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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 13
HCA/2023/000382/XC
Lord Justice Clerk
Lord Doherty
Lord Matthews
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
LESLEY CLARKSON
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: Culross; John Pryde & Co
Respondent: McKenna, AD, sol adv; the Crown Agent
____________________________
23 April 2024
Introduction
[1]
The appellant was convicted of two money laundering offences committed between
January 2016 and November 2017. The same property was involved in both charges viz.
£63,766 in cash, that figure having been amended at the end of the Crown case from the sum
2
of £69,416 originally libelled. The appeal arises out of the Crown's failure to disclose a
report before the trial and the alleged consequences thereof.
Circumstances
[2]
The case against the appellant was a circumstantial one. There were three main
threads of evidence. These were (i) evidence of her relationship with a David Togher, about
whose criminal lifestyle, involvement in drug offences and association with known
criminals evidence was led at trial; (ii) transactions on various bank accounts in the name of
the appellant, the details of which were agreed in a Joint Minute; and (iii) a search of her
address during which officers recovered cash of £14,571.20 spread across fifteen locations in
bags, boxes and envelopes, two expensive watches and papers which included notebooks
and lists containing names, numbers and sums of money.
[3]
The appellant maintained that the main source of the cash in the account came from
her assisting Mr Togher to realise his share of his roofing business and sell his equipment.
Some of the cash was also from her parents, in particular her father.
The expert evidence
[4]
The Crown led evidence from two experts. Gavin Black, and Kenneth Murray who
both gave evidence about the suspicious nature of the cash recovered from the appellant's
home, the unusual transactions on her accounts during the relevant period, and patterns
observed in the way the accounts were operated. Mr Murray, in particular, noticed various
"identifiers" of money laundering across the accounts, which included "smurfing" (splitting
up larger sums and staggering payment over a period of time), "layering" (transfer of the
sum deposited into a series of bank accounts) and "conversion" (using the sums in a
3
purchase or transfer elsewhere), all under reference to specific entries in the accounts. The
defence had commissioned and lodged a report by another expert, John O'Donnell.
The disclosure issue
[5]
The focus of the appeal relates to evidence given in connection with certain
transactions on the appellant's account totalling £4,650 and consisting of £1,500 and £2,100,
paid to Thomas Cook for a holiday, and another sum of £1,050. Mr O'Donnell's report
suggested that the source of the £4,650 was the appellant's father, the former two sums
(£1,500 and £2,100) having been transferred from his account to the appellant's account to
fund the major part of a family holiday and the latter sum (£1,050) relating to factoring fees
for a property which he and the appellant jointly owned. Mr Black conceded these matters
during his evidence.
[6]
In examination-in-chief Mr Murray, under reference to the relevant part of his report,
referred to these sums as cash deposits. He noted aspects of smurfing and layering in
relation to them, indicating in his opinion that they had been laundered. When
Mr O'Donnell's report on these sums was put to him in cross-examination he made
reference to a supplementary report in which the source of these was acknowledged to be
BACS transfers from the appellant's father. This was the first intimation to the defence that
such a report existed. It is clear that in giving his evidence Mr Murray had throughout been
under the assumption that the supplementary report was before the court.
[7]
There followed a discussion in which the procurator fiscal depute indicated that the
Crown did not dispute the appellant's contention regarding these transfers, and therefore
she had not considered it necessary to lodge or disclose the report, the conclusions of which
agreed, to some extent at least, with the defence expert's conclusions on the matter. The
4
report was then disclosed and an adjournment granted, over a weekend, to enable the
defence to consider the report.
[8]
When the court resumed the defence sought desertion simpliciter on the basis that the
Crown had deliberately failed to disclose the supplementary report and had led evidence
known to be untrue. Leading evidence about these sums being unaccounted cash deposits,
which was known to be untrue, had been highly prejudicial to the appellant. It was
submitted that the jury would not be able to put that erroneous evidence out of their minds.
The sheriff disagreed. He considered the matter could be dealt with by direction. He
refused the motion.
[9]
No further motion was made by the defence. Prior to the resumption of evidence,
parties entered into a second joint minute, agreeing that the three deposits totalling £4,650
were transfers from the appellant's father's account rather than cash deposits, and this was
read to the jury. In further cross-examination of Mr Murray he accepted this to be the case.
At the end of the Crown case, the charges were amended to reduce the overall sum by these
amounts.
Submissions for the appellant
[10]
The essence of the first three grounds of appeal is that the Crown acted in a manner
which was oppressive, which ought to have led to desertion simpliciter, and which has
resulted in a miscarriage of justice. There had been a breach of the Crown's duty of
disclosure. The libel should have been amended at the outset to reflect the true position.
The Crown led evidence they knew to be inaccurate and which they had no intention of
relying on before the jury (HM Advocate v Rutherford, unreported, per Lord Turnbull). The
joint minute was not signed until the first day of the trial, at which time they already had
5
possession of the supplementary report. Proceeding only with the first joint minute and
leading the evidence of the original report suggested a lack of good faith on the part of the
Crown, whose actions must be deemed to be oppressive. The prejudice was so grave as to
be incapable of being cured by direction or by the effect of cross-examination. The defence
required to expend considerable further time during cross-examination in order to
undermine Mr Murray's position in respect of the payments in question. The sheriff should
have deserted simpliciter or at least pro loco et tempore to allow the defence further time to
consider whether further consultation with the defence expert was necessary.
