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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General
Lord Eassie
Lady Paton
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[2009] HCJAC 5
Appeal No: XC274/08
OPINION OF THE COURT
delivered by THE LORD
JUSTICE GENERAL
in
APPEAL
under section 74 of the Criminal Procedure (Scotland) Act 1995
by
HER MAJESTY'S ADVOCATE
Appellant;
against
GERALD JAMES DUFFY
Respondent:
_______
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Act: Stewart, A.D.; Crown Agent
Alt: Targowski, Q.C.,
Anderson; Peacock Johnston, Glasgow
20 June 2008
The legislative
provisions
[1] Section 327
of the Proceeds of Crime Act 2002 ("the 2002 Act") provides inter alia:
"(1) A
person commits an offence if he ...
(c) converts
criminal property;
(d) transfers
criminal property ..."
[2] Section 329
of the 2002 Act provides inter alia:
"(1) A
person commits an offence if he ...
(a) acquires
criminal property;
(b) uses
criminal property;
(c) has
possession of criminal property ..."
Sections 327 and 329 are in Part 7 of the 2002 Act.
[3] The terms
"criminal property" and "criminal conduct" are, for the purposes of
Part 7, defined in section 340 of the 2002 Act as follows:
"(2) Criminal
conduct is conduct which -
(a) constitutes
an offence in any part of the United Kingdom, or
(b) would constitute an offence in any part
of the United Kingdom if it occurred there.
(3) Property is criminal property if -
(a) it constitutes a person's benefit from
criminal conduct or it represents such a benefit (in whole or part and whether
directly or indirectly), and
(b) the alleged offender knows or suspects
that it constitutes or represents such a benefit."
The proceedings at
first instance
[4] The
respondent has been indicted on charges which allege contraventions of
sections 327 and 329 of the 2002 Act involving the receipt of large sums
of money and the purchase, use, possession and sale of heritable property. He has also been indicted on two related
charges of fraud.
[5] The respondent
has lodged a minute in terms of section 79 of the Criminal Procedure (Scotland)
Act 1995 objecting to the admissibility of evidence of certain previous
convictions in England for offences under the Misuse of Drugs Act 1971 and
under the 2002 Act of named Crown witnesses ("the named witnesses"), being
individuals from whom, it is understood, the Crown will seek to prove that the
respondent received money. It is stated
in the minute that it is understood that the Crown will seek to lead evidence that
the named witnesses were so convicted and, by means of those convictions, seek
to establish that funds alleged to have been transferred by them, directly or
indirectly, to the respondent constituted criminal property within the meaning
of section 340(3). It is contended
by the respondent that it is incompetent to lead evidence of a jury's verdict
in another cause, particularly of proceedings which took place in a different
jurisdiction. It is further contended
that, even if the evidence were competent, it would be inadmissible until
appeals lodged by the named witnesses against their convictions had been
concluded.
[6] The minute
was debated before a single judge on 8 April 2008.
On 17 April the judge sustained the minute and held that the
evidence of the witnesses' previous convictions was inadmissible. He considered that the existence of appeals
in relation to those convictions did not, of itself, render those convictions
inadmissible. However, he held that the
general rule in Scots law is that evidence of a criminal conviction of a third
party is inadmissible in as much as it is sought to be used in the trial of
another party as proof of the facts underlying the conviction. The previous convictions, he held, could not
be used to prove that the property in question was criminal property in terms
of the 2002 Act. Reference was made to,
among other cases, Howitt v HM Advocate 2000 J.C. 284.
[7] The Lord
Advocate has appealed against that decision.
An appeal by the respondent against the judge's finding relating to the
evidential status of convictions subject to an appeal was not insisted on
before us.
Submissions of
Parties
[8] The Advocate
depute submitted that the judge had been wrong to hold that evidence of the
witnesses' previous convictions was inadmissible. Howitt
v HM Advocate, on which the judge had
relied, could be distinguished. The fact
of conviction could be distinguished from the facts underlying a
conviction. Moreover, Howitt suggested that a prior verdict
could have a continuing validity for certain purposes (per Lord McCluskey at
pages 288 - 289). In the present case,
the convictions of the witnesses were part of a circumstantial case. They could not prove conclusively that this
was a criminal transaction, but were relevant to proof that the property in
question was "criminal property". The
2002 Act did not require proof that the property constituted a benefit from a
particular offence. It was enough to
lead evidence of the character of the money as "representing" benefit from
criminal conduct (section 340(3)(a)).
This could be done by showing that the source of funds was of a
particular character. The judge had
erred in stating that the Crown could not use the previous convictions of the
witnesses to prove that the property was "criminal property"; the Crown did not, and need not, go so far as
to say that the convictions provided irrefutable proof of the character of the
property.
