Scottish High Court of Justiciary Decisons

You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Fraser v. Her Majesty's Advocate [2003] ScotHC 57 (05 November 2003)
URL: http://www.bailii.org/scot/cases/ScotHC/2003/57.html
Cite as: [2003] ScotHC 57

[New search] [Help]

Fraser v. Her Majesty's Advocate [2003] ScotHC 57 (05 November 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Kirkwood

Lord Bonomy

Appeal No: XC400/02

OPINION OF THE COURT

delivered by THE LORD JUSTICE CLERK

APPEAL

JAMES EDWARD SCOTT FRASER

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Burns, QC, Hood; Gilfedder & McInnes

Respondent: Mulholland, solicitor advocate, AD; Crown Agent

5 November 2003

[1] The appellant was indicted at Inverness Sheriff Court on 15 charges. Charges (1) to (8) related to offences alleged to have been committed by the appellant in his capacity as a serving police constable. They included charges of assault and of an attempt to pervert the course of justice. These charges related to the period between 5 May 1996 and 30 July 1997. Charges (9) to (13) arose from a separate chapter of events. They related to a series of contraventions of the Road Traffic Act 1988 involving a car registered number H575 USS, all of them allegedly committed on 12 April 1999. Charge (14) was one of attempted fraud involving a false insurance claim in respect of the same car. It set out the detailed allegations under three specific heads. Charge (15) was one of an attempt to pervert the course of justice by means of a scheme to avoid detection, prosecution and conviction on the matters alleged in charges (9) to (13). It set out the detailed allegations under four specific heads.

[2] On 16 August 1999 the case came to trial. When the clerk of court called the diet, counsel for the defence intimated pleas of guilty to charges (9), (10) and (14) as libelled and to charge (15) under deletion of head (iii), and pleas of not guilty to the other charges. The procurator fiscal accepted the pleas of guilty and the pleas of not guilty to charges (11), (12) and (13) only. These pleas were formally signed and recorded. All of this took place in the presence of the unempanelled jurors.

[3] We have read the transcript. It is clear that counsel for the defence, the procurator fiscal and the sheriff chose their words carefully and referred to the charges by number only. Any unempanelled juror who was listening to the proceedings, however carefully, would have had no idea as to the subject-matter of the charges to which the pleas of guilty referred.

[4] The case then proceeded to trial on charges (1) to (8). After the jurors were empanelled and sworn, these charges, and only these charges, were read to them and shown on the copy indictments given to them.

[5] In the course of the trial, the procurator fiscal withdrew charges (4) and (7). In the course of his charge, the sheriff directed the jury that they should decide the case only on the evidence that they had heard. He also reminded them of their oath to give a true verdict according to the evidence. On the six remaining charges, the jury acquitted by a majority on charge (1) and unanimously on charges (2) and (3), and convicted on charges (5), (6) and (8), by a majority in each case.

[6] Senior counsel for the appellant submitted that the jurors may have been adversely influenced by having been present when the pleas of guilty were tendered and recorded; that this was tantamount to a disclosure to them of previous convictions; that that procedure raised a doubt about the jury's impartiality; and that therefore there had been a miscarriage of justice. In Walsh v HM Adv (1961 JC 51), which was decided on a different point, the court had heard a submission that to allow a plea of guilty tendered to one charge before the jury was empanelled to be placed before that jury was equivalent to laying a previous conviction before it. Lord Justice Clerk Thomson in that case had reserved his opinion on the point.

[7] The advocate depute submitted that the tendering of the pleas in this case was not in substance a disclosure to the jury of previous convictions. Section 101(1) of the Criminal Procedure (Scotland) Act 1995, which prevented such disclosure, did not apply because at that stage no jury had been empanelled (James White, (1901) 3 Adam 479). Even if what happened could be treated as tantamount to such a disclosure, the question remained whether there had been a miscarriage of justice (McCuaig v HM Adv. (1982 SCCR 125). The jury knew nothing of the matters to which the pleas of guilty related; the sheriff had clearly directed them to decide the case on the evidence alone; they had taken an oath and had been reminded of that by the sheriff in his charge; and they had returned a discerning verdict. These were "sufficient guarantees" of objective impartiality such as were desiderated in Pullar v United Kingdom (1996 SCCR 755, at p. 761, para. [30]). Furthermore, counsel for the defence had not objected before or during the trial to the procedure now complained of.

[8] In our opinion, in the particular circumstances of this case there was no miscarriage of justice. The jurors, we assume, knew that the accused had pled guilty to certain charges; but it is apparent that none of them knew what those charges were. In this respect the case is distinguishable from Walsh v HM Adv (supra) where, among other procedural irregularities, the charge to which the accused had pled guilty before the jury was empanelled was read over to the jury at the start of the trial. In this case, the tendering of the pleas when the case called, rather than in the course of the trial, gave the appellant the advantage that the subject matter of the charges to which he pled guilty did not come to the notice of the jury.

[9] In this case, in our view, the jurors' sole concern was with the charges remitted to them. They were properly directed to decide the case solely on the evidence and in accordance with their oath. We cannot see why anyone observing these proceedings could reasonably have entertained any doubt as to the impartiality of the jurors who tried the case.

[10] In any event, the procedure complained of was concurred in by counsel for the defence; and after the trial began counsel did not object to the empanelling of the jury on the ground of any supposed unfairness. In those circumstances, in our view, the objection is not now open to the appellant.

[11] For these reasons, we shall refuse the appeal.

[12] The practice of taking pleas of guilty in the presence of unempanelled jurors is one of long-standing. This is the first occasion, so far as we are aware, in which the present objection has been taken. We think that up till now judges, sheriffs and practitioners have simply taken the practice for granted. Now that we have had occasion to consider it, we have considerable misgivings. In this case the pleas were dealt with by capable and experienced practitioners who chose their words with discretion. But there could be cases like this where careless words could give prejudicial information to the unempanelled jurors; for example, if the terms of the plea were discussed in detail or if a charge to which the accused was pleading was read over in open court. Even greater difficulties may be caused where a plea of guilty tendered in such circumstances is refused by the Crown. The present practice carries a risk of such mishaps. In any event, it is undesirable that prospective jurors should know that the accused has admitted his guilt of other unspecified offences. There is no need for such risks to be taken where there are the means at hand to avoid them. While we realise that there may be practical and administrative difficulties, we consider that proper practice requires that whenever a plea of guilty is to be tendered to part of an indictment and accepted by the Crown, the proceedings associated with that plea should take place outwith the presence of the unempanelled jurors.