Shola Campbell+brian Hill V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lady Cosgrove,Lord Hamilton |
| Court | High Court of Justiciary |
| Date | 13 November 2003 |
| Docket Number | XC494/03 |
| Published date | 13 November 2003 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Hamilton Lady Cosgrove
| Appeal No: XC494/03 OPINION OF THE COURT delivered by LORD HAMILTON in APPEALS by (1) SHOLA CAMPBELL Appellant; against HER MAJESTY'S ADVOCATE Respondent; (2) BRIAN HILL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: (1) M. Scott, Q.C., Shead; Beaumont & Co.:
(2) M. Scott, Q.C., Shead; Drummond Miller
Respondent: Anthony, Q.C., A.D.; Crown Agent
13 November 2003
[1]On 17 April 2001 the appellant Shola Campbell ("the first appellant") was, after trial on indictment in the Sheriff Court at Edinburgh, convicted of a restricted charge of assault to severe injury. On 7 August 2001 Brian David Hill ("the second appellant") was, after trial on indictment in the Sheriff Court at Perth, convicted of (1) theft by housebreaking and (2) reset of a motor car. Each appellant has appealed against conviction. In each case the grounds of appeal include a contention to the effect that the appellant's rights under Article 6 of the European Convention on Human Rights and Fundamental Freedoms had been infringed by the prosecutor's introduction of and reliance on hearsay evidence and that a miscarriage of justice had thereby occurred. Because of this common feature these appeals, together with a third appeal (where the Crown subsequently intimated that it was unable to support the conviction and the appeal was allowed), were appointed to be heard together in relation to that aspect of the appeals. Other grounds of appeal in each case remain undisposed of.
[2]The first appellant was charged with assaulting Kirsty Ness to her severe injury. Prior to her trial she lodged and intimated a special defence of incrimination of Sarah Budden. The Crown led evidence from Kirsty Ness who testified that on the date libelled she had been assaulted by the first appellant with a crowbar in the dwellinghouse occupied by the first appellant and her husband. It was not disputed by the defence that the complainer had been assaulted in that place on that date but the complainer was challenged in cross-examination as to the identity of her assailant. She maintained a clear and positive identification of the first appellant as that person. At a later stage in the trial the Crown, under reference to section 259 of the Criminal Procedure (Scotland) Act 1995, sought to lead evidence of a tape recorded interview of Sarah Budden who had disappeared. That course of action was objected to on various grounds but the objection was repelled. A tape recording of the interview of her by police officers was thereafter played in the presence of the jury and copies of a transcript of that interview were made available to them. The grounds of objection then taken related to matters not the subject of argument at the present hearing and need not be discussed at this stage. However, in the course of the appeal proceedings a supplementary ground of appeal and relative devolution minute were allowed to be received in which it was contended that the prosecutor's leading of and reliance on Sarah Budden's statement (being her responses to questions in the course of that interview) was ultra vires and incompatible with the first appellant's Convention rights. The Crown accepted at the trial and still accepts that, unless the statement by Sarah Budden was available to it as evidence supporting the complainer's identification of the first appellant as the assailant, there was insufficient evidence in law to convict the first appellant of the crime charged. Certain directions, also the subject-matter of criticism in this appeal, were given by the presiding sheriff to the jury in relation to that hearsay evidence. The first appellant and certain other witnesses gave evidence at the trial exculpatory of the first appellant and incriminatory of Sarah Budden, who had been named in a special defence of incrimination. The verdict of the jury imports that they disbelieved the defence evidence.
