HER MAJESTY'S ADVOCATE v. DAVID BAIN
| HIGH COURT OF JUSTICIARY |
| | OPINION OF LORD REED in the Application by DAVID BAIN in terms of Section 57 of the Scotland Act 1998 in the trial of HER MAJESTY'S ADVOCATE against DAVID BAIN ________________ |
Prosecutor: Gallagher, A.D., Havenga; Crown Agent
Accused: Findlay, Q.C., Hamilton; Lobjoie & Co
14 May 2001
[1]On 10 May 2001 I refused an application made on behalf of the accused in the present trial to have the leading of certain evidence held to be ultra vires of the Crown under section 57(2) of the Scotland Act 1998; and I repelled an objection to the leading of that evidence. I indicated at the time that I would issue my reasons later. I do so now.
[2]The indictment which the accused faces contains six charges, of which the most serious is a charge of murder. That charge is in the following terms:
"On 26 December 1999, while acting along with Thomas Brady McGarrigle, prisoner in Her Majesty's Prison, Shotts, you did assault George Fulton Waugh, then residing at Flat 3/1, 6 Ardencraig Street, Castlemilk, Glasgow, push him bodily, repeatedly punch him on the head and body, knock him to the ground, forcibly detain him in motor vehicle registered number D419 NHF, and abduct him from Mitchelhill Road at Ardencraig Road, both Castlemilk, Glasgow, and there, or elsewhere in Scotland, repeatedly punch and kick him on the head and body, repeatedly slash and strike him on the head and body with knives or similar instruments and repeatedly strike him on the head and body with a shovel or similar instrument, all to his severe injury and in Glen Lyon Place, Cathkin, Glasgow did remove said George Fulton Waugh from that motor vehicle and abandon him there whereby he died of his injuries there and you did murder him".
Thomas McGarrigle is named in a notice of incrimination lodged on behalf of the accused. McGarrigle previously stood trial on a similar charge, alleging that he committed the same murder while acting along with another. He was convicted of that charge on 10 August 2000. Although a petition warrant had been granted for the arrest of the present accused, in connection with the death of the deceased, on 3 January 2000, that warrant was not executed until 11 January 2001, when the accused presented himself at a police office in the company of his solicitor. No criticism is made of the Crown in respect of the period which elapsed prior to the accused's arrest.
[3]The present trial commenced before me in the High Court at Glasgow on 3 May 2001. The Crown had given notice prior to the trial that they intended to apply to have certain statements taken by police officers from a deceased witness, Naseem Faisal Haq, admitted as evidence at the trial under section 259 of the Criminal Procedure (Scotland) Act 1995. On 8 May 2001 the Advocate Depute sought to introduce the evidence of the statements, and objection was taken by Mr Findlay on behalf of the accused.
[4]In support of his objection, Mr Findlay submitted that to introduce this material would contravene the accused's right under Article 6(3)(d) of the European Convention on Human Rights to examine or have examined witnesses against him. Plainly it was impossible for Haq to be cross-examined. Nor had it been possible for Haq to be precognosced on behalf of the accused, since Haq had died on 9 June 2000, before the accused had been arrested. There was no direct evidence placing the accused in the murder of the deceased either as actor or on an art and part basis. As the evidence presently stood, the Crown had led evidence of a fight between the accused and the deceased. On the evidence, McGarrigle had intervened in that fight in a way which might have constituted the stabbing of the deceased, while the accused was apart from the deceased and separated from the deceased by a roadside barrier. It therefore appeared that Haq's statements were the critical evidence in the case. Without it, there was not a sufficiency of evidence. The jury would be invited by the Crown to convict essentially on the basis of Haq's statements, supported by circumstantial evidence given by other witnesses. Reference was made to the judgments of the European Court of Human Rights in Unterpertinger v Austria, (1986) 13 EHRR 175 and Asch v Austria, (1991) 15 EHRR 597. Those cases demonstrated that the inability to cross-examine was not necessarily fatal, but this case was different in that there had been no opportunity for the defence even to precognosce Haq. Mr Findlay also emphasised that Haq might be regarded as, to some extent, a socius criminis, whose statements might therefore be self-serving. On no view, even allowing for such directions as I might give to the jury, could the accused receive a fair trial if this evidence were to be admitted.
