Scottish High Court of Justiciary Decisons

Jeffrey v. Her Majesty's Advocate [2002] ScotHC 94 (16 July 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Hamilton Lord Kingarth	Appeal No: C352/99 OPINION OF THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION by stuart darren jeffrey Appellant; Against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: M. Scott, Q.C.; Thorntons

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

16 July 2002

1. In this appeal the appellant challenges his conviction in the Sheriff Court at Perth on a charge of lewd and libidinous practices and behaviour in respect of his conduct towards a seven year old girl at a house in Perth.
2. Before coming to the grounds of appeal it is convenient for me to set out a summary of the evidence which was before the jury.
3. At about 11.45 p.m. the appellant and two male friends, who had been drinking in licensed premises, arrived at the house where the complainer, who was then seven years of age, lived with her family. The appellant frequently visited the house and looked after the children, including the complainer. While these three men were having a drink with the complainer's mother, a sound was heard from upstairs which suggested that one of the children required attention. The complainer's mother requested the appellant to see what was wrong. The appellant found that the complainer was complaining of having a sore stomach.
4. The complainer gave evidence that the appellant, who had come into her bedroom, knelt on the bottom end of her bed and pulled down her pyjama shorts. He then stuck his finger in her "neenie (private parts) really hard", and it hurt her. He also put his hand over her mouth so she could not breathe. He then gave her a drink of milk. She was crying and her mother must have heard her. She was afraid. She sought out her mother and told her what had happened. She whispered to her because two of the appellant's male friends were with her mother. The complainer said that she had been friendly with the appellant before the incident. After it there was no friendship between them. When she was asked whether she would want to ask the appellant anything about the incident she said that she could not believe the appellant "did that to me and I hate him". She was seen by a police officer who asked her a number of questions. She was also seen by a doctor and gave a sample of her blood.
5. The complainer's mother gave evidence that the appellant came downstairs immediately followed by the complainer, who refused to enter the livingroom where her mother and the appellant's friends were. The complainer was clearly in a state of distress and called for her mother. She told her that the appellant had stuck his finger in her "neenie". The complainer was crying "really hard" and clinging to her leg. She then ran upstairs. The mother entered the livingroom and told the appellant to leave the house immediately. She then went upstairs, followed by the appellant who began to shout at the complainer, demanding to know what she had said and claiming that he had not touched her. No such allegation had been made at that time. The mother tried to push the appellant downstairs but at first he refused to go. Having ensured that the appellant was downstairs the mother returned to the complainer and removed her pyjama shorts. She examined the complainer's private parts and described what she took to be blood on the gusset of the garment. She saw marks and reddening at the bottom or lower end of the complainer's vagina. The skin was extremely red and looked as if it had been stretched. At the time the complainer said that her private parts were sore. After the incident the complainer had difficulty in passing water.
6. The complainer's mother took the shorts downstairs and pointed out to the appellant and his friends in the livingroom that there was blood on them. She telephoned her doctor who advised her to call for the police. The appellant continued to maintain that he had done nothing to the complainer and had not touched her. When he became aware that the arrival of the police was imminent he maintained that he wanted them to be present and take his fingerprints. At one point after the police had been summoned the appellant entered the kitchen. There was evidence that the sound of running water was then heard.
7. The appellant was seen by a police surgeon, Dr. MacPhail, who gave evidence that she had found apparent bloodstaining on nail clippings from the appellant's left hand. Examination of that staining disclosed a mixture of male and female DNA, but it was not possible to obtain any specific DNA profile. At about the time when she indicated to the appellant that she wanted to take swabs from his hands the appellant put his finger in his mouth as if to suck them. In the early afternoon of the same day, Dr. MacPhail also carried out a physical examination of the complainer but, because of her fear and discomfort, she was unable to carry out an internal examination of her vagina. Her examination of the introitus showed redness of the perineum and area of superficial surface loss, some 2 cm x 2 cm, on the right lateral wall of the vulva. The doctor gave evidence that this surface loss suggested a recent stretch by an adult fingernail. It should be added that this evidence was challenged by counsel for the appellant who relied on the evidence of Professor Busuttil who criticised the doctor's findings saying that what he found could not be put down to any specific cause, and that the most which could be said was that it was due to having been caused by friction.
