HARPAL SINGH v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice General Lord Osborne Lord Macfadyen | Appeal No: XC140/02 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL by HARPAL SINGH Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Ms. Ogg, Solicitor Advocate;
Respondent: Mackay, A.D.; Crown Agent
25 August 2004
The background
[1]The appellant appeals against his conviction for perjury in Glasgow Sheriff Court on 3 May 2002 and against a sentence of 30 months imprisonment imposed in respect of that conviction on 17 May 2002.
[2]In February and March 1999, the appellant was the owner of the basement flat (left) at 6 Melrose Street, Glasgow. Shortly before 28 February 1999 the appellant agreed to let this flat to three individuals, James Fraser, a 20 year old student, Daniel Heron, also 20 years old, and Christopher Lewis, aged 21 years. These young men took possession of the flat on or about 28 February 1999. On 4 March 1999 a fire occurred in the premises, caused by the careless use or disposal of smoking material. On that date James Fraser and Daniel Heron both died within the flat. The cause of death of James Fraser was the inhalation of smoke and fire gases; the cause of death of Daniel Heron was burns and the inhalation of toxic fumes, particularly carbon monoxide.
[3]Following these tragic events, a Fatal Accident Inquiry was held into the deaths of James Fraser and Daniel Heron on 18-20 September and 4 October 2000, in Glasgow Sheriff Court. Among the issues canvassed at the Fatal Accident Inquiry were the questions of whether there were functioning smoke detectors in the flat at the material time and, if so, in what positions they were situated. On 20 September 2000, the appellant was led as a witness at the inquiry by the Crown. On that occasion, he gave evidence about the matter of smoke detectors and other matters related to the features and condition of the flat in question. He testified that there had been one smoke detector in the hallway of the flat, fixed to the ceiling, and another on top of the freezer in the kitchen. He gave evidence concerning the condition of those detectors. In particular, he stated that the smoke detector in the hallway was in working condition on 28 February 1999, when the tenancy was taken up, and in March 1999, at the time of the fire.
[4]Subsequently an indictment was served on the appellant containing a single charge in the following terms:
"on 20 September 2000 at the Sheriff Court of Glasgow and Strathkelvin, Carlton Place, Glasgow having been sworn as a witness in the Fatal Accident Inquiry into the death of James Fraser and Daniel Heron then proceeding at said Sheriff Court you did depone that on 28 February 1999 there was a smoke alarm in working order in the hallway area of the basement flat (left) at 6 Melrose Street, Glasgow the truth being that there was no such alarm in said hallway at said address on said date."
The appellant pled not guilty to this charge and went to trial. At the trial the defence advanced on behalf of the appellant included the contention that his evidence at the Fatal Accident Inquiry relating to the smoke detector in the hallway was true. Objection was not taken generally at the trial to the admission of the evidence given by the appellant at the Fatal Accident Inquiry. On 3 May 2002 the appellant was convicted, as libelled, by the unanimous verdict of the jury. Subsequently a sentence of 30 months imprisonment was imposed.
[5]The appellant now appeals against his conviction and sentence. Three grounds of appeal were stated in the original note of appeal in the following terms:
"1.That the evidence given by the appellant at said FAI was incompetent. The appellant, who was not legally represented, received no warning at the outset of said FAI or at any other time that he could decline to answer on the ground that said answer could be self-incriminatory. Such a warning was required in terms of section 5(2) of the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976. In relation to the appellant's evidence in respect of said smoke alarms no warning was given to the appellant at any stage that he could decline to answer the questions by the Crown and sheriff. The evidence given by the appellant at said FAI was incriminatory and resulted in subsequent proceedings against the appellant. The appellant was thereby prejudiced by the failure to administer said warning. The failure to administer said warning rendered the appellant's evidence at said FAI incompetent. Accordingly this evidence, led by the Crown at the subsequent trial diet, could not in law found a charge of perjury. The learned sheriff erred in law in not dismissing said charge. Accordingly a miscarriage of justice has occurred.
2.That the learned sheriff erred in repelling an objection to the leading of the whole of a transcript of the proceedings at the FAI, production 18. Said transcript included reference to a smoke detector in the kitchen, its position, whether it was dismantled and whether it included a battery and the appellant's evidence in respect thereof. The evidence in respect of the kitchen smoke detector was irrelevant to the issue at the trial namely whether the statement made by the appellant at the FAI was false in respect of the smoke alarm in the hall. Said evidence was also prejudicial to the appellant. In repelling said objection the learned sheriff placed the character of the appellant in jeopardy. The learned sheriff further directed the jury at page 23 lines 16 to 22 that they could take account of said evidence in determining said charge. Said direction was erroneous, said evidence being irrelevant to said determination.
