| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| | [2014] HCJAC 37 |
Lady Paton Lady Clark of Calton Lord Clarke | Appeal No: XC177/13 &XC233/13
OPINION OF THE COURT delivered by LADY PATON in appeals against conviction by (FIRST) PETR KUPKA; and (SECOND) MICHAL RONDOS Appellants; against HER MAJESTY’S ADVOCATE Respondent: _______ |
Appellants: Forbes, McGlennan, Solicitor Advocate; Paterson Bell (for the first appellant)
P Brown, Connelly; Paterson Bell (for the second appellant)
Respondent: Niven‑Smith, AD; Crown Agent
21 May 2014
Introduction
[1] In late 2012 and early 2013, four accused persons stood trial at Glasgow Sheriff Court charged with inter alia carrying out a fraudulent scheme. On 1 March 2013 the first appellant was convicted by the jury of charges 2, 15, and 20 (and another charge with which this appeal is not concerned). The second appellant was also convicted of charges 2, 15, and 20. The appellants appeal against conviction.
[2] The modus operandi of the fraudulent scheme consisted of website advertisements offering jobs and accommodation in Scotland to persons from the Slovak and Czech republics. Companies named Real Opportunity Ltd, GB Job Ltd, and AZ Team Work Ltd, were held out as employment agencies. People in the republics read the advertisements, replied by e‑mail and telephone, paid for their flights, and arrived at an airport in Scotland. They were collected and taken to an office where they signed a tenancy agreement. They paid rent and a deposit of £400 or £450. They were then left in accommodation without further assistance. Many became penniless and desperate.
[3] Charge 2 contained a preamble in the following terms:
“ … while acting together and with others [the first appellant], Pavel Novotny and [the second appellant] did form a fraudulent scheme to induce persons from the Slovak Republic and the Czech Republic to travel to and to enter Scotland, having undertaken to provide said persons with employment in Scotland, and in pursuance of said scheme …”
Charges 15 and 20 contained a similar preamble:
“ … while acting together and with others [the first appellant], Pavel Novotny, [the second appellant] and B did form a fraudulent scheme to induce persons from the Slovak Republic and the Czech Republic to travel to and to enter Scotland, having undertaken to provide said persons with employment in Scotland, and in pursuance of said scheme …”
In each charge there followed details of various actings in pursuance of the fraudulent scheme. Charge 2 alleged that the first and second appellants and Pavel Novotny carried out the fraudulent scheme between 18 January 2008 and 7 May 2010, using the company Real Opportunity Ltd and defrauding three named complainers. Charge 15 (as amended) alleged that all four accused carried out the fraudulent scheme between 1 October 2009 and 17 January 2011, using the company GB Jobs Ltd and defrauding thirteen named complainers. Charge 20 alleged that all four accused carried out the fraudulent scheme between 21 January 2010 and 17 June 2011, using the company AZ Team Work Ltd and defrauding five named complainers.
Grounds of appeal
[4] The first appellant: Two of the first appellant’s grounds of appeal passed the sift. Read short, these were:
Ground 1: The sheriff erred in repelling an objection to the Crown leading evidence of those parts of B’s police interview in which B named and incriminated the first appellant in respect of charges 2, 15, and 20.
Ground 4: The sheriff erred in refusing a motion to desert the trial following a news release concerning human trafficking published by the Scottish Government after 27 days of prosecution evidence.
[5] The second appellant: Two of the second appellant’s grounds of appeal passed the sift. Read short, these were the same grounds as above, only in the second appellant’s case, the first ground of appeal concerned the human trafficking news release, and the second ground concerned B’s interview.
