Thompson v Crowe
| Jurisdiction | Scotland |
| Judgment Date | 05 November 1999 |
| Docket Number | No 28 |
| Date | 05 November 1999 |
| Court | High Court of Justiciary |
Full Bench
LJ-G Rodger, LJ-C Cullen, Lord Sutherland, Lord Caplan and Lord Hamilton
Evidence—Admissibility—Extra-judicial confession—Pannel objecting to admissibility of statement on ground of improper police conduct—Whether admissibility a question of law for trial judge—Whether trial within a trial necessary when dispute of facts relating to objection—Procedure to be adopted when trial within a trial necessary
Procedure—Summary procedure—Trial within a trial—Pannel objecting to admissibility of confession on ground of improper police conduct—Dispute of fact relating to objection—Pannel wishing to give evidence in support of objection but not generally in his defence—Sheriff refusing to hold trial within a trial and allowing evidence of alleged confession under reservation of objection to its admissibility—Whether trial procedure prejudicial to pannel—Whether miscarriage of justice
A pannel was charged on a summary complaint with various offences of theft. The Crown sought to lead evidence of an incriminating statement made by the pannel to the police. Objection was taken to the admissibility of the statement on the ground that the pannel's replies had been elicited by improper means. The sheriff was requested to hold a trial within a trial to determine the admissibility of the pannel's statement because the pannel desired to give evidence as to the circumstances in which the statement had been made but did not wish to give evidence generally in his defence. The sheriff refused to hold a trial within a trial and allowed the evidence to proceed under reservation of the objection to the admissibility of the statement. The pannel was convicted and brought a bill of suspension in the High Court of Justiciary on the ground that the sheriff had erred in refusing to hold a trial within a trial.
Held (by a court of five judges) (1) that the question of admissibility was, by definition, one of law for the sheriff to determine when the objection was stated and if the sheriff required to resolve disputed issues of fact in order to answer that question, then the determination of those issues of fact was a matter properly falling within the area of responsibility of the sheriff (pp 189G–H, 202A–B, 203A, 207D, 207G–I); (2) that in determining a question of admissibility where there was a dispute on the facts, the court should ordinarily hold a trial within a trial if the defence asked for it (pp 194B, 202B–C, 203A, 207G–I ); and (3) that the sheriff's refusal to hold a trial within a trial, though understandable in the light of existing decisions of the High Court, was erroneous and prejudicial to the pannel (pp 201E, 203A, 207G–I); and billpassed.
Balloch v HM AdvocateSC 1977 JC 23 overruled.
Observed (per the Lord Justice-General (Rodger)) (1) that where in solemn proceedings there was a dispute of facts relating to the admissibility of a statement, the trial within a trial should take place outwith the presence of the jury although there might be cases where for tactical reasons the defence might prefer to have the evidence about the circumstances of the making of the challenged statement led in front of the jury (p 194B–C); (2) that where, after a trial within a trial in which the judge had held the statement to be admissible (though its terms had not yet been placed before the jury), the evidence was led again before the jury but came out in a form which would have meant that it should have been excluded, there was no reason why the defence should not renew the objection or why the trial judge should not give a further ruling in light of the new evidence (p 198G); (3) that where the statement has been given to the jury (but on later evidence should not have been), the trial judge should disregard the statement when determining a no case to answer submission and should direct the jury to disregard it or, where its likely impact would be such that the jury could not realistically be expected to do so, he should desert the diet pro loco et tempore (pp 198I–199B, 202G); and (4) that it would only rarely be appropriate for the judge in a summary trial to desert the diet on the ground that it would be impossible for him to disregard the evidence in reaching a verdict (p 202H).
Opinion (per the Lord Justice-General (Rodger)) that counsel's concession that it was for the judge, when deciding an issue of admissibility where there was a dispute on the facts, to apply the standard of proof on a balance of probabilities, was sound (p 192C).
Opinion reserved (per the Lord Justice-General (Rodger)) whether the Crown could ever make any reference in the substantive trial to the pannel's evidence in the trial within a trial (p 197H).
Andrew Thompson brought a bill of suspension to their Lordships in the High Court of Justiciary praying for suspension of a pretended conviction and sentence whereby the pannel had been found guilty on 25 April 1997 after trial of nine charges of forcing open or entering motor vehicles and stealing articles therefrom and, on 16 May 1997, was made the subject of a probation order for three years.