[5]Mr Findlay initially raised this point under reference to the Human Rights Act 1998, on the basis that it was the duty of the court not to act incompatibly with the accused's Convention rights and therefore not to admit the evidence. Mr Findlay also raised the issue under the common law, but recognised that this was merely a different way of expressing the same point.
[6]After some discussion, however, Mr Findlay acknowledged that the terms of section 259(1) - which provides that the evidence in question "shall be admissible" provided the judge is satisfied of various matters, none of which is in dispute in the present case (subject to one qualification which I mention later) - do not confer on the Judge any power or discretion to exclude such evidence. In the light of that circumstance, he did not suggest that it was possible for the Court to sustain his objection on the basis of any of the provisions of the Human Rights Act. Instead, he submitted that for the Crown to lead this evidence would be incompetent under section 57(2) of the Scotland Act 1998. In other words, the Lord Advocate was empowered (subject to section 57(3)) to conduct the prosecution of the accused only in such a manner as would be consistent with the accused's Convention right to a fair trial. Mr Findlay submitted that it was appropriate to allow a devolution issue to be raised in the course of the trial in terms of Rule 40.5 of the Act of Adjournal, there being a good reason for the issue not being raised at any earlier time. Reference was made in that regard to the decision in McKenna v HMA, 2000 SCCR 159, which indicated that it would only be in exceptional circumstances that an issue of this kind could be determined in advance of a trial, and that it would be premature to raise the issue before the Crown had attempted to lead the evidence in question.
[7]Addressing me in reply, the Advocate Depute submitted in the first place that I had no jurisdiction to sustain the objection. The application under section 259 had been moved and granted by me prior to the empanelling of the jury. I reject that submission. It is true that at the commencement of the trial, prior to the empanelling of the jury, the Advocate Depute mentioned the section 259 notice, along with a number of section 67 notices, and said that he made the application at that stage. It is also true that junior counsel for the defence, senior counsel being temporarily absent, indicated that there was no objection. I did not however grant any application under section 259 at that stage, and I am indeed doubtful whether I could competently have done so, having regard to the precise terms of section 259 and the immediate connection between a successful application and the admission of the evidence in question. I refer in particular to subsections (5), (7) and (9), from which it appears that the application is to "have the evidence admitted", rather than to have the court decide that the evidence is admissible as a matter of law, and that a successful or unopposed application results inevitably in the admission of the evidence. Nor would I in any event regard what was said by junior counsel for the defence as anything more than an acknowledgement that the formalities relating to the section 259 notice had been complied with.
[8]The Advocate Depute next submitted that the devolution issue was being raised too late: Mr Findlay had failed to show cause why the court should allow the issue to be raised in the middle of the trial. I disagree. For the reasons explained in such cases as McKenna, I do not consider that the issue has been raised unreasonably late. Indeed the more difficult question is whether the issue has been raised too early to be decided. As was said in McKenna at page 172D-E:
"[G]enerally, the question whether there are obstacles to a fair trial can be resolved in the normal course only in the light of the proceedings as a whole, and having regard to the whole evidence led".
I also note that in a more recent English case in the House of Lords, Lord Hope of Craighead said that as a general rule a question as to whether the admission or exclusion of evidence at a criminal trial is incompatible with the right to a fair trial under Article 6 is best considered after the trial has been completed: see R v A [2001] 1 WLR 789, para.11. It has to be borne in mind however that that observation was made in the context of the English law governing criminal evidence and procedure. English law however would require the trial judge to exclude evidence of the kind that is in issue in the present case if to allow its admission would be unfair to the accused. No such power is conferred on the court by section 259 of the 1995 Act. There does not seem to me to be any reason in principle why a trial judge should not be able to come to a conclusion as to the effect of admitting certain evidence upon the fairness of the trial within the meaning of Article 6, although in practice it may often be difficult, depending on the circumstances of the case, to come to such a conclusion before the whole of the evidence has been heard.
[9]Finally, the Advocate Depute submitted that the statements in question were not critical to the Crown case. In addition to the evidence already heard, which is summarised below, there would be evidence to the effect that the wounds suffered by the deceased included wounds consistent with blows inflicted by a potato peeler and a shovel - articles which, according to evidence already heard, were in the possession of the accused - as well as stab wounds.
