Scottish High Court of Justiciary Decisons

Drummond v. Her Majesty's Advocate [2002] ScotHC 337 (18 December 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Cameron of Lochbroom Lord Marnoch	Appeal No: C681/00 OPINION OF THE COURT delivered by LORD MARNOCH in APPEAL AGAINST CONVICTION and SENTENCE by ANDREW PAGE DRUMMOND Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: I. Duguid, Q.C., Hamilton; Gilfedder McInnes

Respondent: G. Hanretty, Q.C., A.D.; Crown Agent

18 December 2002

1. In this case the appellant was convicted of two charges of embezzlement and a third charge of attempting to pervert the course of justice. He has lodged a Note of Appeal containing a number of grounds but this court is presently concerned with only the first of these which is in the following terms:

"(1) A material part of the proceedings took place outwith the presence of

the appellant, contrary to the Criminal Procedure (Scotland) Act 1995 Section 92. More specifically, on or about 7 August 2000, during the course of the appellant's evidence at trial, legal debate regarding the admissibility of evidence took place before the Court. The appellant was removed from the Court room for the duration of this debate. There was no question of the appellant being subject to Section 92(2) of the 1995 Act. These circumstances constitute a material breach of said Section 92(1)."

2. To this ground, however, the court, at the outset of the hearing, allowed the following supplementary ground to be added:

"Senior counsel for the appellant, in the course of the trial proceedings, outwith the presence of the appellant himself, acted entirely without the instruction or authority of the appellant. He stated that he (senior counsel) was 'content to put on record that I do not take any point with regard to competence on that matter.' (Page 74 of transcription of the evidence-in-chief of the appellant). Counsel had neither consulted with the appellant nor had he taken instructions from him upon said matter. In any event, the provisions of Section 92, as aforementioned, were not waved (sic) by the appellant. Representation of the appellant was accordingly defective. Justice was not seen to be done."

Somewhat remarkably, the "matter" referred to was left unspecified but, by reference to the transcript, it became clear that it was the fact that the appellant was removed from the court during the "legal debate".

3. The precise circumstances which gave rise to the "legal debate" are not important, it being sufficient to say that the trial judge appeared to have some concern that questioning of the appellant on an issue raising sharp questions of credibility was in danger of proceeding on a false premise. The trial judge himself intervened in order to clarify matters and the first thing he did was to invite the jury to retire. It appears that the appellant at that point was also ushered from the witness box to a corridor outwith the court room. A few minutes later the trial judge is recorded as observing that the accused was "missing part of the trial". Unfortunately this is immediately followed by an inaudible part of the tape. However, counsel for the appellant then volunteered that "it was probably better that he (the appellant) be not here unless any suggestion be made with regard to his being influenced" and he followed this up by saying, in terms, that he did not take any point with regard to "competence" The "legal debate" then continued, during which the trial judge is recorded as saying, inter alia, as follows:

"Well, I don't intend to seek to establish precisely what the evidence was by having the tapes replayed. That is not my purpose. My purpose is simply to give you a warning because I did anticipate that we had reached this point that if you take a particular line with the jury I will have to be critical of it on my own notes and that could be damaging."

4. Shortly thereafter the appellant was brought back to the witness box and before the jury returned the trial judge addressed him directly in the following terms:

"Mr. Drummond, simply to explain to you what has been going on and why before the jury comes back. I have a different note of the evidence than perhaps is available to Mr. Murray and my anxiety was that this line should not be pursued without him being fully aware of that so we have discussed what the position is but you should know to that extent what has been doing on."

5. For the sake of completeness we should perhaps record that in his Report to this court the trial judge explains the position as follows:

"I thought it necessary to ask the appellant to leave for his own sake. It could have been disadvantageous for him to listen to the discussion of what notes parties had about a matter on which he was giving evidence at a time when he was in the middle of his own evidence, since there was a risk that deliberately or otherwise, he would have reacted to that to his disadvantage."

6. We note in passing that in his Report the trial judge suggests that what took place outwith the presence of the accused might not, at least technically, have been part of the "trial" for the purposes of section 92 of the 1995 Act. However, this suggestion was not taken up by the Crown and we are clearly of opinion that what transpired was indeed part of the trial within the meaning of that section which is in the following terms:

"(1) Without prejudice to section 54 of this Act [Insanity in bar of trial], and subject to subsection (2) below, no part of a trial shall take place outwith the presence of the accused.

(2) If during the course of his trial an accused so misconducts himself that in the view of the court a proper trial cannot take place unless he is removed, the court may order -

(a) that he is removed from the court for so long as his conduct makes it

necessary; and

(b) that the trial proceeds in his absence,

but if he is not legally represented the court shall appoint counsel or a solicitor to represent his interests during such absence.

..."

