APPEALS BY MOHAMMED ASHIF AND ALIAH ASHRAF AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
2015 HCJAC 100
XC634/12
XC633/12
Lord Justice General
Lord Justice Clerk
Lord Eassie
Lord Clarke
Lady Dorrian
Lord Malcolm
Lord Tyre
OPINION OF THE LORD JUSTICE GENERAL
In the Appeals by
MOHAMMED ASHIF
First Appellant;
and
ALIAH ASHRAF
Second Appellant:
against
HER MAJESTY’S ADVOCATE
Respondent:
For the first appellant: Jackson, QC, McLaughlin; G Sweeney & Co, Glasgow
For the second appellant: Targowski, QC, Macleod; Patrick Campbell & Co, Glasgow
For the Crown: The Lord Advocate (Mulholland QC), Lawrie; Crown Agent
For the Faculty of Advocates: The Dean of Faculty (Keen QC), Wolffe QC and Ms Catherine Smith
20 March 2014
Introduction
[1] This is an appeal against a decision of a sheriff at Glasgow dated 29 October 2012 by which he held that the challenge by the appellants to a statement of uncontroversial evidence tendered by the Crown was unjustified. The issue in this appeal is whether section 258(4A) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) relating to uncontroversial evidence is compatible with article 6 of the ECHR.
The indictment
[2] The appellants have been indicted in Glasgow sheriff court on a charge of fraud. It is alleged that they formed a fraudulent scheme to obtain monies from the Queen’s and Lord Treasurer’s Remembrancer (Q<R). The essence of the alleged scheme is that the appellants invented fictitious relatives of four persons whose estates were being administered by the Q<R, claimed the estates in those fictitious names and thereby obtained substantial sums of money.
The problem of uncontroversial evidence
[3] It is notorious that over the last twenty years the average length of trials on indictment has increased substantially. There are many reasons for this; but one reason is undoubtedly the defence strategy in complex cases of putting the Crown to the proof of every piece of evidence in the case. In current practice what is described as an exercise of the so-called right to silence in a typical fraud case involving the production of thousands of documents can prolong the trial by a matter of weeks or even months.
[4] Such cases take up scarce public resources and add to the administrative burdens of the court. The cost of trials of inordinate length is not to be measured solely in terms of time and money. The protracted process of proving a multiplicity of documents causes inconvenience to witnesses and jurors and puts the integrity of the trial at risk.
[5] The problem can be avoided, or at least greatly reduced, if the accused formally accepts that those documents that are not in controversy are what they bear to be or that uncontroversial factual matters are to be held as proved. However, the reluctance of accused persons or their representatives to proceed in this way has necessitated legislation. The primary contention for the appellants is that the legislation, in restricting the right of the accused to put the Crown to the proof of facts that he is in no position to dispute infringes the accused’s right to a fair trial under article 6 of the Convention. That raises a question as to the true scope of the right to silence. There is also a question as to the extent of counsel’s duty to carry out his client’s instructions.
The Criminal Justice (Scotland) Act 1980 (the 1980 Act)
[6] The first step in the legislative process that has led to the enactment of the present section 258 of the 1995 Act was taken in section 26 of the 1980 Act. The section was enacted to enable the parties to agree on “routine evidence.” It provided inter alia that for the purposes of any proceedings for certain specified offences, a certification purporting to be signed by a specific person or persons and certifying a particular matter would be sufficient evidence of that matter and of the qualification or authority of the person or persons concerned (s 26(1)). For the purposes of summary criminal proceedings, a report purportedly signed by two authorised forensic scientists was sufficient evidence of any fact, or conclusion as to fact, contained in the report and of the authority of the signatories (s 26(2)). Procedural provisions in section 26(3) enabled the defence to challenge the apparently routine evidence referred to in sections 26(1) and (2). Section 26(5) provided that in any trial under summary criminal procedure it was to be presumed that the person who appeared in answer to the complaint was the person charged by the police with the offence unless the accused gave notice that the contrary was alleged. Section 26(6) provided that where an autopsy report was lodged as a production by the prosecutor it was to be presumed that the body of the person identified in the report was the body of the deceased person identified in the indictment or complaint, again unless the accused gave notice that the contrary was alleged. Section 26(7) enabled the prosecutor to lead only one of the pathologists or forensic scientists who purported to have signed the relevant report and provided that the evidence of that pathologist or forensic scientist would be sufficient evidence of any fact or conclusion as to fact contained in the report and of the qualifications of the signatories, unless the accused gave notice that he required the attendance at the trial of the other pathologist or forensic scientist. Section 26(8) provided that in a prosecution for the offence of driving while disqualified a conviction or an extract conviction served on the accused purporting to be signed by the clerk of court which showed that the person named was disqualified from holding or obtaining a driving licence would be sufficient evidence of the application of that disqualification to the accused unless by prior notice the accused denied such application.
[7] These provisions were re-enacted among the extensive evidential provisions of Part XII of the 1995 Act. They provided simplified methods of proving matters that, as experience had shown, were unlikely in the normal course to be disputed by the defence.
The right to silence and the right to put the Crown to the proof
[8] In Beattie v Scott (1990 JC 320) the common law position of the accused at his trial was described by Lord Justice General Hope in the following way:
“… the question whether an accused person should ever be required to assist the Crown in any way in the presentation of the evidence at his trial … admits of only one answer, and that is in the negative. …
[The accused] is to be regarded purely as an object, as one whose role in the trial is an entirely passive one as it unfolds around him. It is on that basis that the Crown must present its case” (at p 323).
Lord Wylie, a former Lord Advocate and a criminal lawyer of long experience, put the point in this way:
“The Crown have all the resources of the state behind them in the preparation of a case but by the time a case has come to trial the Crown cannot rely on any assistance whatsoever on the part of the accused” (at p 324).
In Du Plooy v HM Adv (2005 (1) JC 1) it was taken for granted by this court that any accused was entitled to put the Crown to the proof of its case (at para [21]). In Gemmell v HM Adv (2012 JC 223) Lord Eassie said
“An accused is always entitled to put the prosecution to the proof of its case; and there may often be potential advantage to the accused in delaying a plea. Apart from the natural human tendency to put off the evil moment, one never knows but that the principal Crown witness may become unavailable, by reason of death or otherwise (at para [148]).”
Statements such as these have been influential in the drafting of professional codes of conduct. One of the central questions in this case is whether they are an accurate representation of the principle.
The Scottish Law Commission Report (1992)
[9] In 1992 the Scottish Law Commission reported on the problems that were being caused where the defence withheld co-operation in agreeing evidence about which there was no real controversy (Evidence: Report on Documentary Evidence and Proof of Undisputed Facts in Criminal Proceedings, (SLC No 137). The Commission recognised that passivity on the part of the accused could be to his advantage:
“He … has the chance of being acquitted because some matter which is not in issue but is essential for proof of the prosecution case may not be proved owing to some accident such as the disappearance, illness or forgetfulness of a witness. It may be doubted whether the public interest in the administration of justice should extend to the toleration of such technical and fortuitous acquittals, but the principle is not in doubt and, so long as it remains unqualified, limits the extent to which any reform is possible” (para 4.16).
