Scottish High Court of Justiciary Decisons

Haney & Ors v. Her Majesty's Advocate [2003] ScotHC 22 (06 February 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord MacLean Lord McCluskey	Appeal Nos: XC78/03, XC79/03, XC80/03, XC81/03 and XC82/03 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEALS by (1) ROSEANN McGOWAN HANEY (2) DIANE MARIE HANEY (3) MARGARET THERESA DUNCAN YOUNG or HANEY or McMENAMIN (4) JOHN FLEMING HANEY and (5) HUGH DUNCAN FERGUSON YOUNG HANEY Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

For the appellants: Pollock, solicitor advocate; Ogg, solicitor advocate (for first appellant):

Jackson QC; Blessing (for second appellant)

Donaldson (for third appellant)

McSherry, solicitor advocate; Wallace, solicitor advocate (for fourth appellant)

Allan, Divers (for fifth appellant)

For the Crown: Di Rollo QC, AD; Crown Agent

 

6 February 2003

Introduction

1. The appellants have been indicted for trial in the High Court. All five are charged with having contravened section 4(3)(b) of the Misuse of Drugs Act 1971. The third and fourth appellants are also charged with reset.
2. The first appellant is the third appellant's niece. The second appellant is one of her daughters. The fourth appellant is her former husband. The fifth appellant is one of her sons.
3. Each appellant has lodged a plea in bar of trial on the ground of oppression. The plea is to the effect that a series of newspaper reports has been so prejudicial to the appellants that it would not be possible for them to have a fair trial on this indictment. On 22 January 2003 at a preliminary diet at Glasgow High Court, Lord Bracadale repelled the pleas.

The newspaper reports

4. The reports complained of were published between December 2000 and November 2002 in the Daily Record, the Sunday Mail and the Sun. They are productions (A) to (M). It seems to be agreed that the reports that are material to the plea have been published in the Daily Record.
5. According to newspaper reports, the Haney family have acquired a certain reputation in recent years for their relationships with their neighbours. A sheriff is said in 1995 to have called them "the family from hell." That description has since been used repeatedly in the media. A constant theme in the reports produced is the notoriety of the family and the criminality of its members. The third appellant is the matriarch of the family and clearly the best-known. She has been the subject of particular media attention. She is commonly referred to as "Big Mags" and also, less flatteringly, as "hell's granny." The family formerly lived on the Raploch housing estate in Stirling. When they lived there, the third appellant conducted a campaign against the housing of paedophiles in that neighbourhood.
6. Since about 2000, the Daily Record has conducted a campaign against drug dealers. In December 2000 that campaign impinged on the Haney family. On 1 December 2000 the Daily Record, on its front page and on four inside pages, reported that, despite having styled herself as a protector of children, the third appellant was a heroin dealer and that she was dealing from her address at Lower Bridge Street, Stirling. That was the address at which the family had been re-housed after being evicted from Raploch. This report is production (A). The front page headline is "DEALER NUMBER ONE - 'Kids crusader' Mags is first to be exposed in Daily Record drugs campaign." The report refers to the "criminal Haney family" and to the fact that most of the family have convictions for theft and drugs offences. It mentions that the third appellant has 'notched up' convictions for assault; that seven of her children have been involved in shoplifting and intimidating neighbours; that her youngest son, Joseph, was jailed for heroin dealing outside her house; that earlier that year her daughter Valerie was jailed for dealing in heroin in the same street, having served an earlier sentence for dealing; that in 1998 her granddaughter was jailed for trying to rob a shop while on probation; and that the rest of the family have committed a catalogue of offences. Photographs of the third appellant are printed on the first and fifth pages. The photograph on page 5 shows her seated on a chair. It is printed under the headline "MAGS' DRUG THRONE."
7. On 15 March 2001 the Daily Record reported that a daughter of the third appellant, Stella, had been jailed for a drugs offence (production (B)). The report refers to her as having been jailed for "taking up her mother's sick trade." It recalls the appellant's earlier exposure by the newspaper as a heroin dealer and refers inter alia to the fact that "their stealing and drug dealing led the Haneys to be hounded from the Raploch estate by neighbours."
8. On 8 June 2001 several of the family were arrested on drugs charges. On 9 June 2001, the Daily Record carried a report on the front page and on two inside pages under the headline "BIG MAGS NICKED." (production (D)). The report refers to the appellant as having been led away in handcuffs after 60 drug squad officers had raided her home at Lower Bridge Street, which is a locus libelled on the first charge in the indictment, using a battering ram. It reports that she shook her fist and screamed obscenities as she was taken out of "Hotel Haney" to the cheers of neighbours. This report gives further information about various family members, including the first, fourth and fifth appellants, who were arrested at the same time.
9. On 12 June 2001 the Daily Record carried a report of the appearance in court, on charges of dealing in heroin, of the third appellant and six members of her family, these being the first, second and fourth appellants, the third appellant's granddaughter Lynette McGowan, her niece Mary Haney, and her daughter-in-law Ann Morrison (production (F)).
10. On 14 June 2001, under the headline "CHECK OUT TIME AT HANEY HOTEL It's eviction for Big Mags," the Daily Record reported the eviction of the family from Lower Bridge Street (production G). It recalled that the Haneys had been hounded out of Raploch by neighbours two years earlier because of their anti-social behaviour and moved into the homeless accommodation at Lower Bridge Street. The report contained further references to drug dealing.
11. Further unfavourable articles and reports appeared in the Daily Record and Sunday Mail in June and August 2001.
12. On 5 August 2002, however, the Daily Record published the report on which the appellant's pleas are mainly founded. It is production (L). The report appears under the headline "EVERYONE'S A CASH WINNER." It describes how a sum of about £500,000 raised by the newspaper is to be distributed to community groups throughout Scotland as part of its campaign against drugs. However, the report also refers to the newspaper's campaign of naming and shaming drug dealers and reproduces three front pages that it published in the course of the campaign. The first of these is the front page of 1 December 2000, with the "DEALER NUMBER ONE" headline, which we have described. Underneath the photograph of that front page there is the caption "December 1 2000: We expose Mags Haney as a drug dealer as our crusade gets under way."
13. On 12 November 2002 the Daily Record published an article the substance of which related to a forthcoming documentary series on BBC1 Scotland about the Raploch estate which would emphasise the positive features of the neighbourhood. It is production (M). Notwithstanding the subject matter of the article, the introduction referred to Raploch as " ... the grim Scots council estate where notorious Mags Haney, Scotland's worst neighbour from hell, once ruled the roost ... The mum-of-eight racked up a conviction for assault, but her kids appeared in court for crimes ranging from housebreaking to rioting ... " The report also contained a prominent photograph of the third appellant.

