APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Dorrian Lord Marnoch	[2014] HCJAC 99 Appeal No: XC28/13   OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK   in   APPEAL UNDER SECTION74(1) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995   by   GORDON BEURSKENS   Appellant;   against   HER MAJESTY’S ADVOCATE   Respondent:   _______

Appellant: I Bryce, Solicitor Advocate; Central Court Lawyers

Respondent: A Prentice QC (sol adv) AD, the Crown Agent

 

26 February 2013

Introduction

[1]        The appellant has been indicted for trial at Livingston Sheriff Court on a charge of embezzling some £85,000 from a James and Janet McQue over the period August 2006 to August 2009.  The allegation is that he obtained a mandate to operate the bank accounts of the McQues and essentially transferred money from these accounts to himself.  The first diet was originally scheduled for June 2012, with the trial diet in the following month. 

[2]        The appellant raised three issues.  First, he lodged a plea in bar of trial based upon the delay in the prosecution which, it is said, has resulted in the loss of the evidence of Mr McQue, who died in November 2011.  Secondly, he opposed the grant of five applications by the Crown under section 259 of the Criminal Procedure (Scotland) Act 1995 seeking to allow hearsay evidence of what Mrs McQue and a witness, JW, are alleged to have said to the police.  This was on the basis that the statements were in the nature of precognitions.  Thirdly, he maintained that, were the hearsay to be admitted, the appellant’s Article 6 rights would be breached.  Associated devolution minutes have, where appropriate, been lodged.  After sundry diets, on 4 January 2013 the sheriff found against the appellant on each issue, but granted leave to appeal.

 

The Investigation/Prosecution

[3]        On 9 December 2008, the chief executive of West Lothian Council made a complaint concerning the corruption of certain councillors in relation to planning matters.  On 22 December 2008, the police launched an investigation into the activities of the appellant and one other councillor in that regard.  In April 2009, during enquiry into the appellant’s bank accounts, the police noted that there were transfers between the accounts of the McQues and those of the appellant and his partner.  In June 2009, the police sent a report to the procurator fiscal, who directed that further enquiries be made.  On page 62 of this report, the police recorded that the appellant had befriended the McQues and had set up a third part mandate relative to their bank account.  It stated “Statements need to be taken to prove a fraudulent scheme”.  On 3 July 2009 the procurator fiscal expressed general agreement with the plan of the police to take such statements. 

[4]        The police first spoke to Mrs McQue (then aged 81) in July 2009 and interviewed her daughter in August 2009.  There were discussions between the police and the procurator fiscal around this time.  On 14 August 2009, a lengthy “witness statement” (Pro 121) was taken from Mrs McQue.  This consists of the standard front sheet, which notes that the statement was taken at Mrs McQue’s home and that it was authenticated by being read over to Mrs McQue and signed by her.  It states that the statement was tape recorded.  The document extends to some 26 pages of manuscript and indeed appears to be signed on each page by Mrs McQue.  It details the McQues meeting with the appellant in the mid-1990s and refers to their developing relationship.  It specifically states that the appellant had persuaded the McQues “to sign a thing for the bank to let him deal with the bank stuff”.  It deals with various account transactions and the cashing in of an ISA.  A second, much shorter, statement (Pro 122) was taken on 9 October 2009, referring to specific account transactions. This was also signed on each page but it was not taped.

[5]        On 1 December 2009 the appellant and his partner were detained and interviewed by the police before being released on an undertaking.  It is not entirely clear what the formal grounds for this detention were but it seems that the subsequent interview did relate, in part, to his dealings with the McQues.  On 16 December, the procurator fiscal cancelled the undertakings pending further consideration of the case.  This was followed by a meeting between the police and the procurator fiscal; the latter giving instructions on the medical assessment of, and the need to re-interview, certain witnesses.  Short signed third and fourth statements (Pro 123 and Pro 124) were taken from Mrs McQue on 8 January and 3 February 2010.

[6]        On 14 July 2010, there was a “full” report from the police to the procurator fiscal covering a variety of allegations.  There was then a gap in time before the procurator fiscal submitted a report to Crown Office on 17 June 2011, which was followed by instructions from Crown Counsel to proceed.  The appellant appeared on petition on 3 August 2011 and was indicted in May 2012.

[7]        Mrs McQue is still alive.  In terms of a psychiatric report dated 17 September 2009, which was compiled shortly after her first statement, she was not suffering from any mental illness, although she had mild depression secondary to her husband having been put into long-term care.  The psychiatrist formed the view that she was capable of being interviewed and giving evidence.  However, slightly over two years later, in terms of a further psychiatric report from a consultant psychiatrist dated 1 March 2012, it was said that she presented with “significant pathological cognitive impairment which is likely to be secondary to the results of cerebrovascular disease”.  She was described as “not currently fit to attend court as a witness”.  The psychiatrist expressed his belief that, if she did so, “this would be detrimental to her mental health and would cause unnecessary distress”.  This report does not say that she could not give evidence, but no point appears to have been taken in that regard.