[10] The Commission recommended that the prosecution should be entitled to prepare a draft statement of facts which appeared to be uncontroversial. These facts would be deemed to be conclusively proved unless the accused challenged any matter in the statement by way of a counter-notice (Recs 23-34). The Commission commented that
“ … the procedure under section 26 of the 1980 Act on which the statement of fact procedure is based, was said by some of our consultees to be sometimes frustrated by defence solicitors who lodged counter-notices … apparently as a matter of policy or routine, and thereafter failed to cross-examine the witnesses cited to speak to the facts in the certificates. It is also possible for a responsible defence solicitor, who has no obstructive policy or routine and may wish to admit indisputable facts as a matter of common sense, to be obliged not to do so by a client who insists on not co-operating with the prosecutor in any way” (para 4.61).
The Commission saw the problem as a matter of professional propriety. It recommended a consensual solution based, “at least in the first instance … on the goodwill and common sense of practitioners” (para 4.62) It suggested that when the defence challenged a statement of uncontroversial evidence, but in the event did not challenge the relevant evidence, the practitioner or practitioners concerned
“might be the subject of observations to the Dean of the Faculty of Advocates, the Law Society of Scotland or the Scottish Legal Aid Board, who might wish to investigate the matter” (ibid).
[11] Sections 257 and 258 of the 1995 Act were the legislative response to the Commission’s recommendations. Section 257 laid down a general duty on both the prosecutor and the accused, where he was legally represented, to identify facts that he would seek to prove, that were unlikely to be disputed by the other party and in proof of which he did not wish to lead oral evidence. It provided no sanction for a failure by either party to comply with it.
The genesis of section 258(4A)
[12] Sections 257 and 258 failed to reduce the length of trials. The shortcomings of those provisions were considered as part of the Review of the Practices and Procedure of the High Court of Justiciary (2002) (the Review). This was the relevant recommendation.
“8.8 Perhaps the greatest potential for focusing the attention of parties on the issues in the case … lies in the development of the current provisions regarding uncontroversial evidence set out in section 258 of the 1995 Act. Such notices are little used in practice, and are confined in most cases to fairly formal matters, such as records of a tenancy or of benefit payments.
8.9 One reason for their current limited use is that those acting for the accused
tend to respond by automatically challenging the notice without paying particular regard to its terms. That may be because they have not been able, in the time available, to complete their investigations to the point where they can take an informed decision on the terms of the notice. Automatic challenge means that the Crown are required to prove the points in the notice and the notice is defunct. In the context of judicial management of cases, there is scope for changing this rule without impinging upon the basic principle that the onus lies upon the Crown. It would not be unreasonable to require the defence to give a reason for contesting the notice. Should the Crown consider that the reason given does not justify contesting the notice, then the matter could be aired at the preliminary diet with a view to the presiding judge determining whether the Crown should be required to prove the points in issue or may rely on the terms of the notice. In this way the Crown could identify in such a notice those chapters of evidence which they consider that the interests of justice do not require to be proved by oral evidence in court. The notice would thus form a framework for the identification of the witnesses who are not required attend court. There is, on the face of it, no reason why the notice should not have attached to it the statements of witnesses, which the Crown consider to be uncontroversial, and which could be read to the jury” (footnotes omitted).
[13] The problem of “automatic” challenges was essentially the problem that the Scottish Law Commission had considered.
[14] To implement the recommendation of the Review, sub-section (4A) was added to section 258 by section 16 of the Criminal Procedure (Amendment) (Scotland) Act 2004. Section 16 was introduced by amendment at Stage 2. The Deputy Minister for Justice, Mr Hugh Henry, gave the Justice 1 Committee the following explanation –
“The objective of section 258 of the 1995 Act was to remove from the trial non-contentious issues with consequential benefits and savings in witness time and court time. Under section 258, parties can serve on each other a statement of evidence that they consider to be uncontroversial. At the moment, when statements of uncontroversial evidence are served by the Crown on the defence, there is almost invariably a challenge to the entire contents in a notice under section 258(3).
That section provides that facts ‘specified or referred to’ in the statements are
‘conclusively proved only in so far as unchallenged’.
Routine challenges to statements of uncontroversial evidence mean that section 258 is largely robbed of practical effect. Under present procedure, the defence is generally under an obligation to its client to challenge such statements because, when they are served, the defence might not always have sufficient detail of the Crown case to assess properly the terms and to consider whether the evidence can be agreed.
Amendment 121 will insert into the bill a new section that introduces new subsections (4A) to (4C) of section 258 of the 1995 Act. The new subsections allow the court … on an application by any party to direct that any challenge to the statement in the notice under section 258(3) is to be disregarded if it considers the challenge to be unjustified.
Through a proposed practice note, the Crown has undertaken to deliver material to the defence as soon as that is reasonably practical. It is anticipated therefore that the defence will be fully informed of the Crown's case at the time of service of the statement. Together with new section 258(4A) of the 1995 Act, that will prevent unnecessary challenges to those statements. We believe that the court should be able to adjudicate on any dispute as to whether the challenge is justified. Amendment 121 highlights the management role of the judge and allows the judge to determine at the preliminary hearing or first diet whether the challenge is justified and, if it is not, to disregard the challenge” (Official Report, Justice 1 Committee, 24 March 2004, cols 668-669).
The amendment was agreed to unanimously. There was no further discussion of it by the Parliament.
The current statutory provisions
[15] Sections 257 and 258 of the 1995 Act, as now amended, provide as follows:
“257 — Duty to seek agreement of evidence.
(1) Subject to subsection (2) below, the prosecutor and the accused (or each of the accused if more than one) shall each identify any facts which are facts—
(a) which he would, apart from this section, be seeking to prove;
(b) which he considers unlikely to be disputed by the other party (or by any of the other parties); and
(c) in proof of which he does not wish to lead oral evidence,
and shall, without prejudice to section 258 of this Act, take all reasonable steps to secure the agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties) shall take all reasonable steps to reach such agreement.
(2) Subsection (1) above shall not apply in relation to proceedings as respects which the accused (or any of the accused if more than one) is not legally represented …
258 — Uncontroversial evidence.
(1) This section applies where, in any criminal proceedings, a party (in this section referred to as ‘the first party’) considers that facts which that party would otherwise be seeking to prove are unlikely to be disputed by the other parties to the proceedings.
(2) Where this section applies, the first party may prepare and sign a statement—
(a) specifying the facts concerned; or
(b) referring to such facts as set out in a document annexed to the statement,
and shall … serve a copy of the statement and any such document on every other party.
(3) Unless any other party serves on the first party … a notice that he challenges any fact specified or referred to in the statement, the facts so specified or referred to shall be deemed to have been conclusively proved.
(4) Where a notice is served under subsection (3) above, the facts specified or referred to in the statement shall be deemed to have been conclusively proved only in so far as unchallenged in the notice.
(4A) Where a notice is served under subsection (3) above the court may, on the application of any party to the proceedings made not less than 48 hours before the relevant diet, direct that any challenge in the notice to any fact is to be disregarded for the purposes of subsection (4) above if the court considers the challenge to be unjustified.
(5) Subsections (3) and (4) above shall not preclude a party from leading evidence of circumstances relevant to, or other evidence in explanation of, any fact specified or referred to in the statement.
