GLASS, APPEAL AGAINST CONVICTION AND SENTENCE BY DAVID GLASS AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> GLASS, APPEAL AGAINST CONVICTION AND SENTENCE BY DAVID GLASS AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC_70 (30 October 2018) URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_70.html Cite as: [2018] ScotHC HCJAC_70, 2018 GWD 36-445, 2019 JC 17, 2018 SCCR 379, [2018] HCJAC 70

[1] This appeal is about whether hearsay in the form of a witness’s signed statement is

admissible as evidence of fact under section 259(1) and (2) of the Criminal Procedure

(Scotland) Act 1995 when the maker, although generally capable of testifying, is unable to

recall either making the statement or the events narrated in it because of the effects of a head

injury. If the statement was, contrary to the decision of the sheriff, inadmissible, the

question is then whether its admission resulted in a miscarriage of justice.

[2] Section 259 of the 1995 Act provides that evidence of a prior recorded statement is

admissible “(1) … as evidence of any matter contained in the statement” where the judge is

satisfied inter alia that “(a) the person who made the statement will not give evidence … of

(a) is dead or is, by reason of his bodily or mental condition, unfit or

(b) ... is outwith the United Kingdom and it is not reasonably practicable

to secure his attendance at the trial or to obtain his evidence in any other

(d) ... refuses to give ... evidence in connection with the subject matter of

the statement [on the grounds that such evidence might incriminate him];

(f) ... refuses to [give evidence in connection with the subject matter of

[3] Section 260 of the 1995 Act provides that, where a witness gives evidence, any prior

recorded statement is admissible “as evidence of any matter stated in it” if:

“(2)(b) the witness ... indicates that the statement was made by him and that he

“(2) A statement made by [a] vulnerable witness ... shall ... be admissible as the

A person is deemed to be vulnerable if he or she is giving evidence in connection with a

sexual offence (s 271(1)(c)(i)). The section will only operate when the court has authorised

[5] On 7 December 2017, at the sheriff court in Dundee, the appellant was found guilty

of four charges of lewd, indecent and libidinous practices. The first two (charges 2 and 3)

libelled events occurring between 1987 and 1989 in a caravan at Crail involving: first, WW,

then aged 3 or 4, by on various occasions masturbating him on a bed; and, secondly, WW’s

brother, SW, then aged between 5 and 6, also by on various occasions masturbating him on a

bed. SW was deceased by the date of the trial. The third and fourth (charges 4 and 5)

libelled events occurring between 1994 and 1996 and involving one complainer, JM, then

aged between 9 and 11: first, on various occasions at Anstruther, by causing him to

masturbate the appellant in a bath; and, secondly, on one occasion at Cellardyke, by placing

[6] WW spoke to the events in charges 2 and 3, which occurred when the appellant had

been baby-sitting. He and his brother had spent considerable periods of time with the

appellant, as both his parents had been working and the appellant had baby-sat when his

parents were out socialising. WW and his brothers, SW and DW, often stayed over in a

caravan owned by the appellant. The appellant was careful to ensure that WW and SW slept

in one room, whilst their older brother, DW, slept in another. The appellant had bought

many presents for the children and took them out for various treats and adventures.

Matters came to light after WW had confided in his parents when he was about 23. He had

been drunk. His father had spoken to him and gave evidence that WW had said that he had

been confused about his sexuality and had thought that he might be homosexual because of

[7] JM spoke to the events in charges 4 and 5, which had also occurred when the

appellant had been baby-sitting. This was because his parents needed to spend time away

from home when his brother had been ill and in hospital. Again, the appellant had paid for

various treats, such as going to the cinema. Before going there, the appellant would insist

that he and JM had a bath together. JM’s father remembered his son telling him at one point

that he did not want to see the appellant again. His father spoke to the troubled life that JM

[8] The appellant did not testify. He had made a “no comment” at interview. The

nature of the cross-examination had been to suggest that the two complainers had fabricated

their accounts and that they had shared information about their experiences when they had

[9] Immediately prior to the trial, the Crown had lodged a notice under section 259 of

1995 Act seeking to adduce the evidence of a statement made by DW to a police officer on

20 February 2014. DW had been the complainer on another charge of lewd, indecent and

libidinous practices (charge 1) which was said to have occurred on one occasion between

1986 and 1989, when he was aged 6 or 8, at the same caravan as that in charges 2 and 3. The

charge involved an attempt to handle DW’s penis whilst he was in bed. The statement was

in the handwriting of the police officer and was signed by DW and the officer on each page.