3.That a custodial sentence was inappropriate and excessive having regard to:
(a)The nature of the offence. The administration of justice was not
adversely effected (sic) by the commission of said offence. The sheriff at said FAI dismissed the appellant's evidence in his determination. The offence did not result in the collapse of any proceedings nor were the ends of justice defeated.
(b)The personal circumstances of the appellant. The appellant was a
businessman with a number of properties throughout Glasgow. He had a stable family background. The appellant had only one previous conviction.
(c)The terms of the social enquiry report. This highlighted the appellant's
empathy for the parents of the victims and described the appellant as being a low risk of further offending. The recommendation in the report was for a non-custodial disposal. Esto a custodial disposal was appropriate the period selected was excessive."
Subsequently a supplementary ground of appeal was tabled and received by the court. It was in the following terms:
"1.That the appellant has been denied a fair trial and there has been a miscarriage of justice following upon the failure of counsel for the appellant to represent him adequately at said trial. The appellant, who was not legally represented at the FAI, received no warning at the outset of said FAI or at any other time that he could decline to answer on the ground that said answer could be self-incriminatory in respect of any crime or offence. Such a warning was necessary prior to the appellant answering any questions concerning his premises and such a warning was required in terms of section 5(2) of the Fatal Accidents and Sudden Death Inquiries (Scotland) Act 1976. In relation to the appellant's evidence in respect of said smoke alarms no warning was given to the appellant at any stage that he could decline to answer the questions by the Crown and sheriff. The evidence given by the appellant at said FAI was incriminatory and resulted in subsequent proceedings against the appellant. The appellant was thereby prejudiced by the failure to administer said warning. The failure to administer said warning rendered the appellant's evidence at said FAI incompetent. The appellant's evidence at the FAI, led by the Crown at the subsequent trial, was inadmissible. No timeous objection was taken by the appellant's counsel to the admissibility of this evidence. Had a timeous objection been taken said evidence would have been excluded. The appellant's defence was accordingly not properly presented to the court."
[6]The sheriff who conducted the appellant's trial, in his Report to this court, commented upon the original grounds of appeal. He said this:
" ... It appears that the point behind this first ground of appeal is that Sheriff McFarlane failed to warn the appellant in terms of section 5(2) of the Fatal Accidents and Sudden Death Inquiries (Scotland) Act 1976 and that, in consequence of that, the appellant gave self-incriminatory evidence at the Fatal Accident Inquiry without the opportunity being given to him of declining to answer questions. It is said that the evidence given by him at the Fatal Accident Inquiry was thus incompetent in consequence of Sheriff McFarlane's failure to administer a warning against self-incrimination. This incompetence is translated, it is said, to the criminal proceedings and the ground of appeal concludes by claiming that I erred in law in not dismissing the charge of perjury and thus permitted the occurrence of a miscarriage of justice.
The principal point which I have to make most strongly in the particular circumstances here is that this ground of appeal relates to a matter which was not brought before me at any stage of this case, either as a preliminary plea or as an objection to the leading of the evidence of what was said at the Fatal Accident Inquiry. The appellant had the benefit of senior counsel, objections were frequent and repeated and nowhere within my notes or the sheriff clerk's history of proceedings can I find any objection which can be regarded as being remotely related to the matter referred to in this first ground of appeal. Indeed, when Sheriff McFarlane's evidence was about to commence, there was an objection (which I deal with below) in relation to the content of the transcript of evidence but that objection was on a completely different basis and made no reference whatsoever to any failure to warn against self-incrimination. ...
The final point, which again I make only briefly since it was not an issue at the trial, is that whatever the position is in relation to the Fatal Accident Inquiry I was not asked to dismiss the charge at any time and if a miscarriage of justice has occurred, it has not occurred because of any failure to dismiss the charge of perjury. I assume therefore, that in order for this matter to proceed the appellant will at his appeal hearing require to argue that senior counsel failed in his responsibilities in that connection and that a miscarriage thus occurred. ...
