Yesterday (23rd January 2013) Lady Paton delivered the opinion of the court, which included Lord Mackay of Drumadoon and Lady Cosgrove, in an appeal against conviction by Mr Salvatore Sivero.
The case is a fine example of the importance of what, to the lawyer asking the question, might be an innocuous enquiry, but which can fundamentally change the outcome of a case.
The case concerns the long-standing rule that an accused person’s previous convictions should not be before the judge or jury deciding on the guilt or innocence of the accused. Despite frequent calls by newspapers for the law to be changed to allow previous convictions to be disclosed, and despite erosion of the safeguard over recent years the principle remains intact.
Why not disclose previous convictions? After all, if Joe Bloggs stands in the dock accused of stealing a car, and he already has 25 convictions for doing so, then surely a jury should know this, as he is more likely to have been guilty of a car theft than John Smith, who has no convictions for anything?
That, as far as it goes, is true. However, it does not amount to evidence that Mr Bloggs stole a car at 7.20 am on 24th January 2013 from a car park in Dingwall, for example. Indeed the knowledge that Mr Bloggs was a car thief would almost certainly lead the jury to convict him of the offence in Dingwall, even where the actual evidence might only be circumstantial or indeed worse.
That of course means that some guilty men (and it is usually men) are acquitted. I am firmly in the camp that it is better for a guilty person to be acquitted than for an innocent one to be convicted.
So we turn to the case of Mr Sivero.
He faced two charges of robbery committed on 19 July 2011. There were noticeable similarities between the two incidents. In particular both occurred in the Edinburgh area; both involved a robber with a knife; the complainer in each case was alone in charge of a shop, outwith normal working hours; in each case, money was taken and the knife was left at the premises; one robbery occurred within a few hours of the other.
Mr Sivero offered to plead guilty to charge 1 and not guilty to charge 2. This was not accepted by the prosecution, so the case went to trial on both charges. The defence did not ask for an acquittal on charge 1, and he was duly convicted. On charge 2 he was found guilty by a majority.
He appealed against the conviction on charge 2.
As Lady Paton narrated:-
As the trial judge sets out at pages 6 to 8 of his report, a police officer DC Peter Stark gave evidence about images from some CCTV footage from a Scotmid store which the appellant had visited prior to the robbery of the second shop. DC Stark told the jury that he knew the person shown in certain images. He was “Salvatore Sivero” (the appellant).
As the appellant’s counsel explained to this court, DC Stark gave his evidence in the following way. He said that the robberies had occurred on Tuesday 19 July 2011. On Wednesday, the day after the incidents, he had been looking at the police intranet briefing site. He had seen images of a person whom he recognised as the appellant. He was shown the images in court. He indicated to the jury that he recognised “a male known to him as Salvatore Sivero”. As the trial judge records in his report, the following exchange then took place:
AD Did you play any other part in this enquiry?
DC Eh … I made some enquiry on the Wednesday with the Edinburgh Prison to find out if, eh, Mr Sivero was in or out of custody and was told that he had been released from custody in 2009.
The trial judge reports that there was a noticeable pause at the start of the answer, before DC Stark resumed speaking and gave his explanation about making the enquiry.
Clearly the disclosure that the accused had been released from custody in 2009 suggested most strongly that he had previous convictions! After all, he had not gone to Saughton for a holiday!
Lady Paton went on to say:-
Defence counsel waited for an appropriate break in the evidence, then moved the court to desert the trial pro loco et tempore. The defence position was that the police officer’s recognition of the appellant, taken with his evidence that he had, that day, checked with Edinburgh Prison, gave rise to a reasonable inference that the officer had had previous dealings with the appellant, knew that he had received a custodial sentence, and was checking to see whether or not he had been liberated. The fact that he had to phone the prison might also suggest a sentence of some length. The Advocate depute, when responding to the motion to desert, accepted that the police officer’s reference to custody implied a previous conviction and might be prejudicial, but contended that any prejudice could be cured by an appropriate direction.
