THE WITNESS STATED … BUT DID HE?
This case concerns the question of whether a young man witnessed a murder and whether the statement he gave to the police was admissible in court. Before telling you how this all came about I need to describe some aspects of Scottish law in connection with how statements may be obtained from witnesses. An important word to understand in this context is ‘precognition’, a term used exclusively in Scottish law. When parties to a case are drawing up the evidence they wish to present they are entitled to interview potential witnesses and take statements from them, whether or not these potential witnesses are reporting matters for or against the interest of their case. The process of taking statements from witnesses in this way is known as ‘precognition’, which loosely translated from Latin means something like ‘knowing beforehand’. The point about precognosed statements is that they are confidential and may not be used in court. The reason that they cannot be used in court is that they are traditionally viewed as unreliable. However, there is another reason: precognition enables lawyers and police to get witnesses to give off the record, confidential statements about what they know or purport to know.
A ruling on the admissibility of precognosed statements was made by a judge, Lord Justice Clerk Thomson in 1958 in the case of Kerr vs. H.M. Advocate 1958 JC 14. In that case the judge said, with reference to the question of precognition: ‘… in a precognition you cannot be sure that you are getting what the potential witness has to say in a pure and undefiled form. It is filtered through the mind of another, whose job it is to put what he thinks the witness means into a form suitable for use in judicial proceedings. This process tends to colour the result. Precognoscers as a rule appear to be gifted with a measure of optimism which no amount of disillusionment can damp.’ As can be seen, the judge in that case was concerned with the issue of reliability and impartiality. If a statement is questionable in these respects how can it be admitted in court? This was the issue in a recent murder case in Scotland.
The Glasgow1 is a popular social club in the south of the city. It is a friendly drinking establishment which holds all kinds of family-oriented social events, especially at weekends. One evening a few years ago, a curry and karaoke night was in progress. It was well attended and club-goers were in party mood. At about 11.30 p.m. a number of people were involved in a dispute. Although nobody knew the cause of this dispute for certain, police thought it might have been related to a recent murder in the city and the shooting of a man at another city bar earlier. In the course of the dispute a man by the name of John McChesney, was stabbed. Staff immediately dialled 999 and the emergency services arrived. Many of the club-goers did not realize what had happened, as the Glasgow consists of several rooms. The karaoke had still been in full swing at the time of the stabbing. Mr McChesney was taken to a Glasgow Hospital where he later died. In the meantime, names and addresses were taken of everyone present, with a view to forming an interview list. The following day a Senior Investigating officer was appointed, and an incident room was set up at a police station. A few days later Jimmy McBurt, aged 19, gave a statement to police officers. McBurt said he had been to the toilet at the club in the course of the evening, that he had been there for only a few minutes, that nobody else was there at the time and that after that uneventful event he returned to where his friends were sitting in the club. He said he had not realized anything had happened until the police arrived. In the meantime, the murder inquiry was ongoing and a man called Harry Edinburgh was arrested and charged. At the same time police officers were liaising with family members of the deceased. On one occasion they met with McChesney’s brother, Howard, who told them that Peter McChesney, his nephew, had met with Jimmy McBurt, who was a friend of his, for a drink, and that in the course of that conversation McBurt had told his nephew, Peter McChesney, that he had in fact observed Harry Edinburgh entering the toilet with a knife and had then washed blood from it. According to Peter McChesney, McBurt had said that a man called Brian James had held the door closed at the time to prevent people seeing Edinburgh with the knife.
With this information in mind Jimmy McBurt was re-interviewed by the police. The main idea of this second interview was to fill in the gaps from the first interview. The detectives interviewing Jimmy McBurt noted that he had learning difficulties. He seemed very young for his age. In addition, he had a drink problem. McBurt was unaware of the fact that Harry Edinburgh had already been arrested on suspicion of murder. In most of the United Kingdom, interviews are usually recorded on audio cassette tape. In Scotland it is not usual for witnesses to be recorded, and I do not have any information as to whether Jimmy McBurt was cautioned with regard to the truth of his statement. At this stage of the inquiry he probably was not, as he was still being seen as a witness.
The detectives told McBurt that he was being re-interviewed because they had new information, namely, that McBurt had told John McChesney’s son that he had seen Edinburgh in the club toilet washing a knife. The form of the interview is not in dispute. officers asked questions, McBurt responded, and officers then told McBurt what they would write down. It is reported by the officers that he did not disagree with the version put to him. In this way a statement was compiled and Jimmy McBurt signed it. McBurt was evidently a reluctant witness. The officers agree they had to press him somewhat in order to get his story, although there is no suggestion of oppressive interviewing. According to the statement, McBurt eventually admitted he had seen Edinburgh with the knife and Brian James at the door preventing anyone else from coming in. At the end of the interview the statement was read to McBurt and he was asked if he wanted to alter anything. He did not say he wanted to. When asked why he had not given this information earlier, McBurt said that he was scared of Harry Edinburgh.
