Scottish High Court of Justiciary Decisons

Hicks v. Her Majesty's Advocate [220] ScotHC 20 (05 March 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hamilton Lord McCluskey	Appeal No: 750/00 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in NOTE OF APPEAL by GARY ROBERT HICKS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: McBride, Q.C., Niven-Smith;

Respondent: McCreadie, Q.C., A.D.; Crown Agent

5 March 2002

1. The appellant was convicted at Glasgow High Court on 28 September 2000 by a majority verdict on a charge of murder. The charge was in the following terms:

"(1) on 1 May 2000 at Ladymuir Crescent, Dormanside Road and Linthaugh Road, all Glasgow, you did assault Kevin Walter Stone, born 23 February 1985, 1/1, 44 Linthaugh Road, Glasgow, attempt to punch him, chase him, present a knife at him and strike him on the body with a knife and you did murder him and you did previously evince malice and ill-will towards him".

2. He appeals against conviction on this charge on the ground that the presiding judge misdirected the jury in a material respect and that there has been a miscarriage of justice.
3. The point in this appeal arose in the following circumstances. At an early stage in the proceedings the appellant underwent judicial examination. At his examination he did not suggest that he had acted in self-defence or that the stabbing of the deceased had been accidental.
4. Later, the appellant lodged a special defence of self-defence. At the trial, he gave evidence on his own behalf. It is not disputed that his evidence therefore raised significant questions of credibility. In his evidence the appellant agreed that he had stabbed the deceased with the knife, but he said not only that he acted in self-defence but also that the blow with the knife might have been accidental.
5. The advocate depute then cross-examined the appellant on the question why he did not give the explanation that he was acting in self-defence either to the police when they interviewed him or to the sheriff at his judicial examination. The appellant replied that, on the advice of his lawyer, he had not offered an explanation on either occasion. The matter was not, it seems, further pursued by the advocate depute.
6. In is charge to the jury the presiding judge gave the following direction:

"The next matter I would refer to is the judicial examination of the accused. I think I should also say, ladies and gentlemen, it is important to bear in mind that not only was the accused in this case cautioned by the police quite properly that he wasn't obliged to say anything but you will recall of course before he went to the police he had been to see a solicitor who had given him advice and he says that he followed that advice and it is a matter for you whether you think that was unreasonable or not. As far as the judicial examination is concerned, it is provided by statute that the record of judicial examination shall be received in evidence. You have heard it read out to you and you can have regard to the record of that examination as being evidence of the facts spoken to. You should bear in mind though, ladies and gentlemen, that although the proceedings take place in front of a sheriff, no oath is administered and there is no cross-examination in the proper sense of the term and indeed I think there are very restricted opportunities for the accused's solicitor to intervene. It is only to clarify matters although there is an opportunity to stop and consult if they want that. The procedure is simply designed to ascertain the accused's attitude to the charges and to any statements or admissions said to be made by him although in this case it was really to ascertain the attitude to the charges."

Counsel for the appellant accepts that up to this point the presiding judge's direction regarding the judicial examination was appropriate and accurate.

7. However, the presiding judge then continued as follows:

"It is also designed to enable the accused to give any account or explanation which he wishes at an early stage and in particular to state any special defence such as self-defence if he wishes. The advantage of stating such a defence at that stage is it is more difficult to conclude that the special defence has been fabricated at a later date. The disadvantage of not stating it at that stage is that later on it may be suggested that the accused has come up with this explanation at a later stage and you will remember, ladies and gentlemen, that he was asked specifically in the judicial examination 'Are you denying the charge because you were acting in self-defence?' and his answer to that was 'On the advice of my lawyer, I make no comment', so again, ladies and gentlemen, his lawyer was there and it is up to you what you make of that although you may feel that with an experienced lawyer that you have heard about it would be astonishing if the accused had advised him that there was a special defence of self-defence at that stage that he was advised to make no comment about that but that is really a matter for you, ladies and gentlemen."

8. Later in the charge the presiding judge said the following:

"The advocate depute also relied upon the failure to tell the police at interview that he acted in self-defence but you will bear in mind the position of the accused about the advice that he had taken and also the fact that he was acting upon that advice and that he has a right to silence."