8. The appellant gave evidence that he found the door to the complainer's room closed. He asked her what was troubling her and at that point the family dog, which had been in the room, tried to get out. The complainer said that her stomach and leg were sore. He asked her whether she wanted to see her mother. The dog slipped from its collar which he then was holding, and he had to make a grab for the animal to ensure that it remained in the bedroom before he returned downstairs. He went downstairs and told the complainer's mother of the difficulty. She asked him to take a paracetamol tablet to the complainer with a glass of milk. He broke the tablet in two pieces and gave both to the child along with the milk. The complainer still wanted to see her mother. He took her downstairs for that purpose. He preceded the child downstairs and entered the livingroom while she had still had to come down half a flight of steps. At that point she began to cry. It came as a shock to him when her mother asked him to leave. He did not want to do so and wanted the police to be called. He could not offer any explanation of the finding of blood in his nail, saying that it could have come from anywhere. He denied having used a tap in the house before the police arrived. He accepted that he had rubbed the complainer's stomach and thigh. He subsequently accepted that he had also touched the child's head and that he had not told the police about that. This happened on his first visit to the bedroom. The mother took him outside and told him of the complainer's allegation before asking him to leave. He initially had claimed that he had not said that he had not touched the complainer (as spoken to by the complainer's mother), but subsequently indicated that he thought that he had done but could not be sure.
9. Two of the grounds of appeal relate to a police statement of the complainer. Prior to the trial the Crown lodged two police statements attributed to the complainer. The first (Crown production 13) was taken by a police constable a few hours after the incident. It was broadly to the same effect as the evidence which the complainer gave at the trial. The second (Crown production 12) was taken by a different police constable 13 days later. In passing I would record that in the course of the hearing of the appeal the Advocate depute informed us that the procurator fiscal depute had considered that, as a matter of fairness, the defence should have a sight of both statements. The latter had been taken as a consequence of a complaint made to the police in respect of another child. There were significant differences between the allegations made by the complainer in the two statements. This raised, he said, the question of whether the latter referred to the same incident as the first. He could not confirm that the complainer was speaking about the same incident. However, he was prepared to defend the conviction on the basis that the complainer had made different allegations in regard to the same incident. The appeal proceeded on that basis.
10. I now turn to what happened at the trial. Before the complainer gave evidence the sheriff, as he narrates in his report, satisfied himself that she was competent to give evidence. During the cross-examination of the complainer counsel for the appellant asked her whether she knew the difference between right and wrong, giving stealing as an example. The complainer responded that she did not steal. When she was asked to give an example of what was right and what was wrong, she could not. Asked whether she remembered everything correctly she said that she did. When asked directly whether she was making up what she had said about the appellant, she stated, in a manner which the sheriff describes as firm and clear, that she was not, and that she was telling the truth. She added: "I don't tell lies to my Mum and I wouldn't tell lies here". She confirmed that she was sure about the evidence which she had given.
11. Counsel for the appellant put neither of the previous statements to the complainer. Thereafter, when her mother was giving evidence counsel sought to introduce the latter statement when cross-examining her, in order to show that on a previous occasion the complainer had made a statement which was inconsistent with her evidence, apparently relying on section 263(4) of the Criminal Procedure (Scotland) Act 1995. The procurator fiscal depute objected to this, on the basis that, in accordance with the decision in Paterson v. H.M. Advocate 1997 S.C.C.R. 707, the statement should have been put to the complainer herself. The sheriff sustained the objection, and it is not in dispute that he was correct to do so. Thereafter counsel for the appellant moved the sheriff, in terms of section 263(5) of the 1995 Act, to have the complainer recalled so that she could be cross-examined in regard to the statement. The sheriff refused this motion.
12. The first ground of appeal which I have to consider is that the sheriff was in error in refusing the motion. In his report the sheriff says this in regard to his reasons:

