Henderson v HM Advocate [2017] ScotHC HCJAC

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 43

HCA/2016/293/XC

Lord Justice General

Lord Malcolm

Lord Woolman

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

NOTE OF APPEAL AGAINST CONVICTION

by

COLIN ANDREW GORDON HENDERSON

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: I Paterson (sol adv); Paterson Bell

Respondent: Farquharson AD; the Crown Agent

25 May 2017

General
[1] On 21 March 2016, at the Sheriff Court in Dundee, the appellant was found guilty of a breach of the peace at the Victoria Bar on 3 December 2014, by conducting himself in a disorderly manner, brandishing a knife at the lieges and lunging at persons with it. He was sentenced to 2 years imprisonment.

[2] The Note of Appeal narrates that the appellant’s law agent had requested CCTV images prior to the trial, but that the police or the Crown had destroyed them either because they were of no evidential value to the Crown or because they were unclear. The appeal raises a sharp issue. Did the non-availability of the CCTV images result in an unfair trial and a miscarriage of justice?

Procedural History
[3] The procedural history is lengthy. The appellant appeared on petition on 4 December 2014. The following day, his agent, who was from an experienced firm of solicitors specialising in criminal law, wrote to the procurator fiscal in pro forma terms, requesting witness statements and any “recorded media”. Disclosure of statements took place on 16 March. By that time the CCTV images had long since been deleted. The agent wrote again on 14 May, requesting “copy of CCTV if any available”.

[4] The indictment was served on 10 July 2015. However, it was not until 29 August that a further letter from the agent requested:

“Disclosure of any available CCTV evidence, including CCTV from the public system as well as any CCTV from the Victoria Bar on (sic) nearby premises”.

That was the first mention of specific camera locations. The First Diet took place on 1 September 2015. At that diet a defence statement and a special defence of self-defence were produced late. The reason for that was that the appellant had only attended on his agent in the previous week. The defence statement requested “any available CCTV” and referred to the letters of 14 May and 29 August. The procurator fiscal depute had not seen either letter. At the hearing, the agent requested CCTV of the general area and the bar. The sheriff told him that, if the Crown did not have the CCTV, he should ask those who operated the system, rather than requesting the Crown to conduct new investigations. The agent asked for the First Diet to be continued, but the sheriff refused and adhered to the trial diet of 14 September 2015.

[5] On 28 September 2015, with the jury about to be empanelled, the appellant dismissed his agent. The sheriff adjourned the trial to a sitting of 26 October and fixed a fresh First Diet for 13 October. At that diet a new agent, again experienced in criminal defence work, appeared. He explained that he had only been instructed a few days beforehand and had not seen any papers. The sheriff asked about the CCTV. The agent said: “That ship has probably sailed”. He did not ask for a postponement or make any other motion relative to the CCTV. The PFD confirmed that the Crown did not have any CCTV. The First Diet was “continued” until 20 October.

[6] On 20 October 2015, at what was the third First Diet, the issue of the CCTV was raised yet again. The appellant’s agent accepted that there was no CCTV from the pub. He expected to “hit a brick wall” if he pursued the matter further. He understood from the PFD that the reporting police officer had said that CCTV images had been viewed but had not assisted. The appellant wanted to satisfy himself of that latter fact. The PFD said that he had received a memo (dated 20 October) from the police to the effect that: (a) there was no CCTV from the bar because of an electrical fault; and (b) a review of the CCTV, which had been carried out at the time, had not shown anything of evidential value. According to the PFD, public CCTV cameras would “range about” unless trained on a specific incident. On the night in question, the relevant camera had been facing the other way at the material time. There were thus no images of the incident. Once the police had become aware of an incident, they had trained the camera in its direction, but there was “nothing to be seen”. The incident had finished. The PFD was not sure if the CCTV images still existed. The First Diet was continued in order to check this.

