Scottish High Court of Justiciary Decisons

ALAN JOHN HOWITT and ANTHONY DUFFY v. HER MAJESTY'S ADVOCATE [1999] ScotHC 249 (10th December, 1999)

The appeals in these two unrelated cases were heard by the same court on the same day. Both cases raised the same question, as to the soundness of the decision of the court in McAuley v. H.M. Advocate 1946 J.C. 8. Other issues which were not common to the two appeals were also raised; but it is convenient first to deal with the common issue.

Each appellant appeared alone before the trial court to face an indictment containing a charge or charges of committing criminal conduct while acting along with another. In 1998 Howitt faced charges of fraud. These were typical long firm fraud charges; the fraudulent activities were averred to have been carried out by him "while acting along with another". That other was John McKay. In 1986, both McKay and Howitt had appeared on petition in respect of the same frauds. McKay went to trial alone in May 1987 on an indictment containing the fraud charges; he was acquitted, the jury returning verdicts of "Not Proven" in respect of the charges which related to the fraudulent activities that the Crown had sought to prove had been carried out by McKay together with Howitt. The reason why Howitt was not indicted into the same court at the same time as McKay was that Howitt had left the country. That had become known to the Crown before the service of the indictment on McKay an indictment was prepared in respect of Howitt and, when he failed to appear for trial, a warrant was taken for his arrest. It was not executed until November 1997. Howitt was brought to trial in the High Court sitting in Edinburgh in May 1998. For all practical purposes, the terms of the long firm fraud charges were the same mutatis mutandis as those which had been brought against McKay in 1987 and in respect of which McKay had been acquitted. Howitt was convicted. It was argued both before the trial of Howitt started, and also in his appeal against conviction, that the Crown were not entitled to seek or obtain the conviction of Howitt on the basis that he was guilty of the charges "while acting along with another", given that the Crown case depended on evidence that the socius was McKay. By verdict which the Crown accepted as "proper", McKay had been acquitted of the charges accusing him of acting in concert with Howitt. It was submitted that it was not competent for the Crown to seek convictions against Howitt on the fraud charges, given that his alleged socius criminis had been acquitted of those charges. This consequence was said to follow from the decision in McAuley supra.

Duffy was convicted on a charge that he had conspired with another, named as Robert Miller, to set fire to a house in Cumbernauld "and to murder the [named] occupants thereof namely...and in furtherance of said conspiracy" had purchased petrol and matches and set fire to the house to the danger of the lives of those within it. However, Robert Miller had on an earlier occasion answered at a trial diet to an indictment containing a charge in the same terms mutatis mutandis; and the Crown had accepted his plea to a reduced charge. Miller's plea had been one of guilty to a charge of conspiracy, but under deletion both of the words "and to murder the occupants thereof"; and also under deletion of the averment that in furtherance of the conspiracy he had set fire to the house. The Crown had deliberately chosen to proceed against Miller separately and before serving an indictment on the appellant, Duffy. In these circumstances, the submission was that, in the light of the decision in McAuley, the Crown could not competently proceed in this way and could not legitimately obtain a conviction which depended upon proof of a conspiracy with Miller which was a different conspiracy from that of which Miller had been convicted on the plea which the Crown had accepted.

In each appeal, the principal argument rested upon a statement in the opinion delivered by Lord Justice-Clerk Cooper and concurred in by the other judges in McAuley. In that case the appellant was indicted in the Sheriff Court on a charge which set forth

McAuley was convicted as libelled. However, Preston and Ralston had previously been tried summarily upon a charge of forming and carrying out, in concert with McAuley, the same scheme; and in those proceedings, Preston had been acquitted. (The report of the case in 1946 J.C. does not disclose whether Ralston was found guilty in respect of his own actings or on the basis of concert). In McAuley's appeal against conviction the Court did not find it necessary to pronounce upon the main point argued in the appeal, namely that all three men should have been tried together. The Court, however, allowed the appeal upon the ground that Preston, one of the alleged socii, had been acquitted in the summary proceedings. The Lord Justice-Clerk said,

