Alvin Lee Sinclair v HM Advocate
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill,Lord Hope of Craighead,Lord Rodger of Earlsferry,Baroness Hale of Richmond,Lord Carswell |
| Judgment Date | 11 May 2005 |
| Neutral Citation | [2005] UKPC D2 |
| Court | Privy Council |
| Docket Number | DRA. No. 2 of 2004 |
| Date | 11 May 2005 |
[2005] UKPC D2
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
I have had the opportunity of reading in draft the opinions of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry. I am in complete agreement with them, and for the reasons that they give would make the orders which Lord Hope proposes.
Section 57(2) of the Scotland Act 1998 provides that a member of the Scottish Executive has no power to do any act so far as it is incompatible with any of the rights and freedoms in the European Convention for the Protection of Human Rights and Fundamental freedoms which section 1(1) of the Human Rights Act 1998 defines as the Convention rights. The issue which the appellant has raised in this appeal is whether the act of the Lord Advocate in bringing proceedings and seeking a conviction without having produced or disclosed the existence and contents of statements made to the police by a witness who was to corroborate the complainer's account of the incident was incompatible with the appellant's right to a fair trial under article 6(1) of the Convention. This is a devolution issue within the meaning of para 1(d) of Schedule 6 to the Scotland Act. On 1 July 2004 the High Court of Justiciary dismissed the appellant's devolution minute, and on 7 July 2004 it refused leave to appeal against that decision to the Judicial Committee of the Privy Council. On 28 October 2004 the Judicial Committee granted special leave under para 13 of Schedule 6 for the bringing of the appeal.
On 5 February 2002 the appellant was convicted in the High Court of Justiciary sitting at Glasgow on a charge of assault to severe injury, permanent disfigurement and permanent impairment. The charge against him was that
"on 6 August at 3 Ivanhoe Drive, Kirkintilloch you did assault Graeme Tennent, c/o Strathclyde Police, Kirkintilloch, strike him on the head with a hammer and repeatedly with a pair of scissors and repeatedly punch him on the head, all to his severe injury, permanent disfigurement and permanent impairment."
The medical evidence was that the complainer had sustained a compound fracture of his left mandible which required the insertion of four plates in his jaw and a penetrating injury to the full depth of his left eye which had to be removed two months later and replaced with a synthetic one. These were plainly very severe injuries. On 19 March 2002 the appellant was sentenced to eight years imprisonment.
The only evidence led by the Crown in support of this charge was that of the complainer, Graeme Tennent, and his then girl friend, Pamela Ritchie, who said that she was in the complainer's house at the time and that she had witnessed the incident. Her evidence was essential to the Crown case, as she was the only witness who could corroborate the complainer's evidence that he was assaulted by the appellant. The medical evidence was that the injuries which he was found to have sustained when he was admitted to hospital were consistent with his account that he had been struck on the jaw with a hammer and in the eye with a pair of scissors. But the Crown had to rely on Pamela Ritchie's evidence to corroborate the complainer's evidence that these injuries were caused by the appellant who had assaulted him. Two other people were in the house at the time, but neither of them was willing to admit that they had witnessed the incident.
Pamela Ritchie accompanied the complainer when he was taken by ambulance to Glasgow Royal Infirmary in the early hours of Sunday 6 August 2000. She was seen by Detective Constable Gillan shortly after 5 am while she was still at the hospital. She gave a signed statement to him in which she said that, while she was responding to an unprovoked assault on her by a woman named Stacey Ritchie (who was no relation), she saw the appellant stabbing the complainer once on the face with a pair of kitchen scissors. She said that the appellant then left the house with Stacey Ritchie. She tried to find the scissors after he had gone but was unable to do so. She also said that while she was in the ambulance the complainer told her that the appellant had hit him on the head with a hammer. But she said that she had not seen this, and that she did not see any hammer lying about the house. Two days later, on 8 August 2000 at Kirkintilloch Police Office, she was seen by Detective Constable Dunlop and Detective Constable MacDonald. She went over her previous statement and provided them with another statement which she also signed. In this statement she said that she saw the appellant repeatedly stabbing the complainer about the head and face with scissors. Referring to the passage in her original statement where she was recorded as having said that she tried to find the scissors in the house, she said that this was not true. She made no mention in this statement of any hammer.