[9] The essential
common law rule was that a determination in a civil or criminal process could
not be used as conclusive proof in a subsequent process involving the same
parties and substantially the same body of evidence (Dickson: Law of Evidence in
Scotland, paras. 385 and 386; Hume, vol. 2 pages 71-2). The passage in Walkers: The Law of Evidence in
Scotland (2nd edition) at para. 9.4.2 referred to in the judge's
report had to be understood in that context.
The present prosecution was not brought on the same facts as those
involved in the witnesses' convictions.
The Crown did not seek to use the previous convictions to demonstrate
the guilt or innocence of the witnesses, only that they were convicted. There was no bar at common law to the use of
previous convictions. They were formerly
referred to in cases involving thieves by habit and repute (Hume, vol 1, pages 92-5) and in those
concerning "common prostitutes" (Smith v Sellars 1978 J.C. 79). Historically, evidence of an accused's
previous convictions was permitted under the common law. That altered following the introduction of
the Criminal Procedure (Scotland) Act 1887 (section 67), but previous
convictions could still be considered relevant to an accused's propensity to
commit an offence, at least in relation to sexual offences (DS v
HM Advocate 2007 SC (PC) 1, per Lord Hope of Craighead at paras. [32]
and [40] - [43]; Lord Rodger of
Earlsferry at paras. [55], [63] - [64] and [84]; Baroness Hale of Richmond para. [94]; and Lord Brown of Eaton-under-Heywood at
para. [103]).
[10] Convictions of
third parties for prostitution were referred to in criminal cases alleging
brothel-keeping (Macpherson v Crisp 1919 J.C. 1; Milne v McNicol 1965 S.C.C.R. Supp 8). This practice proceeded without adverse
comment by the High Court in subsequent appeals. It was considered relevant to the case against
an accused that a third party had a previous conviction for an offence cognate
with the one charged against that accused. It was relevant to proof of the character of
the property in question. In the present
case the Crown sought to prove the character of the money in terms of the
scheme of the Act.
[11] Macphail:
Evidence, also referred to in the judge's decision, was wrong in stating
that previous convictions could not be used in subsequent proceedings (para.
11.22 to S11.22A). That general
proposition could not be supported on the basis of the authorities he cited. The only criminal case he considered (Aitchison v Tudhope 1981 S.C.C.R. 1) did not support the proposition he put
forward; it contemplated the use of
extract convictions in bail contravention proceedings where the accused had
already been convicted of an offence in breach of bail (per Lord Justice Clerk
Wheatley at pages 3 - 4). The other
authorities referred to were civil cases. Devlin
v Earl (1895) 3 S.L.T. 166 could be
distinguished. Unlike the present case,
it involved a civil proof with the same parties as a criminal trial. The passage in Alison (II, 66) to which the judge referred was also concerned with
a situation where there was a complete overlap of the parties involved. He had not referred to the cases involving
brothel-keeping and thieves by habit and repute, even to distinguish them. William
Bain & Co (Joinery) Ltd v Gilbert Ash (Scotland) Ltd (Glasgow
Sheriff Court 28 January 1982, Sheriff Principal John A Dick, Q.C.,
(unreported)), referred to by Macphail and
Walkers, as well as by the judge in
the present case, involved the evidential significance of a decree in absence. It provided a helpful précis of relevant
authorities, but little beyond its own facts to impinge upon the use of
previous convictions by the Crown in the present case.
[12] Macphail also referred to a report by
the Scottish Law Commission (Memorandum
No:46 Law of Evidence, 4 September 1980), which recommended the
introduction of a provision similar to section 10 of the Law Reform
(Miscellaneous Provisions) (Scotland) Act 1968, to allow evidence in a
subsequent criminal trial of a third person's previous conviction. That
recommendation did not mean that such convictions were generally inadmissible
absent such a provision: the report concerned cases in which the guilt of an
accused "depends" on the third party's commission of an offence (para. K.21). In the present case the Crown case did not
"depend" on the witnesses' previous convictions; they were merely of assistance.
[13] The Advocate
depute moved that we allow the appeal.
[14] On behalf of
the respondent Mr Targowski observed that the phrase "underlying fact" did not
feature in the Opinion of the court in Howitt.
The distinction sought to be drawn by
the Crown between a "fact" and an "underlying fact" was artificial. The common law of England did not allow the conviction of one
person to be admitted as evidence of the facts on which that conviction was
based at the subsequent trial of another person (Blackstone's Criminal
Practice (2008) page 2481, para. F11.5). That was also the case in Scotland (Howitt).