In the present appeals, counsel argued that the Lord Justice-Clerk had there stated a rule that was applicable in all such cases, including those now before the Court. In each of the present cases the Crown had sought and obtained a conviction that rested upon evidence that the appellant had been guilty on the basis of concert with a socius who had been acquitted in earlier proceedings - wholly acquitted in the case of McKay, and partly so in the case of Miller. Thus what the Crown had done in each case was to lead evidence as to the involvement and guilt of the socius contradictory of the verdict in, or result of, the earlier proceedings. This was something that the Crown could not properly do, in the light of McAuley. The verdict of the jury in the case in which McKay was acquitted was described in the submission of counsel for Howitt as "a verdict at large". As to the proceedings against Robert Miller, it was submitted by counsel for Duffy that the Crown, by accepting a restricted plea from Miller, had expressly accepted that he was not guilty of conspiring with Duffy "to murder the occupants" of the house; it was wholly inconsistent with that acceptance by the Crown of Miller's restricted plea to invite the jury in Duffy's trial to hold that Duffy had conspired with Miller "to murder the occupants"". This, it was submitted, was an even stronger case than McAuley because conspiracy "is constituted by the agreement of two or more persons to further or achieve a criminal purpose": per Lord Cameron in Maxwell v. H.M.A. 1980 JC 40 at p. 43. Accordingly, as the Crown had effectively accepted in the earlier proceedings that Miller had not agreed with Duffy to murder the occupants, they could not in Duffy's trial invite the jury to hold that Duffy had agreed with Miller to murder the occupants. While it was accepted, as was clear from the opinions in H.M. Advocate v O'Neill 1992 S.C.C.R. 130, and the decision in Elder v H.M. Advocate 1995 S.C.C.R. 84, that the Crown might be justified in certain circumstances in changing their position between two related trials, they could not do so in a way that entirely contradicted either the verdict of the jury in the earlier related proceedings or the terms of a conviction obtained in such proceedings in consequence of the Crown's accepting a restricted plea of guilty. The Crown, it was submitted, could not ignore or seek to contradict the result of the earlier proceedings. For the Crown to proceed in such a way was obnoxious and oppressive and transgressed the overriding principle of fairness; it amounted to "abhorrent" tactics. Counsel for Duffy submitted that it was clear that, if both he and Miller had appeared on the same indictment, a verdict by the jury in their trial that they were both guilty of conspiracy, on the express basis that Duffy was guilty of the whole conspiracy but that Miller was guilty only of a lesser conspiracy, would have had to be rejected as self-contradictory. In both appeals, counsel submitted that the earlier verdicts were "binding" and had to be respected by the Crown.

The Lord Advocate replied for the Crown in the Howitt appeal and the Advocate-depute replied in the Duffy appeal. On the main issue it was submitted that McAuley was wrongly decided. In any event, it should not be universally applied. It was noteworthy that the Lord Justice-Clerk in McAuley had referred to no authority in support of the proposition upon which the appeal was decided. There was no authority for it. On the contrary there was now clear authority for convicting one person of an assault committed by a group, including that person, acting in concert, even although the only other identified members of the group had been charged along with that person and acquitted in the same trial: Capuano v. H.M. Advocate 1984 S.C.C.R. 414. It was accepted that that case was not exactly in point, as the jury's verdict there could be supported on the basis that the convicted accused was acting in concert with others not named and not identified in the indictment. However, the observations of the Lord Justice-General in giving, at p. 418, a "typical example", provided strong support for the Crown's position. The example given was of a case in which the Crown indicted four persons as robbers acting in concert, three of them entering the target premises and the fourth, the getaway driver, waiting to drive them from the scene. If the evidence adduced identified only the driver then, as the Lord Justice-General said,

Reference was also made to Fairweather, (1836) 1 Swin. 354 and to Pollock referred to in footnote 59 at para 5-19 of Gordon's Criminal Law (2^nd Edition). At one point the Lord Advocate advanced the suggestion that it might be open to the Crown to avoid the difficulty presented by McAuley by the device of not naming the previously acquitted person as a socius in the second indictment. However, he did not persist with this suggestion when it was pointed out that fairness would usually require the Crown to name in the indictment any person with whom the accused was alleged to have acted in concert, if that person's identity was known to the Crown when framing the indictment.

