Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 74

HCA/2015/003530/XC

Lord Justice Clerk

Lady Paton

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

ANDREW McLEISH

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  McCluskey, Adams Whyte, Livingston

Respondent:  Niven-Smith, AD; Crown Agent

11 August 2016

[1]        In this case the appellant, who was the neighbour of the complainer and his girlfriend, living in the flat directly opposite them, was charged inter alia with an assault on the complainer in the hallway between their respective properties.  The appellant had lodged a special defence of self-defence.  When giving evidence the appellant was asked whether the complainer’s girlfriend had originally lived at the address, to which he replied:

“Naw, they had a, a bit of a volatile relationship.  She had been kicked out for stealing money from him and when we moved into the flat, all her stuff was kind of blocking all the, the exits ‘cause there was bags with her clothes and that kind of stuff.”

[2]        Later in his evidence the appellant’s agent asked, regarding the complainer “Had you seen him in that kind of manner before, or was that the only time you saw that?”  which elicited reply suggesting that the complainer had a certain quarrelsome nature, talked of fighting, and was a drunkard.

[3]        The procurator fiscal depute made a motion in terms of section 266(4)(b) of the Criminal Procedure (Scotland) Act 1995, to be permitted to ask questions of the appellant tending to show that he had been convicted of offences other than that with which he was charged.  The appellant had a number of convictions for violence, possession of weapons and dishonesty.  In particular, he was convicted in 2004 of possession of a weapon, in 2005 of an offence of violence, and in 2004 and 2015 of offences of dishonesty.

[4]        The application was opposed under reference to Leggate v HMA 1988 JC 127, on the basis that this was not a case where the nature or conduct of the defence was such as to involve imputations on the character of the complainer or witnesses, notwithstanding the remarks in question.  The test was one of fairness and the risk of prejudice was too great.

[5]        The sheriff granted the application.  It is not entirely clear whether she did so on the basis of the effect of both sets of remarks, or only in relation to those relating to the complainer’s girlfriend.  There are passages in her note which suggest that she relied on both,  for example, paragraph 9, since she refers there to the remarks, including those regarding the complainer, as being deliberate and gratuitous, and paragraph 8 where she states that the remarks went further than appeared to be warranted by the questions.  So far as the remarks concerning the complainer are concerned, we do not agree with that assessment, since those remarks arose in answer to the question noted above, which appears wholly to carry the risk of such an answer as eventuated.

[6]        Nevertheless, the sheriff appears to have considered that, in the context of a defence of self-defence, the remarks in relation to the complainer himself were not such as to justify cross-examination of the appellant as to his record, saying:

“It appeared to me that having regard to the nature of the offences with which the Appellant was charged it would be unduly prejudicial to him to allow cross-examination on previous convictions for offences of violence or the possession of weapons even if the purpose was only to go to his credibility.”

We consider that to be an appropriate response.  In relation to the complainer’s girlfriend however, the position was different, the sheriff stating:

“However, having impugned the credibility of the complainer's partner by referring to an act of dishonesty towards the complainer, it did not appear to me to be unduly prejudicial to the Appellant for the jury to be aware that the Appellant had also committed acts of dishonesty.  Accordingly, in exercising my discretion and attempting to achieve fairness between the Appellant and the public interest, I permitted the respondent's depute to cross-examine the Appellant on his convictions but only those relating to offences of dishonesty.”

[7]        It seems therefore that the sheriff ultimately based her decision solely on the remarks in relation to the complainer’s girlfriend.  This is how the decision was understood by both the Crown and the defence.  We are satisfied that in doing so she erred in the exercise of her discretion. Whilst the remark in question may be capable of reflecting on the character of the witness, it is a passing remark made in the context of an explanation as to the circumstances in which the complainer’s girlfriend came to be living in the block.  No direct attack was mounted on the witness’s character, and the answer was not one which was entirely unrelated to the question which was asked.  The Advocate Depute conceded that the sheriff had erred but sought to argue, with little conviction, that there had been no miscarriage of justice.  However, he acknowledged that the prior convictions were of a significant nature, and it would be difficult to suggest that they would not have had an equally significant effect on the assessment of the jury.  He also appeared to acknowledge that the decision of the procurator fiscal depute to make the motion in the first place had not perhaps accorded with the expectation of Lord Justice Clerk Ross in Leggate v HMA (page 147) that

“..we confidently expect that prosecutors will exercise a wise discretion as to whether it is really necessary in the particular circumstances to invite the court to exercise its discretion in favour of the crown and thus to allow cross-examination of the accused about his character.”

[8]        It is quite clear from the case of Leggate that the fundamental considerations in a matter such as this are those of fairness and balance.  In our view, the potential prejudice to the appellant was out of all proportion to any potential effect of the remark which he had made.  The appeal will therefore be allowed.