Leggate v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 08 July 1988 |
| Date | 08 July 1988 |
| Docket Number | No. 25. |
| Court | High Court of Justiciary |
FULL BENCH
L. J.-G. Emslie. L. J.-C. Ross. Lords Dunpark. McDonald. Wylie. Allanbridge. Mayfield.
Evidence—Admissibility—Previous convictions—Witness—Accused as witness—Character—Nature or conduct of the defence necessarily involving imputations as to character of prosecution witnesses—Whether cross-examination as to accused's character permissible—Criminal Procedure (Scotland) Act 1975 (cap. 21) sec. 141 (1) (f) (ii).1
Evidence—Character—Cross-examination as to character of accused—Discretion—Trial judge's discretion—Nature or conduct of defence necessarily involving imputations as to character of prosecution witnesses—Whether trial judge ought to have excluded cross-examination as to the character of accused in the exercise of his discretion—Whether failure in exercise of discretion—Whether discretion unfettered—Whether general rule that discretion be exercised in favour of the defence—Criminal Procedure (Scotland) Act 1975 (cap. 21) sec. 141 (1) (f) (ii).1
Procedure—Solemn procedure—Previous convictions—Whether previous convictions available to trial judge in presence of the jury—Criminal Procedure (Scotland) Act 1975 (cap. 21) secs. 160, 161.2
The appellant was convicted of assault and robbery and a contravention of secs. 1 (1) (a) and 4 (4) of the Firearms Act 1968 after trial at Glasgow High Court. As regards the second charge almost all the evidence came from four police witnesses. Two of these spoke to the appellant having admitted complicity in the offence; the other two spoke to the appellant requesting them to take him to a spot where the gun allegedly used in the commission of the offences was found and their compliance with that request and subsequent discovery of the gun. The appellant disagreed with the
version of events propounded by the police witnesses: he had neither made the statement alleged nor had he taken the police to the spot where the gun was found. His version was that he had been taken to that spot by the police. No allegations of conspiracy to fabricate evidence and effect a miscarriage of justice were made to the police witnesses by defence counsel at the trial but the inference sought to be drawn was that the police officers already knew where the gun was located and that it was not the appellant who had placed it there. The advocate-depute accordingly moved the court to allow the Crown to cross-examine the appellant as to his previous convictions on the ground that he was entitled to do so in light of the provisions of sec. 141 (1) (f) (ii) of the Criminal Procedure (Scotland) Act 1975 as the nature or conduct of the defence was such as to involve imputations on the characters of the witnesses for the prosecution. The trial judge (Lord Grieve) allowed this cross-examination to take place but was not reminded that even if the questions were such as to involve the imputations prohibited by the statutory provision he nonetheless still had a discretion to exclude cross-examination by the Crown in the interests of securing a fair trial. In his charge to the jury the trial judge directed them that they should disregard the appellant's admission of previous convictions in the witness box when they came to assess his credibility. The appellant appealed to the High Court of Justiciary on the ground that the attacks made on the veracity of the police witnesses were made wholly and necessarily for him fairly to establish his defence and cross-examination as to his own character and previous convictions should therefore not have been allowed by the trial judge.Held, by a court of seven judges, (1) that the statutory provision must be given its ordinary and natural meaning and any imputation on the character of the police witnesses was enough to bring the case within the terms of the subsection even if such an attack was necessary fairly to establish the defence case; but that Parliament had never intended that the subsection would apply where there is a mere assertion that a Crown witness was lying; (2) that it was not proper to seek to draw a distinction between an attack on character and an attack on general character; (3) that even where the case was shown to fall within the terms of the subsection it was still for the court to decide whether cross-examination of the accused about his character was to be allowed; (4) that, accordingly, the correct procedure to be followed in each case where the subsection came into play was for the Crown, if so advised, to apply to the trial judge to cross-examine the accused as to his previous convictions and character, and leave it to the trial judge's discretion whether or not to allow such cross-examination to take place; (5) that the aim of the court in exercising its discretion was always to secure a fair trial, fairness being both to the accused and the public interest in the detection of crime and the bringing of wrongdoers to justice; (6) that the trial judge had a wide discretion and when determining whether to exercise it there was no reason why previous convictions should not be referred to before him although he must not have them laid before him but only be given general information about them, the hearing taking place out with the presence of the jury; (7) that the trial judge had allowed cross-examination of the appellant on the basis that he had attacked the general character of the police witnesses but had failed to appreciate that even if the case fell within this category it was still for him to exercise his discretion in the matter; (8) that, had the trial judge been reminded, as he should have been, of the existence of his discretion it was impossible to say how he would have exercised that discretion; and, accordingly, (9) that there had been a miscarriage of justice; and appeal allowed.