"The child, in my view, was a vulnerable person for whom the giving of evidence required her to be prepared over a period of time. I considered that her being recalled could have had a detrimental effect. I considered, further, in a matter of such apparent importance to the interests of an accused person that great care ought to be taken to ensure that all matters relevant to the evidence being given by a witness ought to be put before that witness. The statements lodged had been available to the defence from an early date and their significance clearly had been appreciated".

The sheriff goes on to state that the latter point distinguished the present case from Paterson v. H.M. Advocate in which at the time when a witness was being cross-examined the defence had not had access to what the witness had said on a previous occasion. It was in that context that the appeal court took the view that the sheriff would have been virtually bound to grant the motion for this recall of this witness.

13. For the appellant Miss Scott criticised the reasons given by the sheriff. The need to ensure that the appellant had a fair trial, which he did not appear to have considered, should have weighed heavily with him. If he considered that counsel's representation of the appellant had been defective, he should have taken that matter into account. In the light of those considerations the sheriff would have been bound to grant the motion. The prior statement was of significance since there was no other significant means of challenging the credibility of the complainer, apart from criticising her demeanour and pointing out the effect which her age had on her ability to give evidence.
14. In my view the sheriff was well entitled to distinguish the present case from that of Paterson v. H.M. Advocate. As was pointed out by the Advocate depute, the submission on behalf of the appellant ignores the fact that the decision as to whether the complainer should be recalled was within the discretion of the sheriff. It was proper, in my view, for him to take into account the age of the complainer and the fact that counsel for the appellant had deliberately not put the statement to her. In these circumstances he was entitled to take the view that it was inappropriate that the complainer should be recalled so that a further attack on her credibility could be made.
15. The second ground of appeal was that, assuming that the sheriff was not in error in refusing the motion for the recall of the complainer, the failure by counsel for the appellant to cross-examine her in regard to her previous statement in Crown production 12 amounted to defective representation, as a result of which there had been a miscarriage of justice.
16. I do not propose to examine in detail the differences between the complainer's evidence and the allegations attributed to her in Crown production 12. It is sufficient to say that in the latter she alleged that the appellant had kissed her "neenie" while her mother was in the kitchen making a cup of tea, and that he had put his hand down his trousers and touched his "willie". She had seen his "willie" which was pointing "up the way". He had said to her that if she did not "tell" he would give her £2.
17. In a letter to the Clerk of Justiciary giving his observations on this ground of appeal, counsel who represented the appellant at the trial states that he recalls that when the complainer was asked certain questions in cross-examination she did not seem to understand what was being put to her. He mentions the passage in the sheriff's report where he records that the complainer was unable to give an example of what was right and what was wrong. In that connection counsel refers to an assessment by an educational psychologist which formed part of a Record of Needs relating to the complainer which was lodged as a production for the appellant. According to that assessment she had a vocabulary age of 3 years 5 months at the second centile. Counsel's letter goes on to state that, having regard to her educational age, as compared with her actual age, and having regard to what had been said in cross-examination, he did not feel it appropriate to lay the foundation for any subsequent application under either section 260 or section 263 of the 1995 Act. In considering whether it was appropriate, he had wondered whether, given the tender age of the child, it would ever have been possible to lay such a foundation.
18. For the appellant Miss Scott submitted that the statement which had not been put to the complainer was an important one. Counsel had not suggested otherwise. It was the only "independent" means of challenging the credibility of her evidence. Miss Scott said that she did not have to go so far as to submit that there was a failure to present the appellant's defence at the trial. She accepted that the credibility of the complainer had been challenged when she was cross-examined. She did not suggest that the defence position as a whole had not been put forward. Her submission was that the material part of the defence case, which would have undermined the credibility of the complainer, was not presented. This could have had a material bearing on the credibility and reliability of a critical witness.
19. In support of her submissions Miss Scott relied on decisions of the Appeal Court in Garrow v. H.M. Advocate 2000 S.C.C.R. 772, Hemphill v. H.M. Advocate 2001 S.C.C.R. 361 and E. v. H.M. Advocate 2002 S.L.T. 715. In each of these cases it had been held that the appellant's defence had not been properly presented. In each the appellant's defence had been presented to some extent, but it was significantly weakened by the absence of independent evidence which could have been obtained in order to counter the case for the Crown. The same approach applied, she submitted, where significant material was available to those representing the appellant but was not used by them. It was important to bear in mind that in the present case counsel clearly wanted to make use of the statement. She submitted that the court should infer that counsel representing the appellant had made a mistake in regard to the law, in not recognising that he had no alternative but to put the statement to the complainer herself. Accordingly the case should not be regarded as one in which counsel acted within his discretion in not doing so. It would have been a different matter if counsel said that there had been reasons for not wanting to use the statement. She would then have had to show that the decision was not a reasonable one. However, in the present case it was not a tactical decision, but a decision which was vitiated by counsel's misunderstanding the legal position.
20. In reply the Advocate depute accepted that it would not have been difficult for counsel to have put the statement to the complainer. The Crown would not have objected to this being done where she said that she had no recollection of making the statement. However, it was clear that the fact that the statement was not put to her was due to a deliberate decision on the part of counsel. This should be regard as within the scope of his discretion. In Anderson v. H.M. Advocate 1996 JC 29 the court had emphasised that the circumstances in which an appeal could be based successfully on the decisions taken by those representing an accused person should be narrowly defined. Their observations in regard to the need for finality were also in point.
21. The Advocate depute went on to emphasise the distinction between the failure to present a defence at all and a situation in which there was criticism of the way in which a defence was presented, so long as that was not "contrary to all promptings of reason and good sense" (quoting the words of Rougier J in R v. Clinton [1993] (W.L.R. 1181 at page 1188). In the present case it was accepted by Miss Scott that the appellant's defence was presented in the cross-examination of the complainer and in the appellant's own evidence. It was put to the jury in the speech made by counsel for the appellant. The decisions referred to by Miss Scott were all examples of a failure to present the appellant's defence in that, due to the advice which had been given in regard to the preparation, there had been a failure to prepare evidence contradictory of the Crown case, with the result that at the trial counsel's hands were tied. These were therefore examples of cases in which the system had broken down.
22. The Advocate depute also emphasised that it was important to consider the significance of the previous statement attributed to the complainer in the context of the evidence as a whole. Even if it was the case that counsel for the appellant had misunderstood the law it did not follow that there had been a miscarriage of justice (Allan v. H.M. Advocate 1999 S.C.C.R. 923). The only effect of the absence of evidence in regard to the prior statement was that a further attack on the credibility of the complainer was precluded. It was likely that the use of that statement would have brought the other statement into play. This would have shown that her evidence was consistent with what she had said to a police officer on the same day as the incident. It also had to be borne in mind that the complainer's evidence was supported by what she had said de recenti after the incident and by evidence as to her actions which formed part of the res gestae. She was also supported by the fact that the appellant had admittedly been in her bedroom, and by the evidence of her mother as to the appellant denying that he had touched the complainer before this was claimed to have happened, and as to what she saw on the complainer's pyjamas and body. The medical evidence as to the appellant's behaviour, the samples taken from him and the examination of the complainer added further weight to what she had said. In these circumstances there had been no miscarriage of justice.
23. It is plainly insufficient to base an appeal against conviction on criticism of the way in which the appellant's defence at his trial was conducted. In Anderson v. H.M. Advocate the court sought to reconcile an accused's right of appeal with the independence accorded to the counsel or solicitor in representing the accused at his trial by defining the scope for appeal narrowly. Delivering the Opinion of the Court the Lord Justice General (Hope) said at page 44:

"Counsel's independence must be preserved if he is to fulfil his duty to the court and to act in the public interest upon his professional responsibility. Any erosion of this principle would be bound to lead to uncertainty, and with it, to the risk of delay and confusion in the conduct of criminal trials, which rely to a substantial extent for their fairness and efficiency on the right of counsel to exercise their own judgment to the way in which the defence is conducted.

Accordingly it cannot be asserted as an absolute rule that the conduct of the defence by the accused's counsel or his solicitor will not be a ground of appeal. But the circumstances in which it will provide a ground of appeal must be defined narrowly. The conduct must be such as to have resulted in a miscarriage of justice, otherwise section 228(2) of the 1975 Act [now section 103(3) of the 1995 Act] will not apply. It can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That can only be said to have occurred when the conduct was such that the accused's defence was not presented to the court. This may be because the accused was deprived of the opportunity to present his defence, or because his counsel or solicitor acted contrary to his instructions as to the defence which he wished to be put or because of other conduct which had the effect that, because his defence was not presented to the court, a fair trial was denied to him".

24. Thus it follows that if the accused's defence is presented to the court before which he was tried, it is not for this court to question the judgment of the counsel or solicitor by whom it was presented, even if it is inclined to think that it would have been better if he had acted differently. In that connection I note that at pages 39-40 the court in Anderson v. H.M. Advocate referred to a passage from the judgment of the Court of Appeal in R. v. Clinton which was delivered by Rougier J. The passage (at page 1188) ended with the following:

"It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel's alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict according to the terms of the subsection".