[11]
The fourth ground asserts that esto the prejudice could be removed by directions
those given by the sheriff were inadequate. It was submitted that their "tone" had the effect
of "rehabilitating" the evidence of Mr Murray. Particular reference was made to the passage
where the sheriff stated
"Mr Cameron was critical of Mr Murray and you can make what you will of his
criticisms. Mr Murray accepted that he was partly at fault but his evidence about the
money from the parents was only part of his evidence and he did correct it, and you
heard what he said about the rest of his evidence.
In assessing Mr Murray's evidence as a whole, you can take into account what
happened in the witness box and his exchanges with Mr Cameron in considering his
evidence as a whole and whether it makes it less reliable if you wanted to do that, or
you could conclude that it doesn't make it less reliable in relation to the matters on
which there was no issue about erroneous evidence being given."
[12]
The final ground asserts that even if the other grounds do not individually
demonstrate a miscarriage of justice, they did so when taken in combination.
Submissions for the Crown
[13]
The Crown accepts that they failed in their duty of disclosure and ought to have
lodged the supplementary report, that the libel should have been amended prior to evidence
being led, and that the evidence in question ought not to have been elicited from Mr Murray
6
in examination-in-chief. Nevertheless, the appellant had not established that there was a
real possibility that the jury would have returned a different verdict had pre-trial disclosure
of the report occurred (Al Megrahi v HM Advocate (No 3) [2021] HCJAC 3 at para [124], citing
[14]
The defence were informed at the first diet on 4 April 2023 that the Crown accepted
that the source of the sums in question was the appellant's father's account. This is not
recorded in the minutes but is recorded in the notes of the PFD. At a meeting on 31 May
2023, both sides agreed that this evidence would be elicited in cross-examination, on the
view that amending the joint minute might risk confusion anent figures mentioned in the
experts' reports. The Crown acknowledged that this had been an error, albeit made in good
faith. The appellant could not now complain about an approach to the leading of evidence
which the parties had agreed to before the trial. The test to be met for oppression was a high
one (McFadyen v Annan 1992 JC 53). The depute did not act in bad faith (Potts v PF Hamilton
[15]
In any event, disclosure during the trial could remedy failures in pre-trial disclosure
(HM Advocate v Higgins 2006 SCCR 305). The defence solicitor had the opportunity to
consider the supplementary report, cross-examine on it, and make reference to it in his
speech. The second joint minute was read to the jury before Mr Murray resumed his
evidence. The joint minute was referred to in speeches and in the charge, so the position
would have been clear to the jury. There remained a compelling case against the appellant.
It could not be said that no reasonable sheriff would have refused the motion to desert.
[16]
There was no misdirection. The sheriff was correct to tell the jury that what they
made of Mr Murray's evidence and the defence criticism of it was a matter for them (Younas
7
Analysis
[17]
The Crown's approach to this case at trial was incomprehensible. Whatever may
have been agreed between the parties, the Crown categorically should not have led evidence
known to be inaccurate, in the knowledge that the expert also accepted it to be inaccurate,
and which it was known would not be relied upon in seeking conviction. The report should
have been disclosed upon receipt, and the libel should have been amended at the start of the
trial. It is nonsense to suggest that an agreement as to the source of the £4,650 would have
caused confusion in relation to the figures provided in the expert reports, especially when
those sums were the subject of a supplementary report. Leaving aside the failure to disclose
the report and the decision not to put these facts into a joint minute pre-trial, at the very
least the Crown ought to have elicited in examination-in-chief, the clarifications or changes
to the expert's opinion. The approach taken prolonged the evidence of the expert, wasted
court time and obfuscated the true issues in dispute. The Crown's concessions that there
was a breach of the duty of disclosure, that the libel should have been amended at the
outset, and that the evidence of the original report in relation to these transactions should
not have been elicited are well made. We have no reason, however, to think that the errors
were made on the basis of bad faith, rather than lack of competence or a wholly misguided
view as to what was appropriate.
[18]
The court is very concerned that this situation should have arisen. Nevertheless, the
ultimate question for the court is whether the trial was unfair and resulted in a miscarriage
of justice. It is difficult to identify exactly where the enduring prejudice to the appellant is
said to lie. It was submitted that the leading of untrue evidence that these sums were
unaccounted cash deposits created a risk of prejudice so great that it could not be corrected
8
by cross-examination bringing out contrary evidence, or by direction. We cannot accept that
submission. Any erroneous impression given regarding the three payments was
incontrovertibly, and conclusively, corrected by the joint minute and the amendment of the
libel. The jury were specifically told that the contents of the joint minute had to be regarded
by them as conclusively proved, and that "you must accept these facts as true and you must
take account of them in your deliberations". The matter could not have been made any
clearer. The jury could have been under no illusions regarding it. It is impossible to disagree
with the trial judge's statement in his report that by the end of cross-examination no one
could have been left in any doubt that the £4,650 were not proceeds of crime.