[10]In the circumstances I allowed Mr Findlay to lodge a minute focusing the devolution issue, on the morning of 9 May 2001, and assigned 10 May 2001 at 10am as a hearing to dispose of the minute. I ordered service of the minute upon the Lord Advocate and the Advocate General, and appointed the Advocate General to be represented at the hearing if so advised. In the event, the Advocate General was not represented at the hearing, and Mr Findlay was able to inform me that contact had been made with her office and that she had no wish to be involved in these proceedings.
[11]Addressing me on behalf of the accused, Mr Findlay elaborated on his earlier submissions. He did not wish to argue any point under the common law. So far as the Convention argument was concerned, he took from the jurisprudence of the European Court of Human Rights the following propositions:
1.It is not per se contrary to Article 6 to lead in evidence statements of persons who are not available at the trial.
2.Fundamentally, questions of admissibility are to be dealt with under domestic law.
3.Whether or not the admission of such a statement is consistent with Article 6 depends on (1) the particular circumstances of the case, and especially the impact or moment of the statement in those circumstances; and (2) whether or not there has been an opportunity for the defence at some stage to question or confront or challenge the maker of that statement.
The last-mentioned matter was important because, by having the opportunity to confront the maker of the statement, the defence had the chance to test his response to propositions about the accused's position or to take a statement from him which might contain inherent contradictions or a retraction. In the present case the defence had had no opportunity to question Haq. The question was whether, in the circumstances of this particular case, the admission of the statements would be so prejudicial that the accused could not receive a fair trial. Mr Findlay accepted that Scots law contained important safeguards. In particular, the requirement of corroboration meant in general that the veracity of a statement could be tested by other evidence; and the trial judge would be bound to give the clearest directions to the jury as to the care to be taken when approaching evidence of this nature.
[12]In the present case, the charge was one of murder; and the gravamen of the charge was murder by the use of a weapon or weapons, rather than punching or kicking. The Crown must therefore prove participation in killing, for example, by punching while someone else was stabbing. Thus far, there was no evidence which involved the accused in the inflicting of wounds with weapons. Even if the accused were connected to the deceased up until the time that the deceased was placed in the car referred to in the charge, the evidence to date did not show that the accused was thereafter party to the murder. Haq's statements on the other hand implicated the accused as actor in the homicide. They also implicated him on an art and part basis. The evidence of Haq's statements was therefore of consummate importance to the Crown case. The Advocate Depute might say that there was a circumstantial case against the accused. Haq was however the only witness who described the accused as carrying out an assault which, by implication, involved weapons. It was not necessary for the defence to establish, in support of this submission, that there would be no sufficiency of evidence without Haq's statements. It was sufficient, for the purposes of Article 6, if the statements constituted significant evidence, which would be in practice crucial to the conviction of the accused. It was also relevant for the Court to take into account the frankness and honesty of the person who had made the statements in question. There was clear evidence that Haq had not been frank and honest. He had given two contradictory versions of events. On the evidence already heard, he was a socius criminis, to the extent that he had been involved in punching and kicking the deceased. He had made no frank admission of his own involvement in any of his statements. It was apparent that the statements were not an honest account. The need for corroboration was in practice a meagre safeguard in the circumstances of the present case. Evidence that injuries were "consistent" with a potato peeler or a shovel took the Crown no great distance. A distinction could be drawn between corroborative evidence which itself pointed towards the guilt of the accused, and corroborative evidence which was merely consistent with evidence pointing towards guilt. Where the available corroboration was of the latter kind - as in the present case - the impact of evidence directly pointing towards guilt, such as Haq's statements, was increased. A statement of that kind should be admitted only if there was sufficient other evidence to enable a jury to be satisfied that the statement was consistent with other acceptable evidence and should therefore be itself accepted.
[13]Mr Findlay referred briefly to a number of decided cases. In HMA v Nulty, 2000 SCCR 431, the defence had had an opportunity to confront the witness and question her. That case was plainly distinguishable. McKenna v HMA, 2000 SCCR 159, made it clear that the issue had to be addressed in the specific context of an individual trial, but offered no particular assistance to the trial judge. The judgments of the European Court of Human Rights illustrated particular factual situations, but were merely examples of the application in those situations of general principles which were not in dispute.
