Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 103

HCA/2015/002629/XC & 2831/XC

HCA/2015/002630/XC & 2832/XC

HCA/2015/002631/XC & 2833/XC

HCA/2015/002632/XC & 2835/XC

Lord Justice Clerk

Lord Bracadale

Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

BILLS OF ADVOCATION and SECTION 65 APPEALS

by

HER MAJESTY’S ADVOCATE

Complainer;

against

(FIRST) RV, (SECOND) PO, (THIRD) JM and (FOURTH) KS

Respondents:

Complainer: A Prentice QC AD; the Crown Agent

First Respondent: Nelson; Ward & Co, Perth

Second Respondent: Belmonte, Solicitor Advocate; Belmonte & Co

Third Respondent: Renucci; Nigel Beaumont & Co

Fourth Respondent: Moggach; George Mathers & Co, Aberdeen

16 October 2015

[1]        These are Crown appeals by Bill of Advocation and in terms of s 65(8) of the Criminal Procedure (Scotland) Act 1995.  They are brought respectively against the decision of the trial judge at the High Court at Edinburgh on 13 July 2015 to desert the diet against the four respondents pro loco et tempore, and thereafter to refuse to extend the 11 and 12 month timebar periods to allow the Crown to re-indict.  It was accepted that, if the judge had erred in her decision to desert, the time limits required to be extended to enable the case to progress.

Background

[2]        The four respondents were indicted on 34 charges of theft, opening and attempting to open lockfast places, breaking into commercial premises, contravening section 2 of the Explosive Substances Act 1883 and section 4(3)(b) of the Misuse of Drugs Act 1971, and uttering of threats to a witness.  The offences were alleged to have taken place principally in Aberdeen and its environs between 1 August and 10 November 2013.  The speciality alleged was the breaking into automated teller machines by means of explosions.

[3]        The first three respondents appeared on petition in October and November 2013. The fourth respondent appeared from custody on 6 August 2014 to answer a petition warrant, also dated November 2013.  A previous indictment containing only 26 charges had been served on the first three respondents, citing them to appear at a Preliminary Hearing on 4 September 2014.  The PH was continued on joint motion on two occasions, with the 11 and 12 month periods requiring to be extended.  A fresh indictment was then served on all four respondents, with the PH on 18 November 2014 being continued eventually until 29 December 2014.  At that diet, all parties advised that they were ready for trial.  On 26 January 2015, a trial diet was fixed for 29 June 2015.  The 12 month period was extended to 3 July 2015 in respect of the first three respondents.

[4]        Between the Preliminary Hearing and the date of the trial, the Crown served five section 67 notices. There was no objection to any of the notices, but the trial was adjourned to allow the respondents time to consider the new material.  The trial commenced on 30 June 2015.  There were 227 witnesses listed.  A very limited joint minute had been agreed.  This involved only the arrest procedures for two of the respondents and five out of thirteen books of photographs.  The advocate depute called 73 witnesses.  Of these, only 8 were cross-examined.  Of these, only 3 were asked more than a handful of questions.  The trial judge appears to have been justifiably frustrated that no agreement had been reached in relation to any of this apparently uncontroversial evidence and the consequent substantial waste of resources and court time.  She was also concerned about an apparent lack of proper preparation by the Crown and, in particular, the advocate depute delegated with the task of prosecuting the case.  The judge gained the impression that the AD was preparing the case almost as he called each witness, reading from the precognition rather than having properly assessed in advance what areas of evidence required to be adduced.  Thus unchallenged testimony from one witness was led unnecessarily from different witnesses.  Some testimony had no evidential value at all.  CCTV images were not playable on the court equipment.  Some labels were missing, and remained so until several days into the trial. 

