Lord Justice Clerk
Appeal No: 434/97
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by LORD McCLUSKEY
APPEAL AGAINST CONVICTION
JOHN PAUL CAMERON
HER MAJESTY'S ADVOCATE
Act: Scott; Aitken Nairn
Alt: Doherty, Q.C., A.D.; Crown Agent
26 April 1999
In May 1997 the appellant went to trial, along with a co-accused, Colin Smart, on an indictment which contained several charges. A third accused, Russell McCulley, appeared on the same indictment but he failed to appear at the trial diet and the trial against the appellant and Colin Smart proceeded in his absence. The charges which Colin Smart and the appellant faced were in the following terms:
"(1) on 13 February 1996 at 9B Marmion Court, Paisley, with faces masked, you Colin Smart, John Paul Cameron and Russell McCulley did assault Reginald Hall residing there, hold a knife to his neck, repeatedly demand that he hand over his medication, force him to accompany you to a bedroom, repeatedly place a firearm against his head, pull the trigger of said firearm, repeatedly strike him on the face with knives or similar instruments, all to his severe injury and permanent disfigurement and rob him of a video cassette recorder and a quantity of tablets:
(3) on 13 February 1996 at 9B Marmion Court, Paisley you Colin Smart, John Paul Cameron and Russell McCulley did at the time of your committing the offence specified in charge (1) hereof being offences specified in Schedule 2 to the Act aftermentioned, namely assault and robbery, have in your possession a firearm or imitation firearm namely a handgun; CONTRARY to the Firearms Act 1868 Section 17(2) and (5) as amended by the Firearms Amendment Act 1988".
From the libel it is clear that the statutory charge of possessing a firearm, or an imitation firearm, arose out of the circumstances narrated in the common law charge, No. (1), which related to precisely the same occasion. Because of the presence in the statutory charge of the words, "did at the time of your committing the offence specified in charge (1) hereof", it followed that if one of the accused were to be acquitted on the common law charge No. (1) he would have to be acquitted of the statutory charge. On the sixth day of the trial the jury, having deliberated for several hours, returned with their verdicts. The clerk of court took the verdicts in respect of Colin Smart first. In respect of charge (1) the foreman of the jury indicated that the verdict was "guilty", that there were no deletions and, after being questioned as to whether the verdict was unanimous or by a majority, stated that it was a majority verdict. The foreman of the jury stated that in respect of charge No. (3) Colin Smart was also found to be guilty, by a majority verdict. What happened thereafter is set forth in the transcript of proceedings containing the charge to the jury and the proceedings that followed thereon. In respect of the verdicts on the appellant the transcript discloses the following:
"THE CLERK OF COURT: Turning to the Accused John Paul Cameron, what is your verdict on charge No. (1)?
THE FOREMAN OF THE JURY: Not proven.
THE CLERK OF COURT: Is that a unanimous verdict of a majority verdict?
THE FOREMAN OF THE JURY: A majority verdict.
THE CLERK OF COURT: And on charge No. (3)?
THE FOREMAN OF THE JURY: Guilty.
THE CLERK OF COURT: Sit down just now, please".
The trial judge then stated to the jury:
"I don't think I can accept the verdict on charge (3) because it's not consistent with what the charge says".
In so pointing out, the trial judge, Lord Abernethy, was in effect repeating what he had said while charging the jury (page 35):
"So in the case of each accused it comes to this. If you find it proved that he is responsible for the assault and robbery in charge (1) and that at the time of that offence he is held to be in possession of the gun, namely No. 18, whether actually in possession of it or by application of the law of concert, then you should convict him of charge (3). If, however, these matters are not proved, then you should acquit him of charge (3)".
Having pointed out the inconsistency of what the foreman had indicated, the trial judge, apparently addressing the foreman, said:
"Do you see the point I am making? If he didn't commit the offence in charge (1) he can't be convicted of the offence in charge (3). Do you understand what I am saying?".
To that the foreman of the jury replied "Yes". The trial judge then turned to the Advocate depute and counsel for the accused for any observations they wished to make. The Advocate depute indicated that he had nothing to say in relation to charge (3) but asked whether there was any way in which the jury could clarify the position in relation to charge No. (1) in relation to this appellant. In response to that, the trial judge said "But that in itself (scil. the verdict on charge (1)) is a perfectly intelligible verdict". After further discussion between the judge and the Advocate depute the trial judge turned to the jury and said
"So I think, ladies and gentlemen, the thing to do is, what I shall direct you to do, if you would, please, is to return a verdict of not guilty on charge (3) in respect of Cameron, and I take it that would be unanimous. Do you understand what I am doing?".