7. In the hearing before us Mr. Duguid, Q.C., for the appellant, commenced by submitting that in this case a "very serious irregularity" had taken place and that, justice having not been seen to be done, there had inevitably been a miscarriage of justice. However, in the course of the ensuing debate, Mr. Duguid did not peril his submission on "justice not having been seen to be done" and concentrated increasingly on what came to be described as an irregularity "of a quite fundamental nature". Mr. Duguid frankly accepted that he was unable to demonstrate any actual, as opposed to "potential", prejudice to the appellant. The Advocate depute demurred to the suggestion that this was a case in which justice had not been seen to be done and pointed out that all that had transpired had been in full view of the public and that there was, moreover, a transcript of the taped proceedings which now showed to all concerned, including the appellant, exactly what had transpired. In the absence of actual or imputed prejudice there was no miscarriage of justice and the appeal should be refused.
8. Section 92 of the 1995 Act has a long pedigree replacing, as it did, section 145 of the Criminal Procedure (Scotland) Act 1975, which in turn had been substituted for section 10 of the Criminal Justice Act 1587. That section declared and ordained, inter alia, that:

"in all tyme cuming the haill accusatioun ressoning writtis witnesses and utheris probatioun and instructioun quhatsumeuer of the cryme salbe allegit ressonit and deducit to the assyse in presence of the pairtie accusit in face of iudgement and na utheris wayes."

9. However, even without reference to this statute, Hume is clear regarding the principle involved. In volume 2 of his Commentaries, at p. 269, he says this:

"Let us now suppose, that the accused is absent at calling the libel, but the prosecutor appears and insists. With one exception, which was introduced in evil times, in cases of treason, it has been our invariable custom, that no sort of proceeding can here take place, as for trial of the crime libelled. It is considered, that unless the accused is present to take charge of his own interest, there can be no security for doing full justice to his case; for pleading all his defences, bringing forward all his evidence, stating all objections to the evidence on the other part, and still less for taking advantage of all those pleas and grounds of challenge, which may arise in the course of the proceedings in the trial. Besides (though this is certainly an inferior consideration,) the Judges ought not to be called on to apply or declare the law, except in circumstances which afford the means of carrying their sentence into effect. On these grounds, the peremptory rule has long been settled, of requiring the personal presence of the pannel in every step, from first to last, of the trial, with the exception only of continuations of the diet; so that if he even withdraw at the last stage of all, after a verdict of guilty has been returned against him, still the court cannot proceed to apply the sentence of the law."

Later in his work, at pps. 404-405, with reference to the 1587 Statute, Hume observes that

"under this excellent law the pannel enjoys, in the first place, full security against all private insinuation of evidence to the assize, during the time of their continuance in court".

Moreover, he says, the consequence of an attempt to make such an insinuation

"is not in the loss of the particular conviction only, but of all right of prosecution on the matter of this libel, for the future".

10. In the course of the hearing we were referred to a number of much more recent authorities but, perhaps not surprisingly, all were clearly distinguishable on their facts. Most involved the leading or taking of evidence outwith the presence of the accused. There are, however, three which we find helpful on the wider issue of principle. The first is Aitken v. Wood 1921 J.C. 84. In that case at the conclusion of the evidence the magistrates called the complainer into their retiring room in order to examine her injuries. In delivering the leading opinion of the court the Lord Justice General (Clyde) said:

"This procedure, however well intended, and however harmless it may have been in this particular case, strikes at the principle - deeply rooted in the criminal law of Scotland - that no proceedings in a criminal trial, and particularly no proceedings connected with the taking of evidence, can go on outwith the presence of the accused. The examination of the arm was just a means of taking evidence additional to that which was presented at the proof. The taking of such evidence, in the absence of the accused, is plainly an irregularity which vitiates the proceedings; and there is therefore nothing for it but to quash this conviction."

11. The next case to which we make reference is that of Brims v. MacDonald 1993 S.C.C.R. 1061. That was a case in which the sheriff, in the course of a summary trial, went and viewed for himself the locus of the alleged offence. Although the sheriff stated that his decision would have been the same even had he not viewed the locus the court suspended the conviction. In delivering the Opinion of the Court the Lord Justice Clerk (Ross) described what had occurred as a serious irregularity and stated that "as in the case of Aitken v. Wood we have come to the conclusion that it vitiated the proceedings."
12. Both the foregoing cases involved summary procedure and, whether in terms of section 75 of the Summary Jurisdiction (Scotland) Act 1908 or sections 442 and/or 454(2) of the Criminal Procedure (Scotland) Act 1975, the court had a choice of viewing the matter in issue as involving either, on the one hand, incompetency or oppression or, on the other hand, prejudice and a miscarriage of justice. It is clear to us that in each case the court chose the former route.
13. The case which is perhaps most directly in point is that of Cunningham v. H.M. Advocate 1984 J.C. 37, a case in which the giving of directions to the jury by the court through the clerk of court, after the jury had retired, was held to be a breach of section 145(1) of the Criminal Procedure (Scotland) Act 1975. At p. 44 the Lord Justice Clerk (Wheatley) expressed the view that it would all depend on circumstances whether a breach of section 145(1) would give rise to a "miscarriage of justice" which by then had effectively become the only ground of appeal in solemn proceedings. It was possible, he said, that the contravention could be "so academic or lacking in materiality that it could not be said that any miscarriage of justice resulted from it." Lord Hunter and Lord Robertson, however, took a different approach and, whether or not consciously reflecting the passage in Hume's Commentaries, both judges described the provisions of the section in question as "peremptory". Moreover, it is clear from the Opinion of Lord Robertson that he regarded a breach of such provisions as being, in effect, an end of the matter. For instance, at p. 50, having said that the convictions could not stand, he goes on to say that it is "therefore not necessary to examine in great detail ... the exact happenings which occurred after the jury had been enclosed." And, later in his Opinion, having reached the view that it could not be certain that a miscarriage of justice had not been perpetrated, he goes on to comment: "This underlines the necessity for section 145(1) being complied with." Later still, he narrates a submission on behalf of the appellant that since there had been a miscarriage of justice the result should be a quashing of the convictions and acquittal. Lord Robertson, however, responds as follows:

