Allison v HM Advocate
| Jurisdiction | Scotland |
| Judge | LORD RODGER,LORD HOPE,LORD WALKER,LORD BROWN,LORD KERR |
| Judgment Date | 10 February 2010 |
| Neutral Citation | [2010] UKSC 6,2010 SCCR 277 |
| Docket Number | No 2 |
| Court | Supreme Court (Scotland) |
| Date | 10 February 2010 |
[2010] UKSC 6
THE SUPREME COURT
Hilary Term
On appeal from: 2008 HCJAC 63
Lord Hope, Deputy President
Lord Rodger
Lord Walker
Lord Brown
Lord Kerr
Appellant
Gordon Jackson QC
Claire Mitchell
(Instructed by Capital Defence Lawyers)
Respondent
Alex Prentice QC
Gordon Balfour
(Instructed by Crown Office and Procurator Fiscal Service)
2nd Respondent & Intervener
The Baron Davidson of Glen Clova QC
Mark Lindsay
(Instructed by Office of the Solicitor to the Advocate General for Scotland)
On 9 September 2004 the appellant, Steven Allison, was convicted after trial in the High Court at Glasgow of four contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971. In effect, he was found guilty of being concerned in the supplying of cocaine and three other controlled drugs at his home in Cumbernauld, at an address in Falkirk and elsewhere in the United Kingdom, between 12 November and 3 December 2003. The trial judge, Lord Bracadale, sentenced him to 8 years imprisonment.
The appellant appealed against both his conviction and sentence. On 7 November 2008 the appeal court (Lord Osborne, Lady Paton and Lord Philip) refused his appeal against conviction, leaving his appeal against sentence to be heard on a date to be fixed.
Among his grounds of appeal against conviction was one which was first advanced in an additional Note of Appeal. It relates to the record of a police interview of a John Stronach. Mr Stronach had died before the trial and the Crown introduced the interview into evidence in accordance with the procedure in section 259(5) of the Criminal Procedure (Scotland) Act 1995.
Neither before nor during the trial did the Crown disclose to the defence that Mr Stronach had a number of previous convictions and outstanding charges. In particular, he had convictions for reset, theft by opening lockfast places, assault and robbery and assault and breach of the peace. He also had a number of outstanding charges, including two alleged contraventions of the Misuse of Drugs Act 1971, an alleged theft by housebreaking and several alleged contraventions of the Road Traffic Act 1988. One of the outstanding cases under the Misuse of Drugs Act related to events covered by the trial and was known to the appellant's legal advisers. The Crown disclosed the previous convictions and the other outstanding charges only while the appellant's appeal was pending before the appeal court. This prompted the appellant to lodge his additional ground of appeal: "The failure on the part of the Crown to disclose to the defence the existence of all the previous convictions and outstanding charges resulted in the defence being unable to prepare and properly conduct their defence and the result was that the appellant did not receive a fair trial, as guaranteed by article 6(1) of the European Convention on Human Rights."
Following the dismissal of his appeal by the appeal court, the appellant applied for leave to appeal to the Privy Council in relation to the additional ground of appeal. On 6 March 2009 the appeal court (Lord Osborne, Lady Paton and Lord Mackay of Drumadoon) refused the application as incompetent, on the ground that no intimation of a devolution issue had been given to the Advocate General as required by para 5 of Schedule 6 to the Scotland Act 1998. The court went on to indicate that, if it had been open to them to grant or refuse leave, they would not have granted leave.
The appellant subsequently applied to the Privy Council for special leave to appeal. The Board granted special leave. Although the statement of facts and issues included an issue relating to the competency of the appeal court's decision to refuse leave, neither the advocate depute nor the Advocate General advanced any argument on the point at the hearing of the appeal. Undoubtedly, when the appeal court determined that the Lord Advocate was not under an obligation by virtue of article 6(1) of the European Convention to disclose the outstanding charges against Mr Stronach, they were in substance determining a devolution issue in terms of para 1(d) or (e) of Part I of Schedule 6 to the Scotland Act 1998 – irrespective of whether all the relevant procedural steps had been followed. It follows, as was held in McDonald v HM Advocate 2008 SLT 993, 1002, paras 48 and 49, that an appeal on that point lies to this Court under para 13(a) of Part II of that Schedule.