The pleas in bar of trial

14. At the preliminary diet it was submitted on behalf of the appellants that it was probable that any jury empanelled in a trial on the indictment would include jurors who had read some or all of these reports and that the effect of the reports, in their references to the character of the third appellant and her family and in particular the references to previous convictions, together with the publication of photographs of the third appellant, made it impossible for any of them to receive a fair trial.

The decision appealed against

15. Lord Bracadale accepted the submission that it was likely that several jurors in any jury empanelled in this case would have read the articles. Nonetheless, he repelled the pleas in bar for the following reasons, which he has set out in his Report:

"It is now over 2 years since the main article in item (A) [sc. The Daily Record report of 1 December 2000] was published and over 5 months since the front page of that article was reprinted as part of a more extensive and general article. At the time of the sitting it was 2 months and 10 days since the references to previous convictions had been published. I was satisfied that having regard to the nature of the prejudicial material in each article, the lapse of time between the date of publication and the present trial diet was sufficient for public recollection of details of the publicity to have diminished.

Our system relied on a high degree of trust being extended to juries to apply the law as stated to them and consider the case strictly on the evidence led at the trial. In addition, the trial process itself, including the examination and cross examination of witnesses, submissions by counsel and the directions of the trial judge, tends to focus the minds of the jury on the evidence led before them and away from extraneous material.

Accordingly I considered that any residual risk of prejudice to the prospects of fair trial for the minuters could reasonably be expected to be removed by suitable directions."

