Scottish High Court of Justiciary Decisons

HIGH COURT OF JUSTICIARY
	2012 HCJ 124 CASE NO. IND/2011-233 OPINION of LORD BRACADALE AND TWO CONSULTED JUDGES in causa HER MAJESTY'S ADVOCATE against ANTHONY MALLOY AND LAURA STEWART (High Court, Glasgow) __________

Crown: J Farquharson, Advocate Depute; Crown Agent

Defence (Malloy): D Findlay QC, Advocate et V Young, Advocate; Hall & Haughey

Defence (Stewart): B McConnachie QC, Advocate et W Lavelle, Solicitor Advocate; Raymond Mcilwham & Co

19 September 2011

Introduction

[1] Anthony Malloy and Laura Stewart were tried at the High Court at Glasgow on a charge of murdering Martin Vaughan, who had formerly been in a relationship with Miss Stewart. Each of the accused served a notice in terms of section 78 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) incriminating the other. In the course of cross-examination of Crown witness Lisa Sinclair, who was a sister of the deceased, Mr Findlay QC, on behalf of Anthony Malloy, sought to lead hearsay evidence of statements made by the deceased to his sister prior to his death. Mr McConnachie QC, on behalf of Laura Stewart, took objection to hearsay evidence, no application in terms of section 259 of the 1995 Act having been lodged on behalf of Mr Malloy. Mr Findlay contended that he was entitled to lead the evidence at common law. This contention was supported by the advocate depute who submitted that section 259 had not superseded the common law rule that hearsay evidence of a statement by a deceased person was admissible as evidence of the facts stated in the statement. As the question as to whether section 259 superseded the common law raised a point of law on which there was no authoritative reasoned decision, the trial judge (Lord Bracadale) considered it appropriate to hear the submissions along with two consulted judges (Lords Bannatyne and Doherty).

The common law and section 259

[2] At common law a statement made by a person who had died prior to a trial was admissible as evidence of the facts stated in it unless the circumstances raised a reasonable suspicion that it was not in accordance with the truth or was a one-sided or coloured version of the truth. In the Lauderdale Peerage case (1885) 10 App. Cas. 692 Lord Watson, with whom the other members of the House of Lords agreed, stated the law of Scotland in the following terms:

"...by the law of Scotland the statement of a deceased person in relation to facts which must presumably have been within his personal knowledge, and to which he could have spoken as a witness, may after his death be received as secondary evidence through the medium of writing as well as through the medium of a living witness who heard an oral statement made by him."

He went on to identify the circumstances in which the statement of a deceased person would not be admissible:

"...the statement of a deceased person, whether oral or written, is not admissible as evidence, when its own terms, or the circumstances in which it was made, are such as to beget a reasonable suspicion, either that the statement was not in accordance with the truth, or that it was a coloured or one-sided version of the truth."

(See also Irving v HM Advocate 1978 JC 28).

[3] Section 259 of the 1995 Act was introduced following the recommendation of the Scottish Law Commission Report: Evidence: Report on Hearsay Evidence in Criminal Proceedings (Scot Law Com No 149) ("the Commission Report"). So far as material for present purposes Section 259 provides;

"(1) Subject to the following provisions of this section, evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings shall be admissible in those proceedings as evidence of any matter contained in the statement where the judge is satisfied-

(a) that the person who made the statement will not give evidence in the proceedings of such matter for any of the reasons mentioned in subsection (2) below;

(b) that evidence of the matter would be admissible in the proceedings if that person gave direct oral evidence of it;

(c) that the person who made the statement would have been, at the time the statement was made, a competent witness in such proceedings; and

(d) that there is evidence which would entitle a jury properly directed, or in summary proceedings would entitle the judge, to find that the statement was made and that either-

(i) it is contained in a document; or

(ii) a person who gave oral evidence in the proceedings as to the statement has direct personal knowledge of the making of the statement.

(2) The reasons referred to in paragraph (a) of subsection (1) above are that the person who made the statement-

(a) is dead or is, by reason of his bodily or mental condition, unfit or unable to give evidence in any competent manner;

(b) is named and otherwise sufficiently identified, but is outwith the United Kingdom and it is not reasonably practicable to secure his attendance at the trial or to obtain his evidence in any other competent manner;

(c) is named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken;

(d) having been authorised to do so by virtue of a ruling of the court in the proceedings that he is entitled to refuse to give evidence in connection with the subject matter of the statement on the grounds that such evidence might incriminate him, refuses to give such evidence; or

(e) is called as a witness and either-

(i) refuses to take the oath or affirmation; or

(ii) having been sworn as a witness and directed by the judge to give evidence in connection with the subject matter of the statement refuses to do so,

and in the application of this paragraph to a child, the reference to a witness refusing to take the oath or affirmation or, as the case may be, to having been sworn shall be construed as a reference to a child who has refused to accept an admonition to tell the truth or, having been so admonished, refuses to give evidence as mentioned above.

