Scottish High Court of Justiciary Decisons

Kennedy v. Her Majesty's Advocate [2003] ScotHC 21 (18 March 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord MacLean Lord Osborne	Appeal No: XC98/02 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTE OF APPEAL AGAINST CONVICTION by ROBERT KENNEDY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Shead; Balfour & Manson

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

18 March 2003

1. In this appeal against conviction the Advocate depute correctly conceded that there had been a miscarriage of justice.
2. The appellant, along with a co-accused, appeared on indictment in the Sheriff Court at Glasgow. Three charges of aggravated assault were libelled against them. At the outset the co-accused tendered pleas of guilty to the first charge and, subject to certain exceptions, the terms of the second charge; and a plea of not guilty to the third. These pleas were accepted by the procurator fiscal depute. For the purposes of the trial of the appellant who adhered to his plea of not guilty to all the charges, the sheriff acceded to the motion by the procurator fiscal depute that the name of the co-accused should be deleted from the third charge, in respect that his plea of not guilty to that charge had been accepted. His name, of course, appeared in the first and second charges. The co-accused did not give evidence.
3. During the course of his charge to the jury the sheriff not only informed them that the co-accused had pled guilty but also indicated the extent to which he had done so. Furthermore, as was pointed out by the Advocate depute, he appears to have treated the co-accused's pleas as if they represented established facts for the purposes of the trial of the appellant. He directed the jury that it was open to them to consider whether the appellant had acted in concert with the co-accused, but only to the extent that the co-accused had admitted the terms of the first and second charges. As regards the third, he informed the jury that it was only the appellant who was "involved in that charge".
4. We are in no doubt that the sheriff should not have adopted this course, which is not in accordance with proper practice. The pleas which had been tendered on behalf of the co-accused were of no relevance to the case against the appellant. Moreover, there was a clear risk that it was prejudicial to the appellant for the jury to be informed about them. For example, they might have tended to detract from the jury's consideration of the appellant's defence of self-defence. There was a risk that the pleas might incriminate the appellant. At one point of his charge the sheriff invited the jury to consider, in relation to the first and second charges, to what extent the appellant "was involved in the plan" with the co-accused, and consider the evidence relating to the appellant "both as indicating to what extent he was prepared to go along with an assault and what the extent of his intended agreement was". The co-accused's plea of not guilty to the third charge might itself have been regarded by the jury as tending to inculpate the appellant, since it appears that, according to the evidence, only two persons were involved with complainers to whom the charges related. We also note that the line which was taken by the sheriff had the unfortunate result that the jury were only permitted to consider whether the appellant had been acting in concert with a co-accused to the extent that the latter had admitted his guilt.
5. In these circumstances we are satisfied that the appeal against conviction should be allowed.