Gordon Beurskens Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Marnoch,Lord Justice Clerk |
| Judgment Date | 26 February 2013 |
| Neutral Citation | [2014] HCJAC 99 |
| Date | 26 February 2013 |
| Docket Number | XC28/13 |
| Court | High Court of Justiciary |
| Published date | 12 September 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Justice Clerk Lady Dorrian Lord Marnoch
| [2014] HCJAC 99 Appeal No: XC28/13
OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL UNDER SECTION74(1) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
GORDON BEURSKENS
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
_______
|
Appellant: I Bryce, Solicitor Advocate; Central Court Lawyers
Respondent: A Prentice QC (sol adv) AD, the Crown Agent
26 February 2013
Introduction
[1] The appellant has been indicted for trial at Livingston Sheriff Court on a charge of embezzling some £85,000 from a James and Janet McQue over the period August 2006 to August 2009. The allegation is that he obtained a mandate to operate the bank accounts of the McQues and essentially transferred money from these accounts to himself. The first diet was originally scheduled for June 2012, with the trial diet in the following month.
[2] The appellant raised three issues. First, he lodged a plea in bar of trial based upon the delay in the prosecution which, it is said, has resulted in the loss of the evidence of Mr McQue, who died in November 2011. Secondly, he opposed the grant of five applications by the Crown under section 259 of the Criminal Procedure (Scotland) Act 1995 seeking to allow hearsay evidence of what Mrs McQue and a witness, JW, are alleged to have said to the police. This was on the basis that the statements were in the nature of precognitions. Thirdly, he maintained that, were the hearsay to be admitted, the appellant’s Article 6 rights would be breached. Associated devolution minutes have, where appropriate, been lodged. After sundry diets, on 4 January 2013 the sheriff found against the appellant on each issue, but granted leave to appeal.
The Investigation/Prosecution
[3] On 9 December 2008, the chief executive of West Lothian Council made a complaint concerning the corruption of certain councillors in relation to planning matters. On 22 December 2008, the police launched an investigation into the activities of the appellant and one other councillor in that regard. In April 2009, during enquiry into the appellant’s bank accounts, the police noted that there were transfers between the accounts of the McQues and those of the appellant and his partner. In June 2009, the police sent a report to the procurator fiscal, who directed that further enquiries be made. On page 62 of this report, the police recorded that the appellant had befriended the McQues and had set up a third part mandate relative to their bank account. It stated “Statements need to be taken to prove a fraudulent scheme”. On 3 July 2009 the procurator fiscal expressed general agreement with the plan of the police to take such statements.
[4] The police first spoke to Mrs McQue (then aged 81) in July 2009 and interviewed her daughter in August 2009. There were discussions between the police and the procurator fiscal around this time. On 14 August 2009, a lengthy “witness statement” (Pro 121) was taken from Mrs McQue. This consists of the standard front sheet, which notes that the statement was taken at Mrs McQue’s home and that it was authenticated by being read over to Mrs McQue and signed by her. It states that the statement was tape recorded. The document extends to some 26 pages of manuscript and indeed appears to be signed on each page by Mrs McQue. It details the McQues meeting with the appellant in the mid-1990s and refers to their developing relationship. It specifically states that the appellant had persuaded the McQues “to sign a thing for the bank to let him deal with the bank stuff”. It deals with various account transactions and the cashing in of an ISA. A second, much shorter, statement (Pro 122) was taken on 9 October 2009, referring to specific account transactions. This was also signed on each page but it was not taped.
[5] On 1 December 2009 the appellant and his partner were detained and interviewed by the police before being released on an undertaking. It is not entirely clear what the formal grounds for this detention were but it seems that the subsequent interview did relate, in part, to his dealings with the McQues. On 16 December, the procurator fiscal cancelled the undertakings pending further consideration of the case. This was followed by a meeting between the police and the procurator fiscal; the latter giving instructions on the medical assessment of, and the need to re-interview, certain witnesses. Short signed third and fourth statements (Pro 123 and Pro 124) were taken from Mrs McQue on 8 January and 3 February 2010.
