in the cause





M. A. Macleod, Advocate Depute, Mercer; Crown Agent

Prais Q.C., Hawthorne; The Ross Partnership, Paisley

18 May 2004

During the course of the evidence of an ex-police officer, Paul Johnstone, the third witness in the trial of the panel on a charge of murder, the Crown began to lead evidence of a statement made by one Gordon Fraser, who died on 28 November 1999, under and in terms of section 259 of the Criminal Procedure (Scotland) Act 1995. The statement, recorded in manuscript as Production 16, was made during an interview by the police at Dumbarton police station on the evening of 24 June 1996. For the potential significance of this evidence to be understood, it is necessary for the context of the Crown case to be explored. According to the Crown, the deceased Jacqueline Gallagher was murdered in the early hours of Monday, 24 June 1996. She had been living with Mr Fraser, her boyfriend, in Foxbar, Paisley. They were both, to a greater or lesser extent, drug addicts. The deceased supplemented her income by working as a prostitute in central Glasgow. On the Monday, she had taken a bus from Foxbar to Bothwell Street, arriving at about 1.20 a.m. She was seen at various times for perhaps two and a half hours afterwards. Later on that morning, however, she was killed. Her half naked body was wrapped in a curtain and dumped in ground next to a lay-by near Bowling, West Dunbartonshire, where it was found at about 10.00 a.m. No-one was prosecuted at the time, presumably because the evidence was deemed insufficient to merit charging anyone. Sometime in 2001, when the case was being routinely re-examined on a five-year cycle, the police instructed further DNA tests on the deceased's underpants, which had been found with the body. From a substance said to be semen deposited on the pants, a profile of the panel's DNA was discovered. There was no other biological material on the pants, except that of the deceased. The DNA evidence is seen as critical to proof of the case against the panel. In addition to it, however, there are certain other circumstantial elements namely that, according to the Crown: (i) the panel's van was seen near where the deceased was working on the Monday morning; (ii) the ligature marks on the deceased were consistent with being caused by a collar used in the sexual practice of bondage, a practice in which the panel was interested; (iii) the curtain was similar to one which the panel previously had in his van; and (iv) at some time after 4.a.m. on the Monday, the panel had been behaving oddly at his house, which was not far from the site of the body.

In response to the DNA findings, the panel maintains that he had been in contact with the deceased, but the last time had been on the night before that of the murder. It is in this connection that the Crown consider that the evidence in the statement might be significant. It contains an account of the deceased's movements before embarking for Glasgow, but also states:

"She was a clean lassie. She changed her pants a couple of times a day, so know (sic) she would have had clean pants on. In fact I bought them for her on Tuesday from Littlewoods in Paisley. I bought 3 pairs the same and the other 2 pairs are at home".

If true, then the possibility of the deceased's last contact with the panel being at a time other than the night of her murder is significantly diminished.

The panel objected to the evidence of the statement and argued that it should be excluded as constituting a breach of article 6 of the European Convention on Human Rights and Fundamental Freedoms. Under reference to the trilogy of cases of Nulty, McKenna and Daly v HM Advocate 2003 SLT 761, 769 and 773, he submitted that, although section 259 of the 1995 Act did not permit the Court a discretion to disallow hearsay, the Court was entitled to exclude that evidence if a breach of article 6 would inevitably occur (HM Advocate v M(R) 2003 SCCR 632). Reference was also made to Paterson v HM Advocate 2000 JC 137; the first instance reports in McKenna (supra) 2000 JC 291 and Nulty (supra) 2000 SLT 528; Bain v HM Advocate 2002 SLT 340; and Beggs v HM Advocate (No. 3) 2002 SLT 153. The panel maintained that the evidence of the statement was potentially "decisive" in the sense used in European human rights cases on when hearsay may not be used to ground a conviction (Campbell v HM Advocate 2003 SCCR 779). The Crown submitted that, in its context, the evidence in the statement, whilst important, was not "decisive" in the European sense. Even if it were, that did not necessarily render its admission unfair. The panel was more than able to put any criticisms of the statement before the jury.

Prior to the introduction of section 259, hearsay evidence was excluded except where it consisted of statements of persons who could no longer give evidence, namely the deceased and the permanently insane. The unavailability of a witness for other reasons was insufficient to merit the admission of a statement as proof of the facts in a libel. This was an example of the so called "best evidence" rule which prohibits, for practical reasons of court time and, perhaps to a lesser extent, reliability, oral testimony of events from persons who have not seen, heard or otherwise experienced the events libelled. There is some limited twentieth century authority for the proposition that, if a statement of a deceased person has been made in circumstances that give rise to a reasonable suspicion that the statement is not true or is a biased version of the truth, then the statement is not simply to be given little or no weight but is positively inadmissible. The Outer House and Sheriff Court cases in point are based upon the remarks of Lord Watson and others in the celebrated Lauderdale Peerage Case (1885) 10 App Cas 692. That was a very special case which had not been through the Scottish courts at all. The judges in the committee of the House of Lords did refer to a decision of a majority of the High Court on the admissibility of private jottings of a murder victim in another famous case (HM Advocate v Madeline Smith (1857) 2 Irv 653) and to certain other decisions concerning precognitions. They certainly expressed their views on the certificate and affidavit in the peerage dispute in terms of admissibility. But despite this, the process has more of the hallmarks of a decision on whether any weight can be attached to a document rather than one of its competence as evidence. Their Lordships were aware of what the evidence was before making their decision, which was, incidentally, to admit the documents.