[14]Mr Findlay accepted that the evidence contained in Haq's statements could be challenged in a variety of ways. The two statements were mutually contradictory. The first statement was plainly contradicted by incontrovertible video evidence. It was also apparent from the statements that Haq had been attempting to protect himself when he gave the statements, and he freely admitted that he had been under the influence of heroin at the time of the events which he described. Nevertheless, Mr Findlay submitted that it was inconceivable that the evidence would not have a major impact on the jury. There was in any event no way of knowing what impact the evidence might have had upon the jury, since they did not give reasons for their verdict.
[15]Addressing me in reply, the Advocate Depute did not dispute Mr Findlay's submission that, if the admission of the evidence in question would result in a contravention of the accused's Convention rights, it would therefore be incompetent for the Crown to apply to have that evidence admitted.
[16]The Advocate Depute submitted that the statements would not constitute the main source of evidence against the accused. They were certainly an important piece of evidence, along with other important pieces of evidence. The Advocate Depute accepted that the section in Haq's first statement, in which he spoke of having witnessed the accused assaulting the deceased, could not have happened. That section of the statement was not the important evidence. He would however be asking the jury to accept the contents of the second statement (i.e. what is described in production 38 as the "Additional Statement") as reliable evidence. He would not be asking the jury to accept what had been said in the first statement in so far as it dealt with an assault by the accused upon the deceased. He conceded that that passage (at pages 7 and 8 of production 38) could not be true, and could not be treated as reliable evidence. The Advocate Depute was unable to say why the jury should accept the second version of events as reliable. He could not point to any particular evidence that pointed to the truth of the second version, so far as it concerned an alleged attack on the deceased in which the accused participated. There were, however, other items of evidence which pointed towards the accused's involvement in the murder. It would be for the jury to assess the reliability of Haq's second version of events in the context of the evidence as a whole. The Advocate Depute referred in this context to the evidence already heard, so far as capable of supporting an inference that the accused had been involved in the murder. I summarise that evidence later. He informed me that he anticipated that there would in addition be evidence that the car in question had been destroyed after the events in question by burning it. That might be considered significant, when considered in conjunction with the absence of any significant amounts of blood at the location where the body had been found, and the fact that the accused and McGarrigle had both changed their clothes after the deceased had been abandoned. In addition there was expected to be evidence from a pathologist to the effect that the deceased had sustained something of the order of 70 or 80 wounds, some of which could have been inflicted by the potato peeler and shovel which, on evidence already led, the accused appeared to have had in his possession. It was anticipated that the pathologist would comment on particular wounds which might have been inflicted with the edge of the shovel or the point of the potato peeler, and would comment on the shape of certain injuries and the possible connection to these implements.
[17]The Advocate Depute accepted that certain portions of the first statement (production 38) and the whole of the third statement (production 39) were objectionable under section 259(1), as those parts of the statement recorded what Haq had been told by another person about material events. I was not asked to make any ruling about that matter at that stage, but the Advocate Depute accepted that certain parts of the statements would have to be excluded on that basis. In the event, this matter was subsequently agreed between Mr Findlay and the Advocate Depute, after I had issued my ruling on Mr Findlay's objection in principle, under Article 6, to the leading of any part of the statements.
[18]Responding to the Advocate Depute's submissions, Mr Findlay observed that the Advocate Depute had not suggested that what was described in Haq's statements was part of the fatal attack on the deceased. The Advocate Depute was seeking to introduce a demonstrably self-contradictory statement, and was proposing to invite the jury to reject Haq's first version of events and to accept Haq's second version of events, without the latter being supported by any material capable of being tested. In essence, it appeared that the Crown wanted Haq's evidence to be before the jury for the sake of its prejudicial effect.
[19]The general approach of the European Court of Human Rights to the type of issue raised in this case is summarised in the judgments which were cited by Mr Findlay. As is clear from those judgments, the Court makes an overall assessment of the fairness of the trial, rather than laying down prescriptive rules in respect of individual incidents in the proceedings. In particular, there is no absolute rule that the accused must have an opportunity to question the witness at some stage of the proceedings: in Asch itself, for example, it appears that there was no such opportunity. There was however an opportunity to challenge the evidence in that case, by the accused giving his own version of events to the police and to the court, and by leading other evidence to challenge the credibility or reliability of the evidence in question. In addition, there was other evidence to support the conviction. In these circumstances, looked at as a whole, the accused had not been deprived of a fair trial, notwithstanding his inability to question the complainer.
