Complainer: Keenan, Solicitor Advocate; Capital Defence Lawyers, Edinburgh

Respondent: Edwards, AD; Crown Agent

23 July 2013[Date of Issue]

Introduction

[1] The complainer in this Bill of Suspension is Andrew Cleary. His date of birth is 10 September 1979. He was found guilty after a trial extending over 4 days (6 June 2012, 10 December 2012, 28 January 2013 and 25 February 2013), of a charge, brought on a complaint, in the following terms:

"(02) on 30^th July 2011 at The Star Hotel, New Wynd, Montrose you ANDREW FRANCIS CLEARY did assault Kerry Friar, c/o Tayside Police and did repeatedly punch her on the head, push her to the floor, sit on her body and kick and stamp on her body to her injury".

On 25 March 2013 the sheriff imposed a community payback order as an alternative to imprisonment requiring the complainer to undertake 280 hours of unpaid work, or unpaid work and other activity as determined by the responsible officer, to be completed within a period of 6 months. The complainer now seeks to suspend his conviction and sentence.

Procedure and trial

[2] The averments in the Bill upon which the complainer relies are as follows:

"1. That on 28^th January 2013 the complainer attended at the Sheriff Court in Arbroath for the third day of evidence in connection with a summary trial against him at the instance of the respondent. It is understood that there had been two previous days of evidence heard on 6^th June 2012 and 10^th December 2012. During the course of proceedings the complainer gave evidence and was cross-examined under oath by the respondent. In response to questioning under oath by the respondent, the complainer indicated that he had not heard all of the evidence in his case as he had only one hearing aid and had been unable to hear and follow the evidence. He further indicated that he was self-taught lip reading and had followed about half of the evidence and had hoped that his wife would fill him in on the rest of the evidence.

2. Following upon the complainer's statement that he had not been able to hear and follow the evidence in the Trial against him, the complainer's agent made a motion that the Trial be deserted pro loco et tempore on the basis that the complainer had not been able to fully participate in the Trial or indeed to understand the evidence that had been heard by the Court. Following upon the hearing of submissions by both parties the Learned Sheriff adjourned the Trial Diet to 25^th February 2013 for medical evidence to be produced.

3. On 25^th February 2013 the Learned Sheriff had before him a letter from the complainer's doctor confirming the complainer's referral to the Audiometry Clinic, King's Cross Hospital, Dundee. The Learned Sheriff did not consider that the terms of this letter were sufficient to vouch the complainer's hearing impairment and further indicated that any evidence missed by the complainer could be imparted to him by other methods, in particular from his solicitor's notes. On this basis the Learned Sheriff refused to desert the summary complaint pro loco et tempore. For the remainder of the Trial, efforts were made to ensure that the complainer was able to see the lips of the person who was speaking so that he could attempt to follow the trial by way of lip reading.

4. The complainer was unable to fully follow the evidence in the Trial against him. He had not brought this to the attention of his agents on the basis that he had been advised of the anticipated evidence from the various witnesses and presumed that they would just repeat what he viewed to be "their lies". He was thereafter prepared to give evidence on his own behalf. The complainer did not appreciate that it was important that he have an opportunity to hear the evidence and respond to the evidence as it was given in Court."

[3] The sheriff's report provides amplification of what is averred in the Bill:

"On 28 January 2013 (day 3 of the trial) Mr Hall, solicitor for the complainer, was to open the case for the complainer. The complainer was to be the first witness to give evidence. Before the trial commenced, Mr Hall addressed the court and explained the complainer had 'a hearing issue' but that no loop was available. On the morning of 28 January 2013 there were intermittent roadworks taking place in the High Street, Arbroath outside the court building. Mr Hall asked the court to have regard to the noise from workmen working outside the court building. I noted the submission. I advised I would bear this in mind and if necessary I would ensure that all present in court spoke clearly and loudly so that the complainer would be able to hear the evidence. I informed the complainer directly that he was to let me know if there was any difficulty. At that point, Mr Hall provided no further detail in relation to any hearing issue. In particular, Mr Hall did not submit a hearing loop was required nor that the complainer was not able to hear the evidence. Mr Hall made no other submissions in relation to any hearing issue before the trial recommenced. The complainer made no mention of any difficulty at that time.