(6) Notwithstanding subsections (3) and (4) above, the court—
(a) may, on the application of any party, where it is satisfied that there are special circumstances; and
(b) shall, on the joint application of all the parties,
direct that the presumptions in those subsections shall not apply in relation to such fact specified or referred to in the statement as is specified in the direction … “
The statement of uncontroversial evidence
[16] In this case the Crown served on the defence a statement of uncontroversial evidence purportedly in terms of section 258(2). It listed 68 alleged facts that were said to be uncontroversial. It included contentions that bank accounts were opened in the names of various people and that certain documents, copies of which are Crown productions, were produced as proof of identity. It asserted as a fact that certain documents were “false.” It asserted as a fact that each of the deceased had no relative of the name in which the claim was made on the estate and that any claim in that name upon that estate was “fraudulent.” These are of course central questions in the prosecution. They concern matters that go to the species facti of the crime libelled and, in relation to the alleged fraudulence, go to the guilt of the appellants. I shall refer to this as “the statement.”
The position of the defence
[17] The appellants challenged the statement in its entirety. The Crown moved for the challenges to be disregarded in terms of section 258(4A) (supra). The appellants lodged devolution minutes in which they contended (1) that the enactment of section 258(4A) was beyond the competence of the Scottish Parliament by reason of its incompatibility with article 6; and (2) that the Lord Advocate’s application to the court under that subsection was ultra vires on Convention grounds.
[18] Counsel for the appellants have throughout been instructed not to agree any of the matters set out in the statement. They decline to explain why these instructions have been given. That is entirely understandable in the light of their contention that to require any such explanation in terms of this legislation would violate the right to silence and subvert the principle that an accused can put the Crown to the proof of its case. In addition, they consider themselves bound by their clients’ instructions in the matter. That is a point on which they have quite properly taken the advice of the Dean of Faculty.
The decisions appealed against
[19] On 22 October 2012 the sheriff had a hearing on the Crown’s application and on the devolution minutes. The first issue was where the onus lay on the question whether a challenge to the statement was “unjustified.” The sheriff treated this as a preliminary issue.
The defence position was that neither accused had any knowledge of the matters referred to in the statement, and therefore was in no position to agree those matters.
[20] The sheriff tells us that during the course of the hearing, it became increasingly clear to him that the facts set out in the statement were uncontroversial (para [18]). Junior counsel for the appellant told the sheriff that he had written instructions not to agree any evidence, but that he did not expect that he would challenge any of the “formal evidence” (ibid). In light of my comments in HM Adv v AB (2012 JC 283, at para [36]) on the duties of defence lawyers to agree evidence, the sheriff thought that he might have to take “further action” (para [18]). The diet was adjourned to 24 October for the purpose inter alia of allowing counsel to consult the Dean of Faculty.
[21] On 24 October, counsel told the sheriff that the Dean had advised him that he was obliged to adhere to his client’s instructions. The sheriff took that to mean that instructions were “to be followed to the letter irrespective of their nature, propriety or sense” (para [19]).
[22] The sheriff held that under sub-section (4A) the burden of persuasion lay on the party challenging the statement. These were his reasons:
“I considered that the language of the submissions on behalf of the appellants to the effect that the Crown was ‘challenging the challenge’ (and therefore had to justify its challenge) was inaccurate and glib. The framework of section 258 allowed a party … which considered that facts were unlikely to be disputed, to prepare a statement of facts in terms of subsections (1) and (2). The appellants duly responded with notices of challenge in terms of subsection (3). In turn, the Crown applied in terms of subsection (4A) for a direction from me that any challenge in the notice to any fact should be disregarded if I considered the challenge to be unjustified. I decided that the provisions of subsection (4A) were plain and that it was for the party challenging any of the facts in the … [statement of uncontroversial evidence] to justify their own challenge. That seemed to me to be the plain and practical construction of the subsection (para [16]).”
[23] By then the appellant had withdrawn his instructions to counsel. The case was adjourned for the instruction of new counsel.
[24] At a hearing on 29 October 2012, senior counsel appeared for the appellant. The sheriff directed that the defence challenges were to be disregarded. As a result the facts set out in the statement, if such they were, were deemed to be conclusively proved in advance of the trial. The sheriff refused a defence motion to refer a devolution issue to this court. He then refused the devolution minutes.
[25] In his Report the sheriff observes that s 258(4A) represents an innovation, but not one that is as radical as might be thought. He cites various situations in which the accused is obliged to disclose details of his defence. He says that he saw it as his function to ascertain whether the parties had sought to agree evidence (1995 Act, s 71; para [42]). The right of the accused not to agree evidence was irrelevant. The appellants were not compelled to sign a joint minute (para [43]). If the challenge to a statement of uncontroversial evidence was unjustified, the statement did not constitute a judicial admission. It simply meant that the fact was treated as having been proved as if by oral testimony (para [50]).
[26] The sheriff thought it entirely appropriate that an accused person should be asked to justify a challenge to facts which had seemed to the Crown to be unlikely to be disputed. He concluded –
“It may be that very little need be said to justify the challenge but something other than a bland assertion that a client would not agree evidence would be required.” (para [44]).
The sheriff held that the appellants’ counsel had advanced no justification beyond intimating the nature of their instructions (para [46]).
[27] After the hearing, the sheriff considered section 258(5) and (6), on which he had not been addressed. With hindsight he took comfort from those provisions. A party was permitted to lead evidence of circumstances relevant to, or other evidence in explanation of, any fact specified or referred to in the statement (s 258(5)). In special circumstances the court could hold that the relevant fact was not conclusively proved (s 258(6); para [45]).
The appeals
Procedure
[28] The court invited representations from the Faculty of Advocates and the Law Society of Scotland on the question of a lawyer’s professional position in relation to section 258(4A). The Law Society declined our invitation. The Faculty submitted a detailed written submission which reviewed the law and practice. This was supplemented, with leave of the court, by a short statement by the Dean of Faculty on the principle of the right to silence and on the professional proprieties affecting counsel in relation to it.
Submissions
For the appellants
[29] The accused appealed on the basis that the right of the accused to put the Crown to proof on all matters upon which it wished to rely was sufficient justification of their challenges in terms of section 258(4A). They contended, alternatively, that the provision was beyond the competence of the Scottish Parliament because it resulted in self-incrimination, it shifted the burden of proof to the defence and it deprived the accused of the right to cross-examine witnesses. It was therefore incompatible with article 6 (Scotland Act 1998, s 29(2(d)).
[30] The submission for the first appellant was that the Crown was attempting to force the appellant to agree certain facts despite his instructions to counsel. It was attempting to present its case by stating evidence rather than by leading evidence that could be subject to cross-examination. The appellant had an absolute right to put the Crown to the proof of its allegations (Beattie v Scott, supra). He should not have to justify his stance. That would contravene his right against self-incrimination (Saunders v United Kingdom (1997) 23 EHRR 313) and his right to cross-examine prosecution witnesses (art 6(3)(d)). If the court were to examine the defence’s justification, that would mean that it was determining the facts. That was the function of the jury (NC v HM Adv [2012] HCJAC 139, at para [14]). The right to a fair trial was absolute (Montgomery v HM Adv 2001 SC (PC) 1).
[31] That right was, in itself, sufficient reason to challenge the statement. The challenge was therefore justified. It was accepted that there might be a fact that was manifestly capable of agreement, in which case counsel ought to agree that fact; for example, the fact that a certain date fell on a certain day of the week.
[32] Counsel for the second appellant adopted these submissions.
For the Crown
[33] The Lord Advocate conceded that in the application of section 258(4A) the onus was on the Crown to satisfy the court that its application should be granted.