[7] Two days later, the appellant’s agent said that the PFD had told him that the CCTV images had been very vague. They had not shown anything of evidential value and had been deleted. The agent appeared to agree with the sheriff that the parties would just have to “live with it”. The court was satisfied that the case was ready to proceed to trial. However, on 6 November 2015, the appellant’s agent moved to postpone the trial in order to investigate new matters. The trial diet was postponed to 1 February, with a fifth First Diet set for 19 January.

[8] On 19 January 2016, an issue involving the 999 call handlers arose, but no adjournment was sought as it was anticipated that that matter would be resolved. By this time, another memorandum from the police, dated 19 January, had been received by the PFD. This confirmed that the police had made no request to download CCTV images to disc. For that reason, no recording existed. Two stills had been taken from the CCTV images in order to identify two people who could be seen in what were grainy pictures. The stills had been destroyed in early January 2015, because the USBs had been unencrypted. The content of this memorandum only came to light in the appeal process. It had not been specifically drawn to the sheriff’s attention.

[9] On 3 February 2016 the appellant secured another postponement of the trial in order to carry out further preparation. A new trial diet was fixed for 14 March. At a sixth First Diet on 1 March, the sheriff noted that the written record had stated that there were no preliminary issues. However, CCTV was raised again by the appellant’s agent. He accepted that there had only been limited CCTV and that it had commenced after the incident. He accepted that the images had not been recorded. The agent said that he was ready to proceed to trial. That trial commenced on 18 March 2016.

[10] At the start of the trial the appellant’s agent stated that his instructions had been withdrawn. The appellant said that he wanted to go to trial, but also wished the services of a solicitor who could present “all the facts”. He maintained that his agent had been told that there was “no CCTV”, but he had found out that there “was CCTV”. The sheriff refused to adjourn the trial, given the procedural history. He was satisfied that there was no useful CCTV recording. The appellant proceeded to present his own defence without the benefit of a skilled law agent.

The evidence
[11] LM had been driving past the bar just after 8.00pm. She had seen three people. One was facing the other two and holding a large knife above his head. YK was a passenger in a car driven by her husband JK. She saw a man in the road with a large knife. There were two others about 6 feet away. These two ran away. JK described a similar scene, but said that one of the two had carried a baseball bat.

[12] AW was a customer in the bar. She had heard a commotion and had run downstairs. A man had come in, followed by the police. MR said that the appellant had come into the bar. Five minutes later two others had come in, one with nunchuks (two pieces of wood joined by a chain). The appellant had taken a large knife from the inside of his jacket and was trying to stab the two. One of the men was trying to hit him on the hand with the nunchuks. The two men had left. The appellant had stayed until the police arrived 5 minutes later, when he put the knife in his pocket and ran downstairs. The knife was later found under a carpet in the cellar.

[13] According to the landlord, GA, the appellant had come in brandishing the knife. A few seconds later two men had come in. The appellant had been trying to ward them off. One of the men had nunchuks. Although the appellant was defending himself, he was also attacking the men. The two men had run outside. The appellant remained until the police came, at which point he ran downstairs.

[14] NG had been outside the bar. He saw the appellant being chased by two others towards the pub. The appellant had a large knife. The others had weapons, including a baton and nunchuks.

[15] A police constable, who had been to the scene, was asked whether there had been any CCTV images. He said he did not know. He did not recall getting any from the CCTV operators.

[16] The appellant gave evidence. On his account, he had been on his way home when he had been chased by two men, one with a baseball bat and the other with the bottom section of a pool cue. The man with the pool cue had pulled out a knife, but the appellant had managed to get hold of it somehow. The two had been beating him up and he had run into the pub. He did not remember much after that, but denied hiding the knife.

[17] The jury, having been appropriately directed on self-defence, rejected the appellant’s account and found him guilty.

Submissions
Appellant
[18] The appellant founded upon the terms of the memorandum dated 20 October 2015 and, in particular, the failure by the police to retrieve the CCTV images. Reference was made to the subsequent memorandum, dated 19 January 2016, reporting what had happened in more detail and making reference to the stills.

