Her Majesty;s Advocate Against Jason Mcallister
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2014] HCJ 111 |
| Court | High Court of Justiciary |
| Date | 06 December 2013 |
| Docket Number | IND/2012-18 |
| Published date | 07 October 2014 |
| HIGH COURT OF JUSTICIARY
| |
| IND/2012-18 | [2014] HCJ 111
OPINION OF LORDBOYD OF DUNCANSBY
in causa
HER MAJESTY’S ADVOCATE
against
JASON McALLISTER
________________
|
Crown: Divers, advocate depute
Accused: Crowe; Michael S Allan, Solicitors
6 December 2013
[1] On 6 December 2013 I heard substantive argument on two motions made by Mr Crowe for the accused Jason McAllister. Both motions related to the conduct of the determination hearing under the Proceeds of Crime Act 2002 (the Act). The first was that I should order that the court should be cleared during the evidence of the accused Jason McAllister. The second was that I should make an order under section 11 of the Contempt of Court Act 1981 prohibiting publication of “a name or other material linking the accused to a particular individual.” I refused both motions in hoc statu.
Background
[2] Jason McAllister was convicted on 9 January 2012 at an accelerated diet under section 76 of the Criminal Procedure (Scotland) Act 1995 of being concerned in the supply of cocaine for a period during September and October 2011 contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. He was on licence at the time having been convicted of an analogous offence in 2003 for which he received a sentence of 10 years imprisonment. On 16 May 2012 the court sentenced him to a cumulo sentence of 5 years and 1 month imprisonment including 12 months in respect of an order under section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.
[3] The prosecutor served a statement under section 101 of the Act. Answers were lodged under section 102 of the Act. After sundry and somewhat protracted proceedings the determination hearing was set down for 5 and 6 December with a pre-hearing on 4 December 2013. For reasons which are unimportant for these purposes the determination hearing did not proceed and in due course I ordered that it be heard over three days in March 2014. The motions were made orally at the pre-hearing. I invited Mr Crowe to make a written submission which he did the following day. The motions were opposed by the Crown.
Submission for the accused
[4] Mr Crowe said that his client’s position was that his involvement in the offence which gives rise to these proceedings came about as a result of threats and an obligation to repay money. The threats had come from a particular individual. This had been taken into account by the judge in sentencing Mr McAllister.
[5] Prior to the commission of this offence in June 2011 Mr McAllister’s house had been set on fire. A letter from Grampian police dated 10 January 2012 confirms that the police were, at that time, investigating an alleged wilful fire-raising at his home address. On 6 December 2011 a letter was sent to the accused in HMP Aberdeen. Within the envelope was a handwritten letter wrapped around a .22 calibre bullet. The letter made mention of the diet for sentencing in January 2012 and that there would be a welcoming party awaiting his arrival (presumably in prison). A further letter was sent on 31 January 2012 containing threats against his family and telling him to keep his mouth shut and pay his debts. The handwriting appeared to be similar to the writing in the earlier letter. These threats are vouched by a copy police memorandum attached to the written submission. A letter from Grampian police dated 5 January 2012 records that Jason McAllister has not co-operated with any police enquiry and has not provided a statement naming any person he believes may be responsible. Additionally the letter said that there is no recorded intelligence to suggest that Mr McAllister is at risk from any third party and without his full co-operation this was unlikely to change.
[6] I was informed that recently Mr McAllister had received a text message to the effect that should he in any way mention or allude to the activities of this particular individual the previous threats would be carried out. This had not been reported to either the police or prison authorities. Mr Crowe also told me that he understood Mr McAllister had discussed various matters with “them” from which he understood that there was a general threat against him. There was no further specification as to when this took place, who “they” were or what these “discussions” entailed. They had not been reported to the authorities.
[7] Mr Crowe informed me that Mr McAllister maintained that his general criminal conduct was restricted to the terms of the section 76 indictment and the agreed narrative. Any benefit is said to be restricted to the matters for which he pled guilty. That was to be contrasted with the Crown’s position that not only was he involved in these matters but throughout the entire period from 28 March 2008 and 10 October 2011 he had benefitted from a criminal lifestyle. Jason McAllister wished to give evidence in support of this position unencumbered, as he put it, by threats of violence and death. Without the protection of the court in allowing him to present the full background his evidence would be inhibited by the fear of reprisal. This evidence was said to be crucial to the defence case in allowing a proper assessment of his reliability and credibility.
[8] Mr Crowe submitted that to refuse to make the orders sought would infringe Mr McAllister’s rights under articles 2, 3, 6 and 8 of the European Convention on Human Rights. Fundamentally, he submitted, Jason McAllister is entitled to the protection of the court in line with its duty to protect citizens of the state. Articles 2 and 3 were engaged because of the threats issued against him. He referred me to the decision of Lord Glennie in the Outer House in the petition of the British Broadcasting Corporation, Applicants 2013 SLT 324. A balancing exercise was not necessary because the right to life far outweighs other interests. Article 6 was engaged; it provided that the press or public may be excluded from all or part of the trial in the interests of public order in a democratic society. Article 8 was involved because of the family situation. He accepted that article 10 was also engaged but submitted that the qualification to the right applied to this case in the interests of public safety. So far as the motion to close the court to the public is concerned he submitted that the Court of Session had such a power and that it would be surprising if the High Court of Justiciary did not also have such a power. Lord Hodge in HMA v M 2007 SLT 462 accepted that there was such a power.
Crown
[9] The Advocate Depute opposed the motions for two reasons. First he said that the evidence which Mr Crowe sought to adduce was irrelevant for the determination of these proceedings. Secondly he maintained that a balancing exercise favours the article 10 rights.
[10] So far as relevancy is concerned the advocate depute said that it was not in dispute that the accused had a criminal lifestyle. Accordingly the issue for the court was to decide whether he had benefitted from his general criminal lifestyle in terms of section 92(5)(b) of the Act. Where the court had decided that the accused had a criminal lifestyle it must make certain assumptions in deciding whether or not he had benefitted from his general criminal conduct and in deciding the benefit from that conduct; section 96. He described these assumptions as fairly draconian. In essence the court must assume that every penny earned over the relevant period came from the proceeds of crime. The accused offers to prove on a balance of probabilities that it is incorrect to make these assumptions. Accordingly the background as to how it was that the accused came to commit the offence was irrelevant. The parties positions were set out in the prosecutor’s statement and schedules thereto and the response.
[11] Turning to the balancing exercise the advocate depute submitted that the default position was that in an open and democratic society judicial proceedings should be in public with the press able to report these proceedings. These rights were embodied in articles 10 and 6 of the ECHR. In determining whether to make an order under section 11 of the Contempt of Court Act the court must be satisfied that there is a real risk that the accused rights under articles 2 and 3 would be infringed if the order was not made. He submitted the information before the court did not allow such a judgement to be made at this stage. The test was set out in the opinion of Lord Kingarth in A v Secretary of State for the Home Department 2013 SC 533 at paragraphs 59 and 60. Any derogation from article 10 requires to be convincingly established.
[12] The advocate depute accepted that the court had an inherent power to exclude the public in the interests of justice. Accordingly it had the power to make an order under section 11 of the Contempt of Court Act 1981; HMA v M.
Discussion
[13] Section 11 of the Contempt of Court Act 1981 is in the following terms:
“In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.”
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