Background to the grounds of appeal
The police interview with B
[6] A police interview with the appellants’ co-accused B (the fourth accused) took place on 9 February 2011. A transcript of the interview was lodged as production 232. A tape-recording was also lodged. In the interview, B described responding to advertisements by Real Opportunity. He then went on to provide the following narrative. He was collected at Edinburgh airport by two men, one being the second appellant. He signed a rental agreement. He was taken to accommodation. There was then no further contact, until the first appellant offered him a job in his shop. B later worked in a pub where the second appellant was the licence-holder. He was told that he was working for a company Just the Job, then for AZ Team Work, owned by the first appellant. Other companies (Real Work Ltd and GB Job) were involved. The appellants ran the companies. They were carrying out a scam. The first appellant proposed that B should work for them, possibly because he spoke English well. He accepted the offer, but on the understanding that he would genuinely try to help the people arriving at the airport. However after four or five weeks he saw that these people could not get work. Also they became angry with him. So he left the pub, the shop and the appellants. The people arriving at the airport had invariably paid money deposits, which he (and the second appellant) took to the first appellant. B did not contradict an interviewing officer who described him as a “victim” on his arrival in Scotland. B thought that the first appellant was at the top of the organisation. The second appellant created the websites and was thought to be second in command. B had worked with them for about 4 months. He had felt bad about being “ripped off” on his arrival in Scotland. Other people suffered too and had to call home and beg their wives and girlfriends to get them home.
[7] In reply to caution and charge (concerning a fraudulent scheme, acting along with the first and second appellants, and with two other persons named Novotny and Liska) he replied (page 138):
“I don’t fully agree to this. I wasn’t aware that I was doing any frauds. I honestly wanted to help people.”
[8] During the trial, the Crown sought to lead evidence of the interview. Counsel for the appellants objected, on the ground that those parts of the interview in which B named and incriminated the appellants caused prejudice which could not be cured by standard directions. Both the Crown and the defence produced suggested lists of redactions (for example, the defence initially proposed the redaction of the names of the appellants, then subsequently redaction of certain passages). The sheriff repelled the objection and refused the motion for any redaction other than what had been agreed by agents and the Crown. As he explains in paragraphs [4] to [18] of his report, he concluded that the interview was a mixed statement, upon which B was entitled to rely (McCutcheon v HM Advocate 2002 SCCR 101). Moreover the case involved the doctrine of concert (each charge referring to the named accused as “acting together and with others”) and accordingly, bearing in mind the court’s duty to ensure a fair trial for all parties including B, redaction as proposed was unsafe and likely to confuse the jury, particularly when they were considering concert. The appropriate course was to allow the evidence of B’s interview (containing only agreed redactions), and to give the jury the necessary directions relating to statements made by one co-accused about other accused outwith the presence of the other accused. Such directions would be given at the time of the evidence being led, and also in the charge. The sheriff concluded inter alia at paragraph [18] of his report:
“ … 5. To do otherwise would have been to deprive the fourth accused (B) of his right to found upon the exculpatory parts of his mixed statement as they were expressed and that would clearly have deprived him of a fair trial …”
B did not give evidence, preferring to rely upon his police interview. After trial, he was unanimously convicted of charges 15 and 20.
The news release concerning human trafficking
[9] The trial lasted for 101 days, ending with verdicts on 1 March 2013. In October 2012 a news release online dated 18 October 2012 gave information about steps being taken by the authorities to combat the crime of human trafficking. That release resulted in a headline in the Daily Record online: “New law to crack down on scourge of human trafficking outlined by Justice Secretary Kenny MacAskill”. In the text, the Lord Advocate was quoted as stating that the trafficking of human beings, often for sexual exploitation, was akin to slavery. There was a reference to an Inter‑departmental Ministerial Group Report on Trafficking which stated that the majority of the victims recovered in Scotland were from Romania, the Czech Republic and Slovakia. Similar articles were published in the Scotsman and the Evening Times, and a broadcast was made by STV. The BBC News website carried a reference to “victims [being] exploited for forced labour, sex or domestic servitude”. A similar article dated 18 October 2012 was placed on NewsnetScotland.com, referring to the Inter‑departmental Ministerial Group Report, and the fact that the majority of victims of trafficking recovered in Scotland in 2011 came from Romania, the Czech Republic and Slovakia.
