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Cite as: [2000] ScotHC 106

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MICHAEL McGINLEY v. HER MAJESTY'S ADVOCATE [2000] ScotHC 106 (24th November, 2000)


Lord Justice General

Lord Cameron of Lochbroom

Lord Weir

Appeal No: C638/99













Act. D. Hughes; Balfour & Manson

Alt.: Jones, A.D.; Crown Agent

24 November 2000

[1] The appellant is Michael McGinley who was convicted in September 1999 at the Sheriff Court at Glasgow of a contravention of Section 5 of the Sexual Offences (Scotland) Act 1976, of a charge of using lewd, indecent and libidinous practices and behaviour, and of a charge of assault. The appellant has appealed against that conviction.

[2] The complainers in the statutory offence and in the charge of lewd, indecent and libidinous practices were two sisters. The offences in question were libelled as having occurred between 4 February 1983 and 15 November 1985. At the time D, the complainer in the statutory offence, would have been between 12 and 14 years of age. The appellant's appeal against conviction arises out of what happened when D gave evidence at his trial, by which time she was 28 years of age.

[3] When D was called to give evidence, the procurator fiscal depute moved the court to allow a Mr. Chalmers to accompany her and sit near her for the purpose of being a comforting presence while she was giving evidence. In making that motion, the procurator fiscal depute referred inter alia to the nature of the sexual allegations about which D would be asked to give evidence and said that she found the matter profoundly troubling and anxious. The procurator fiscal depute also referred to the time which had passed since the date of the alleged offences and since D first reported them, to the history of the case and to the fact that D had asked for Mr. Chalmers to be present. We understand from the Sheriff's report to this court that Mr. Chalmers was D's boyfriend at the time of the trial, but their relationship was of fairly recent origin and he would therefore have had no first-hand knowledge of the matters about which she was to give evidence.

[4] The appellant's counsel at the trial, Mr. D. Hughes, strenuously opposed the Crown motion in principle, on the ground that D was not a child and should therefore have been able to give evidence without support. He also raised the possibility that there might be improper communication between D and Mr. Chalmers during her evidence. The Sheriff granted the Crown motion. In presenting the appeal to this court, Mr. Hughes argued that the mere presence of Mr. Chalmers in court in relatively close proximity to D amounted to a material irregularity and one which created a situation in which justice had not been seen to be done. He referred to Bradford v. McLeod 1985 S.C.C.R. 379.

[5] The Sheriff appears to have considered that the approach to motions of this kind was regulated by paragraph 3(c) of the Memorandum by the Lord Justice General on Child Witnesses dated 26 July 1990, now to be found in Appendix D to Renton and Brown's Criminal Procedure (sixth edition). This may perhaps be because in the opening paragraph the Lord Justice General explained that the Memorandum had been prepared at the suggestion of the Scottish Law Commission in their Report on the Evidence of Children and Other Potentially Vulnerable Witnesses. But, as its title and contents make plain, the Memorandum deals only with child witnesses and so it was not in its terms applicable to this case. None the less, in recent years the courts have indeed been prepared to entertain this kind of motion on behalf of the Crown, even in cases where the witness is an adult. The presence of persons in court to support witnesses has been found to give rise to no material difficulty. We therefore reject the appellant's argument that the mere presence of an adult acting as a support to the witness would have been a reason for an impartial observer to conclude that justice had not been seen to be done in this case.

[6] As the Advocate Depute explained to us, however, the Crown usually ask for a volunteer or perhaps a social worker, who will not have been in any sense emotionally involved with the witness, to accompany the witness. The person concerned will always be placed out of the witness's line of sight. It is, by contrast, unusual for the Crown to ask for a relative or someone emotionally attached to the adult witness to be present in this role.

[7] We consider that it was unfortunate that the person chosen to provide the support to D was her current boyfriend. Although Mr. Chalmers would have known nothing about the subject-matter of the charges, D was going to be asked questions about a sexual incident many years before and it could be anticipated that allegations would be put to her in cross-examination about sexual activities around the relevant time. In that situation, in particular, it would have been preferable if the accompanying person had not been her current boyfriend before whom she might conceivably have hesitated to speak frankly about such matters. But, from the terms of the Sheriff's report, it is plain that D's evidence and the evidence of her sister were subjected - "mercilessly and remorselessly", in the words of the Sheriff in his report to this court - to far-reaching cross-examination on behalf of the appellant. The Sheriff gave the jury clear directions that all matters of the credibility and reliability of the witnesses were for them and them alone. In these circumstances we are satisfied that the mere fact that Mr. Chalmers, rather than an entirely independent person, was present in the court at the time when D gave evidence did not give rise to any miscarriage of justice.