(3) Evidence of a statement shall not be admissible by virtue of subsection (1) above where the judge is satisfied that the occurrence of any of the circumstances mentioned in paragraphs (a) to (e) of subsection (2) above, by virtue of which the statement would otherwise be admissible, is caused by-

(a) the person in support of whose case the evidence would be given; or

(b) any other person acting on his behalf,

for the purpose of securing that the person who made the statement does not give evidence for the purposes of the proceedings either at all or in connection with the subject matter of the statement.

(4) Where in any proceedings evidence of a statement made by any person is admitted by reference to any of the reasons mentioned in paragraphs (a) to (c) and (e)(i) of subsection (2) above-

(a) any evidence which, if that person had given evidence in connection with the subject matter of the statement, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;

(b) evidence may be given of any matter which, if that person had given evidence in connection with the subject matter of the statement, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and

(c) evidence tending to prove that that person, whether before or after making the statement, made in whatever manner some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself.

(5) Subject to subsection (6) below, where a party intends to apply to have evidence of a statement admitted by virtue of subsection (1) above he shall, by the relevant time, give notice in writing of-

(a) that fact;

(b) the witnesses and productions to be adduced in connection with such evidence; and

(c) such other matters as may be prescribed by Act of Adjournal,

to every other party to the proceedings and, for the purposes of this subsection, such evidence may be led notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.

(5A) In subsection (5) above, "the relevant time" means-

(a) in the case of proceedings in the High Court-

(i) not less than 7 days before the preliminary hearing; or

(ii) such later time, before the trial diet, as the judge may on cause shown allow;

(b) in any other case, before the trial diet.]

(6) A party shall not be required to give notice as mentioned in subsection (5) above where-

(a) the grounds for seeking to have evidence of a statement admitted are as mentioned in paragraph (d) or (e) of subsection (2) above; or

(b) he satisfies the judge that there was good reason for not giving such notice."

[4] The section introduced a statutory scheme which recognised a number of specific exceptions to the hearsay rule, namely, where the person is dead; is unfit through physical or mental illness; is outwith the United Kingdom and it is otherwise not reasonably practical to secure the attendance of the person at the trial; cannot be found; refuses to incriminate himself; or refuses to take the oath or answer questions. With the exception of death none of these situations had previously been recognised as an exception to the prohibition on the admissibility of hearsay evidence. There had, however, been some basis for maintaining that hearsay evidence was admissible where the maker of the statement had become permanently insane or was a prisoner of war (see the Commission Report paragraphs 5.29 and 5.30 and the authorities there referred to).

[5] The section not only provides that hearsay evidence is admissible in these circumstances, but also imposes certain limitations and safeguards. The statement must be contained in a document or must be first hand hearsay. The applicant must not have brought about the unavailability of the evidence. Notice must be given prior to a preliminary hearing. Evidence designed to undermine the credibility of the unavailable witness may be introduced.

[6] Section 259 is one of a number of sections dealing with aspects of hearsay. Section 262 provides for the construction of sections 259 to 261A. Subsection (4) provides:

"Nothing in sections 259 to 261A shall prejudice the admissibility of a statement made by a person other than in the course of giving oral evidence in court which is admissible otherwise than by virtue of those sections."

Submissions on behalf Miss Stewart

[7] Mr McConnachie contended that section 262(4) referred, not to the particular exceptions to the hearsay rule contained in section 259 but to the other common law exceptions to the rule which were not included in section 259. Under reference to the Commission Report he submitted that it was the intention of Parliament to introduce a statutory scheme which would cover certain aspects of hearsay evidence, including that of a deceased person, and that the intention was that a party seeking to introduce such evidence would require to proceed under the scheme. The approach was to rationalise and extend the common law. The presumption against change in the common law was rebutted.

[8] Mr McConnachie drew support from the decisions in HM Advocate v Clancy, unreported, Glasgow High Court 10 February 1997; and HM Advocate v Parracho, unreported, IN764/08. He was critical of the obiter view expressed by Lord Caplan at first instance in McKenna v HM Advocate 2000 SCCR 159.