The second ground of appeal, and the only one in relation to conviction upon which I can properly report, relates to an objection which was taken during the evidence of Sheriff Charles McFarlane. Sheriff McFarlane was sworn and was asked to confirm that he had conducted the Fatal Accident Inquiry in September 1999 (sic). He was then shown inter alia production No. 18 at this trial, which was an excerpt from the full certified transcript which was itself a production (production No. 2). He was shown label No. 1, which was the tape recording of the section of the evidence at the Fatal Accident Inquiry which included the evidence of the appellant. The full transcript, production No. 2, was not before me, although it was a production, and it was there only to demonstrate that the excerpt, production No. 18, was complete and accurate. The objection was taken by Mr. Gray at that point and was an objection which was clearly directed to the leading of the evidence contained in the transcript, production No. 18, which contained part of the evidence of the appellant at the FAI.
The objection was to evidence led and answers given in relation to a smoke detector which was found in the kitchen of the flat where the boys died. It was not an objection to the introduction of the tape itself or of the transcript of it: it was quite simply an objection to certain of the questions and answers contained therein. I am quite clear about that position, and underline it purely because of the existence of the first ground of appeal in this case and I confirm that in the course of the instant argument there was no mention whatsoever about a warning against self-incrimination. This was a totally separate issue which I dealt with after full argument from Mr. Gray and the procurator fiscal depute.
The context of this objection is that the Fatal Accident Inquiry into the deaths of the two young men was hearing evidence about a variety of arguably unsatisfactory features pertaining to the condition of the flat in which they died, and I had already been made aware of this during earlier objections, and had already allowed objections by Mr. Gray in relation to evidence which might tend to influence the jury improperly against the appellant in areas which were not directly connected with the perjury. Among those were matters which tended to show that other aspects of the flat's maintenance and condition were less than satisfactory not only in relation to fire safety but also generally. When I allowed those objections I made it perfectly clear in dealing with them that I would only allow the jury to hear evidence which was directly relevant to the charge: the charge being one of perjury in relation to the existence of a smoke detector in the hallway of the flat.
When the appellant gave evidence before Sheriff McFarlane on the matter of smoke detectors he dealt in that connection with two smoke detectors, claiming clearly that both of them were in position and were working. One of those smoke detectors he said, was in the hall and the other he said, was in the kitchen and there was an argument that he had perhaps changed his position during the course of his evidence at the Fatal Accident Inquiry about the condition of the smoke detector in the kitchen. Mr. Gray argued that I should not allow that part of the evidence relating to the condition of the smoke detector in the kitchen to be heard by the jury, since this may bring the appellant's character into issue and may improperly influence the jury against him. In the ensuing debate Mr. Gray focused his position on his objection more clearly to say that he had no objection to questions and answers about the existence of the kitchen smoke detector and that his objection dealt only with evidence about whether or not it was working, and any perceived change in the appellant's position about that during the Fatal Accident Inquiry evidence in that connection. He accepted that by this stage the jury already knew that a dismantled smoke alarm had been found in the kitchen of the flat, had photographs of it, and were aware that there may be an issue of whether or not that alarm had been dismantled by the appellant or by the tenants.
The Crown position was that they sought the whole chapter to be admitted, that the chapter could not be edited and still remain in context or even comprehensible to the jury. The Crown had libelled perjury only in relation to the hallway smoke alarm, having regard to the proper interpretation of the law where contradictory evidence is given on oath had not libelled perjury in relation to the kitchen one, and did not suggest any contrary position. Nonetheless it was important for the jury to have the whole picture of what was said by the appellant in relation to both of the smoke detectors in the house rather than an edited version which would make the whole area of what he said in evidence at the FAI unclear. It was argued that all of that evidence was highly relevant when dealing with a charge of perjury, since both the content and the context of what the appellant said about one of the smoke detectors was important for the jury to consider when dealing with what he said about the other smoke detector within the same premises. It was argued that this was on the basis that the Crown had to prove deliberate falsehood and the jury should be aware of the full and proper context of his FAI evidence concerning smoke alarms in the flat when considering whether perjury has been committed in his evidence in relation to the hallway smoke detector.
I repelled the submission made by Mr. Gray that the transcript should in some way be edited to remove questions concerning the kitchen smoke alarm and any change that may exist in his position about its condition. I took the view that the evidence was highly relevant in the context of a charge of perjury about false statements in relation to another smoke alarm claimed by him to have been in the house at the same time. It seemed to me that the evidence in relation to such a closely related issue was highly relevant when the issue of veracity of his evidence was being looked at. Additionally, I consider that it would have been virtually impossible physically to separate what he said about one smoke detector and what he said about the other one, and no suggestion was ever made to me about how that allegedly irrelevant evidence could in fact be separated from the evidence, which was agreed to be relevant and was not subject to objection. Production No. 18 could not have been properly understood and the position of the appellant himself may also have been prejudiced by such an exercise. ...
