Scottish High Court of Justiciary Decisons

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Cite as: 2002 GWD 3-97, [2002] ScotHC 342, 2002 SCCR 131

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JISCBAILII_CASE_CRIME_SCOTLAND Sweeney v Her Majesty's Advocate [2002] ScotHC 342 (18 January 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Hamilton

Lord McEwan

Lord Caplan

Appeal No: C595/00

OPINION OF THE COURT

delivered by LORD HAMILTON

NOTE OF APPEAL AGAINST CONVICTION

ALISON SWEENEY

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Balfour & Manson

Respondent: I. Armstrong, A.D.; Crown Agent

18 January 2002

The appellant was convicted after trial in the Sheriff Court of two contraventions of the Misuse of Drugs Act 1971. The first (on which she was convicted unanimously) was of a contravention of section 23(4)(a) of the Act. The second (on which she was convicted by a majority) was of a contravention of section 4(3)(b) of the Act, the libel being that she was concerned between 18 June and 18 September 1998 at an address in Glasgow in the supplying of diamorphine. She was sentenced to probation for a period of two years. She appeals to this court only against her conviction on the second charge.

The evidence on which the Crown sought to rely for the purposes of that charge fell into two chapters - first, evidence of police officers of what was found within and in the vicinity of the appellant's flat following their entry into it on 18 September in furtherance of a search warrant and, second, evidence of certain apparent admissions made by the appellant when interviewed by police officers under tape-recorded conditions later that day. When evidence was sought to be led by the Crown on the second chapter the solicitor appearing for the appellant objected to its admissibility. On a defence motion the sheriff held a "trial within a trial" (as envisaged in Thompson v. Crowe 2000 JC 173) in the course of which she heard, in the absence of the jury, evidence from various witnesses including the appellant herself. The bases of the objection taken were, first, that the appellant, having consumed drugs earlier that day, was not fit to be interviewed and, second, that, while suffering from heroin withdrawal, she had been induced by a promise of release from custody that evening to make the admissions. Having heard evidence bearing on those matters the sheriff ruled that the statement made at interview was freely and voluntarily made and should be admitted before the jury. A ground of appeal directed against that determination was contained in the appellant's grounds of appeal but that ground (ground 1) was not insisted in before us.

The remaining ground of appeal, which itself fell under several sub-heads, concerned the directions given by the sheriff to the jury in her charge. Certain of these sub-heads (ground 2(i), (ii) and (vi)) were not insisted in before us and nothing further need be said about them. The sub-heads which were insisted in by Mr. Shead on the appellant's behalf were presented within two groups, first, directions relating to the evidence concerning the fairness of the interview in the course of which the admissions were made (sub-heads (iii), (iv), (v) and (vii)) and, second, directions concerning the verdicts available for the jury's consideration (sub-heads (viii), (ix) and (x)).

Mr. Shead emphasised at the outset of his submissions that there were two elements to the appellant's evidence before the jury as to the statement she had made at interview. While she had admittedly then made a purported confession (namely, that she had got heroin and had shared that from time to time with friends and had sometimes got money for some of it - her tape-recorded words to that effect having been played to the jury), that statement was, according to her, (1) made only because of the inducement offered to her and (2) in fact untrue.

On the arrival of the police at her flat at about 2 p.m. the appellant, as part of her obstructive activities, swallowed certain drugs which, at that stage, the police believed to be heroin but which may also have included two ecstasy tablets. According to the appellant she had also consumed about a quarter gram of heroin about noon the same day. The police took her to hospital where the doctor consulted found her to be fit to be detained. She was then taken to the police office where she arrived at about 4 p.m. The interview during which she made the purported confession commenced at 8.22 p.m. As earlier stated, an issue before the jury was the appellant's fitness then to be interviewed. To that matter her state while detained in the period prior to that interview was potentially relevant. The jury heard evidence bearing on that issue from the appellant herself and from Inspector Hamilton, the duty officer. In directing the jury on this aspect of the case the sheriff, it appears, may have been in error in suggesting that the jurors had heard "evidence about the custody record from a number of witnesses". While a larger number of witnesses, including a civilian turnkey, spoke during the trial within a trial to the appellant's state in custody prior to the interview, the only police witness who spoke to that matter before the jury was Inspector Hamilton (who was led by the defence). However, the sheriff had on more than one occasion in her charge emphasised to the jury that it was their recollection of the evidence which was important. The substance of Inspector Hamilton's evidence before the jury was that the appellant had been regularly checked while in custody and had been noted as being sober and awake; he also testified that there was a code on the custody record which denoted whether the detainee was under the influence of alcohol or drugs and that no such state had been noted on the record. The jury also heard other evidence from police officers as to the appellant's state during the interview. The tape recording of that interview was played in their presence, thus allowing them to form their own impression as to the appellant's state from her manner of verbal articulation. The substance of the relevant issue was, in our view, fairly put by the sheriff to the jury and any minor error in the narration of the evidence they had heard was not material.

A related issue before the jury was whether the appellant had been induced to make a false confession. The appellant gave evidence that she had been so induced by P.C. Stephen, one of the officers who subsequently questioned her at interview. Her evidence as to when that inducement was offered and in what circumstances was vague. P.C. Stephen denied making any such inducement. The custody record included an entry to the effect that the appellant had been removed from her cell for some time shortly after 4 p.m. The record did not identify by whom she had been so removed. The person who had made that entry in the record did not give evidence before the jury. P.C. Stephen denied that he had removed the appellant from her cell at any time until immediately prior to the interview at 8.22 p.m. The other officer present at that interview made a like denial. In charging the jury on this aspect the sheriff said:

"...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".