[10] The Daily Record online did not provide an internet link to the report (thus a “Google” search on a computer was necessary in order to access it). The news release online did provide an internet link. The report itself was detailed and lengthy. Counsel drew attention to the following excerpts:
1.7 (page 4): … Traffickers are often prosecuted for one of a number of possible offences which may carry similar or more serious penalties than human trafficking charges …
3.12 (page 22): Crime groups often offer a complete package to potential victims, including employment, accommodation and transport both to the UK as well as transport to and from the place of work; whilst this may appear attractive to the applicant, it offers the crime group increased control over them as well as control through debt bondage …
4.22 (page 36): In Scotland any decision to prosecute is made by the Procurator Fiscal who is required to consider all of the facts and circumstances of the individual case. This includes amongst other things all available evidence and the full range of options in any particular case. Where there is insufficient evidence to prosecute for a specific human trafficking offence, consideration will be given to whether it is appropriate to prosecute the trafficker for another criminal offence …
5.53 (page 49): During 2010 Scottish law enforcement representatives attended at Europol in The Hague and met representatives from the Czech Republic. The purpose of this engagement was to exchange information and to liaise with the authorities in relation to ongoing bogus internet advertising of jobs in Scotland which related to trafficking of victims and benefit frauds being committed in Glasgow. These meetings resulted in operational activity involving the police and HMRC …
7.30 (page 75): Information from the police and partner agencies suggests that trafficking involving criminal exploitation is increasing with more reports of individuals being used to pickpocket, steal, and claim benefits. In many instances children are involved. In Scotland, during 2011, a number of people were trafficked by Eastern European networks operating in the Strathclyde area. An online recruitment agency promised work and accommodation in Glasgow. When no job was forthcoming the trafficked persons were evicted from their flats. Bank accounts had been opened for these people. Benefits claims, tax credits, and crisis loans were applied for on their behalf and paid into the bank accounts. The money was later removed by the traffickers …”
[11] On 22 October 2012 the defence moved the sheriff to desert the trial pro loco et tempore in the light of the news release. The sheriff refused the motion (paragraphs [33] to [51] of the sheriff’s report dated 28 July 2013). The sheriff explained inter alia that:
“[36] In the debate on the issue, it was suggested for the Crown that there had been no publicity surrounding the issue, but I did not accept that. There had been publicity; clearly, it was intended that there should be publicity and that the public should be aware of the issues dealt with in the Report aftermentioned …
[38] In the news release immediately after the quote from the Lord Advocate there is a section headed (in bold) ‘Related Information’ and the only link is one to the Report. I accepted fully that it was intended that the news release should lead the reader to the report. Counsel was of the view that any juror following the link would not be in breach of the instruction which I gave in my opening remarks [not to make any enquiries or investigations using the internet]; I agreed with that.
[39] There were no charges libelling human trafficking or people trafficking in this indictment.
[40] On accessing the Report, the reader would have found the material which, in the words of counsel, chimed or resonated with the facts in this case. At that point I would have expected a juror who had accessed the Report to have paused and considered, standing my instruction, whether he or she should read further. However, should that juror have read further what he or she would have found at paragraph 3.7, paragraph 3.31, paragraph 4.22, paragraph 5.53, paragraph 7.17 and paragraph 7.30 would have resonated with this case. Equally, much of the content of the report would not have resonated with the jurors as there were differences between what was described in the Report – what might be described as actual human trafficking – and this case.
[41] It was clear that, arising from the circumstances of the press release and the report, there was a risk of prejudice.
[42] In considering whether or not that prejudice was so grave that it could not be cured by suitable directions, I had regard to what have been termed the three safeguards [namely (1) the timing: as the trial had many weeks yet to run, the actual evidence was likely to outweigh the effect of the few lines in the press release; (2) the focusing effect of the trial and the evidence: the jury would have a great deal to consider and much of the evidence would bear little or no resemblance to what was mentioned in the report; and (3) in the light of HM Advocate v L, (unreported) Edinburgh sheriff court 1 September 2010, HM Advocate v Coia [2007] HCJ 17, and Stuurman v HM Advocate 1980 JC 111, whether directions could obviate any risk of prejudice] …
[49] … In the event, I came to the conclusion that the risk of prejudice from the publicity was not such that the trial had to be deserted; I was, having considered the materials and the authorities cited, quite satisfied that the case should proceed and that I should, before further evidence was heard, give the jury suitable directions. I therefore gave the jury directions as soon as … the jury was brought back; these directions were in the following terms:-
‘Ladies and gentlemen, it was brought to my attention at the beginning of this week that last week, on 18 October 2012, there was publicity surrounding the issue of a Report by an Inter-Departmental Ministerial Group which dealt with human trafficking.
