Appellant: Wade QC; Crown Agent

Respondent: Dow; Bannerman Burke, Galashiels

4 December 2013

[1] This is a bill of advocation brought by the procurator fiscal in Jedburgh against a decision of the sheriff. It arises out of the following facts.

[2] The respondent was charged on summary complaint in Jedburgh Sheriff Court with two contraventions of section 111A(1A) of the Social Security Administration Act 1992. These related to knowing failure to give prompt notification to officials of the Department for Work and Pensions and Scottish Borders Council of a change of circumstances that affected the appellant's entitlement to Income Support and to Housing and Council Tax Benefit. The material change of circumstances was said to be that the appellant was sharing a home with her husband and had failed to declare his income and presence. In this way it is said that she obtained £5594.90 of Income Support and £1824.25 of Housing and Council Tax Benefit to which she was not entitled. The case proceeded to trial on 11 July 2013, when evidence was led and concluded from the first Crown witness and was thereafter led from the second Crown witness, Mr Graham White, an officer in the Department of Work and Pensions. Mr White's evidence was heard in part, and the trial was adjourned to 8 August 2013. The witness was still on oath and in the course of his examination-in-chief.

[3] On 11 July 2013 Mr White emailed the procurator fiscal depute who was conducting the trial in the following terms.

"hope you don't mind me mentioning this:

I'm not sure if you have finished with production 3 customer statement, - pages 11+12 contain the declaration with page 12 her signature.

this declaration would have been read over to her when she made the phone claim 10.3.10 and also when signed 11.3.10 and it includes her signing that the statement is true and complete and also aware to report changes in her circumstances.

it's another instruction for her to follow and if not understood at the time of signing she could have asked.

it may well be your intention to produce production 3 and discuss further and if so, I apologize for this".

On 29 July 2013 the procurator fiscal depute responded as follows:

"Sorry for not getting back to you earlier. thanks for this. I'll disclose this to the defence just so that they're aware".

Later that day she sent a further email as follows:

"In addition, given that you are in the middle of giving your evidence it would be appropriate not to discuss any evidential issues at this stage".

The procurator fiscal depute forwarded a copy of the email from Mr White to the respondents' solicitors on 29 July. It is averred by the complainer that she did not enter into a discussion with the witness about the contents of the email; that is entirely consistent with the second of the emails that she sent.

[3] Crown production 3, mentioned to in the first email, was referred to in the joint minute of agreement concluded between the Crown and the defence. The production is referred to in two paragraphs of the joint minute, paragraphs 2 and 3, in the following terms:

"2. On 11^th March 2010 the accused, Brenda Deveney, claimed income support for herself and her two daughters declaring that she had separated from her partner David Deveney on 5^th March 2010. Crown Production number 3 is the income support claim form relating to her claim. She listed her home address as [an address in Hawick]. She stated on the form that she had separated from her husband, David Deveney, and that he was residing at [an address in Bishopbriggs]

3. That the accused's application for income support was determined based on the information supplied by her in Crown Production number 3....".

[4] The respondent subsequently lodged a minute raising a compatibility issue within the meaning of section 288ZA(2) of the Criminal Procedure (Scotland) Act 1995. In the minute it was averred that the respondent could not receive a fair trial in terms of article 6 of the European Convention on Human Rights in view of what is described as a discussion as to evidence that took place between the procurator fiscal depute and the witness. The relevant part of the minute is in the following terms:

"That reporting officer remains on oath, he not yet having completed his evidence. He has requested that the procurator fiscal depute ask him about specific part of one of the productions in the case when the trial resumes as that will confirm the accused's knowledge that she was required to inform the Department for Work and Pensions as to a change in her circumstances. This issue goes to the heart of the trial".

The sheriff hearing the trial ordered the respondent's solicitor to lodge written submissions, and conducted a debate on the compatibility minute on 22 August 2013. The written submissions went beyond article 6 of the Convention, and averred oppression and contended that justice could not be seen to be done. Following the debate on 22 August 2013 the sheriff sustained the minute lodged and deserted the diet simpliciter in respect of the two charges on the complaint.

