Appeal Court grants Crown application to allow hearsay evidence in fraud case

A sheriff had refused the application made under section 259 of the Criminal Procedure (Scotland) Act 1995 on the basis that the statements would amount to the “sole or decisive evidence” in the case, but the High Court of Justiciary Appeal Court overturned the decision after ruling that the statements were not the only evidence.

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Malcolm, heard that the respondent Margo Alongi had been indicted at Edinburgh Sheriff Court on two charges of obtaining money from two people in her care by fraud.

The first charge alleged that, between October 2013 and January 2014, she used the bank card of “RS”, an alcoholic, to withdraw unauthorised sums totalling £2,350, which she retained, from his bank account.

The second charge was in similar terms, covering the period May 2010 to January 2014 and alleged that £36,590 was withdrawn from the account of “EL”.

The Crown made an application under section 259 of the 1995 Act to admit the hearsay evidence of statements allegedly made by RS to the police prior to his death in July 2015.

The written statements were signed by RS on each page and on the final page it was recorded that the statement had been read over to him and that it was “true and accurate”.

There was no equivalent application in relation to EL, since she made no statements complaining about the respondent’s activities prior to her death in January 2014.

The Crown case was that RS’s carers had been told by their employers not to withdraw any cash for him beyond that required for daily living, since he would simply spend it on drink.

His shopping was accounted for by the carers entering the relevant amounts in books at both Tesco and his home.

It was not disputed that there was a discrepancy between the amounts entered in these books and the cash withdrawals and respondent admitted that she withdrew sums beyond those recorded, but maintained she was prevailed upon by RS to do so.

EL suffered from cerebral palsy and was incapable of withdrawing sums of money, but the court has been told that the essence of the case was that the respondent withdrew a number of sums from EL’s bank account, which plainly related to matters unnecessary for her day to day living.

The Crown advised the sheriff that they intended to rely on the existence of mutual corroboration in order to prove both offences and it was conceded before the appeal court that the application of that principle was central to the Crown case and that, without it, neither charge could be proved.

In refusing the section 259 application, the sheriff considered a trial would “inevitably be unfair” because of the inability of the respondent to cross-examine RS.

The sheriff relied upon Al-Khawaja v United Kingdom (2012) 54 EHRR 23 and N v HM Advocate 2003 JC 140 and took account of the dictum in Beurskens v HM Advocate 2015 JC 91, which stressed the need to “assess fairness in the context of the trial overall”.

However, the Crown lodged a Bill of Advocation to allow the hearsay evidence to be led at the trial, and the appeal judges held that the application should be granted.

The judges observed that, in assessing the fairness of a trial in ECHR Article 6 terms, a “court requires to evaluate the overall fairness” of the proceedings, looking at them as a whole having regard “not only to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted”.

Since an accused is, as a generality, entitled to examine the witnesses against him, where a conviction is based “solely or to a decisive degree” on written statements, this may be incompatible with that entitlement.

It has also been recognised in the European jurisprudence that a statement of a person who has died may be competently led and that statement will be decisive if it is “of such significance or importance as is likely to be determinative of the outcome”, but if it is “supported by other corroborative evidence” then the stronger the corroboration, the less likely it is to be regarded as decisive.

Delivering the opinion of the court, the Lord Justice General said: “In this case the degree to which RS’s statement will be decisive remains uncertain, notwithstanding the concessions made by the Crown. It is certainly not the only evidence; there being documents from Tesco, the Bank and the respondent’s employers detailing apparently inconsistent financial transactions against a background of an established system designed to reduce the risk of embezzlement.

“That alone renders it doubtful, at this stage, whether the statements can be regarded as decisive in terms of the European jurisprudence. In addition, there is the potential for mutual corroboration to bolster the Crown’s case on each charge.

“There is an opportunity, on the part of the defence, to lead evidence on RS’s general state, if that is not done by the Crown…In all these circumstances, it cannot be determined that, on the predicted testimony, the respondent’s trial will inevitably be unfair. In these circumstances, the Bill must be passed.”