Scottish High Court of Justiciary Decisons

HIGH COURT OF JUSTICIARY
	[2009] HCJ 05 OPINION OF LORD BRODIE in the application by HER MAJESTY'S ADVOCATE Petitioner; against ROBERT MARKWARD Respondent: _______

Petitioner: Edwards, A.D.; Crown Agent

Respondent: Mason, Advocate, Peter G. Farrell, Solicitor;

28 October 2009

Introduction

[1] This is an application, by way of petitions in terms of Section 272(1) of the Criminal Procedure (Scotland) Act 1995 to take the evidence of five witnesses on commission. The petitioner is the Lord Advocate. The respondent is Robert MMarkward. The respondent appears on an indictment which called for a first preliminary hearing at Glasgow on 8 September 2009. The indictment contains twenty charges. One charge is of breach of the peace and one is of assault. The remaining eighteen charges are either of fraud or theft. They have the common feature of an allegation that the respondent obtained entry to the home of an elderly person by means of deceit.

[2] The application came before me at the High Court in Glasgow on 12 October 2009. This was a continued hearing of the petition. The petitions had previously come before Lord Bonomy on 5 October 2009 when they had been continued in view of parties' lack of preparation. Lord Bonomy had dispensed with answers to the petition in terms of Rule 24.1(6) of the Act of Adjournal. I heard the application in a courtroom constituted as Chambers in order to comply with the provisions of Section 272(2) of the 1995 Act. The respondent, who is currently remanded, was present.

Section 272

[3] Section 272 of the 1995 Act provides, inter alia, as follows:

"272.-(1) In any criminal proceedings in the High Court or the sheriff court the prosecutor or the defence may, at an appropriate time, apply to a judge of the court in which the trial is to take place (or , if that is not yet known, to a judge of the High Court) for -

.....

(b) the appointment of a commissioner to examine, at any place in the United Kingdom, Channel Islands, or Isle of Man, a witness who -
(i) by reason of being ill or infirm is unable to attend the trial diet;
....

(2) A hearing, as regards any application under subsection (1) above by a party, shall be conducted in chambers but may be dispensed with if the application is not opposed.

(3) An application under subsection (1) above may be granted only if the judge is satisfied that-

(a) the evidence which it is averred the witness is able to give is necessary for the proper adjudication of the trial; and

(b) there would be no unfairness to the other party were such evidence to be received in the form of the record of an examination conducted by virtue of that subsection.

(4) Any such record as is mentioned in paragraph (b) of subsection (3) above shall, without being sworn to by witnesses, be received in evidence in so far as it either accords with the averment mentioned in paragraph (a) of that subsection or can be so received without unfairness to either party.

....

(12) In a case where it calls to the court to appoint a commissioner under subsection (1)(b) above, the commissioner shall be a person described in subsection (13) below.

(13) The persons are-

(a) where the proceedings before the commissioner are for the purposes of a trial in the High Court, a judge of the High Court, or

(b) in any other case, a sheriff."

Submissions

[4] The Advocate depute drew attention to the terms of Section 272. She referred to the petitions and the supporting medical certificates, given on soul and conscience. She stressed that the application had been made only after careful consideration by the Crown. The witnesses in respect of whom the application was made were all complainers. They were elderly being, respectively, 83, 71, 82, 87 and 92 years of age. However, it was not a matter of age alone. It was proposed that the thirteen other elderly complainers should give their evidence in open Court. As appeared from the medical certificates produced in support of the petitions, the witnesses in respect of whom the application was made were housebound or virtually so. A commission in terms of Section 272 was the only practicable way of taking their evidence. A live television link, as provided for by Section 271J of the Act was not an option as the video technology deployed by the Scottish Court Service does not extend to providing a live link from other than a certain number of designated sites. Indeed it is not possible to make a video recording of evidence taken other than at such sites and, accordingly, taking evidence by a commissioner as a special measure, as provided by section 271I, was not an option either. What was proposed was that the trial Judge, when identified, should be appointed as commissioner. The evidence of the witnesses might then be taken over a period of two or three days at their respective homes which are all in the Glasgow area. This would require the attendance of, in addition to the trial Judge and his or her clerk, a shorthand writer, the Advocate depute and perhaps another representative of the Crown, defence counsel and his instructing solicitor. It was not proposed that the respondent himself attend. The evidence recorded by the shorthand writer would then be reproduced as a transcript of the commission. It could then be read out to the jury at the trial. It would be appropriate that this was done by the Clerk of Court, as had been done on at least one other occasion of which the Advocate depute had experience. No unfairness would be involved in the procedure. What was envisaged was an open commission at which defence counsel would have the opportunity to cross-examine the witnesses. The respondent would hear the evidence being led against him at trial.

