(1) Peter Fitzpatrick, (2) James John Mcfeeley And (3) Mark Phillips Against The Procurator Fiscal, Kilmarnock

JurisdictionScotland
JudgeLord Drummond Young,Lady Paton,Lady Clark Of Calton
Neutral Citation[2014] HCJAC 69
Date08 July 2014
Docket NumberXJ60/14,
CourtHigh Court of Justiciary
Published date08 July 2014

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 69
Lady Paton Lord Drummond Young Lady Clark of Calton

Appeal Nos: XJ60/14, XJ61/14
and XJ62/14

OPINION OF LADY PATON

in

APPEALS AGAINST CONVICTION

BY STATED CASE

by

(FIRST) PETER FITZPATRICK; (SECOND) JAMES JOHN McFEELEY; and (THIRD) MARK PHILLIPS

Appellants;

against

PROCURATOR FISCAL, KILMARNOCK

Respondent:

_______

First Appellant: Wallace, Solicitor Advocate; Capital Defence Lawyers

Second Appellant: C Smith; Paterson Bell

Third Appellant: I Paterson, Solicitor Advocate; Paterson Bell

Respondent: Prentice QC (sol adv) AD; Crown Agent

8 July 2014

Introduction
[1] On 20 August 2013 at a summary trial in Kilmarnock Sheriff Court the appellants were found guilty of forming a fraudulent scheme to defraud Transport Scotland of sums totalling about £14,100 during a period 5 February 2010 to 23 November 2010.
The appellants were bus-drivers who worked for a small bus company called Harte Buses. The company operated three buses on one route, Largs to Braehead via Johnstone. At the relevant time there were 8 drivers: 3 full-time employees; 3 part-time employees; and the two Harte brothers who owned the business. The modus operandi of the scheme involved scanning lost or stolen concessionary travel cards into Harte Buses’ electronic ticket machines, thus creating fictitious trips. Harte Buses then received payment for those fictitious trips from Transport Scotland.

[2] The appellants now appeal against conviction.

The Crown evidence
[3] The evidence led by the Crown is summarised in each stated case.
Only a brief outline is given here.

(a) Transport Scotland’s staff: Witnesses from Transport Scotland stated that certain patterns emerged from their records, suggesting the use by Harte Buses of concessionary bus cards which had been lost by or stolen from passengers. The passengers had received replacement cards, but the original cards had not been de-activated. Transport Scotland’s records showed that cards reported lost or stolen had previously been used on many bus routes, but from certain dates were used solely on Harte buses on the one route, often many times on the same day. Transport Scotland decided to carry out a “field operation” investigating Harte Buses, and focusing upon 24 “suspect cards” which, according to their records, had been lost or stolen. In particular it was decided that their staff would board the three Harte buses en route at roughly the same time on 23 November 2010. They would then make inquiries of the bus-drivers, guided by a list of questions provided by Mr Mellis, Transport Scotland’s operations manager. Mr Mellis gave his staff a briefing, including a suggested introduction on boarding the bus, and the words of the common law caution.

Details of the evidence relating to the investigation carried out on 23 November 2010 are contained in the stated cases. The first appellant made no admissions and no cards were recovered from him or on his bus. The second appellant, in response to a question, handed over 7 concessionary bus cards and admitted scanning them into his electronic ticket machine that day, in the absence of the relevant passengers. His interview included the following passage (page 97 of his stated case):

“Q Of the 7 cards, how many used today?

A All 7 at some point.

Q Why?

A To keep numbers up (passengers) To keep himself in job.

Q Were you asked to do this?

A No.

Q What gain is there to yourself?

A None, don’t want to lose my job.

Q Has there been any hint that you would lose your job if you didn’t?

A No.

Q How long have you been carrying out this conduct?

A Two weeks – a month.

Q Is anyone else in the company aware that you do this?

A No.”

The third appellant handed over 3 cards, and told the Transport Scotland staff that he had got them in the company office, and had been asked to “put a couple of extra ones through”.

(b) Bus passengers: Seven of the bus passengers whose lost or stolen cards were used on the Harte Buses route gave evidence. Each confirmed having lost his or her card and having received a replacement card. Each denied ever travelling on a Harte bus.

