Ex-Celtic Boys Club coach convicted of sex offences wins appeal over Crown’s failure to disclose complainer’s conviction for dishonesty
A former coach of Celtic Boys Club who was jailed after being found guilty of a series of historical child sex offences has had his conviction on one of the charges quashed after prosecutors failed to disclose evidence of the complainer’s criminal record.
The Appeal Court of the High Court of Justiciary held that the failure to disclose the complainer’s previous convictions for dishonesty could have had a “material bearing” on the jury’s consideration of the witness’s credibility and therefore ruled that a “miscarriage of justice” had occurred.
The Lord Justice General, Lord Carloway, siting with Lord Drummond Young and Lord Turnbull, heard that the appellant Francis Cairney was convicted following a trial at Hamilton Sheriff Court in December 2018 of seven charges of “indecent assault” and two of “lewd, indecent and libidinous practices” covering a period from 1965 to 1986.
Four of the complainers (charges 1, 2, 4 and 5) had been members of a church boys’ football team, which the appellant coached.
One of the complainers (charges 5 and 6), and four other teenagers (charges 7-10), were members of Celtic Boys Club, which the appellant also coached.
During the trial, the appellant disputed whether one of the complainers, namely WA (charge 8), had been in the Celtic Boys Club team.
In February 2019 the sheriff sentenced the appellant to a total of four years’ imprisonment, comprising consecutive periods of four months on each of charges 1, 2, 4, 6, 7, 9, and 10, eight months on charge 5 and one year on charge 8, which was regarded as more serious than the others.
However, he appealed against his conviction on charge 8 after it emerged that the complainer had previous convictions which the Crown failed to disclose.
The court was told that the appellant had appeared on petition in April 2017 and that in accordance with normal practice, enquiries were made by the Crown to ascertain whether any of the complainers had criminal records in Scotland, with a view to determining whether these should be disclosed.
In November 2017, information from the Scottish Criminal Records Office revealed that WA had been issued with a fiscal fine in 2013 for a statutory breach of the peace and stalking, contraventions of sections 38 and 39 of the Criminal Justice and Licensing (Scotland) Act 2010 respectively.
The indictment was served in February 2018, at which point the Crown had been aware that, in September 2017, pending charges for a further six contraventions of sections 38 and 39 had resulted in the imposition of two years’ probation and a community payback order with a condition that the appellant be “banished” from the Isle of Bute.
An instruction was noted that this information should be disclosed to the appellant’s agents, and the information was sent from the Crown’s Hamilton office to that in Glasgow to be put on a pen drive for the appellant’s agent to uplift, but for unknown reasons this was not done.
Prior to the commencement of the trial the appellant’s agents were told, in response to a specific enquiry, that the complainers had no previous convictions.
Then, in March 2019, after the appellant had been convicted and jailed, it came to the attention of his defence agent that WA did have previous convictions, both in Scotland and in England.
‘Miscarriage of Justice’
The convictions in England had occurred between 1980 and 2000 and were for theft, five offences of obtaining property by deception, possession of controlled drugs, criminal damage, obstruction, causing grievous bodily harm and failing to surrender to bail.
The appellant submitted that the nature of the complainer’s convictions was such that they would have been “relevant” to his credibility.
The Crown had checked WA’s name against the Criminal History Service database, to which it had access and on which all Scottish convictions were recorded, but it had not accessed the Police National Computer, to which the police had access and which recorded all UK convictions.
It was argued that the Crown could readily have checked the PNC, which regularly provided data on previous convictions for use in prosecutions, and “ought to have disclosed the convictions”.
The credibility of WA had been central to the appellant’s defence on charge 8 - it was a major focus of the cross-examination of that complainer and the appellant’s speech to the jury.
No witness had confirmed that the appellant had played for the Celtic Boys Club team, and one witness who had been in the team had no recollection of the appellant.
It could not be said that the lack of the opportunity to cross-examine the complainer about his convictions might not possibly have affected the verdict.
The failure to disclose amounted to a “miscarriage of justice” on charge 8, as there was a “real possibility that the jury would have reached a different verdict”.
‘Equality of arms’
Allowing the appeal, the judges rejected the Crown’s argument that there has been no failure to disclose information which was “in the possession of the Crown”.
The court considered that the Scottish convictions would not have been admissible, but the convictions in England for dishonesty could and should have been disclosed.
Delivering the opinion of the court, the Lord Justice General said: “The notion that the Crown has to be in physical possession of the relevant information before it requires to be disclosed must be regarded as outmoded. The duty must, if equality of arms is to be preserved, extend to information which is readily searchable on a database to which the Crown have, or could readily have, access and the defence have not.
“In this case, obtaining access to a complainer’s UK-wide criminal record by interrogating the Police National Computer must fall into this category. It, or a similar database, is presumably routinely used in order to produce the schedule of previous convictions which is available at, for example, the very early stage of a summary prosecution.
“It is surprising that, in a prosecution of the nature under consideration, the police themselves did not forward a note of the complainers’ criminal records when reporting the case to the procurator fiscal. It is equally surprising that the procurator fiscal did not forward this information when seeking Crown counsel’s instructions on whether to prosecute and on what charges.
“It follows that the Crown ought to have disclosed the English convictions to the appellant. The Scottish record is of no moment and would not have been admissible to challenge credibility or reliability.
“It is only the convictions for dishonesty in England that would have been admissible. They would have been permitted as a line of cross-examination under section 275 of the Criminal Procedure (Scotland) Act 1995.”
Lord Carloway continued: “There is some force in the sheriff’s view that the convictions for dishonesty, being of some vintage and attracting non-custodial disposals, may not have had a material bearing on the appellant’s conviction on charge 8. Due respect has to be paid to his view on this.
“However, it is noticeable that the jury’s verdict on charge 8 was by a majority, rather than, as with almost all of the other charges, unanimous. The defence appear to have made progress in the challenge to WA’s credibility on the basis that he was unsupported in his account of having been in the Celtic Boys Club team.
“The use of the previous convictions for dishonesty may have had a material bearing on the jury’s consideration of the complainer’s credibility on charge 8, with its unique features, albeit that it had many similarities to the accounts given by the other complainers.
“The court considers that the failure to disclose the convictions, which the Crown could have accessed quite easily, has resulted in a miscarriage of justice. It will accordingly quash the conviction on charge 8.”
© Scottish Legal News Ltd 2020