[5] Mr Mason, on behalf of the respondent, opposed the application in relation to all five of the witnesses. He made it clear that he took no issue with the terms of the soul and conscience certificates or how these certificates had been understood by the Advocate depute. He accepted that if these witnesses were to give evidence it was only appropriate that this should be in their own homes. His objection was to the proposed means of giving this evidence. It was his submission that the requirements of Section 272(3) were not satisfied, there being a superior method of taking the proposed evidence, that being by live television link from the witness's homes to the Court during the course of the trial. He questioned, albeit somewhat faintly, whether it could be said that what was proposed was necessary for the proper adjudication of the trial, given that the evidence would not be led at trial as such, but, more emphatically, he submitted that what was proposed by the petitioner risked unfairness to the respondent. The evidence that these witnesses were likely to give was important not only in relation to the particular charges to which they could speak but also to the other charges in the indictment, having regard to the rules on in Moorov v HMA 1930 JC 68 and Howden v HMA 1994 SCCR 19. The respondent would be denied the opportunity to hear the evidence as it was given, as was usual at trial. He would be unable to give instructions to his representatives after the evidence of the witnesses had been led in chief but before they were cross-examined. As far as the Advocate depute's observations as to the unavailability of the option of a live television link from a witness's home, that was not something that could be founded upon given the duty imposed on him by the Court by Section 271J(1) to make suitable arrangements for the evidence of a vulnerable person to be given from outside the courtroom by a live television link. Mr Mason referred to Walkers The Law of Evidence in Scotland (3^rd Ed. at paragraph 14.3.2) and Davidson, Evidence at paragraph 7.57 et seq and two of the cases discussed by Davidson, HMA v Lesacher 1982 SCCR 418 and Muirhead, Petitioner 1983 SLT 545.

Discussion

[6] Paragraph 14.1.1 of Walkers supra explains the taking of evidence on commission in the following terms:

"It is generally the case that evidence should be led in the presence of the tribunal of fact, and in the building where the tribunal normally convenes. However, it has long been accepted in civil cases that, when a witness will be unable to deliver the evidence in person and in that place, commission may be granted by the Court for the evidence to be taken before a substitute appointed by the Court, who will then report the evidence. The form of the commission procedure may be open, whereby an individual is appointed to hear the evidence at large as a Judge would in the proceedings normally, or in the form of prescribed interrogatories and cross-interrogatories which the commissioner must put to the witness. In 1980 commission in these forms was introduced for criminal proceedings in the High Court and Sheriff Court, but not the District Court."

[7] The provision which introduced commission in criminal proceedings was the Criminal Justice (Scotland) Act 1980, Section 32. Essentially, its terms have been reproduced in Section 272 of the Criminal Procedure (Scotland) Act 1995.

[8] As appears from the passage quoted from Walkers, it is not competent to take evidence on commission in criminal proceedings at common law: HMA v Hunter (1905) 12 SLT 723, the rationale being that to do so would be contrary to the Act of 1587 which was read as requiring all witnesses to give evidence in the presence of the accused. Mr Mason was therefore correct when he said that power of the Court to allow evidence to be taken on commission in criminal proceedings depends on the precise terms of the statutory provision relied upon. Here there is no question but that the witnesses are unable to attend Court by reason of being infirm. Mr Mason did not suggest otherwise. Mr Mason did however suggest that their evidence was not "necessary for the proper adjudication of the trial", as required by Section 272(3)(a) given that the evidence would not be given at trial. I reject that suggestion. In Muirhead, Petitioner supra at 548, Lord Cameron was not prepared to "[hazard] a guess as to the positive side of the meaning to be attached to this novel phrase", although he was clear that the test was not met where alternative witnesses were able to speak to the matter in issue. Given what Lord Cameron had to say about the wording of what is now Section 272(3)(a), I do not propose to attempt a comprehensive definition but I am quite satisfied that the test set out in the paragraph is satisfied in the present case. The witnesses are complainers. I would see the "adjudication of the trial" to be, or at least to include, the determination of the facts relevant to the charges in the indictment. The means by which the jury, as finder of fact, is enabled to do this is by leading evidence orally in open Court in a process known as a trial. The taking of evidence on commission involves no real departure from this method of proceeding, merely that the evidence is recorded in transcripts prior to trial and then put before the jury by means of the Clerk of Court reading out the transcripts (with, it is to be hoped, copy transcripts being available to members of the jury in order that they can more easily follow what is being read to them). It is proposed that the evidence will be adduced at the trial, albeit by reading the transcripts to the jury, with a view to the determination of relevant facts. Here I was not told what other evidence was available as to the circumstances of the charges in respect of which the five witnesses are complainers. I would, however, regard it as self-evident that the complainer in respect of a criminal charge is someone who can give necessary evidence in the sense that, prima facie, he is likely to have the most direct experience of what is alleged or at least a material part of it and therefore, where reasonably practicable, he should be led in order that the full circumstances of the charge be put before the finder of fact.

