Scottish High Court of Justiciary Decisons

JOHN BOYD and GRAEME MOFFAT and JAMES ERASMUSON v. HER MAJESTY'S ADVOCATE and PROCURATOR FISCAL, EDINBURGH [2000] ScotHC 93 (27th September, 2000)

[1] We have before us three cases, all raising the same point relating to the form of charges in the indictments against the accused. The appeal in the case of John Boyd arises out of the decision of the Presiding Judge at a preliminary diet in the High Court while the appeals of Graeme William Moffat and James Douglas Erasmuson both arise out of decisions of the Sheriff at Edinburgh at the first diet. Since the same point arises, it is sufficient to refer to the charge in the indictment against Boyd to the effect that on 7 October 1999 at John Ogilvie High School, Farm Road, Hamilton, he

Similarly the charges against the appellants Moffat and Erasmuson contain aggravations to the effect that the offences were committed while they were on bail, but the charge against Boyd is the only one where it is said that the appellant had committed the offence when he was subject to more than one bail order.

[2] The point argued on behalf of each of the appellants was based on Article 6 of the European Convention on Human Rights and Fundamental Freedoms. At the time of the hearing in the last week of September the Convention had not been fully incorporated into our law and the argument was presented on the basis of the position of the Lord Advocate under the Scotland Act, but we now have full incorporation and are required in any event to apply the Convention. For present purposes the difference is immaterial. Article 6(1) gives an accused a right to a hearing by "an independent and impartial tribunal" while Article 6(2) provides that everyone charged with a criminal offence is to be presumed innocent until proved guilty according to law. Mr. Jackson, in whose submissions the other counsel concurred, argued that the libelling of the bail aggravations breached these provisions since the jury could infer that the appellants had been charged with other offences and this might tend to colour their approach to the case and render them less than impartial. In any event, standing the form of the charges, they could not be seen to be impartial.

[3] The practice of libelling aggravations of this kind is based on Section 27 of the Criminal Procedure (Scotland) Act 1995. In terms of subsection (1) an accused who has been granted bail but fails without reasonable excuse either to appear at any diet of which he has been given notice or to comply with any other condition of bail is, subject to subsection (3), guilty of an offence. Subsection (3) provides that, if his failure to comply with a condition of bail consists in his having committed an offence, he is not guilty of an offence under subsection (1) but, in determining the appropriate sentence for the subsequent offence, the court is to have regard inter alia to the fact that the subsequent offence was committed while he was on bail. But, under subsection (4), the court is not to have regard to the fact that the subsequent offence was committed while the accused was on bail "unless that fact is libelled in the indictment or, as the case may be, specified in the complaint". In terms of subsection (4A) the fact that the accused committed the subsequent offence while on bail is to be held as admitted unless he takes a preliminary objection. It follows that, in most cases, there will be no need for the Crown to prove that matter in the proceedings before the court. On the other hand, by virtue of Section 88(5) copies of the indictment are to be provided for each member of the jury.

[4] While there was some discussion before us as to methods which might be adopted to avoid the jury becoming aware of the bail aggravations - e.g. by the clerk not reading them out to the jury and by the jury being given a copy of the indictment from which the aggravations had been deleted - these points were not fully argued and we prefer, in any event, to deal with the appellants' argument on the basis of the existing practice under which the clerk reads the full terms of the indictment and the jurors receive a copy of the indictment which contains all the charges on which the Crown are going to trial.

[5] In developing his argument Mr. Jackson naturally reminded the court that our law is generally at pains to try to ensure that the jury are not aware of an accused's previous convictions. Section 101(1) of the 1995 Act provides that, subject to certain exceptions, previous convictions against him are not to be laid before the jury, nor is reference to be made to them in presence of the jury before the verdict is returned. Mr. Jackson went on to argue that, indeed, our law went further and was in principle opposed to the jury being made aware that an accused had even been charged with another offence, since under Section 266(4) it was only in certain limited circumstances that he could be asked questions showing or tending to show this. These rules are so familiar and so firmly imprinted in the minds of all Judges and counsel that it is understandable that Mr. Jackson felt able to refer to them as embodying the spirit of our law on the matter and to argue that the enactment of Section 27(4) was somehow contrary to that spirit.

