Act: Mason; Drummond Miller, Edinburgh

Alt: D. Young, A.D.; Crown Agent

12 December 2008

[1] The appellant was found guilty by a majority verdict of the jury at Glasgow Sheriff Court on 24 February 2006 of the following charge:

"on 22 July 2004 at Kingsway Court, Glasgow, you did have unlawful sexual intercourse with S.M., born 30 August 1990, c/o City Centre Police Office, Stewart Street, Glasgow, a girl then of or over the age of 12 years and under the age of 16 years; CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, section 5(3); you did commit this offence while on bail, having been granted bail on 31 October 2003 at Glasgow District Court and on 8 February 2005 at Glasgow Sheriff Court."

The appellant was sentenced to an extended sentence of 30 months, the duration of the custodial term being 18 months imprisonment, and that of the extended period being 12 months. The appellant lodged a Note of Appeal against conviction and sentence. Following the sift procedures, leave to appeal against conviction was granted, but leave to appeal against sentence was refused.

[2] The Crown case consisted of the evidence of the complainer S.M. and her friend J.F., who spoke to the incident described in the charge. The two girls had become friendly with the appellant who worked in the Pronto Chip Shop. They visited him in the shop almost daily. On the day in question the appellant took the girls to his flat at Kingsway Court at about 12 noon, and left them there, telling them to help themselves to some drink that was in the house. Both girls became very drunk and may also have taken some kind of drug. When the appellant returned, the complainer was so drunk that the appellant and J.F. put her into the appellant's bed in the flat. At that time the complainer made advances to him. She fell asleep and when she woke up the appellant was having sexual intercourse with her. There had been earlier evidence that he was aware of her age.

[3] The appellant denied the charge and lodged a special defence of alibi. He maintained that he had been working at the chip shop at the time the complainer said the incident happened. He cited the owner of the chip shop, Mazim Hashim, as a defence witness.

[4] The appellant gave evidence on 22 February 2006, refuting the complainer's evidence in its entirety. He claimed that he had been at the Pronto Chip Shop from 1 p.m. until 11 p.m. that day. On 23 February, after the diet was called, counsel for the appellant intimated to the court, outwith the presence of the jury, that the defence witness Mazim Hashim who was due to give evidence had told her that he had been threatened by the complainer's mother, who was not a witness, to the effect that he would be killed if he gave evidence. Counsel indicated that she intended to bring this matter out in the course of her examination of the witness. The procurator fiscal depute said that she would regard any evidence about a threat, which was at that time only an unsubstantiated allegation, as irrelevant and would object to such evidence being led. The sheriff invited counsel for the appellant to lead the evidence of the witness, and noted that it would be open to the Crown to object to the evidence when it was given.

[5] The witness then gave his evidence. In her report, the sheriff notes that his voice was low and that he mumbled something about being terrified. He was asked to speak up. He then said that he had owned the chip shop since 2002. He was referred to his shop diary, which was a production, and which recorded that the appellant had been on duty from 1 p.m. to 11 p.m. on the day in question. His job was to serve customers, and to undertake deliveries after 5 p.m. within a three mile radius. The witness did not remember exactly what the appellant had done in the course of the day. Deliveries took between half an hour and three quarters of an hour. When asked if the appellant had been out of the shop for any longer than 45 minutes, the witness said that he did not think so.

[6] At this point counsel for the appellant said that she wanted to ask a question to which there might be an objection, about his earlier claim that he was terrified to give evidence. The Crown objected on the basis of irrelevancy, and the jury withdrew. Counsel for the appellant maintained that she wanted to clarify what the witness meant when he said that he was terrified. The procurator fiscal depute objected on the ground that any such question could relevantly arise only if the witness had not spoken to the alibi. In the present case he had. The procurator fiscal depute also doubted whether an allegation of a threat made to the witness by someone who was not a witness in the case could have any possible bearing on the credibility of his evidence. The sheriff sustained the objection on the ground that the witness's credibility was not being put in issue by the defence. She thought that his evidence could be said to support the appellant's alibi, and also she considered that the witness was apprehensive about giving evidence as a whole, or in general terms. It is on that decision that the present appeal turns.