Some of the publicity led to articles in the press, online and, I believe, on radio and television. A web link provided access to that report.
Ladies and gentlemen, some of the content of these articles and that report has similarities to the evidence you have heard in this case, and it may bear similarities to evidence which you have still to hear. However, as is clear from the indictment, ladies and gentlemen, the charges which you will be asked to decide are alleged frauds and other offences. This indictment contains no allegation of human trafficking or people trafficking.
The Crown and defence are absolutely at one in this; these charges are not charges of human trafficking or people trafficking.
As I said at the outset, you must not access any materials about this case or its subject matter nor must you access other material which might seem to bear a resemblance to what you are hearing evidence about. If that happens inadvertently, you must put it out of your minds. If any of you heard or read any of the articles or materials I have mentioned, you must put it out of your mind. It is extraneous material and it must play no part in your considerations. You must ignore it completely in this case. It is not evidence. To pay heed to it would be a breach of the oath which you took or the solemn affirmation which you made: to try the accused and to give a true verdict according to the evidence.’
[50] In addition, in my charge, I directed the jury to have no regard to any such publicity; see charge, 25 February 2013, page 13 line 12 to page 14, line 5.”
Submissions for the first appellant
The police interview with B
[12] The sheriff erred in repelling the defence objection to production 232 (the transcript of the police interview with B). It was accepted that a separation of trials was not a realistic option: but it would have been possible to redact some parts of the interview. The sheriff should have sustained the defence objection in relation to those parts of the interview where B told the police officers about being a victim of the first and second appellants.
[13] The sheriff had given the jury appropriate directions (about incriminatory statements being made outwith the presence of the person incriminated) both before the tape-recording was played, and in his charge to the jury. Moreover there had been evidence against the first appellant quite independently of B’s interview, namely parole evidence from the complainers in charges 2, 15, and 20, and circumstantial evidence such as material found on computers to which the first appellant had access; the first appellant’s fingerprints on a tenancy agreement allegedly forming part of the fraudulent scheme and a list of names and other relevant material concerning the complainers. Nevertheless the prejudice created by B’s interview was such that it could not be overcome by directions, and it tainted the jury’s assessment of the credibility and reliability of the witnesses (a crucial matter, as the first appellant’s defence was that he had acted for a letting agency supplying accommodation, but had not knowingly been part of a fraudulent scheme).
[14] It was accepted that the Crown’s approach to the case had been based on concert, and that there was a distinction between the sort of concert involved in a single incident (McFadden v HM Advocate 2009 SCCR 902) and the sort of concert involved in a fraudulent scheme taking place over several years. Nevertheless it was submitted that the Crown were not entitled to lead those parts of the B interview which incriminated the first appellant. The Crown had elected to indict the first appellant by means of three separate charges (charges 2, 15, and 20) when they could have used one charge. B was not named in charge 2 (concerning the company Real Opportunity Ltd). It was therefore unnecessary for the Crown to lead those parts of the interview relating to Real Opportunity Ltd. Counsel added that, as B was not a principal player, the Crown could have chosen to lead him as a Crown witness rather than prosecuting him as a co-accused: but the Crown had not done so.
[15] If the Crown felt unable to agree to some redaction because the interview was a mixed statement on which B was entitled to rely as excusing, qualifying or explaining his position (McCutcheon v HM Advocate 2002 SCCR 101, paragraphs [10], [11], [16](iii)), then the sheriff had an overarching duty to see that the first appellant had a fair trial, and to order redaction of those parts where B described being a victim of the appellants.
[16] In conclusion, counsel submitted that the tone of the unredacted interview was such that the prejudice suffered by the first appellant could not be cured by direction. The sheriff had erred in holding that for B to have a fair trial, the whole interview had to be led, and by failing to attach sufficient weight to the prejudice caused to the first appellant. A miscarriage of justice had occurred, and the convictions should be quashed.