[8]        Mr McQue died in November 2011.  The sheriff found that, by the time the allegations came to light, he had already been suffering from dementia and was in a care home.  No statement was ever taken from him by the police.

 

Delay

[9]        It was accepted by the appellant that delay, even in the form of a breach of the reasonable time requirement in Article 6 of the European Convention, does not of itself result in a bar to further proceedings.  There must be something in addition which renders the trial of the accused “unfair” (Spiers v Ruddy 2009 SC (PC) 1, Lord Hope at 8, Lord Rodger at 9, reversing R v HM Advocate 2003 SC (PC) 21).  The test to be applied was whether the delay had caused such prejudice to the prospect of a fair trial that it would be oppressive to require the accused to stand trial (McFadyen v Annan 1992 JC 53).  That, in turn, required a consideration of whether the prejudice was so grave that it could not be removed by appropriate directions given to the jury by the sheriff.  The contention was that the appellant had been prejudiced by the delay, in particular because of the death of Mr McQue in November 2011, shortly after the appellant had appeared on petition.  Proceedings had already commenced against the appellant, in Convention terms, by his being detained on 1 December 2009.  The issue of his dealings with the McQues had been raised at that time, although the focus of the detention had been on mortgage frauds.  Mr McQue was then alive.  Had the Crown not delayed in putting him on petition until August 2011, the defence would have had the opportunity to take a statement from him.  This would, it was asserted, have been beneficial to his defence since it would have confirmed that the appellant’s actions had been carried out with Mr McQue’s consent.   A further witness, JW, had also died during the course of 2012.  The appellant had been able to precognose her but, for the same reasons as were advanced in relation to the “statements” taken from Mrs McQue (see infra), the precognition was inadmissible, even although the Crown were prepared to agree it as accurately reflecting what JW had said.

[10]      The sheriff found that Mr McQue had been mentally unfit by September 2009, which was at an early stage in the police investigation.  He would never have been able to give evidence at trial and would probably not even have been able to give a statement.  In these circumstances the sheriff felt unable to conclude that an unfair trial would inevitably result as a consequence of the delay in prosecuting the case.  The sheriff considered that the precognition of JW was not entirely exculpatory, but that it was significant that the Crown had been prepared to agree it as if it were a “statement”.  In any event, he did not consider that the delay had been unreasonable, given the complexity of the allegations against the appellant, including those not connected to the McQues.

[11]      The Court is unable to reach the view that there has either been unreasonable delay in the Convention sense or that any delay has been such that the continued prosecution of the appellant would amount to oppression in terms of McFadyen v Annan 1992 JC 53; that is that any resultant prejudice could not be removed by an appropriate direction to the jury.  By the time the investigation had begun in earnest in relation to the appellant’s dealings with the McQues, Mr McQue appears to have been incapable of giving a statement.  In that context, the date of his death is not significant.  Even if the police and the procurator fiscal had acted with greater swiftness and the appellant had been placed on petition even a year earlier, this would have made no difference to the state of the evidence relative to Mr McQue.  In that connection, therefore, no prejudice has been shown to have occurred as a result of any delay.  The Crown have agreed to treat the appellant’s precognition of JW as if it were a statement made by her.  Given the limited scope of her involvement, that would appear to eliminate any material prejudice resulting from her death.  In due course, the trial judge may be required to give the jury directions on the need to take care before finding any facts established in the absence of testimony from the principal complainers.  At this stage, at least, it is not possible to conclude that such directions will not be adequate to ensure a fair trial. 

 

Statements/Precognitions
[12]      The argument for the appellant was that the “statements” were in the nature of precognitions and therefore not admissible in evidence at all, far less in the form of hearsay under section 259.  This contention followed the well-known line of authority which attempts to determine what constitutes a precognition and what is a statement according, in large measure, to the stage at which the precognition/statement is taken (McNeilie v HM Advocate 1927 SLT 145; Kerr v HM Advocate 1958 JC 14; HM Advocate v McSween 2007 SCCR 310; and Harvey v HM Advocate [2008] HCJAC 46).  As a generality, statements made by witnesses to the police in the course of their preliminary investigations are deemed to be such and regarded as admissible, but those taken in the course of preparing for trial are often considered to be precognitions and are excluded.

[13]      The sheriff held that the statements had been obtained during the investigative period of the case and that, although an initial report to the procurator fiscal had been compiled and there had been meetings between the procurator fiscal and the police, the full report recommending whether proceedings should be taken was not sent to the fiscal until July 2010.  No decision had been taken on whether the appellant should be prosecuted until after June 2011, when the matter was reported on precognition to Crown Counsel for instructions. 