 

Case law

9. Two decisions of this court have a bearing on this appeal. In McEwan v. HM Adv (1990 SCCR 401), the trial judge made certain comments to the jury before the transcript of the judicial examination of one of the accused was read to them. It appears that these comments included the statement that one of the purposes of judicial examination was to prevent the "fabrication" of alibi evidence by having the examination conducted as soon as possible after a charge. This court commented that it was unfortunate that the trial judge had made this reference. Nonetheless, the court did not regard that comment as constituting a miscarriage of justice (at p. 407C-D); nor did the court regard the trial judge as having exceeded the bounds of permissibility in making certain forthright comments in his charge concerning the accused's refusal to respond positively at his judicial examination (at pp. 408-409).
10. In McGhee v. HM Adv (1991 SCCR 510) the accused was convicted of murder. At his trial he had tendered a special defence of alibi. At his judicial examination, however, he had declined to comment on the circumstances of the incident. He said that he did so on the advice of his solicitor. The appellant then gave evidence at the trial. The trial judge reminded the jury of the transcript of the judicial examination and reminded them that the appellant had replied "No comment" to every question that was put to him. He then said the following:

"Now, no doubt if a person is told by his lawyer to make no comment it might be reasonable to do that, but you will appreciate that before the judicial examination Mr. McGhee had had a meeting with his solicitor to discuss the charges and to consider what his defence would be, charges which also couldn't have been unexpected given the situation that McGhee had disappeared for something like seven months and knew very well that the police were looking for him for these charges and that a trial had earlier taken place. If Mr. McGhee told his lawyer that at the time of the robbery he was in his own flat in company with his brother, his father and daughter who could speak to that, would it not be extraordinary that the lawyer should tell Mr. McGhee not to say anything and not to give that account and just to say 'No comment'? It is a matter you have to consider. You have to consider all the evidence and reach a verdict on the evidence which you accept".

This court quashed the conviction on the ground inter alia that the comments of the trial judge regarding the appellant's judicial examination had constituted a miscarriage of justice. The court said the following:

"As was observed in McEwan v HM Adv, when a judge makes comment on an accused person's refusal to answer questions at judicial examination, he should do so with restraint, and there are limits to what is permissible in this regard. Alexander v HM Adv (1988 SCCR 542) is an example of what may properly be said. What the trial judge said in the present case went far beyond that. In our opinion, what he said was objectionable because in saying to the jury

'would it not be extraordinary that the lawyer should tell Mr McGhee not to say anything and not to give that account and just to say "No comment"?'

the trial judge was seeking to impress his own views upon matters of fact upon the jury. That is something which a trial judge ought not to do (Crowe v HM Adv, 1989 SCCR 681). We also consider it unfortunate that the trial judge chose to make these comments about the appellant's refusal to answer questions at the judicial examination without reminding the jury that in his evidence the appellant had offered a reason for saying 'No comment' at judicial examination ... The appellant had given evidence in support of his special defence of alibi, and his credibility was obviously crucial. In these circumstances there is no escape from the conclusion that there was a miscarriage of justice in this case arising from the comments made by the trial judge."

The Report of the trial judge

11. In his Report in this case the trial judge says:

"I would invite your Lordships to consider the passage complained of in the context of (a) my Charge as a whole, (b) the evidence relating to the appellant consulting a solicitor and (c) the manner in which the case was presented to the jury in the closing submissions of counsel for the appellant. In relation to the first of these issues, namely considering the comment complained of in the context of the Charge as a whole, I would refer your Lordships to various passages in which I dealt with the responsibility of the jury to determine the facts."

The trial judge then gives us the references for the numerous directions that he gave on that general question. He then continues:

"In relation to the second issue, namely the evidence concerning the appellant consulting a solicitor. The appellant gave evidence that prior to his surrendering to the police he consulted a solicitor. This was confirmed by police officers. There was also evidence that the solicitor in question was a solicitor experienced in the practice of the criminal law, the transcript of the judicial examination which was read to the jury discloses that the solicitor was present and the appellant confirmed at page 1, that he had had the opportunity of discussing the charge with his solicitor. Page 2 of the transcript contains the usual warning by the sheriff that if the appellant fails to answer a question that failure may subsequently be commented upon ... In the context of this case, there were no special circumstances such as those which existed in McGhee v HM Adv. At page 35, line 17, I reminded the jury that the appellant had taken advice before the police interview. I was not seeking to impress my views upon the jury by the use of the word "astonishing." Moreover, taking into account the matters to which I have referred, namely the terms of the charge as a whole, the evidence that the appellant had consulted an experienced criminal practitioner, prior to surrendering himself to the police, that he had consulted with that solicitor prior to the judicial examination and that the solicitor was present at the judicial examination and the manner in which the case was presented to the jury, the comment should not be construed as amounting to a miscarriage of justice."

 

Submissions for the appellant

12. Counsel for the appellant submitted that the second passage in the trial judge's charge contained a clear misdirection. It was an attempt by the judge to impress his own view upon the jury as to the appellant's credibility and by clear implication was an invitation to them to conclude that the appellant's solicitor had not given the advice to which the appellant referred. That misdirection was all the more damaging because it followed the comment made earlier in that passage of the charge to the effect that "the advantage of stating such a defence at that stage is it is more difficult to conclude that the special defence has been fabricated at a later date." This last remark was contrary to the approach of the court in McEwan (supra). This case was similar to McGhee (supra) in all material respects. In both cases, the accused declined to answer questions at his judicial examination, stating that he did so on legal advice; in both cases the accused gave evidence in support of a special defence, and in both cases the trial judge used extreme language bearing on the credibility of the accused.