The complainer started his evidence at about 1050 on 28 January 2013. He completed evidence in chief at about 1115. Mr Hall asked the complainer a series of questions about the alleged incident on 30 July 2011. I have noted the complainer answered in excess of 50 questions put to him by Mr Hall. The complainer appeared to have no difficulty answering any of the questions put to him nor did he indicate to me that he had any difficulty in answering any of the questions put to him by Mr Hall. I had no difficulty in recording the answers by the complainer to the questions put to him except when I had to intervene on one occasion early in the complainer's evidence and ask the complainer to speak more slowly in order that I could note the evidence. The complainer subsequently did not speak so quickly and I had no further difficulty in hearing his answers to questions from Mr Hall and in noting his evidence.

There was no cross-examination by the solicitor for the co-accused.

The Procurator Fiscal started cross-examination at about 1115. The Procurator Fiscal continued to cross-examine the complainer until about 1135. The complainer appeared to have no difficulty answering any of the questions put to him by the Procurator Fiscal nor did he indicate to me that he had any difficulty in answering any of the questions put to him by the Procurator Fiscal.

At about 1135, in answer to a question from the Procurator Fiscal, the complainer stated that the police officer [at the police station] had noticed a bite mark on his arm while he was in a cell. The Procurator Fiscal put it to the complainer that when giving evidence the police officer said he could not remember saying anything about a bite and that he had not noted anything about a bite. In response the complainer stated:

'Yeah, basically, I did not hear what was said'.

There followed some discussion when the complainer indicated he had not heard all of the evidence to date in the trial."

[4] Having heard submissions and the motion made on behalf of the complainer to desert the diet on 28 January 2013, the sheriff adjourned the trial and ordered a report from the complainer's general medical practitioner. The case called again at an adjourned diet of trial on 25 February 2013 when the sheriff had available to him a letter from Dr Ireland of the Annat Bank Practice dated 5 February 2013. The sheriff heard further submissions, after which he refused to desert the trial pro loco et tempore. He expressed the view that it was surprising that the extent of any hearing impairment was not addressed well before the cross-examination of the complainer. He considered that the information which had been provided to the court was not satisfactory, and accordingly, he was not persuaded that there was sufficient evidence of a hearing impairment on the part of the complainer that there could not be a fair trial. He indicated that, when continuing his cross-examination of the complainer, the procurator fiscal depute could put to the complainer the detail of what other witnesses had said. The remainder of the evidence in the trial was thereafter led. Correcting what is averred in the Bill of Suspension, the sheriff in his report explains that he did not indicate that any evidence missed by the complainer could be imparted to him by other methods, in particular from his solicitor's notes. Moreover, it was not the case that during the remainder of the trial efforts were made to ensure that the complainer was able to see the lips of the person who was speaking so that he could attempt to follow the trial by way of lip reading. Rather, while that did happen on 28 January 2013 after the hearing difficulty was raised, the trial proceeded on 25 February 2013 without any special arrangements being requested by the complainer's agent and no special arrangements having been made for him. Neither the complainer's agent nor the procurator fiscal depute faced the complainer when asking questions of other witnesses nor when they were addressing the court in submissions.

Submissions of parties

[5] Before this court, Mr Keenan, on behalf of the complainer advanced two propositions:

(1) that the sheriff had been premature in proceeding to determine the motion to desert the diet on 25 February 2013; and

(2) that, in any event, the sheriff had been in error in refusing the motion to desert pro loco et tempore, given the information then before the court to the effect that the complainer suffered from impaired hearing.

Mr Keenan was candid in acknowledging that the information available to the sheriff in relation to the complainer's hearing impairment, both on 28 January and 25 February 2013, was inadequate and that what the sheriff had before him did not all point in the same direction. Mr Keenan accepted that it was only during cross examination of the complainer, as a result of an answer he had given to the procurator fiscal depute, that there appeared to be any difficulty whatsoever. The complainer's agent had been aware that the complainer was wearing a hearing aid and had asked him about it but had received an indication that the complainer was unconcerned about his ability to participate in the trial process. There had been no problem experienced by the agent in taking instructions or in precognosing the complainer. There had been no difficulty in taking his evidence-in-chief during which the agent asked some 50 questions of the complainer and received apparently satisfactory answers. The complainer had been advised as to what it was anticipated would be the Crown evidence. His response was that, in all material respects, it was untrue. However, Mr Keenan reminded the court that it would appear from what the complainer had said on 25 February 2013, that while entirely able to follow a conversation one-to-one and face-to-face, the complainer had more difficulty in hearing what was said by someone at a greater distance whose face he could not see. Mr Keenan accepted that the letter from the complainer's general practitioner, dated 5 February 2013, which had been produced in response to the sheriff's requirement for a report was not very informative. Even the much fuller report from the Audiology Department of Kings Cross Hospital, Dundee, dated 27 February 2013, which Mr Keenan had placed before this court, did not inform a non-medical reader of the degree of the complainer's hearing impairment and the extent to which he might or might not be able to follow evidence in court. Mr Keenan accepted that the particular difficulty which had come to light on 28 January 2013 related to a general question by the procurator fiscal depute asking the complainer to comment on the evidence from some of the Crown witnesses. As the sheriff had explained in his note, that difficulty could be, and was, addressed by the procurator fiscal depute putting what was said to have been that evidence to the complainer for his comment, it being open to his agent to correct any misrepresentation of what previously had been said. Nevertheless, submitted Mr Keenan, the sheriff should have further adjourned the trial in order to obtain better information about the extent of the complainer's hearing impairment, or, if he did not choose to follow that course, he should have deserted the trial diet.