[6] The rules contained in the 1995 Act are statutory in origin. The common law of Scotland knew little or nothing of them and evidence was not infrequently led before the jury which was designed to show that the accused had previously been convicted of a similar offence, the previous conviction serving to aggravate the offence for which the accused was on trial. The aggravation was, of course, set out in the indictment. Indeed, the law went further and allowed evidence to be led to the effect that a person who was accused of theft was by habit and repute a thief. Again, that allegation was contained in the indictment. Readers of Alison will readily call to mind the passages in Vol. 1, pp. 197 - 198 , 296 - 307, and Vol. 2, pp. 305 - 306. The law was changed by Section 67 of the Criminal Procedure (Scotland) Act 1887. We refer to the short account of the development of the law in the opinion of the court given by the Lord Justice Clerk (Ross) in Leggate v. H. M. Advocate 1988 J.C. 127 at pp. 144 - 145. Since Parliament introduced this protection for accused persons, in purely domestic terms at least, it must have been open to Parliament to redefine its scope and the court cannot usefully approach the issue in this case on the basis that, in doing so, it has somehow acted against the spirit of our law.

[7] The law relating to bail was altered by the Bail (Scotland) Act 1980. To begin with, the Crown followed a practice of charging accused persons of contravening a condition of bail by committing a further offence, without libelling that further offence separately. But, in the light of the observations of Lord Justice Clerk Wheatley in Aitchison v. Tudhope 1981 S.C.C.R. 1, they altered that practice and began charging both the subsequent offence and the breach of the condition of bail as separate offences. That remained the practice until 1995 when the law was again altered, apparently to avoid any question that the accused was in effect being punished twice for the same act. For present purposes, however, the important point is that the court has had many years' experience of jury trials in which the jury had before them an indictment which charged the accused not only with the substantive offence but also with having breached a bail order. Any inference which the jurors of today might draw from the form of charge in the present cases would have been open to their predecessors between 1980 and 1995 and so the trials conducted under that system would have been open to the same kind of challenge as is put forward in these cases.

[8] The question for us under the Convention is whether, by including the aggravation referring to the bail order in the indictment which goes before the members of the jury, the Crown have thereby done something which is liable to deny the appellants a fair hearing before an impartial tribunal. In the light of the experience which we have just mentioned, we have no hesitation in answering that question in the negative. We all know that juries regularly returned discriminating verdicts on indictments containing charges under the Bail Act. Sometimes they would convict of the substantive charges and, as a result, of the Bail Act charges; on other occasions they would acquit the accused of all of the charges; on still other occasions they would convict of some of the substantive charges and related Bail Act charges but acquit of others. In other words there is nothing to suggest that a jury, when properly directed to decide the issues on the evidence before them, are incapable of doing so just because they may have been able to work out from something contained in the indictment that the accused had previously been charged with some other offence. Indeed it would in our view be somewhat patronising to suggest otherwise. In that connexion we recall the observations of Lord Prosser in Cox and Griffiths Petitioners 1998 J.C. 267 at pp. 274 H - 275 B where he points out that the law is not so foolish as to assume that no juror will ever entertain a suspicion that an accused is perhaps criminal in various ways and that the ordinary terms of the judge's charge to the jury are seen as sufficient to deal with any conceivable prejudice to which that suspicion could give rise. The truth of that observation in the present context is fully borne out by the experience of Judges and practitioners in our courts.

[9] We prefer to decide an issue of this kind by reference to the experience within our own system or within other systems where jury trial operates in much the same way. But we also notice that in X v. Austria, Application No. 2742/66, the Commission rejected as "manifestly ill-founded" a complaint under Article 6(1) and (2) that reference was made to an accused's previous convictions in the course of his trial before a court which included lay judges. In reaching that decision the Commission had regard to the fact that in a number of Convention countries evidence of previous convictions is regularly given before the court has reached its decision as to the accused's guilt. That decision supports the approach which we would in any event adopt.

[10] Mr. Jackson argued, however, that the decision in X. v. Austria should be distinguished because in the Austrian system, and indeed in other systems where reference was made to previous convictions before the court reached their verdict, the evidence of the previous convictions was introduced for a purpose which was deemed useful and legitimate according to the approach in the particular system. Here, by contrast, placing the indictment with the reference to bail before the jury served no legitimate purpose since, in almost every case, the fact that the subsequent offence was committed while the accused was on bail would be held admitted in terms of Section 27(4A). The jury would therefore have no function to perform with regard to the breach of bail and it was purely prejudicial to include a reference to it in the indictment placed before the jury.

[11] We reject that argument. As we have already explained, we are satisfied that the averment relating to bail does not in fact affect the jurors' ability to return an impartial verdict. That being so, there is no reason for us to go further and investigate the justification for its inclusion in the copy of the indictment placed before the jury and we prefer not to do so, beyond noting that the practice is clearly based on a combination of Sections 27(4) and 88(5) of the 1995 Act.

[12] For these reasons we refuse the appeals in all three cases.