It was relatively detailed. It referred to the appellant looking after the three brothers when

their parents were out, going out with the appellant to shows and buying the boys gifts.

There was a reference to the boys staying overnight in the caravan with the appellant. DW

had slept in a different part of the caravan from his brothers. The statement narrated that on

one occasion the appellant had tried to touch DW’s penis when he was in bed in the caravan.

DW had stopped this. The appellant did not attempt to do anything of a similar nature

[10] DW was said by the Crown to be unfit and unable to give evidence in any competent

manner by reason of a mental condition. It was subsequently agreed by joint minute that

DW had permanent memory loss as result of a road traffic accident on 20 February 2017. He

had no recollection of giving the statement or the events described in it. At the time of the

application, there was a report from a consultant in rehabilitation medicine dated

5 November 2017. The consultant had reviewed DW as an outpatient on three occasions and

on each he had shown signs of improvement. DW had made a very good recovery from a

significant traumatic brain injury. He had contusions of the frontal lobe, which is the area of

the brain that is key to memory function. The consultant reported that it was “entirely

probable” that DW’s “inability to remember giving a statement and certain previous events

is entirely attributable to the extent of the traumatic brain injury”. The memory deficits

were “in all probability likely to be permanent”. The consultant had not tested the level of

[11] The application was opposed on the basis that the relevant part of section 259(2) only

applied when a witness was unfit or unable to give evidence. DW could give evidence, even

if he was apparently unable to recollect certain events. The sheriff granted the application

because he was satisfied that, as a result of his mental condition, DW would be unable to

[12] Charge 1 was “withdrawn” by the Crown following a no case to answer submission.

The minute records that the submission was “upheld”, although there is no record that the

appellant was acquitted of this charge. It is simply said that the sheriff told the jury that this

charge had been “removed”. According to the Crown’s Case and Argument, the submission

had been made on the basis that the “sole and decisive” evidence on charge 1 had been

hearsay. The sheriff had invited the procurator fiscal depute to withdraw the charge

because of the complexities of the prospective direction. The PFD had withdrawn the libel,

[13] In due course, the Crown asked the jury to take DW’s statement into account in

respect of the remaining charges The statement was said to have supported the evidence of

WW that the brothers had stayed overnight in the appellant’s caravan; a matter confirmed

by their father but not their mother. It also supported the evidence of WW that he and SW

had slept in a different bedroom; the reason for this being that DW had not let the appellant

touch him and, it seems to have been speculated, he would have protected his younger

brothers in similar circumstances. The appellant had maintained that the evidence of DW

[14] The sheriff directed the jury that DW had been unable to come to court. The

statement was hearsay and was normally not admissible. However, if the jury were satisfied

that the statement had been made and accurately recorded and reported, its contents could

be regarded as part of the evidence. It could be accepted as proof of fact if the jury accepted

it as credible and reliable, but the jury had to bear in mind that it was not given under oath

and the witness had not been subjected to cross examination. The jury had not been able to

assess DW personally, although the police officer had been asked about his demeanour

[15] In relation to corroboration, the sheriff gave the jury the standard directions on

mutual corroboration. In putting it in context, the sheriff said that:

“this is an all or nothing situation … You’ve heard the evidence from two

complainers … in respect of the charges, namely [WW] and [JM]. You would have to

find that both of them were credible and reliable in dealing with their evidence.