The specific complaint contained in the ground of appeal is that by allowing that evidence to be admitted, the character of the appellant was placed in jeopardy. I cannot see how that can be argued in the context of this trial. No reference was made at any stage to the character of the appellant and great care was taken to ensure that no reference was made at any stage to the fact that he let other properties, that he was a professional landlord, or anything about him personally. Equal care was taken to ensure that the jury were not aware of publicity which this case had received, and as indicated above to remove from them all photographs taken of the premises which may tend to give the jury a view about its overall condition. I cannot see how the question and answers concerning the kitchen fire alarm could introduce to the jury aspects of the character of the appellant, particularly since when he subsequently gave evidence in this trial he said exactly the same to the jury as he had said to Sheriff McFarlane. His position was that the evidence given by him to the Fatal Accident Inquiry was truthful and he repeated that evidence at this trial. The issue was one of credibility and 'character' did not enter into the equation at any stage.
The ground of appeal goes on to say that at page 23 of the charge I gave the jury a direction that they could take account of the evidence of the transcript and in so saying, suggests that I in some way placed the character of the appellant before them. It is self-evident that this is not what that portion of the charge deals with and it is important to note that there is a complete sentence which starts at line 14 and ends at line 23 and the whole of that sentence has to be read, not simply the part of it set out in the ground of appeal. It is perfectly clear that that sentence tells the jury that they must remember that the allegation of perjury relates only to the hall smoke detector, but that the evidence in the case about the other smoke detector may be relevant in that connection. The evidence did not only come from the transcript: it came from a number of other sources, including the fire officers, the young man who survived the fire, the mother of one of the deceased boys, the appellant himself (in his evidence at the trial) and his defence witness Mr. Howat. Accordingly, the whole body of evidence concerning the existence of smoke detectors was very full covered, entirely linked to the issue whether there was a smoke detector in existence in the hallway and dealt with, not only as an aspect of the Crown case but also as an important aspect of the defence case."
Submissions
[7]Ms. Ogg, on behalf of the appellant, began by explaining the background to the appeal. She drew our attention to the provisions of section 5(2) of the Fatal Accidents and Sudden Death Inquiries (Scotland) Act 1976. It was pointed out that the appellant had not been the first witness led by the Crown in the Inquiry; standing the evidence of witnesses who had given evidence prior to the appellant, it was submitted that there were prima facie criminal charges that could have been brought against the appellant, when he was questioned. Accordingly he should have received a warning under section 5(2) of the Act, in order to protect him in relation to some offence already committed. When pressed as to what offence or offences were being relied upon, Ms. Ogg referred to the possibility of a charge being brought against the appellant related to the provisions of the Housing (Scotland) Act 1987, or of culpable and reckless conduct, or even culpable homicide. She maintained that, if it were established that no functional smoke detector was present in the flat at the material time, there could be a prosecution against the appellant. Ms. Ogg did not explain in what way the provisions of the Housing (Scotland) Act 1987 could provide a basis for a prosecution against the appellant in the circumstances. The contention for the appellant was that he should have been warned that he did not require to answer any questions relating to the condition of the premises. However, Ms. Ogg did agree with the suggestion made by the court that section 5(2) of the 1976 Act did not provide for a blanket privilege, but related to particular questions. She did not agree that, if the course desiderated by her had been followed, the carrying out by the sheriff of his duty to investigate the death under consideration would have been frustrated. Ms. Ogg agreed that the reference to "subsequent proceedings" in ground of appeal 1 was in fact a reference to the subsequent perjury proceedings. At this point in her argument, Ms. Ogg referred to Graham v. H.M. Advocate 1969 S.L.T. 116; she contended that that case did not assist in the context of the present appeal. Her contention was essentially that the failure of the sheriff to warn the appellant as a witness at the Inquiry rendered the whole of the appellant's evidence in those proceedings incompetent for all purposes. It followed that the evidence of what the appellant had said at the Inquiry was inadmissible in the perjury proceedings. Ms. Ogg agreed that no objection had been taken generally to the admission of that evidence in those proceedings; that was the basis of an Anderson ground of appeal related to the conduct of counsel at the perjury trial.