The judge ruled that the trial should continue and that a direction to the jury would cure any prejudice there might have been. In the charge to the jury the judge said:-
“Before coming to the generalities, I want to give you one specific direction about a matter that has arisen in this case. During the … advocate depute’s examination of Detective Constable Peter Stark, quite a short witness, who identified the accused from video stills, you may have noticed a reference to enquiries being made at Edinburgh Prison.
Well I’ve looked into this matter with the assistance of counsel, and I am satisfied about two things. First of all, the evidence in question emerged in error, and second, the evidence that emerged in error has no relevance whatsoever to the charges faced by Mr Sivero on this indictment that it is your responsibility to decide. Therefore, I direct you to disregard anything said about that … particular matter by Detective Constable Peter Stark in its entirety, and to decide the case only on what is accepted, or found to be the relevant evidence that has been put before you.”
When it came to the appeal DC Stark’s witness statement was produced to the court. That statement clearly indicated, quite legitimately, that DC Stark knew that the accused had a number of convictions for similar offences and had received a lengthy sentence previously. The problem in this case of course was that that ought not to have been disclosed to the jury.
Mr Sivero’s counsel and the Advocate Depute argued as follows:-
For the appellant it was said that it did not matter whether there had been an actual breach of section 101 of the Criminal Procedure (Scotland) Act 1995 or whether this was one of the “intermediate” cases referred to in Deighan v MacLeod 1959 JC 25. There was no obvious reason for the question put by the advocate depute which elicited the reference to Edinburgh Prison. The information accidentally blurted out by the officer was so prejudicial to a fair trial for the appellant that the diet should have been deserted. The trial judge had erred in concluding that the modus operandi in each robbery was not similar. Where the appellant was accepting guilt of charge 1, the similarity in modus operandi in charge 2, taken with the disclosure of previous convictions, would result in prejudice to the appellant in that the jury would be much readier to convict of charge 2. The trial was relatively short, and accordingly the disclosure would be fresh in the jury’s mind. No direction could cure the prejudice.
The Advocate depute emphasised that there had been no deliberate flouting of the prohibition against disclosing convictions. The trial depute had not intended to bring out that information. The information in the officer’s answer had not been so grave that it could not be cured by direction. It was a matter for the trial judge’s discretion. He had given a specific direction, and the jury must be deemed to have acted on it. It was not clear how any similarity in modus operandi in charges 1 and 2 contributed to any prejudice. This ground of appeal should be refused.
The Appeal Court accepted that what occurred was not deliberate and that the prosecutior had not sought to elicit evidence relating to the officer’s inquiries of Edinburgh Prison. However the court considered that the question “Did you play any other part in this inquiry?” was unnecessary and prima facie careless. This was for the following reasons.
 First, there was no easily understandable reason behind the question. Once the officer had viewed the images in court, and explained that he knew the male person shown in them Salvatore Sivero, he had provided the necessary evidence. There was no point in asking anything about the appellant’s employment or holiday abroad, and if the advocate depute wished simply to elicit the fact that DC Stark had passed on his identification information to the officers leading the robbery inquiry, a much more carefully phrased question could have achieved this. The officer himself explained in his witness statement: “I took no further part in the enquiry”.
 Secondly, the information contained in DC Stark’s witness statement (from which the Advocate depute was working) should clearly have alerted the questioner to the fact that this officer knew that the appellant had previously committed similar robberies of petrol stations and shops in Edinburgh. Accordingly great care had to be taken not to elicit any of that information.
