Andrew McLeish v. Her Majesty’s Advocate [2016] HCJAC 74

Note of appeal against conviction:- The appellant was convicted after trial on indictment at the sheriff court of various charges including an assault on the complainer. The appellant appealed against his conviction on the basis that the trial sheriff had erred in allowing the procurator fiscal depute to ask questions of the appellant tending to show that he had been convicted of offences other than that with which he was charged in terms of section 266(4)(b) of the Criminal Procedure (Scotland) Act 1995, namely, that he had convictions for dishonesty. At the trial the appellant had lodged a special defence of self-defence. During the course of the appellant’s evidence he was asked questions about the complainer’s relationship with his girlfriend to which he indicated that they had a volatile relationship which resulted in her being thrown out of the flat for stealing, that he had a quarrelsome disposition and talked about fighting and was frequently drunk. The fiscal made an application in terms of section 266(4)(b) of the 1995 Act which was opposed on behalf of the appellant under reference to Leggate v. H.M.A. 1988 J.C. 127. The application was granted by the sheriff. Here it was submitted on behalf of the appellant that the sheriff had erred in exercising her discretion in the manner that she had. Whilst the sheriff had correctly refused the motion to allow the procurator fiscal depute to cross-examine the appellant on his previous convictions for violence and the possession of weapons as it would be unduly prejudicial in the context of the nature of the allegation and his position of self-defence the sheriff erred in allowing the appellant to be cross-examined on his convictions for dishonesty on the grounds of impugning the character of the complainer’s partner. It was submitted on behalf of the appellant that the statutory protection afforded to an accused person not to have his previous convictions placed before a jury is an important one and the particular circumstances of the present case did not merit the granting of the motion. It was conceded on behalf of the Crown that the sheriff had erred in granting the motion to the extent that the sheriff had but that in the circumstances there had been no miscarriage of justice. Here the court allowed the appeal and considered that the sheriff had erred in her discretion in allowing the procurator fiscal depute to cross-examine the appellant on his previous convictions for dishonesty. The court stated that the answer by the appellant which reflected on the character of the complainer’s girlfriend was a passing remark made in the context of background questions about the complainer’s girlfriend and there had been no direct attack on the witness’s character which would justify the granting of such a motion. The court reiterated that prosecutors ought to exercise wise discretion in making such a motion to cross-examine an accused person on his character and that in the present case the prejudicial effect of allowing the questioning of the appellant on what were significant previous convictions for dishonesty was out of proportion to the remark that was made by the appellant.