As v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Menzies,Lord Turnbull |
| Judgment Date | 24 September 2020 |
| Neutral Citation | [2020] HCJAC 42 |
| Date | 24 September 2020 |
| Court | High Court of Justiciary |
| Docket Number | No 5 |
[2020] HCJAC 42
Lord Justice General (Carloway), Lord Menzies and Lord Turnbull
Al-Khawaja v UK (26766/05) [2011] ECHR 2127; (2012) 23 EHRR 23; [2012] 2 Costs LO 139; 32 BHRC 1; [2012] Crim LR 375
Alongi v HM Advocate [2017] HCJAC 18; 2017 SCCR 287; 2017 SCL 455; 2017 GWD 12-176
Beurskens v HM Advocate [2014] HCJAC 99; 2015 JC 91; 2014 SLT 965; 2014 SCCR 447; 2014 SCL 708
Graham v HM Advocate [2018] HCJAC 69; 2019 JC 62; 2019 SCCR 19; 2018 GWD 38-467
Horncastle v UK (4184/10) [2014] ECHR 1394; (2015) 60 EHRR 31
Lees v HM Advocate [2016] HCJAC 16; 2016 SCL 377; 2016 GWD 6-130
N v HM Advocate 2003 JC 140; 2003 SLT 761; 2003 SCCR 378
Schatschaschwili v Germany (9154/10) [2015] ECHR 1113; (2016) 63 EHRR 14; 41 BHRC 474; [2017] Crim LR 140
Justiciary — Evidence — Admissibility — Hearsay — Whether reliance by Crown on police statement by a deceased complainer for purposes of mutual corroboration was decisive — Whether such reliance rendered trial unfair — Whether lack of adequate safeguards in breach of the accused's rights under the European Convention on Human Rights and Fundamental Freedoms, Art 6
Justiciary — Procedure — Fair trial — Whether reliance by Crown on a police statement by a deceased complainer for purposes of mutual corroboration was decisive — Whether such reliance rendered trial unfair — Whether lack of adequate safeguards in breach of the accused's rights under the European Convention on Human Rights and Fundamental Freedoms, Art 6
AS was charged at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, on an indictment libelling charges of indecent assault, attempted rape and rape. On 11 November 2019, in the High Court of Justiciary at Edinburgh, the appellant was convicted. The appellant appealed against conviction to their Lordships in the High Court of Justiciary.
The appellant was found guilty of the indecent assault, attempted rape and rape of his sister, AB, between 1975 and 1980, and an indecent assault on a male cousin, CD, between 1976 and 1977. The incidents involving AB were not reported by her until 2017. A police statement was subsequently obtained from CD, but by the time of the trial he had died. At trial, AB spoke to the terms of the libel, and to visiting her aunt and uncle's house, where CD lived, on Christmas Day, and to the appellant playing with CD during these visits. A police officer spoke to the making of a statement by CD, which described an incident said to have taken place at his home on Christmas Day of 1976 or 1977, when AB was present and the appellant had been told to go and play with CD. The appellant lodged a compatibility issue minute based upon the Crown's reliance on the hearsay of CD. The trial judge refused the minute on the basis that the hearsay of CD could not be characterised as decisive and, in any event, there were sufficient safeguards to ensure that the trial was fair.
The appellant argued that the trial judge had erred in both respects. The relevant test was whether the hearsay of CD had been of such significance or importance that it was likely to be determinative. There had been no direct support for the statement, such as a de recenti account or other evidence. The only available statement had been provided 40 years after the event. The appellant had faced substantial difficulties in mounting a realistic challenge to the credibility of CD's account, and safeguards were insufficient to prevent unfairness in the context of mutual corroboration.
Held that: (1) the primary task for the court was to evaluate the overall fairness of the proceedings, having regard to the rights of the defence to examine witnesses, but also the interests of the public and victims in seeing that crime was prosecuted properly, and while the admission of hearsay was an important factor to balance in the scales because of the inherent risks which such admission carried, the use of police statements was not per se inconsistent with the rights of an accused person under Art 6(1) and (3)(b) of the European Convention on Human Rights and Fundamental Freedoms, whether or not the hearsay was the sole or decisive evidence; (para 16); (2) whether evidence was to be regarded as decisive was to be narrowly interpreted as meaning evidence of such significance or importance as was likely to be determinative of the outcome of the case, and even where it was not clear whether the hearsay was the sole or decisive evidence, the court required to examine whether there were sufficient counterbalancing factors to permit a fair and proper assessment of the reliability of the evidence in order for the trial to be considered fair. The availability of corroborative evidence, including evidence of a comparable offence, was a considerable safeguard, especially where the witness testifying to the latter had been tested in cross-examination, and the fact that the court approached the untested evidence with caution and gave the jury specific directions to that effect were important features, with the opportunity given to the accused to present his own version of the events and to cast doubt on the credibility of the hearsay, including the proffering of any motives which the witness may have for lying, being another relevant factor. On any view, CD's evidence had not been determinative of the three charges in respect of AB as, although it may have been necessary for conviction in terms of the Scots law requirement for corroboration, that was not a requirement of the European Convention, and the appellant had been able to challenge the testimony of AB in the conventional manner (paras 18, 19); (3) the nature of CD's statement in respect of the remaining charge was important; the fact that it was in written form, taken in the relatively formal setting of a police station in front of a police officer and a responsible...
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JB v HM Advocate
...whether the safeguards currently employed in the Scottish legal system were adequate to prevent unfairness (paras 39, 42). AS v HM Advocate 2021 JC 38 applied. Cases referred to: AS v HM Advocate [2020] HCJAC 42; 2021 JC 38; 2020 SCCR 403 Advocate (HM) v ARK [2013] HCJAC 107; 2013 SCCR 549;......