[14]      The appellant submitted, under reference to the same line of authority, that the sheriff had been in error.  At the time of the statements, the police had been acting under the direction of the procurator fiscal and, accordingly, they had been taken on behalf of a party, or prospective party, to a prosecution.  It was accepted that there had been changes in practice in relation to precognitions and that, where information was disclosed during precognition which was of potential benefit to the defence, that information was now normally disclosable.  The advocate depute explained that the current practice was not to precognosce generally, but to have a system of “purpose driven” precognitions whereby only key witnesses would be precognosced for particular focused reasons.  Where information relevant to the defence was revealed on precognition, it would normally be disclosed.  That information could be used by the defence. 

[15]      Upon probing from the court, it was accepted by the appellant that the existence of a signature on the statement/precognition might be significant, although it had not been so regarded in previous cases.  Ultimately the Crown came to submit that this was decisive.  The concerns which existed at the time of Kerr v HM Advocate (supra, see also Dickson: Evidence (2^nd, Grierson, ed) paras 265, 1628, 1654) were no longer applicable.  In any event, the sheriff had been correct in his assessment that the statements had all been taken during the investigative process and not in the course of the Crown’s preparation for trial.

[16]      It is necessary to explore the issue of just what the rule against the use of statements in the nature of precognitions actually is in a little detail in order to ascertain the applicable general principles.  It is of note, however, that this has been done, albeit in a slightly different context, relatively recently (HM Advocate v McSween 2007 SCCR 310 (LJG (Hamilton) at para [8]).  At the end of the nineteenth century, the rule against hearsay was a powerful one.  As expressed in Dickson (supra at para 245), the reason was twofold.  First, what was said was not the best evidence and, secondly, it was not normally said under oath.  At common law, and until the enactment of section 3 of the Evidence Act 1852, what a witness said on oath could not be supported or contradicted by evidence of what he may have said extra-judicially (ibid para 264).  Hearsay was generally admitted, albeit cum nota, where a statement was emitted by someone who had died before the trial diet.  However, as background, it was of some importance that there was, and is, a formal method for ensuring the admissibility of testimony from a person who is unlikely to be alive at the date of trial, namely the “Dying Deposition” (see Walker & Walker: Evidence (3^rd ed) para 15.5.1).  The existence of that procedure tended to colour the views of the court when faced with informal declarations.  Be that as it may, hearsay evidence of what a person said was not permitted where the circumstances gave rise to a presumption that the statement “does not give a proper reflex of his mind” (Dickson (supra) at para 266).  Thus:

“The statements of a deceased witness may not be proved by his precognition taken by the adducer’s agent; because such examinations are conducted, not with a view of bringing out a fair statement, but of ascertaining what the witness can say in favour of the party examining” (ibid para 271).

 

[17]      In Kerr v HM Advocate 1958 JC 14, the Lord Advocate (Milligan) protested (at 17) that the law was in an unsatisfactory state because it had never been laid down just what a precognition was.  However, that was only partially correct.  In the early part of the 19^th century, the procedure in relation to persons arrested was that they appeared before the sheriff (or other “magistrate”), who would take their declaration.  The next step was for the sheriff to “commence a precognition” with a view to determining whether the prisoner should be committed to prison pending trial (Alison: Practice 134).  This precognition consisted of hearing the declarations of the witnesses.  The witnesses could be cited and might be put on oath.  Alison (ibid p 138) regarded the latter step as occurring more frequently than hitherto because of “the increasing depravity of the lower orders”.  Although the precognition was carried out before the sheriff, it was “entirely an ex parte proceeding on the part of the prosecutor” (Alison ibid 139) from which the accused was excluded.  The precognition was written down and signed by the witness.  However, it was regarded as confidential to the witness, who was entitled to have it destroyed before he gave evidence (Lewis: Evidence 174).  This rule was later applied to statements in the nature of precognitions taken extra-judicially by the police (Cook v McNeill (1906) 8 F 57, LJC (Macdonald) at 59).

[18]      It is against that background that the early cases, upon which Dickson founded, require to be considered.  Put shortly, the courts often excluded evidence of the content of a deceased witness’s precognition when the judges considered that it might not be reliable (HM Advocate v McIntosh (1838) 2 Swin 103; HM Advocate v Ormond (1848) Ark 483; HM Advocate v Lynch (1866) 2 Irv 3000).  However, they did not always do so (HM Advocate v Stephens (1839) 2 Swin 348; HM Advocate v Ward (1869) 1 Coup 186; HM Advocate v Peterson (1874) 2 Coup 557).  The reasoning in these cases differs and often relates to failures to take certain formal steps.  The fundamental concern of the (normally first instance) judges was to exclude unreliable evidence in the particular case.  The fact that the precognition had been read over and signed by the witness was not decisive as to its admission nor was the fact that the statement had been taken in the course of a formal precognition decisive as to its exclusion.