"I do not agree with this result. The reason for the setting aside of the convictions is that there was a breach of section 145(1) of the Act ... The reason has nothing to do with the merits of the case ... I would set aside the convictions ... and grant warrant to bring a new prosecution ... if so desired."

14. It is interesting that Lord Robertson says all that he does in the context of an appeal which was necessarily based, as is the present appeal, on an alleged "miscarriage of justice". In our view, however, this simply serves to emphasise that that phrase, which now encapsulates the single test in both solemn and summary appeals, must on occasion be given a somewhat extended meaning. It must, for instance, now cover all the various situations which in the past, under summary procedure, were viewed in terms of incompetency and/or oppression, including those referred to above. In this connection we are of opinion that the current editors of Renton and Brown's Criminal Procedure are well-founded in suggesting, at para. 29-14: "In certain circumstances, the only proper conclusion will be that the appeal should be upheld and the conviction quashed." The text goes on to give examples of "fundamental irregularities" where, it is suggested, that should be the necessary result. These include situations where the trial court acts in excess of jurisdiction, where the diet is not properly constituted, and where the verdict is one which was not open on the indictment.
15. In our opinion a breach of what is properly described as a "peremptory" provision of the common law or statute will generally give rise to a "fundamental irregularity", with the necessary result that any ensuing conviction will fall. The breach of such a provision will often be so fundamental that it is quite simply otiose to look behind or beyond it. And, in our opinion, the breach of section 92(1) of the 1995 Act which is complained of in the present case falls into that category. We consider that Lord Hunter and Lord Robertson were correct in describing the identical provisions of section 145(1) of the 1975 Act as "peremptory". The strictness of the law of Scotland on this matter, as compared with that in England, was highlighted by Lord Rodger of Earlsferry in his speech in the recent case of R. v. Jones [2002] 2 WLR 524 at paras. 43-46. We consider, as we have said, that a breach of section 92(1) will generally lead to an appeal being allowed. Were the position otherwise, there would have to be enquiry in every case as to whether the breach in question could be said to have given rise to a miscarriage of justice in the ordinary sense of that term. In point of fact, however, such an enquiry would often be fruitless since it could seldom be established with any certainty that events would have followed a materially different course had no breach taken place. In the present case, for example, it is possible that counsel for the appellant varied his line of questioning in light of the trial judge's intervention and it simply cannot be known whether any different course would have been followed had the accused been present and in a position to tender instructions. In our view, however, this simply highlights the fundamental nature of the breach in question. The situation might be different if it could be affirmed with certainty that no prejudice to the accused could possibly have occurred. This was the way in which the court treated an adjournment in the absence of the accused in Gardiner v. H.M. Advocate (1976) S.C.C.R. Supp. 159, cf. Bennett v. H.M. Advocate 1980 S.L.T. (Notes) 73. As to whether there are other types of situation which may be treated similarly as exceptions we reserve our opinion.
16. As regards actual prejudice, we are very conscious that, as the trial judge makes clear in his Report, there were a number of quite distinct components in the jury's verdict and, while no separate argument was addressed to us on the matter, it is difficult to see how more than one of these components could have been directly affected by what took place. At the same time, it can never be known how the appellant's credibility on one part of the case may be taken to affect his credibility in relation to another part of the case. In the end, therefore, we come back to, and reiterate, the view that where, as here, there is a fundamental irregularity in procedure arising out of breach of a peremptory statutory provision, a miscarriage of justice can be said to have resulted even without the demonstration of actual or imputed prejudice. While, therefore, we agree with the Advocate depute that it is not necessary or, perhaps, appropriate, to categorise the present case as being one in which justice was not "seen" to be done, we find ourselves unable to accept his other submissions. It only remains to add, as regards the supplementary ground of appeal, that in our view counsel's implied mandate does not go the length of enabling him to waive an irregularity of the type described above.
17. For all the above reasons this appeal must be allowed.