[7] Counsel for the appellant argued that what could be taken from Mr Hashim's evidence was that he was hesitant and reluctant. Although his evidence was qualified in certain respects in that he admitted that the appellant could have been out of the shop for periods of between half an hour and three quarters of an hour making deliveries, it could be said in general that he was supporting the appellant's alibi. The advocate depute accepted that any gaps or insufficiency in the witness's testimony about the appellant's movements on the day in question could not be regarded as consistent with the evidence of the complainer and her supporting witness. Counsel for the appellant submitted that if the witness's account of being threatened had been regarded as reliable by the jury, then his evidence could not be properly described as irrelevant. In Bell's Notes on Crimes vol. 2 p. 378 para 2, there is a statement to the effect that it is competent to enquire whether a witness is delivering his evidence under constraint, in consequence of threats held out to him. In Macdonald's Criminal Law of Scotland (5th edition) p. 310, the learned author states:-

"A witness may be asked whether he is giving his testimony under pressure; as by threats of the friends of the accused."

In Renton and Brown on Criminal Procedure (6th edition) para. 24-160, this statement is repeated. In Davidson on Evidence (2007) p. 438-9 paras. 10.59 to 10.60 it is suggested that it is always possible to cross-examine witnesses about any matter relevant to their credibility, and whether anyone has sought to influence their evidence. It is further noted that there appears to be no authority as to whether a party may put such matters to their own witness, and while this is not allowed in England, there appears to be no rule against doing so in Scotland. The case law cited in support of these textbook authorities is largely somewhat dated, but in Manson v His Majesty's Advocate 1951 JC 49 it was held that evidence of intimidation of a witness was properly adduced, not as evidence against the accused, but in order to explain the demeanour of a hesitant and reluctant witness. In these circumstances, counsel for the appellant maintained that the sheriff was wrong to exclude counsel at the trial from the opportunity of exploring the reasons for the witness's express reservations about giving evidence. Such testimony might have persuaded the jury to a different view of the witness's evidence and therefore of the appellant's alibi, and led to a different verdict. The essential issue in the case centred on a direct conflict of credibility between the complainer and her witness on the one hand, and the appellant and Mr Hashim on the other. The sheriff was accordingly wrong to exclude this evidence and, as a consequence, there may have been a miscarriage of justice.

[8] In response the advocate depute submitted that the appeal should be refused. The sheriff had not been in error and was acting within the discretion available to her to exclude irrelevant evidence. In general, relevant evidence was that which made those matters which required proof more or less probable. A threat to a witness is not relevant unless it relates to the guilt or innocence of the accused or bears on the credibility or reliability of the witness. This only arises when the evidence given is challenged (Manson v HM Advocate). The witness in the present case was not being challenged on his truthfulness by the party who wished to raise the question of the threat. There was nothing in the transcript of the witness's evidence which suggested that he was hesitant or reluctant. He was merely talking in a low and inaudible voice. When he was asked by the sheriff to speak up he did so and his credibility and reliability were not challenged before the objection was made. The sheriff in these circumstances has to exercise her discretion on whether the evidence was relevant, and as she has disclosed in her note, she felt that the witness was reluctant in general terms about giving his evidence, and was not (by implication) concerned about any particular threat. It may be relevant to explore such issues when a witness refuses to speak, or gives testimony different to what is contained in an earlier statement or precognition, but that was not the case here. As an alternative submission, the advocate depute argued that even if the sheriff had been wrong to exclude explanation of the witness's claim that he had been threatened, there had been no miscarriage of justice. There had been no exclusion of a relevant line of evidence. The source of the threat was not said to be another witness in the case, and the jury was not precluded from forming a view about the credibility of the complainer as a result of the exclusion of the evidence.