[19]      In McDonald v Union Bank (1864) 2 M 963, the Court of Session applied the same test as the High Court would have done to exclude evidence of the content of what would more readily be recognised as a precognition in the modern era; notes taken of an interview of a deceased witness by a law agent in the course of preparation for proof.  In excluding the evidence, the Lord Justice Clerk (Inglis) asserted (at 969) that all agents were prone to bias and that their notes would reflect the fact that their questions had been designed to secure the most favourable answers.  The notes, and the evidence of the agent, would not reflect what the witness said, but what the agent recalled in answer to his particular questions.  The Lord Justice Clerk continued:

“at first sight this may seem to constitute an objection to the value of this evidence rather than to its admissibility, but I think that it is an objection to the value of so grave a kind, as to amount to an objection to its admissibility” (see also Emslie v Alexander (1862) 1 M 209, LJC (Inglis) at 210).

 

He held that the hearsay was “utterly valueless and objectionable” (ibid) because it did not fairly represent what the witness said.  The majority of the court agreed, but Lord Benholme, whilst acknowledging his lack of experience in criminal cases, took a different view; regarding the objections as going only to the quality of the evidence and not to its competency (ibid 970). 

[20]      The idea that statements in precognitions were inherently bad, following the reasoning in McDonald v Union Bank (supra), continued into the twentieth century.  However, the question of their competence as evidence in criminal cases remained regarded as unsettled (Lewis: Evidence 234; see generally Anon (said to be NML Walker): Contradicted by Precognition 1959 SLT (news) 33).  In the early part of the century, the precognition in criminal cases had generally changed in nature from the formal one, carried out before the sheriff at an early stage in the criminal process, to an informal one taking place during a second (preparation) stage.  The first (investigative) stage was the gathering of evidence, including statements, by the police to be enclosed with their report to the procurator fiscal.  The second was the precognition carried out by the procurator fiscal, now under the auspices of the Lord Advocate, which accompanied his report to Crown Counsel.  The precognitions were not signed by the witnesses (see Macphail: Evidence para 24.12, under reference to Thomson Committee: Criminal Procedure (Second Report) paras 17.07 et seq); nor were the statements which had, by this time, come to be written down by the police in their notebooks or on statement forms.  It was perhaps only when such a two stage procedure operated that any distinction came to be made between a “statement” taken by a police officer (as distinct from a casual remark made to him during the initial investigations) and a precognition taken by the fiscal, or a police officer on his instructions, at the subsequent preparation stage. 

[21]      By analogy with the status of formal precognitions before the sheriff, those taken by the fiscal came to be regarded as confidential to the witness (even if taken by the police).  It was primarily for this reason that, despite the wide terms of section 3 of the 1852 Act, it was determined that they could not be used in evidence to contradict the witness’s testimony (McNeilie v HM Advocate 1929 JC 50, LJG (Clyde) at 53).  The locus classicus in the second half of the century was Kerr v HM Advocate (supra).  The reasoning in Kerr flows from McNeilie in its focus on confidentiality (LJC (Thomson) at 18; see also Hall v HM Advocate 1968 SLT 275, LJC (Grant) at 277).  The court expressed itself in terms of affording a precognition “protection” as a confidential document (ibid at 19).  However, the Lord Justice Clerk went on to explain, in a celebrated passage, that “one reason why reference to a precognition is frowned on” is that its contents are “filtered through the mind of another”.  He held that the particular statement was a precognition because it had not been taken during the course of preliminary investigations made by the police but at a point when the exploratory stage had passed and the building of a case against the appellant had commenced.  Nevertheless, he concluded (at 20) that: “In the end of the day the question resolves itself into one of fairness” (see also HM Advocate v Irving 1977 SLT 58, Lord Cameron at 62). 

[22]      The stage of the proceedings was important, but not decisive.  However, if a statement had been taken at a stage beyond that of preliminary investigation, when the police had begun to build up a case against a particular accused in preparation for the leading of evidence, it would be regarded as inadmissible as being of a “precognitional character”, having acquired “that colour and slant which makes it unsafe to regard them as a reliable reflection of what the witness meant”.  However, the Lord Justice Clerk added (at 20):

“But it is all so much a question of degree that there may well be circumstances where, even in the second stage, what is said to a policeman will not be protected”.

