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Cite as: [2004] ScotHC 61

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Gonshaw v. Procurator Fiscal [2004] ScotHC 61 (12 October 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Osborne

Lord Macfadyen

Appeal No: XJ278/02

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEAL

STATED CASE

in causa

MATHEW GONSHAW

Appellant;

against

PROCURATOR FISCAL, Lochmaddy

Respondent:

_______

Appellant: Wheatley, Solicitor Advocate; Gilfedder McInnes

Respondent: Mulholland, Solicitor Advocate, A.D.; Crown Agent

12 October 2004

[1] The appellant has appealed against his conviction in the Sheriff Court at Lochmaddy of a charge of contravening section 1(5)(a) of the Wildlife and Countryside Act 1981. According to that charge, he intentionally disturbed a golden eagle whilst it was building a nest or in, on, or near a nest containing eggs or young.

[2] During the Crown case evidence was given by a witness who identified the appellant as a man whom he had seen near the nest of a golden eagle on Ben Mhor in South Uist and to whom he had spoken. At the close of the Crown case the solicitor for the appellant submitted to the Sheriff that there was no case to answer in regard to the charge. One of the grounds on which that submission was based was that that was insufficient evidence to identify the appellant. The sheriff rejected that submission. Thereafter the appellant gave evidence in his own defence. In his examination in chief he denied that he had tried to get up to the nest, but stated that he was the person to whom the witness had spoken.

[3] The first question raised by this appeal is whether the sheriff was entitled to repel the submission of no case to answer in regard to the identification of the appellant. On 25 June 2004 this court, by a majority, answered that question in the negative. We refer to the opinions which were delivered by the members of the court on that occasion. The remaining question is whether, in these circumstances, the sheriff was entitled to convict the appellant of the charge. This depends on whether there was a miscarriage of justice for the purposes of section 175(5) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act).

[4] Section 160 of the 1995 Act states:

"(1) Immediately after the close of the evidence for the prosecution, the accused may intimate to the court his desire to make a submission that he has no case to answer both-

(a) on an offence charged in the complaint; and

(b) on any other offence of which he could be convicted under the

complaint were the offence charged the only offence so charged.

(2) If, after hearing both parties, the judge is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of which the submission has been made or of such other offence as is mentioned, in relation to that offence, in paragraph (b) of subsection (1) above, he shall acquit him of the offence charged in respect of which the submission has been made and the trial shall proceed only in respect of any other offence charged in the complaint.

(3) If, after hearing both parties, the judge is not satisfied as is mentioned in subsection (2) above, he shall reject the submission and the trial shall proceed, with the accused entitled to give evidence and call witnesses, as if such submission had not been made".

[5] The submission of Mr Wheatley, as solicitor advocate for the appellant, was simple and short: where the evidence led by the prosecution was insufficient in law to justify the accused being convicted of the charge, the accused had a right to be acquitted. Where a judge had wrongly rejected the submission, the conviction of the accused must be a miscarriage of justice. The accused should never be prejudiced where the submission had been wrongly rejected.

[6] In reply the Advocate depute set out what he referred to as his overarching submission. It is convenient to quote its terms, which were as follows:

"The wrongful rejection of a no case to answer submission does not per se amount to a miscarriage of justice. The test of miscarriage of justice requires the court to look at the conviction as a whole. An erroneous ruling as to sufficiency of law at the close of the Crown case is in no different position from any other erroneous ruling. In determining whether or not there has been a miscarriage of justice the court requires to look at the whole evidence and assess inter alia what effect the erroneous ruling had on the conviction having regard to the crucial issues in the trial. The court will require to have regard to what evidence was given as part of the defence case which remedied the defect in the evidence, who gave the evidence, whether it arose during cross-examination or examination in chief, whether the missing evidence was disputed by the appellant and whether the missing evidence was a crucial issue in the case. It is only by looking at the erroneous ruling in the context of the whole trial that the court can determine whether or not a miscarriage of justice has occurred. To look at the issue solely on the basis of the evidence at the close of the Crown case could result in a wrongful acquittal and result in a miscarriage of justice".

[7] The Advocate depute added that the terms of section 160 indicated that it was not intended that a well-founded submission of no case to answer should confer on the accused a fundamental or absolute right to acquittal. He referred in particular to the fact that in subsection (2) it was stated that the judge "shall acquit him", and not that the accused "shall be acquitted". He also pointed out that a trial would have to proceed where the accused was unable to satisfy the judge that the evidence was insufficient in law to convict him of an implied alternative, such as reset in the case of a charge of theft.

