BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just ยฃ5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
Scottish High Court of Justiciary Decisons |
||
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. G. & Ors [2009] ScotHC HCJ_06 (23 December 2009) URL: http://www.bailii.org/scot/cases/ScotHC/2009/2009HCJ06.html Cite as: 2010 SCL 372, 2010 SLT 239, 2010 SCCR 146, [2009] HCJ 6, [2009] HCJ 06, [2009] ScotHC HCJ_06, [2009] ScotHC HCJ_6, 2010 GWD 2-23 |
[New search] [Help]
HIGH COURT OF JUSTICIARY
[2009] HCJ 06
|
|
|
OPINION OF LORD BRODIE
in the cause
H.M. ADVOCATE
against
G and Others
ญญญญญญญญญญญญญญญญญ________________
|
Crown: Ogg, QC, AD; Crown Agent
First Accused: Matt Jackson Advocate; Morrison & Haggerty
Second Accused: Iain Paterson, Solicitor Advocate; Iain McCafferty
Third Accused: Kerrigan, QC, Gavin Anderson, Advocate; Higgins Morledge & Litterick
23 December 2009
Introduction
[1] This
case called before me at the High Court at Edinburgh for a continued preliminary hearing on 7 January 2009. The first
accused was represented by Mr Matt Jackson, Advocate. The second accused
was represented by Mr Iain Paterson, Solicitor Advocate. The third
accused was represented by Mr Kerrigan, Q.C., and
Mr Gavin Anderson, Advocate.
[2] The
indictment contains 13 charges libelling incidents of serious sexual abuse
and rape of two complainers: E, born on 13 April 1997; and, D, born on 21 May 1996, which is alleged to have
occurred on various occasions between a date in 2001 and a date in 2007.
[3] There
had been previous preliminary hearings on 25 August, 27 October and 18 December 2008. As appears from the
Minutes of these Preliminary Hearings, parties have been concerned over the
evidence of both complainers. A number of different difficulties have been
anticipated in the light of investigations by and advice received from instructed
experts. An indication of the extent of these difficulties is provided by
perusal of the reports prepared by Professor Frank McPherson,
Consultant, Clinical Psychologist, productions No 61 to 68.
Professor McPherson is one of three psychologists who appear on the Crown
list of witnesses.
[4] Child witness
notices had been lodged by the Crown in terms of section 271A(a) of the
Criminal Procedure (Scotland)
Act 1995 in respect of D and E. These notices came before
Lady Dorrian in chambers on 14 August 2008. She appointed that the notices should be disposed of at the
Preliminary Hearing assigned for 25 August 2008 on the basis
that the special measures sought were not standard special measures in terms of
section 271A(14) of the 1995 Act. It was proposed that the evidence
of the complainer, D, should be taken on commission as provided by
section 271I and that the evidence of the complainer, E, should be taken
by live television link as provided for by section 271J. A question
having arisen as to what special measures would be appropriate for the purpose
of taking the evidence of the complainers, the Crown did not move the
section 271A applications on 25 August 2008 or at either of the
subsequent continued preliminary hearings. At the continued Preliminary Hearing
before Lord Uist on 18 December 2008, Mr Jackson, on behalf of the first accused, advised that Dr. Janet Boakes
had been instructed with a view to her providing an opinion as to the ability
of D to give evidence but that Dr Boakes had declined to provide an
opinion. Professor Memon had been instructed on behalf of the third
accused, however, and it was anticipated that she would be able to provide an
opinion. Dates (22 and 23 January 2009) had provisionally been identified for a hearing of the child witness
application in respect of D. Mr Kerrigan, for the third accused,
confirmed that Professor Memon was available to give evidence on 22 and 23 January 2009. However, her report
would not be available until 5 January 2009. Having heard from Mr Paterson on behalf of the second
accused and the Advocate Depute on behalf of the Crown, Lord Uist on the
joint motion of the representatives of the first, second and third accused,
there being no opposition, continued the PreliminaryHhearing until
7 January 2009 to enable; those representing each of the accused to
consult with Professor Memon with a view to confirming to the court on
7 January 2009 whether the child witness notice in respect of D, was
opposed, and whether a hearing was therefore required; and the Crown to advise
the defence in advance of the continued Preliminary Hearing as to the
exact arrangements envisaged for the taking of the evidence of D on
commission.
Submissions
[5] At the
hearing before me on 7 January 2009 Mr Kerrigan took the lead for the defence, Mr Jackson and
Mr Paterson adopting his position and joining in his motion which was to
further continue the preliminary hearing to 22 January 2008 for the purpose
identified by Mr Kerrigan.
"That the complainers [D] and [E] have each been interviewed at various times by police officers and the Procurator Fiscal at Crown precognition in September 2008. Said interviews were conducted otherwise than in accordance with the Guidance on Interviewing Child Witnesses in Scotland (2003 Edition).