           

[23]      Matters appear to have turned full circle with Coll, Petitioner 1977 JC 29.  The petitioner had given a precognition on oath.  Standing the authorities, it might have been thought that this was clearly a “precognition” and that is was therefore not admissible in evidence.  However, the court explained that, under modern practice, it was not really a precognition at all but a “declaration on oath” (LJC (Wheatley) at 32) with built in safeguards “calculated to avoid the possible defects” which had been in contemplation in Kerr v HM Advocate (supra).  These safeguards included the presence of the sheriff, an official record of what was said and the fact that the “statement when recorded is read over and signed by the witness” (ibid at 33).  On that basis, the court held that such a “declaration” would be admissible to challenge the testimony of the witness at trial.

[24]      This approach can be seen as illustrating that the real issue for the court is one of fairness.  If the statement, whether or not capable of being described in traditional terms as a statement or a precognition according to the stage of proceedings, is such that a jury may properly rely upon it, then as a generality it might be thought that it ought to be available as competent evidence for their consideration.  Such a view would be consistent with the modern view that:

“As a general rule all evidence should be admissible unless there is good reason for it to be treated as inadmissible” (Scottish Law Commission: Report on Corroboration, Hearsay etc (SLC No.100) para 1.3).

 

However, that is, as yet, a statement of policy and not of law.

[25]      As in Coll, Petitioner (supra) it is important now to look at what the current practice is in relation to the taking of statements and precognitions.  It has certainly changed since the Lord Justice Clerk (Inglis) made his remarks in McDonald v Union Bank (supra), but it has also altered dramatically since his successor (Thomson) made his famous mind filter remark in Kerr v HM Advocate (supra).  The most important feature does not relate to any modification in the law, but to the simple fact that there are now readily available portable and other devices capable of recording electronically what witnesses say.  Indeed, such a device may have been used in relation to the first statement of Mrs McQue, although the court does not know whether the recording is extant.  It might be regarded as strange that a statement from a witness and recorded on tape by police in the ordinary exercise of their duties would be excluded from use under the modern equivalent of section 3 of the 1852 Act (1995 Act section 263(4)) on the basis that the stage at which it was taken was beyond that of investigation and that it accordingly fell to be regarded as in the nature of a precognition, according to what appears to be unique Scots law terminology.  Were an accused to be in possession of such a recording, it might be thought that fairness would dictate that he must be allowed to use it in cross-examination to challenge the testimony given by that witness against him. 

[26]      There are two developments in the law which must also be considered.  The first is the effect of “disclosure”.  Perhaps somewhat ironically, it has been the burden of disclosure that has effectively ended the usefulness of precognition as a standard part of criminal procedure.  The disclosure regime is now set out in the Criminal Justice and Licensing (Scotland) Act 2010, although its part in the criminal justice system was clarified in similar, if much shorter, terms in McLeod v HM Advocate (No 2) 1997 JC 67.  It defines the need to reveal “information”; being “material of any kind given to or obtained by the prosecutor in connection with the proceedings” (s 116(1).  The Crown are bound to reveal, inter alia, any information that is “likely to form part of the evidence” (s 121 (3)(c)).  Although section 160(5) of the Act provides that the Crown need not disclose a precognition, the information contained in that precognition is normally disclosable if relevant, for example, to the defence.  The concept of a statement made in the course of a Crown precognition being confidential has thus been, at least to a significant degree, diminished.  If that is so, the ratio of McNeilie v HM Advocate (supra), and to a material extent that of Kerr v HM Advocate (supra), in relation to the protection of precognitions as confidential, is significantly undermined.

[27]      The second development is the expansion on the competent use of extrajudicial statements in criminal proceedings.  As was noted above, section 3 of the 1852 Act is now section 263(4) of the 1995 Act.  The scope of this provision was, and is, limited to using statements which a witness is alleged to have made and which are “different” from his testimony. Its effect is limited to contradicting the witness and thus goes only to the credibility and reliability of his testimony.  This is so even if, on many occasions, its use by the Crown is to persuade the witness to revert to the position contained in the statement.  Section 18 of the Criminal Justice Act 1995 introduced the provision, which is now contained in section 260 of the Criminal Procedure (Scotland) Act 1995, whereby any prior statement made by a witness is admissible as evidence of any matter stated in it, provided that the statement is contained in a document (or recording, s 262(3)(c)) and the witness “indicates” in the course of his evidence that he “adopts” the statement as his evidence (cf the common law position in Jamieson v HM Advocate 1994 JC 251).  Statements “in a precognition”, other than those in a precognition on oath, are expressly excluded (s 262(1)(b)).  However, perhaps failing to heed the complaint of the Lord Advocate in Kerr v HM Advocate (supra), the Act is careful not to define what a precognition actually is (see also Civil Evidence (Scotland) Act 1988 s 9, defining “statement”, and Scottish Law Commission: Report on Hearsay Evidence (SLC No.149) para 5.4).  The exception merely begs the question of whether a statement remains excluded as being “in a precognition” if it is also recorded electronically or its contents are acknowledged as being true by the addition of the witness’s signature or both. 