[8] But counsel went further and argued that there had actually been improper communications between Mr. Chalmers and D during her evidence.

[9] In the court room Mr. Chalmers was seated on a chair near to, but behind the line of, the witness box and he was therefore not in D's line of sight while she was giving evidence. We should explain that both the Sheriff and the Advocate Depute before this court rejected the suggestion in the grounds of appeal that Mr. Chalmers was sitting approximately one foot from the witness box. Both, on the other hand, accepted that he was sitting on a chair near the witness box and, at the hearing of the appeal, Mr. Hughes really proceeded on that basis. Before her evidence began the Sheriff directed D that she, and only she, should answer the questions put to her and that, even if she did look towards Mr. Chalmers, she was not to look to him for assistance in answering any questions or to provide any answers. He made it plain that it was her evidence, not the evidence of anyone else, which was wanted. He also directed Mr. Chalmers that his only role was to accompany D and to be there physically, but not to answer the questions nor to attempt to answer for her, nor yet to provide material for her to give in her answers. In giving this direction to Mr. Chalmers, the Sheriff saw himself - wrongly, as we have explained - complying with the terms of paragraph 6 of the Lord Justice General's Memorandum. But a direction of this kind, stressing the limited role which Mr. Chalmers was to play and, in particular, warning him that he was not to try to influence her answers, was clearly not only desirable but necessary. We do not understand, indeed, that Mr. Hughes objected to the directions to D and Mr. Chalmers as such.

[10] On behalf of the appellant, Mr. Hughes said that, despite the directions given to D and to Mr. Chalmers, D and Mr. Chalmers were seen exchanging glances during her evidence. Furthermore, they mouthed words to one another and D constantly looked to Mr. Chalmers. The exchanges were said to have continued despite defence counsel requesting, during cross-examination, that D look at him rather than at Mr. Chalmers when answering questions.

[11] In his report to us the Sheriff explains that he did not at any time see D or Mr. Chalmers do any of the things which are alleged in the grounds of appeal. Had he seen them, he would have given an appropriate direction. He would also have done so if any such matter had been brought to his attention, but it was not. The Sheriff accepts that, during his cross-examination, counsel did say to D words to the effect "Just look at me, please", but counsel did not take the matter any further during her evidence. In arguing the appeal, Mr. Hughes accepted that he had done nothing more during D's evidence, but he pointed out that, on the basis of information given to him by his agent, he had raised the matter at the time when the Crown moved to have a person present to support D's sister when she gave evidence. Apparently, he had said that D and Mr. Chalmers had been making gestures to each other during her evidence.

[12] In his report the Sheriff informs us that his Bar Officer, who was sitting directly behind D and Mr. Chalmers while she was giving evidence, noticed that at one particular point D had become upset and distressed and Mr. Chalmers had made a gesture with his hands, indicating that she should calm down. Apart from that, the Bar Officer saw nothing of the kind mentioned in the grounds of appeal. For the sake of completeness, we should explain that, during defence cross-examination, the procurator fiscal depute was sitting with her back to the witness box and she was therefore not in a position to say what had happened.

[13] It appears that, at least by the time when the procurator fiscal depute was moving the Sheriff to make a similar arrangement for the complainer's sister, the appellant's solicitor had told Mr. Hughes, who was conducting the defence, of what had occurred during D's evidence. Mr. Hughes prayed that information in aid in opposing the Crown motion, but for no other purpose. In particular he did not move the Sheriff to desert the diet, whether simpliciter or pro loco et tempore; nor did he ask the Sheriff to give the jury any special direction on the matter. It would have been appropriate for counsel to move at least one of these motions if he had taken the view that what had occurred was a potential basis for saying that there had been a miscarriage of justice. But counsel made no such motion at the trial. Now, at this late stage, he asks this court to quash the appellant's conviction on the basis of events which he did not consider worthy of any formal motion at the trial. In these circumstances, and particularly having regard to the detailed account of the relevant matters given in the Sheriff's report, we see no basis whatever for holding that anything which occurred between D and Mr. Chalmers during her evidence would justify us in quashing the appellant's conviction.

[14] For these reasons the appellant's appeal against conviction is refused.

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