[19] The appellant maintained that he had a right to have disclosed to him material necessary for the proper preparation and presentation of his defence. He and his law agents might have taken a different view of the CCTV images from that of the police (see McInnes v HM Advocate 2009 JC 6, Lord Rodger at para [28]). There were two questions. First, was the material which had been “withheld” something which ought to have been disclosed? Secondly, what remedy ought to be afforded for that in the context of a potential violation of the appellant’s Article 6 rights? The test in a non-disclosure appeal was whether a jury might have reached a different verdict had they been aware of the withheld information.

[20] The appellant had been given no opportunity of considering the CCTV images, because of the failure to disclose. In these unusual circumstances, there had been a miscarriage of justice.

Crown
[21] The Crown submitted that no unfairness had occurred. The CCTV issue had not been raised at the trial, in the sense of the loss of the images having any legal consequence. Failure to disclose material did not render a trial automatically unfair. There had been other evidence from independent witnesses about what had occurred both outside and inside the pub. The jury had had an opportunity to assess all of that evidence. The CCTV images had not contained anything relevant.

Decision
[22] The police had viewed certain CCTV images, but had formed the view that they were not relevant to the case. They did not show the incident or the events leading up to it. Accordingly, they did not forward them to the prosecutor under the disclosure regime set out in the Criminal Justice and Licensing (Scotland) Act 2010 (s 117(1)). There was no obligation consequently on the prosecutor to disclose that information (s 118), as it had never been in the prosecutor’s hands. The appellant wished to view the CCTV images, notwithstanding the police view as to their content. However, by the time he made any reference to specific CCTV images taken outside the bar, they had been lost and could not be recovered.

[23] That left a number of options open to the appellant. If he believed that, despite what the police had said, the images still existed, he could have made an application to the sheriff for disclosure in terms of section 128(1)(b) of the 2010 Act. In contrast, if he had accepted that the CCTV images were no longer available, he could have maintained, during the preliminary procedure before the sheriff, that the absence of the CCTV images had prejudiced a fair trial and that therefore the proceedings should be brought to a conclusion. Such a contention could have formed the basis of a plea in bar of trial based upon oppression flowing from the inevitability of an unfair trial. If it was contended that there was a compatibility issue stemming from that unfairness, the point ought to have been raised at first instance (Act of Adjournal (Criminal Procedure Rules) 1996, rules 40.2, 40.6). It could even have been made at the end of the Crown case. At no time was such a contention advanced.

[24] As his law agents appeared to appreciate, it is unlikely that such a contention would have succeeded. In the absence of bad faith on the part of the prosecution or the police, the normal approach, where an article which is not crucial for proof of the crime has been lost, through inadvertence or mistake, is to allow the party seeking to rely upon it to lead secondary evidence as to its content, rather than to stop the trial (Gordon v HM Advocate 2010 SCCR 589, Lord Carloway, delivering the Opinion of the Court, at para [99]; see also in England R (Ebrahim) v Feltham Magistrates’ Court [2001] 2 Cr App R 23).

[25] Other routes were also open to the appellant at the trial. He could have cross-examined the police, or indeed any civilian employees engaged in CCTV monitoring, about the content of the images. He could have made such submissions to the jury, as he thought appropriate, about the significance of the absence of the CCTV images. He could have maintained that their absence rendered the evidence of the eye-witnesses unreliable. All of these options, coupled with any associated directions to the jury, ought to have ensured a fair trial. However, the appellant, having dismissed two agents at trial diets, elected not to pursue these relatively common courses.

[26] The court is not persuaded, from the information it now has, including the memorandum relating to the stills, that there was anything in the CCTV images which was of any relevance to the charge. Indeed, this was candidly accepted on the appellant’s behalf during the course of the appeal hearing. To suggest otherwise would have been entirely speculative. There is therefore no basis for considering that the production of the CCTV images or the stills would have made any difference to the verdict of the jury, who were able to hear testimony about what happened from a number of eye-witnesses. They were able to weigh that evidence against the contrary account given by the appellant.

[27] In these circumstances, the court is not satisfied that any miscarriage of justice occurred. This appeal is therefore refused.