding that the trial would inevitably involve a breach of the fair trial requirement in Article 6. In essence the sheriff had recognised that this was a rare case in which the prejudice caused by the passage of time, the death of witnesses and the loss of records could not be cured by directions to the jury. The sheriff had adopted an enlightened approach.

[13] The environment at Dalbeth had been highly regulated in terms of the 1961 Rules. There had been a number of persons, such as the headmistress, the manager, the nurse and the visiting doctor, who would all have had a clear insight into the atmosphere and ethos of the school. The complainers were making allegations of injuries which would have required medical treatment. There were accounts of abscondings, which would have had to have been documented. Yet there were no records available. In these circumstances, the sheriff had been entitled to take the view which he took in advance of the trial. That trial would be in short compass and the sheriff had been in as good a position, in advance of that diet, as he would be were the trial to proceed. There was nothing to be gained by deferring the decision. It was in no‑one's interests to have a trial which could not be fair.

[14] The essential feature was the passage of time. It has a major detrimental effect on the quality of justice in a case of this kind. This had been determined in the civil context in B v Murray (no 2) 2005 SLT 982, in which the Lord Ordinary had held that similar factors would inevitably cause a decline in the quality of justice (see Lord Drummond Young at paras [21], [111] and [124], citing dicta from the High Court of Australia in Brisbane Regional Health Authority v Taylor [1996] 186 CLR 541 and the United States of America Supreme Court in Barker v Wingo (1972) 407 US 514 (see also paras [113] and [116]). He had held that the absence of witnesses and documents caused the defenders serious prejudice (para [120]). He therefore dismissed the action (para [143]). His view that such prejudice had been caused had been upheld on appeal (AS v Poor Sisters of Nazareth 2007 SC 688, LJG (Hamilton) at para [93]; 2008 SC (HL) 146, Lord Hope at para [28]). Where material was missing, which could have shed light on the issues, that was prejudicial to a fair trial.

[15] The sheriff had been influenced by cases from the English Court of Appeal in which it had been determined that the appellants' convictions were not "safe". The trials had not been fair because of the effects of delay (R v F [2011] EWCA Crim 726; R v Joynson [2008] EWCA Crim 3049; R v B (supra)). The sheriff would have been entitled to uphold the plea of oppression, since such a plea now encompassed the prosecution of an unfair trial.

[16] The second respondent adopted the submissions of the first respondent.

 

4. Decision

[17] The appropriate procedure, when an accused claims that he will not obtain a fair trial in circumstances such as the present, is for that accused to tender a preliminary plea in bar of trial, lodged in advance of a preliminary hearing or before or at a first diet, based upon oppression, including unfairness. A devolution minute may also be required as an adjunct to that minute if a breach of Article 6, in the context of the actings of the Crown, is also to be relied upon.

[18] There is force in the propositions advanced by the respondents that the absence of contemporaneous material and witnesses from the relevant era may limit the lines of cross-examination available and, to that extent, constrain the scope of the defence. However, whether these lines would in fact have been open, had the trial taken place nearer to the time of the alleged offences, is speculation, since it is not known what the material might have revealed or what witnesses might have said. There is little doubt, however, that certain areas of inquiry may be effectively foreclosed.

[19] The court is somewhat troubled by the prospect of a trial involving the prosecution of persons of the age of the respondents for offences of this vintage, especially given that all but one of the offences are essentially assaults to injury. However, the court is not the arbiter of the reasonableness of a prosecution. Whether or not prosecution is in the public interest is a matter for the appellant to assess, bearing in mind, of course, the prospect of a fair trial. In this context, the following remarks of Jackson LJ in R v F [2011] EWCA Crim 726 (at para 38) have some resonance in the Scottish context also:

"Some of the reported decisions contain statements to the effect that a stay on grounds of delay will only succeed in rare cases. This statement is no doubt true, because the prosecution will be scrupulous in weeding out cases that are vulnerable to abuse [of process] applications. The prosecution generally will not put the complainants in such cases through the unnecessary ordeal of giving evidence. However, the statement that stay applications only rarely succeed is of limited help in any individual case. As Rix LJ observed in [R v ] McKreth [[2009] EWCA Crim 1849], 'since about 2000 the courts have been astute to pay real and not mere lip service to a concern to do justice in such cases'" .

