Hanley v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-Clerk (Dorrian),Lady Paton,Lord Brodie |
| Judgment Date | 01 June 2018 |
| Neutral Citation | [2018] HCJAC 29 |
| Docket Number | No 16 |
| Court | High Court of Justiciary |
| Date | 01 June 2018 |
[2018] HCJAC 29
High Court of Justiciary
Lord Justice-Clerk (Dorrian), Lady Paton and Lord Brodie
Advocate (HM) v Harris (No 2) [2010] HCJAC 102; 2011 JC 125; 2010 SCCR 931; 2011 SCL 54; 2010 GWD 35–724
Advocate (HM) v Martin 1956 JC 1; 1956 SLT 193
Baxter v HM Advocate 1998 JC 219; 1998 SLT 414; 1997 SCCR 437
Dalton v HM Advocate 1951 JC 76; 1951 SLT 294
Docherty v Brown 1996 JC 48; 1996 SLT 325
Morton v Henderson 1956 JC 55; 1956 SLT 365
Scott v HM Advocate 1946 JC 90; 1946 SLT 140
Gordon, GH, The Criminal Law of Scotland (3rd Christie ed, W Green/Scottish Universities Law Institute, Edinburgh, 2000), vol 1, paras 1.32–1.36
Hume, D, Commentaries on the Law of Scotland Respecting Crimes (4th Bell ed, Bell and Bradfute, Edinburgh, 1844), i, XI–XV; i, 382–384
Macdonald, JHA, A Practical Treatise on the Criminal Law of Scotland (5th Walker and Stevenson ed, W Green, Edinburgh, 1948), p 186
Justiciary — Crime — Attempt to pervert the course of justice — Actus reus — Accused instructing third parties to dissuade a witness from identifying him at an identification parade — No averment or evidence that any steps were taken by the third parties — Whether charge of attempt to pervert the course of justice relevant — Whether sufficient evidence of attempt to pervert the course of justice
Marc Hanley was indicted for trial along with a co-accused at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, at the High Court of Justiciary in Livingston, on an indictment the libel of which set forth, inter alia, two charges of attempted murder and a charge of attempting to pervert the course of justice. He was convicted of the charge of attempting to pervert the course of justice and sentenced to four years' imprisonment. He appealed to their Lordships in the High Court of Justiciary against conviction and sentence.
The appellant was tried on an indictment which included charges arising from an assault and an attempt to pervert the course of justice in connection with that assault. He was convicted only of the attempt to pervert the course of justice. That charge libelled that, knowing a witness had provided a statement to the police, “was a witness against you and that she was due to attend an identification parade … at which she could identify you as being responsible for an alleged assault”, he did instruct others to induce or coerce that witness not to identify him at the parade. The witness did not identify the appellant, despite having said in an earlier police statement that she knew him and that she could identify him. He appealed and argued that, in the absence of any averments that steps were taken by others in furtherance of any instructions given by him, his conduct was not a sufficiently proximate act to constitute an attempt to pervert the course of justice and that, accordingly, that charge was irrelevant. Further, the appellant argued that, in the absence of evidence of any such steps, there had been insufficient evidence to convict.
Held that: (1) an instruction to others to influence the evidence of a witness constituted in itself the actus reus of an attempt to pervert the course of justice (paras 13–16); (2) the evidence that the appellant knew that the witness had given a statement to the police implicating him, that he knew that an identification parade was to be held for the purpose of securing her identification evidence of the assailant, that he had repeatedly instructed his associates to induce her not to identify him or anyone else, that he did nothing to recall those instructions, and that (being incarcerated at the time) he had done what he could to influence the witness, was sufficient for a conviction (para 17); and appeal against conviction refused and appeal against sentence allowed to the extent that sentence backdated until first appearance on petition.
Observed that: (1) the essence of the charge of attempting to pervert the course of justice was the interference with what would otherwise be expected to have come to pass in the ordinary and uninterrupted course of justice in the particular case (para 12); and (2) to dictate or influence the evidence of the witness in disregard of their previous statement was such an interference, irrespective of motive and whether or not the desiderated evidence was truthful (para 13).
Docherty v Brown 1996 JC 48 considered and
HM Advocate v Harris (No 2) 2011 JC 125 followed.
The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Dorrian), Lady Paton and Lord Brodie, for a hearing, on 16 May 2018.
At advising, on 1 June 2018, the opinion of the Court was delivered by the Lord Justice-Clerk (Dorrian)—
Opinion of the Court— [1] The appellant was indicted, inter alia, on two charges of attempting to murder Jay Fraser (charges 1 and 3) and one of attempting to pervert the course of justice (charge 2). After trial he was convicted of the latter charge, as amended. The amended libel was that on 20 and 21 June 2016, at HMP Barlinnie and elsewhere, he:
‘[K]nowing that Agnes Boyd … or another female witness who had provided a statement to the police, was a witness against you and that she was due to attend an identification parade on 21 June 2016 at which she could identify you as being responsible for an alleged assault on Jay Fraser … did contact Robert Duncan and Daniel Baxter … by telephone and did instruct them to induce or coerce said Agnes Boyd or another female witness who had provided a statement to the police, not to identify you or anyone else as being responsible for said crime at said identification parade, and this you did with intent to pervert the course of justice and you did thus attempt to pervert the course of justice.’
[2] Included in the original charge, prior to the words ‘and this’, were the words ‘whereby Agnes Boyd attended said identification parade and did not identify you or anyone else having been induced or coerced to do same’. The Crown, however, successfully moved to amend the charge, and inter alia these averments were deleted. Arguments that: (a) the amended charge was irrelevant; and (b) that there was insufficient evidence to prove the offence were repelled by the trial judge.
[3] On 4 June 2016 the witness Agnes Boyd had given the police a signed statement in which she clearly implicated an individual known...
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