Andrew Thompson V. Procurator Fiscal, Hamilton
| Jurisdiction | Scotland |
| Judge | Lord Sutherland,Lord Caplan,Lord Hamilton,Lord Justice General,Lord Justice Clerk |
| Court | High Court of Justiciary |
| Date | 05 November 1999 |
| Docket Number | 2238/97 |
| Published date | 04 July 2001 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Justice General Lord Justice Clerk Lord Sutherland Lord Caplan Lord Hamilton
| Appeal No: 2238/97 OPINION OF THE LORD JUSTICE GENERAL in BILL OF SUSPENSION by ANDREW THOMPSON Appellant; against PROCURATOR FISCAL, Hamilton Respondent: _______ |
Appellant: Scott, F.M. Davies; Balfour & Manson
Respondent: Menzies, Q.C., A.D., C.H.S. MacNeill, A.D.; Crown Agent
5 November 1999
The complainer in this bill of suspension is Andrew Thomson who was convicted at the Sheriff Court at Hamilton of nine charges of forcing open or entering motor vehicles and stealing articles from them. On 16 May 1997 he was sentenced to a period of three years probation. In the bill he asks the court to quash his conviction on the ground that in the course of the trial the Sheriff refused a motion that he should hold a trial within a trial.
The circumstances are fully narrated in the opinion of the Lord Justice Clerk of 22 January 1999 to which I gratefully refer. For that reason I can restrict myself to a brief account of the essential point. At the trial diet the parties lodged a joint minute of admissions which recorded their agreement that the offences had been committed; the only issue in controversy therefore was whether the complainer was the perpetrator. The procurator fiscal depute led a number of witnesses, including Detective Sergeant Hippman who spoke to an interview with the complainer the day after the last of the offences. In the course of his evidence the agent for the complainer objected to him giving evidence about the complainer's answers in the interview, on the ground that they had been obtained by an inducement which the police officers had offered to him. We were informed that the allegation was to the effect that the police officers had indicated that bail would not be opposed if the complainer admitted the offences. The complainer's agent moved the Sheriff to allow a trial within the trial as to the circumstances in which the interview took place. He argued that the complainer should be able to give evidence on the circumstances of the interview without forgoing his right not to give evidence at large on the charges. The Sheriff refused the motion and then heard the evidence of the police witnesses under reservation of the question of the admissibility of the evidence, to be determined at a later stage. The examination of Detective Sergeant Hippman was completed and he was cross-examined. Further evidence in corroboration was led from Detective Constable Hugh Craig. The parties then lodged a joint minute in which they agreed that the transcript of the interview with the appellant lodged by the Crown was accurate. The Crown led a further police witness and then closed their case, at which stage the procurator fiscal depute withdrew charge 10 on the complaint; no evidence was led for the complainer. The case for the Crown was that the answers given by the respondent displayed special knowledge of the circumstances of the offences which would have been known only to the perpetrator. After being addressed on behalf of both parties, the Sheriff convicted the complainer of the remaining nine charges on the complaint.
The essential contention on behalf of the complainer in this bill of suspension was similar to the submission made to the Sheriff: by refusing the motion for a trial within the trial, the Sheriff had denied the complainer the opportunity to challenge the admissibility of the evidence about the interview, except by means of giving evidence at large in his own defence. In the result, it was said, the complainer had not had a fair trial and there had been a miscarriage of justice. The bill of suspension was originally considered by a court comprising the Lord Justice Clerk and two other Judges and on 22 January 1999 they remitted it to this larger court so that we could review the law and practice relating to objections to the leading of evidence on extrajudicial admissions.
At the hearing before us the particular circumstances of the present appeal tended to drift into the background as counsel concentrated on the wider questions which inevitably came into prominence. In order to determine whether the Sheriff should have held a trial within a trial, one must first ask what a judge should do when asked to rule on the admissibility of a statement in a case where there is a dispute about the circumstances in which it was taken. That question cannot be answered without identifying the legal test which the judge should apply in deciding issues of admissibility. Only after this has been done can one consider in what circumstances a judge should hold a trial within a trial. It is to the first of those wider questions that I now turn.