While the common law rule in England had been changed by statute (Police
and Criminal Evidence Act 1984, section 74), no such provision had been
introduced in Scotland in relation to criminal trials. The Crown could only succeed if the common law
permitted such evidence. The respondent
fully supported the reasoning of the judge in that regard. The principles outlined in Howitt prevented previous convictions of
third parties being used as evidence of the facts on which they are based at
subsequent criminal trials (Lord McCluskey at page 288). The fact of a conviction might have
significance in other proceedings, but the examples provided in Howitt were of proceedings related to
the individual convicted.
[15] The Advocate
depute had tried to distinguish between the use of convictions under the common
law in various circumstances, but had provided no authority to cast doubt on
the reasoning of Lord McCluskey in Howitt.
Previous convictions of an accused might
have been used at one time in cases such as those involving thieves by habit
and repute, but that concerned aggravations of criminal charges. They were not
used as proof of the subject matter of a libel. Prior to the statutory
prohibition aggravations involving previous convictions were libelled, but the
jury were directed to ignore them (DS v HM Advocate, per Lord Rodger at para.
[63], quoting Dickson at para. 15).
When the use of such aggravations became
difficult to control, the statutory prohibition was introduced. That position remained the same today. Their relevance in sexual offence cases, as in
the statutory context discussed in DS,
was an exception to the rule.
[16] The brothel-keeping
cases and that relating to importuning were from the district court and were
not authoritative. In Milne v McNicol the women in question had actually given evidence. Their convictions were not placed before the
court and relied on of themselves. No
case cited demonstrated that approach. Indeed the practice of the Crown, where
an accused was convicted of assault and later charged with murder following the
death of the complainer, was to re-indict using the same witnesses and
productions, not simply to rely on the previous conviction and adduce evidence
of death (Tees v HM Advocate 1994 J.C. 12). Following
Howitt this was the correct approach.
There was nothing to prevent the Crown
in the present case from leading evidence of the facts used to establish the convictions. Arguments of expense and convenience were not
sufficient to rule out such an approach. The appeal should be dismissed.
Discussion
[17] In
Volume 2 of his Commentaries on the
Law of Scotland Respecting Crimes (1844), Baron Hume, in dealing with the
topic of jurisdiction, poses at pages 71-2 the question:
"But, where the accused has already
been tried in the Criminal Court, shall it be held that his conviction or
acquittal there is probatio probata
of his guilt, or innocence, so as absolutely to rule the decision of the civil
Judge, concerning any patrimonial interest, which depends on the same facts?"
In response to his question he suggests that the civil court
might have regard to the evidence taken in the criminal court but would not treat
the determination of that court as conclusive.
He refers to Bontein v Bontein (reported among other places at
(1731) M. 14043-4). He also refers to
two decisions in which the Court of Session had, in civil proceedings,
"entirely disregarded" prior acquittals of the defenders in criminal trials. At pages 479-80 (dealing with Sentence
and Execution) Hume observes:
"If the Lord Advocate prosecute, and
obtain judgment for the pains of law, this shall not hinder the party injured
from insisting afterwards, in the Civil Court at least, (if such a process is
not competent in the Court of Justiciary,) for his damages and reparation. It is true, the Civil Judge is not bound to
receive the verdict of assize as probatio
probata of the man's guilt; but
still the testimonies given in the trial will be produced and allowed as lawful
evidence, so far as they go; though not
to the exclusion of new pleas, or additional evidence on the part of the
defender, whereby to obviate the presumption against him, and invalidate, if he
can, the previous conviction."
[18] Dickson (Grierson's edition) (1887) at
para.386 discusses Hume's views and concludes that they are inapplicable to the
then modern procedure. At para.387 it is
stated:
"The strict view [that is, that the
determination of the prior criminal court cannot be used at all in proof in a
subsequent civil action of the issues which are common to them] is more
consistent with principle, as well as with modern practice. In many cases the verdict in another case
should be excluded on the ground of res
inter alios; while in every case the
jury ought to decide on the evidence adduced before them, without regard to the
opinion which another judge or jury may have formed upon the same issue, but
perhaps erroneously, or from different evidence. The former verdict must either coincide with,
or differ from, the view which the jury would take on the second trial
independently of it. In the one event,
it would be useless; in the other, it
would produce misdecision, the risk of which can only be avoided by excluding
the proof." (See also Alison, II, pages 66-7)
That this was by the end of the nineteenth century the
settled view at common law is evidenced by the ruling of Lord President
Robertson in Devlin v Earl to the effect that it was
incompetent in a subsequent civil jury trial to prove a prior conviction for
assault. Walkers (1st edition) (1964) at para.32 states:
"The decree or verdict in an earlier
cause, whether civil or criminal, as distinct from a judicial admission in that
cause, is not admissible in evidence in another cause ..."
except for certain limited purposes which are there
specified. The fact that legislation
(section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act
1968) was enacted to alter this rule - in so far as concerns the use of prior
convictions as evidence in subsequent civil proceedings - confirms that the
settled rule at common law was as formulated in Walkers. This view as to the
position at common law is reiterated in the second edition of Walkers (2000) at para.9.4.2. It may be noted that section 10 renders
the prior conviction admissible "whether or not [the convicted person] is a
party to the civil proceedings".