[20]The nearest case, in the Strasbourg authorities, to that of a deceased witness is that of Trivedi v United Kingdom (1997) 89 DR 136, where the witness suffered from an illness which rendered him permanently incapable of giving evidence. The application was held inadmissible by the European Commission on Human Rights, which observed that the witness's statement was not the only inculpatory evidence in the case; that the accused had the opportunity to give evidence; that counsel for the accused had the opportunity to comment on the statements with a view to casting doubt on the witness's credibility and reliability; and that the judge had warned the jury that they should attach less weight to the statements, which had not been tested in cross-examination, than to the evidence of witnesses who had been heard orally in court. That case was cited in the Opinion of the Court in McKenna, and it was observed that in general the procedural requirements of Scottish criminal law provided the same safeguards for the accused's position. I note however that one matter to which the Commission appear to have attached importance, in the Trivedi case, was that, following English procedure, the trial judge decided, before allowing the evidence to be led, "that there was nothing about the quality of the statements of Mr C which gave such concern as would lead the Court to exercise its discretion to exclude them from evidence".
[21]As Mr Findlay acknowledged, it is necessary to pay close attention to the particular circumstances of the individual case. It is accordingly necessary for me to place the evidence in question in the context of the other evidence already led in the case. In doing so, I do not pre-empt any submissions that may be made about the evidence. I simply record my own impression of the evidence as matters stand, and putting matters very broadly.
[22]The evidence led so far, broadly summarised, and focusing upon the evidence which has been relied upon by the Crown, is to the effect that a number of people, including the accused, the deceased and Haq, had been in company together in a flat in Block 9, Mitchelhill Road, in the early hours of 26 December 1999. The deceased and his friend Raymond Blair left together sometime after 3am. Shortly after they had left, the accused discovered that his mobile telephone was missing, and had presumably been taken by one of the men who had left. He was angry and created a disturbance in the flat. According to one witness, he was concerned because there were confidential numbers stored in the memory of the telephone. He spoke to someone who was in possession of the telephone and arranged to meet him or them at the foot of the block of flats. He uttered threats of violence in respect of the men. According to one statement taken by the police, which the witness in question accepted must be true if it was an accurate record of what she had said to the police, he wanted a knife. There was no knife in the flat. The accused took a potato peeler and a shovel and left. He was accompanied by Haq and another man named Cassidy. Evidence about what happened next came from one of the persons who remained in the flat, a witness named Louise McKee. She claimed to have no memory of events on the night in question. Certain parts of a statement which had been taken from her by the police were then put to her. According to the statement, she looked out of the window of the flat and saw the deceased standing beside the accused and Haq next to a metal barrier at the side of the road near Block 7. The accused pushed the deceased over the fence. The deceased fell, but got back up. Thomas McGarrigle, who had not previously been involved in events that evening, then walked over from Block 7. He hit the deceased in a stabbing motion. The deceased immediately fell to the ground and rolled down the hill. When McGarrigle struck the deceased, the accused was separated from the deceased by the barrier. Having struck the deceased, McGarrigle then walked back towards Block 7. The accused also walked towards Block 7 and out of the witness's sight. The deceased lay still at the bottom of the hill. The witness then saw McGarrigle's car going down the hill towards Ardencraig Road. It stopped beside the site where the deceased was lying. McGarrigle got out of the car and walked over to the deceased. McGarrigle's girlfriend, Helen Lamont, was sitting in the front of the car. The accused, Haq and McGarrigle lifted the deceased up from the ground and placed him in the back of the car. McGarrigle and the accused got into the car, and the car then drove on to Ardencraig Road and turned right. The witness in her evidence eventually said that she could recollect the last part of these events (i.e. the lifting of the body into the car) taking place. In relation to the earlier events, her position was that she had told the police the truth, and if that was what she had told the police, then it must be true. In cross-examination, the witness was taken to an earlier part of her statement in which she had apparently said that she had seen the accused and Haq punching and kicking the deceased at the foot of Block 9. When that passage was put to her in cross-examination, she said that it was not true. According to a part of the statement which was not placed before the jury, she had indeed said shortly afterwards that she had not been telling the whole truth. Be that as it may, the Advocate Depute in re-examination took from the witness that she thought that such an incident (i.e. the deceased being assaulted by the accused and Haq) had happened.