The court in Anderson continued:

"We find some assistance in Rougier J's observation [in R v. Clinton at page 1188] that it is the effect of the conduct of the trial, rather than the qualitative description which is to be applied to it, which should be examined in order to see whether there was a miscarriage of justice. Phrases such as 'flagrant incompetence' may be of some value in order to show the exceptional nature of the circumstances where it would be proper for the court to intervene. The underlying question however is whether the appellant was deprived of his right to a fair trial because of the effect of the conduct which is complained of is that his defence was not put to the court".

25. I note two points in regard to the three decisions since Anderson to which this court was referred. First, each was concerned with the conduct of counsel or solicitor in regard to preparations for the trial at which he represented the appellant. In the present appeal neither party presented an analysis which compared the considerations applying to the conduct of counsel or solicitor in the course of the trial itself (of which Anderson was an example) with those applicable to the conduct of the same counsel or solicitor in regard to preparations for the trial. It may be that in a future case this subject will require to be examined. In the meantime I have difficulty in drawing a distinction in principle between them. An assertion that the accused's defence was not presented to the court inevitably involves an examination of what took place before the trial, and in particular the information provided by, and advice given to, the accused. As is obvious, the extent to which preparation is or is not carried out affects what can be done in the course of the trial. Further, as was pointed out by the court in Anderson, the fundamental question is whether the effect of the conduct complained of was that the appellant's defence was not put to the court. Most importantly, I do not consider that there is a distinction in principle, in regard to the independence of counsel or solicitor and the exercise of his professional responsibility, between the advice which he gives with a view to the conduct of the defence and his decisions and actions during the course of the trial itself.
26. Secondly, in the three decisions it was held that the system for the representation of the appellant had broken down to such an extent that his defence was "not properly presented". I have had some concern as to whether the use of the word "properly" could be understood as a movement away from the principle which was set out, and for the reasons given, in the Opinion of the Court in Anderson. The use of such wording might be taken to imply that an appeal court would be not averse to entertaining criticisms of the way in which the appellant's defence had been presented. However, in none of these cases was the statement of principle in Anderson either doubted or expressly extended. Each of them can be explained - though with some difficulty in the case of E v. H.M. Advocate - as cases in which there was in some fundamental respect a failure to put the appellant's defence before the court and hence he was denied a fair trial. Thus in Garrow v. H.M. Advocate the consequences of the advice of counsel was that the appellant's evidence and the cross-examination of Crown witnesses lacked the support which should have been provided by a defence expert. In Hemphill v. H.M. Advocate it was observed at page 382 that

"a substantial part of the Crown case...was never made the subject of any investigation by the defence either by way of precognition of the Crown pathologists or by way of an independent pathologist".

In E. v. H.M. Advocate, while the members of the court were not in agreement on all points, they were united in holding that there had been a miscarriage of justice in respect that the defence had not obtained support for the appellant by challenging the inference which was sought to be drawn from medical evidence relating to the complainers and the evaluation of information which they had given in the course of interviews.

27. In the present case the fact that counsel for the appellant did not put the prior statement to the complainer was unfortunate. I am not prepared to go so far as to say that it must have been based on an erroneous understanding of the law. It plainly involved a risk that a statement, which was of some significance as ammunition to combat the Crown case, could not be used at a later stage of the proceedings. However, the critical question is whether, as a consequence of what happened, the appellant was denied a fair trial. For this purpose it is necessary to consider the practical effect on the appellant's position. I accept the argument presented by the Advocate depute that the appellant was faced with a number of factors which lent strong support to the complainer's evidence, either by adding to her credibility or by providing corroboration of her account. The introduction of the statement recorded in Crown production 12 would in essence have extended but not changed the nature of the challenge of her evidence which was advanced in the course of her cross-examination, the evidence given by the appellant and counsel's speech to the jury. As the Advocate depute pointed out, the significance of that statement cannot be considered in isolation, and in particular without regard to the terms of Crown production 13, the statement which the complainer gave shortly after the incident.
28. In all these circumstances I have come to the view that the omission by counsel of the introduction of the statement contained in Crown production 12 did not lead to denial of a fair trial, and that as a consequence there was no miscarriage of justice.
29. The remaining ground of appeal arises from an incident relating to members of the jury. In his report the sheriff states that after being informed of a conversation between two members of the jury (referred to as J6 and J7) in the jury room, he interviewed them in the presence of counsel for the appellant, his instructing solicitor and the procurator fiscal depute.
30. In his report the sheriff states:

"J7 told me that, while he and J6 had been sitting together in the jury room at a point where the jury had been retired - in fact, during the submission of no case to answer - that J6 had told him he had heard while in licensed premises that the appellant had a criminal record and that he had gotten away with something similar to the charge on which he was now standing trial a short time before. J7 had already begun forming an opinion on the character and conduct of J6 in the jury room and considered that either J6 was acting out a degree of bravado or that he had actually heard something. I understood this to relate to a degree of immaturity on the part of J6 perhaps in relation to his having been selected for jury service. J7 decided that he must have heard something and, feeling compromised in his role as a juror, decided then to speak to the court officer. J7 said that he was alive to the repercussions of receiving such information and went on to say that he did not honestly feel that he could have put such information to the back of his mind (sic). When asked about the apparent failure of J6 to admit to possession of such information he offered no opinion.

I was at pains to ascertain from J7 where he and J6 had been seated in the jury room. I was told they had been seated together - as they had been in the jury box - and that the conversation had taken place between them alone and while their voices were lowered. No other member of the jury had been close enough to hear.

J6 informed me that the information said to have been imparted to J7 had indeed been given by him and that that information had come into his possession a few weeks before. J6 was challenged by J7 as to whether the timescale was accurate and asked why he had not volunteered possession of such information at the opportunities afforded at the outset of the trial. The response given by J6 was not clear. It may be, however, that when uttering these words J7 was simply expressing surprise at the knowledge of his fellow juror and the length of time that had been in the possession of J6 rather than asking for a specific response. J6 told me that he had not discussed the information in his possession with anyone else on the jury apart from J7.

When I enquired of J6 as to why he had not considered his position in the light of the approach by the sheriff clerk before the trial commenced and the opportunity which I had afforded to the empanelled jurors, he indicated that he had not considered that such information as had come to light was of relevance in the trial.

J6 seemed to me to indicate that the information which he had passed on had come into his possession within 24 hours of his having imparted it to J7. He made the point as to why such a piece of information would have significance when, on being cited for jury service he would not have known he would have been balloted as a juror. He was clear in what he told me that he had not spoken of the information to any other member of the jury.

J7 also made it clear that he had not discussed the information imparted to him to anyone else. When asked if he considered the information had been further passed on by J6 he indicated that, in his opinion, it had not. There had been discussion involving all members of the jury anent the moral standards of certain unnamed witnesses in the case but that had not touched upon the appellant.

What I was concerned to ascertain as far as possible was whether the discussion between these two male jurors had been overheard by or involved other members of the jury. I did not consider it at all appropriate to embark on such an enquiry. I had administered an admonition to the entire jury at the outset that the evidence from which they were to make their findings had to be based on what they had heard in the court. J7 had obtempered the admonition which I have given to the jury at the outset that any approach to any of them should be reported to me. I considered in those circumstances that the possibility of further contamination unlikely.

I was told that there had been discussion between members of the jury touching on certain moral values of witnesses but that there had been no discussion anent the appellant.

I noted J7 to be mature in age and outlook. He struck me as intelligent and shrewd. I considered him to be entirely credible. I shared with him his assessment of J6, altogether younger and with a more superficial outlook. While I had some reservations with the account given by J6 I considered whether that may have arisen as a result of his degree of immaturity. I had some difficulty with his position that he had had the information in his possession only some 24 hours before either the trial commencing or the inquiry which I was conducting.

I considered that, on the information which I had before me that there was no reasonable basis for concluding that other members of the jury had overheard the conversation between J7 and J6 and that there had been no compromise of their functions as jurors".

