Lesley Clarkson v. His Majesty’s Advocate [2024] HCJAC 13

Note of appeal against conviction:- The appellant was convicted after trial on indictment at the sheriff court of two money laundering offences committed over a period between January 2016 and November 2017 relating to the sum of £63,766 in cash which sum had been amended by the Crown at the close of the Crown case from the sum of £69,416 which the appellant was originally indicted on. The appellant appealed against his conviction on account of a failure by the Crown to disclose a report in advance of the trial it being contended that failure to do so had resulted in a miscarriage of justice. During the trial the Crown led evidence from two experts, Gavin Black and Kenneth Murray, who gave evidence about the suspicious nature of the cash recovered from the appellant’s home, the unusual transactions on her bank accounts, and suspicious patterns in the way the accounts were operated. The defence had instructed and lodged a report by another expert, John O’Donnell, who also gave evidence at the trial. In examination-in-chief Mr Murray, referred to aspects of his report and to various cash deposits describing aspects of smurfing and layering in relation to them, indicating that in his opinion that they had been laundered. During cross-examination when Mr O’Donnell’s report was put to him, Mr Murray made reference to a supplementary report in which the source of these was acknowledged to be BACS transfers from the appellant’s father. That was the first occasion when the defence were made aware of the existence of the supplementary report by Mr Murray, who had understood that his further report was before the court. The procurator fiscal depute indicated that the Crown did not dispute the appellant’s contention regarding those sums and, as such, the depute had not considered it necessary to lodge or disclose the report, the conclusions of which agreed with the defence expert’s conclusions on those matters. Following discussion, the defence were granted an adjournment, over the course of the weekend, to consider the terms of the supplementary report. When the trial recommenced the defence invited the sheriff to desert the trial simpliciter, on the basis that the Crown had deliberately failed to disclose the supplementary report and had led evidence known to be untrue, in particular, that those sums were unaccounted cash deposits, which was not correct and had been highly prejudicial to the appellant. It was submitted on behalf of the appellant that the jury would not be able to put that evidence out of their minds and the trial should be deserted simpliciter. The trial sheriff refused the motion and considered that the issue could be resolved by direction. The Crown amended the charges to reduce the sums reflecting the three deposits totalling £4,650 being transfers from the appellant’s father’s account and not cash deposits, it being accepted by Mr Murray in cross-examination and agreed by joint minute to be the case. At the appeal hearing it was submitted on behalf of the appellant that the failure to disclose the report was oppressive and the trial sheriff had erred in refusing to desert the trial simpliciter resulting in a miscarriage of justice. It was submitted that the libel read to the jury at the outset of the trial was known by the Crown to be incorrect and the leading the evidence of the original report indicated a lack of good faith on the part of the Crown and was oppressive and the prejudice was so grave as to be incapable of being cured by direction or by the effect of cross-examination by the defence. It was further submitted that esto the prejudice could be removed by directions those given by the sheriff were inadequate. On behalf of the Crown it was accepted that they had failed in their duty of disclosure and ought to have lodged the supplementary report. Furthermore, it was conceded that the libel ought to have been amended prior to the start of the trial and the evidence relating to the supplementary report ought to have been elicited from Mr Murray during examination-in-chief. It was, however, submitted that it had not established by the appellant that there was a real possibility that the jury would have returned a different verdict had pre-trial disclosure of the report occurred. Furthermore, the defence solicitor had the opportunity to consider the supplementary report during the course of the trial, to cross-examine Mr Murray on it, and make reference to it in his speech. In addition, a joint minute was entered into which resulted in the amendment by the Crown to the sums referred to in the charges and the position was made clear to the jury. It was further submitted on behalf of the Crown that the case against the appellant was a compelling one and the directions given to the jury were adequate. Here the court described the Crown’s approach to the case at trial as “incomprehensible” stating that the Crown should not have led evidence at trial which they knew to be inaccurate. The supplementary report ought to have been disclosed and the evidence should have been led from Mr Murray in examination-in-chief. The court expressed its concern about the circumstances of what occurred, however, did not consider that the errors made were done in bad faith rather than lack of competence or a misguided view as to what was appropriate. The court stated that the question for the court was whether what had occurred was unfair and had resulted in a miscarriage of justice. Here the court refused the appeal. The court could not identify any prejudice to the appellant in that the erroneous impression given about the three payments was conclusively resolved by the terms of the further joint minute. In addition, the court noted that the risk of prejudice could be corrected by cross-examination and by direction and, as noted by the trial sheriff, the jury  could be in no doubt that the sums of £4,650 were not the proceeds of crime by the end of the cross-examination of Mr Murray. The court noted that the invitation to the trial sheriff to desert the trial simpliciter was not made at the time and the stage of the trial that had been reached at the point such a motion would have been made the defence were already aware of the existence and terms of the supplementary report. In a postscript to the opinion, the court went on to criticise the “lamentable procedural history of the case” and referring to HMA v Forrester 2007 SCCR 216 reiterated that Preliminary Hearings and First Diets should be the end point and not the starting point of preparations in a case.