It appears that at that stage members of the jury displayed some signs of concern, for the trial judge is then recorded as saying, "Some of you don't seem too sure. I'll try and explain it again, because it's very important that you understand what's happening". He then began to repeat the explanation as to the apparent inconsistency in their verdict in relation to the appellant but was interrupted by the foreman who indicated that the jury could not look at their copies of the indictment, as the trial judge was inviting them to do, because they had left them, presumably in the jury room. It appears that someone went there to obtain their copies of the indictment; the transcript continues:
"LORD ABERNETHY: Well, we will just get them so that you can follow what I am saying. I take it, just to make this clear while we're waiting for that, that your verdict of not proven, majority, is in relation to the whole of charge (1)?".
In response to that, a member of the jury is recorded as saying: "No, only to part of it". The trial judge then decided that that ought to be clarified and the clerk of court is then shown as asking: "In respect of the Accused John Paul Cameron on charge No. (1), what is the full extent of your verdict?". To that the foreman of the jury replied "For the assault it was not proven". The clerk of court then asked "Is it a guilty under deletion, is that what you are trying to say?". To that the foreman of the jury replied "Yes". What followed next is recorded in these terms:
"THE CLERK OF COURT: You find certain parts of the charge not proven but other parts...?
A MEMBER OF THE JURY: Guilty, uh-huh.
LORD ABERNETHY: Well, could you just give the Clerk in detail what your whole verdict is on charge (1) in relation to Cameron.
THE FOREMAN OF THE JURY: For the assault it was not proven; possessing a firearm was guilty.
LORD ABERNETHY: Well, can I put it this way. Can you tell the Clerk what part of that charge you have found proven and you find him guilty of.
THE FOREMAN OF THE JURY: Possessing a firearm.
LORD ABERNETHY: No. We'll wait till you get your copies of the indictment".
The exchange then continued as follows:
"Now, you see charge (1) is the charge of assault and the details of the assault are there set out, and then it ends up with the charge of robbery. Now, the form in which you should return your verdict here is, if you have found him guilty of the charge at all, any part of the charge, it would be guilty, and if you've found parts of the charge not proven against him you say guilty under deletion of the parts you have found not proven: do you understand?
A MEMBER OF THE JURY: Yes, I understand now.
LORD ABERNETHY: Do you want time to consider that again, or are you quite clear as to what the situation is? Mr. Foreman, are you quite clear as to what the situation is?
Now, you understand the form of the verdict that I've been describing to you. If you find him guilty of any part of Charge (1) what you would say is guilty under deletion of any parts you find have not been proved against him, do you understand?
Now, do you want to take time to go back to the Jury Room, just get that together, do you think that would be sensible?
MEMBERS OF THE JURY: Yes.
LORD ABERNETHY: All right".
The jury again retired. When the jury duly returned some 14 minutes later the transcript records what happened in the following terms:
"THE CLERK OF COURT: Ladies and gentlemen of the Jury, would the spokesperson please rise. I shall ask for your verdict again in respect of the Accused John Paul Cameron. What is your verdict in respect of Charge No. 1?
THE FOREMAN OF THE JURY: Guilty with the deletion of strike him on the face with knives or similar instruments, all to his severe injury and permanent disfigurement.
THE CLERK OF COURT: That's the words would be 'repeatedly', the words 'repeatedly strike him on the face with knives or similar instruments, all to his severe injury and permanent disfigurement'?
THE FOREMAN OF THE JURY: Yes.
THE CLERK OF COURT: Under deletion of those words?
THE FOREMAN OF THE JURY: Under deletion, yes.
THE CLERK OF COURT: Are there any other deletions to that charge?
THE FOREMAN OF THE JURY: No.
THE CLERK OF COURT: No. Was that a majority verdict or a unanimous verdict?
THE FOREMAN OF THE JURY: Majority.
THE CLERK OF COURT: Majority verdict. And what is your verdict in respect of charge (3)?
THE FOREMAN OF THE JURY: Guilty.
THE CLERK OF COURT: Guilty. Is that a majority verdict or a unanimous verdict?