As regards Crown precognition, there is no record of the questions asked of each complainer, though there are indications of potential interviewer bias where the Crown was seeking to have the complainers confirm each other's account rather than simply to find out what each complainer says happened.
There is evidence that when the complainer [D] was precognosed by the Crown a second time, she had by then discussed her position with [E] and rehearsed what she was to say.
As the questions put to each complainer at Crown precognition are not recorded, it is impossible to know the basis upon which the complainer [D] changed her position from initially stating that [the Minuter] did nothing, to saying that he did the same things to her as [the co-accused].
All police interviews with each complainer focussed upon asking the complainer to recount what she had told someone else, as opposed to being asked to simply say what happened. Another feature of the police interviews was the repeated and inappropriate use of closed questions.
That in all the circumstances, the interviewing processes deployed by the police and the Procurator Fiscal had led to such cross-contamination of the evidence of each complainer that neither can be relied upon as a reliable witness to any of the allegations libelled against the Minuter. Their evidence is inadmissible. Were it to be led in any trial, the act of the Lord Advocate in adducing that fundamentally flawed evidence would constitute a violation of the Minuter's rights to a fair trial under Article 6 of the European Convention on Human Rights".
[7] Mr Kerrigan
wished to insist on both Minutes, although late, with a view to persuading the court
that the evidence of both complainers or one or other of them, was so tainted
by the way in which they had originally been interviewed, that it should not be
admitted. This argument might be supplemented by reference to an argument
based on the phenomenon of false memory. Mr Kerrigan proposed that the
case should be continued to 22 January 2008 with a view to hearing the evidence of Professor Memom and, at
a continued diet, Dr. Boakes, (who was not available on 22 January).
At one or the other of these diets, the Crown would be able to lead its experts
if its position was that Professor Memom's evidence was not to be
accepted.
[9] In a
second speech, Mr Kerrigan reminded me that the whole purpose of the
procedural reforms which had followed upon the recommendations of the Bonomy
Committee, had been to bring issues before the Court at an early stage and not
to leave them over for trial. He referred me to the Opinion of
Lord Justice Clerk in N v HMA, otherwise GDN v HMA or Nulty v HMA 2003
JC 140, 2003 SCCR 378 at paragraphs 42 and 33. It was a
question of law as to whether evidence was or was not admissible. The court
could form a view based on the evidence of Professors Memon and McPherson
and Dr. Boakes. Mr Kerrigan accepted that, having heard this
evidence, he would be proposing to invite the judge to make an assessment of its
potential quality without having heard it. Nevertheless, this was an
exceptional case where it may by possible to make such an assessment even
without hearing the evidence.
Discussion
[12] The Advocate
Depute accepted that both witnesses are critical to the success of the Crown
case. Unless both are found to be credible and reliable the Crown cannot
succeed in respect of any of the charges. There can therefore be no question
but that the defence must be entitled to deploy every argument and lead any
evidence available to them with a view to discrediting this evidence. As I see
it, the only issue before the Court is when this should happen, and, in
particular, whether it should happen at a hearing beginning on 22 January 2009 and concluding at some
future date, as contended for by Mr Kerrigan, or whether it should happen
in the course of the trial, as contended for by the Advocate Depute.
[15] There is
no reason in principle why the course advocated by Mr Kerrigan should not
be followed. While what is guaranteed by article 6 of the Convention is a
fair trial, looking at the proceedings as a whole, the Appeal
Court has recognised that the discrete act of the
Lord Advocate in tendering a particular item of evidence might, in itself,
render the trial unfair: N v HMA 2003 JC140. Mr Kerrigan was correct to say that the objects
of the procedural reforms associated with the Bonomy Committee include the
early identification and resolution of issues which can be determined in
advance of trial with a view to abbreviating any eventual trial or avoiding the
need for trial entirely. The formulation of section 72(6)(b)(i)
encourages early disposal. It is commonplace to deal with objections to the
admissibility of evidence, with or without the leading of oral testimony, at a Preliminary Hearing.
In N v HMA supra at paragraph 32 the Lord Justice Clerk described
dealing with an objection based on a contravention of the guarantee of
fairness, prior to trial as "exceptional" and in R v A (No2) [2002] 1 AC 45 at paragraph 107, an authority cited by the
Lord Justice Clerk, the cases where this would occur are described as
"rare and isolated", but everything must depend on the facts. Here, on the
information before me, I cannot exclude the possibility that the question of
the admissibility of the complainers' evidence is capable of being dealt with
as a preliminary issue. That, however, is not the test I must apply. What I
have to decide is whether it is inappropriate to dispose of the defence
objection as a preliminary issue or, rather, attempt to dispose of it as a
preliminary issue, because, as Mr Kerrigan accepted, it may turn out that
the question cannot be determined before the evidence of the children is led.