At his trial, McBurt’s advocate made a motion for McBurt’s statements not to be admitted into evidence. The advocate pointed out that the two statements had been taken in completely different ways. Whereas the first statement was almost a verbatim account, the second statement had been compiled from questions and answers. The question, therefore, boiled down to one of who the author of that statement really was. It was impossible, the advocate said, to determine how much had been Jimmy McBurt’s own input, and how much was the officers’ input. Clearly, in the opinion of the advocate, the police had entered the interview with a preconception as to Edinburgh’s guilt. They could not, therefore, be objective in the taking of the statement. Manifestly, the young man had been precognosed. Therefore, in the absence of any admissible statement there was no evidence to be brought against him. While there was no requirement for a statement to be in the precise words of the witness, it was still necessary that, for any statement to be admissible in court, it had to have been taken impartially. In the present case, the advocate argued, this had not happened: the police gave McBurt their interpretation of events and even though he had apparently agreed with them this was irrelevant. The judge agreed and the case was dismissed.
The Crown appealed, largely on the grounds that the judge had misinterpreted the law: the admissibility of evidence was no longer related to whether it had been given under conditions of precognition. They cited Thompson vs. Crowe, per Lord Justice General Rodger at pages 192 and 202, who stated that, providing the facts of the case have been established, questions of admissibility of evidence were questions of law for the judge. In other words, it was up to the judge as to whether the precognition issue was to be of any significance or not. At a preliminary hearing convened to decide whether the Crown’s appeal should be allowed, the discussion centred on questions relating to the definition of precognition, exceptions to the inadmissibility of precognosed statements, and the thorny question of how to define a statement. Theoretically, a statement can be any utterance by a witness or suspect on a matter relating to an offence. However, as early as the 1850s, judges had routinely discounted precognosed statements as admissible in evidence. In a bankruptcy hearing in the 1860s (Emslie vs. Alexander) the issue was whether what a bankrupt had said at an earlier judicial examination was admissible. This is the earliest precedent for courts being able to reject precognosed statements. The judge in Jimmy McBurt’s original trial cited this point. However, the point at issue for the appeal judges was not so much related to the question of the admissibility of precognosed statements, but the much more basic one of what constituted a precognosed statement and, even more fundamentally, how to define the term ‘statement’.
The judges found that there are three basic types of statement: one obtained from potential witnesses on behalf of a party to a case; one obtained by police when investigating a case and one taken under oath at an ex parte hearing (i.e. without the requirement of parties to attend a hearing). The first type, statements obtained on behalf of parties to a case, are precognitions and are not usually admitted. In the second case, police officers are required to gather evidence to investigate a crime. They usually do so under authority from the procurator fiscal (the prosecutor) or from a senior police officer. It would severely hamper any criminal investigation if such statements fell under the precognition rule. Manifestly, according to the appeal judges, a police statement could not be classified in this way. The defence’s argument, that the police investigation was already underway, and that therefore the statement must be a precognition, was not accepted by the appeal judges. The judges then addressed the issue of the structure of Jimmy McBurt’s statement. It was clearly in narrative form, as though it had been told by McBurt as a story. However, everybody knew, and admitted, that it had come about as a series of questions and answers. Was this a reason to exclude it as admissible evidence? Although a process of translation is involved in converting the events from a question and answer format to a narrative, this does not automatically invalidate the resulting statement, providing that the process of obtaining the statement is fair to the witness (or defendant).
The judges, therefore, ruled that the appeal could go ahead, meaning that Jimmy McBurt could be tried for perjury. In my report I argued that the problem was not the second statement, but the first. I could not understand why McBurt said in his statement that when he had been to the toilet there was nobody else there and that nobody had been by the door trying to get in or out. Why would police have asked this? Why would McBurt have volunteered it? Negative assertions which purport to be spontaneous are necessarily suspect: they tell about something that is not. This is completely unnatural unless there is good reason for it. I argued that the police must have asked him these questions, but I did not understand why, unless they already had information about him going to the toilet. I also argued that there had to be serious doubts about McBurt’s ability to understand the issues. I based this on an interview I had with him. I began by asking him:
Q: Jimmy, would you just give us a little bit of information about yourself, tell us your date of birth where you were born … your age … stuff like that.
A: Born Glasgow, date of birth’s fifth of the fourth 1985, currently staying at Govan, it’s just a temporary house I’m maybe getting another one tomorrow.
One of the things I had asked him was his age. Note that in his reply he does not mention his age. There were other instances of the same kind of partial attentiveness to questions. Asked what he had been doing on the day of Mr McChesney’s death – a day that had apparently changed his life forever, he replied without hesitation that he had been out drinking with friends during the day, but when asked to name them was unable to do so, although they are mentioned in his statement. Asked whether he had met other friends when he had seen Mr McChesney on that particular day he was unable to name the pub where this had happened though he could describe it in some detail. However, it was a generic description, and included items such as ‘pool table’, ‘bar’ and so on. This seemed to be the kind of pub he always went to and so I doubted if it was an actual recollection. It was probably more likely a general recollection about drinking establishments. I wondered if his ability to process written language was any better than his ability to process speech.