THE FOREMAN OF THE JURY: It's a majority verdict.
THE CLERK OF COURT: A majority verdict. Thank you, sit down please while I record the verdict.
Ladies and gentlemen, is your verdict correctly recorded as follows. The Jury, by a majority, find the Accused Colin Smart guilty as now libelled on each of Charges (1) and (3)?
THE FOREMAN OF THE JURY: Yes.
THE CLERK OF COURT: By a majority find the Accused John Paul Cameron guilty on Charge (1) under deletion of the words 'repeatedly strike him on the face with knives or similar instruments, all to his severe injury and permanent disfigurement' on Lines 19, 20 and 21 on said charge?
THE FOREMAN OF THE JURY: Yes.
THE CLERK OF COURT: And by a majority find the Accused John Paul Cameron guilty as libelled on Charge (3)?
THE FOREMAN OF THE JURY: Yes.
THE CLERK OF COURT: Thank you".
The Advocate depute then moved for sentence in respect of both Panels and the trial judge imposed sentences.
After sundry proceedings in the appeal process the court allowed the appellant to withdraw his original grounds of appeal in respect that they were no longer insisted upon and allowed a single ground of appeal to be substituted therefor. This ground of appeal states inter alia:
"There was a miscarriage of justice in that the jury returned a verdict of not proven in respect of charge (1) and of guilty in respect of charge (3)".
The ground of appeal then proceeds to narrate in summary what has been set forth earlier in this opinion and continues:
"Thereafter the judge wrongously and unjustly proceeded to question the jury foreman to clarify the verdict in respect of charge (1). The jury foreman indicated again that the verdict was not proven in respect of the 'assault'. The clerk of court then most wrongously and unjustly entered a discussion with the foreman suggesting said verdict was a verdict under deletion".
The ground of appeal develops the "wrongously and unjustly" theme and adds:
"It is submitted that the foregoing constituted the miscarriage of justice in that the jury returned an unambiguous verdict in respect of charge (1), which verdict should not have been questioned and the jury ought not to have been sent to re-consider same and the trial judge should not have proceeded further than his direction to the jury to return a verdict of not guilty in respect of charge (3)".
It is also asserted that justice was not seen to be done.
In presenting the appeal, Miss Scott, who appeared for the appellant, did not submit any argument in relation to the assertion that justice was not seen to be done. She submitted that charges (1) and (3) were intimately connected, in that it was to be expected that a conviction in respect of charge (1) in its full terms, without deletion of the references therein to the firearm, would be accompanied by a conviction in respect of charge (3); and that an acquittal in respect of charge (1) would logically and inevitably be followed by an acquittal on charge (3). She submitted that, once the foreman of the jury replied "Not proven", in response to the question (anent the appellant), "What is your verdict on charge No. (1)", that was an intelligible and final verdict in respect of that charge; there could be no enquiry into it at all. The proper course for the trial judge was to do what he had done initially and, once the jury returned an oral verdict of Guilty in respect of charge (3), he should have directed the jury that that was not a verdict which was open to them to deliver in the light of their verdict on charge (1). He should therefore have directed them without discussion to return a unanimous verdict of not guilty in respect of the appellant on charge (3). In her submission, once the jury had returned in respect of charge (1), what the judge had correctly described as "a perfectly intelligible verdict" there was no occasion or justification for the trial judge or the clerk to seek to go behind that verdict. The delivery of that verdict was an end of the matter in relation to that charge. Because the verdict on charge (3) was bound, in the circumstances, to be a verdict of acquittal the only competent course was to direct the jury to return a unanimous verdict of not guilty in respect to that charge. At the invitation of the court, Miss Scott referred the court to White v. H.M. Advocate 1989 S.C.C.R. 553, McGeary v. H.M. Advocate 1991 S.C.C.R. 203 and McGarry v. H.M. Advocate 1959 J.C. 30. In conclusion she submitted that the essence of the submission in support of the appeal was that the verdict delivered by the foreman of the jury in respect of charge (1) should have been "ring-fenced" as the jury's verdict on that charge.