The news release concerning human trafficking
[17] It was accepted that the first appellant was not named in the press articles or in the Inter‑departmental Report. To that extent, the facts fell short of Coia v HM Advocate 2008 SLT 1115 and Beggs v HM Advocate 2010 SCCR 681. However there were resonances between the report and the present case. In the present case, the victims were Czech and Slovakian; also there had been evidence of identity card and benefits fraud in relation to charges 5, 6, 7 and 8 (and the report made it clear that “human trafficking” could include benefits fraud). Furthermore, paragraph 5.53 of the report referred to a “package” of employment and accommodation, a similar modus operandi to that in the present case. Finally the report made it clear that where there was insufficient evidence of human trafficking, lesser alleged crimes (such as benefits fraud) might be prosecuted. The publicity given to the report would affect the jury’s assessment of credibility and reliability. The sheriff was correct to conclude, in paragraph [41] of his report, that there was a risk of prejudice. The only question, therefore, was whether that risk was so grave that no direction could cure it (Montgomery v HM Advocate 2000 SCCR 1044; Stuurman v HM Advocate 1980 JC 111). In answering that question, the sheriff had erred. Neither the timing of the news release, nor the focusing effect of the trial and the evidence, nor any directions, could remove the prejudice. Also the directions given by the sheriff were incomplete. When he told the jury that “This indictment contains no allegation of human trafficking or people trafficking”, he should have added “nor are the charges in the indictment brought because of insufficient evidence of human trafficking”. In conclusion, the trial should have been deserted pro loco et tempore. The sheriff’s refusal to desert the trial had resulted in a miscarriage of justice. The fourth ground of appeal should be sustained, and the convictions of charges 2, 15, and 20 quashed.
Submissions for the second appellant
The news release concerning human trafficking
[18] Assuming that a juror did not access the Inter‑departmental Report, he might nevertheless read the newspaper report. It would be natural for the juror’s attention to be caught by the mention of Czechs and Slovaks, as the jury had heard so much about Czechs and Slovaks by that time. They would read about a modern scourge akin to slavery; the fact that the law was inadequate to deal with that scourge and required reform; and would be left with an impression that the authorities were treating the matter very seriously. The sheriff, in his directions to the jury (quoted at page 28 of his report), told the jury that the report “has similarities” to the evidence the jury had heard, and then advised the jury that the charges in their case were not charges of human trafficking.
[19] Counsel for the second appellant then submitted that the sheriff’s direction had exacerbated the problem. The direction made the connection. Once the connection was made, there was prejudice. The second appellant’s case was being linked to the scourge of human trafficking.
[20] The sheriff was thus damned if he gave a direction, and damned if he did not. The situation was impossible. Accordingly the trial should have been deserted pro loco et tempore, some months allowed to pass, and the case re‑indicted.
[21] Counsel added that, assuming that a juror was technically proficient enough to access and read the report, paragraph 7.30 of the report was particularly relevant to the present case.
The police interview with B
[22] Counsel conceded that it was open to the Crown to lead evidence of what one co‑accused said in his police interview where it was necessary for the Crown to prove concert. However that submission was restricted to what B knew “of his own knowledge”: for example, his being collected at the airport by the second appellant. But there had been material in the interview which went into the realms of speculation (for example, B’s speculation about the structure of the organisation and the second appellant’s position in it). A defence list of redactions had been proposed. Counsel referred to illustrative passages at pages 92 and 100 of the transcript production 232, but at the same time advised the court that he, on behalf of the second appellant, had led a passage in fact redacted by the Crown (relating to the second appellant’s making flyers and responding to e-mails, at the top of page 101) in order to give proper context to matters. However the point was that the speculative matters were unnecessary to prove concert, and should have been redacted.
[23] It was accepted that there was a sufficiency of evidence against the second appellant without resorting to B’s interview – for example, evidence from the civilian witnesses who used the website, travelled to Scotland, were picked up, paid over money, and were given no help thereafter. Also there had been evidence led by the Crown that the second appellant created the relevant websites. But the throwaway speculative remarks in the interview caused prejudice, despite the sheriff’s directions. Had these passages been redacted, there was a real possibility that the jury would have arrived at a different verdict. Accordingly a miscarriage of justice had occurred, the second appellant’s appeal should be upheld, and the convictions quashed. Counsel confirmed that no specific argument was to be presented on behalf of the second appellant concerning the fact that B was not named in charge 2.