…[F]or you to convict on these charges, you would have to find that both of them

[16] The ground of appeal against conviction was that the sheriff erred in admitting the

written statement. The appellant submitted that the phrase “in any competent manner”

referred to the means of giving evidence (eg in court or on commission) and not to the

competency of the witness. There was no suggestion that DW could not have attended court

and answered questions. As a generality, it was preferable that a witness should testify in

person (Hill v HM Advocate 2005 JC 259). The use of section 259 should be restricted to

situations in which it was necessary. The approach in England and Wales (Setz-Dempsey and

Richardson (1994) 98 Cr App R 24) was too narrow. The sheriff considered that DW was

“unable to give evidence” because he could not recall giving the statement or the events in

the libel. The report had not said that DW’s memory was affected in its entirety. It referred

only to “certain previous events”. The phrase “give evidence” should be interpreted in a

general sense, rather than construed to mean that a statement would be admissible if a

witness could not speak to particular events about which a party wished him to give

evidence. The other sub-sections largely referred to circumstances in which a witness could

not give evidence at all; eg deceased, abroad, untraceable or refusing to take the oath or to

testify (s 259(2)(a)(b),(c) or (e)(ii)). The provisions otherwise applied when a witness refused

to give evidence “on the subject matter of the statement” (s 259(2)(d)), such as where he or

she exercised a right not to self-incriminate. The quoted phrase was absent from the earlier

sub-sections. Section 260 provided for the adoption of a statement. This supported the idea

that “unable to give evidence” meant unable to do so at all. It did not matter, for the

application of section 260, that the witness could not remember giving a statement. That

could be proved by other means. The admission of the statement had resulted in a

miscarriage of justice. The Crown had relied on the statement to bolster the credibility and

reliability of WW. The statement had undermined the mother’s evidence that the boys had

not stayed in the caravan. It may have carried considerable weight in supporting the

[17] The Crown replied that the purpose of section 259 was to admit exceptions to the

prohibition on hearsay in circumstances other than when the witness was dead (Scottish

Law Commission Report (No. 149): Hearsay Evidence in Criminal Proceedings). Hearsay was

to be preferred to a complete loss of the information, when difficulties in obtaining evidence

were insurmountable (ibid para 5.31; cf, in England and Wales, the Criminal Justice Act 1988

s 116; R v Riat [2013] 1 Cr App R 2). The fact that a person could turn up at court did not

make him an available witness (Phipson: Evidence (19th ed) para 30-30; R v Setz-Dempsey

(supra) at 27-2, R v AC [2014] EWCA Crim 371 at para 38). “Mental condition” was not

synonymous with “mental disorder. Nevertheless, it was accepted that “in any competent

manner” meant testifying in court or otherwise in a competent manner. The witness could

have given evidence and the statement could have been put to him (see Croal v HM Advocate

[2014] HCJAC 34). The content of the medical report had been insufficient to merit the grant

[18] No miscarriage of justice had occurred. Even if the statement had been excluded,

there had been no “real possibility of a different verdict” (GM v HM Advocate 2012 SCCR 80).

The statement would have been introduced using other statutory provisions (ie ss 260 or

271M). Minimal reliance had been placed on the statement. Without it, there was

compelling evidence against the appellant; notably the similarities between charges 2 and 3

and 4 and 5. The sheriff had directed the jury that they required to find both WW and JM

credible and reliable in order to convict. The sheriff had given the jury thorough directions

in relation to the statement and the dangers inherent in accepting it.

[19] Section 259 of the Criminal Procedure (Scotland) Act 1995, so far as directly relevant

to DW’s situation, is to the effect that his written statement would be admissible if he could

“not give evidence … of ... any matter contained in the statement” because of his “mental

condition”. This provision is aimed at witnesses who cannot give evidence as a generality

because of their mental condition. DW was able to give evidence about the “matter” in the

statement. His evidence would, according to the Crown, have been that he could not

remember the incident or giving the statement. Such a state of affairs, at least in relation to

the event, is not unusual. It does not amount to an unfitness or an inability to give evidence

as envisaged by the section. If there were any doubt about that, the particular provision

would have to be read eiusdem generis with the other exceptions to the prohibition against

hearsay. These, with the possible exception of sub-section (f), are all concerned with

witnesses who cannot, or will not, give evidence at all because, for example, they are dead,

cannot be compelled to attend, cannot be traced or refuse to testify.

[20] Section 259 is not designed to deal with the situation where, for whatever reason, the

witness, whilst capable of giving evidence generally, has forgotten about a particular event.