[9] We are not satisfied that the sheriff reached the right decision in this case. The general rule in our criminal law is that a witness may be asked if he is giving his evidence under pressure. The most common example of this is when a witness has been threatened (Macdonald p 310; Renton and Brown para. 24.160). To that general principle, we do not consider that the qualifications urged on us by the advocate depute should be admitted. It was suggested that it may be competent to explore the question of possible intimidation of a witness who had given evidence which was unexpected or at odds with what had been said on earlier occasions, or who did not speak up at all. That is no doubt correct; but we can find no reason for suggesting that it would not be the subject of relevant enquiry when a witness's evidence has been possibly influenced for other reasons, with other possible consequences, such as the impact on the witness's demeanour in the witness box. In the absence of a proper explanation for the quality of the evidence of a witness, or of a statement of his concerns about giving evidence, it may be that the jury would have formed a different view of his testimony. Accordingly, in such a situation, we believe that such considerations may go to the heart of a witness's reliability or credibility as seen by the jury. Nor do we consider that there is any rule which precludes the appellant's lawyer from enquiring into such matters of his own witness; there appears to be no reason in logic why this should be so.

[10] Equally, it does not seem to us to matter whether the source of the threat is a witness in the case, or some other person. Nor do we think that it is of significance whether the witness gives his testimony according to expectations, or not, or whether he fails to speak up at all. Juries are not only interested in the substance of what a witness does or does not say; they are also interested in the demeanour of a witness, and the way in which evidence is given. If the evidence of a witness has, or may have been, influenced by pressure or threats, he should be given an opportunity of explaining what brought that about. If a witness indicates that he has reservations about giving evidence or that he is terrified about doing so, then it is only right that that matter should be explored, if so advised. The need for this kind of investigation to be allowed is underlined in the present case because it was known from the outset what the reason for the potentially unsatisfactory quality of the witness's evidence might have been. Counsel for the accused at the trial had very properly brought this to the attention of the sheriff at the earliest possible moment. Mr Hashim had said, at the outset of his evidence, that he was terrified. He had to be asked to speak up. In these circumstances, while the sheriff has the discretion to exclude evidence which is irrelevant, what happened here was, in our view, appropriate for consideration. It appears that the sheriff took the view that the witness was concerned about giving evidence in general terms, and so far as we understand her position, that by implication he was not concerned about the threat. We do not think that this was the correct approach for the sheriff to take. She had not yet heard the evidence from the witness about the threat; this had been merely reported to her by counsel for the accused at the trial. She was therefore not in a position properly to assess the witness's claim and thus dismiss it.

[11] It should be emphasised, however, that such evidence of intimidation of a witness is permitted, not as evidence against the accused, but solely in order to explain the demeanour of a hesitant and reluctant witness. In the present case the witness himself claimed to be terrified about giving evidence for a stated reason. That, in our view, is sufficient to bring the witness's evidence under the umbrella of the general rule, expressed by the Lord Justice General (Cooper) and Lord Keith in Manson v HM Advocate, that such evidence should be admitted. As the Lord Justice General noted in the course of his opinion, it was within judicial knowledge that witnesses in serious criminal trials are frequently threatened or intimidated, and it is in the interests of justice that such matters are explored. The position is no different today. Equally, spurious allegations of threats are also made by those with an interest in the jury's verdict. It is in this respect that it is of crucial importance that having allowed such matters to be explored in evidence, the trial judge should then give clear directions on how this evidence should be treated.

[12] The claim by the witness that he had been threatened was a serious one. The alleged consequence, namely that he was terrified as a result, was communicated to the jury. In these circumstances, it would be reasonable to conclude that the quality of his evidence might be impaired in the jury's eyes. Had the explanation for this been available, it is possible that the jury might have taken a different view of the witness's evidence. His claim that he was terrified, without further explanation, might have suggested to the jury that the source of his apprehension was the accused. If a different view of his evidence had been taken by the jury, they might have acquitted. If this is correct, then two consequences are inevitable. Firstly, the sheriff was wrong to hold the evidence was irrelevant and then to exclude it. Secondly, as a different view of the witness's evidence might have resulted had the evidence of his reason for being terrified been allowed, the exclusion of that evidence may have contributed to a possible miscarriage of justice. In these circumstances we sustain the grounds of appeal and quash the conviction.