Glass v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-General (Carloway),Lord Brodie,Lord Turnbull |
| Judgment Date | 30 October 2018 |
| Neutral Citation | [2018] HCJAC 70 |
| Docket Number | No 3 |
| Court | High Court of Justiciary |
| Date | 30 October 2018 |
[2018] HCJAC 70
Lord Justice-General (Carloway), Lord Brodie and Lord Turnbull
Al-Khawaja v UK (26766/05) [2011] ECHR 2127; (2012) 54 EHRR 23; [2012] 2 Costs LO 139; 32 BHRC 1; [2012] Crim LR 375
Croal v HM Advocate [2014] HCJAC 34 2014 SCL 423; 2014 GWD 15–271
GM v HM Advocate [2011] HCJAC 112 2012 SCCR 80; 2011 GWD 38–778
Hill v HM Advocate [2005] HCJAC 16; 2005 1 JC 259; 2005 SLT 634; 2005 SCCR 208
R v AC [2014] EWCA Crim 371
R v Riat [2012] EWCA Crim 1509 [2013] 1 WLR 2592; [2013] 1 All ER 349; [2013] 1 Cr App R 2; [2013] Crim LR 60
R v Setz-Dempsey and anr (1994) 98 Cr App R 24
Schatschaswili v Germany (9154/10) [2015] ECHR 1113; (2016) 63 EHRR 680
Phipson, SL, Law of Evidence (19th ed, Sweet and Maxwell, London, 2018), para 30.30
Scottish Law Commission, Hearsay Evidence in Criminal Proceedings (Scot Law Com no 149, February 1995), para 5.31 (Online: https://www.scotlawcom.gov.uk/files/9412/7989/7413/rep149.pdf (25 November 2018))
Justiciary — Evidence — Admissibility — Hearsay — Witness suffering from partial amnesia such that he could not remember giving police statement or certain events mentioned in that statement — Witness otherwise capable of testifying — Whether amnesia prevented the witness giving evidence in any competent manner — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 259
David Glass was charged on indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, the libel of which set forth, inter alia, four charges of lewd and libidinous practices. Following trial before a sheriff (T Hughes) and a jury in Dundee he was convicted of these charges. The sheriff imposed an extended sentence of six years, the custodial element being five years. The appellant thereafter appealed to the High Court of Justiciary against conviction and sentence.
Section 259(1) of the Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’) provides, in part, “a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings shall be admissible in those proceedings as evidence of any matter contained in the statement where the judge is satisfied” as to certain conditions, including “that the person who made the statement will not give evidence in the proceedings of such matter for any of the reasons mentioned in subsection (2)” (subsec (1)(a)). Subsection (2)(a) provides that one of the reasons is that the person who made the statement “is dead or is, by reason of his bodily or mental condition, unfit or unable to give evidence in any competent manner”. Section 260(2)(b) provides that a prior recorded statement of a witness is admissible where “the witness … indicates that the statement was made by him and that he adopts it as his evidence”.
The appellant was convicted after trial on an indictment containing four charges of lewd and libidinous practices. The first two charges concerned events between 1987 and 1989 and the second two events between 1994 and 1996. Evidence was given by two complainers, WW and JM. The appellant did not testify. A further charge of lewd and libidinous practices was libelled. The evidence in relation to this charge was provided by a further complainer, DW, a brother of WW.
Immediately before trial, the Crown lodged a notice under sec 259 of the 1995 Act seeking to adduce evidence of a statement made by DW to a police officer in 2014. The Crown submitted that DW was unfit and unable to give evidence in any competent manner by reason of a mental condition. It was a matter of agreement that DW had permanent memory loss as a result of a road traffic accident in 2017 and had no recollection of giving the statement or of the events described in it. A medical report was provided which stated that DW's memory was affected in relation to “certain previous events”. The sheriff granted the application under sec 259. Following a no case to answer submission, this further charge was withdrawn. The Crown asked the jury to take DW's statement into account in respect of the remaining charges.
The sheriff directed the jury that in order to convict the appellant, they would have to find that WW and JM were credible and reliable. He further directed the jury that the contents of DW's statement could be regarded as part of the evidence if they were satisfied that it had been made and accurately recorded and reported. Following conviction, the sheriff imposed an extended sentence of six years, the custodial element being five years.
The appellant appealed against conviction and sentence. The appellant contended that the sheriff had erred in admitting the written statement. He argued that “in any competent manner” where it appeared in sec 259(2)(a) referred to the means of giving evidence, not to the competency of the witness. DW could have attended court and answered questions. The statement could have been put to him. The appellant further submitted that the sentence imposed was excessive.
The respondent submitted that the purpose of sec 259 was to admit exceptions to the prohibition on hearsay other than when a witness was dead. It was accepted that DW could have given evidence and the statement could have been put to him. It was conceded that the content of the medical report was insufficient to merit the grant of the application. It was submitted that no miscarriage of justice had occurred. Minimal reliance had been placed on the statement. There had been no real possibility of a different verdict had it been excluded.
Held that: (1) an inability to remember the event of giving a statement did not amount to an unfitness or inability to give evidence within the meaning of sec 259 of the 1995 Act, which was not designed to deal with the situation where a witness was capable of giving evidence generally but had forgotten about a particular event (paras 19, 20); (2) no miscarriage of justice had occurred as the sheriff's directions to the jury had favoured the appellant and any impact which the statement might have had would have been minimal (paras 22, 23); (3) the sentence imposed was excessive and a sentence of three years' imprisonment fell to be substituted with the extended element of the sentence quashed as incompetent having regard to the age of the offences (para 26); and appeal against conviction refused and appeal against sentence allowed.
Observed that: (1) DW's evidence could have been given in a competent manner had DW confirmed in evidence that he adopted the statement bearing his signature in terms of sec 260 of the 1995 Act (para 20); and (2) if the submission of no case to answer had been sustained on the basis that DW's hearsay evidence was the “sole or decisive” evidence in respect of the...
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