Scottish High Court of Justiciary Decisons

Crown:  Divers, advocate depute

Accused:  Crowe;  Michael S Allan, Solicitors

6 December 2013

[1]        On 6 December 2013 I heard substantive argument on two motions made by Mr Crowe for the accused Jason McAllister.  Both motions related to the conduct of the determination hearing under the Proceeds of Crime Act 2002 (the Act).  The first was that I should order that the court should be cleared during the evidence of the accused Jason McAllister.  The second was that I should make an order under section 11 of the Contempt of Court Act 1981 prohibiting publication of “a name or other material linking the accused to a particular individual.”  I refused both motions in hoc statu.

Background
[2]       Jason McAllister was convicted on 9 January 2012 at an accelerated diet under section 76 of the Criminal Procedure (Scotland) Act 1995 of being concerned in the supply of cocaine for a period during September and October 2011 contrary to section 4(3)(b) of the Misuse of Drugs Act 1971.  He was on licence at the time having been convicted of an analogous offence in 2003 for which he received a sentence of 10 years imprisonment.  On 16 May 2012 the court sentenced him to a cumulo sentence of 5 years and 1 month imprisonment including 12 months in respect of an order under section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. 

[3]       The prosecutor served a statement under section 101 of the Act.  Answers were lodged under section 102 of the Act.  After sundry and somewhat protracted proceedings the determination hearing was set down for 5 and 6 December with a pre-hearing on 4 December 2013.  For reasons which are unimportant for these purposes the determination hearing did not proceed and in due course I ordered that it be heard over three days in March 2014.  The motions were made orally at the pre-hearing.  I invited Mr Crowe to make a written submission which he did the following day.  The motions were opposed by the Crown.

Submission for the accused
[4]       Mr Crowe said that his client’s position was that his involvement in the offence which gives rise to these proceedings came about as a result of threats and an obligation to repay money.  The threats had come from a particular individual.  This had been taken into account by the judge in sentencing Mr McAllister. 

[5]       Prior to the commission of this offence in June 2011 Mr McAllister’s house had been set on fire.  A letter from Grampian police dated 10 January 2012 confirms that the police were, at that time, investigating an alleged wilful fire-raising at his home address.  On 6 December 2011 a letter was sent to the accused in HMP Aberdeen.  Within the envelope was a handwritten letter wrapped around a .22 calibre bullet.  The letter made mention of the diet for sentencing in January 2012 and that there would be a welcoming party awaiting his arrival (presumably in prison).  A further letter was sent on 31 January 2012 containing threats against his family and telling him to keep his mouth shut and pay his debts.  The handwriting appeared to be similar to the writing in the earlier letter.  These threats are vouched by a copy police memorandum attached to the written submission.  A letter from Grampian police dated 5 January 2012 records that Jason McAllister has not co-operated with any police enquiry and has not provided a statement naming any person he believes may be responsible.  Additionally the letter said that there is no recorded intelligence to suggest that Mr McAllister is at risk from any third party and without his full co-operation this was unlikely to change.

[6]       I was informed that recently Mr McAllister had received a text message to the effect that should he in any way mention or allude to the activities of this particular individual the previous threats would be carried out.  This had not been reported to either the police or prison authorities.  Mr Crowe also told me that he understood Mr McAllister had discussed various matters with “them” from which he understood that there was a general threat against him.  There was no further specification as to when this took place, who “they” were or what these “discussions” entailed.  They had not been reported to the authorities.

[7]       Mr Crowe informed me that Mr McAllister maintained that his general criminal conduct was restricted to the terms of the section 76 indictment and the agreed narrative.  Any benefit is said to be restricted to the matters for which he pled guilty.  That was to be contrasted with the Crown’s position that not only was he involved in these matters but throughout the entire period from 28 March 2008 and 10 October 2011 he had benefitted from a criminal lifestyle.  Jason McAllister wished to give evidence in support of this position unencumbered, as he put it, by threats of violence and death.  Without the protection of the court in allowing him to present the full background his evidence would be inhibited by the fear of reprisal.  This evidence was said to be crucial to the defence case in allowing a proper assessment of his reliability and credibility.

[8]       Mr Crowe submitted that to refuse to make the orders sought would infringe Mr McAllister’s rights under articles 2, 3, 6 and 8 of the European Convention on Human Rights.  Fundamentally, he submitted, Jason McAllister is entitled to the protection of the court in line with its duty to protect citizens of the state.  Articles 2 and 3 were engaged because of the threats issued against him.  He referred me to the decision of Lord Glennie in the Outer House in the petition of the British Broadcasting Corporation, Applicants 2013 SLT 324.  A balancing exercise was not necessary because the right to life far outweighs other interests.  Article 6 was engaged;  it provided that the press or public may be excluded from all or part of the trial in the interests of public order in a democratic society.  Article 8 was involved because of the family situation.  He accepted that article 10 was also engaged but submitted that the qualification to the right applied to this case in the interests of public safety.  So far as the motion to close the court to the public is concerned he submitted that the Court of Session had such a power and that it would be surprising if the High Court of Justiciary did not also have such a power.  Lord Hodge in HMA v M 2007 SLT 462 accepted that there was such a power.