[6] On 14 July 2010, there was a “full” report from the police to the procurator fiscal covering a variety of allegations. There was then a gap in time before the procurator fiscal submitted a report to Crown Office on 17 June 2011, which was followed by instructions from Crown Counsel to proceed. The appellant appeared on petition on 3 August 2011 and was indicted in May 2012.
[7] Mrs McQue is still alive. In terms of a psychiatric report dated 17 September 2009, which was compiled shortly after her first statement, she was not suffering from any mental illness, although she had mild depression secondary to her husband having been put into long-term care. The psychiatrist formed the view that she was capable of being interviewed and giving evidence. However, slightly over two years later, in terms of a further psychiatric report from a consultant psychiatrist dated 1 March 2012, it was said that she presented with “significant pathological cognitive impairment which is likely to be secondary to the results of cerebrovascular disease”. She was described as “not currently fit to attend court as a witness”. The psychiatrist expressed his belief that, if she did so, “this would be detrimental to her mental health and would cause unnecessary distress”. This report does not say that she could not give evidence, but no point appears to have been taken in that regard.
[8] Mr McQue died in November 2011. The sheriff found that, by the time the allegations came to light, he had already been suffering from dementia and was in a care home. No statement was ever taken from him by the police.
Delay
[9] It was accepted by the appellant that delay, even in the form of a breach of the reasonable time requirement in Article 6 of the European Convention, does not of itself result in a bar to further proceedings. There must be something in addition which renders the trial of the accused “unfair” (Spiers v Ruddy 2009 SC (PC) 1, Lord Hope at 8, Lord Rodger at 9, reversing R v HM Advocate 2003 SC (PC) 21). The test to be applied was whether the delay had caused such prejudice to the prospect of a fair trial that it would be oppressive to require the accused to stand trial (McFadyen v Annan 1992 JC 53). That, in turn, required a consideration of whether the prejudice was so grave that it could not be removed by appropriate directions given to the jury by the sheriff. The contention was that the appellant had been prejudiced by the delay, in particular because of the death of Mr McQue in November 2011, shortly after the appellant had appeared on petition. Proceedings had already commenced against the appellant, in Convention terms, by his being detained on 1 December 2009. The issue of his dealings with the McQues had been raised at that time, although the focus of the detention had been on mortgage frauds. Mr McQue was then alive. Had the Crown not delayed in putting him on petition until August 2011, the defence would have had the opportunity to take a statement from him. This would, it was asserted, have been beneficial to his defence since it would have confirmed that the appellant’s actions had been carried out with Mr McQue’s consent. A further witness, JW, had also died during the course of 2012. The appellant had been able to precognose her but, for the same reasons as were advanced in relation to the “statements” taken from Mrs McQue (see infra), the precognition was inadmissible, even although the Crown were prepared to agree it as accurately reflecting what JW had said.
[10] The sheriff found that Mr McQue had been mentally unfit by September 2009, which was at an early stage in the police investigation. He would never have been able to give evidence at trial and would probably not even have been able to give a statement. In these circumstances the sheriff felt unable to conclude that an unfair trial would inevitably result as a consequence of the delay in prosecuting the case. The sheriff considered that the precognition of JW was not entirely exculpatory, but that it was significant that the Crown had been prepared to agree it as if it were a “statement”. In any event, he did not consider that the delay had been unreasonable, given the complexity of the allegations against the appellant, including those not connected to the McQues.
[11] The Court is unable to reach the view that there has either been unreasonable delay in the Convention sense or that any delay has been such that the continued prosecution of the appellant would amount to oppression in terms of McFadyen v Annan 1992 JC 53; that is that any resultant prejudice could not be removed by an appropriate direction to the jury. By the time the investigation had begun in earnest in relation to the appellant’s dealings with the McQues, Mr McQue appears to have been incapable of giving a statement. In that context, the date of his death is not significant. Even if the police and the procurator fiscal had acted with greater swiftness and the appellant had been placed on petition even a year earlier, this would have made no difference to the state of the evidence relative to Mr McQue. In that connection, therefore, no prejudice has been shown to have occurred as a result of any delay. The Crown have agreed to treat the appellant’s precognition of JW as if it were a statement made by her. Given the...
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