Mohammed Ashif and Aliah Ashraf v. Her Majesty’s Advocate 2015 HCJAC 100

Appeal in relation to section 258 of the Criminal Procedure (Scotland) Act 1995:- The appellants were indicted to Glasgow Sheriff Court on a charge of fraud. A statement of uncontroversial evidence (SOUE) was served upon the appellants in terms of section 258(2) listing 68 alleged facts that were said to be uncontroversial. The appellants challenged the SOUE in its entirety. The Crown moved for the challenges to be disregarded in terms of section 258(4A). The appellants lodged devolution minutes in which they contended:- (1) that the enactment of section 258(4A) was beyond the competence of the Scottish Parliament by reason of its incompatibility with article 6; and (2) that the Lord Advocate’s application to the court under that subsection was ultra vires on Convention grounds. On 22 October 2012 the sheriff had a hearing on the Crown’s application and on the devolution minutes. During the course of the hearing, the sheriff took the view that the facts set out in the SOUE were uncontroversial. Counsel for the appellant advised the sheriff that he had written instructions not to agree any evidence but that he did not expect that he would challenge any of the “formal evidence”. The sheriff considered that he may have to take “further action” and the hearing was adjourned to 24 October for the purpose of allowing counsel to consult the Dean of Faculty. On 24 October counsel advised the sheriff that the Dean had advised him that he was obliged to adhere to his client’s instructions which the sheriff took to mean that the instructions were “to be followed to the letter irrespective of their nature, propriety or sense”. The sheriff held that under sub-section (4A) the burden of persuasion lay on the party challenging the SOUE. The appellant had withdrawn his instructions to counsel and the case was adjourned for the instruction of new counsel. On 29 October 2012, senior counsel appeared for the appellant and the sheriff directed that the defence challenges were to be disregarded and the facts set out in the SOUE were deemed to be conclusively proved in advance of the trial. The sheriff refused a defence motion to refer a devolution issue to the High Court and then refused the devolution minutes. The appellants appealed against the sheriff’s decision. Representations were invited from the Faculty of Advocates and the Law Society of Scotland on the question of a lawyer’s professional position in relation to section 258(4A). Only the Faculty took up the court’s invitation and submitted a written submission which reviewed the law and practice together with a statement by the Dean of Faculty on the principle of the right to silence and on the professional proprieties affecting counsel in relation to it. It was submitted on behalf of the appellants that the right of an accused to put the Crown to proof on all matters upon which it wished to rely was sufficient justification for a challenge in terms of section 258(4A). Alternatively, it was submitted that the provision went beyond the competence of the Scottish Parliament because it resulted in self-incrimination as it shifted the burden of proof to the defence and deprived an accused of the right to cross-examine witnesses and was incompatible with article 6. On behalf of the Crown it was conceded that in the application of section 258(4A) the onus was on the Crown to satisfy the court that its application should be granted. It was submitted that in deciding whether a challenge was “unjustified” the word should be given its plain meaning. It was further conceded by the Crown that the statement was no longer insisted upon to the extent that it covered central issues which required proof. The Dean of Faculty submitted that counsel’s freedom to disclose his client’s position was limited. It was further submitted that unless a narrow approach was taken to the operation of subsection (4A) the court would lack the necessary information to operate the subsection justly. Here the court considered the application of sections 257 and 258 including the duties upon counsel to agree evidence. The court observed that section 258(4A) does not infringe the right to silence in that it does not compel an accused to say anything, let alone incriminate himself and it provides a mechanism by which evidence that can be properly described as uncontroversial can be held to be proved allowing an accused to decline to agree the relevant evidence and challenge the contents of the SOUE. The court considered that section 258(4A) is reasonable and proportionate and that it is a reasonable constraint upon the right of the accused to put the Crown to the proof in relation to factual matters and is consistent with the spirit of the law to encroach upon the accused being passive and is limited so that it does not render the trial unfair. The court considered, however, that the SOUE served by the Crown did not comply with section 258 as it did not deal with facts that could properly be described as uncontroversial as it included matters which formed part of the species facti of the indictment including that the transactions were fraudulent which was the central issue for a jury to decide at any trial and went beyond what ought legitimately to be included under section 258. The court observed that there is an issue whether a client is entitled to give instructions to his counsel not to agree evidence. The court stated that the client is not the master of his counsel and that counsel has responsibilities to the court as an officer of the court. Counsel is not required to act in all respects as his client wishes, for example, he is not bound to call such witnesses as the client dictates or put questions in cross-examination when he has no basis for them in his instructions, nor may he ask questions that are insulting even if his client demands that he should. In considering whether a decision to challenge a SOUE is justified counsel must take the client’s instructions and will have to make a difficult and discerning professional judgment. If an accused instructs counsel to challenge a SOUE to put the Crown to the proof of its entire case then there must be a good and sufficient reason for it and in that event counsel would be entitled to act in accordance with that instruction. If, however, an accused seeks to circumvent the intention of sections 257 and 258 with no such justification then such an instruction would be in breach of the accused’s statutory duty under section 257(1) to take all reasonable steps to reach the agreement of evidence to which section 257 refers and it is not counsel’s duty to carry out an instruction of that kind. In the circumstances the court did not consider that there was any breach of Article 6 and the sheriff was correct to refuse the devolution issue minutes. The sheriff incorrectly considered that the onus in section 258(4A) lay with the defence and he did not hear the Crown on the question whether any individual fact alleged in the SOUE was unlikely to be disputed. The Crown presented a revised version of the SOUE omitting much of the facts contained in the original and the court allowed the appeal and returned the case to the sheriff for a hearing on the revised SOUE.