[34] The Lord Advocate observed that on the question whether the defence challenge was “unjustified,” that expression, though undefined, should be given its plain meaning. That was to be discerned in the context of the duty to seek agreement of evidence (s 257) and of the language of section 258 as a whole. The court would decide whether a challenge was unjustified by reference to the material before it, including the lists of witnesses and productions, any document incorporated into the statement, any special defence and, now, the defence statement (1995 Act, s 70A), together with any submissions that parties chose to advance. The Lord Advocate suggested that a challenge might be justified where, for reasons of presentation, oral evidence was preferable. The judge should remember that granting the application did not prevent evidence being led in explanation of the facts thereby established, or of the surrounding circumstances (s 258(5)) and that the matter could be reconsidered at the trial (s 258(6)). The court could continue the Crown’s application to the trial so that a decision could be made after some of the evidence had been led.
[35] The Lord Advocate conceded that a statement should not extend to the essential facts which the libel alleged. He no longer insisted in the statement to the extent that it covered the central issues to which I have referred.
The Dean of Faculty
[36] The Dean of Faculty submitted that unless a narrow approach was taken to the operation of subsection (4A), the court would lack the necessary information to operate the subsection justly. Counsel’s freedom to disclose his client’s position was limited. He could intimate to the court that he was instructed to challenge the statement; or that, as matters stood, he did not intend to challenge any of the proposed evidence. But even that intimation was provisional, since the trial could develop unpredictably. A document might assume an unexpected significance. The court would have no knowledge of the case since no evidence would have been led. It would therefore be in no position to assess whether a challenge was “unjustified.” It might be that sub-section (4A) was devoid of practical effect. There could be a limited class of cases in which the court could properly find that a challenge was unjustified: for example, where the statement narrated that a document was an Ordnance Survey map of the relevant area.
Conclusions
[37] Section 258 is available to both Crown and defence; but the probability is that in most cases the section will be invoked by the Crown. In keeping with the substance of the debate in these appeals, I shall discuss the issues on the assumption that the section 258 statement has been served by the Crown.
A preliminary question
[38] Counsel for the appellants submitted that section 258 applies only where an accused is legally represented (s 257(2)). I do not agree. The submission assumes that section 258 is linked to section 257 as a means of discharging the duty to seek agreement, or as a substitute in the event of its non-observance. I can see no such link. Section 257(1) is said to be “without prejudice” to section 258. That, in my view, precludes us from reading into section 258 a restriction that is derived from section 257.
Onus
[39] The Lord Advocate has conceded that in this case the onus is on the Crown. In my view, that concession was correctly made. One of the preconditions of the lodging of a statement of uncontroversial evidence is that the facts stated in it are “unlikely to be disputed” (s 258(1)). It should therefore be for the party proponing it to satisfy the court that this condition is met. That approach is confirmed by the provision that if the challenge to a proposed fact should be disregarded, that fact is deemed to be conclusively proved.
The scope of section 258
[40] The article 6 question overhangs this case; but before it arises, we should first establish the meaning and scope of section 258. The section is headed “uncontroversial evidence.” At the stage at which the statement is drawn up, it can at best be a statement of seemingly uncontroversial facts. The question for the framer of the section 258 statement is whether the facts that the Crown would otherwise be seeking to prove are unlikely to be disputed by the defence. An assessment of the likelihood of a defence challenge may depend on an incomplete knowledge of the line of defence. It will be at best a provisional judgment. If facts stated or referred to in the statement are challenged by the defence, the question whether the challenge is justified will be a matter for the court. So much is apparent from the wording of the section. But the section does not specify the nature of the facts to which the statement may relate. This is the stage in the analysis at which the rights of the accused become decisive.
[41] In my opinion, the provisions of section 258(4A) should be seen in the context of section 257 and of section 258 in its original form. Those sections implemented the recommendations of the Scottish Law Commission. Those recommendations were based on the structure and purpose of section 26 of the 1980 Act (SLC No 137, supra, at para 4.61). In short, the present section 258(4A) is the latest stage of development in a sequence of provisions the purpose of which is to expedite trials by establishing as fact, in advance of the trial, matters that cannot reasonably be the subject of dispute. That is confirmed by the ministerial explanation to the Justice 1 Committee that I have quoted. From this it follows that the section should not be invoked to concuss the defence into admitting facts of which the defence may reasonably put the Crown to the proof.
[42] Approaching the matter in that way, I consider that the true interpretation of the section is that it seeks to establish, as conclusively proved, facts which the accused cannot reasonably refuse to agree. When a challenge is intimated by the defence, it is not the function of the court to decide on balance whether an alleged fact will be conclusively proved. The court’s function is to decide whether a challenge to the statement is “justified.” In making that decision it must hear the basis of the objection. If the challenge is reasonable, the court must sustain it, even if it may seem to it to be likely that the fact will in the event be proved. On this matter, the court must rely to a great extent on counsel’s responsibility. It must also bear in mind that a plea of not guilty may in itself be a sufficient justification for the challenge when regard is had to the nature of the fact alleged. The court must also bear in mind that its decision on the merits of a defence challenge may be made on only a limited understanding of the nature of the Crown case and the line of defence, and with little or no knowledge of the parties’ evidence. Lastly, the court should bear in mind that the evidence that emerges at the trial seldom coincides with the evidence that is set out in the precognitions. For these reasons, I think that there may be few occasions on which a fact that constitutes part of the species facti of the libel can properly be the subject of a disputed section 258 statement. That is not to say that the proposal in a section 258 statement of an alleged fact that constitutes part of the species facti is improper. The nature of the defence may suggest that the proposed fact is unlikely to be controversial. For example, if on a charge of assault the accused indicated that he would plead self-defence, the prosecutor might reasonably propose as uncontroversial the fact that the victim suffered the injuries libelled. But where the proposal of a fact that is part of the species facti is challenged by the defence, it can rarely be for the prosecutor to move, or for the court to hold, that a fact essential to the prosecution case has been conclusively proved.
[43] Looked at in that way, the section can be seen to deal with evidence, typically documentary, which on the face of it is what it bears to be; for example, the accused’s bank statements; invoices; order forms and the like; or evidence that a video clip was recorded by a cctv camera at a specified locus at the time and on the date that it displays; or that a particular report records the findings of DNA analysis of a certain item of real evidence.
[44] It is open to the defence in any such case to submit that notwithstanding the appearance of things the apparently indisputable evidence is truly in controversy. In that event the section provides an ample safeguard for the interests of the accused. In the light of these considerations it seems to me that the questions for us are (1) whether the right to silence exists in the absolute form for which counsel for the appellants have contended; (2) whether section 258(4A) infringes the right to silence, whatever its extent; and (3) if it does, whether it is thereby in breach of article 6
The right to silence
The common law principle
[45] This case has been presented to us as a collision between two legally protected values: the right of the accused to silence and the public interest in the expeditious conduct of prosecutions. To test the validity of that view of the case, I shall first examine the foundations of the right to silence and determine whether it exists in the absolute form in which it has been described to us in the debate.
[46] Counsel for the appellants submitted that the presumption of innocence, the right to cross-examine prosecution witnesses and the right to put the Crown to proof were aspects of the doctrine of the passivity of the accused described in Beattie v Scott (supra); and that the right to silence was fundamental.
[47] The history of the early stages in the development of our criminal procedure shows that the right to silence was far from being absolute. The Heritable Jurisdictions (Scotland) Act 1746 provided inter alia as follows:
“the Pannel shall give in to the Clerk of Court the Day before the Trial, in writing … such Account of the Facts, relating to the Matters charged upon him in the Libel or Indictment, and thereto briefly subjoin the Heads of such Objections or Defences, as he shall think fit or be advised to make at his Trial” (cf Hume, pp 301, 399-400).