[5] In his report, the sheriff narrated the facts and the reasons for his decision. He held that the reporting officer should not have contacted the procurator fiscal as he did, although he expressly stated that he did not criticize the procurator fiscal depute, as she had acted most appropriately. He had sustained the submission on the compatibility issue on the basis that the matter was now in the public domain and justice must be transparent and seen to be done. The reporting officer should not have contacted the procurator fiscal as he did, and this appeared to be a breach of the appellant's rights under article 6.3.

[6] The sheriff's decision to desert the complaint against the respondent is now challenged by the Crown. It is submitted in the first place that the question of whether an accused person has received a fair trial in terms of article 6 can only be determined at the conclusion of proceedings, except in the most exceptional and blatant cases. Furthermore, it is submitted that the issue of contact between the witness and the complainer's depute did not raise any issues which had a bearing on the fairness of the respondent's trial. The contact between the witness and the complainer's depute could not be said to have tainted the evidence which the witness would have given. The complainer further submits that the test for oppression in summary proceedings is whether the risk of prejudice from the conduct is so grave that the sheriff could not be expected to put its prejudicial effect out of his mind and reach a fair verdict. The conduct referred to in the present case did not amount to prejudice, as any issues relating to the conduct of the witness could have been adequately explored by the respondent's solicitor in cross-examination.

[7] For the respondent, counsel submitted that the witness, Mr White, would have been asked about specific parts of a production when the trial resumed, so as to confirm the respondent's knowledge that she was required to inform the Department for Work and Pensions as to a change in her circumstances. This issue is said to go to the heart of the trial, and we agree that it is clearly a fundamental issue in the case. Counsel for the respondent further submitted that the respondent could not receive a fair and public hearing because a discussion as to a witness's evidence had taken place during the course of that evidence. The discussion had related to specific features of that evidence and the nature of the questions which might be asked by the procurator fiscal depute. That private discussion as to evidence took place between the procurator fiscal and the witness outwith the presence of the respondent. That amounted to a breach of the respondent's right to a fair trial under article 6; in view of the conversation the respondent could not now receive a fair trial.

[8] Counsel for the respondent further submitted that the respondent could not receive a fair trial as a matter of domestic law. It was immaterial whether this was regarded as oppression or a mere infringement of the right to a fair trial. In the evidence that he had actually given the reporting officer had stated that the respondent's signature was on page 12 of the production in question, production 3. It is an agreed fact in terms of the joint minute that the appellant's application for income support was determined based on the information supplied by her in production 3. No reference had yet been made, however, to the declaration on page 11 of that production, to the effect that the statement was true and complete and that the signatory was obliged to report any change of circumstances. The joint minute did not make the declaration evidence in the case. Even if that were wrong, there was nothing in the evidence to suggest that the form containing the declaration would have been read over to the appellant before she signed the application. That, however, was what the reporting officer had suggested to the procurator fiscal as a significant line of questioning. The Crown required to prove that the appellant knowingly failed to declare a change in her circumstances. That issue was a crucial fact and therefore went to the heart of the trial. The declaration in production 3 was obviously an important part of the Crown case but had not yet been led in evidence, and but for the approach by the reporting officer the procurator fiscal might never have referred to it. In that event the Crown case would have been significantly weaker. Thus the approach by the reporting officer to the procurator fiscal was improper, and had caused actual prejudice to the extent that the accused would not receive a fair trial. By way of analogy, it was suggested that the case was similar to one where the witness, in the middle of his evidence, had requested a private word with the procurator fiscal about his evidence, a request that would clearly have been refused.

[9] Despite the able submissions presented by counsel for the respondent, we are of opinion that we must pass the bill of advocation. The arguments for the complainer in the bill appear to us to be well founded for a number of reasons. First, it is impossible to rely on the European Convention on Human Rights as a primary ground of action. It is necessary first to go to the common law of fairness or oppression and determine the position there. Only when that has been done can any question of incompatibility with article 6 of the Convention arise. In the present case the sheriff appears to have gone straight to article 6 in holding that the appellant could not have received a fair trial.