[5]        It is reasonable to say that there is a sense, from the judge’s report, of increasing exasperation, which was to culminate after, on 9 July 2015, the advocate depute called FC.  The AD had succeeded in annoying the judge even further by commencing his examination-in-chief, not by asking the witness about what he had seen or heard, but by asking him about what he had said in his interview, effectively as a socius criminis, with the police on 27 November 2013.  On 10 July, still in the course of examination-in-chief, parts of the transcripts of the police interview (productions 109 and 110) were put to the witness.   The audio visual recording discs of the interview had been lodged as labels.  Both the discs and the transcripts had been duly listed on the indictment.  Copies of the transcripts had been disclosed to the respondents in August 2014 prior to the service of the original indictment.  Discs with the recordings had also been provided to all four respondents.

[6]        During the course of the first respondent’s cross-examination of Mr C, it became apparent that the copies of one of the transcripts (pro 109), from which the judge, the advocate depute and counsel for the third and fourth respondents had been working, were not the same as the principal which was being put to the witness or the copies used by the first respondent’s counsel.  Exactly how this came about is not entirely clear.  However, it appears that there were two versions of the transcripts.  One was a draft representing the transcriber’s initial view of what had been said at interview.  The other version included edits by one of the interviewing police officers about what he thought had been said.  When the case had been re-indicted against all four respondents, the original draft transcripts had been copied to the respondents.

[7]        The judge adjourned the trial from what was a Friday until the Monday.  She asked the advocate depute to check the transcripts.  She reports that she thought that she had made it clear that the transcripts were to be checked against the recordings on disc.  However, although that was the universal understanding of all the defence representatives, it was not what the AD understood was to be done.  The Minute makes no reference to the original recordings and suggests that what was needed, as might have been expected, was a check that the copies corresponded with the principal (pro 109) which, after all, could hardly have been altered mid-trial, whatever errors might have been discovered.  The trial judge was informed that the principal was correct, as certified by the transcriber after consultation with the editing officer.

 [8]       The advocate depute advised the trial judge that the discrepancies between the two versions were minor.  What then occurred was additionally exasperating.  It was discovered that the copies of the second transcript (pro 110) in the hands of the judge, the advocate depute, and counsel for the third and fourth respondents contained only 42 pages of the 97 page principal document lodged in court.  An examination of this transcript would have suggested to a reasonably experienced practitioner that it was not a complete record of the interview.  Although there may be exceptions, an interview with a potential accused will usually end with a reference both to the end or a break in the interview and to a time.  The faulty transcript ends abruptly with a question and answer about clothing.  The start and finishing times recorded in the introduction are 6.35pm and 11.00pm.  Even with a recorded 15 minute break, the transcript is only 42 pages for four hours of interview.  That having been said, it does end with the certificate of accuracy, albeit one that is not signed.

[9]        In the missing section, which counsel for the fourth respondent did not have, the witness had been asked to look at certain photographs.  The identities of the persons shown in the photographs, except in relation to the first respondent, whom the witness knew and picked out, cannot be ascertained from the transcript.  However, by referring to a statement of one of the interviewing officers, which had been disclosed to the respondents, the gist of everything relevant said by the witness can quickly be understood.  The witness incriminates the first respondent, and a person known as “T”, by name and refers to other members of the group involved.  In the police officer’s statement, it is made clear that the police showed the witness photographs which included all four respondents.  Only the first respondent is mentioned as having been identified.  Incidentally, a detailed look at the transcript would have revealed the witness’s reference to a man with a “funny name” like “Shrewd” (cf S).  In the course of examination-in-chief, the witness had identified Mr S in court as one of the group.  It was asserted to the trial judge that, had counsel been aware of the earlier failure to identify Mr S, he would have objected to the “dock” identification. 

[10]      The judge granted the respondents’ motion to desert.  She was not satisfied that the transcripts which were then before her were accurate.  This was all against a background of general Crown inadequacy.  She was not prepared to adjourn the trial further for an unspecified period of time, to allow the defence to consider what may have been potentially significant information requiring further investigation. The judge was concerned about the directions which would have to be given to explain what use the jury could make of the interviews, given the problems with the transcripts.  No adjournment could address the issue of the fourth respondent having been identified in the dock without the objection, which would have been taken had counsel had the missing information.  A further adjournment for an unknown length of time would inconvenience the jury members.  The judge had, in her view, no option but to desert the trial pro loco et tempore.