The Advocate depute submitted that there was no miscarriage of justice. It become evident when the jury returned a verdict on charge (3) that something had gone wrong. It was the duty of the trial judge to clarify the matter: cf. White, supra at p. 556. As there was an apparent contradiction between the verdict delivered by the foreman on behalf of the jury in respect of charge (1) and the verdict delivered by him in respect of charge (3) it was the responsibility of the trial judge to point out the inconsistency to the jury and to give them an opportunity to retire to reconsider the matter. The Advocate depute submitted that the trial judge had to look at the verdict as a whole. His duty was to clarify matters if they appeared to be confused. He accepted that it would be wrong for the trial judge to lead the jury towards any particular result; but it could not be said that the trial judge had done any such thing in the present case. He referred us to Took v. H.M. Advocate 1988 S.C.C.R. 495.
In our opinion the appellant has failed to show that there has been any miscarriage of justice. The point raised in this appeal is covered in well-recognised authorities. The clearest guidance on this matter is to be found in the opinion of the Lord Justice-Clerk (Thomson) in McGarry v. H.M. Advocate supra, an opinion in which the other two judges concurred. In that case, arising out of a trial in the Sheriff Court, the foreman of the jury announced the verdict in terms which are recorded as follows:
"The jury unanimously...find the panel Thomas McGarry guilty of the first charge by a majority and unanimously find him guilty of reset of theft of the cigarettes referred to in the second charge:...".
The record of proceedings, as reported, then notes that the agent for the panels moved the court to ascertain from the jury whether the panel Thomas McGarry was guilty of reset of certain cigarettes or of certain other cigarettes "and the sheriff invited the jury to retire and consider this point". The record of proceedings then narrates
"On their return the chancellor of the jury announced that the jury wished to amend their verdict as follows, videlicet.:- The jury...by a majority find the panels Thomas McGarry,...guilty as libelled".
The Lord Justice Clerk, having summarised this matter, said at p. 31:
"Now so far the procedure was the proper procedure, and was entirely regular, that is to say, the Clerk of Court, when the jury returns, asks who the foreman is, and asks the foreman what the verdict is, and he states their verdict. Usually there is no difficulty but sometimes the jury do not make a very good job of it, and, if what is said appears to call for elucidation, this is the proper time to raise and to discuss in what form the verdict is to be. In the light of the discussion, if there has been one, and without more ado if there has been no need for one, the Clerk of Court writes the verdict out. Once the jury have assented to the terms of the verdict so recorded and read over to them by the Clerk of Court, that is the end of the matter, and there should be no further discussion as to what the jury meant, or as to what should have been done".
His Lordship then went on to criticise what had happened in the Sheriff Court in that case, namely that after the jury had assented to the verdict which the clerk had recorded they had been allowed to go out and bring in a different verdict. In Took v. H.M. Advocate supra the jury returned a verdict of guilty of assault to severe injury but under deletion of the whole specification libelled. The judge told them that if they deleted all the specification they must acquit the appellant, and asked them if they wished to reconsider their verdict. The jury retired and returned with a verdict of guilty of assault to severe injury under deletion of certain parts of the charge. The appellant appealed to the High Court on the ground that the sheriff should have accepted the original verdict as an acquittal and was not entitled to ask the jury to reconsider their verdict. The court held that the sheriff had acted properly and refused the appeal. In that context, the Lord Justice General (Emslie), delivering the opinion of the court, said, at page 497:
"In the events which happened we think the sheriff took precisely the proper course. The jury were plainly, as events show, intent on convicting the appellant on the evidence, and we see no reason whatever to question the propriety of the course which the sheriff followed in the circumstances of this case. It is not unusual for verdicts to be returned in a silly form which, on a strict construction ought to be treated as verdicts of acquittal. And it is equally not unusual when that happens for a judge to see whether he can find out what the jury really want to do. That is what the sheriff did in this case. We think he was right to do what he did and we shall refuse the appeal against conviction".
In White, where the jury had returned and attempted to deliver a verdict that was patently at odds with the trial judge's direction, the Lord Justice Clerk, delivering the opinion of the court, said, at pages 556-7:
"In our opinion what the trial judge ought to have done when the jury announced their verdict in these terms was to decline to accept such a verdict from them, to remind them of the direction which he had already given them and to send the jury out again to reconsider their verdict in the light of these additional instructions".