31. In these circumstances the sheriff excused jurors J6 and J7 from further service in the case, and the trial was resumed before the remaining members of the jury. It may be noted that it was not in dispute that the appellant had in fact no previous convictions.
32. For the appellant Miss Scott pointed out that this incident had occurred at an advanced stage in the proceedings, namely in the course of the defence case before the appellant himself had given evidence. She had no quarrel with the procedure which the sheriff had adopted. Her concern was with the outcome of the sheriff's enquiries, in particular as to whether other members of the jury had overheard remarks made by J6 about the appellant's alleged criminal record. The question for the sheriff and for this court was whether one could be satisfied not only that there had been no actual contamination but also that there was no reasonable apprehension of such contamination. The sheriff was left with some reservations about the account given by J6, arising from which it was difficult to be satisfied that there had been no contamination. One factor which should have been taken into account was that during the course of her evidence the complainer made a reference in vague terms to an incident happening to her which seemed to relate to a time when her family lived in Blairgowrie and shortly before the family moved to Perth. Miss Scott submitted that concern in regard to what had been said by J6 was not disposed of by the sheriff in his directions to the jury. He had merely directed them that they required to reach a verdict solely on the basis of the evidence which they had heard and not on the basis of any speculation or extraneous consideration (3B) and that they should adopt a judicial approach in their deliberations, considering their verdict dispassionately, and not being swayed one way or another by any preconceived notions, or by their personal reaction to the particular type of offence with which they were concerned (7A-B). Miss Scott pointed out, under reference to the decision of the European Court of Human Rights in Gregory v. United Kingdom, (1998) 25 EHRR 577 at para. 45 that the essential question was whether in the circumstances there were sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the jury, bearing in mind that the standpoint of the accused, although important, could not be decisive. She also pointed out that, in the circumstances with which the case of Sander v. United Kingdom, (2000 8 B.H.R.C. 279) were concerned, the court considered that directions given by the judge, however clear, detailed and forceful, could not dispel the reasonable impression and fear of a lack of impartiality based on a note which indicated that one or more of the jurors held racist views.
33. The Advocate depute pointed out that the sheriff had applied the guidance given in the case of Stewart v. H.M. Advocate 1980 J.C. 103. The purpose of the sheriff's enquiry was to see whether other jurors had been contaminated. The sheriff's clear conclusion was that they had not been. In any event it should be assumed that the jury had been true to the oath which they had taken and had followed the sheriff's direction in his charge. If counsel for the appellant had been concerned about the matter, he could have asked the appellant, in the course of his evidence, to confirm, as was the case, that he had no previous convictions.
34. I agree with the submission that the fundamental question for the sheriff was whether, in the light of the information before him, there were sufficient guarantees that the jury would be impartial. He clearly satisfied himself that the conversation between J6 and J7 was not overheard by other members of the jury and that neither of them imparted the information about the appellant's alleged previous convictions to any other juror. In these circumstances, taken along with the general directions given by the sheriff, I consider that the sheriff was entitled to hold that there was sufficient to guarantee the impartiality of the remaining members of the jury. Accordingly I consider that this ground of appeal is not well-founded.
35. In these circumstances I move your Lordships that the appellant's appeal against conviction be refused.
Jeffrey v. Her Majesty's Advocate [2002] ScotHC 94 (16 July 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Hamilton Lord Kingarth	Appeal No: C352/99 OPINION OF LORD KINGARTH in APPEAL AGAINST CONVICTION by stuart darren jeffrey Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: M. Scott, Q.C.; Thorntons

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

16 July 2002

36. I have had the advantage of reading the opinion of your Lordship in the chair and agree that there is no substance to any of the three grounds of appeal advanced, and that the appeal should be refused.
37. In relation to the first and third grounds of appeal I have nothing to add. In relation to the second ground, however, my reasons differ at least to some extent from those which your Lordship has expressed.
38. Like your Lordship I am not prepared to go so far as to say that the conduct of counsel, in not putting the relevant statement to the complainer, must have been based on an erroneous understanding of the law. Indeed for my part I do not think that it can be said clearly that, in the circumstances which pertained at the time, it was necessarily unwise. It was for counsel at the time to judge the girl's ability to understand the import and meaning of questions designed to elicit and to explain what she had said on another occasion and to take account of the risks of the jury being alienated by a potentially difficult passage of cross-examination. It was also for him to take account of such risks as there may have been that the complainer - who apparently in the course of her evidence in chief had given some evidence of some other incident in Blairgowrie - might try to suggest that in the relevant statement she was speaking of conduct by the appellant on another occasion altogether. It was for counsel also, having regard to the whole evidence, to take account of the risk of bringing into play the earlier statement made to the police.
39. More significantly (and in this I do not, I think, differ from your Lordship) it cannot, in my view, be said that the failure to put the relevant statement could be described in the language expressed by the Bench of five judges in Anderson v. H.M. Advocate, in the passage at p. 44 quoted by your Lordship in the chair, as conduct which had the effect that the appellant's defence was not presented to the court. In that passage the circumstances in which the conduct of an accused's solicitor or counsel can provide a ground of appeal were, expressly, narrowly defined.