[11]      The advocate depute thereafter rather optimistically moved the court to extend the 11 and 12 month time bars.  The first, second, and third respondents opposed the motion (the time bar not having expired in relation to the fourth respondent).  The judge refused the motion.  This brought the prosecution to an end against 3 of the 4 respondents.

Decision
[12]      An ongoing High Court trial for serious offences, such as those libelled in the indictment in this case, should be deserted at the instance of the court only when it has become abundantly clear that the circumstances warrant such drastic action.  It may be merited where, for example, irreparable unfairness is perceived to have occurred already or where there is a material risk that the proceedings will inevitably become unfair (HM Advocate v Fleming 2005 JC 291, LJC (Gill) at para [33]; Fraser v HM Advocate 2014 JC 115, LJC (Carloway) at para [51]).  That can only arise if the problem cannot be cured by an adjournment, an adequate direction to the jury (HM Advocate v Sinclair 1986 JC 113, LJC (Ross) at 123) or by introducing some other reasonable procedural or evidential step.  Desertion is in this sense an act of last resort, to be taken only where the actual or perceived unfairness is so material that no step short of abandoning the trial can address it.

[13]      Notwithstanding the many inadequacies on the part of the Crown, on the Monday morning, the only material problem was that transcripts of a witness’s interview, which were complete in their principal form as lodged productions, had been copied to the defence representatives (and to the advocate depute and judge) in a slightly different form in relation to the first (pro 109) and with about half of what ought to have been 97 pages missing in relation to the second (pro 110).  The transcripts had previously been disclosed to the respondents’ agents, but the exercise of re-copying what was by then a numbered production had caused unnecessary and avoidable confusion to some, but not all, of those engaged in the trial.  Wherever fault may lie, and it may be in several directions, the problem could readily have been cured by a comparison with the principal copy productions, or the discs, or both.   That appears to have been what the trial judge had in mind when she adjourned the trial over the weekend.

[14]      Even listening to the whole interview on disc would have taken less than three hours in total, and the trial could then have continued.  The problem could have been cured by an adjournment for that purpose, although whether even that would have been necessary is doubtful.  Whatever might have been on the transcripts, the gist of what the witness had said had been disclosed in the police officer’s statement.  It was that statement (and not the transcripts) which revealed that a photograph of the fourth respondent had been shown to the witness with no effect.  The fourth respondent had nevertheless not objected to the witness identifying the fourth respondent in the dock.  However, that may be understandable.  This is not a case involving a fleeting glimpse of a perpetrator of a crime or similar situation.  The witness had, on his version of events, seen the members of the criminal gang over a prolonged period.  Accidental misidentification would not appear to have been an obvious line of defence.  In any event, any problem stemming from dock identification could have been cured by suitable directions.  Any perceived unfairness could have been dealt with by simple procedural steps.

[15]      There can be no doubt that the multiple failings on the part of the Crown were an important context in which the trial judge’s decision to desert was taken.  The frustration expressed by the judge in this regard is entirely understandable.  There were significant defects in the manner in which the prosecution had (not) been progressed and a lack of candour in the responses to the judge’s reasonable, if probing, inquiries.  The Crown will no doubt pay due regard to these comments and to the strident observations of the judge in her report.

[16]      However, the public interest in the prosecution of serious crime must be considered.  The respondents are alleged to have committed a significant number of serious offences which must have required considerable planning and organisation.  It is clearly in the public interest that those charged with such serious offences are tried, and, if guilt is proved, convicted and sentenced.  It is not immediately apparent from the judge’s report that she fully considered the availability of procedural steps to remedy the regrettable but remediable situation which had arisen, short of deserting the diet.  It is also not clear from the judge’s reasoning that she properly carried out a balancing exercise, weighing the public interest against the risk of any potential unfairness as a result of what were defects in the presentation of the prosecution.  On that basis, the court is not satisfied that the judge properly exercised her discretion in deserting the diet.

[17]      The bills must be passed.  The time bar period of 12 months is extended until 29 April 2016.