[6] In what was a succinct submission, the advocate depute moved the court to refuse the bill. She reminded the court of what appeared in the sheriff's report. Despite what the complainer had said on 28 January 2013, it appeared that he had been able fully to participate in the trial. He had had the assistance of his co-accused (and partner) in supplementing what he himself had heard. He had the services of a solicitor who could advise him on the effect of the Crown evidence. He had given his own evidence in chief without apparent difficulty and, after the sheriff's decision not to desert the diet, had apparently successfully completed his evidence without any special measures being requested. The advocate depute did not dispute that for there to be a fair trial, an accused person must be able to participate fully. That must include being able to understand oral proceedings. An analogy to the present case was provided by cases relating to the right to effective interpretation. However what was key was having the opportunity to participate. Here the complainer had had that opportunity. It would appear that he had availed himself of it. No prejudice had been identified. The Bill should accordingly be refused.

Discussion

[7] It is very difficult to fault the sheriff for the way in which he responded to the apparent difficulty which presented itself, for the first time, on 28 January 2013, the third day of the trial. He appreciated that the complainer's assertion that he had not heard some of the evidence raised issues of fact and possibly law, that required to be resolved before the trial could proceed. He allowed an immediate adjournment to permit the complainer's agent to take instructions from his client. That having been done, the sheriff invited the complainer's agent to address him on the facts and he heard a submission from the agent that the case should be deserted. He then heard the procurator fiscal depute in reply. Having deliberated he decided that he was not prepared to make a decision on the information available to him. He made an order which is recorded in the sheriff's report as follows:

"The court orders report to be obtained from the GP for [the complainer] which report is to set out a chronology of [the complainer's] hearing impairment and to include what hearing devices have been recommended to and provided for [the complainer], and when, and the reasons for these recommendations."

The sheriff then adjourned the trial in order that a report from the general practitioner could be obtained. On 5 February 2013 the sheriff considered an admittedly not very informative letter from the general practitioner. He allowed the complainer's agent to supplement the information contained in the general practitioner's letter. He heard the complainer's agent and the agent for the complainer's co-accused renew their motions to desert (the motion on behalf of the co-accused being to desert simpliciter by reason of the imminent departure of a defence witness for Australia). The sheriff then concluded that he had not been persuaded that there was sufficient evidence of a hearing impairment on the part of the complainer that there could not be a fair trial. In making that decision he had regard to the fact that the only specific problem that had been identified could be addressed by the procurator fiscal depute putting particular passages of evidence upon which he relied to the complainer for his comment. We note that no complaint is made about the subsequent conduct of the trial.

[8] Turning specifically to Mr Keenan's submission that the sheriff acted prematurely in coming to his decision on the defence motions to desert on 25 February 2013, we consider it to be without substance. This was a summary trial relating to an incident which was said to have occurred on 30 July 2011. The trial had already extended over three days and the sheriff was advised that a defence witness was about to emigrate. Not only do accused persons have a right to have their cases concluded within a reasonable period of time but courts, as public authorities, have an obligation "to adopt an active role in steering [the proceedings] to a speedy conclusion": Beggs v United Kingdom ECHR, application 25133/06, judgment 6 November 2012 para 266. Moreover, the sheriff was entitled to take the view which he did, that it was, at best, surprising that the extent of any hearing impairment suffered by the complainer was not addressed well before the beginning of his cross-examination and that the evidence on hearing impairment with which the sheriff had been provided as at 5 February 2013 was not satisfactory. The context, it is to be remembered, is one where neither the complainer nor his solicitor had identified any problem whatsoever as arising from the complainer's admitted hearing impairment, either in preparation for the trial or during its first two days.