[28]      Against this background, it is tolerably clear that little reliance can be put on the early 19^th century cases, since they relate to precognition in a sense which differs from that understood today and which, in so far as they might suggest that statements on precognition are inadmissible, have been overtaken by Coll, Petitioner (supra).  The ratio of the leading 20^th century cases (Kerr and McNeilie), in so far as it relates to confidentiality, is undermined by the modern disclosure regime.  This appears to leave standing the fundamental principle, which is apparent in both the 19^th and 20^th century cases, that the test is ultimately one of fairness.  Unless the court considers that the jury could not rely on the content of the statement/precognition as accurately recording what the witness actually said, because of the circumstances in which it was taken, it ought to be admitted in evidence for all competent purposes.  Under modern practice, where a signed document is involved, such a document should be available as a “statement” in terms of the 1995 Act, notwithstanding the stage at which it chanced to be recorded and signed.  Where there is such a signature, or indeed where what was said has been recorded electronically, the fact that the process in which the statement was emitted was one of precognition is of less significance than previously, so far as the competency of the statement as evidence is concerned.  Even if what was taken was originally a precognition, it takes on a different character altogether once it is read over to the witness and the witness acknowledges its truth by signing it (see in the civil context Highland Venison Marketing v Allwild 1992 SLT 1127, Lord Cullen at 1129).  The reliability and credibility of the content of the statement will, of course, remain challengeable by reference to the circumstances in which it was given or otherwise.              

[29]      For these reasons, whatever stage statements are taken, the addition of the witness’s signature to a document containing an account of events attributable to his knowledge, will normally result in that document being classified as a “statement” by, and not a precognition of, that witness for the purposes of the provisions of the 1995 Act.  The document ceases to be solely a filtered note of what the statement taker thinks the witness might say (a precognition) and becomes a version of events specifically acknowledged as being emitted by the signatory (a statement).  The appeal on this ground is accordingly refused on that basis.  In any event, the sheriff was correct in holding that the statement was taken during the course of the investigative part of the inquiry and would not have been deemed a precognition.  The fact that the police had consulted with the procurator fiscal does not mean that the investigation stage of the enquiry had passed and preparation for trial commenced.  Equally, the existence of directions from the fiscal to the police does not convert an investigation into pre-trial preparation.  The sheriff held that, at the time when all four statements were taken, the police were still in the process of investigation.  No decision about prosecuting the appellant for his actings in relation to the McQues had been taken.  In these circumstances the sheriff cannot be faulted for reaching the decision he did.

 

Hearsay – Breach of Article 6

[30]      The appellant contended that, were Mrs McQue’s statements to be adduced in evidence, this would amount to an infringement of his right to a fair trial under Article 6.  The basis for this was the familiar one that the evidence was decisive, yet could not be tested (Al-Khawaja v United Kingdom [2012] 54 EHRR 23; cf R v Ibrahim (Dahir) [2012] Crim App R 32, following Horncastle [2010] 2 AC 373).  The appellant founded upon the position in England, where there are statutory safeguards in relation to hearsay.  The judge required to be satisfied that it was in the interests of justice for the hearsay to be admissible (Criminal Justice Act 2003 s 114; see also s 126, and Police and Criminal Evidence Act 1984 s 78).  He could stop the trial if the case were based purely upon hearsay (ibid, s 125). In Scotland, there was no discretion to exclude evidence under section 259 of the 1995 Act (Nulty (sub nom N) v HM Advocate 2003 JC 140, LJC (Gill) at para [22] approving Renton & Brown: Criminal Procedure para 24-130).

[31]      The Sheriff determined that, although the safeguards in Scots law were not as strong as those in England, they remained robust.  In particular, there was a continuing duty on the trial judge to assess the fairness of a trial as it progressed (Nulty (supra), LJC (Gill) at para [28]).  He had a discretion in that context to uphold a “no case to answer submission”, to direct a jury to acquit, to desert the diet himself or to direct the jury to disregard the hearsay (ibid para [37]; see also Campbell v HM Advocate 2004 JC 1).  The sheriff took the view that the inconsistencies in the statements and the mental state of Mrs McQue meant that they were not demonstrably reliable.  This prompted him to conclude that a conviction based upon them might be, as he put it, “unsafe”.  However, he accepted that this was just a preliminary view and he could not reach a proper conclusion on how important the statements would be and, in particular, whether they would be decisive.  Accordingly, he could not hold that the trial would be unfair. 

[32]      Under reference to the same lines of authority, the appellant contended that the sheriff had erred in failing to hold that the trial would inevitably be unfair.  The advocate depute resisted this on the basis set out by the sheriff and reminded the court that section 259 of the 1995 Act superseded the common law on hearsay (HM Advocate v Malloy 2012 SLT 1167).