Hume considered this to be a just requirement because
“it is not, and ought not to be the law, that he is entitled to make a mystery of his case, and withhold from the prosecutor and the Court, all knowledge of what his line of defence and grounds of exculpation are to be. To let him maintain silence in that respect, till the proof in support of the libel has been closed, would be downright injustice to a prosecutor, who might thus lose the fair means of meeting the defences, and strengthening his own case with evidence, in the relative and proper parts” (p 301).
[48] In 1833 Alison relied on this provision for the following statement of principle:
“If the panel means to go to trial, and in addition to a general plea of not guilty, has any special defence, as alibi or the like, he must lodge special defences, which must be lodged with the clerk of Court at least the day before the day of the trial, and should be read aloud before the trial commences” (ii, 369).
The current edition of Renton and Brown (Criminal Procedure, 6th ed, para 14-26) identifies eight cases, four of which are the traditional special defences, in which advance notice of the line of defence must be given.
[49] In modern practice the accused has to break his silence also in other ways. If he has defence witnesses he has to lodge a list of them. The Crown may precognosce them and, if so advised, call any of them as witnesses against him. Most importantly, in contemporary practice the accused must lodge a defence statement under section 70A of the 1995 Act (cf Barclay v HM Adv 2012 SLT 855; para [41]).
[50] The statements in Beattie v Scott (supra) on which counsel for the appellants have relied have, in my view, been quoted out of context. The question considered in that case was whether during a trial an accused could be required to stand up in order to assist a witness in his identification of one of the perpetrators of the crime. The judicial statements in that case seem to me to be irrelevant to the present issue. Similarly, the statement of Lord Eassie in Gemmell v HM Adv (supra) was made in the entirely different context of sentence discounting for an early plea.
The roles of judge and jury
[51] Counsel for the appellants submitted that section 258(4A) involves a usurpation of the function of the jury. According to the common law principle, the determination of the facts is within the exclusive province of the jury; but statutory provisions may require otherwise. The principle that certain facts may in certain circumstances be held to be proved unless the defence makes a competent challenge is now well-rooted in our evidential law. For example, section 255 of the 1995 Act, as amended, continues the long-established rule that where an offence is alleged to have been committed in a special capacity, the fact that the accused possesses the qualification necessary to the commission of the offence is, unless challenged, to be held as admitted (cf Renton and Brown, supra, paras 24-104 – 24-107.1).
[52] The underlying purpose of such provisions is not to oust the jury as the trier of fact. It is to establish as fact certain matters that should not require the arbitrament of a jury for the simple reason that they are beyond dispute. Whether they are truly beyond dispute is of course not to be assumed; hence the right of the defence in all of these various provisions (supra) to challenge the alleged facts by prior notice.
The right of the defence to examine witnesses led against them
[53] Counsel for the appellants submitted that section 258(4A) deprives the accused of the right to cross-examine prosecution witnesses. I do not agree. If in challenging a statement of uncontroversial evidence the defence should represent that there is a proper basis to cross-examine the relevant witness, the court should find that the challenge is justified. If the defence cannot properly make such a representation, then the defence would have no proper basis on which to cross-examine the witness in any event. Therefore, in my view, no opportunity to cross-examine the relevant witness is lost by the court’s holding the relevant fact to be conclusively proved.
Article 6 and the right to a fair trial
[54] For the reason that I have given I consider that the right to silence is not absolute. For the purposes of this case it is unnecessary for us to identify the exact boundaries of the right to silence. In the context of the article 6 issue, we must first decide whether the enactment of section 258(4A) infringes the right to silence, whatever its boundaries may be. In my opinion, subsection (4A) does not infringe the right to silence at all. It does not compel the accused to say anything, still less to incriminate himself. It provides a mechanism by which evidence that is truly uncontroversial can be held to be proved. It leaves the accused free to decline to agree the relevant evidence. If he declines, he has the opportunity to challenge the statement. He may, for example, have the reasonable response that the facts alleged are significant and are outwith his knowledge; or that the facts alleged are incompatible with his line of defence; or in an extreme case, which this case may be, that the statement requires him to agree that the facts alleged constitute the crime libelled. If the challenge fails, certain evidential consequences may follow; but in relation to those there are the safeguards for the accused’s position.
[55] If I am wrong in thinking that the right to silence is not infringed at all, the question then becomes whether section 258(4A) is a reasonable and proportionate response to the problem with which the section appears to deal.
[56] The proposition that the accused is entitled in every case to put the Crown to the proof of every detail of its case would be sustainable only if the interests of the accused were in all respects paramount. But that is not so. The Crown has its rights. As Judge LJ, as he then was, put it in R v Jisl ([2004] EWCA Crim 696, at para [114]) –
“The starting point is simple. Justice must be done. The defendant is entitled to a fair trial: and, which is sometimes overlooked, the prosecution is equally entitled to a reasonable opportunity to present the evidence against the defendant.”
The presentation of the prosecution case should give the jury a clear-sighted understanding of the essential facts and issues. The accused must have a fair and proper opportunity to defend himself; but if defence tactics needlessly impede such a presentation, there is a serious risk that the jury will be unable to give a true verdict on the evidence.
[57] Other legitimate interests are at stake in a criminal trial. There is the general public interest in the efficient and expeditious conduct of prosecutions; and in the maintenance of public confidence in the system of criminal justice. There is the legitimate public interest in the avoidance of needless expense to the court administration and to the Scottish Legal Aid Board, and the avoidance of dislocation of the court timetable. There are also the legitimate interests of jurors in being spared the ordeal of a trial that is needlessly prolonged.
[58] In my opinion, it is reasonable for the Parliament to seek to strike a balance between these disparate interests so long as the accused does not at the end of the day receive an unfair trial. In considering that question, we must bear in mind that in the aftermath of the Human Rights Act 1988 and section 57 of the Scotland Act, the question now is whether, looked at in its entirety, the trial is fair to the accused overall.
[59] It is not in the interests of good order in society if a trial of needless length places burdens upon the state and third parties in terms of time and money, and puts justice at risk.
In my view, it is reasonable that legislation should provide a procedure by which, in advance of the trial, a fact that seems bound to be proved in the normal course of the prosecution can be deemed to be conclusively proved; provided always that there are adequate safeguards for the interests of the accused.
[60] Looking at the matter in that way, I can see no reason why an accused person should have the liberty not to admit a fact as to which he cannot reasonably withhold his agreement. Not to admit such a fact is obviously inconsistent with the accused’s duty in terms of section 257(1) (supra). I cannot accept that the right to silence should mean that the accused can fold his arms and prolong a prosecution in the off chance that a witness will abscond or that the prosecutor will make a blunder; or in the hope that the sheer volume of formal evidence will leave the jury weary or bewildered. Such a strategy is not, in my view, in the interests of justice. Fairness to the defence is adequately secured by, amongst other things, the right of the accused not to incriminate himself, the right to cross-examine witnesses led against him, the placing of the burden of proof on the prosecution, and the demanding nature of the standard of proof.
[61] I conclude therefore that section 258(4A) is a reasonable constraint upon the right of the accused to put the Crown to the proof in relation to factual matters. It is consistent with the spirit of our law to encroach upon the passivity of the accused to the extent that it does not render the trial unfair.