[8]Ms. Ogg went on to narrate various features of the premises in which the fire occurred, in order to show that the means of escape from it had, to some extent, been impeded. These factors, she contended created the possibility of a prosecution of the appellant for some common law offence. In this connection she referred to paragraphs 32 and 33 of the sheriff's narrative of evidence at the Inquiry. Ms. Ogg went on to refer to Carmichael on Fatal Accident and Sudden Death Inquiries, at page 93. However, she agreed that when a witness at such an inquiry declined to answer a particular question it was then necessary for the sheriff to decide whether that posture was maintainable, by reference to whether the answer to the question would tend to show that the witness was guilty of some particular offence. The sheriff would have been under that duty, even though a general warning might have been given at the commencement of the evidence of the witness. Ms. Ogg agreed that the particular questioning at issue in this case was narrated between pages 288 and 292 of the transcript of the evidence in the Inquiry. Had the appellant told the truth, he would have said that there had been no smoke detector in the hallway. While a true answer to those questions might, of itself, not have been self-incriminatory, in association with other evidence given by the appellant, it might have formed the basis of a prosecution against him.
[9]Ms. Ogg went on to contend that the perjury proceedings themselves had been rendered incompetent by what had happened at the Inquiry. She agreed that objection had not been taken to the competence of the indictment for perjury. That constituted a failing on the part of the appellant's legal advisors. On further discussion of this matter, under reference to H.M. Advocate v. Smith 1934 J.C. 66, Ms. Ogg accepted that the more correct characterisation might be that the indictment for perjury was irrelevant and should have been challenged as such. However, it was accepted that the existing grounds of appeal did not focus that matter. Ms. Ogg accepted that, on the basis of such a contention, it would be necessary to consider the effect of the terms of section 118(8) of the Criminal Procedure (Scotland) Act 1995 in relation to this case, since, of course, the appellant had had the benefit of legal representation at the perjury trial.
[10]At this point in the submissions, we decided to invite the advocate depute to respond to the appellant's submissions in relation to ground of appeal 1. He contended that the submissions of the appellant were misconceived. What had occurred at the Inquiry had not rendered the evidence given by the appellant incompetent. It followed that there had been no possible basis for objection to its admission at the perjury trial. In particular, in the context of the Fatal Accident Inquiry, there had been no need to warn the appellant as a witness. The submission to a contrary effect proceeded on the basis of a misunderstanding of the effect of section 5(2) of the 1976 Act. The purpose of that provision was to protect persons against the consequences of self-incrimination relating to some particular offence which had, by the time of such an Inquiry, already been committed. Its purpose had no bearing upon subsequent proceedings for perjury arising out of what might have been said at such an Inquiry. Even on the basis that no warning was given to the appellant, that circumstance did not render his evidence incompetent at the Inquiry. In particular, in a situation where a warning should have been given to a witness regarding a particular question, it was submitted that the answer to that question would be inadmissible, as a matter of fairness, in relation to a subsequent prosecution for a crime already committed at the time the answer was given, but would not be inadmissible, if the answer was knowingly false in subsequent perjury proceedings. Looking at the matter in another way, in the particular circumstances of this case, the appellant's position at the perjury trial had been that his answers given at the Inquiry were true; he did not say that he had given those answers to avoid some other prosecution. The primary position of the Crown was that it had not been established that any warning should have been given at the outset of the appellant's evidence at the Inquiry nor should any warning have been given when questions were asked relating to the smoke detectors, since there was no apprehension of the commission of an offence in relation to those matters. No requirement had been made known to the appellant in relation to smoke detectors. The installation of such detectors had not been a compulsory responsibility of landlords in the situation of the appellant. There was a distinction between a blanket warning given to a witness and the issue of whether a witness was in fact entitled to decline to answer a particular question. Section 5(2) of the 1976 Act did not require the giving of blanket warnings in advance to witnesses. It dealt with the issue of whether a witness could be compelled to answer a particular question tending to show that he was guilty of some crime or offence. A general warning might be good practice, but was not, in fact, required by law. In any event, in a situation where a warning had not been given, which ought to have been, the effect would be to give to an individual a basis for objection to the admission of evidence in subsequent proceedings for the commission of an offence in respect of which the accused might have incriminated himself. A failure to give a warning did not render the evidence concerned incompetent evidence at a Fatal Accident Inquiry. That being so, the whole basis of the appellant's contention in this case was unsound. As regards the effect of section 118 of the 1995 Act, the position was unclear; if a fundamental nullity of some kind existed, it might not afford an answer to an appeal by an individual who had been legally represented in the proceedings concerned. In this connection reference was made to Jones v. H.M. Advocate 2004 S.C.C.R. 361. However, there was no issue of fundamental nullity here. The Anderson ground of appeal was misconceived, since there had been no basis for the kind of objection upon which it proceeded at the trial of the appellant.