Crown
[9]       The Advocate Depute opposed the motions for two reasons.  First he said that the evidence which Mr Crowe sought to adduce was irrelevant for the determination of these proceedings.  Secondly he maintained that a balancing exercise favours the article 10 rights. 

[10]     So far as relevancy is concerned the advocate depute said that it was not in dispute that the accused had a criminal lifestyle.  Accordingly the issue for the court was to decide whether he had benefitted from his general criminal lifestyle in terms of section 92(5)(b) of the Act.  Where the court had decided that the accused had a criminal lifestyle it must make certain assumptions in deciding whether or not he had benefitted from his general criminal conduct and in deciding the benefit from that conduct;  section 96.  He described these assumptions as fairly draconian.  In essence the court must assume that every penny earned over the relevant period came from the proceeds of crime.  The accused offers to prove on a balance of probabilities that it is incorrect to make these assumptions.  Accordingly the background as to how it was that the accused came to commit the offence was irrelevant.  The parties positions were set out in the prosecutor’s statement and schedules thereto and the response. 

[11]     Turning to the balancing exercise the advocate depute submitted that the default position was that in an open and democratic society judicial proceedings should be in public with the press able to report these proceedings.  These rights were embodied in articles 10 and 6 of the ECHR.  In determining whether to make an order under section 11 of the Contempt of Court Act the court must be satisfied that there is a real risk that the accused rights under articles 2 and 3 would be infringed if the order was not made.  He submitted the information before the court did not allow such a judgement to be made at this stage.  The test was set out in the opinion of Lord Kingarth in A v Secretary of State for the Home Department 2013 SC 533 at paragraphs 59 and 60.  Any derogation from article 10 requires to be convincingly established.

[12]     The advocate depute accepted that the court had an inherent power to exclude the public in the interests of justice.  Accordingly it had the power to make an order under section 11 of the Contempt of Court Act 1981;  HMA v M.

Discussion
[13]     Section 11 of the Contempt of Court Act 1981 is in the following terms:

“In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.”

It is fundamental to the administration of justice that court proceedings should be conducted in public with access to the press and media to report such proceedings.  Nevertheless there are well recognised exceptions to that general rule.  Although not necessary for his opinion, Lord Hodge recognised the existence an inherent power of this court to regulate its proceedings including the power to exclude the public;  HMA v M. 

[14]     The existence of such a power in the Court of Session was recently re-affirmed in A v Secretary of State for the Home Department.  The Lord President (Gill) sets out the constitutional underpinning of such a power in paragraph 38 of his opinion where he stated that the court’s inherent jurisdiction lies at the heart of the court’s constitutional function as a court of justice.  He continued:

“In fulfilling its duty to do justice by all men, the court must have regard not only to the justice of the decision, but also to the justice of the procedures by which it gives it.  It therefore has the inherent power, in my opinion, to withhold the identity of a party where, regardless of the outcome of the case, the disclosure of the party’s identity would constitute an injustice to him;  for example, where disclosure would endanger his safety…”

Such reasoning applies with equal force to the High Court of Justiciary.  Accordingly I am satisfied that I have the power to both exclude the public from the proof during the evidence of Jason McAllister and to make an order under section 11 of the Contempt of Court Act 1981.

[15]     While the interests to be considered are well established in our common law it is convenient to consider these under reference to the rights embodied in the European Convention on Human Rights and Fundamental Freedoms.  The rights that are engaged are those identified by the parties.  Those are articles 2, 3 and to a lesser extent article 8, all of which involve the particular rights of the accused.  Article 6 which is often referred to as the right to a fair trial protects and promotes the right of the accused to a process which is fair both procedurally and in substance.  But it also engages the rights of the wider society to ensure that, subject to certain necessary restrictions, such processes are conducted in public.  The conduct of judicial proceedings in public is an important safeguard against legal processes which may be characterised as arbitrary or capricious.  Finally there is the right to free speech in article 10. 

[16]     In balancing these rights it is important to note, as Lord Kingarth did in A v Secretary of State for the Home Department (paragraph 59), that there can be no derogation from the rights afforded by articles 2 and 3 and where there is a conflict with article 10 these former rights must prevail.  The test that should be applied is whether there is a real risk of relevant harm.  If that test is met then that would, of itself, establish a convincing reason to derogate from article 10.

[17]     Turning to the facts as presented to me it seems to me clear that at the time that the accused appeared for sentencing he had well founded fears for his own safety.  These were vouched by the evidence of the letters and packages sent to him in prison and referred to in the letters and memorandum from the police.  However these particular threats were made two years ago.  While I have been told about a text message which is said to have been sent to the accused I have not been told when it was sent or what precisely the text said.  It is not helped by the fact that Mr McAllister has refused, perhaps for understandable reasons, to inform either the police or prison authorities of the existence of or nature of the threats which he says have been made to him.  There is therefore no assessment from those state bodies that have primary responsibility for ensuring Mr McAllister’s safety as to whether there is indeed a real risk to his safety in giving evidence at this hearing.