[19]
As to the directions given by the sheriff, these were both accurate and adequate. The
sheriff also reminded the jury that "the experts have not all expressed the same view as in all
matters (sic) and you just have to assess their evidence and decide what you take from it".
He advised them not to speculate or guess.
[20]
It is now submitted that, failing desertion simpliciter, the sheriff should have deserted
pro loco et tempore to allow the defence more time to consider whether further consultation
with the defence expert was necessary. The problems with that submission are (i) that it was
not made at the time; and (ii) the purpose or benefit to be gained from this course of action
are not identified. By the time the court reconvened, the defence were aware of the full
contents of the supplementary report. They had been given the opportunity to consider its
contents over the weekend. It was not suggested then that more time was required to
consider the report, or to consult with the defence expert. It seems reasonably clear that if
that had been the defence position the sheriff would have been sympathetic. It was not
contended that the supplementary report, or its late disclosure, had a significant bearing on
any issue beyond the three sums referred to and their source. The content of the defence
9
speech made it plain that the most important issue was Mr Murray's concession that he had
given false evidence in examination-in-chief, thus, the defence argued, undermining his
evidence as a whole. It is not suggested that this approach could have been strengthened by
further time to consider his supplementary report.
[21]
For all these reasons the appeal will be refused.
Postscript
[22]
The court notes with alarm the lamentable procedural history of the case, which
suggests both a lack of enthusiasm on the part of the parties to progress the case, and a
concerning lack of case management by the various sheriffs involved. The chronology is as
follows:
27 July 2021 first diet discharged, on joint motion; new first diet 3 September 2021.
19 August 2021 diet of 3 September discharged; new first diet 28 September 2021.
24 September 2021 diet of 28 September discharged; new first diet 26 October 2021.
25 October 2021 diet of 26 October discharged; new first diet 9 December 2021.
9 December 2021 diet adjourned until 3 February 2022 "for investigations".
3 February 2022 diet adjourned until 10 March 2022 for expert report to be made available.
10 March 2022 diet adjourned until 28 April 2022 "for further investigations".
28 April 2022 diet adjourned until 23 June 2022 for defence expert report to be prepared.
Time bar extended.
23 June 2022 diet adjourned until 22 July 2022 for final reports. Time bar extended.
22 July 2022 diet adjourned until 26 August 2022 for "further time to prepare". Time bar
extended.
26 August 2022 diet adjourned until 16 September 2022 for further discussions and personal
appearance of the accused. Time bar extended.
16 September 2022 trial diet assigned for 6 February 2023. Time bar extended.
6 February 2023 trial diet discharged. Intermediate diet assigned for 4 April 2023 and new
trial diet for 5 June 2023. Time bar extended.
4 April 2023 case continued to the trial diet.
5 June 2023 trial diet commences.
[23]
The first diet was discharged on four occasions, adjourned on a further seven and the
trial diet was also discharged once. It is of note that most of the adjournments were for
further investigation, further discussion or for the preparation and consideration of expert
10
reports. None of this should have been necessary: as Lord Bracadale noted in HM Advocate v
"[16] It is clear from the statutory provisions relating to preliminary hearings that
Parliament had in contemplation that the preliminary hearing would be the end-
point of preparation rather than the starting point..."
[24]
That observation applies with equal force to first diets in the Sheriff Court (see
Criminal Courts Practice Note No 3 of 2015, page 2). Time bar extensions were required for
every hearing after April 2022, yet this case should clearly have been able to proceed to trial
and be concluded prior to that date with adequate case management.
[25]
Those who conduct and preside over first diets and preliminary hearings should
always bear in mind the need to avoid churn, as has repeatedly been made clear in the
Appeal Court. See for example RS v HM Advocate [2023] HCJAC 41 and BS v HM Advocate
[2023] HCJAC 5, in the latter of which the court observed (para 11) that:
"Sheriffs who preside over First Diets must ensure that this type of pointless saga
does not happen. ... routine continuations of FDs for further time to prepare, further
investigation and disclosure or similar causes should be refused in favour of fixing a
trial diet for a time which allows any additional preparatory work to be completed
and/or granting a time limited order for the provision of whatever relevant
information is required."
[26]
It should be possible to fix a trial diet in most cases even if further investigation is
required or reports need to be obtained, without the case having to call again in the interim.
Use can be made of section 75A if a matter arises before trial which requires the intervention
of the court. If it is thought nonetheless that continuation of the first diet will be necessary
then an accurate estimate of the time within which the investigations or report can be
finalised is essential. This court appreciates the burden on busy sheriffs, especially in the
larger courts, but needless diets only increase the problem exponentially. Regard may be
had to the guidance in chapter 6 of the Preliminary Hearings Bench Book. It must also be
11
borne in mind that court minutes should accurately reflect any discussion which takes place.
As has been indicated, there was no proper record of the diet of 4 April 2023, meaning that
the next sheriff dealing with the matter would not have known what had taken place and
this court was left in the dark until the Crown provided the requisite information.
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