Francis Cairney v. Her Majesty’s Advocate [2019] HCJAC 87

Description

Note of appeal against conviction:- On 14 December 2018, at Hamilton Sheriff Court, the appellant was convicted after trial of seven charges of indecent assault (including charge 8 involving the complainer, WA) and 2 charges of lewd, indecent and libidinous practices and behaviour in relation to offences committed between 1965 and 1986. Four of the complainers had been members of a church boys’ football team, which the appellant coached. Five of the complainers were members of Celtic Boys Club where the appellant had also been a football coach. During the course of trial, the appellant disputed whether one of the complainers, WA, the complainer in charge 8, had been in the Celtic Boys Club team. Following his conviction, the trial sheriff imposed various consecutive sentences arriving at a total of 4 years imprisonment including a sentence of 12 months for charge 8 involving WA which was more serious than some of the other charges in that it involved the appellant forcing WA to masturbate him to ejaculation. The appellant appealed against his conviction in relation to charge 8, it coming to light after the trial that WA had previous convictions for dishonesty which had not been disclosed to the defence. In his report to the court the trial sheriff noted that WA was the complainer who was most forcefully cross-examined by defence counsel and in his speech to the jury defence counsel had described WA’s evidence as an insult to everyone in the court room and nonsense. The account provided by WA was ridiculed by defence counsel and the trial sheriff considered that any further challenge to the credibility of the witness based on previous convictions would have paled into insignificance and was unlikely to have made a material difference to the verdicts. The circumstances were that whilst WA’s Scottish previous convictions (including non-dishonesty PCs) had been made available to the appellant’s solicitors in advance of the trial, for some reason, they had not been uplifted by the appellant’s agents. Prior to the start of the trial the appellant’s agents were told that the complainers had no previous convictions. In March 2019, the appellant’s agent became aware that WA did have previous convictions in Scotland and in England. The convictions in England occurred between 1980 and 2000 and were for theft, five offences of obtaining property by deception, possession of controlled drugs, criminal damage, obstruction, causing grievous bodily harm and failing to surrender to bail. It was submitted on behalf of the appellant that the nature of the complainer’s convictions were relevant to his credibility. The Crown could have checked the Police National Computer and the English convictions would have shown up and were disclosable the credibility of WA being the central issue in relation to charge 8. There was an absence of evidence, beyond WA’s claim, in relation to whether WA had played for Celtic Boys Club. One witness who had been in the team had no recollection of the appellant playing there. It was submitted that it could not be said that the lack of the opportunity to cross-examine the complainer about his convictions might not possibly have affected the verdict and the failure to disclose amounted to a miscarriage of justice on charge 8 there being a real possibility that the jury would have reached a different verdict. On behalf of the Crown it was submitted that whilst they had access to the Scottish Criminal Records Office for Scottish convictions they had no right of access to the PNC other than through the police and whilst it was accepted that the Crown had a duty to disclose the criminal history of complainers no routine check was carried out in relation to any existing PCs in jurisdictions outwith Scotland and any obligations were limited to information held by the SCRO. It was also accepted that the evidence of previous convictions which demonstrated dishonesty could be admitted in order to challenge credibility following a section 275 application being granted. It was submitted on behalf of the Crown that the test for determining whether a miscarriage of justice had occurred was whether there was a real possibility that there would have been a different verdict if the failure to disclose had not taken place and in the present case it was speculative to consider the possible effect the PCs would have had and it was clear that defence counsel had cross-examined WA robustly. Here the court allowed the appeal and quashed the appellant’s conviction in relation to charge 8. The court reiterated that the Crown has a duty to disclose information which would be likely to be of material assistance to the proper preparation or presentation of the accused’s defence and that included the previous convictions of witnesses to enable the defence to assess the strengths and weaknesses of witnesses. In terms of Article 6(1)(b) of ECHR, prosecuting authorities must disclose material which is either in their possession or which they could have “collected” and which may assist in undermining the credibility of prosecution witnesses. The obligation is restricted to convictions which could have a bearing on credibility, for example, offences inferring dishonesty. The court considered that it was outdated for the question to be answered solely on the basis of whether the Crown has physical possession of the relevant information and the court considered that the obligation extend to information which is readily searchable on a database to which the Crown have access. The court observed that it was surprising the police did not forward a note of the complainers’ criminal records when reporting the case to the procurator fiscal and also when the procurator fiscal failed to forward the information when seeking Crown counsel’s instructions on whether to prosecute and on what charges. The court considered that the Crown should have disclosed the English convictions to the appellant. The court noted the trial sheriff’s view in relation to the effect such disclosure would have made, however, the court here noted that unlike most of the rest of the charges where the verdict was unanimous, the verdict on charge 8 had been by majority indicating that the challenge to WA’s credibility had made some impact and the use of WA’s PCs for dishonesty may have had a material bearing on the jury’s consideration of his credibility. The court concluded that the failure to disclose WA’s PCs which could have been accessed easily by the Crown, had resulted in a miscarriage of justice and the appellant’s conviction in relation to charge 8 was quashed.