[18]     Accordingly at this stage I do not consider that I can say that the test has been met.  I emphasise at this stage because I recognise that where there may be a well-founded fear it may be appropriate to err on the side of caution than to engage in a detailed forensic examination of the evidence.  That said I do consider that when the court is being asked to make such orders it has a duty to ensure that there is a proper basis for doing so.  Had I considered that it was necessary for Mr Crowe to lead evidence of the nature he proposed I would have given him an opportunity to provide greater specification of the circumstances and nature of the threats to which he said Jason McAllister had recently been subjected.

[19]     However before I could make the orders I would need to be satisfied that the evidence which might give rise to fears for his safety was relevant to the issues for the court.  Mr Crowe’s proposition was that Jason McAllister’s general criminal conduct was limited to his involvement in the matters which formed the libel in the section 76 indictment.  Accordingly Jason McAllister wished to describe his involvement with a particular individual and the circumstances that led up to this.  As presently advised such evidence appears to me to be irrelevant. 

[20]     Mr Crowe initially attempted to persuade me that the word “Admitted” which appears in the answers to the statement under section 101(2) of the Act that the prosecutor believes that the accused has a criminal lifestyle was not an admission that he had such a lifestyle but merely an admission that the prosecutor believes he has such a lifestyle.  However it was not in the end in dispute (nor could it be given the terms of section 142 and schedule 4, paragraph 2(1)(a)) that for the purposes of the Act Mr McAllister has a criminal lifestyle.  Accordingly the issue is whether or not he benefitted from it and, if so, what is the benefit and what is the recoverable amount. 

[21]     Section 96 of the Act sets out four assumptions that the court must make for the purpose of deciding whether the accused has benefitted from his general criminal conduct and deciding his benefit from the conduct.  In making the statement under section 101 the prosecutor has followed the usual format setting out the extent of the information which the prosecutor believes relevant in connection with the making by the court of the required assumptions under section 96.  The information is contained in the schedules to the statement and answers that have been lodged as required by section 102.  It is not immediately apparent to me that the proposed evidence challenges any of the assumptions that the court is required to make under the Act.  More than once I asked Mr Crowe to link the proposed evidence to the matters which formed the issues in dispute but in the end I was unable to discern any clear link.

[22]     My difficulty is compounded by the fact that none of this is referred to in the accused’s response under section 102 of the Act.  Section 102(1) provides that the response must indicate the extent to which he accepts each allegation in the statement and, so far as he does not accept such an allegation, to give particulars of any matters he proposes to rely on.  The answers do not give any indication that it is to be argued that the accused’s benefit from his general criminal lifestyle was restricted to the matters in the section 76 indictment.  Mr Crowe’s response to this appeared to be that this was not a civil process where he would be restricted in the evidence by the terms of his pleadings.  But the importance of the response under section 102 is indicated by the fact that the court may take any acceptance of an allegation contained in the answers as conclusive of the matters to which it relates (section 102(3)) and may also take a failure to comply with an order for a response as an acceptance of the allegation (section 102(4)).

[23]     Nor is it suggested in the joint minute that there is to be any issue as to the restriction of benefit from the general criminal conduct to the libel in the section 76 indictment.  As required by the Act of Adjournal a pre-determination hearing was held and a joint minute in form 37AA.5D-A was lodged with the Court.  It recorded an agreement to certain proposed adjustments to the benefit figure in the defence forensic accountant’s report.  It then recorded that the other proposed adjustments were not agreed and were a matter of proof.  None of the proposed adjustments relate to the restriction of the benefit to the matters contained in the section 76 indictment.  In relation to the available amount there are said to be three issues for proof.  Nothing else is said about the issues between the parties.

[24]     Accordingly in my opinion even if a link could be established between the proposed evidence and the question as to whether the accused benefitted from his general criminal lifestyle and if so the benefit, such evidence would now be barred both by the terms of the answers and the joint minute entered into between the parties outlining the issues for proof.  The advocate depute indicated that he would not wish to be taking technical points but I did not understand him to concede that it would now be open to Mr Crowe to lead such evidence in the absence of a proper basis for doing so.

[25]     For these reasons I refused both motions.  Two matters however remain.  The first is that the advocate depute indicated that he would not be making an issue of the accused’s involvement with any particular individual.  Insofar as there may be any requirement to name a particular individual because of their appearance on relevant documentation he was content to do so by simply referring the judge to the document without naming the person in open court.  That seems to me a sensible approach.

[26]     Secondly there is a continuing obligation on the court to ensure compliance with ECHR rights.  That obligation does not cease simply because the court has reached a particular view on the information before it at the time.  Accordingly should it become necessary to lead evidence which might put the accused’s safety at risk then the court can revisit the decision.  It will of course be necessary to demonstrate that the evidence is relevant and that the test referred to by Lord Kingarth in A is met.