APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: C595/00
OPINION OF THE COURT
delivered by LORD HAMILTON
NOTE OF APPEAL AGAINST CONVICTION
HER MAJESTY'S ADVOCATE
Appellant: Shead; Balfour & Manson
Respondent: I. Armstrong, A.D.; Crown Agent
18 January 2002
"...the custody record does not prove that somebody took the accused from her cell. The Crown weren't in a position to deal with the matter in any way other than to say 'that is the record, and the record might suggest' or 'the record suggests that'. But there is no proof, and it is really all unexplained. That, however, might cause you to have some doubt about the matter".
"Now, the verdicts are guilty, not proven and not guilty, three verdicts. Now, the difference between the verdicts of not guilty and not proven...now, you may have been aware of there being some discussion about whether there should be a not proven verdict or not, because every jurisdiction doesn't have a not proven verdict. But let me try and explain the difference to you in these ways...it is not for me to tell you whether having a not proven is a good idea or not. It is really quite logical, because in any case such as this all that we see is a snapshot of the situation, all that is presented to us by the Crown...and indeed by the Defence. So that we are not all-seeing and all-knowing, and we can never know with absolute certainty whether the accused is guilty or not. The furthest you could go, on the evidence you have heard, is to say that the crime has been proved beyond reasonable doubt. And that is really what a verdict of guilt means. Logically the opposite of the verdict of guilt is the verdict of not proven, that is that the Crown has not proved the case beyond reasonable doubt. But sometimes you can go further than that in the accused's favour. If you disbelieve important Crown witnesses or you believe the defence put forward is true then your verdict might be a verdict of not
guilty. So there is the Crown case proved beyond reasonable doubt, the Crown case not proved, equals not proven; further than that, then there is not guilty.
Now, for a verdict of guilt there must be a majority of you. So that would have to be eight of you in favour of guilt. For a verdict of acquittal...now that means not proven or not guilty, there would have to be eight of you for not proven and not guilty...that is the minority of the 15 in favour of guilt. There needn't be eight for not proven or eight for not guilty, but if the combination of not provens and not guilties is eight then that is a majority for acquittal."
Immediately before that passage the sheriff had given the jury this direction -
"If there is in this case evidence which exculpates the accused...and here you have heard the accused's denial...and you believe it, you must acquit, even if that evidence stands alone. If you don't completely believe her, but you are left with a reasonable doubt, then again you must acquit. And even if you reject her evidence completely, that doesn't mean that the Crown case is established, because the burden of proof always lies on the Crown".
"It is in our view highly dangerous to...endeavour to explain what the not proven verdict is in relation to the not guilty verdict".
In each of Fay v. H.M. Advocate and MacDonald v. H.M. Advocate (1995) that advice was reiterated. That line of authority was again followed in Cussick and Rattray v. H.M. Advocate. In three of those four cases the sheriff's misdirection caused or contributed to a miscarriage of justice and a quashing of the relative convictions.
"But sometimes you can go further than that in the accused's favour. If you disbelieve important Crown witnesses or you believe the defence put forward is true then your verdict might be a verdict of not guilty. So there is the Crown case proved beyond reasonable doubt, the Crown case not proved, equals not proven; further than that, then there is not guilty".