As I understand the decision a distinction falls to be drawn between decisions made as to how an accused's defence falls to be presented and a failure to present that defence, and it is only in the latter circumstance, as emphasised more than once in the passage quoted, that it can be said, in cases such as this, that an accused has been denied the right to a fair trial. As was stressed in Anderson v. H.M. Advocate it is necessary to define the test narrowly, not only to preserve the independence of counsel but also to preserve, so far as possible, the principle of finality and avoid a plethora of appeals based on assertions (all too easy to make in any case) that had the defence been presented in a different way or ways the result could have been different. As was said at page 36:

"Then there is the principle of finality. In Rondel v. Worsley at page 253D Lord Morris of Borth-y-Gest said that the attainment of finality must be the aim of any legal system. The application of this principle to criminal cases in Scotland has been described in Beattie v. H.M. Advocate at page 279G-J in regard to allegations that there was a miscarriage of justice on the ground of fresh evidence. We mention the point here because it serves as a reminder that the right to a fair trial should not be viewed as involving a right to a re-trial simply because things might have been done differently by the accused's counsel or his solicitor. There is no ground, if that is the complaint, for saying that there has been a miscarriage of justice. There can be no miscarriage of justice if the advocate conducts the case within his instructions according to his own professional judgment as to what is proper for him to do in his client's best interests. A difference of view with the advocate on matters of detail as to how the defence should be presented cannot provide the accused who has been convicted of the right to a new trial. If that was so, there would be no end to the process of putting him on trial for his offence".

40. In this case the appellant was led in evidence to explain his position that on the occasion in question he had not done any of the acts alleged in the charge. Leaving aside the medical evidence, the witnesses led by the Crown, including the complainer, were cross-examined by counsel, as he saw fit, consistently with the appellant's position, in particular it being suggested to the complainer that she had made up her account. The Crown medical evidence was challenged not only in cross-examination but by the leading of Professor Busutill. Any failure by counsel in relation to the relevant statement can, in my view, only be said to have been a failure to deploy additional material which could have been used - with uncertain prospects of success - to supplement the attack already made on the reliability and credibility of the complainer. Even if such a failure was based on an erroneous view of the law this would, in my view, fall short of meeting the narrow test expressed in Anderson v. H.M. Advocate of failure to present the defence (see, similarly, Allan v. H.M. Advocate). That is not to say that there may not be exceptional cases where the conduct of counsel or a solicitor advocate has been so flagrantly incompetent that the defence of an accused could not be said to have been presented at all, in any meaningful sense of that term. Counsel for the appellant, however, did not go so far as to suggest that that could be said in this case.
41. Instead she presented the appellant's position on the basis that since evidence material to the defence was not deployed it could be said that the defence had not been "properly" presented - all in accordance with the language used in Garrow v. H.M. Advocate, Hemphill v. H.M. Advocate and A.J.E. v. H.M. Advocate - and submitted that this could have had a material bearing on the determination of the issue by the jury. In all of these three cases the focus of the court was fundamentally upon matters concerned with the preparation of the accused's defence rather than with its presentation in court. They can, perhaps, be distinguished from the present case on that basis, which in turn makes it unnecessary and inappropriate to attempt here any detailed analysis of the reasoning employed. For my part, however, I am far from persuaded that the test described in Anderson v. H.M. Advocate was not, in these cases, widened. On the face of it, to say that a defence was not "properly" presented (and to ask - as we were invited to do in this appeal - if this could have had a material bearing on the determination of the issue by the jury) is, it appears to me, to apply a much broader test than that of the accused's defence not being presented. In the last of the three cases, for example, it is, I consider, reasonably plain that what members of the court were, in part, concerned to assess were strategic and tactical decisions taken by senior counsel as to how the defence was to be presented. If that is right, there is perhaps, it respectfully seems to me, a need for clarification, in an appropriate case concerned with alleged defective preparation, of the question of whether and if so, in what way, the test in Anderson v. H.M. Advocate falls to be applied to such cases or whether different considerations applicable to such cases could conceivably give rise to a legitimate extension of that test. Like your Lordship in the chair, however, I have, for the same reasons, difficulty in drawing distinctions in principle which could readily justify any such extension.