[9] In pressing his objection, Mr Mason attached more weight to the terms of paragraph (b) of Section 272(3), and what had been said about previous similar legislation by Lord Cameron in Muirhead. In terms of Section 272(3)(b) an application for the appointment of commissioner to examine a witness may be granted only if the Judge is satisfied that there would be no unfairness to the other party were such evidence to be received in the form of a record of the examination. In Muirhead Lord Cameron said this, at 548:

"This provision is entirely novel. I can well appreciate that it has value in respect of formal evidence but I think it is reasonably clear from [its] wording that it would be difficult to be satisfied in the case of a witness whose evidence is other than formal, that there could be no unfairness to the opposite party, be he prosecutor or accused, if he were deprived of the opportunity of oral cross-examination before the jury or the Judge, and particularly so in a case in which examination and cross-examination were to be conducted not viva boce voce before a commissioner but in the much less satisfactory form of the administration of interrogatories and cross-interrogatories."

[10] Muirhead was a case where the circumstances of the application were, as Lord Cameron observed, not such as elicited his sympathy and the reasons for that are clear. Moreover, what was proposed by the petitioner, who was the accused in respect of a charge of fraud, was that evidence be taken abroad by means of interrogatories, hence Lord Cameron's observations about the unfairness consequent upon a party being deprived of the opportunity of oral cross-examination. That is not the situation in the present case. What is proposed is an open commission at which there will be oral cross-examination of the witnesses or, at least, the opportunity for oral cross-examination. It is not clear to me in what way this will give rise to unfairness to the respondent. The respondent has had the opportunity to consult with his legal representatives and to disclose to them his position in relation to these charges. As I understand it, his position is that he never attended at any of the loci referred to in the charges let alone impetrated any deceit on the complainers. There has been disclosure of the complainers' statements to the respondent's representatives. The respondent's representatives have the opportunity to pregnosce the complainers should they consider it necessary. The only disadvantage to the respondent identified by Mr Mason was that he would not have the opportunity of consulting with his legal representatives between hearing the evidence of the complainers in chief at and the commencement of their cross-examination. I would see this supposed disadvantage to be more theoretical than real given that the respondent's representatives should be able to anticipate what evidence will be given by these witnesses with a fair degree of accuracy. In the unlikely event of any material difficulty arising, there would be the opportunity of addressing it prior to the evidence being heard by the jury in that once the transcript has been prepared, the respondent will have the opportunity of considering it and if, by any chance, cross-examination has been other than complete, that can be remedied by one means or another. If need be, further evidence might be taken from the witness, albeit that I would see that as an exceptional course to follow.

[11] In Muirhead Lord Cameron was considering what was then a novel provision allowing for a departure from a centuries old rule that all evidence in criminal proceedings be led in the presence of the accused. It would accordingly not be surprising if it were to have been approached with a degree of caution, although in HMA v Lesacher supra to which I was also referred by Mr Mason, the Sheriff was prepared to give the provision a relatively liberal interpretation. I would see it as significant that modern practice is much more familiar with provisions designed to facilitate the giving of evidence by more or less indirect means. I have in mind, in particular, the amendments to the 1995 Act effected by the Vulnerable Witnesses (Scotland) Act 2004. I would see the passing of that statute as involving a judgement by the legislature that justice and fairness require that all the relevant evidence be put before the jury in a way that is at once effective and which respects the interests of witnesses. Mr Mason did not really dispute that. Indeed, he was in a sense founding on the provisions of the 2004 Act when he drew my attention to the terms of Section 271J inserted into the 1995 Act by Section 1(1) of the Vulnerable Witnesses (Scotland) Act 2004. This, he submitted provided a superior way of taking the evidence of the five witnesses and, so he submitted, if there was a superior way of taking this evidence, it followed that any alternative, including that provided by Section 272 could not be said to involve no unfairness to the respondent. The Advocate depute's response to this was short. A live television link from a person's home was simply not achievable given the resources deployed by the Scottish Court Service. That appears to me to be a sufficient answer to the point. Mr Mason's submission was that questions of practicability or of the suggested alternative had to be left out of account given the duty imposed on the Court by Section 271J of the 1995 Act. My first observation is that this section only imposes a duty on the Court in the event of an application for special measures and a determination that the special measure to be used is a television link. That situation does not apply here. The obligations on the Court do not go the distance of identifying the optimum arrangement for taking evidence and then implementing them at the Court's own instance. My second observation is that where an application for special measures has been made and the special measure is a television link, the duty is to "make such arrangements as seem appropriate for the vulnerable witness ... to give evidence from a place outside the Court-room". However desirable it may be that that place be the witness's home, for example, I do not see that the Court is placed under a duty to secure that the link with the courtroom must be from the place which is most suitable for the witness. Rather, the objective of the statutory provision is the more modest one of providing an alternative to the giving of evidence in a courtroom. That is the mischief which Section 271J seeks to avoid.

[12] For completeness I would record that no point was taken in respect of the right to a fair trial as guaranteed by Article 6 of the European Convention on Human Rights and, in particular, the right to confrontation as provided for by Article 6.3(d). That would seem to reflect a correct analysis. Nothing proposed by the petitioner here would impinge upon the respondent's right to examine or have examined witnesses against him. As I have indicated, I see there to be no unfairness to the respondent in allowing the evidence of these witnesses to be received in the form of the record of an examination conducted before the trial judge as commissioner. In my opinion all the requirements of Section 272 (3) are satisfied in relation to these five witnesses and the application is accordingly granted.