Appeals By Mohammed Ashif And Aliah Ashraf Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Tyre,Lord Malcolm,Lord Justice General,Lord Justice Clerk,Lord Eassie,Lord Clarke,Lady Dorrian |
| Court | High Court of Justiciary |
| Date | 20 March 2014 |
| Docket Number | XC634/12 |
| Published date | 18 October 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
XC634/12
XC633/12
Lord Justice General
Lord Justice Clerk
Lord Eassie
Lord Clarke
Lady Dorrian
Lord Malcolm
Lord Tyre
OPINION OF THE LORD JUSTICE GENERAL
In the Appeals by
MOHAMMED ASHIF
First Appellant;
and
ALIAH ASHRAF
Second Appellant:
against
HER MAJESTY’S ADVOCATE
Respondent:
For the first appellant: Jackson, QC, McLaughlin; G Sweeney & Co, Glasgow
For the second appellant: Targowski, QC, Macleod; Patrick Campbell & Co, Glasgow
For the Crown: The Lord Advocate (Mulholland QC), Lawrie; Crown Agent
For the Faculty of Advocates: The Dean of Faculty (Keen QC), Wolffe QC and Ms Catherine Smith
20 March 2014
Introduction
[1] This is an appeal against a decision of a sheriff at Glasgow dated 29 October 2012 by which he held that the challenge by the appellants to a statement of uncontroversial evidence tendered by the Crown was unjustified. The issue in this appeal is whether section 258(4A) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) relating to uncontroversial evidence is compatible with article 6 of the ECHR.
The indictment
[2] The appellants have been indicted in Glasgow sheriff court on a charge of fraud. It is alleged that they formed a fraudulent scheme to obtain monies from the Queen’s and Lord Treasurer’s Remembrancer (Q<R). The essence of the alleged scheme is that the appellants invented fictitious relatives of four persons whose estates were being administered by the Q<R, claimed the estates in those fictitious names and thereby obtained substantial sums of money.
The problem of uncontroversial evidence
[3] It is notorious that over the last twenty years the average length of trials on indictment has increased substantially. There are many reasons for this; but one reason is undoubtedly the defence strategy in complex cases of putting the Crown to the proof of every piece of evidence in the case. In current practice what is described as an exercise of the so-called right to silence in a typical fraud case involving the production of thousands of documents can prolong the trial by a matter of weeks or even months.
[4] Such cases take up scarce public resources and add to the administrative burdens of the court. The cost of trials of inordinate length is not to be measured solely in terms of time and money. The protracted process of proving a multiplicity of documents causes inconvenience to witnesses and jurors and puts the integrity of the trial at risk.
[5] The problem can be avoided, or at least greatly reduced, if the accused formally accepts that those documents that are not in controversy are what they bear to be or that uncontroversial factual matters are to be held as proved. However, the reluctance of accused persons or their representatives to proceed in this way has necessitated legislation. The primary contention for the appellants is that the legislation, in restricting the right of the accused to put the Crown to the proof of facts that he is in no position to dispute infringes the accused’s right to a fair trial under article 6 of the Convention. That raises a question as to the true scope of the right to silence. There is also a question as to the extent of counsel’s duty to carry out his client’s instructions.
The Criminal Justice (Scotland) Act 1980 (the 1980 Act)
[6] The first step in the legislative process that has led to the enactment of the present section 258 of the 1995 Act was taken in section 26 of the 1980 Act. The section was enacted to enable the parties to agree on “routine evidence.” It provided inter alia that for the purposes of any proceedings for certain specified offences, a certification purporting to be signed by a specific person or persons and certifying a particular matter would be sufficient evidence of that matter and of the qualification or authority of the person or persons concerned (s 26(1)). For the purposes of summary criminal proceedings, a report purportedly signed by two authorised forensic scientists was sufficient evidence of any fact, or conclusion as to fact, contained in the report and of the authority of the signatories (s 26(2)). Procedural provisions in section 26(3) enabled the defence to challenge the apparently routine evidence referred to in sections 26(1) and (2). Section 26(5) provided that in any trial under summary criminal procedure it was to be presumed that the person who appeared in answer to the complaint was the person charged by the police with the offence unless the accused gave notice that the contrary was alleged. Section 26(6) provided that where an autopsy report was lodged as a production by the prosecutor it was to be presumed that the body of the person identified in the report was the body of the deceased person identified in the indictment or complaint, again unless the accused gave notice that the contrary was alleged. Section 26(7) enabled the prosecutor to lead only one of the pathologists or forensic scientists who purported to have signed the relevant report and provided that the evidence of that pathologist or forensic scientist would be sufficient evidence of any fact or conclusion as to fact contained in the report and of the qualifications of the signatories, unless the accused gave notice that he required the attendance at the trial of the other pathologist or forensic scientist. Section 26(8) provided that in a prosecution for the offence of driving while disqualified a conviction or an extract conviction served on the accused purporting to be signed by the clerk of court which showed that the person named was disqualified from holding or obtaining a driving licence would be sufficient evidence of the application of that disqualification to the accused unless by prior notice the accused denied such application.
