Scottish High Court of Justiciary Decisons

JAMES TROTTER v. HER MAJESTY'S ADVOCATE [2000] ScotHC 92 (27th September, 2000)

[1] The appellant stood trial at Alloa Sheriff Court on 17 and 18 June 1999 on an indictment libelling contraventions of section 5(2) and (3) of the Misuse of Drugs Act 1971. After trial, he was unanimously convicted of the charge under section 5(3). On the direction of the sheriff, he was acquitted of the charge under section 5(2), which concerned the same species facti. The appellant has appealed against his conviction on a number of grounds, of which two were argued before us. The first was that the sheriff had erred in law in directing the jury that they could not acquit the appellant on the ground of coercion. The second was that the sheriff had unreasonably refused to allow a defence witness to give evidence without remaining handcuffed: something which, it was submitted, was bound to cause prejudice in the minds of the jury. The appellant has also raised a devolution issue relating to precisely the same point as the second ground of appeal, so as to enable him to pray in aid Article 6(1) and (2) of the European Convention on Human Rights, in addition to domestic law.

[2] The offence of which the appellant was convicted was one of being in possession of diamorphine at Glenochil Prison with intent to supply it to another. At the time of his commission of the offence, the appellant was a visitor to the prison. His father was at the time a prisoner there. The Crown led evidence that the appellant had been stopped and searched in the prison, and had been found to have the drugs in his pocket. When cautioned by a police officer, the appellant had replied:

The appellant gave evidence. As summarised by the sheriff in his charge, the appellant said that his father was serving a prison sentence in Glenochil Prison and that he went to Glenochil with heroin in his possession. He frankly admitted that it was his intention to pass the heroin to his father. He said that the people who had given him the drug had taken him to the door of the prison. He said that he was told that his dad would "get done" if he didn't. By this he understood that his father would be stabbed. He said that he was told that if he told anyone he would be done. He said he did not seek the assistance of the police as he was scared.

[3] It is apparent therefore that the appellant freely admitted having committed the actus reus of the offence. The appellant's father was also led as a witness for the defence. He was still at that time a prisoner, held in Kilmarnock Prison. As summarised by the sheriff, the appellant's father said that at the time in question he was a prisoner in the local prison. He was in debt to the extent of £60 for drugs which he had purchased while a prisoner. Because of this he had telephoned the appellant and said: "James, do me a favour, something is going to happen to me, somebody is going to phone you and arrange to meet you." This was an indication that he wished his son to introduce a drug to the prison and pay off his debt.

[4] On behalf of the appellant it was argued that the sheriff had erred in directing the jury that the defence of coercion was not available to the appellant. According to the ground of appeal, the sheriff decided ex proprio motu to give such a direction on the basis that no notice of the defence of coercion had been lodged or intimated, as required by section 78(2) of the Criminal Procedure (Scotland) Act 1995. In his report to this court, on the other hand, the sheriff states that the Crown had objected to the defence of coercion being proponed. We do not consider that we require to determine whether the sheriff erred in excluding coercion on procedural grounds, since the defence was in any event unarguable on the facts of the present case. The defence of coercion is available only in very restricted circumstances, as was made clear by this court in Thomson v. H.M. Advocate, 1983 SCCR 368 at page 380:

It is apparent from the evidence of the appellant in the present case (and also that of his father) that the appellant had the opportunity to inform the authorities of the situation, but chose not to do so, because he was afraid. Such circumstances cannot amount to a complete defence to a criminal charge, although they may, if accepted, be taken into account in mitigation of sentence.

[5] The other ground of appeal argued on behalf of the appellant concerned the fact that the sheriff had refused to allow the appellant's father to give his evidence without remaining handcuffed throughout. It was submitted that nothing had been said to indicate that it was necessary that the witness should be handcuffed. The presentation of the witness in that condition was bound to cause prejudice in the minds of the jury. Under reference to the European Convention on Human Rights, it was again submitted that the presentation of the witness in handcuffs was bound to cause prejudice in the minds of the jurors, given the close relationship of the witness to the appellant, thereby depriving the appellant of a fair trial within the meaning of Article 6(1) and (2) of the Convention.

[6] In his report to this court, the sheriff states that the witness entered the witness box handcuffed to a prison officer. The solicitor for the appellant moved the sheriff to direct the prison officer to release the witness from the handcuffs. The sheriff asked the prison officer if he was willing to do so, and the officer replied in the negative. In the interests of security, the sheriff deferred to the judgment of the prison officer, who was responsible for the safe return of the witness to prison.

[7] Counsel for the appellant read to us what he informed us was a transcript of the relevant part of the proceedings. It appears from that transcript that there was indeed a request made by the solicitor to the sheriff when the witness entered the court, and that the sheriff then entered into a conversation with the prison officer. Part of that conversation was inaudible and had not been transcribed. From what was read to us, however, it appears that, while preferring not to do so, the prison officer was not unwilling to remove the handcuffs. The sheriff, however, stated that it was not uncommon in Alloa Sheriff Court for prisoners to be handcuffed while giving evidence, and he directed that the witness should remain handcuffed. The entirety of these exchanges took place in the presence of the jury.

[8] In the circumstances of the present case, we are unable to see any basis upon which it could be said that the handcuffing of the witness in question had deprived the appellant of a fair trial or had resulted in a miscarriage of justice. The jury were well aware, before the witness appeared, that he was a convicted prisoner at the time in question. The witness's evidence, even if accepted in its entirety, was not exculpatory of the appellant to the slightest extent. Nor does the Convention jurisprudence assist the appellant. We refer in particular to the decisions of the European Commission on Human Rights in Application No. 2291/64, X. v. Austria, Coll. 24 [1967], page 20; and Application No. 12323/86, Campbell v. The United Kingdom, [1988] 57 D.R. 148; and Application No. 11837/85, Auguste v. France, [1990] 69 D.R. 104.

[9] For these reasons the appeal is refused.

[10] We would not wish to part with this case without making some observations concerning the handcuffing of the witness. Counsel were unable to offer us any assistance as to the legal framework governing such a matter. No reference was made to any relevant primary or secondary legislation, or to any relevant Standing Orders of the Scottish Prison Service. We note, from the case of Campbell v. The United Kingdom, that at that time Standing Orders made specific provision regarding the handcuffing of prisoners:

Counsel were unable to enlighten us as to whether that Standing Order, or any equivalent provision, remains in force.

[11] In principle, it appears to us that the approach set out in the Standing Order which we have just quoted is one which is appropriate. The decision as to whether any prisoner should be handcuffed in court should be taken by the presiding judge. In the present case, the sheriff should not have required the prisoner to remain handcuffed while giving evidence unless that was necessary for reasons of security. When such reasons exist, it is desirable that they should be communicated to the sheriff by the Crown, rather than by means of a conversation between the sheriff and police or prison officers. Any discussion of a matter of this kind should preferably take place outwith the presence of the jury.