McKENNA v HM ADVOCATE
| Jurisdiction | Scotland |
| Judgment Date | 13 December 1999 |
| Neutral Citation | 2000 SCCR 159 |
| Docket Number | No 34 |
| Date | 13 December 1999 |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lord Sutherland and Lord Penrose
Procedure—Solemn procedure—Devolution issue—Oppression—Pannel indicted for murder—Evidence suggesting only pannel, victim and third person present at time of offence—Third person dying before trial—Crown giving notice of intention to seek leave to adduce evidence of third person's statements incriminating pannel—Other evidence available to Crown to incriminate pannel—Whether adducing third person's statements in evidence incompatible with pannel's right to a fair trial—Whether oppressive to lead third person's statements—European Convention on Human Rights, art 6(1) and (3)(d)1
The pannel was indicted for trial on, inter alia, a charge of murder. The Crown's position at the trial was understood to be that the only persons present in the premises when the victim was assaulted were the victim, the pannel and a third person who had subsequently died. The Crown gave notice of its intention to apply for leave, in terms of sec 259 of the Criminal Procedure (Scotland) Act 1995, to adduce evidence of the deceased witness's statements to the police. These statements contained a detailed account of the alleged murder and incriminated the pannel. There was other evidence available to the Crown, including forensic science evidence, which could be regarded as incriminatory of the pannel. At a preliminary diet the pannel challenged the Crown's proposal to adduce evidence of the deceased witness's statements as oppressive at common law and, as a devolution issue, argued that such an act would violate his rights under art 6(1) and (3)(d) of the European Convention on Human Rights and Fundamental Freedoms. The presiding judge (Lord Caplan) rejected both arguments and the pannel appealed.
Held (1) that the sole issue at this stage was whether the court could make the declaratory finding sought, out of context of the evidence at the trial, to the effect that an application for the admission of the evidence of the deceased witness's statements would necessarily be a breach of the pannel's Convention rights but there was no basis in authority, either domestic or Convention, on which the court could reach that view since the relative weight of different sources of evidence would depend on views which could be formed only after the whole evidence had been led (p 296E–F); (2) that the common law argument based on oppression had to fail because it was simply a reformulation in domestic language of the European Convention test (p 296H); and appeal refused.
Observed that since an irregularity in the admission of evidence according to the rules of national law (an example of which might be recoveries under a defective search warrant) might be of such materiality that it was sufficient in itself to amount to a miscarriage of justice, it was conceivable that a court might determine in advance that such evidence should not be admitted at trial (p 294G).
Observed further that the pannel was not precluded by this decision from raising the devolution issue afresh in the light of events at the trial, or otherwise instructing an appeal on grounds which related, inter alia, to the use, if any, made of the deceased witness's statements at the trial (p 296I).
Michael McKenna was charged on an indictment at the instance of the Right Honourable The Lord Hardie, QC, Her Majesty's Advocate, the libel of which set forth, inter alia, that “(1) on 21 June 1999 at 9 Waddell Court, Kilmarnock, [he] did assault Robert Halliday, residing there, repeatedly strike him on the head with an axe and did murder him and [he] did previously evince malice and ill will towards him.”
The pannel, prior to the trial diet, served a minute in terms of chap 40 of the Act of Adjournal (Criminal Procedure Rules) 1996, as amended, giving notice of his intention to raise a devolution issue within the meaning of para 1 of sched 6 to the Scotland Act 1998. The pannel also sought a preliminary diet, in terms of sec 72(1)(d) of the Criminal Procedure (Scotland) Act 1995, in respect of a plea of oppression based on the same facts.
After hearing parties at a preliminary diet on 12 October 1999, the presiding judge (Lord Caplan), on 21 October 1999, repelled both minutes.
The pannel thereafter appealed, with leave, to their Lordships in the High Court of Justiciary.
Cases referred to:
AGL and EDB v HM AdvocateUNK 1988 SCCR 62
Bricmont v BelgiumHRC Series A No 158 (1989); 12 EHRR 217
Docherty v HM AdvocateSC 1945 JC 89
Ferrantelli and Santangello v ItalyHRC (1996) 23 EHRR 288
Irving v HM AdvocateSC 1978 JC 28
Lauderdale Peerage Case (1885) 10 App Cas 692
Montgomery v HM Advocate 16 November 1999, Criminal Appeal Court (unreported)
Saidi v France Series A No 261–C (1993); 17 EHRR 251
Trivedi v United Kingdom [1997] EHRLR 520
Textbooks, etc referred to:
Scottish Law Commission, Report on Hearsay Evidence in Criminal Proceedings (Scot Law Com no 149) (1995), para 4.47.
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Rodger), Lord Sutherland and Lord Penrose, for a hearing on 13 December 1999.
Eo die, at advising, the appeal was refused for the reasons which were contained in the opinion of...
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