[62] Article 6 neither proscribes nor requires jury trial; nor does it regulate whether the facts are determined at different stages or as part of one decision. There is, accordingly, nothing inherently incompatible with article 6 in a provision that entitles a judge to decide, having heard parties on the question, that a fact is to be deemed to have been proved. The true question that arises under article 6 is, in my opinion, whether the means by which a judge can make such a decision respects the guarantees that article 6 contains.
[63] The granting of an application under section 258 does not in itself involve the court’s holding the accused to have admitted any fact. The hearing of the application does not require any admission from the defence nor does it place any burden upon it. The defence can make submissions in opposition, but those submissions need not touch upon the position of the accused unless defence counsel should think it advisable to do so. Even if the accused says nothing, it remains for the Crown to satisfy the court that the relevant fact is vouched by sources of indisputable accuracy.
[64] In any event, the right to cross-examine envisaged by article 6(3)(b) need not be exercised only at the stage of trial (Sadak v Turkey (2003) 36 EHRR 26, at para [64]). The defence could precognosce witnesses in preparation for a hearing on an application under sub-section (4A). If the relevant witness was uncooperative, that might be justification in itself for a challenge, but the defence also have the means of compelling a witness to be precognosced on oath (1995 Act, s 291).
[65] In my view, section 258 does not abridge the implied and subsidiary rights within article 6. Those rights may be restricted provided that, overall, a fair trial is achieved (Cadder v HM Adv 2012 SC (UKSC) 53, para [57]). In my view, if the section infringes those rights at all, it does so in only a limited way. It is a reasonable and proportionate response to the problem that I have identified. It respects and protects the interests of the state in an efficient system of criminal justice while being fair to both prosecution and defence, and to third parties such as witnesses and jurors.
[66] I conclude therefore that the enactment of section 16 of the Criminal Procedure (Amendment) (Scotland) Act 2004, by which section 258(4A) was introduced, was within the vires of the Scottish Parliament.
The statement itself
[67] Before the sheriff the only submission for the appellants was that their challenge was justified by the right to silence. Counsel reasonably enough stuck to their guns on the point; but the result was that when the sheriff decided it against them, he thought that there was no other question to consider.
[68] We have undertaken a wider examination of the issues in the case. We have had occasion to consider whether the Crown’s statement complies with the section. In my opinion, it does not. I regret to say that the statement rests on an obtuse misunderstanding of the section. First, it does not deal solely with facts that are prima facie uncontroversial. It calls on the accused to admit facts that go to the heart of the case; namely facts that constitute part of the species facti of the indictment and are inconsistent with the appellants’ pleas. Worse still, it puts forward as a fact the proposition of law that the transactions were “fraudulent,” which is the essence of the libel.
[69] The Lord Advocate could not support those parts of the statement and undertook not to insist in them. Nevertheless the lodging of the statement in its original terms demonstrates the dangers to which an imperfect understanding of the section can lead. It points to the need for vigilance on the part of the defence lest the Crown should make a similarly ill-judged attempt to secure an admission by the accused of matters that are outwith the purview of the section.
Counsel’s professional duty
[70] The court is indebted to the Dean and his colleagues for their statement of counsel’s professional position. The Dean submitted that at the hearing before the sheriff counsel were bound by their duty to carry out the instructions of their clients. In my view, the issue is not as to the extent of counsel’s duty to carry out instructions. The logically prior question is whether the client is entitled to give such instructions at all.
[71] The client is not the master of his counsel (Batchelor v Pattison and Mackersy (1876) 3 R 914, Lord President Inglis at p 918; Anderson v HM Adv 1996 JC 35). Counsel has responsibilities as an officer of the court. He is not required to act in all respects as his client may wish (Woodside v HM Adv 2009 SLT 371, Lord Justice Clerk Gill at para [76]; R v Farooqi [2013] EWCA Crim 1649, at paras 108-109, 114). He is not bound to call such witnesses as the client dictates (Hughes v Dyer 2010 JC 203). He may not put questions in cross-examination when he has no basis for them in his instructions; nor may he ask questions that are insulting or abusive even if his client demands that he should (cf Guide to the Professional Conduct of Advocates (5th ed), Oct 2008; para 6.3; Law Society of Scotland Practice Rules 2011 (rr 4.4.30, 4.4.33)).
[72] In HM Adv v AB ([2012] HCJAC 13) counsel and solicitor advocates for the respondents declined on their client’s instructions to sign a joint minute agreeing what appeared to be indisputable facts. I commented that unless those acting for the respondents had some serious reason to dispute all or any of the matters on which agreement was sought by the Crown, I could only regard their refusal to sign as perverse. In the light of the extensive review of the subject by counsel in this case, I now accept that, whether or not the respondents were justified in giving that instruction, it was the common understanding of the profession at that time, supported by the view of the Dean, that counsel could properly act upon it. My use of the word perverse was therefore unfair. I apologise to the counsel and solicitor advocates in that case for having used it.
[73] If I am right in thinking that section 258(4A) does not infringe article 6, the accused can avoid the evidential consequence set out in section 258(3) only if he gives notice of challenge and if the nature of the challenge is held to be justified. In taking the accused’s instructions on a matter of this kind, counsel will have to make a difficult and discerning professional judgment. It is conceivable that a client who instructs counsel to challenge a statement of uncontroversial evidence on the basis that he intends to put the Crown to the proof of its entire case may have a good and sufficient reason for doing so. In that case counsel will be justified in acting according to that instruction. On the other hand, the reality may be that the client is seeking to achieve exactly what sections 257 and 258 are intended to prevent. In the latter case such an instruction will be a breach of the accused’s statutory duty under section 257(1) (supra) to take all reasonable steps to reach the agreement of evidence to which section 257 refers. It is not part of counsel’s duty that he should carry out an instruction of that kind.
Disposal
Article 6
[74] On the view that I have taken on the applicability of article 6, I consider that the sheriff was right to refuse the devolution minutes. I propose to your Lordships and to your Ladyship that we should refuse the appeals against that decision.
Application of section 258
[75] The sheriff tells us that after counsel for the appellants offered no detailed justification for their challenges to the statement, he “had no difficulty” in granting the Crown application. He made that decision on the erroneous understanding that the onus in section 258(4A) lay with the defence. He therefore did not hear the Crown on the question whether any individual fact alleged in the statement was unlikely to be disputed. The decision therefore cannot stand. The Lord Advocate has tendered a revised version of the statement which omits much of the original. I propose to your Lordships and your Ladyship that we should allow the appeal and return the case to the sheriff for a hearing on the revised statement.
APPEAL COURT, HIGH COURT OF JUSTICIARY
2015 HCJAC 100
XC634/12
XC633/12
Lord Justice General
Lord Justice Clerk
Lord Eassie
Lord Clarke
Lady Dorrian
Lord Malcolm
Lord Tyre
OPINION OF THE LORD JUSTICE CLERK
In the Appeals by
MOHAMMED ASHIF
First Appellant;
and
ALIAH ASHRAF
Second Appellant:
against
HER MAJESTY’S ADVOCATE
Respondent:
For the first appellant: Jackson, QC, McLaughlin; G Sweeney & Co, Glasgow
For the second appellant: Targowski, QC, Macleod; Patrick Campbell & Co, Glasgow
For the Crown: The Lord Advocate (Mulholland QC), Lawrie; Crown Agent
For the Faculty of Advocates: The Dean of Faculty (Keen QC), Wolffe QC and Ms Catherine Smith
20 March 2014]
[76] I agree with the disposal of these appeals as proposed by your Lordship in the chair and with your Lordship’s reasoning. Section 258(4A) of the 1995 Act is a procedural route which permits the judicial determination of fact in a trial process, but in advance of a trial diet. It does not involve obliging an accused person to admit anything or to incriminate himself. It thus does not involve a breach of the implied right to silence in Article 6 of the European Convention and is accordingly within the powers of the Scottish Parliament. There is, in particular, no Article 6 requirement that: proof of every fact must be by way of oral evidence; such testimony must be given at the trial diet; or such testimony must always be subject to cross-examination on demand (Al-Khawaja v United Kingdom (2012) 54 EHRR 23, paras 90 and 118-119 following Lucà v Italy (2003) 36 EHRR 46, para 40 and Sadak v Turkey (2003) 36 EHRR 26, para 65). Any provision of the Scots Law of evidence and procedure which requires such proof, attendance or cross-examination may legitimately be modified by the Parliament, to the extent that it does not contravene the Convention jurisprudence.
