Submitted: 29 April 2016

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[2017] HCJAC 18


Lord Justice General

Lord Menzies

Lord Malcom



in the








Appellant: Niven-Smith AD; the Crown Agent

Respondent: Jones; Belmonte & Co


29 April 2016

[1]        The respondent has been indicted at Edinburgh Sheriff Court on two charges of obtaining money by fraud.  The first charge alleges that, between October 2013 and January 2014, she used the bank card of one RS, for whom she was a carer, to withdraw unauthorised sums, which she retained, from his bank account.  The total sums involved are alleged to be £2,350.  The second charge is in similar terms, covering the period May 2010 to January 2014.  It contains an allegation that £36,590 was withdrawn from the account of EL, for whom the respondent was also the carer. 

[2]        The Crown made an application under section 259 of the Criminal Procedure (Scotland) Act 1995 to admit the hearsay evidence of statements allegedly made by RS to the police prior to his death on 4 July 2015.  These statements are in writing and are signed by RS on each page.  On the final page it is recorded that the statement had been read over to him and that it is true and accurate.

[3]        There was no equivalent application in relation to EL, since she made no statements at all complaining about the respondent’s activities prior to her death on 28 January 2014. 

[4]        It is not disputed that RS was an alcoholic.  His 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 is not disputed that there is a discrepancy between the amounts entered in these books and the cash withdrawals.  The respondent admits that she withdrew sums beyond those recorded, but maintains that she was prevailed upon by RS to do so.  She had entered the amounts in a diary, which she had asked him to sign.  One of the statements which RS gave post-dated the respondent’s interview.  In it he denies signing the diary. 

[5]        EL suffered from cerebral palsy and was incapable of withdrawing sums of money.  It was not clear to the sheriff how the Crown intended to prove that the sums withdrawn by the respondent had been obtained fraudulently.  This court has been told that the essence of the case is that the respondent did withdraw a number of sums from EL’s bank account, which plainly related to matters unnecessary for her day to day living.  For example, there was expenditure on a car.  EL did not have a car.  The Crown did advise the sheriff that they intended to rely on the existence of mutual corroboration in order to prove both offences.  It was conceded before this court that the application of that principle was central to the Crown case and that, without it, neither charge could be proved. 

[6]        In refusing the section 259 application, the sheriff considered that the statements would amount to the sole or decisive evidence in the case.  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 (elsewhere reported as Nulty v HM Advocate).   The sheriff 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.  The Crown now move that the Bill be passed to allow the hearsay evidence to be adduced at the trial.

[7]        The present case is similar to Beurskens v HM Advocate, in which it was emphasised (at para [33]) under reference to Al-Khawaja that, in assessing the fairness of a trial in 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 (Al-Khawaja (supra) at para 119). 

[8]        It is recognised in the European jurisprudence that a statement of a person who has died may be competently led.  That statement will be decisive if it is “of such significance or importance as is likely to be determinative of the outcome”.  However, if it is “supported by other corroborative evidence” then the stronger the corroboration, the less likely it is to be regarded as decisive (ibid para 131).  It is important to note in this connection that the European Court is not using the word “corroboration” in the pure sense in which it is understood in Scots law.  The “sole or decisive” rule requires to be applied flexibly.  Regard must be had to the opportunities for challenge open to the defence and the availability of directions to the jury about the dangers of accepting hearsay evidence uncritically.  The issue is whether there are “sufficient counterbalancing factors in place” (ibid para 147).  A conviction may be based solely on hearsay “if it is sufficiently reliable” (ibid).  However, if there is no strong corroborative evidence to enable the fact-finder to conduct a fair and proper assessment of the reliability of the statement allegedly made by the deceased, then unfairness may be seen to occur (para 165).  As was said in Beurskens (supra at para [35]):

“it is only in a case in which it can be said that it is inevitable that an unfair trial will result that the court should sustain a plea in bar at a preliminary stage”.


[9]        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.

[10]      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.  There are references in his statement, for example, to his medical practitioner, the homecare company, his financial advisor and others, who might be able to give evidence about his general mental state in so far as impacting on his reliability.  The police officers taking his statement may also be asked about his apparent ability to understand and communicate at the time of interview.

[11]      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.  The application to allow the hearsay evidence to be led must be granted.