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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Crooks v. Procurator Fiscal, Cupar [2002] ScotHC 344 (25 January 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/344.html Cite as: [2002] ScotHC 344

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1. This stated case raises a short point in relation to the proper practice in a summary prosecution in which a question arises as to the admissibility of evidence, which requires to be resolved by a trial within the trial. The appellant was charged with a theft allegedly committed on 6 July 1999. The first day of his trial was 13 March 2000 and on that date the sheriff heard certain evidence including the evidence of a police officer D.C. Seath. That officer was asked to give evidence of statements made by the appellant when interviewed. Objection was taken to the admissibility of the statements on the ground that an improper inducement had been offered to the appellant and the sheriff decided to hear the evidence relating to the interview in the context of a trial within a trial. Having announced that decision, the sheriff then heard the evidence of D.C. Seath. For reasons of convenience, he then heard the evidence of another witness whose evidence did not have any bearing on the question of admissibility and then resumed the trial within a trial and heard the evidence of another officer, D.C. Collins. At the conclusion of the evidence of D.C. Collins, the appellant gave evidence in the context of the trial within a trial. The sheriff then heard submissions on the question of admissibility and repelled the objection. The trial was then adjourned to 29 May 2000, as defence witnesses were not available. The basis on which the adjournment was made appears to have been that the Crown case had been closed. At the adjourned diet of trial, there was a defence motion of no case to answer, on the ground that the evidence relating to the appellant's statement had been given in the context of a trial within a trial and did not feature as evidence in the case. It was submitted that that evidence should have been led again before the Crown case closed and that, in the absence of that having been done, it could not be taken as evidence on the substantive issue. The sheriff repelled that submission and in due course convicted the appellant. The only question which arises in this appeal is whether the sheriff should have sustained the submission of no case to answer.
2. The modern practice in relation to hearing evidence in the context of a trial within a trial is laid down, and the reasons for it set out in detail, in Thompson v. Crowe 1999 SCCR 1003. It is evident from the opinion of the Lord Justice General in that case that there are two principal reasons for adopting the procedure. The first is that the question of admissibility of evidence is a question of law which should be decided by the judge, who should have the benefit, where necessary and appropriate, of evidence relevant to that issue. The second is that considerations of fairness require that the accused should be in a position to give evidence relative to the question of admissibility without incurring the risk of having to give evidence and, in particular, to be cross examined on matters relating to the substantive charge. In order to enable these objects to be achieved, the proceedings in a trial within a trial have to be, in a sense, separated from those in the remainder of the trial. In a jury trial, the consequence is that the evidence is first heard in the absence of the jury. It automatically follows that the evidence requires to be led a second time after the judge has rejected the objection, if he so decides, because there may still be questions, such as questions of fairness, for the jury to decide upon that evidence. In a summary trial, however, the judge has already heard the evidence and it is not obvious that any useful purpose could be served by requiring that it should be repeated. We specifically asked counsel for the appellant whether there might be circumstances in which prejudice might be caused to an accused by not having the evidence repeated and counsel was not able to point to any such circumstances. We note also from the Lord Justice General's extensive survey of the early authorities that at one time the practice, even in a jury trial in Scotland, was that the evidence bearing on admissibility should be heard in the presence of the jury before the judge made his decision upon admissibility (see 1999 S.C.C.R. at 1021D-E to 1023A). At the time when that practice was in force, the judge did rule on admissibility. Although there have been considerable variations in practice since that time, all of which are discussed in Thompson v. Crowe, the old practice is relevant because it demonstrates that the proceedings in the trial within a trial do not necessarily require to be regarded as in some way separate and distinct from the proceedings in the trial itself (see 1999 S.C.C.R. at 1035). In our view, the question of the proper practice in a trial, including a summary trial, is a practical question not a technical one.
3. In our view, there is, in general, no useful purpose to be served by requiring that evidence given in the course of the trial within the trial in summary proceedings should be repeated after the judge has determined the question of admissibility. Of course, if the appellant gives or leads evidence in the trial within a trial, that evidence will be restricted to the question of admissibility and cannot be founded on in relation to the substantive issue (subject, possibly, to the point reserved by the Lord Justice General in Thompson v. Crowe at p. 1039). The judge will require to put such evidence out of his mind when addressing the substantive issue. However, we see no reason why evidence for the prosecution, should not simply be treated as evidence given in the trial without the necessity of repetition. The only qualification which we would make is that it would, in most cases, be prudent for the judge, after delivering his decision on the question of admissibility, to give the parties an opportunity to put any further questions to the prosecution witnesses who had given evidence in the course of the trial within a trial, if they so desire.
4. In the present case, there was no suggestion that the appellant was in any way prejudiced by the course actually followed. The sheriff considered the submission made to him and took the view that there was nothing in the course which the proceedings had taken which was inconsistent with Thompson v. Crowe or with any rule of law. We agree with the sheriff and in these circumstances this appeal fails. We shall answer the first question in the case in the affirmative and find it unnecessary to answer the second question. The third question was not argued before us. We shall therefore refuse this appeal.