Cases referred to:
Advocate (HM) v Aitken 1926 JC 83
Advocate (HM) v CunninghamSC 1939 JC 61
Advocate (HM) v Elder (Mary) (1827) Syme 71
Advocate (HM) v FoxSC 1947 JC 30
Advocate (HM) v Lieser 1926 JC 88
Advocate (HM) v Mahler and Berrenhard (1857) 2 Irv 634
Advocate (HM) v Proudfoot (1882) 4 Coup 590
Advocate (HM) v RiggSC 1946 JC 1
Advocate (HM) v Simpson (Barbara) (1889) 2 White 298
Advocate (HM) v Smith (Madeleine) (1857) 2 Irv 641
Advocate (HM) v Whitelaw 1980 SLT (Notes) 25
Advocate's (Lord) Reference (No 1 of 1983) 1984 JC 52
Ajodha v The StateELR [1982] AC 204
Balloch v HM AdvocateSC 1977 JC 23
Brown v HM Advocate 1966 SLT 105
Chalmers v HM AdvocateSC 1954 JC 66
Chitambala v The QueenUNK [1961] R & N 166
Clark v StuartSC 1950 JC 8
Codona v HM Advocate 1996 SLT 1100
Jones v MilneSC 1975 JC 16
Manuel v HM AdvocateSC 1958 JC 41
Miln v CullenSC 1967 JC 21
Murphy v HM Advocate 1975 SLT (Notes) 17
Murphy v Waterfront Commission 378 US 52 (1964)
Murray v United KingdomHRC (1996) 22 EHRR 29
R v BaldryENR (1852) 2 Den CC 430
R v BrophyELR [1981] NILR 79; [1982] AC 476
R v Murphy [1965] NILR 138
R v SangELR [1980] AC 402
R v WatsonUNK (1980) 70 Cr App R 273
Runham v WestwaterSC 1995 JC 70
Saunders v United KingdomHRC (1997) 23 EHRR 313
Thompson v HM AdvocateSC 1968 JC 61
Tonge v HM AdvocateSC 1982 JC 130
Wade v RobertsonSC 1948 JC 117
Wendo v The QueenUNK (1963) 109 CLR 559
Wong Kam-ming v The QueenELR [1980] AC 247
Textbooks, etc referred to:
Alison, Criminal Law, vol ii, pp436, 443–446, 487 and 586–587
Anon, “A Question of Fairness” 1977 SLT (News) 140
Archbold, Criminal Pleading, Evidence and Practice (41st ed, 1982), paras 15–27 and 15–28
Cameron (Lord), “Scottish Practice in relation to Admissions and Confessions by Persons Suspected or Accused of Crime” 1975 SLT (News) 265
Hume, Crimes (3rd ed), vol ii, pp 336–337
Renton and Brown, Criminal Procedure (2nd ed, 1928), p 271 (note 9); (6th ed), para 24–61
The bill called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Cullen), Lord Caplan and Lord Osborne for a hearing on 6 November 1998. At advising, on 22 January 1999, their Lordships remitted the cause to be heard by a quorum of five Lords Commissioners of Justiciary.
The cause called again before the High Court, comprising the Lord Justice-General (Rodger), the Lord Justice-Clerk (Cullen), Lord Sutherland, Lord Caplan and Lord Hamilton for a hearing on 27,28,29 and 30 September and 1 October 1999.
At advising, on 5 November 1999—
LORD JUSTICE-GENERAL (Rodger)—The complainer in this bill of suspension is Andrew Thompson who was convicted at the sheriff court at Hamilton of nine charges of forcing open or entering motor vehicles and stealing articles from them. On 16 May 1997 he was sentenced to a period of three years' probation. In the bill he asks the court to quash his conviction on the ground that in the course of the trial the sheriff refused a motion that he should hold a trial within a trial.
The circumstances are fully narrated in the opinion of the Lord Justice-Clerk of 22 January 1999 to which I gratefully refer. For that reason I can restrict myself to a brief account of the essential point. At the trial diet the parties lodged a joint minute of admissions which recorded their agreement that the offences had been committed; the only issue in controversy therefore was whether the complainer was the perpetrator. The procurator fiscal depute led a number of witnesses, including Detective Sergeant Hippman who spoke to an interview with the complainer the day after the last of the offences. In the course of his evidence the agent for the complainer objected to him giving evidence about the complainer's answers in the interview, on the ground that they had been obtained by an inducement which the police officers had offered to him. We were informed that the allegation was to the effect that the police officers had indicated that bail would not be opposed if the complainer admitted the offences. The complainer's agent moved the sheriff to allow a trial within the trial as to the circumstances in which the interview took place. He argued that the complainer should be able to give evidence on the circumstances of the interview without forgoing his right not to give evidence at large on the charges. The sheriff refused the motion and then heard the evidence of the police witnesses under reservation of the question of the admissibility of the evidence, to be determined at a later stage. The examination of Detective Sergeant Hippman was completed and he was cross-examined. Further evidence in corroboration was led from Detective Constable Hugh Craig. The parties then lodged a joint minute in which they agreed that the transcript of the interview with the appellant lodged by the Crown...
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