Submissions for the Crown

13. The advocate depute argued that there was no misdirection. The use of "fabricated" in its context was unfortunate, but was not a ground for quashing the conviction (McEwan, supra). In the reference to the appellant's answers at his judicial examination, the trial judge made clear that it was for the jury to decide what to make of that evidence. The trial judge had repeatedly referred to the appellant's right to remain silent.
14. McGhee was distinguishable because (a) the trial judge in this case had not tried to impress his own view on the jury but had merely suggested one possible interpretation that they might put upon the evidence regarding the judicial examination (cp. McGhee, at pp. 513D-E; 519C-D); (b) in McGhee there was no evidence that the appellant had told his solicitor about his defence of alibi but the comments of the trial judge in that case might have led the jury to think that there had been such evidence (McGhee, at p. 519B-C); and (c) the trial judge in this case did not omit to mention the appellant's explanation given at his judicial examination (cp. McGhee at 518D-F).
15. The advocate depute also argued that if there had been a misdirection, it was not a material one and that therefore that there had been no miscarriage of justice. It was merely a single inappropriate comment in an otherwise careful and balanced charge.

Decision

16. Judicial examination gives an accused person an opportunity at an early stage to state his defence to a criminal charge. But that is an opportunity that he is entitled to decline. He may be advised by a lawyer not to answer any question relating to the substance of the charge. If an accused in such a case intends to plead a substantive defence, such as self-defence, it may be that his lawyer will advise him to remain silent nonetheless, perhaps on the view that, until the facts have been fully investigated, it is better to reserve the accused's position and avoid the danger of apparent conflict between the account given at judicial examination and the evidence presented at the trial. In McGhee (supra), the appellant did not have an opportunity to consult his own lawyer before the judicial examination. Another lawyer appeared for him and was refused an adjournment of the examination. That lawyer advised him to make no comment.
17. In circumstances such as these, advice to say nothing at the examination is advice with which some lawyers might disagree; but it is not necessarily advice that is to be considered as "astonishing."
18. If a trial judge comments on the accused's failure to give an explanation at his judicial examination, as the trial judge is entitled to do, he should comment with restraint and in moderate language.
19. In the present case the trial judge first referred to the advantage of stating a special defence at the stage of judicial examination, namely that it is more difficult to conclude that the special defence has been fabricated at a later date. That, while not a misdirection, was an inappropriate comment. It could have raised in the jury's minds the possibility that the special defence had been fabricated, notwithstanding the appellant's assertion that he had remained silent at the judicial examination on legal advice. The trial judge's direction on that question therefore got off to an unfortunate start.
20. In our view, however, the comment that matters is this:

" ... you may feel that with an experienced lawyer that you have heard about it would be astonishing if the accused had advised him that there was a special defence of self-defence at that stage that he was advised to make no comment about that but that is really a matter for you, ladies and gentlemen."

This too was an inappropriate comment. It certainly put into the minds of the jury a doubt as to the appellant's credibility, and it implied a suggestion, which the advocate depute had not made, that the appellant had received no such legal advice. In this case the appellant had given uncontradicted evidence that he had received legal advice to the effect mentioned.

21. In our view, it was unnecessary for the judge to comment in these terms. To have told the jury that they could take into account the appellant's failure to answer at judicial examination, subject of course to his explanation for that, would have met the situation adequately. But there is more to the question than that.
22. In McGhee, the comment complained of was plainly an expression of the trial judge's own view. Moreover, when referring to the appellant's failure to disclose his alibi at the judicial examination, the trial judge failed to remind the jury that in his evidence the appellant had given an explanation for that.
23. In our opinion, this case is materially distinguishable from McGhee (supra) in these respects. In this case, the trial judge emphasised to the jury that the conclusion to be drawn from the appellant's silence at his examination was a matter for them. Elsewhere in his charge, and in particular in the passage immediately following the words complained of, he repeatedly and in various ways impressed on the jury that it was their conclusions on the evidence that mattered and not his. These directions, in our view, deprived the comment complained of of any great weight. Moreover, the trial judge went out of his way to remind the jury that the appellant had taken legal advice before his police interview and before his judicial examination; and that in his evidence the appellant had given an explanation for his silence at the judicial examination.
24. In view of this, we conclude that the trial judge's comment, in what was an otherwise accurate and thorough charge, did not amount to a material misdirection constituting a miscarriage of justice.
25. We shall refuse the appeal.