[11]At this point in the submissions, Ms. Ogg went on to address the court on ground of appeal 2. The criticism embodied in this ground was that the sheriff at the appellant's trial had wrongfully repelled a defence objection and had misdirected the jury. At the appellant's trial use had been made of answers given by him at the Inquiry relating to, not only the smoke detector said to have been in the hallway, but also the smoke detector in the kitchen of the flat. The evidence relating to these devices was said to be intermingled. It was submitted that the sheriff ought to have excluded the use of the evidence given at the Inquiry relating to the smoke detector in the kitchen, since that evidence was not the subject of the perjury prosecution and was accordingly irrelevant. The consequences of the admission of that evidence had been exacerbated by what the sheriff had said in his charge to the jury between pages 23 and 28 thereof.
[12]Ms. Ogg went on to make submissions concerning the appellant's appeal against his sentence of 30 months imprisonment. It was evident from the sheriff's Report that he had considered that a custodial sentence alone was appropriate in the circumstances of the case. The sheriff dealt with the issue of sentence between pages 8 and 10 of his report. Much of what he said there concerning the significance of judicial proceedings at Fatal Accident Inquiries was unexceptionable. Where the appellant took issue with the sheriff's approach to sentence could be seen at page 10 of the Report, where the sheriff referred to the significance of the appellant's evidence at the Inquiry. The position was that the sheriff at the Fatal Accident Inquiry had placed little weight upon the evidence of the appellant. Accordingly, the perjury of the appellant had had little or no influence on the outcome of the Inquiry.
[13]Reference was also made to the fact that the appellant had a single previous conviction for assault; there was a low risk of his re-offending. His personal circumstances were that imprisonment would cause damage to his family. He had already served the equivalent of a 6 month sentence prior to being released pending this appeal. During the time when he had been at liberty since his conviction, he had been of good behaviour. He was selling the several properties which he had let in the past, on account of the difficulties which he now faced in letting them. He had certain health difficulties, including high blood pressure and diabetes. His wife was on medication for depression. The gravity of his offence could properly be reflected by a non-custodial sentence. If that submission was not accepted, it was contended that the duration of the custodial sentence was excessive.
The decision
[14]In our opinion, it is not in doubt that an indictment for perjury, said to have been committed while the accused was giving evidence which, although not objected to, was incompetent and should not therefore have been admitted, would be an irrelevant indictment. In that connection we respectfully agree with what was said by Lord Justice Clerk Aitchison, sitting alone, in H.M. Advocate v. Smith at page 69. There he said this:
"If, accordingly, the evidence was incompetent, the only remaining question is whether perjury can attach to it. Now, that matter appears to me to be concluded beyond all doubt against the Crown upon authority which I am bound to follow. The most authoritative statement of the law is the statement contained in Hume in his Commentaries on the Criminal Law. Baron Hume says this: 'The oath, in that part of it which is challenged as false, must be pertinent to the point at issue: it must relate to some of those substantial facts, which may have an influence in the decision of the interest that is at stake in the proceedings where the oath is made'. It is not possible to get a more authoritative statement of the law than that. Exactly the same doctrine is laid down by Burnett in his Criminal Law, by Alison, and by Lord Justice Clerk Macdonald, than whom there is no greater authority. I will not occupy time in reading what they say, because what they say is simply what Hume said in the passage I have read.
I accordingly in this case, without difficulty reach the conclusion that the second objection to the relevancy of the indictment is well-founded and must be sustained. I desire to add this observation. The rule that perjury cannot attach to incompetent evidence is not a technical rule; it is a rule of substance. The foundation of the rule is that incompetent evidence is so prejudicial to the administration of justice that the courts will not assign to it the character of perjury and will treat it as if it had not been given. That rule has been laid down by lawyers of great distinction with a proper appreciation of what justice requires, and in my view it is a rule that should be rigidly adhered to."