[23]Evidence was also given by Helen Lamont, to the following effect. She and McGarrigle had left their flat in Block 7 in the early hours of the morning and gone to their car. They heard shouting from the direction of Block 9. McGarrigle said, "There's David", and ran towards the railing. He stood at the railing, shouting to David to come back. There was another person beside McGarrigle. McGarrigle then came back to the car and drove down the hill towards Ardencraig Road. He stopped and met Haq. Haq got into the car. On Ardencraig Road, she saw the accused and the deceased talking. McGarrigle stopped the car and got out. The accused and the deceased were arguing, or at least having a discussion. Their "hands were going". Raymond Blair was shouting from further up Ardencraig Road. The deceased and the accused got into the car, which McGarrigle drove to where Blair was shouting. Blair ran away through woods there. The discussion between the deceased and the accused was about a mobile phone. The deceased and McGarrigle chased Blair through the woods. The deceased had a burst lip, but no other blood about him. McGarrigle returned to the car, but the accused continued chasing Blair through the woods. McGarrigle turned the car and drove to the other side of the woods to look for the accused there. As the accused was not there, McGarrigle then drove to another part of Ardencraig Road, where he saw Blair coming out of the woods, followed by the accused. McGarrigle joined the accused in the woods. They then came out of the woods. They were sliding all over the place, and laughing and joking. They got into the car. McGarrigle said that he would take the accused home. Lamont was dropped off on Ardencraig Road, at Block 11. She walked up the steps to Block 7. She left McGarrigle, the accused and the deceased in the car. Lamont was shown CCTV footage. She identified the deceased and Blair leaving Block 9 at about 3.51am. She identified herself and McGarrigle leaving Block 7 at about 3.54am. She identified the accused and Haq leaving Block 9 at about 3.55am. The accused could be seen going from Block 9 directly to the barrier near Block 7, where he crossed over the barrier. Another person came from the direction of Block 7. At 3.57am the car drove away. At 4.25am Helen Lamont herself was seen walking back to Block 7. At about 5.29am the car returned. The accused got out of it. He was wearing different clothes from those he had been wearing when Helen Lamont had last seen him. At about 5.34am the accused and McGarrigle were seen entering the flats. McGarrigle also was wearing different clothing from the clothing he had been wearing when he had dropped Helen Lamont shortly before 4.25am. The accused and McGarrigle went into Block 7, and then came down again and went into Block 11. They both had the hoods of their jackets up, and their heads down, so that their faces were concealed from the CCTV cameras.
[24]There were two other significant pieces of evidence prior to the attempt to introduce Haq's statements. A taxi driver, Alexander Gilmour, said that he had found the body of the deceased lying at the end of Glen Lyon Place, a cul-de-sac leading to open ground, between 4.30 and 4.40am that morning. The deceased was still conscious. His face was covered in blood, and had the same appearance as in the photograph of his corpse. A police witness, Kenneth Russell, gave evidence that Glen Lyon Place was just over two miles from Ardencraig Road in the vicinity of the flats, and that the journey by car would take slightly over six minutes, if the roads were quiet and the car was travelling at normal speed. There is also evidence that the night in question was freezing cold, the roads being icy.
[25]As I understand the Crown's position, they would invite the jury to infer, from the evidence of Helen Lamont and the taxi driver, and the evidence of the timings, that the deceased was taken to Glen Lyon Place - a location where there would be few if any people about - and abandoned there in an injured condition, within a few minutes of his leaving the area of the flats in the company of the accused and McGarrigle shortly before 4.25am. The Crown would also invite the jury to draw a sinister inference from the evidence that the accused and McGarrigle had both changed their clothing between about 4.30 and 5.30am, and were both (on one interpretation) attempting to conceal their identities on their return to the flats.
[26]No forensic evidence has yet been led, and in particular no evidence as to whether the deceased's injuries can be connected to the potato peeler or the shovel. Nor has evidence yet been lead from forensic pathologists. In particular, it is not yet established whether death was the inevitable consequence of any of the deceased's injuries, or whether it can be attributed also to his having been taken to Glen Lyon Place and abandoned there. Nor is it clear at this stage whether the Crown case against the accused is to be based on his having inflicted any of the injuries which materially contributed to death, or on his having taken part in a concerted assault at a time when such injuries were inflicted, or on his having participated in the taking of the already injured man to Glen Lyon Place and his abandonment there. From what was said by the Advocate Depute during his submissions, it appears that the Crown's position will depend on how the evidence emerges.
