Crown wins ‘public interest’ appeal against judge’s decision to desert trial

The trial judge had become “increasingly frustrated” at the Crown’s handling of the case and refused a motion to adjourn the trial when it emerged that there were discrepancies between transcripts of statements before the court and copies which were being put to a witness.

However, the Criminal Appeal Court ruled that the judge failed to properly consider the “public interest” in prosecuting the “serious offences” despite the “defects in the presentation in the prosecution”.

The then Lord Justice Clerk, Lord Carloway, sitting with Lord Bracadale and Lord Malcolm, heard that Robin Vaughan, Peter O’Brien, Joseph McHale and Kevin Schruyers had been indicted on 34 charges of theft, opening lockfast places, breaking into commercial premises and using explosives to blow open automated teller machines (ATMs), contravening section 2 of the Explosive Substances Act 1883 and s.4(3)(b) of the Misuse of Drugs Act 1971, and threatening a witness.

The first three respondents appeared on petition in October and November 2013 and an indictment containing 26 charges was served, citing them to appear at a preliminary hearing in September 2014, while the fourth respondent appeared from custody in August 2014 to answer a petition warrant.

A fresh indictment was then served on all four respondents and following a number of continuations and extensions to the 11 and 12-month time bars, as well as an adjournment, the trial commenced in June 2015.

The advocate depute called 73 witnesses, but only eight of them were cross-examined and only three were asked more than a handful of questions.

A limited joint minute had been agreed but the trial judge was “justifiably frustrated” that no agreement had been reached in relation to the “apparently uncontroversial evidence” and the consequent “substantial waste of resources and court time”.

She was also concerned about an apparent “lack of proper preparation by the Crown” and, in particular, the advocate depute prosecuting the case.

The judge gained the impression that the AD was “preparing the case almost as he called each witness”, reading from the precognition rather than having assessed in advance what areas of evidence required to be adduced, meaning unchallenged testimony from one witness was led “unnecessarily” from different witnesses.

The judge’s “increasing exasperation” came to a head when the AD called a witness and “annoyed the judge” even further by commencing his examination-in-chief, not by asking the witness about what he had seen or heard, but by asking him about what he had said in his interview with police.

And during the course of the first respondent’s cross-examination of the witness it became apparent that the copies of one of the transcripts from which the judge, the AD and counsel for the third and fourth respondents had been working, were not the same as the principal which was being put to the witness.

Having adjourned the trial from what was a Friday until the Monday to allow the AD to check transcripts against the recording, the judge then learned that the copies of the transcript she, the AD, and counsel for the third and fourth respondents had contained only 42 pages of the 97-page principal document lodged in court.

The missing section, which counsel for the fourth respondent did not have, contained the statement of a witness who was asked to look at photographs and identify the individuals, but the identities of the persons shown were not clear from the transcript.

However, by referring to the statement of one of the interviewing officers it was made clear that the police showed the witness photograph which included all four respondents, but only the first respondent was mentioned as having been identified.

In the course of examination-in-chief, the witness had identified Mr Schruyers in court as one of the group, but it was asserted to the trial judge that had counsel been aware of the earlier failure to identify the fourth respondent, he would have objected to the “dock” identification.

The trial judge then granted the respondents’ motion to desert and refused a motion by the advocate depute to extend the 11 and 12-month time bars.

She was not satisfied that the transcripts before her were accurate and was not prepared to adjourn the trial further to allow the defence to consider what may have been potentially significant information requiring further investigation.

The judge was also concerned about the directions which would have to be given to explain what use the jury could make of the interviews given the problems with the transcripts, and was of the view that no adjournment could address the issue of the fourth respondent having been identified in the dock without the objection, which would have been taken had counsel had the missing information.

A further adjournment for an unknown length of time would also inconvenience the jurors and therefore the judge had, in her view, no option but to desert the trial pro loco et tempore – bringing the case against three of the four respondents to an end.

However, the appeal judges observed that the problems with the transcripts could have been “cured” and any “perceived unfairness” in the dock identification could have been dealt with by “simple procedural steps”.

Delivering the opinion of the court, the Lord Justice Clerk said: “There can be no doubt that the multiple failings on the part of the Crown were an important context in which the trial judge’s decision to desert was taken. The frustration expressed by the judge in this regard is entirely understandable…However, the public interest in the prosecution of serious crime must be considered.

“The respondents are alleged to have committed a significant number of serious offences which must have required considerable planning and organisation. It is clearly in the public interest that those charged with such serious offences are tried, and, if guilt is proved, convicted and sentenced.

“It is not immediately apparent from the judge’s report that she fully considered the availability of procedural steps to remedy the regrettable but remediable situation which had arisen, short of deserting the diet. It is also not clear from the judge’s reasoning that she properly carried out a balancing exercise, weighing the public interest against the risk of any potential unfairness as a result of what were defects in the presentation of the prosecution.

“On that basis, the court is not satisfied that the judge properly exercised her discretion in deserting the diet.”

Three of the four – Vaughan, McHale and Schruyers – were ultimately tried, convicted and sentenced.