Scots law restriction on right of accused to put the Crown to the proof of facts ‘does not infringe right to a fair trial’

A seven-judge bench in the Criminal Appeal Court held that section 258(4A) of the Criminal Procedure (Scotland) Act 1995 relating to statements of uncontroversial evidence was compatible with article 6 of the European Convention on Human Rights (ECHR).

The Lord Justice General, sitting with the Lord Justice Clerk, Lord Eassie,Lord Clarke, Lady Dorrian, Lord Malcolm and Lord Tyre, said it was “notorious” that the average length of trials on indictment had increased “substantially” over the last 20 years.

He explained: “There are many reasons for this; but one reason is undoubtedly the defence strategy in complex cases of putting the Crown to the proof of every piece of evidence in the case. In current practice what is described as an exercise of the so-called right to silence in a typical fraud case involving the production of thousands of documents can prolong the trial by a matter of weeks or even months.

“The problem can be avoided, or at least greatly reduced, if the accused formally accepts that those documents that are not in controversy are what they bear to be or that uncontroversial factual matters are to be held as proved. However, the reluctance of accused persons or their representatives to proceed in this way has necessitated legislation.

“The primary contention for the appellants is that the legislation, in restricting the right of the accused to put the Crown to the proof of facts that he is in no position to dispute infringes the accused’s right to a fair trial under article 6 of the Convention. That raises a question as to the true scope of the right to silence. There is also a question as to the extent of counsel’s duty to carry out his client’s instructions.”

The court heard that the appellants Mohammed Ashif and Aliah Ashraf had been indicted in Glasgow sheriff court on a charge of fraud, it being alleged that they formed a fraudulent scheme to obtain monies from the Queen’s and Lord Treasurer’s Remembrancer (Q&LTR).

The essence of the alleged scheme is that the appellants invented fictitious relatives of four persons whose estates were being administered by the Q&LTR, claimed the estates in those fictitious names and thereby obtained substantial sums of money.

The Crown served on the defence a statement of uncontroversial evidence purportedly in terms of section 258(2), which listed 68 alleged facts that were said to be uncontroversial.

It included contentions that bank accounts were opened in the names of various people and that certain documents, copies of which are Crown productions, were produced as proof of identity, and asserted as a fact that certain documents were “false” and that claims made on the estates of the deceased persons were “fraudulent”.

The appellants challenged the statement in its entirety, while the Crown moved for the challenges to be disregarded in terms of section 258(4A).

The appellants lodged devolution minutes in which they contended that the enactment of section 258(4A) was “beyond the competence” of the Scottish Parliament by reason of its incompatibility with article 6, and that the Lord Advocate’s application to the court under that subsection was ultra vires on Convention grounds, but the sheriff held that the challenge by the appellants to the statement of uncontroversial evidence tendered by the Crown was “unjustified”.

The accused appealed on the basis that the right of the accused to put the Crown to proof on all matters upon which it wished to rely was “sufficient justification” of their challenges in terms of section 258(4A).

They contended, alternatively, that the provision was “beyond the competence” of the Scottish Parliament because it resulted in “self-incrimination”, it shifted the burden of proof to the defence and it “deprived the accused of the right to cross-examine witnesses”. It was therefore incompatible with article 6.

The submission for the first appellant was that the Crown was attempting to force the appellant to agree certain facts despite his instructions to counsel and was attempting to present its case by stating evidence rather than by leading evidence that could be subject to cross-examination.

The appellant had an “absolute right” to put the Crown to the proof of its allegations and should not have to justify his stance, as that would contravene his right against self-incrimination and his right to cross-examine prosecution witnesses.

If the court were to examine the defence’s justification, that would mean that it was determining the facts, which was the function of the jury.

The right to a fair trial was “absolute” and that right was, in itself, “sufficient reason” to challenge the statement, meaning the challenge was therefore “justified”.

The opinion of the Lord Justice General stated: “In my view, section 258 does not abridge the implied and subsidiary rights within article 6. Those rights may be restricted provided that, overall, a fair trial is achieved. In my view, if the section infringes those rights at all, it does so in only a limited way.

“It is a reasonable and proportionate response to the problem that I have identified. It respects and protects the interests of the state in an efficient system of criminal justice while being fair to both prosecution and defence, and to third parties such as witnesses and jurors. I conclude therefore that the enactment of section 16 of the Criminal Procedure (Amendment) (Scotland) Act 2004, by which section 258(4A) was introduced, was within the vires of the Scottish Parliament.”