The evidence at the trial
Pamela Ritchie's name was, of course, included in the list of witnesses that was attached to the indictment. So too were the names of Detective Constable Gillan and Detective Constable MacDonald. A pair of scissors and two hammers were among the label items in the list of productions. The statements which Pamela Ritchie had provided to the police were not disclosed either to the appellant or to his solicitors. So his representatives were unaware of the content of those statements when she was called by the Advocate Depute to give evidence in support of the Crown case. According to the agreed statement of facts and issues before the Board, the statements were in the possession of the Crown but they were not in the possession of the Advocate Depute at the trial. That too was the agreed position at the hearing of the appeal in the High Court of Justiciary. The Lord Justice General (Cullen) said that it was not in dispute that the Advocate Depute did not have with him copies of the police statements and that the exact terms of these statements were not known to the defence: 2004 SLT 794, 797, para 10.
In her examination in chief Pamela Ritchie identified the appellant in the dock as one of those who was in the complainer's house when she arrived there during the evening of 5 August 2000. She said that a fight had broken out between her and Stacey Ritchie while they were in the living room. At that time the complainer was asleep in a chair in the same room. He was wakened by her shouting at him and got to his feet. As he did so she saw him being hit with a hammer over the head by the appellant. She did not see exactly where the blow landed but she found out later that it was on his jaw. She then saw the complainer being stabbed in the head by the appellant with a pair of scissors. She was unable to say how many times this happened, but it was more than once. She then intervened and the appellant left the house. It had all happened very, very quickly.
It is plain that the Advocate Depute did not expect Pamela Ritchie to say that the appellant had assaulted the complainer with a hammer. He asked her what she had said to the police when she spoke to them at the hospital after the incident. He asked her whether she could remember whether she mentioned a hammer to them at that time. She said that she could not remember what she mentioned to them at that time as she was in shock. She was shown the pair of kitchen scissors which was in court among the labelled productions. She said that they were similar to those she had seen on the night of the incident but that she could not be sure that they were the ones that the appellant had that night. She was then shown the two hammers. She said that the first one she was shown did not resemble the one that she had seen that night, but the other one was more like the one she had seen in terms of its size.
In his cross-examination the appellant's solicitor advocate, Mr Macara, returned to the question as to what Pamela Ritchie had said to the police when she was in Glasgow Royal Infirmary. He asked her whether she mentioned that the appellant struck the complainer with two objects, namely a hammer and a pair of scissors, to which she replied "Yes". He repeated the question, and she replied: "I possibly would have said that to the police, yes. That is what happened. I would have said that to the police". He pressed her again on this point, repeating his question whether she said to the police that she had seen the appellant strike the complainer with a hammer and then a pair of scissors – in other words, with two separate objects, to which she again replied "Yes". There then followed this question:
"So it wouldn't for example be the case that you only told the police about the scissors? You told the police that you had been fighting in the hallway and didn't know what had happened at the start and you only saw your boyfriend being struck by a pair of scissors?
Her answer to this question was:
"It is very difficult for me to remember what I said to the police at the time. I was under a great deal of shock. But what I would have said to them, what I seen at the time."
He asked her once again whether she told the police that the attack consisted of a blow with a hammer and blows with scissors, to which she replied "I would have told them what I seen, yes". In reply to his suggestion that it was incorrect that she only told the police about the scissors and that she did not mention a hammer, she replied "I would say that it was incorrect, yes". Asked whether she remembered staff in the procurator fiscal's office reading her police statement to her, she said that they had gone over her...
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