Scottish High Court of Justiciary Decisons

JOHN PAUL CAMERON v. HER MAJESTY'S ADVOCATE [1999] ScotHC 254 (26th 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:

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 trial judge then stated to the jury:

In so pointing out, the trial judge, Lord Abernethy, was in effect repeating what he had said while charging the jury (page 35):

Having pointed out the inconsistency of what the foreman had indicated, the trial judge, apparently addressing the foreman, said:

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

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:

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 exchange then continued as follows:

The jury again retired. When the jury duly returned some 14 minutes later the transcript records what happened in the following terms:

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:

The ground of appeal then proceeds to narrate in summary what has been set forth earlier in this opinion and continues:

The ground of appeal develops the "wrongously and unjustly" theme and adds:

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 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

The Lord Justice Clerk, having summarised this matter, said at p. 31:

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 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:

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.