Her Majesty’s Advocate v. Margo Robertson Alongi [2017] HCJAC 18

Bill of advocation:- The respondent was indicted to Edinburgh Sheriff Court in relation to two charges of fraud. In advance of trial the Crown made an application under section 259 of the Criminal Procedure (Scotland) Act 1995 to admit the hearsay evidence of statements allegedly made by the now deceased RS, a key Crown witness, to the police. The Crown intended to rely on the doctrine of mutual corroboration in order to prove both charges. The sheriff refused the application as he considered that the statements made by RS were sole and decisive evidence in the case. The Crown appealed against that decision by way of Bill of advocation. Here the Court passed the Bill and granted the application to allow the hearsay evidence. The court considered a number of authorities on the issue including Al-Khawaja v United Kingdom (2012) 54 EHRR 23 and N v HMA 2003 JC 140. The court referred to Beurskens v HMA 2015 JC 91, where it was noted that in assessing the fairness of a trial in the context of Article 6 it is necessary for a court to evaluate the overall fairness of the proceedings balancing not only the rights of an accused but also the rights of the public in the prosecution of crime. The court reiterated that a statement will only be decisive if it is “of such significance or importance as is likely to be determinative of the outcome” and the words ‘sole’ and ‘decisive’ ought to be applied flexibly. It was noted that a conviction could be based solely on hearsay provided it was sufficiently reliable. In the present case it was noted that the extent to which RS’s statement might be considered to be sole or decisive could not be known until the other evidence available had been led and in advance of trial it could not be said that the respondent’s trial would inevitably be unfair. In relation to concerns raised on behalf of the respondent about the reliability of RS’s statement, for example, he was an alcoholic, those were matters that could adequately be dealt with by leading evidence on the respondent’s behalf in relation to any of the issues that might impact upon his reliability. In addition, the police officers who noted his statements could also be asked questions regarding any difficulties he had in providing the statements.