[19] In its
Memorandum No.46 on the Law of Evidence (1980) the Scottish Law Commission
stated at para. K.21, under reference to the discussion in (then) Sheriff
Macphail's Research Paper on the same topic:
"In cases in which the guilt of the
accused depends on another person's having committed an offence, the
prosecution may have to prove again the guilt of the person concerned. The offences in this class include reset and
the harbouring of thieves. We propose
that there should be a provision for the admissibility of convictions,
analogous to section 10 of the Law Reform (Miscellaneous Provisions)
(Scotland) Act 1968, whereby if the accused wished to dispute the correctness
of another person's conviction, he would have to prove it wrong on a balance of
probabilities."
That proposal has not been carried through into
legislation. By contrast, in England and
Wales the common law rule, apparently similar to that in Scotland, namely that
evidence that a person, other than the current accused, has been convicted of
an earlier offence is not admissible in criminal proceedings so as to prove
that that person had in fact committed the offence, was abolished by
section 74 of the Police and Criminal Evidence Act 1984.
[20] The reasons
why at common law the findings of a criminal court in one trial are not of
evidential value in later criminal proceedings brought against another person
appear clearly from Howitt v HM Advocate (a decision of a court of
five judges) - particularly at pages 288-9. It is unnecessary to repeat them here. At page 288F-G Lord McCluskey,
delivering the Opinion of the Court, gives by way of example a number of
situations where a prior conviction may be of significance. The list is not intended to be
exhaustive. The exceptions to the
general rule given in Walkers (2nd
edition) at para.9.4.2 may be added. None
of those exceptions is applicable to the circumstances of the present case.
[21] We were also
referred to several criminal cases, two concerning brothel-keeping and one
concerning importuning as a common prostitute, in which reference was made to
convictions for prostitution of women using the premises or importuning (Macpherson v Crisp, Milne v McNicol and Smith v Sellars); but there was no discussion in either of the
brothel-keeping cases of whether the convictions of third parties could be used
(and, if so, how used) for the purpose of the proceedings against the occupier
of the premises. We reserve our opinion
on that matter.
[22] It is clear in
our view that, under the subsisting law of Scotland, it would not be competent to use
the extract convictions of the named witnesses for the purpose of proving in
the present prosecution that these witnesses did the deeds which gave rise to
their convictions. In these
circumstances it is difficult to divine what legitimate purpose the
introduction of these extracts into evidence in the present proceedings would
serve. The Advocate depute suggested
that, in a circumstantial case against the respondent, the fact that these
third parties had been convicted of the offences in question could be an
adminicle of evidence, capable of being used with other adminicles to establish
that the property in question was "criminal property"; these other adminicles included the amount of
money transferred, the absence of prior connection between these third parties
and the respondent and the use by the respondent of a false identity. But whether used as direct evidence of the
character of the property or as an adminicle of a larger body of evidence
establishing that character, the use contemplated involves, in our view,
inviting the jury in these proceedings to rely on the convictions as evidence
of, or as suggestive of, the conduct of those convicted. Such use in the present state of the law of
evidence is, in our view, incompetent. It
matters not for this purpose whether, as the Advocate depute submitted, it is
unnecessary, for the purpose of proving that the property in question is
criminal property, to establish that the benefit constitutes or represents a
benefit from specific criminal conduct;
we reserve our opinion on that submission.
[23] The Advocate
depute disavowed any intention to prove of new that the named witnesses had in
fact committed the offences of which they had been convicted in England.
This is, accordingly, not, it seems, a case in which the Crown is
proposing to prove relevant criminal conduct either by leading of new the
evidence led by the prosecution in the English trials or by testimony in the
present proceedings from these witnesses that they in fact committed the
offences of which they were there convicted.
It is accordingly unnecessary to express a view as to whether the extract
convictions might be used for the limited purpose of identifying with such a
witness the terms of the offence or offences of which he is admitting to having
been rightly convicted. On that matter
we reserve our opinion.
[24] However, for
the reasons stated we shall refuse the Crown appeal.