[33]      In terms of Al-Khawaja v United Kingdom [2012] 54 EHRR 23 (at para 118, under reference to Taxquet v Belgium [2012] 54 EHRR 26, para 84 and Gafgen v Germany [2011] 52 EHRR 1, para 175; and Doorson [1996] 22 EHRR 330, para 70), in assessing the fairness of a trial in Article 6 terms, the court requires to evaluate the “overall fairness” of the proceedings, looking at them as a whole having regard not only to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted and, where necessary, the rights of witnesses.  Article 6.3(d) provides that the accused is entitled to examine the witnesses against him.  Flowing from that (ibid para 119):

“First, there must be a good reason for the non-attendance of a witness.  Second, when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or have examined, whether during the investigation or at the trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6 (the so-called “sole or decisive rule”).”

 

[34]      The European Court accepted that, where a witness has died, his “witness statement” can be adduced in evidence (ibid para 121).  In relation to evidence of such a statement being decisive, it explained that this meant that it has to be “of such significance or importance as is likely to be determinative of the outcome of the case” (ibid para 131).  The Court continued:

“Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence; the stronger the corroborative evidence, the less likely that evidence of the absent witness will be treated as decisive”.

 

This could be assessed once the Crown case had closed or on appeal (ibid paras 134 and 125).  The rule required to be applied flexibly within the context of the overall fairness of the trial.  This involved taking into account the existence of statutory safeguards, the opportunities open to the defence and the potential for directions by the trial judge (ibid paras 143, 146).  Accordingly, reasoned the Court (at para 147), the admission of hearsay which will be the sole or decisive evidence does not automatically result in an unfair trial, but the absence of the witness is an important weight to be placed in the balance which the court requires to employ.  In summary,

“The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place.  This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case” (ibid para 147).

 

[35]      Standing the need to assess fairness in the context of the trial (including a potential appeal) overall, it is only in a case in which it can be said that it is inevitable that an unfair trial will result that the court should sustain a plea in bar of trial at a preliminary stage.  The short point in this prosecution is that the extent to which Mrs McQue’s evidence will be decisive is not known.  What is clear is that there is a considerable body of other evidence available to the Crown, notably in the form of bank documentation.  There are a significant number of witnesses on the list attached to the indictment.  Accordingly, it is not possible to conclude at this stage that the hearsay evidence of Mrs McQue will be decisive and, consequently, that the trial will inevitably be unfair.  However, if it transpires that the evidence is decisive and no directions by the sheriff are regarded as being capable of removing the risk of unfairness, the trial judge can so determine and sustain a plea in bar upon that basis (N v HM Advocate (supra), LJC (Gill) at paras [35] and [36]; Harkins v HM Advocate [2008] HCJAC 69, Lord Eassie at para [14]; Jones v HM Advocate 2010 JC 255, Lord Reed at para [33]). 

[36]      The appeal is refused.

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Dorrian Lord Marnoch	[2013] HCJAC INFO Appeal No: XC28/13   OPINION OF LADY DORRIAN   in   APPEAL UNDER SECTION74(1) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995   by   GORDON BEURSKENS   Appellant;   against   HER MAJESTY’S ADVOCATE   Respondent:   _______

Appellant: I Bryce, Solicitor Advocate; Central Court Lawyers

Respondent: A Prentice QC (sol adv) AD, the Crown Agent

 

26 February 2013

[37]      I am in agreement with your Lordship in the chair on all matters, and would simply wish to add a few small observations of my own in relation to the matter of statements/precognitions.  Your Lordship points out that in McDonald v Union Bank the Lord Justice Clerk (Inglis) observed that notes taken by an agent would reflect the fact that his questions had been designed to secure the most favourable answers.  This echoes the observation in Dickson on Evidence at para 271 about the nature of an examination for the purpose of precognition.  However, I note that in McDonald the basis on which the Lord Justice Clerk considered that the evidence of a precognition should be rejected was the familiar one that it did not fairly represent what the witness said.  This of course is the point made by Dickson at para 266 and in the famous observation from Kerr that such statements were unreliable because they had “been filtered through the mind of another”.  It seems to me that comments in McDonald and in Dickson at para 271 do not refer to some separate basis for objecting to the admissibility of a precognition but are simply reflections of the fact that a statement taken in this way may be unreliable as not reflecting what the witness actually said.  In Kerr the Lord Justice Clerk (Thomson), stated (p 19) that a precognition is “filtered through the mind of another whose job it is to put what he thinks the witness means into a form suitable for use in judicial proceedings”.  This latter concern is not therefore a different basis of objection at all - the fundamental basis for rejection was simply concern that the statement might be unreliable as not properly reflecting what the witness said.  As it was put in McSween “A rationale for excluding precognitions from admissible evidence appears to be a concern that, as a class of document, they are unreliable.”