Mr. Shead submitted that this direction was misleading. The entry was an important adminicle in support of the appellant's evidence that she had, while in custody, been interviewed by a police officer prior to the tape-recorded interview. For the sheriff simply to describe the record as "unexplained" did not fairly represent its significance as casting real doubt on the veracity of the police evidence.

We are not persuaded that this passage in the sheriff's charge was unfairly prejudicial to the appellant. On a fair reading the final sentence of that passage, while possibly open to more than one construction, does draw to the jury's attention that the unexplained character of the entry in the record might raise with them a doubt about the matter of inducement. The jury had already been directed that if they accepted the accused's account of having been induced to make the statement they should "exclude" it from their consideration. They had also been directed that the burden of proof rested firmly on the Crown, that the standard of that proof was beyond reasonable doubt and that the fair obtaining and the truth of the confession were essential to the Crown case.

In our view the criticisms falling within the first group, whether taken individually or cumulatively, are not such as to give rise to a miscarriage of justice.

The second group concerns the sheriff's directions as to the verdicts available to them. She said this -

"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".

Mr. Shead submitted that, taken as a whole, the sheriff's directions to the jury in this chapter were confusing and confused, both as to the verdicts available to them and as to a verdict by a majority. The passage on verdicts was itself confusing and rendered the more so when it was immediately preceded by the passage referring to evidence of exculpation, it being necessary to bear in mind that the appellant's position at the trial had been not only that she had been induced to make the statement which she had made but that the confession was false. Of particular concern was the sheriff's approach to the verdict of not guilty. Mr. Shead cited Macdonald v. H.M. Advocate 1989 S.C.C.R. 29, Cussick and Rattray v. H.M. Advocate 2001 S.C.C.R. 683, Fay v. H.M. Advocate 1989 S.C.C.R. 373 and MacDonald v. H.M. Advocate 1995 S.C.C.R. 663. Reference was also made in the course of the discussion to McNicol v. H.M. Advocate 1964 J.C. 25.

The advocate depute acknowledged that in giving her directions on the available verdicts the sheriff had gone further than she need have gone. He did not, however, concede that there had been a misdirection and submitted that in any event there had been no miscarriage of justice. The circumstances of Cussick and Rattray v. H.M. Advocate were in important respects different from those in the present case. The circumstances in Fay v. H.M. Advocate, in which the appeal had been refused, were much closer to the present case.

We consider first the sheriff's direction concerning majority verdicts. There is no doubt but that the sheriff in dealing with this matter went further than she need have done. The jury required to be directed that, if returning a verdict of guilty by a majority, there must be at least eight of their number in favour of that verdict. A jury does not require, at least in the first instance, to be given a direction in relation to any majority for any other verdict. To attempt to do so may simply lead to confusion. In the present case, on the assumption that all fifteen jurors cast their votes, the sheriff's further direction can be regarded as merely a logical corollary to what she had said about the need for eight to be in favour of a guilty verdict. The majority guilty verdict in the event returned imports that at least eight were in favour of that verdict. We are not satisfied that the unnecessary elaboration resulted in this case in a miscarriage of justice.

Of more concern to us has been the sheriff's treatment of the verdicts available to the jury. This court has repeatedly made observations on the dangers attendant on exercises such as that attempted by the sheriff in this case. In Macdonald v. H.M. Advocate (reported in 1989) Lord Dunpark, giving the judgment of the court, said -

"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.

One of the dangers inherent in disregarding this court's advice on the matter is that there is a risk that the directions given may leave the jury with the impression that there is some restriction on the circumstances in which they can return either of the verdicts of acquittal (MacDonald v. H.M. Advocate (1995), at p. 670D). In McNicol v. H.M. Advocate (an extreme example) all three choices were, as a result of the misdirection, not freely available to the jury. In Macdonald v. H.M. Advocate (1989) an argument that the jury had been strongly discouraged from using the not guilty verdict was successful. In Cussick and Rattray v. H.M. Advocate much appears to have turned on the particular circumstances - including, importantly, in a case where there was an unsatisfactory direction on concert, a risk that the jury might have linked the directions given to them on not guilty solely to the special exculpatory defences of self-defence and incrimination.

In the present case, although "exculpates" is used in the earlier passage quoted, no question arises of that word being in this case referable to any special defence. It relates simply to the appellant's evidence that she did not do the things alleged against her in the charge. The observation was also linked with clear directions about reasonable doubt and about the burden of proof always lying on the Crown. The sheriff then went on to emphasise that a verdict of guilty meant proof of the crime beyond reasonable doubt. Having stated that logically the opposite of such a verdict was a verdict of not proven, she went on to make the observations -

"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".

While these observations are certainly open to the argument that a restriction was put on the circumstances in which a not guilty verdict was open to the jury (and ought not to have been made), we are not persuaded that a miscarriage of justice resulted. The circumstances of the present case are not dissimilar to those in Fay v. H.M. Advocate, where the court held that the sheriff had given a perfectly proper direction regarding the circumstances in which they would be entitled to bring in a verdict of guilty and where the directions about not guilty and not proven might be fairly read together as giving an adequate direction relative to acquittal.

In McNicol v. H.M. Advocate the court explained, in terms of some subtlety, the advantages of the Scottish system of three verdicts. Some of the words there used are echoed in the sheriff's exposition in this case. But in Macdonald v. H.M. Advocate (1989) this court observed that a particular passage from McNicol v. H.M. Advocate, on which the sheriff in that case had based his charge, was inappropriate as a direction to the jury. Unless and until this court in an appropriate case reviews the matter (or there is some legislative change) sheriffs ought in their charges to follow the advice issued from this court repeatedly over more than a decade. With the possible exception of Larkin v. H.M. Advocate 1993 S.C.C.R. 715 that advice has been consistent. Exceptional circumstances may warrant a different course.

In the whole circumstances the appeal is refused.