[15]In this appeal, the appellant's submissions were focused upon section 5(2) of the 1976 Act, which provides: "No witness at the Inquiry shall be compellable to answer any question tending to show that he is guilty of any crime or offence." In our opinion, it is important to observe that this provision deals with the compellability of a witness at a Fatal Accident Inquiry to answer a question tending to show that he is guilty of a crime or offence, which ex hypothesi will already have been committed by the time that the witness gives evidence. In the circumstances of this case, at the Inquiry in question, this provision was not invoked in any way. No so-called blanket warning was given to the appellant at the commencement of his evidence and no indication was given to him at any particular stage in his evidence that he was not compelled to answer any particular question. These circumstances were the basis of the appellant's submissions before us.
[16]We have reached the conclusion that, in the circumstances here, no reason has been demonstrated as to why, at any particular stage of the appellant's evidence, he ought to have been informed that his answer to a certain particular question was not compellable. While it might be good practice in particular circumstances for a so-called blanket warning to be given to a witness at a Fatal Accident Inquiry concerning self-incrimination, we consider that that would only be appropriate where it was evident from the outset of a witness's evidence that he would be asked questions, the answers to which would tend to show that he was guilty of some particular crime or offence. Nothing before us indicates that that was the situation in the Inquiry at which the appellant gave evidence. However, leaving aside the matter of a blanket warning of that kind, we have not been persuaded that it was the duty of the sheriff who conducted the Fatal Accident Inquiry here to have informed the appellant at any particular stage in his evidence that he was not compelled to answer any particular question. Before there could be any such duty in relation to a specific question, the sheriff would require to be satisfied that the answer to the question would indeed tend to show that the witness was guilty of a crime or offence. In our opinion, that situation never came into being in the Inquiry here. It has not been suggested that the non-existence of functional smoke detectors in a flat let in the circumstances in which the appellant's flat here was let constituted any offence. Although pressed, Ms. Ogg was unable to identify any such offence. The highest point to which her submission came was that answers showing the non-existence of functioning smoke detectors might, in association with other circumstances, not specified, furnish the basis for a prosecution at common law on a charge of culpable and reckless conduct, or even culpable homicide. We are quite unable to accept that any such remote possibility would provide a proper basis on which the sheriff conducting the Inquiry would come under a duty to advise the appellant that he was not compelled to answer questions concerning the smoke detectors. The consequence of our conclusion must, of course, be that the whole basis of the appellant's appeal fails, since there was, in our view, no irregularity or impropriety of any kind in the leading of the evidence of the appellant at the Inquiry, which would enable it to be said that any part of his evidence was incompetent. Thus the only reason advanced as to why that evidence could not form the basis for a prosecution for perjury disappears.
[17]Even if the conclusion just stated were wrong, and even if, at the stage in the appellant's evidence where he answered questions concerning the smoke detectors, he should have been informed that he was not compelled to answer such questions, which was not done, we are of the view that the result of any such possible failure would not be to render the evidence given in answer to those questions incompetent in the Fatal Accident Inquiry. As we understand the purpose of section 5(2) of the 1976 Act, it is to obviate the subjection of witnesses in Fatal Accident Inquiries to subsequent criminal proceedings based, even in part, upon answers to questions in the preceding Fatal Accident Inquiry which, for the purposes of a subsequent prosecution would have been unfairly obtained. Putting the matter in another way, if, in a prosecution following upon a Fatal Accident Inquiry, part of the prosecution case took the form of answers of a self-incriminatory nature, given by a witness at the Inquiry, who subsequently became an accused, it would be open to the representatives of the accused to object to the admission of such answers upon the basis that they had been extracted from the witness under a compulsion which should not have been applied. In particular, we do not see the provisions of section 5(2) of the 1976 Act as having the effect of rendering any answers, given under a compulsion which should not have been applied, incompetent evidence in the Inquiry concerned. On that basis also, the evidence given by the appellant in relation to smoke alarms in the Inquiry here, not being incompetent evidence for the purposes of that Inquiry, is capable of forming the basis of a prosecution for perjury, such as happened here.
[18]The conclusions which we have reached necessarily mean that the appellant's supplementary ground of appeal, an Anderson ground, fails. In our opinion, there was no proper basis upon which counsel for the appellant could have objected to the admission of the evidence relating to what had been said at the Fatal Accident Inquiry. Accordingly, the fact that he did not do so cannot amount to a miscarriage of justice in those proceedings. That was of course the approach taken, correctly in our view, by senior counsel who represented the appellant in the perjury trial, as appears from the letter written by him to the court, dated 13 January 2003. In these circumstances, we do not consider that it is necessary for us to examine what implications, if any, section 118(8) of the 1995 Act might have had upon the validity of the appellant's supplementary ground of appeal.