[10] Secondly, we are of opinion that the sheriff's decision to desert the complaint simpliciter is premature. The question of fairness or oppression, whether under the common law or in relation to the compatibility of the common law with article 6, can normally only be determined at the conclusion of proceedings, except in what have been described as exceptional and blatant cases. In our opinion this is not such a case. The reason for this is very obvious. It is impossible to say with any certainty what the effect of any particular element in the evidence is going to be until the conclusion of the trial. It is impossible in particular to say whether there is unfair prejudice to the defence, on whether a fair trial is possible or justice can be seen to be done. By way of example, in the present case it is possible that the witness Mr White might not have been asked about the matters raised in his email. In that event it might be thought that there was no unfairness in respect of the ultimate result in the trial; nor in that event could there be any thing that could be construed as justice not being seen to be done.

[11] Thirdly, the tests for fairness, and even more so oppression, are substantial tests, to be determined objectively. At the stage when the present objection arose the critical question was in our opinion whether the sheriff could not be expected to put any prejudicial effect of the email exchange out of his mind in order to reach a fair verdict. We consider it unlikely that the sheriff could not do so, for a number of reasons. In the first place, if the sheriff had obtained the text of the email exchange, he would know exactly what had happened. The communications were entirely in writing, and the writing was available to the parties and the court. The sheriff would be able to ask questions of the witness to ensure that nothing untoward had happened. Exactly the same would be true of the respondent's solicitor. On this basis all the facts would be known and could be explored. Consequently it seems to us the justice could clearly be seen to be done. At the end of the case the sheriff had to give reasons, which would if appropriate cover this issue. This is a good illustration of why it is important to wait to the end of the trial to determine whether justice has been seen to be done or to consider other questions of fairness. In the second place, it appears to us that the contact between the witness and the procurator fiscal depute was minimal. It took the form of a mere reminder to ask a question. The procurator fiscal said nothing to the witness about his evidence. The reason for not communicating with a witness during evidence is the risk of tainting the evidence. It does not seem to us that this was a possible factor in the present case. In the third place, we are of opinion that agreement had been reached in the joint minute which meant that what the witness had suggested was not ultimately material. We deal with this point subsequently.

[12] Fourthly, a further general ground on which we consider that the respondent's arguments are ill-founded is that the text of the emails is available. What happened in those emails is not different in substance from evidence volunteered by a witness during his or her evidence. A witness may mention something even when no question is put, and such evidence is admissible.

[13] Fifthly, production 3, the document referred to in the email exchange, was agreed in the joint minute of agreement concluded between the procurator fiscal and the respondent. The critical issue for present purposes was whether the respondent knew about what was stated in production 3, and in particular that she had stated that she was living with her husband and that she was obliged to advise about any change in that situation. In paragraph 2 of the joint minute it is agreed that production 3 is the income support claim form relating to the respondent's claim, and that the respondent stated on the form that she had separated from her husband and that he was residing at a different address from hers. In paragraph 3 it is agreed that the respondent's application for income support was determined based on the information supplied by her in production 3. Thus the central position of the production in the respondent's claim for income support was agreed; she supplied the relevant information in that document. The document contained the addresses of the respondent and her husband, and also a declaration about the truth of what was stated and the need to report changes in circumstances. Those are, in essence, the matters that the witness, Mr White, referred to in the email exchange that has been objected to. In our opinion these are all matters that could have been inferred from the text of the document in the light of the agreement in the joint minute. In these circumstances we consider that it cannot be said that there is any unfair prejudice to the respondent.

[14] Finally, as a general point, we find it hard to believe that there was any significant risk that the evidence of the witness would have been tainted by the communications that passed between him and the procurator fiscal depute. As we have noted, it is the risk of tainting evidence that is the reason for not communicating with the witness while he or she is giving evidence. In this case we do not think that there was any such risk, as the procurator fiscal depute, very properly, said nothing to the witness about his evidence and advised him not to discuss any evidential issues.

[15] For the foregoing reasons, we will pass the bill and remit the case to the sheriff to proceed as accords.