In our opinion, the Crown were entitled to proceed as they did in both of the cases now under consideration. The proposition that underlies the submissions for the appellants appears to us to be that when, in a criminal trial, the jury, applying the ordinary rules as to onus and standard of proof, determines a particular matter on the basis of the evidence presented to it that determination thereby becomes a "fact" in its own right with validity and evidential value in other proceedings; or the verdict itself is of evidential value in criminal proceedings subsequently brought against persons not indicted in the trial in which the verdict was obtained. That, we consider, is a mistaken view. The result of a trial obviously has a continuing validity for certain purposes even after the jury has been discharged. Clearly a person acquitted by the verdict of the jury cannot be tried again on the same matter. Likewise a conviction following the jury's verdict has consequences that survive the conclusion of all proceedings relating to the trial itself. Thus, for example, a conviction can be libelled as a previous conviction in later criminal proceedings. A conviction may have direct significance in civil proceedings, for example, under the Rehabilitation of Offenders Act, 1974, or in connection with defamation proceedings (cf. Gatley on Libel and Slander, 9^th Edn., Chapter 17), or for the purposes of section 10 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1968.

A jury does not, however, make or issue findings-in-fact that have validity outwith the context of the trial itself. The jury's function is reflected in the oath taken by the jurors to return a true verdict according to the evidence; the verdict is on the charge or charges before the jury, and the evidence is that led during the course of the trial. The jurors, of course, have to resolve disputes on matters of fact as they consider what verdict the jury is to return; but, when their deliberations are complete, juries simply deliver verdicts; they have no competence to make pronouncements or findings of general application about the particular issues of fact on which they have heard evidence and which they may have had to decide before reaching their verdicts. Thus if A faces trial alone, but on an indictment in which he is charged expressly on the basis that he acted in concert with B, then, if he is convicted as libelled, the jury in that trial must have been satisfied on the evidence adduced in that trial that concert has been proved. If, however, B is thereafter brought to trial on a separate indictment containing the same charges mutatis mutandis, neither the prosecutor nor the defence can found upon the circumstance that the earlier jury must have held that concert was proved. The fact that the jury in A's trial was satisfied on the evidence before it as to proof of concert is not an evidential fact in B's trial; evidence that the jury in A's trial had decided that issue of fact would not be admissible in B's trial. In short, the character of an accused's involvement in the commission of an alleged crime charged in an indictment on which he goes to trial is a matter to be determined on the basis of the evidence competently adduced in that trial. Although an admission of guilt by a person in one trial might be proved in later proceedings, a finding in one trial as to the character of the involvement of an accused person has no relevance to the determination of the guilt in other proceedings of any person not then on trial on the same indictment.

Indeed, it goes further than that, and for the same reason. For even if A and B go to trial on the same indictment the jury has to consider the case against each accused separately. If they are charged with acting in concert with each other, and with no one else, there may be clear evidence against A consisting of one piece of direct evidence from a single witness that A and B agreed to carry out the joint criminal enterprise, corroborated by A's extra-judicial admission of that fact. On such evidence, the jury would be entitled to find A guilty in respect of the whole criminal enterprise, by reason of concert with B. However, A's extra-judicial admission would not be competent evidence against B; so, if B had made no self-incriminating admission and the only evidence available to prove that B had entered into such an agreement with A was that of the same single witness, the case against B would fail for lack of evidence. But that would not be a good reason for the jury (assuming that it accepted all the incriminating evidence competently adduced in respect of A) to depart from the finding - applicable to A only - that A had acted in concert with B. In such a case concert has to be proved individually against each accused on the basis of the evidence that is admissible against him. The failure of the evidence to show that one was involved in the criminal enterprise does not necessarily mean that the other was not. This is what the Lord Justice General made clear in Capuano supra. Even if the evidence against B was such that he had to be acquitted under section 97(2) of the Criminal Procedure (Scotland) Act 1995, the case against A could still proceed upon the basis that A had acted in concert with B.