[19]Turning now to the matter raised in ground of appeal 2 of the original grounds of appeal, the sheriff's handling of the objection to the leading in evidence of the whole transcript of the proceedings at the Fatal Accident Inquiry and, in particular, to the leading of the evidence given by the appellant at that Inquiry relating to the smoke detector in the kitchen of the flat, and his subsequent directions to the jury relating to that evidence, we have reached the conclusion that it is without merit. In that connection, we consider that what the sheriff himself has said about that aspect of the trial in his Report to us is correct. It is evident from the transcript of evidence given by the appellant at the Inquiry that, in relation to the smoke detector in the kitchen, he said different and conflicting things. At page 288 of the transcript he asserted that that alarm and the alarm said to have existed in the hallway were working, yet at page 295 of the transcript he stated that he knew that the one in the kitchen "wasn't working anyway". In our opinion, these conflicting replies given at the Inquiry were crucial and relevant material for consideration in the perjury trial, in relation to the credibility of the appellant, since it is evident that his credibility was a fundamental issue at that trial. His defence included the contention that the answers which he had given concerning the smoke detector in the hallway at the Fatal Accident Inquiry were true. Thus we cannot accept the submission made by Ms. Ogg in relation to the evidence as to the detector in the kitchen that it was not relevant. In our view, evidence relating to the credibility of an accused person in a criminal trial is plainly relevant evidence in that trial, in so far as it is based upon conflicting prior statements made by the accused.
[20]Turning to the criticism made of the sheriff's directions to the jury in the trial at pages 23-28, in our view, those criticisms are without merit. In that part of his charge, the sheriff made it perfectly plain that the allegation of perjury with which the jury was concerned related only to the smoke detector in the hallway of the flat, as appears from page 23. At pages 28 and 29 of the charge the sheriff makes it plain that the evidence canvassed concerning the smoke detector in the kitchen and related matters was pertinent in relation to the credibility of the appellant. In our opinion no valid criticism can be made of these directions. Accordingly, we reject ground of appeal 2 of the original grounds of appeal.
[21]Turning now to the appeal against the sentence imposed by the sheriff, we have reached the conclusion that that sentence was not excessive. It appears to us that the sheriff took into account all of the relevant circumstances bearing on the sentence to be imposed and we consider that his decision falls within the range of disposals open to him in all the circumstances. Among the features which we consider are of importance in this connection are these. Fatal Accident Inquiries, in one of which the appellant has committed perjury, are of great public importance. Under our law they provide an opportunity for the court to investigate publicly and in a formal way the circumstances of a death. In order to make proper decisions in such Inquiries, sheriffs must have reliable information upon which to base them. Accordingly, it is of the greatest importance that witnesses called to give evidence at such Inquiries should provide reliable information. In this case, unfortunately, that did not happen. In addition to that particular consideration, perjury must always be seen as a serious crime, since it strikes at the fundamental basis of our system of justice and at the integrity and accuracy of the decisions reached in courts. It follows that when perjury is established, it must be dealt with seriously for the benefit of the courts and the public generally. Everyone should be made fully aware that, when an oath is taken in a court of law to tell the truth, that is what must be done.
[22]In the present case, as the sheriff observes, in this Fatal Accident Inquiry the appellant lied repeatedly. He was twice warned in the clearest of terms by the presiding sheriff about the consequences of lying. He was reminded of that by the procurator fiscal, before being asked further clear questions which gave him many opportunities to be truthful. Time and again, he repeated the lie that there was a smoke detector in the hallway of the flat knowing that evidence to be false. It was therefore a blatant, obvious and deliberate example of perjury, clearly designed to get the appellant out of a situation which he perceived as being one of difficulty for him. It may be that, in the context of the present case, the sheriff presiding at the Fatal Accident Inquiry felt that he was unable to rely upon what the appellant said in relation to crucial matters and that his determination was based upon other evidence. However, in our view that does not detract from the seriousness of the appellant's perjury in this case. In this situation and having regard to the appellant's personal circumstances, we have not been persuaded that the sentence imposed in this case was excessive. Accordingly, the appeal against sentence is refused.