[9] As to the submission that the sheriff erred in not deserting the diet, given that the only complaint was that because of his impaired hearing the complainer was unable sufficiently to follow the court proceedings in order effectively to participate in the trial and given that the sheriff, having made reasonable enquiry, rejected that complaint as not having been established as a matter of fact, there was no error. On all the information before us, the sheriff was fully entitled to reject, as unfounded in fact, the assertion which the Bill of Suspension states to have been made in support of the motion to desert the trial: that the complainer had not been able to fully participate in the trial or indeed to understand the evidence that had been heard by the court. That is enough to dispose of this Bill.

[10] We would add this. Although not emphasised by Mr Keenan in the course of his submissions, what this Bill, and in particular, its only plea-in-law, puts in issue is the fairness of the complainer's trial. The applicable law is not in doubt. The advocate depute understandably alluded to cases relating to the need for a suitably qualified interpreter to be provided to non-English speaking accused persons as providing statements of relevant principle. These cases include HM Advocate v Olsson 1941 JC 63, Michailitchenko v Normand 1993 SLT 1138 and Hassan v HM Advocate [2013] SLT 219. In HM Advocate v Olsson supra at 63 to 64 Lord Jamieson observed:

"It is inherent in the proper administration of justice that a person tried on indictment must be present during the proceedings, in order that he may hear the case against him, and it is obvious that the mere physical presence of the accused in this case will not satisfy the requirements of justice, and that provision must be made for having the evidence led communicated to him through an interpreter."

This entirely uncontroversial proposition has obvious application to cases where an accused suffers from hearing impairment. We would however also notice as very close to the present case on the facts and as having been considered specifically by reference to the right to a fair trial guaranteed by article 6 of the European Convention on Human Rights, the case of Stanford v United Kingdom application 16757/90, in which the European Court of Human Rights gave its judgment on 23 February 1994. The applicant in Stanford had, throughout his 6 day trial, sat in a glass-fronted dock. He claimed that he had been unable to hear the proceedings as the acoustics had been inadequate. It was established that he had complained to the prison officer who was guarding him of his inability to hear on a number of occasions and that the complaint had been relayed to his solicitor. The solicitor accepted that Mr Stanford had told him and counsel that he could not hear everything that was being said but counsel had taken the view, which the solicitor shared, that as she and the jury could hear and as she would no doubt have the opportunity of taking instructions upon any matter arising which was not contained in her brief there was nothing which needed to be done. In giving its judgment the European Court reminded itself that in relation to a complaint by reference to article 6 of the Convention its task was to ascertain whether the proceedings in their entirety were fair. It had not been in dispute that article 6, read as a whole, guaranteed the right of the accused to participate effectively in a criminal trial and that, in general, that includes not only a right to be present but also to hear and follow the proceedings. However, in that case neither the applicant nor his legal representatives had sought to bring his hearing difficulties to the attention of the trial judge at any stage during the 6 day hearing. Counsel, who had lengthy experience in handling criminal cases, chose for practical reasons to remain silent about the difficulties and there was nothing to indicate that the applicant had disagreed with this decision. The State, explained the European Court, cannot normally be held responsible for the actions or decisions of an accused's lawyer; it follows from the independence of the legal profession that the conduct of the defence is essentially a matter between the defendant and his representatives. The public authorities are required to intervene only if a failure by counsel to provide effective representation is manifest. That was not the case in Stanford. The European Court found there had been no violation of article 6. At paragraph 30 of its judgment it said this:

"Finally it must be recalled that the applicant was represented by a solicitor and counsel who had no difficulty in following the proceedings and who would have had every opportunity to discuss with the applicant any points that arose out of the evidence which did not already appear in the witness statements. Moreover, a reading of the transcript of the trial reveals that he was ably defended by his counsel and that the trial judge's summing up to the jury fairly and thoroughly reflected the evidence presented to the court."

[11] There is nothing in the judgment in Stanford to suggest that difficulty in hearing on the part of the accused, per se, renders a trial unfair. The key requirement is opportunity to participate effectively and in considering whether an accused person has been afforded the opportunity effectively to participate regard must be had to the whole circumstances, including decisions made by him and his legal representatives, and the extent to which these legal representatives have been able to put forward on behalf of the accused person the defence instructed by him.

[12] Having regard to the totality of information presented to us there is nothing to suggest that the complainer did not receive a fair trial. We shall therefore refuse the Bill.