Of course, the late Mr Stronach's name was never included in the list of Crown witnesses appended to the indictment for the appellant's trial – which may help to explain why the need to disclose his criminal antecedents was overlooked. But, when dismissing the appellant's appeal, the appeal court rightly accepted, under reference to Holland v HM Advocate 2005 1 SC (PC) 3, 24, para 72, that the failure by the Crown to disclose Mr Stronach's previous convictions had been incompatible with the appellant's article 6(1) Convention rights. Despite the further conclusion of the Privy Council in Holland, at pp 24-25, paras 73-74, that the Crown were also under an obligation to disclose material outstanding charges of which they were aware, the appeal court in the present case drew a distinction between Mr Stronach's previous convictions and "his outstanding cases at the time of the trial" – by which the court obviously meant the charges against him which had been outstanding at the time of his death. The court continued:
"We consider that, in this context, a distinction has to be made between previous convictions and outstanding cases. While, in appropriate circumstances, the existence of previous convictions may be of importance in connection with the preparation of a defence and to the challenge that may be mounted to the credibility of a witness, we do not consider that the same may be said of outstanding cases. Where an individual is charged with crime, he or she is presumed to be innocent until proved guilty. If a case is outstanding, necessarily no verdict has been reached in it. In these circumstances we have insuperable difficulty in understanding how information relating to those matters could be properly deployed in the conduct of a defence."
Previous generations of Scots lawyers and judges do not appear to have experienced the same "insuperable difficulty" as the appeal court.
It is, of course, trite that an individual charged with crime is presumed to be innocent until proved guilty. But that is not to say that he has to be treated in all respects as if he were an innocent person against whom no charge had been brought. Most obviously, in an appropriate case, he can be remanded in custody pending trial or granted bail subject to appropriate conditions. Similarly, depending on the offence and the terms of his contract of employment, he may be suspended from his employment. More generally, if you know that someone has been charged with, say, fraud, you will be less inclined to enter into a commercial transaction with him; if you know that someone has been charged with sexual abuse, you will think twice before entrusting your children to her care; if you know that someone has been charged with theft, you will be less inclined to trust anything which he tells you, unless it can be confirmed from other sources.
The Privy Council's decision in Holland, that the Crown should disclose outstanding charges of Crown witnesses of which they were aware, simply reflected the common sense position that – just as in everyday life – judges or jurors who have to assess the credibility of a witness may properly take into account not only the fact that the witness has been convicted of various offences, but also the fact that he has been charged with others. To judge from the passage quoted in para 7 above, the appeal court seem to have thought that this was an unprincipled and incoherent innovation. It is noteworthy that they did not refer to any authority. In reality, the approach of the Privy Council, in so far as it proceeds on the basis that outstanding charges may have a bearing on a witness's credibility, merely reflects what appears to have been recognised as the proper practice in Scottish courts for more than 170 years.
At one time, in Scots law anyone convicted of serious crimes became technically infamous (infamis) and was thereafter unable to give evidence at any trial. By the early nineteenth century this rule was proving self-defeating for the authorities: all too often it was a gift to the defence since it prevented the only material witnesses to crimes from giving evidence. So the rule was first relaxed and then eventually abolished. The only explicit authority relating to a witness with outstanding charges comes from that era. At a High Court trial at Dumfries, when leading a Crown witness, William Higgins, the advocate depute began by establishing that he was due to be tried at the same circuit on a charge of theft by housebreaking, aggravated by his having been previously convicted of theft and being a thief by habit and repute. See John Hannah and Hugh Higgins, 17 September 1836, Bell's Notes, p 256, in the Supplement to Hume's Commentaries on the Law of Scotland respecting Crimes (1844 edition), vol 2. Since the court ruled on the admissibility of the advocate depute's line of questioning, the defence must have objected that the Crown were, in effect, leading a witness who, if convicted of the crime in question at his trial later in the sitting, would then be unable to testify. The court rejected the argument and allowed the question. As the author of the Notes, Sheriff Bell, comments, "The...
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