[3]The second appellant was indicted on three charges. He was acquitted of charge (2). On charge (1) it was alleged that, together with a co-accused, he had, on 4 or 5 August 2000, broken into a dwellinghouse in Blairgowrie and had there stolen various items of property. On charge (3) it was alleged that, together with the same co-accused, the second appellant, on 5 August 2000, had at another address in Blairgowrie stolen a motor vehicle and certain items of property contained in it. Evidence was led that two days after the housebreaking certain items of property stolen from the dwellinghouse were pawned at a local pawnshop. A male was observed on CCTV leaving the pawnshop after that transaction. Two police witnesses gave evidence at the trial positively identifying the second appellant as the person so leaving. It was agreed by a joint minute lodged at the trial that the second appellant and his then girlfriend were the joint tenants of a caravan and adjacent cellar at a site in Blairgowrie. Some three days or so after the thefts a substantial amount of property was recovered from the cellar and the caravan. From the cellar were recovered various items which had been stolen from the dwellinghouse referred to in charge (1). From the caravan were recovered certain items which had been in the motor vehicle when it was stolen. The Crown also led oral evidence from a witness who testified that she had seen the second appellant driving the motor car some time shortly after its theft. The evidence adduced and founded on by the Crown, which is principally in issue at this stage of this appeal, was hearsay evidence in the form of a statement made by the second appellant's former girlfriend in the course of a tape recorded interview of her by the police. That witness had subsequently disappeared. The Crown again relied on section 259 of the 1995 Act, the reason why she would not give evidence in the proceedings being that referred to in section 259(2)(c). A ground of appeal is that the presiding sheriff was not entitled to be satisfied that the Crown had taken all reasonable steps to find the witness but that ground does not fall to be discussed at this stage. For present purposes it is to be assumed that the whole requirements of section 259 were satisfied. The hearsay evidence was led in the form of a videotape by which the jury could see and hear the interviewee as she responded to the questions put to her. Copies of a transcript of that interview were also made available for their consideration. A devolution minute on behalf of the second appellant, in equivalent terms to that received on behalf of the first appellant, was in the course of the appeal proceedings allowed to be received.
[4]Miss Scott, who appeared before us for both appellants, advanced two principal submissions in respect of both appeals. First, the appellant in each appeal not having had an opportunity at any stage to question the missing witness, the Lord Advocate, by adducing the hearsay evidence had acted, it was argued, incompatibly with the appellant's Convention right under Article 6(3)(d) and so ultra vires in terms of section 57(2) of the Scotland Act 1998. Second and in any event, the adducing and founding on the hearsay evidence had, having regard to the decisiveness of that evidence and the absence of necessary safeguards, resulted in each trial being unfair. Each conviction should be quashed.
[5]Before narrating Miss Scott's development of the first principal submission, it is appropriate to set out the terms, in so far as material, of Article 6 of the Convention and of section 57(2) of the Scotland Act 1998. Article 6 provides:
"(1)In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
...
(3)Everyone charged with a criminal offence has the following minimum rights:
...
(d)to examine or have examined witnesses against him ... ".
Section 57(2) of the Scotland Act 1998 provides:
"A member of the Scottish Executive has no power ... to do any ... act, so far as the ... act is incompatible with any of the Convention rights ... ".
The Lord Advocate is a member of the Scottish Executive. The Convention rights referred to include those set out in Article 6.
[6]Miss Scott submitted that the minimum right specified in Article 6(3)(d) was itself a Convention right, even though, in contrast to the right to a fair trial under Article 6(1), it was not an absolute right. Reference was made to Stott v. Brown 2001 S.C.C.R. 62, especially per Lord Bingham of Cornhill at pp. 70-73 and p. 80. Under section 57(2) of the Scotland Act 1998 the Lord Advocate had no power to act incompatibly with any Convention right and could be stopped from so acting if an accused would be a victim of such action (R. v. H.M. Advocate 2003 S.C.C.R. 19, especially per Lord Hope of Craighead at paras. [65] - [71]). Article 6(3)(d) was such a Convention right. Albeit European jurisprudence had tended not to view the minimum rights under Article 6(3) as discrete guarantees, the structure of the Scotland Act 1998 was such that it was ultra vires for the Lord Advocate to act incompatibly with an accused's right under Article 6(3)(d). The leading by the Crown of hearsay evidence which denied the accused an opportunity to examine or have examined the maker of the statement was, in so far as against the accused's interests, an ultra vires act which accordingly was null and void. Any evidence so adduced fell to be disregarded. It was immaterial to this submission whether the leading of such evidence affected the fairness of the trial.
[7]The Advocate depute in response to this submission submitted that, in accordance with European jurisprudence, Article 6 fell to be read as a whole. Article 6(3)(d) did not of itself confer a Convention right. Accordingly, only if there would be...
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