Submissions for the Crown
The police interview with B
[24] The advocate depute submitted that the decision which the sheriff took in relation to transcript production number 232 was one entirely for his discretion, having regard to the totality of the evidence heard (by day 61, when the debate on the transcript was heard) and having regard to the possible prejudicial effect of the passages being admitted. The sheriff had not erred in his decision. He gave the jury classic, textbook directions on statements by a co-accused about other accused, made outwith their presence. The jury must be presumed to have followed those directions. There had been considerable evidence against the appellants, independently of the B interview: for example, 15 formal identifications of the two appellants as being involved in the scheme in various ways. The sheriff also gave the jury classic directions on concert. B was entitled to have the whole interview (subject to any agreed redactions) led in his defence. As soon as there was some redaction not consented to, his defence would be prejudiced. The sheriff had to carry out a balancing exercise, weighing the rights of the fourth accused (B) against the rights of the appellants. He had not misdirected himself.
The news release concerning human trafficking
[25] The line of authority relied upon by the appellants concerned publicity directed at a particular accused, which could give rise to prejudice. Examples included Montgomery v HM Advocate 2000 SCCR 1044; Beggs v HM Advocate 2010 SCCR 681; HM Advocate v Fraser 2000 SCCR 412; and Mitchell v HM Advocate 2008 SCCR 469. In each of those cases, there had been a campaign run by newspapers referring to the accused by name, or by inference. Nothing remotely like that had occurred here. There had been no mention of the trial, or of the appellants. The news release focused upon a wholly different type of offence, namely human trafficking, a form of slavery involving the subjugation of people and the forced performance of services (and not a fraudulent scheme inducing people to travel voluntarily to Scotland and to have money taken from them). There had therefore been no “prejudicial publicity” which might adversely affect the fairness of the appellants’ trial. The sheriff had erred in paragraphs [36] and [41] of his report when he concluded otherwise.
[26] In any event, it was highly unlikely that a juror would access the report itself, in particular those parts of the report referred to by counsel. Esto a juror did, and esto there was some material which might cause prejudice to a fair trial for the appellants (which was not accepted), the sheriff handled the situation properly. He considered various safeguards, including the lengthy nature of the trial (ultimately transpiring to be 101 days); the focusing effect of the trial and the evidence; and the force of the directions which he would give the jury. The course which he had adopted had been the correct one. There had been no miscarriage of justice.
Discussion
The police interview with B
[27] We agree with the sheriff that the interview was a mixed statement upon which the fourth accused B was entitled to rely (McCutcheon v HM Advocate 2002 SCCR 101). We also agree that the Crown case relating to the fraudulent scheme was based on concert. The charges in question related to one fraudulent scheme with a clearly identifiable modus operandi carried out over several years by various individuals including the appellants, B and others “acting together and with others”.
[28] In such circumstances it is our opinion that the sheriff was correct to allow evidence to be led of the whole interview with B, subject to any agreed redactions and subject to appropriate directions being given about statements made by a co‑accused outwith the presence of other accused (such directions were in fact given, both at the time when the relevant evidence was led, and in the charge). In our opinion, the Crown was entitled to lead the evidence in order to bring home guilt on the part of B as a participant (both actor and art and part) in the fraudulent scheme (contrast with the circumstances in Beacom v HM Advocate 2002 SCCR 23, where the Crown’s intention was not to seek a conviction of the interviewee). As regards B’s position, the interview evidence was necessary in order to place his exculpatory explanation before the jury, as he did not give evidence. He wished to distance himself from the whole fraudulent scheme, involving, as it did, various individual perpetrators and limited companies, various time‑periods, and various complainers. It was therefore necessary for his defence that he was given an opportunity to comment on all known aspects of the fraudulent scheme, and equally necessary that his acceptance, denial, qualification, or explanation relating to each manifestation of the fraudulent scheme was placed before the jury for their consideration.