[38]      However, where a statement is signed by a witness, acknowledging it as a true and accurate reflection of what he said, the force of this former objection is removed.  This must particularly be so where the statement is recorded, whether digitally or otherwise.  The effect of recording would normally be to put beyond question and issue regarding the accuracy of the statement.

[39]      Apart from the question of accuracy, your lordship observed that the primary reason that precognitions were excluded from the scope of section 3 of the 1852 Act was their confidentiality.  It seems to me that the rationale for the exclusion of precognitions under the present regime would have been the same.  In modern practice, however, information contained in a Crown precognition, at least where relevant to the defence, is no longer confidential.  Moreover, precognition is no longer carried out as a matter of course, but on a targeted basis, in circumstances where there will in any event be a high likelihood of disclosable material resulting, for example in relation to section 275 applications.  The concentration in the authorities on the importance of confidentiality requires to be considered against the background of such a radical change in practice.

[40]      Accordingly, I agree with the conclusions of your Lordship in the chair and would also refuse the appeal.

 

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Dorrian Lord Marnoch	[2013] HCJAC INFO Appeal No: XC28/13   OPINION OF LORD MARNOCH   in   APPEAL UNDER SECTION74(1) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995   by   GORDON BEURSKENS   Appellant;   against   HER MAJESTY’S ADVOCATE   Respondent:   _______

Appellant: I Bryce, Solicitor Advocate; Central Court Lawyers

Respondent: A Prentice QC (sol adv) AD, the Crown Agent

 

26 February 2013

[41]      I respectfully agree with all that has fallen from your Lordship in the chair on the matters of delay and the appellant’s Article 6 rights.  On the question of whether the five statements fall to be excluded as hearsay, as being each “a statement in a precognition” within the meaning of Section 262(1) of the Criminal Procedure (Scotland) Act 1995, it is sufficient for a decision in this case if the sheriff was correct in his view that all the statements were taken during the investigative part of the inquiry.  Your Lordship has answered that question in the affirmative and I respectfully agree with your Lordship on that matter also.  It follows that I am likewise of opinion that this appeal should be refused. 

[42]      In the course of the hearing there was, however, much discussion as to whether a witness’s signature on what would otherwise be regarded as a precognition might so alter its character as to render it admissible as hearsay as an ordinary “statement”.  The rationale for that proposition is that, on the face of it, a signature signifies approval of the contents of the document; and your Lordship has broadened that discussion to include electronic recordings which can be taken to remove entirely the risk of distortion in what a witness means to say.  

[43]      I confess that I was at first attracted by this line of reasoning, but I have come to the view that the privilege given to precognitions has rested not only on their having in the past been “filtered through the mind of another” (per Lord Justice Clerk Thomson in Kerr v HM Advocate 1958 JC 14 at p 19).  On the contrary, as can be seen from your Lordship’s references to Dickson on Evidence at para 266 and to the dicta of Lord Justice Clerk Inglis in McDonald v Union Bank (1864) 2M 963, there is also the consideration that a precognition is often elicited in support of only one side or, it may be, only one part of the case, and is thus not even intended to be a comprehensive or objective statement of all the witness may know about the matter in issue. 

[44]      There is also the matter of confidentiality.  While it may be true that the content of certain precognitions may have to be disclosed by the Crown, there may well be circumstances in which the identity of the source must still be protected.  That would not be possible if the written document is to be viewed as nothing other than an ordinary “statement”; – see in this connection HM Advocate v McSween 2007 SCCR 310 at para 19 and the reference there to Sinclair v HM Advocate 2005 1 SC (PC) 28. 

[45]      Lastly, as your Lordship has observed, in HM Advocate v McSween the status of precognitions was exhaustively reviewed by this court as recently as 2005 and it is clear that the court was then quite satisfied that a distinction should continue to be drawn between precognitions and statements according to the stage at which, and circumstances in which, the witness in question is interviewed.  Moreover, as was pointed out by the court in that case, Section 262(1) of the 1995 Act recognises the special status of precognitions, not only for the purpose of excluding their use as hearsay but also in regard to the adoption of statements as part of the sworn testimony of a witness.  The court was further of opinion that the exclusion of their use to discredit a witness had been decided in McNeilie v HM Advocate 1929 JC 53 and had been regarded as settled law by the Thomson Committee (Cmnd 6218) at para 17.05. 

[46]      For all these reasons, and despite the force of your Lordship’s reasoning, I am myself of opinion that the law in this area, as presently understood, should not be disturbed and that it should make no difference whether a precognition is signed or made the subject of an electronic recording.  If, of course, it is thought that the present situation is unsatisfactory it can doubtless be considered by the Scottish Law Commission.