The former coach of the Celtic Boys' Club has woman appeal against the most serious of his convictions for indecency against club members, on the basis of non-disclosure by the Crown of the complainer's record of offences committed while he lived in England.
Lord Justice General Carloway, Lord Drummond Young and Lord Turnbull in the Criminal Appeal Court allowed an appeal by Francis (Frank) Cairney against one of nine charges of sexual assault, and lewd, indecent and libidinous practices on which he was found guilty at Hamilton Sheriff Court earlier this year. Charge 8, which involved forcing the complainer, WA, to masturbate him, accounted for one year of the total of four years' imprisonment imposed.
At trial WA had been the most forcefully cross-examined, the sheriff reporting that any further challenge to his credibility based on previous convictions "would have paled into insignificance". Prior to trial the Crown had ascertained that WA had convictions and pending charges in Scotland for statutory breach of the peace and stalking, though information on these failed to reach the accused's agents, who were told at one point that the complainers had no convictions.
After trial the agents learned that WA had previous convictions in both Scotland and England, the latter including several offences of dishonesty, and one of grievous bodily harm for which he received three years in prison.
On appeal it was argued that the Crown had not accessed the Police National Computer, to which the police had access and which recorded all UK convictions, though it could readily have checked it. WA's credibility had been central to the defence, which challenged that WA had ever played for the Boys' Club. The Crown said it had no access to the computer other than through the police; use of the Scottish convictions in evidence would have been open to objection, and although an application might have been allowed relating to the convictions for dishonesty, it was speculative to consider what effect these might have had, given the way the trial had been conducted.
Giving the opinion of the court, Lord Carloway said it had been laid down that disclosure was required where it at least helped to assess the strengths and weaknesses of witnesses; this respected the principle of equality of arms.
He continued: "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 was surprising that in a prosecution of this nature, the police had not forwarded a note of WA's records, nor had the fiscal when seeking Crown counsel's instructions on prosecution: "It can be an essential element in assessing the prospects of a conviction."
It followed 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... 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... 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 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."