[27]Against that background, I turn to consider the statements in question. I need only concern myself with production 38, as the Advocate Depute indicated that he had no intention to lead evidence of production 39 (it being objectionable in any event as hearsay, even if Haq had been able to give the evidence orally). Production 38 contains two statements, both given on the afternoon of 3 January 2000. The first statement (commencing at 1315 hours) makes it clear that Haq was taking heroin during December 1999. He describes his condition on the night in question as "stoned" and "out my face". He gives an account of how he came to be amongst the group of people in the flat, and of events in the flat, which is detailed and generally consistent with the evidence of the other witnesses. He states that when he, the accused and Cassidy left the flat and descended to the foyer, the accused shot out of the building in front of the other two. By the time Haq left Block 9 he saw that there were things happening near Block 7. McGarrigle's car was positioned halfway between Block 9 and Block 7, on the side of the road nearer the barrier. McGarrigle and Lamont were in the front seats. The accused was entering the back of the car at the barrier side. The accused's arm was moving in a punching motion, into the back seat of the car. Haq heard screams coming from the back of the car. Haq saw Blair going over the barrier and down the grass slope, and shouted to the accused that he had got the wrong person. The accused got into the car and it drove down the hill and out of the area of the flats. At no time did Haq ever see the boy who had been screaming. Haq then returned with Cassidy to Cassidy's flat in Block 11. At about 6.45am the accused and McGarrigle came to Cassidy's flat. The accused had an axe in his hand, and McGarrigle had a shotgun and cartridges. They were wearing different clothes from the ones they had been wearing earlier on. They were both wearing hooded tops. When they were leaving they put their hoods up.
[28]This statement contains elements which are consistent with other evidence that I have already narrated. The nub of the statement, so far as inculpatory of the accused, is the account of his punching someone in the back of the car who was screaming. That part of the statement is flatly contradicted by the CCTV footage. The Advocate Depute accepted that that portion of the statement could not be true and that a jury could not treat it as reliable evidence.
[29]In the "additional statement" given later the same afternoon (commencing at 1600 hrs), Haq said that he would like to amend his original statement and tell the police everything he knew. After leaving the flat, the accused, Cassidy and Haq went down in the lift together. The accused was freaking out and going ballistic, saying that he was going to kill them and slash them, and ranting and raving. The CCTV footage shows the accused and the others in the lift. Nothing abnormal can be seen about the accused's behaviour. According to the statement, when the lift opened the accused ran out. By the time Haq got out of the block of flats with Cassidy, the accused and McGarrigle were battering the deceased, who was on the ground near the barrier. Cassidy slipped and fell (this is seen on the CCTV footage). The accused and McGarrigle were laying into the deceased near Block 7, punching and kicking him. Haq did not see any weapons at that time. Haq saw Blair and chased him down towards Ardencraig Road, where Blair crossed the road and ran into a wood. The accused and McGarrigle were still battering the deceased on the ground as Haq ran down the stairs. McGarrigle's car then arrived where Haq was standing on Ardencraig Road. That was the first time he had seen the car. The accused was sitting in the back seat. McGarrigle and Lamont were in the front seats. Haq told the accused that they had got the wrong man, and that the man with the mobile phone was in the wood. The accused then got out of the car and ran into the wood. McGarrigle also got out of the car and opened the rear door on the passenger side. When he did that, Haq saw the deceased. He had blood all over his face. At this point Haq saw that McGarrigle had a knife in his hand. McGarrigle told the deceased to stay in the car. McGarrigle told Haq to go and phone the mobile, and Haq then returned to the flats (he is seen on the CCTV footage returning to the flats at about 4.09am). McGarrigle got back into the car and drove off along Ardencraig Road with Lamont beside him and the deceased in the back of the car. The deceased was conscious when Haq last saw him. Haq said that he had not given the police this account earlier, because he was frightened that he would get into trouble for having chased Blair.
[30]The account given in this second statement again contains a number of elements which are consistent with other evidence, such as the CCTV footage and the evidence given by Helen Lamont about Blair being chased through the woods. The account of the accused and McGarrigle jointly assaulting the deceased is however free-standing, in the sense that it is not directly supported by any other evidence. The same can be said of the account of the deceased being in the back of the car, his face covered with blood, shortly after he had been assaulted by the accused and McGarrigle, and at a time when the accused was in the back of the car beside him. These elements of Haq's account, if accepted as reliable evidence, appear likely to be of some importance. On the other hand, the reliability of the evidence is plainly questionable, given that Haq produced this account very shortly after giving a totally different account which is manifestly untrue. In the absence of some evidence pointing directly to the truth of Haq's account (so far as concerns these elements), I would have some difficulty understanding on what basis a jury could reasonably be invited to treat these parts of Haq's account as reliable evidence.