[77] In looking at whether a trial will, because of a particular statutory provision, inevitably be unfair to an accused, it remains important to look at the prospective proceedings as a whole “having regard [not only] to the rights of the defence but also to interests of the public and the victims that crime is properly prosecuted” and to the rights of witnesses (Al-Khawaja (supra), para 118, following Gäfgen v Germany (2011) 52 EHRR 1, para 175). As Your Lordship observes (paras [55]- [56]), although an accused person must have a fair and proper opportunity to defend himself, there is a general public interest in: “the efficient and expeditious conduct of prosecutions”; “the maintenance of public confidence in the system of criminal justice”; “the avoidance of needless expense” and “dislocation of the court timetable”; quite apart from the need to have regard to the interests of witnesses and jurors participating in the trial process. Where a Statement of Uncontroversial Evidence includes a key factor is based upon the evidence of a key witness, no doubt a challenge to it would inevitably be regarded by the court as justified. Oral testimony and cross examination would follow. There are, in those circumstances, adequate protections for an accused, contained within the statutory framework, to ensure that his right to a fair trial remains practically and effectively secured.
[78] I endorse entirely the views of your Lordship on the professional position of counsel and, in particular, that it is no part of counsel’s duty to carry out an “instruction” which is inconsistent with the obligation under section 257(1) of the 1995 Act to take all reasonable steps to reach agreement on the evidence. Thus, in electing to challenge a Statement of Uncontroversial Evidence, there must be, as your Lordship puts it (para [72]), a good and sufficient reason for doing so.
[79] Your Lordship has already alluded (para [16]) to the problematic terms of the Statement in this case. It may be worth observing that, although section 258 is headed “Uncontroversial evidence”, it is actually about uncontroversial fact (s 258(2)(a)). What therefore requires to be stated is fact, not evidence.
APPEAL COURT, HIGH COURT OF JUSTICIARY
2015 HCJAC 100
XC634/12
XC633/12
Lord Justice General
Lord Justice Clerk
Lord Eassie
Lord Clarke
Lady Dorrian
Lord Malcolm
Lord Tyre
OPINION OF LORD EASSIE
In the Appeals by
MOHAMMED ASHIF
First Appellant;
and
ALIAH ASHRAF
Second Appellant:
against
HER MAJESTY’S ADVOCATE
Respondent:
For the first appellant: Jackson, QC, McLaughlin; G Sweeney & Co, Glasgow
For the second appellant: Targowski, QC, Macleod; Patrick Campbell & Co, Glasgow
For the Crown: The Lord Advocate (Mulholland QC), Lawrie; Crown Agent
For the Faculty of Advocates: The Dean of Faculty (Keen QC), Wolffe QC and Ms Catherine Smith
20 March 2014
[80] I agree with your Lordship in the chair that is so far as the sheriff’s refusal of the devolution minute is challenged in this appeal that aspect of the appeal falls to be refused. For the reasons given by your Lordship, I do not consider that section 258(4A) involves an infringement of the right to silence. Particularly given the acceptance that the onus is on the proponer of the statement of uncontroversial evidence – which will usually be the Crown, and I make that assumption – to show that the challenge is not justified, there is no compulsion on the accused to say anything which might be used as incriminatory material against him. The provision provides a method whereby the court determines on the basis of the information before it that a fact is proved without the need for evidence to be led in accordance with the normal evidential requirements by the prosecution.
[81] I also agree that for the rest the appeal should be allowed, as indeed necessarily follows from the acceptance by the Lord Advocate that the statement presented to the sheriff could not be supported. It is regrettable that the procurator fiscal, at the stage of framing the statement, but more importantly at the stage of moving that the challenge was unjustified, and the sheriff, when faced with that motion, did not properly appreciate the proper scope of section 258.
[82] At the stage of framing the statement the drafter has to form some view of the likely response by the defence and may therefore reasonably think that in the peculiar circumstances of a given case a matter going to the species facti may be agreed by the defence. By way of the example of self defence to which your Lordship in the chair refers, in some, but by no means all, cases in which self defence is advanced the prosecutor may, at this first stage, envisage that the nature of the injuries suffered by the complainer or deceased might not be controversial. But different considerations apply at the later stage when the court is required to consider whether the Crown has shown that the challenge is not justified. For my part I have difficulty in conceiving of circumstances in which a court could properly exercise its power under section 258 to override a challenge to a statement of a fact forming part of the species facti; but that is not to say that they might arise in a very exceptional case. A useful, general parameter within which a judge might give consideration to the exercise of the power under subsection (4A) is that the matters to be held proved are simply part of the general setting of the case. And within that parameter, I consider that a useful test is whether in the absence of some unlikely procedural mishap the suggested undisputable aspect of the setting or context would inevitably be proved; and, if so, whether the accused cannot reasonably insist on their being proved by the normal evidential rules.
APPEAL COURT, HIGH COURT OF JUSTICIARY
2015 HCJAC 100
XC634/12
XC633/12
Lord Justice General
Lord Justice Clerk
Lord Eassie
Lord Clarke
Lady Dorrian
Lord Malcolm
Lord Tyre
OPINION OF LORD CLARKE
In the Appeals by
MOHAMMED ASHIF
First Appellant;
and
ALIAH ASHRAF
Second Appellant:
against
HER MAJESTY’S ADVOCATE
Respondent:
For the first appellant: Jackson, QC, McLaughlin; G Sweeney & Co, Glasgow
For the second appellant: Targowski, QC, Macleod; Patrick Campbell & Co, Glasgow
For the Crown: The Lord Advocate (Mulholland QC), Lawrie; Crown Agent
For the Faculty of Advocates: The Dean of Faculty (Keen QC), Wolffe QC and Ms Catherine Smith
20 March 2014
[83] I agree with your Lordship in the chair as to the disposal of these appeals and your Lordship’s reasoning.
[84] The appellants’ arguments that the provisions of section 258, as framed, offend the “right to silence” must be examined with a proper understanding of what is, in law, embraced in that phrase and what are its consequences. As has been pointed out
“… such phrases tend to refer to important values to which the criminal justice process gives varying degrees of weight in determining the appropriate legal rules at different stages of the process, rather than to hard and fast legal rules. What such rhetoric tends to ignore or downplay is that ‘basic rights’ or ‘fundamental principles’ are rarely untrammelled in practice. They are usually qualified in application in any particular area of law by the need to strike a balance with the demands of other competing values.” See P. Duff Edin LR Vol. 6, p 32.