(c) Robin Harte of Harte Buses: Mr Robin Harte, one of the two brothers who owned the bus company, gave evidence. The sheriff noted at pages 36-37 of the first appellant’s stated case:

“… The only witness whose credibility and reliability gave me cause to doubt was a Robin Harte who claimed to have worked for his brother’s limited company. He confirmed the company had ceased trading in May 2012, but was vague as to his own specific job title and duties.

Initially on examination in chief, he stated he had questioned all 3 drivers about scanning cards when the passenger was not present, but on re-examination stated he had got it wrong, and had not questioned the drivers, nor had he been given any explanation.

He accepted that lost cards should have been returned to Transport Scotland instead of being kept in the office. He claimed to have little knowledge of the concessionary travel scheme, or of the payments received from Transport Scotland which he said were a matter for his brother Peter from whom we did not hear.

He conceded that the 3 appellants were the company’s main drivers, but later was inconsistent, stating that Mr J McFeeley [the second appellant] spent more time in the garage as a mechanic. In November 2010 he stated the main drivers were Peter Fitzpatrick [the first appellant], Stewart Crichton, and Mark Phillips [the third appellant].

All in all he was extremely shifty and evasive, and eager to avoid being pinned [down] in any way whatsoever. I could place no reliance on any aspect of his evidence which was clearly tailored to principally exculpate him in any wrong doing …”

[4] The questions posed by the sheriff in each stated case are:

1. Was I entitled to admit evidence of all 3 appellants’ interviews with employees of Transport Scotland?

2. In the light of the evidence led, was I correct in repelling all 3 appellants’ submissions of No Case to Answer?

3. On the facts stated, was I entitled to convict all 3 accused?

Submissions for the first appellant
[5] Mr Wallace submitted that the sheriff had erred in rejecting the submission of no case to answer in respect of the first appellant.
The first appellant had made no admissions. No suspect cards were found in his possession or on his bus. While the electronic machine on his bus revealed that 7 suspect cards had been scanned that day (23 November 2010), only one card-holder, John Campbell, had been led in evidence to confirm the loss of his cards in 2010 (two in number) and the fact that he had not made a journey on the Harte bus on 23 November 2010. No other card-holder named on the remaining suspect cards gave evidence. The only evidence relating to those cards came from Transport Scotland’s witnesses and records, to the effect that the cards were recorded as having been reported lost. The possibility that the cards had subsequently been found by or returned to the card-holders had not been excluded by the evidence led by the Crown. Nor had the Crown evidence excluded the possibility that someone other than the first appellant had scanned the cards that day. There was simply insufficient evidence for a conviction. The appeal should be allowed and the conviction quashed.

Submissions for the second appellant
[6] On behalf of the second appellant, Miss Smith advanced 5 arguments.

[7] Ground 1: The contents of the interview were inadmissible: The evidence of the interview was inadmissible. The test was fairness, and what occurred was not fair. This was not a question of an “excusable irregularity” (Stone v HM Advocate 2009 SCCR 71; HM Advocate v Higgins 2006 SLT 946). It had not been made clear to the second appellant that this was an investigation into the criminal offence of fraud which might lead to court proceedings in which the second appellant might be a primary suspect. To a layman, fraud was not a uniquely criminal offence. It could arise in the context of employment, where (at worst) disciplinary measures might follow, or where the targets of censure might be the owners of the company. Indeed it was not clear whether the second appellant was being spoken to as a witness, or as a suspect. Questions from uniformed police officers might alert someone to the fact that a crime was being investigated, but a casual visit by Transport Scotland staff would not necessarily do so. The location of the questioning was also important: it was the second appellant’s place of work, his bus. He was not invited to attend at another building, or the office of Transport Scotland, which might have given him a sense of the importance of the answers he gave. While it was accepted that he had been given a common law caution, that was of little help if he did not understand the use to which his answers might be put, and in what context. What had been said by way of introduction and caution could apply equally to an employment situation, or to a Transport Scotland internal investigation. If the second appellant had been unaware of the importance and implications of the questioning, he would be less likely to request that his solicitor be present. The second appellant had no understanding of the nature and extent of the questioners’ authority. For example, he did not know that they had no power to detain him, or to search him or his vehicle; that he was free to leave at any time; or that he could change his mind about having a solicitor present – which might be relevant if the interview became increasingly serious. The completed pro forma form which the second appellant was asked to sign at the end of the interview was headed “witness statement”. He was plainly being invited to regard himself as a witness, yet it would appear that he was being interviewed as a suspect because of the previous analysis of Transport Scotland’s records...

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