[7] These provisions were re-enacted among the extensive evidential provisions of Part XII of the 1995 Act. They provided simplified methods of proving matters that, as experience had shown, were unlikely in the normal course to be disputed by the defence.
The right to silence and the right to put the Crown to the proof
[8] In Beattie v Scott (1990 JC 320) the common law position of the accused at his trial was described by Lord Justice General Hope in the following way:
“… the question whether an accused person should ever be required to assist the Crown in any way in the presentation of the evidence at his trial … admits of only one answer, and that is in the negative. …
[The accused] is to be regarded purely as an object, as one whose role in the trial is an entirely passive one as it unfolds around him. It is on that basis that the Crown must present its case” (at p 323).
Lord Wylie, a former Lord Advocate and a criminal lawyer of long experience, put the point in this way:
“The Crown have all the resources of the state behind them in the preparation of a case but by the time a case has come to trial the Crown cannot rely on any assistance whatsoever on the part of the accused” (at p 324).
In Du Plooy v HM Adv (2005 (1) JC 1) it was taken for granted by this court that any accused was entitled to put the Crown to the proof of its case (at para [21]). In Gemmell v HM Adv (2012 JC 223) Lord Eassie said
“An accused is always entitled to put the prosecution to the proof of its case; and there may often be potential advantage to the accused in delaying a plea. Apart from the natural human tendency to put off the evil moment, one never knows but that the principal Crown witness may become unavailable, by reason of death or otherwise (at para [148]).”
Statements such as these have been influential in the drafting of professional codes of conduct. One of the central questions in this case is whether they are an accurate representation of the principle.
The Scottish Law Commission Report (1992)
[9] In 1992 the Scottish Law Commission reported on the problems that were being caused where the defence withheld co-operation in agreeing evidence about which there was no real controversy (Evidence: Report on Documentary Evidence and Proof of Undisputed Facts in Criminal Proceedings, (SLC No 137). The Commission recognised that passivity on the part of the accused could be to his advantage:
“He … has the chance of being acquitted because some matter which is not in issue but is essential for proof of the prosecution case may not be proved owing to some accident such as the disappearance, illness or forgetfulness of a witness. It may be doubted whether the public interest in the administration of justice should extend to the toleration of such technical and fortuitous acquittals, but the principle is not in doubt and, so long as it remains unqualified, limits the extent to which any reform is possible” (para 4.16).
[10] The Commission recommended that the prosecution should be entitled to prepare a draft statement of facts which appeared to be uncontroversial. These facts would be deemed to be conclusively proved unless the accused challenged any matter in the statement by way of a counter-notice (Recs 23-34). The Commission commented that
“ … the procedure under section 26 of the 1980 Act on which the statement of fact procedure is based, was said by some of our consultees to be sometimes frustrated by defence solicitors who lodged counter-notices … apparently as a matter of policy or routine, and thereafter failed to cross-examine the witnesses cited to speak to the facts in the certificates. It is also possible for a responsible defence solicitor, who has no obstructive policy or routine and may wish to admit indisputable facts as a matter of common sense, to be obliged not to do so by a client who insists on not co-operating with the prosecutor in any way” (para 4.61).
The Commission saw the problem as a matter of professional propriety. It recommended a consensual solution based, “at least in the first instance … on the goodwill and common sense of practitioners”...
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