[85] In R v Director of Serious Fraud Office, ex parte Smith [1992] 3 WLR 66 Lord Mustill, in a speech with which all other members of the House of Lords agreed, observed, at p 74 that the phrase “the right to silence”
“does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute.”
His Lordship continued
“Amongst these may be identified:
(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.
(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.
(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.
(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.
(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.
(6) A specific immunity (at least in certain circumstances, which it is unnecessary to explore) possessed by accused persons undergoing trial, from having adverse comments made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial. “
Lord Mustill was, of course, dealing with English criminal law and practice. In general terms, I consider that it can be read to be an accurate statement of the position in Scotland.
[86] The exceptions to the right to silence, outlined in your Lordship in the chair’s Opinion demonstrate that it is not only a description of a number of privileges but that there is, in law, no absolute right to silence. It is a fallacy to deduce from the expression itself that it constitutes an absolute right which allows a person, once accused of a crime, to act as a mute and to refuse to cooperate with the prosecution, in any respect at all in the criminal process. There is nothing in the decided jurisprudence relating to the ECHR to support such a proposition. So in John Murray v The United Kingdom [1996] 22 EHR 29 the European Court of Human Rights at para 45 of its judgment said this:
“Although not specifically mentioned in Article 6 of the Convention, there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aim of Article 6.”
The court however, at para 47, after discussion, concluded that “the question whether the right is absolute must be answered in the negative”. As was recognised by the European Court of Human Rights, the right to silence is found in its most potent manifestations in the general right of an accused person to say nothing in the face of police questioning and to remain silent at any trial. These are justified as a protection against self-incrimination. The provisions of section 258 do not, in my judgement, carry with them any inroad into those protections since, provided the provisions are employed within the limits imposed by the language of the section then no real issue of self-incrimination should arise. When facts are uncontroversial, in the sense described by your Lordship in the chair, they will relate only to matters which do not form the species facti of the crime alleged but should contribute towards providing the undisputable aspects of the setting or context in which the alleged crime is said to have been committed. The policy underlying the provisions is clearly designed to be in the public interest. Used properly the provisions have the following potential benefits.
1. Witnesses can be saved the inconvenience of attending at court.
2. Evidence can be presently simply and clearly to the court.
3. Trials can be shortened.
4. Expense and costs can be saved.
These benefits reflect the fact that, as previously noted, what are sometimes described as absolute rights do, on occasion, require to be modified to strike a reasonable balance with demands of other compelling values. For the foregoing reasons it is clear, in my judgment, that the statements of principle in the case of Beattie v Scott (1990 JC 320), referred to by your Lordship in the chair, if unqualified, and without reference to context, cannot be used to support the appellants’ position. Any suggestion that the accused can employ the right to silence to obstruct the efficient presentation of the Crown’s case, when all that is required of him does not involve any question of self-incrimination, is to ignore the importance, in the public interest of the proper and efficient administration of justice.
[87] Once it is decided that the provisions of section 258 are perfectly valid in law, the issue of counsel’s duty, in the terms it was advanced before us, on behalf of the appellants, falls away. Counsel cannot be obliged to follow instructions of a client simply to refuse to comply with the law.
[88] Having said all of the foregoing, I have to add that it is clear, in my judgement, that the provisions of section 258 should be employed by the Crown with a clear and proper understanding of their purpose and scope. It is very regrettable that the particular application made in this case betrayed a complete misunderstanding of the meaning and the purpose of the statutory provisions. It is to be very much hoped that future attempts to secure admissions beyond the scope of the section will be avoided. Any such application in terms of section 258(4A), if granted, would not only be outside the law, but would be likely to amount to a clear breach of the accused’s basic right to a fair trial.
APPEAL COURT, HIGH COURT OF JUSTICIARY
2015 HCJAC 100
XC634/12
XC633/12
Lord Justice General
Lord Justice Clerk
Lord Eassie
Lord Clarke
Lady Dorrian
Lord Malcolm
Lord Tyre
OPINION OF LADY DORRIAN
In the Appeals by
MOHAMMED ASHIF
First Appellant;
and
ALIAH ASHRAF
Second Appellant:
against
HER MAJESTY’S ADVOCATE
Respondent:
For the first appellant: Jackson, QC, McLaughlin; G Sweeney & Co, Glasgow
For the second appellant: Targowski, QC, Macleod; Patrick Campbell & Co, Glasgow
For the Crown: The Lord Advocate (Mulholland QC), Lawrie; Crown Agent
For the Faculty of Advocates: The Dean of Faculty (Keen QC), Wolffe QC and Ms Catherine Smith
20 March 2014
[89] I agree with the reasoning of your Lordship in the chair and with the disposal proposed by your Lordship and have nothing further to add.
APPEAL COURT, HIGH COURT OF JUSTICIARY
2015 HCJAC 100
XC634/12
XC633/12
Lord Justice General
Lord Justice Clerk
Lord Eassie
Lord Clarke
Lady Dorrian
Lord Malcolm
Lord Tyre
OPINION OF LORD MALCOLM
In the Appeals by
MOHAMMED ASHIF
First Appellant;
and
ALIAH ASHRAF
Second Appellant:
against
HER MAJESTY’S ADVOCATE
Respondent:
For the first appellant: Jackson, QC, McLaughlin; G Sweeney & Co, Glasgow
For the second appellant: Targowski, QC, Macleod; Patrick Campbell & Co, Glasgow
For the Crown: The Lord Advocate (Mulholland QC), Lawrie; Crown Agent
For the Faculty of Advocates: The Dean of Faculty (Keen QC), Wolffe QC and Ms Catherine Smith
20 March 2014
[90] For the reasons given by your Lordship in the chair, I agree that the terms of section 258(4A) of the Criminal Procedure (Scotland) Act 1995 are compatible with the fair trial requirement contained in article 6 of ECHR, and that there is no merit in the appeals in respect of the sheriff’s refusal of the devolution minutes. I also agree that the appeals against the approval of the statements of uncontroversial evidence should be upheld, again for the reasons given by your Lordship in the chair.
APPEAL COURT, HIGH COURT OF JUSTICIARY
2015 HCJAC 100
XC634/12
XC633/12
Lord Justice General
Lord Justice Clerk
Lord Eassie
Lord Clarke
Lady Dorrian
Lord Malcolm
Lord Tyre
OPINION OF LORD TYRE
In the Appeals by
MOHAMMED ASHIF
First Appellant;
and
ALIAH ASHRAF
Second Appellant:
against
HER MAJESTY’S ADVOCATE
Respondent:
For the first appellant: Jackson, QC, McLaughlin; G Sweeney & Co, Glasgow
For the second appellant: Targowski, QC, Macleod; Patrick Campbell & Co, Glasgow
For the Crown: The Lord Advocate (Mulholland QC), Lawrie; Crown Agent
For the Faculty of Advocates: The Dean of Faculty (Keen QC), Wolffe QC and Ms Catherine Smith
20 March 2014
[91] I agree with the disposal proposed by your Lordship in the chair. In particular, I agree, for the reasons stated by your Lordship, that the enactment of section 16 of the Criminal Procedure (Amendment) (Scotland) Act 2004, inserting subsection (4A) into section 258 of the Criminal Procedure (Scotland) Act 1995, was compatible with Article 6 of the European Convention on Human Rights, and that the appeals against the sheriff’s refusal of the appellants’ devolution minutes should be refused. I also agree, for the reasons stated by your Lordship, that the sheriff erred in granting the Crown’s application in terms of section 258(4A) and that the appeals against that decision accordingly fall to be allowed.