 Against that background, it is our view that the question put was lacking in the level of care called for in the circumstances. While there may have been no deliberate intention to elicit previous convictions, and while there may have been no actual breach of section 101 of the 1995 Act, we consider that the observations of Lord Justice-Clerk Thomson at page 29 of Deighan v MacLeod 1959 JC 25 are wholly apposite:
“The assumption of the provisions is that somebody who is exercising control over the trial is in a position to lay the prohibited information before the Court. There is an injunction clearly laid on the prosecutor, and if the prosecutor deliberately flouts it, then as the cases show, a conviction cannot stand. Where, on the other hand, in answer to a properly framed and competent question, a witness ultroneously includes in his answer something pointing to the accused’s having been previously convicted, the injunction is not infringed because the contravention is not the act of the prosecutor and he cannot be regarded as having laid the information before the Court. (I should interpolate that when such a contretemps occurs the safeguard for the accused, in solemn procedure is provided by the judge’s warning the jury, and in summary procedure by the judge’s good sense.) Intermediate cases may be difficult but it can safely be said that prosecutors must be very careful, and if by carelessness in framing a question or by pressing a witness too far despite the sort of warning signs one sometimes sees, the prohibited information is allowed to come out, then the prosecutor must pay the price, and rightly so, because as a rule the prosecutor knows quite a bit about the witnesses and their means of knowledge and ought to be on his guard.”
 Furthermore, the trial judge had been made aware – during the submissions concerning the possible desertion of the trial – that the appellant’s position was that he accepted that he was guilty of charge 1. Thus the trial judge was aware that the jury would be told, at some stage before they retired to consider their verdict, of the appellant’s acceptance of his guilt in respect of charge 1. In our view (contrary to that of the trial judge) there were significant similarities between the robbery committed in charge 1, and that committed in charge 2. We therefore consider that there is a significant risk that PC Stark’s disclosure of the appellant’s previous prison sentence, when added to the appellant’s admission of guilt in respect of charge 1 and the similarities in modus operandi between charges 1 and 2, may have influenced the jury in favour of a verdict of guilty of charge 2, thus resulting in prejudice to the appellant. When we also take into account the lack of care in the prosecutor’s questioning which elicited the unwanted disclosure, we consider that the scales in this admittedly “intermediate case” (cf Deighan v MacLeod cit sup) tip in favour of the appellant. In our view the trial judge erred in the exercise of his discretion when he refused to desert the diet pro loco et tempore. We are satisfied that this resulted in a miscarriage of justice. We shall accordingly allow the appeal and quash the conviction in respect only of charge 2. The conviction in respect of charge 1 stands.
So, as a result of a single careless question, a conviction was quashed as a miscarriage of justice. I do not mean to suggest that this is simply a loophole or technicality through which Mr Sivero escaped conviction. In fact, as he was always going to plead guilty to charge 1, there might be more credibility attached to his plea of not guilty to charge 2. As the Appeal Court identified, there was enough in the case, and the answer given, to create a substantial risk of prejudice and one incapable of being dealt with by way of the judge’s direction.
Why did the prosecutor make the mistake?
I do not know, but from my own experience of asking questions in court and watching others do so, there is a natural impulse to fill the silence. This is especially so in a jury trial, where there will often by members of the public in the gallery, to go along with the judge, jury, lawyers and court officials present. If you have just had a question answered, and you are thinking about what else you need to enquire of a witness, then there is a tendency to fill the quiet with something – and a question about a further part in the inquiry worked normally be an appropriate “filler”. Usually the answer would be “No”, or at least nothing prejudicial.
As the court accepted, the prosecutor was not engaged in some fiendish plan to reveal the accused’s convictions. I suspect that the prosecutor wanted the earth to open up beneath their feet when the question was answered. Indeed it is possible that the prosecutor, who clearly was about finished with DC Stark, might not have heard the answer, instead getting organised for the defence to cross-examine the officer, or for the Crown to call its next witness!
I once conducted a case where the shorthand notes of evidence were printed up, and where the Shorthand Writer faithfully recorded each and every “um” and “em” which came out of my mouth. It seems that every question I asked started with an unintelligible noise of some variety!
So the lesson is clear. No matter how long the silence is, if you are asking questions in court, make sure you know what you are asking, and why, and do not just drop something in to fill the gap – who knows where that might lead!
Posted by Paul “The Quiet Man” McConville