[29] We consider that there is no merit in the submission that, as B was not specifically named in charge 2, the Crown should not have led evidence of those parts of B’s interview touching on charge 2. One fraudulent scheme underpinned each charge, covering various time-periods and various complainers, and perpetrated by various accused “acting together and with others”. In those circumstances it was clearly permissible for any matters relating to charge 2 referred to in B’s interview to be led in evidence as being manifestations of the one fraudulent scheme, whether or not B was specifically named in charge 2.
[30] We should add that we also agree with the sheriff that any attempt to redact the appellants’ names in the transcript, or to remove certain passages, would have compromised the fairness of the trial for the fourth accused B, and would undoubtedly have led to difficulties, misunderstandings, and confusion when the jury were attempting to consider the evidence in the light of the doctrine of concert.
[31] Finally, even if we are wrong in the approach which we have adopted above, we have not been persuaded that any miscarriage of justice has occurred. Quite apart from the interview with B, there was a significant amount of evidence against the appellants, such as the parole evidence of the many complainers in charges 2, 15, and 20, and the circumstantial evidence outlined in paragraphs [13] and [23] above. Thus even if some parts of B’s interview had been excluded from evidence, we are not persuaded that there was a real possibility that the jury would have reached a different verdict. Accordingly the appellants’ grounds of appeal, so far as based upon B’s interview, fail.
The news release concerning human trafficking
[32] At the outset, we acknowledge that it is easier for an appeal court, removed from the pressures of a lengthy trial, to consider and weigh up a defence motion to desert pro loco et tempore. Clearly there are constraints of time and other difficulties facing a judge when such a motion has to be dealt with during a trial (not least the need for considerable caution where the motion is made at a relatively early stage in what was expected to be a long-running trial).
[33] That said, we have ultimately reached the view that, contrary to the sheriff’s conclusions at paragraphs [36] and [41] of his report, the news release did not give rise to the type of publicity referred to in Montgomery v HM Advocate 2000 SCCR 1044, HM Advocate v Fraser 2000 SCCR 412; Coia v HM Advocate 2008 SLT 1115; Mitchell v HM Advocate 2008 SCCR 469; and Beggs v HM Advocate 2010 SCCR 681. Furthermore, esto there was any such publicity, it caused no prejudice. We have reached these conclusions for the following reasons.
[34] In general, it can be said that media or other public reports or discussions relating to the existence or prevalence of certain types of criminal activity, issued during the currency of criminal proceedings relating to such activities, do not involve prejudice to the accused persons in such proceedings if, as here, nothing is said in the reports about the particular circumstances with which the proceedings are concerned, or the persons alleged to have been involved. In the present case, the news release did not name or even remotely refer to the appellants. There was no suggestion or inference that the appellants, or either of them, had been involved in some form of criminal activity. Furthermore and in any event, the release was concerned with a wholly different crime, namely human trafficking involving enforced detention, enforced labour and slavery of various sorts (including sexual slavery) and not, as in the present case, a fraudulent scheme to induce persons to travel voluntarily to Scotland where money was taken from them under false pretences, whereupon they were left without assistance. The release referred to an Inter-departmental Ministerial Group Report on Trafficking, but did not quote any section of that report. The report itself was a lengthy and detailed document which, even if accessed on a computer by a juror, would have had to be read thoroughly in order to find and digest the paragraphs complained of. Were that to have occurred, we consider that, at best for the appellants, a juror might think “That’s the sort of case I’m hearing”, as indeed might a juror who was involved in a drugs case concerning cannabis cultivation by people of a particular nationality, or a stabbing case concerning a particular city in Scotland, who read about the authorities’ efforts to prevent cannabis farming (mentioning inter alios people of that nationality), or the continuing abuse of knives in that city. No implication prejudicial to the appellants’ defence could, in our view, be said to have arisen.
[35] In the result, therefore, it is our opinion that the sheriff was entirely correct to refuse the motion to desert pro loco et tempore. The directions given in relation to the news release were unnecessary, but not prejudicial to the defence case. Accordingly we are not persuaded that there is any merit in the first appellant’s fourth ground of appeal or the second appellant’s first ground of appeal.
Decision
[36] For the reasons given above, we refuse both appeals.