Judge's role in determining admissibility
The present law on the admission of evidence about extrajudicial confessions is encapsulated in a passage from the opinion of Lord Justice Clerk Wheatley in Balloch v. H. M. Advocate 1977 J.C. 23 at p. 28:
"Suffice to say, a Judge who has heard the evidence regarding the manner in which a challenge to a statement was made will normally be justified in withholding the evidence from the jury only if he is satisfied on the undisputed relevant evidence that no reasonable jury could hold that the statement had been voluntarily made and had not been extracted by unfair or improper means."
The stages by which the law developed until it reached this formulation can be easily traced in cases such as Miln v. Cullen 1967 J.C. 21; Thompson v. H. M. Advocate 1968 J.C. 61 and Murphy v. H. M. Advocate 1975 S.L.T. (Notes) 17. Once uttered, Lord Wheatley's formula soon swept all before it, being reflected, for instance, in the extempore ruling of Lord Cameron in H. M. Advocate v. Whitelaw 1980 S.L.T. (Notes) 25 before being applied in Tonge v. H. M. Advocate 1982 J.C. 130 and (without specific attribution) in H. M. Advocate's Reference No. 1 of 1983 1984 J.C. 52. It is within the personal knowledge of all the members of the court that the Balloch test has been used repeatedly in courts throughout the country for many years. Its most notable feature perhaps is that under it the judge's power to withhold evidence from the jury is very circumscribed and the real decision on whether the jury are entitled to take account of the evidence in question is left for the jury themselves.
The success which has attended Lord Wheatley's test is doubtless due in part at least to the fact that it appears at first sight to combine the twin virtues of simplicity and elegance. But on the complainer's behalf Miss Scott set out to show that these virtues are specious, concealing a profound error: in Balloch the court had abdicated to the jury what was in truth the historic and peculiar duty of the court to determine issues of the competence and admissibility of evidence, in particular the admissibility of evidence of extrajudicial confessions. In performing that duty the judges had been used to deciding issues of fact and to making judgments which were nowadays, wrongly, left to the jury.
So far as history is concerned, even the most casual reader of the works of Hume and Alison must have paused from time to time to marvel at the array of over-subtle and exotic objections - infamy, relationship, enmity and partial counsel, and interest and undue influence - which once could be stated to the admission of witnesses. This whole catalogue was to be swept away in the reforming statutes of the 1850s but, while they flourished, such objections were often pressed by counsel, in the hope of excluding a potentially damaging witness. Questions of fact could and did arise in connexion with such objections and appropriate evidence had to be led: for instance, of the conviction of a crime inferring infamy (Alison, Criminal Law vol. 2, pp. 443 - 444); and as to whether a witness had attempted to suborn three other witnesses or had been guilty of some officious conduct (Alison, Criminal Law vol. 2, p. 487). Similarly, where questions were raised as to the mental infirmity of a proposed witness, Alison (Criminal Law vol. 2, 436) describes it as being
"the province of the Court alone, to decide upon an objection of this description, as upon every other matter which relates to the admissibility of or legal objection to testimony. When, therefore, the objection of insanity or idiocy is stated, it is their duty to proceed to take the evidence that may be offered, and either to admit the witness, reject him, or admit him cum nota, as the justice of the case may seem to require."
The rule was that objections of these kinds had to be stated before the witness was sworn and there was then an examination in initialibus. The passages which I have selected, almost at random, from Alison - which could be matched with passages from Hume - demonstrate that, if the objection was relevant, a proof was held and the court determined the issue in the light of the evidence.
Although almost all traces of these procedures have vanished from our law, I mention them to underscore the point that in the first half of the nineteenth century there was nothing unusual in the presiding judges at a criminal trial hearing evidence on questions of fact in order to determine whether a witness was admissible. That being so, it would be surprising indeed if the court had never followed a similar procedure to decide the lesser issue of whether to uphold an objection, not to the admissibility of a witness as such but to the admissibility of a particular passage in his evidence. Yet, it was the contention of the Advocate Depute before us that, while the judges might have decided issues of admissibility after hearing evidence in cases where the evidence was not in conflict, they never did so when issues of credibility or reliability arose: to have decided such issues would have been to trespass upon the fact-finding province of the jury and so the decision on those...
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