The submissions for the appellant

16. The appellants have presented their pleas in bar of trial on the basis of the common law principle of oppression. They do not rely upon article 6 of the European Convention on Human Rights.
17. Counsel for the third appellant renewed the submission that he made before Lord Bracadale. He relied on the constancy of the publicity and its hostile tone. The reports constantly referred back to the original report and to the criminal record of the third appellant. Only 104 days would have elapsed between the last report and the date of the trial. That was shorter than the corresponding period in Stuurman v HM Adv (1980 JC 111) or in Beggs v HM Adv (2001 SCCR 836) in which a similar plea had been rejected. No direction by the trial judge could adequately counteract the prejudicial effect of these reports.
18. The counsel and solicitor advocates for the other appellants adopted these submissions with the qualification that in their cases membership of the Haney family associated each of them with the prejudicial effect of the articles, even where they were not named individually.
19. The advocate depute submitted that the court should have confidence in the jury system. Most of the publicity complained of had occurred before the publication of productions (L) and (M). The court did not have a true impression of the effect of the reports, because it was reading them all together. They had been published at intervals over about two years. They did not mention any of the evidence to be led in the trial. It was not suggested that they would influence any of the witnesses. The trial would take place several months after the publication of the last report (cf. X v Sweeney, 1982 JC 70, Lord Avonside at p. 92). With suitable directions, the jury could be relied on to reach an unprejudiced verdict. Lord Bracadale had reached the right decision, and for the right reasons.

Decision

20. It is agreed in this case that the test to be applied is that which was laid down in Stuurman v HM Adv (supra) namely, whether the risk of prejudice to the accused is so grave that no direction of the trial judge, however careful, could reasonably be expected to remove it (supra, at p. 122). In the application of that test, there are three guidelines. First, the power of the High Court to intervene to prevent the Lord Advocate proceeding upon a particular indictment is to be exercised only in special circumstances that are likely to be rare. Second, the special circumstances must be such as to satisfy the court that, having regard to the principles of substantial justice and of fair trial, to require an accused to face trial would be oppressive. Third, each case in which a plea of oppression in bar of trial is taken will be decided on its own merits (ibid.). The test laid down in Stuurman has been applied in Beggs v HM Adv (supra) and in Montgomery v HM Adv (2000 SCCR 1044, Lord Hope of Craighead at 1101).
21. We are surprised that the Lord Advocate did not take proceedings against the newspaper for contempt of court in respect of reports (L) and (M). These were published when the appellants had already been indicted and were under the protection of the court. The references to the third appellant's previous criminal record and the publication of photographs of her clearly constituted contempt. The advocate depute did not dispute this. In our view, the Crown has responsibilities to ensure that the system of criminal justice is not prejudiced by reporting of this kind.
22. The question in this appeal is whether these reports, individually or collectively, are in the circumstances so prejudicial as to put these cases beyond the reach of the recognised safeguards to which we have referred. In other words, the question is whether this is the rare case (Stuurman v HM Adv, supra) or, as Lord Coulsfield called it, the extreme case (Beggs v HM Adv, supra) in which special circumstances are established for the court's intervention to prevent the Lord Advocate from proceeding upon an indictment. That question falls to be decided by reference to three familiar considerations; namely, the length of time that has passed between the publicity complained of and the commencement of the trial; the discipline of the trial process itself which requires the jury, having taken their oath, to judge the case solely on the evidence before them; and the obligation of the trial judge, by the giving of suitable directions, to require the jury to disregard any extraneous material relating to the accused that may have come to their notice (cf. Att Gen v MGN Ltd, Schiemann LJ at para [10]).
23. In taking these considerations into account, we bear in mind the repeated affirmations by this and other superior courts that jurors may be relied upon to act in accordance with their oath and with the directions of the trial judge and to decide the case solely on the evidence that they have heard. We would expect that, when the trial begins, the jury's attention will be focused on the evidence and on their own assessments of the witnesses. In our view, the prejudicial quality of the reports complained of, if it remains of any strength by then, will be sufficiently counteracted by strong and suitable directions from the trial judge.
24. We are fortified in this view by the fact that when this trial begins, a period of nearly seven months will have elapsed since the publication of production (L), which we consider to be the more prejudicial of the last two published reports. The court has always recognised that the passage of time deadens the impact of such material (Stuurman, supra; Beggs, supra).
25. Furthermore, there is a special feature in this case that in our view has a material bearing on our decision. The reports complained of, namely those published after 8 June 2001, are not the sole cause of the prejudice that the appellants apprehend. The publicity that has given rise to the notoriety of the Haney family predates the first of these articles by a matter of years. In this respect, this case may be contrasted with Stuurman and Beggs in both of which the newspaper reports complained of brought the accused to the notice of the public for the first time. To a great extent the articles complained of merely rehearse matters that have been extensively canvassed throughout the media over a long period of time. The background effect of that publicity is, in our view, as strong as that of the individual reports which we have had to consider in this case. That background effect could not, on any view, be regarded as a relevant consideration in the determination of these appeals.
26. For these reasons, we consider that the cases for the appellants do not meet the exacting standard that must be met before the court can halt these proceedings. We shall therefore refuse the appeals.