In that situation, the witness can be asked, in terms of section 260, whether he “adopts” the

statement bearing his signature. There is no reason to suppose that the witness would have

done other than accept that the signatures on the statement were his and that he would, as it

is customarily put, have been telling the truth at the material time (Croal v HM Advocate

[2014] HCJAC 34, LJC (Carloway) at paras [7] and [8]). This would have been a manner of

[21] In any event, the material produced to the sheriff was insufficient to support an

application of this type. First, the extent of DW’s memory loss was not made clear. For

example, it was not known, or at least not explained to the sheriff, whether DW was able to

speak generally to events in his childhood around the time of the alleged event or

specifically to being baby-sat by the appellant in the caravan. If he was aware of these

events, he would have been giving evidence about the matters in his statement. The medical

report proceeded on an assumption concerning DW’s amnesia, which had not been

medically attested. For these reasons, the Crown’s concession concerning the adequacy of

the supporting material was correctly made. Accordingly, the statement ought not to have

been admitted as an exception to the prohibition against hearsay. The next question is

[22] The answer to that question is in the negative. It is not entirely clear whether the

sheriff did sustain the no case to answer submission and, if he did so, on what basis. There

is a record of the submission being “upheld”, but no minute of the appellant being acquitted

of the charge as a result. If the submission had been sustained on the basis that the hearsay

was the “sole or decisive” evidence in relation to charge 1, that decision would have been in

error standing the availability of mutual corroboration provided by the witness’s brother on

charges 2 and 3 (see Al-Khawaja v United Kingdom (2012) 54 EHRR 23 at para 147;

Schatschaswili v Germany (2016 ) 63 EHRR 680 at para 128). No complex direction would

have been necessary; the decision on whether the sole or decisive evidence was hearsay

being a matter for the sheriff. If, as the sheriff directed the jury, the statement continued to

be available for consideration in respect of the remaining charges, the use, to which the jury

could put it, was not made clear (as it should have been) if, as the sheriff also directed the

jury, the only mutual corroboration available was from the two complainers who had

[23] The latter direction appears to have been erroneous. However, it favoured the

appellant. It makes it clear that the jury must have accepted the evidence of the two

complainers, namely WW and JM, as credible and reliable. Once they had done that, a

conviction was bound to follow. Any impact which the statement of DW would have had

would, especially standing the limited nature of the conduct alleged, have been minimal. It

may have lent support to the allegation that the boys had all stayed overnight in the

caravan, but, although the mother denied that this had happened, this was also spoken to by

the father. In all these circumstances, no miscarriage of justice has occurred and the appeal

[24] The appellant was 59 at the time of sentencing. He was unmarried and had never

been in a relationship. He was a successful farm contractor, renting machinery to farmers.

He owned a number of properties, which he leased. The sheriff imposed an extended

sentence of 6 years; the custodial element being 5 years. He noted that, in terms of the

Criminal Justice Social Work Report, the appellant did not accept his guilt. The abuse had

been carefully planned, with the appellant befriending parents who were in difficult

circumstances. The appellant had groomed the children with presents. He was a danger to

children. Both complainers had been left with psychological problems. The sheriff had been

aware of an earlier sentence of 3 years and 10 months for analogous offending.

[25] It was submitted that the custodial element of the sentence was excessive. The

previous sentence for analogous offences had been imposed in August 2014. It had been in

respect of matters occurring after those on the present indictment. By that time, WW and

DW had made their complaints and the charges could all have been combined on the same

indictment. The appellant had been released from the earlier sentence before the current

sentence was imposed. The sheriff had failed to take this into account.

[26] It is not clear from the sheriff’s report that he did take into account the cumulative

impact of the earlier sentence when selecting the custodial period of 5 years. Had he done

so, he would have appreciated that the total of 8 years and 10 months, even for the repeated

sexual abuse of young boys in circumstances in which the convicted person had inveigled

himself into a position of trust, was excessive. Having regard to the earlier sentence, the

court will substitute a period of 3 years imprisonment. The extended element of the

sentence was incompetent, having regard to the age of the offences (Crime and Disorder Act

1998 (Commencement No. 2 etc.) Order 1998; 1998 SI 2327). It requires to be quashed.

Scottish High Court of Justiciary Decisons