27 November 1981
|H. M. ADVOCATE|
At advising on 27th November 1981,—
The jury returned a verdict on charge 2 of not proven. In relation to the conspiracy charge the course which the jury adopted in relation to the appellant Sayers was to convict under deletion of the words "and to acquire unlawfully firearms, ammunition and explosive substances intending by means thereof to endanger life or cause serious injury to property or to enable other persons by means thereof to endanger life or cause serious injury to property." The result of this deletion was that the jury in effect convicted the appellant Sayers of conspiracy with other persons to further by unspecified criminal means the purpose of an association of persons known as the Ulster Volunteer Force or some other association to the prosecutor unknown. That was in the case of the appellant Sayers the whole content of the jury's verdict of guilt.
Counsel for the appellant has satisfied me that if the matter is tested by reference to the question whether a charge in the form which I have indicated would have been a relevant charge of conspiracy, that is in this case of an agreement to achieve a purpose by criminal means, that would not have been a relevant charge because there was no adequate specification, indeed no specification at all, of the means which were alleged to be criminal. If that test is correct it appears to me to follow that the first ground of appeal put forward on behalf of the appellant Sayers is well-founded. That ground is to the effect that the verdict of the jury did not disclose a crime known to the law of Scotland, said verdict being incompetent as the jury's findings in fact did not constitute a crime. No doubt, as a description in a text book of what is meant by conspiracy in the sense of an agreement to achieve a purpose by criminal means, what was left in the jury's verdict would have been a sufficient description of a crime, but the position here is that the jury by their verdict have negatived the whole specification of the criminal means which the Crown under the amended indictment set out to prove. Another way of putting this would be to say that there was no evidence in support of the description of the criminal means in relation to the conspiracy charge which was not also the evidence in support of charge 2. Yet the jury found charge 2 not proven, and this was emphasised by their deletion from the conspiracy charge of the words which I have quoted. In these circumstances I am satisfied that on this single ground the conviction cannot stand in the case of the appellant Sayers. In the course of the discussion we were referred to the case of Kenny v. H. M. Advocate 1951 J.C. 104. That case provides some analogy to the present. Indeed my impression is that the present case is, if anything, a fortiori of Kenny.
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