Submissions on behalf of Mr Malloy

[9] Mr Findlay submitted that there was a presumption that a statutory provision did not abolish the common law, which presumption could be displaced by express provision or by necessary implication (Maxwell on Interpretation of Statutes (twelfth ed), page 116; Craies on Legislation (ninth ed), paragraphs 14.1.6 and 14.1.7). There was no express provision abolishing the common law exception to the hearsay rule that admitted the evidence of a witness who had died prior to the trial. Nor was the presumption displaced by necessary implication. Rather, there was a specific saving of the common law in section 262(4). The subsection was clear and unqualified. While Mr Findlay conceded that sections 259 and 262(4) were capable of more than one construction, he contended that the correct approach was to give them literal interpretations. If that was done it was plain that the common law relating to the admissibility of statements by persons who had died had not been superseded.

Submissions by the Crown

[10] The advocate depute explained that in practice the Crown proceeded under section 259 but submitted that the common law was not superseded. She contrasted the absence of any express abrogation of the common law rule with the approach taken in section 52 of the Sexual Offences (Scotland) Act 2009 which expressly abolished the common law crime of rape.

[11] The advocate depute contended that certain passages in the Commission Report could be read as recommending preservation of the common law.

[12] Under reference to Pepper v Hart [1993] AC 593 she invited us to have regard to certain passages from Hansard recording the Parliamentary passage of the Bill. In the event, as none of the passages dealt with the specific issue before us, we did not find them to be of any assistance.

Discussion

[13] It is common ground that Section 259 does not expressly abrogate the common law rule as to the admissibility of the evidence of a witness who is dead. The contention of Mr Findlay and of the advocate depute is that neither did it do so by necessary implication: and that section 262(4) expressly preserved the admissibility of all hearsay statements which were admissible at common law.

[14] It is also common ground that section 262(4) is capable of more than one possible construction.. The literal reading of section 262(4), which Mr Findlay and the advocate depute urge, is that all statements which were admissible otherwise than by virtue of sections 259 to 261A continue to be so admissible. The alternative, and narrower, construction is that section 262(4) deals with exceptions to the hearsay rule which fall outwith the ambit of sections 259 to 261A.

[15] We consider that both section 259 and section 262(4) are open to construction. Neither is unambiguous. Accordingly, in construing them it is necessary and appropriate to have resort to well recognised canons of statutory interpretation.

[16] We begin by identifying the mischief which section 259 was designed to cure. At paragraph 4.47 of its report the Commission noted that statements by deceased persons were admitted on the ground of necessity:

"Other hearsay statements such as statements by persons who have died, are admitted on the ground of necessity, where they would otherwise be denied to the court or evidence of the same value could not otherwise be obtained."

The Commission went on to state at paragraph 5.30:

"We consider that it is difficult to understand why the law should admit an exception to the hearsay rule where the maker of the statement is dead but not where a statement is unavailable for some other very good reason ... It appears to us that where a person's evidence cannot be obtained for some very good reason, hearsay evidence of a statement made by him should be admissible on the ground of necessity. We consider that while a person's direct oral evidence is to be preferred to hearsay, hearsay is to be preferred to a complete loss of relevant information if his evidence in court is unavailable".

The Commission went on to clarify the parameters of the admissibility of the evidence of a person who had died and to recommend a number of new exceptions. All of these were to be subject to certain limitations and safeguards. In relation to statements made by persons who subsequently died the Commission noted (under reference to the common law qualifications in the Lauderdale Peerage case and Irving) at paragraph 5.35:

"We consider that the law would be simplified and improved by the enactment of a rule that statements by deceased persons are admissible in all criminal proceedings, without any qualifications other than those which under our recommendations would apply generally to all statements by unavailable persons".

The Commission were recommending the introduction of a statutory scheme providing a clear, simple procedure which would be coherent and self consistent. It considered that the common law exceptions relating to the admissibility of hearsay statements made by people who had subsequently died, and the (more moot) exceptions in relation to statements made by persons who had become permanently insane or were prisoners of war, were too narrow and that they required to be widened and restated. For both new and restated/extended exceptions they recommended procedural protections and safeguards which would have to be complied with if statements were to be admitted.