 

[20] Nevertheless it is normally impracticable for the court to become engaged in an exercise of predicting the fairness of a trial, since it cannot know the extent of the available evidential material, or its relevance and weight, in advance of the trial itself. The court may accordingly be reluctant to sustain a plea in bar of trial on this type of ground. The law is clear. It is only if it can be established at this preliminary stage that the trial "as a whole" will "inevitably" or "necessarily" be unfair that a plea in bar, based upon prospective unfairness will be sustained (HM Advocate v M(R) 2003 SCCR 632, Lord Hamilton, delivering the Opinion of the Court at para [14]; Transco v HM Advocate 2004 SCCR 553, Lord Maclean at para [7], Lord Osborne at para [21]). It may still be anticipated that such cases will be relatively "rare and isolated" (Transco, Lord Hamilton at para [44] adopting the dictum of Lord Hope in R v A (No 2) [2002] AC 45 at para 107) albeit that Jackson LJ's dictum reminds the court that there are now Article 6 considerations to bear in mind as well as the common law concepts of oppression and unfairness.

[21] In determining the inevitability of unfairness, the court must ask itself whether, in a solemn case, any potential prejudice "is so grave that no direction by the trial judge could be expected to remove it" (McFadyen v Annan 1992 JC 53, LJ‑C (Ross) at 60). It is true that here the sheriff did purport to apply this test, but it is difficult to grasp the reasoning behind his decision that in this case, as distinct from the many "historic abuse" and other trials that have taken place in recent years at a time distant from that of the offence, a sheriff would not be able to give a jury appropriate directions on the prejudicial effects upon the accused's defence of the passage of time and the need for the jury, in such circumstances, to scrutinise the evidence of complainers with particular care (HM Advocate v McGill 1997 SCCR 230, LJG (Rodger) at 239, following LJG (Hope) in McDowell v HM Advocate, 5 January 1996, unreported, Crown Office Circular A3/96, at p 6). Although the court is not in a position to affirm that the sheriff will inevitably be able to charge the jury in such a way as to remove any possible prejudice (cf LJG in McGill at 239), it cannot agree with the sheriff that it can be concluded that this simply cannot be done. It was, for example, achieved satisfactorily in Murphy v HM Advocate 2007 SCCR 532 in not too dissimilar circumstances and has been done in many other broadly analogous situations.

[22] Although the court agrees with many of the dicta of Lord Drummond Young in B v Murray (no 2) 2005 SLT 982 about the incidence of prejudice arising from historic claims, it does not find a comparison with civil cases concerning limitation of actions of much assistance. Such cases involve a different standard of proof. The court is not considering where the equities lie between private parties in permitting a litigation to proceed notwithstanding such prejudice. It is determining whether, in the context of a public prosecution, there will inevitably be an unfair trial.

[23] The court notes the decisions of the Court of Appeal in England (in R v F [2011] EWCA Crim 726; R v Joynson [2008] EWCA Crim 3049; and R v B [2003] EWCA Crim 319). Certainly, the dictum of Lord Woolf in the latter case (supra) is strongly suggestive of a situation whereby, if all contemporaneous material is lost, then an unfair trial must be regarded as inevitable. The court doubts whether that can be an absolute proposition. It must be of some significance that the decisions in England are all in the context of appeals after trial and address the Court's concerns over the "safety" of a verdict rather than pre-trial judgments of prospective unfairness. Much must depend on the particular circumstances. There may, for example, be different considerations where, as here, the court is dealing with multiple complainers and not just a single alleged victim. The need for corroboration in Scotland is also a factor to be borne in mind.

[24] In all these circumstances, the court concludes that, whilst acknowledging the force of the respondents' complaints, the sheriff has erred in his application of the test in McFadyen v Annan (supra). It holds that it has not been shown to be inevitable that an unfair trial will ensue. It must therefore repel the pleas in bar of trial contained in the devolution minutes and also, more appropriately, contained in the second respondent's plea in bar of trial by reason of unfairness.