Barnes v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 06 October 2000 |
| Docket Number | No 8 |
| Date | 06 October 2000 |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lord Philip and Lord Reed
Justiciary—Procedure—Counsel for co-accused asked accused to give evidence against the co-accused—Whether thereafter entitled to cross examine accused on previous offences or character—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 2661
Section 266(4) of the Criminal Procedure (Scotland) Act 1995 provides that an accused shall not be asked any question tending to show he has previous convictions, unless inter alia (c) the accused has given evidence against a person charged in the same proceedings.
The pannel, B, went on trim along with a number of co-accused, including M, on a charge of murder. At the trial M gave evidence. In cross examination of M, B's counsel asked whether B was kicking the victim, and M responded, “Yes”. B's counsel then asked M about his history, but M's counsel's objected, and, after argument, the trial judge sustained the objection. B was convicted and appealed against conviction, used on the trial judge's decision to uphold the objection and refuse to permit B's counsel to cross-examine M on his previous convictions. B argued that M had “given evidence against” B in terms of sec 266(4)(c) and B's counsel had therefore been entitled as a matter of right to cross examine M on his record, even although counsel had deliberately engineered the situation, precisely with the aim of securing that right to cross examine. The Crown argued that sec 266(4)(c) did not apply because (1) M's answers were not truly “evidence against” B; and (2) the questioning had been deliberately engineered with the aim of securing a right to cross examine.
Held (1) that M's evidence that B kicked the deceased was “evidence against” B (p 64H–I); (2) that subsec (4)(c) was not intended to confer a right to cross-examine on a co-accused whose counsel deliberately forced the accused to give evidence against the co-accused with the avowed purpose of putting himself in a position to exercise that right and thereby damage the credibility and reliability of the accused (p 67H); and appeal against convictionrefused.
Observed that the court's decision and reasoning were confined to the situation where the questions were put with this one purpose in mind, and would not apply, for instance, where the accused's answer resulted from a question put recklessly or carelessly (p 67H–I).
Craig Brown Johnstone Gillespie Barnes was charged on an indictment at the instance of Colin David Boyd, QC, Her Majesty's Advocate, together with a number of co-accused, on a charge of murder by causing the victim to fall to the ground, seizing him by the hair, repeatedly punching, kicking and stamping on his head and body and repeatedly striking him with a belt, whereby he was so severely injured that he died. The pannel pled not guilty and the cause came to trial in the High Court of Justiciary.
An objection by a co-accused to a question asked by the pannel's counsel was upheld. The pannel was convicted and appealed to the High Court of Justiciary.
Cases referred to:
Burton v HM Advocate 1979 SLT (Notes) 59
Leggate v HM AdvocateSC 1988 JC 127
McCourtney v HM AdvocateSC 1977 JC 68
Murdoch v TaylorELR [1965] AC 574
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Rodger), Lord Philip and Lord Reed for a hearing.
At advising, on 6 October 2000, the opinion of the court was delivered by the Lord Justice-General (Rodger).
Opinion of the Court—[1] This is an appeal against conviction by Craig Brown Johnstone Gillespie Barnes who went to trial along with a number of co-accused, including James Joseph McGinley, on a charge of murdering Gary Harper by causing him to fall to the ground, seizing him by the hair, repeatedly punching, kicking and stamping on his head and body and repeatedly striking him with a belt, whereby he was so severely injured that he died. The appeal is based on the trial judge's decision to uphold an objection by counsel for McGinley and to refuse to permit counsel for the appellant to cross-examine McGinley on his previous convictions.
[2] Section 266 of the Criminal Procedure (Scotland) Act 1995 provides inter alia: “(1) Subject to subsections (2) to (8) below, the accused shall be a competent witness for the defence at every stage of the case, whether the accused is on trial alone or along with a co-accused. (2) The accused shall not be called as a witness in pursuance of this section except upon his own application or in accordance with subsections (9) or (10) below. (3) An accused who gives evidence on his own behalf in pursuance of this section may be asked any question. in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged. (4) An accused who gives evidence on his own behalf in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with, any offence other than that with which he is then charged, or is of bad character, unless—… (c) the accused has given evidence against any other person charged in the same proceedings.”
[3] A relatively short account of the circumstances as revealed by the evidence is sufficient. The attack on the deceased was initiated by McGinley but the appellant soon joined in—they both claimed to have been acting in self-defence. But the evidence generally indicated that the appellant continued the attack on the deceased after he was on the ground and that others joined in. It also indicated that the appellant and McGinley were still involved in attacking the deceased after the others had moved off. There was evidence that one of the attackers delivered blows with his feet after all the others had left. While the balance of the evidence suggested that the attacker in question was McGinley, one witness...
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