[17] In our opinion the application of the mischief rule strongly supports the construction of section 259 and section 262(4) contended for by Mr McConnachie. With the alternative construction favoured by the Crown and Mr Findlay the common law rule(s) would not have been reformed and controlled. The statutory regime introduced by section 259 would merely provide an optional way of proceeding. The mischief in the pre-existing law - which the legislation was intended to address -would not have been dealt with .

[18] We have also had regard to the principle that the law should be coherent and self-consistent: see e.g. Bennion on Statutory Interpretation (fifth ed), Section 268, page 808:

"Section 268. Law should be coherent and self-consistent

It is a principle of legal policy that the law should be coherent and self-consistent. The court, when considering, in relation to the facts of the instant case, which of opposing constructions of an enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. The court should therefore strive to avoid adopting a construction which involves accepting that on the point in question the law is not coherent and self-consistent".

It seems to us that a construction of section 259 which would allow optional use of a statutory or a common law route to introducing the evidence of a person who has died would be neither coherent nor self-consistent.

[19] Further, and for very much the same reasons, the construction urged by Mr Findlay and the advocate depute is at odds with the presumption against a construction which results in absurdity. In our opinion it is no overstatement to describe their construction as productive of absurdity. It would involve attributing to Parliament a legislative intention to reform the law by introducing a statutory regime, subject to strict controls and safeguards, in the knowledge that that regime and those controls and safeguards could be circumvented with impunity by the simple expedient of choosing to rely instead on the common law exception.

[20] In our opinion it is a necessary implication from the terms of section 259, having regard to their context and purpose, that the section has abrogated and replaced the common law exceptions which fall within its ambit (Craies, paragraph 14.1.7). In our view the legislative provisions expressly control the relevant hearsay exceptions (cf. B v Forsey 1988 SLT 572; Craies, paragraph 14.1.8).

[21] In the course of the hearing before us we had available the minute in the case of Clancy (supra), together with a Crown Office Circular which was issued in light of that decision. (We are very grateful to Mr Bruno Longmore and his colleagues at The National Archives of Scotland for making this available swiftly to the Court - at very short notice). The minute recorded that on 10 February 1997 the trial judge, Lord Kirkwood, sat with Lords Coulsfield and Macfadyen to hear argument. No opinion was issued, but it is clear from the minute that the Court had the benefit of full submissions by counsel. The court decided that the Crown were not entitled to lead the hearsay evidence of a deceased person without either giving due notice in terms of section 259(5) or successfully making an application under section 259(6). This decision was followed by Lord Matthews in Parracho (supra):

"In my opinion the judges in Clancy were right. Evidence of a deceased person's statement is now admissible by virtue of S 259, not otherwise than by virtue of that section, and only where the provisions of that section and the sections following it are met, including the giving of notice. These sections provide safeguards for the party against whom the evidence is to be tendered, so that, inter alia, they will have time and opportunity in advance of the trial to investigate matters which may affect the credibility and reliability of the deceased and the other matters referred to in S 259(4). I cannot think that Parliament enacted these provisions intending that they could, per S 264(2), be ignored if a party so chose. The alternative contention, in my opinion, flies in the face of common sense and what I perceive must be the intention of Parliament. Is it really to be presumed that Parliament enacted elaborate notice provisions, including time limits, and a saving provision for late notice on cause shown if it intended that parties could merely opt to ask the relevant questions anyway? Why should anyone comply with the notice provisions and state a good cause for late notice in those circumstances?"

We agree with the decision in Clancy and with the views expressed by Lord Matthews in the passage quoted above. We respectfully disagree with the contrary view expressed at first instance by Lord Caplan in McKenna (supra). We recognise Lord Caplan does not appear to have had the advantage of the full submissions on the point which we had, and which the court in Clancy had. In any event, the views he expressed were obiter dicta., They were not the subject of consideration by the court at the appeal stage.

[22] What, then, is the proper construction of section 262(4)? In our opinion this subsection is designed to preserve other examples of admissible hearsay which do not fall within the ambit of section 259 to section 261A. These would include statements forming part of the res gestae, statements made by an accused person, statements made by persons identifying the accused, and the like.

[23] For the reasons set out above we conclude that the provisions of section 259 have superseded the common law and the objection taken by Mr McConnachie is well founded.

[24] Finally, we record that while during the course of the hearing passing reference was made to the Human Rights Act 1998, section 3, we were not favoured with any submissions relating thereto, and none of the parties prayed it in aid in support of their respective constructions of the statutory provisions. We reached our conclusions without resort to it. In the circumstances it would be inappropriate for us to make any observations relating to the role of section 3, its scope, or its potential application.