[31]I cannot at present assess fully the significance of Haq's statements. I cannot anticipate the evidence as a whole, or the relative significance of Haq's statements in that overall context. Their significance will also depend on how successfully the evidence is challenged, and to some extent on how the case is presented to the jury. The evidence in question cannot stand alone, because of the requirement for corroboration. That is in itself an important safeguard against the unfairness which might otherwise result from admitting such evidence, and one which is absent from most other European legal systems. Without anticipating how the case may develop and how it may be presented, I am not satisfied that the evidence in question will be the only significant evidence against the accused, or the most significant evidence against the accused. The evidence of the short lapse of time between the car leaving Ardencraig Road with the accused, the deceased and McGarrigle on board (according to Lamont's evidence), and the discovery of the injured man lying in Glen Lyon Place, may be potentially significant, as also may be the evidence of the accused and McGarrigle returning about an hour later in different clothing and, on one interpretation, hiding their faces from the CCTV cameras.
[32]The defence have had the opportunity to precognosce the police officers who were present when the statements were given. The Crown have led the officer who took down the statement. The defence are entitled to cross-examine him in court, as to the circumstances under which the statements were taken and the condition that Haq was in, and as to any other matters that may tend to undermine the credibility and reliability of the evidence. The defence are also entitled to lead the evidence of the other police officer who was present, who is named on the Crown list of witnesses. The defence are also entitled to challenge the credibility and reliability of the statements on the basis of the admitted drug-taking, the admitted involvement in assaulting Blair and the consequent interest to inculpate others, the inconsistencies within the statements and between the statements and other evidence, and the evidence of Louise McKee inculpating Haq himself as being involved in an assault on the deceased. All these matters can be commented on to the jury. The defence are also entitled under section 259(4) to lead any other evidence which is available to challenge the credibility and reliability of Haq's statements. The accused is of course himself entitled to give evidence challenging Haq's account if he so chooses, and giving his own version of events. I will in addition have to give the jury appropriate directions as to how they should approach the evidence of Haq's statements, which in the present case will have to be of a particularly admonitory nature.
[33]Mr Findlay in his submissions effectively accepted that the foregoing protections existed, but maintained that in the particular circumstances of this case they were insufficient to secure the accused's right to a fair trial. Haq was a witness whose credibility was manifestly suspect. It appeared to be plain that he must have deliberately lied when he gave his first statement to the police. Insofar as it was impossible to carry out any independent verification of the truthfulness of his second statement, on what rational basis could a jury attach any weight to it? It would however be impossible to know what weight, if any, a jury had in fact attached to this evidence, since a jury does not give any reasons for its verdict. The introduction of this evidence meant that the accused risked being convicted on the basis of evidence which no rational jury could accept. Attractively though this argument was presented, I am not persuaded by it. Juries hear, day in and day out, oral evidence from witnesses whose credibility is manifestly suspect. It is impossible to know what weight, if any, they attach to the evidence of such witnesses. Nevertheless, the assessment of such evidence is left to them. Under our system of law, it is their function, and not that of a judge, to assess the evidence and to decide what weight should be given to it. The only issue raised by the use of the section 259 procedure, in the present context, is whether the defence are going to be prejudiced, through the absence of an opportunity to examine the witness in person, to an extent which would be incompatible with a fair trial. In the present case, that does not appear to me to be the case. The defence are in a position to challenge the evidence in question forcefully and cogently, and to lead other evidence contradictory of it if they so choose.
[34]In these circumstances I am not persuaded that the leading of evidence of the statements in question will deprive the accused of his right to a fair trial. I should however make it clear that the submission can be renewed at any later stage of the trial, as the overall case becomes clearer, and can of course be renewed on appeal, if that question should arise.
[35]For these reasons I refused the application to have the evidence of Haq's statements excluded under section 57(2) of the Scotland Act 1998, and repelled Mr Findlay's objection to the admission of that evidence.