It would, of course, be quite wrong, as the Crown acknowledged, for the trial judge to seek to influence the jury in any way. It is, however, part of his function to assist the jury to deliver an unambiguous and clear verdict to which they can all assent as the verdict of the jury. It may happen, as in the case of Took v. H.M. Advocate, that it is clear that the verdict delivered orally in respect of a single charge is not one which it is open to the jury to return. In such circumstances the trial judge may invite the jury to retire if they wish to reconsider their verdict and he will usually consider it appropriate to give them some assistance so that they may understand what the difficulty is, so that they can reconsider the matter and ensure that, through the foreman, the jury's intended verdict is correctly delivered. It may be, as in the present case and in White, that when the verdict of the jury on the libel as a whole is delivered through the mouth of the foreman a confusion, incompetency or inconsistency emerges. We see no reason why a different practice should be adopted when that happens. There are obviously many circumstances in which different charges are linked in such a way that a verdict which the foreman announces on one charge has inevitable consequences in relation to the verdict he announces on another charge. In our view, it will be necessary for the trial judge, in certain circumstances, to consider the verdicts announced by the foreman on the various charges in the whole libel faced by an accused person in order to determine whether or not the verdict on the whole indictment in accordance with what the foreman of the jury has announced is one that can properly be recorded as the verdict of the jury. It is conceivable that there may be circumstances, when there are several accused on an indictment, in which a verdict in respect of one accused's guilt is patently inconsistent with a verdict in respect of another accused's acquittal. Again, circumstances such as these would point to the need for the presiding judge to consider carefully whether or not the verdict which the foreman has announced is what the jury as a whole intend to be their verdict. The presiding judge would have to consider what was needed to obtain clarification. It will sometimes be appropriate to give the jury further directions and invite them to retire and reconsider the matter. It is a matter of common experience that occasionally the foreman or chancellor of the jury, seeks to deliver the verdict of the jury on the charge or charges in a way that indicates some confusion, inconsistency, error, misunderstanding or incompetency. It may be jury's error or some error by the foreman in attempting to express it. It sometimes happens that other members of the jury signify that they are not content with what the foreman is saying or has said and indicate their concern by word or gesture or both. Whether it appears from the words used by the foreman or simply because of the manner in which other jurors are behaving when the foreman has spoken that there is a possibility of error, confusion or inconsistency it is, in our view, the clear duty of the presiding judge to take personal charge of the matter and to do what is necessary to clarify what it is that the jury are intending that the foreman should say on their behalf.
We are also conscious of the fact that it is not unknown for jurors who are dissatisfied with what the foreman has announced on their behalf to be uncertain as to whether or not they have any right to interrupt the formal proceedings by announcing their concerns in public; or they may simply be too shy to speak up. Of course, once the verdict has been recorded by the clerk of court and read over to the jury and the jury have signified their assent to what has been recorded, it is too late to make any alteration. It is therefore vitally important for the presiding judge to ensure that any clarification that is required is sought and obtained before the jury as a whole are invited to assent to what the clerk of court has recorded. The purpose of reading over to the jury what the clerk of court has recorded and of his asking them in terms: "Is that a true record of your verdict?" is to afford to the jurors a final opportunity to draw attention to any error that they think may have been perpetrated.
Whether or not it is necessary for the jury to be invited to retire to the jury room to reconsider their position will be a matter for the trial judge to determine in the exercise of his discretion; we are aware that there may be special circumstances, such, for example as those which occurred in Kerr v. H.M. Advocate 1992 S.C.C.R. 281, in which the problem can be cleared up without inviting the jury to retire to reconsider their verdicts.
We wish to observe finally that the practice whereby the trial judge intervenes after the oral verdict has been returned and before any record of the verdict is read back to the jury is a practice which is necessary for the proper administration of justice and is conceived as much in the interests of accused persons as in any other interest. It would not be in the interests of justice, nor would it necessarily be in the interests of an accused person, if an oral verdict of guilty on the first charge had to be accepted just because it was "intelligible" standing alone. For, if the oral verdict in respect of a later charge were to be patently inconsistent with a verdict of guilty announced in respect of an earlier charge, it is perfectly possible that careful reconsideration, with appropriate guidance from the trial judge, would result in an acquittal on the earlier charge.
In the present case, the failure of the jury foreman to return a verdict which properly reflected the clear direction which the trial judge had given them in relation to the connection between verdicts on charges (1) and (3) was patent from the moment when the foreman pronounced the verdict of "guilty" in respect of charge (3) in relation to the appellant. The interests of justice required that this patent confusion should be clarified. That was what was eventually done, and we consider that there is no basis for a conclusion that a miscarriage of justice has resulted.