Selvey v. D.P.P.ELR [1970] A.C. 304 followed.
O'Hara v. H.M. AdvocateSC 1948 J.C. 90; Fielding v. H.M. AdvocateSC1959 J.C. 101; Templeton v. McLeodSC1985 J.C. 112; and Conner v. LockhartSC1986 J.C. 161overruled.
Opinion that there was no general rule that the trial judge's discretion be exercised in favour of the defence. Each case depended upon its own facts and circumstances.
Opinion further that in cases where cross-examination of an accused person on his previous convictions or character was permitted the reason was that these may have a bearing upon his credibility but are not relevant to his guilt of the offence charged on the indictment and it may therefore be necessary to consider whether allowing cross-examination of the accused might be unduly prejudicial to him so far as proof of the offence charged was concerned.
Rodger James Leggate was charged on indictment at the instance of the Rt. Hon. the Lord Cameron of Lochbroom, Q. C., Her Majesty's Advocate, that, inter alia:—"(2) on 22nd July 1985 in the car park of the Bel-Air Public House, Western Road, Cambuslang, Glasgow, with [face] masked, [you did] assault James John Houston, care of Rutherglen Police Office, present at him a sawn-off shotgun, threaten to kill him, strike him repeatedly on the hand with said shotgun and knock him to the ground all to his injury and you did rob him of a cashbag containing £3,209.28 of money; and (3) date and place last above libelled and in Huntersfield Drive, Cambuslang, Glasgow, at Stewarton Drive and elsewhere in Glasgow, you did have in your possession a firearm to which sec. 1 of the Act aftermentioned applies, namely a shotgun, the barrel of which had been shortened to a length less than 24 inches contrary to sec. 4 (1) of the said Act, without holding a firearm certificate in force at the time: contrary to the Firearms Act 1968 secs. 1 (1) (a) and 4 (4)". The pannel pled not guilty and went to trial at Glasgow High Court on 14th to 17th April 1986 before Lord Grieve and a jury. The pannel was found guilty by a majority of the jury of charges 2 and 3 and subsequently sentenced.
The following narrative is taken from the opinion of the court:—"Against his conviction the appellant has now appealed. His note of appeal contained two grounds, but after the notes of certain evidence had been extended together with the closing submissions of the advocate-depute, counsel for the appellant dropped the first ground of appeal. In presenting the appeal, counsel relied solely upon the second ground of appeal. The second ground of appeal is in the following terms:—“The trial judge erred in allowing the Crown to question the appellant regarding his previous convictions. The appellant was entitled, notwithstanding the terms of the recent decision in Templeton v. McLeodSC 1985 J.C. 112, to the protection of sec. 346 (1) (f) of [the] Criminal Procedure (Scotland) Act 1975. The attacks on the veracity of the Crown witnesses were made wholly and necessarily for the appellant fairly to establish his defence. The instant case is distinguishable fromTempleton in that the Crown witnesses inTempleton spoke directly to the commission of the offence by the accused. There was no direct evidence of the commission of the crime in the instant case by any of the Crown witnesses whose evidence was attacked by the appellant. The trial judge ought not to have allowed the Crown to ask questions of the pannel's previous record and a miscarriage of justice resulted”. (It should be noted that in this ground of appeal the appellant has per incuriam referred to section 346 (1) (f) of the Act of 1975 which applies to summary procedure instead of section 141 (1) (f) which applies to solemn procedure.)"
In his report Lord Grieve set forth inter aliathat:—"It is quite correct to say that I allowed the Crown to question Leggate regarding his previous convictions. I did so for the following reason. In course of cross-examination of Detective Sergeant Sutherland counsel for Leggate suggested that he, Sutherland, had said to Leggate, “Right Rodger, you're taking me to the shotgun” and that Leggate replied, “I don't know where there is a...
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