Underlying this analysis is the recognition that a "fact" in a criminal trial is something that is established to the satisfaction of the jury by competent and sufficient evidence adduced, and in relation to a person indicted in that trial. A "fact" of that character has no existence outside the context of the trial; and the facts established at a trial against one accused may well differ from the facts established against a co-accused in the same proceedings; they commonly do. So there is no necessary contradiction between a jury's finding that there is convincing evidence, applicable to A only, to show that A acted in concert with B and a contemporaneous jury finding that the evidence applicable to B has failed to demonstrate that he acted in concert with A. The same phenomenon is familiar in civil proceedings. Thus, in an action of divorce or separation, if adultery was the ground of action, it formerly had to be proved beyond reasonable doubt and by corroborated evidence. Accordingly the Court could find the defender guilty of adultery with the co-defender, but assoilzie the co-defender because there was no evidence sufficient in law to prove that he had committed adultery with the defender: Creasey v Creasey 1931 S.C. 9. The Lord President there referred to a passage in Lord Fraser's Husband and Wife (vol. ii., pp. 1173-4),

The situation, considered in the example discussed earlier, of a criminal case where the only alleged socii are on trial together is distinguishable from that seen in the "Silks" case - Young v. H.M. Advocate 1932 J.C. 63 - in which the trial judge directed the jury that there was no evidence of any common fraudulent design involving Young and his co-accused; it followed, as the Appeal Court made clear, that Young could not be held criminally responsible for those acts (the allotment of shares and the sanctioning of certain payments from company funds) which Young, not being a director of the company concerned, could not personally have carried out.

It was suggested that the Crown was somehow "barred" by what had happened in the proceedings against the first socius from proceeding against the second socius in terms that appeared to be at odds with the results of those proceedings; but we were referred to no authority - other than McAuley - in support of that submission. This submission appears to reflect a widespread but mistaken view that a person acquitted by the jury's verdict in a criminal trial is thereby declared to be "innocent" of the charges he has faced at the trial, so that he thereby acquires an unimpeachable certificate of innocence. He does not. An acquittal on a charge in a criminal trial means only that the charge has not been established beyond reasonable doubt; it is not a positive proof that the acquitted person did not commit the crime charged. Proof of guilt is the issue in a criminal trial; innocence is not. The accused, though acquitted, may still be sued in the civil courts: for example, a person acquitted in a criminal trial on a charge of murder can be sued by the victim's relatives for reparation for the wrong done to them by his murdering of the victim.

It was also suggested that it was "oppressive" for the Crown to proceed against the second accused, the appellants, in these cases on indictments framed as these were. In our opinion, however, for the reasons already given, it cannot be said to be oppressive for the Crown to indict the accused with a view to laying before the jury all competent evidence relevant to the accused's participation in the criminal activities libelled.

In our opinion, the ground upon which McAuley was decided was unsound and the decision should accordingly be overruled. The submissions for the appellants in these appeals based upon the opinion of the Lord Justice-Clerk fall to be rejected.

The other subsidiary arguments presented were entirely dependent upon the submission that McAuley was correctly decided and that therefore the Crown had been guilty of fundamental error or unacceptable conduct in proceeding as they did in the cases of the appellants. They accordingly fall to be rejected along with the main submission.

In these circumstances, both appeals against conviction are refused.