I now took a document I had prepared earlier. It purported to be a waiver allowing me to interview him and tape-record the interview. This is an issue in the present case because McBurt signed each page of his police statement. Most people would infer from these signatures that he was fully aware of what he was signing when he signed it. I had therefore devised an authorization letter, which he would sign, allowing me to interview him and tape-record the interview. There were two copies of the letter. The first copy was phrased as follows:
Glasgow, Wednesday, 23 May 2007
My name is Jimmy McBurt. I hereby grant permission for my voice to be recorded and the recording to be used in any appropriate way for my court case.
However, the second copy was a deliberately misspelled, nonsensical version of the first copy and was phrased as follows:
Glashgow, Weddingsday, 23 May 2007
My namne is Jimmy MoBurt. I hereby can’t permission for my vote to be recorded and the re-coding to be misused in any inappropriate way for my count cage.
I asked Jimmy to look at both of these and to sign them if he agreed with what they said. I watched him as he took his time studying the documents. I asked him if they said the same thing. He held them side by side, and nodded his head. Then he signed them. This was all with the agreement, and in full view of, his legal representative, who also witnessed his signatures. Jimmy McBurt did not observe any of the errors in the copy, even though it misspelled his name as ‘MoBurt’, ‘Glasgow’ as ‘Glashgow’ and allowed me – effectively – to ‘misuse’ the tape-recording of his voice in any ‘inappropriate’ way I saw fit. I felt bad about putting him through this, but I felt these issues related directly to his ability to process written language. The documents were as simple as I could make them given the information they needed to contain. As a result of this test it was clear to me that if McBurt was having difficulty understanding a simple two-sentence document, he would certainly not be able to process a ten-page statement.
Therefore, contrary to the view of the appeal judges, I believed that the authorship of the statements was an issue. I suggest that somebody who is incapable of processing relatively simple questions put to them, or is unable to observe basic errors in written language cannot be held accountable for the authorship of language produced in concert with others. I am not suggesting any bad faith on the part of the police officers concerned. On the contrary, there is evidence that they were entirely sympathetic to Jimmy McBurt’s difficulties and made every attempt to help him. However, I believe that they underestimated the difficulties he would have had in rejecting ideas put to him which he did not agree with, and that they overestimated his ability to comprehend and connect events. In court, McBurt appeared to be able to give answers to the questions he was asked by the prosecution, but the discourse of the courtroom is completely different from the discourse of the police station, particularly with the way in which questions are asked and answered. If there is one skill lawyers have above the rest of us it is to build a narrative from deceptively simple questions, beginning with the most fundamental. They assume absolutely nil knowledge, and they move at a snail’s pace through a series of questions, building the witness’s story one brick at a time. They never ask two questions together, always one question at a time, pausing before going onto the next question. Every point is carefully broken down to its elements. Police officers used to interviewing can do this too, but there is an important difference. The police officer’s question is open-ended. It can have almost any answer. In fact, if the interview is to be fair, then the questions must be open-ended. The lawyer’s question is not designed in this way: it usually has only one of two answers, yes or no. Equivocation is not possible. The answer to any other type of question is almost always known by the lawyer in advance, and its answer is always a single time, a single place, a single person, a single action. Again, the narrative is built with absolute adherence to the one brick at a time rule. For this reason, I suggest that McBurt’s performance on the witness stand was not a surprise. The issues were very clear. Had he gone to a club that evening? Yes. Which one was it? The Glasgow. Did he go there with anyone else? Yes. Who? His friend’s grandfather. Had he had anything to drink? Yes. Had he seen Mr McChesney? Yes. Had the police come? Yes. Had they interviewed everybody? Yes.
I suggest the important questions are not so much whether Jimmy McBurt told the truth. In cases where an individual is incapable of understanding a complex narrative and cannot be the sole author of that narrative, then truth becomes an authorship issue. This is because if that person is not solely or wholly responsible for a statement’s content, then neither can that person be totally responsible for its veracity. What was recorded at that interview may well be true, but McBurt was not the sole author of that truth. Therefore, when he was on the witness stand and he was asked to defend what he had said at the police station he could not do so. The examples I have given above of his written and spoken responses clearly demonstrate an inability to understand and articulate complex issues, an inability to concentrate on sequences of events, and an inability to connect abstract concepts. I suggest the statement he gave should have been excluded on this simple basis – that he was not the sole, or perhaps even most significant author of that statement.
The judges found differently. Jimmy McBurt is currently serving a 3-year sentence for perjury.
Note
1. All place and people names changed.