I am unaware of any decision of the High Court in recent times where the Court has excluded what is otherwise an admissible statement (and not a precognition) of a deceased person on the basis of the circumstances in which it was made. Such circumstances and their effect on the reliability of the statement would normally have been something for a jury to assess in determining the weight, if any, to be attached to the statement. Indeed, until Nulty (supra), I had not understood that the Court perceived that it had some form of discretion on whether or not to allow the hearsay of deceased persons, albeit that such evidence might be excluded on grounds other than hearsay. Be that as it may, it has been held that the codified hearsay provisions under section 259 do not permit the Court any discretion in relation to the admissibility of such hearsay as is allowed. That section extends the categories of admissible hearsay to a wider class of persons than the dead or insane. If, therefore, a statement emanates from a person in one of the specified classes, then evidence of the content of the statement is competent and admissible as proof of the facts in a libel on that basis. However, any such statement can still be excluded as inadmissible upon some other ground, such as would have rendered part of the oral evidence of its maker inadmissible had he been giving evidence in court (section 259(1)(b)). Thus, for example, if the statement itself contains hearsay, irrelevant material or reference to previous convictions of the panel, then that material can still be excluded on those grounds. No doubt in extreme cases a statement might even be excluded in whole or in part on the common law ground that its admission would render the trial proceedings generally unfair. The application of article 6 principles as an umbrella over section 259 has re-inforced the court's power to exclude a statement on the general basis of fairness of trial.

It must be doubtful whether the admission of a statement of a person since deceased can ever be said to fall foul of the specific, albeit not absolute, terms of article 6(3)(d), which insist on a party being able to examine witnesses against him. A deceased person cannot be a witness, although a policeman or other person speaking to his statement can. I am not aware of any European human rights case in which it has been held that the introduction of the statement of a deceased person as evidence contravenes this part of the article. Indeed, I am not aware that such introduction has per se been regarded as a contravention of the article generally. Quite the contrary. The cases in Europe, in which it has been held that a trial has been unfair, are largely ones in which the court has relied heavily on statements given by persons during an investigation where these persons are still alive at the time of the trial but not examined as witnesses. It is wholly understandable why that type of situation should be regarded as unfair given the need for equality of arms. It is entirely different when the statement is made from a person who cannot be called as a witness, although in certain circumstances a prior statement from such a person might still be excluded as unfair for some specific reason (e.g. Nulty v HM Advocate (supra)).

The method by which a court is to assess in advance whether the admission of a statement will lead to unfairness is perhaps not easy to describe. It cannot be a discretionary decision but rather a determination of potential unfairness or otherwise. Of course general propositions, to the effect that a statement has to be considered in the context of the whole evidence or that there are or may be several safeguards to protect against unfairness, are of little practical assistance at first instance level. There are obvious problems for both prosecution and defence when a potential witness dies and his oral testimony is thereby lost. A statement is not usually on oath or tested by cross-examination. A jury cannot examine the demeanour of a deceased person as it can with a witness. But these general considerations cannot, of themselves, be sufficient to exclude consideration of a statement's contents on the grounds of unfairness.

As with many police statements, there are difficulties within it and surrounding it. A statement of this type is usually taken with a view to furthering the investigation of a crime. It is not specifically designed to be used in court later. It is a prose narrative of question and answer. What the person interviewed means to say can be lost in translating his utterances from oral to written speech. The particular statement here was not signed by the deceased. Some of what is said in the statement might be said to be ambiguous or even contradictory, although these difficulties might, in part, be explained as transcription errors or otherwise by the police officers noting what was said. For example, at one point (at least in the typed form Production 69) the statement refers to the deceased wearing a tartan shirt but later to her wearing a tartan skirt. There was also some criticism of the statement being in the nature of a precognition in that it was being noted by one side of the case, namely the police. However, given the time when the statement was taken, well before the significance of the DNA later found on the pants became known and indeed well before any suspicion crystallised on the panel, that criticism cannot carry much weight.

The statement of Mr Fraser contains important information - which may or may not be true or accurate in whole or in part - concerning the deceased's movements prior to her death, in particular before she started her shift as a prostitute on the night she died. It also contains reference to her dress habits by the person who was living with her and thus, perhaps, best placed to know these. These habits may be significant, albeit that they cannot be "decisive" of the case, which depends upon proof of other matters, notably the DNA findings. In looking at the question of a fair trial, the fact that a statement contains evidence which can be used as proof of a libel against the panel is, of itself, perhaps of little moment. Such evidence does not prejudice a fair trial albeit that it may constitute part of the proof. It is important that the jury hear this evidence and, in particular, what Mr Fraser's position ostensibly was, especially given his current position in the trial as an incriminee. Its introduction as an element of proof will not, on the present information, render the proceedings unfair. I will therefore admit the statement as evidence and repel the objection to its admissibility.