[8] Prior to the coming into force of section 19 of the Criminal Justice (Scotland) Act 1980 (the 1980 Act), there was no place in Scottish criminal procedure for a submission of no case to answer. This was stated emphatically by Lord Justice General Cooper in Kent v H M. Advocate 1950 JC 38. At page 41 he said that

"it is of course right and proper in suitable circumstances that a sheriff or presiding judge, when charging the jury at the end of the day after the evidence is complete and the speeches for the Crown and for the defence have been concluded, should direct the jury that there is no evidence in law to support a charge (or one or more of several charges), and that it is their duty to return a verdict of not guilty accordingly. But it is only at that stage that such a duty falls on the judge or can competently be undertaken by him on his own responsibility, for according to our practice the Lord Advocate is master of the instance, and, without his consent or the consent of his representative who is prosecuting, it is, in my view, incompetent for the case to be withdrawn at any earlier stage from the knowledge of the assize".

A similar view was expressed by the court in regard to summary criminal cases in McArthur v Grosset 1952 JC 13.

[9] Section 19 of the 1980 Act amended the Criminal Procedure (Scotland) Act 1975 by introducing provisions for the submission of no case to answer immediately after the close of the evidence for the prosecution, for cases on indictment by a new section 140A and for summary cases by a new section 345A, which correspond to sections 97 and 160 of the 1995 Act.

[10] It is remarkable that the outstanding issue in the present appeal has not been the subject of any decision of this court, although it was foreseen long ago (Little v H.M. Advocate 1983 SLT 489). During the passage of the Criminal Justice (Scotland) Bill in 1980, as the Advocate depute pointed out, Ministers stated that the effect of the clause, which in due course became section 19, was that the accused would still have the right to lead evidence if his submission of no case to answer was unsuccessful. However, the thinking underlying this innovation was wider than that. The change in the law followed the recommendation of the Thomson Committee on Criminal Procedure in Scotland in their second report (Cmnd 6218). Having reviewed the arguments for and against the introduction of provision for a submission of no case to answer, the committee stated in paragraph 48.05:

"Our own view is that there is a strong case for the proposal on the grounds that the present system is wrong in principle in allowing the prosecutor to rely in some instances on the defence supplying the missing evidence to secure a conviction. We share the view of those of our witnesses who think that the procedure places an unfair burden on the defence in that the decision on whether to lead evidence might prejudice the accused's case. We also agree with the minority of the Grant Committee who think that it is wrong that an accused who wishes to make a submission in law that the prosecution case has not been made out, should be required to peril his whole case on that submission, without the alternative, if it fails, of leading evidence on his own behalf".

Recommendation 136 of the Committee, under reference to paragraph 48.05, was:

"An accused person should be entitled to submit at the end of the Crown evidence that there is no case to answer and if the submission is not upheld he should be entitled to lead evidence".

[11] The scope for a "miscarriage of justice" in section 175 of the 1995 Act, or for that matter in section 106 which applies to indictment cases, has not been precisely defined. It may arise in a wide variety of circumstances, including an error of law on the part of the judge, an irregularity or impropriety in the trial procedure or some factor which has a bearing on the fairness of the trial. The question in every case is not whether the circumstances constitute in themselves a miscarriage of justice, but whether the conviction of the accused in those circumstances is a miscarriage of justice. Thus we agree with the submission of the Advocate depute to this extent that, if there has been an erroneous ruling by the judge, it is only by looking at that ruling in the context of the whole trial that the court can determine whether or not a miscarriage of justice has occurred. If that is applied in the present case it is plain that the effect of the erroneous ruling of the sheriff was that he wrongly deprived the appellant of an acquittal on the charge, and instead put the appellant in the position that, in order to give evidence in his own defence, he would have to supply the deficiency in the prosecution case. It was not suggested by the Advocate depute that, by reason of his having elected to give evidence, the appellant lost his right to complain about the sheriff's failure to acquit him.

[12] We disagree with the proposition advanced by the Advocate depute, as if it was of universal application, that in determining whether or not there has been a miscarriage of justice, the court requires to look at the whole evidence. No doubt this is common, where, for example, the court is concerned with the effect of an erroneous admission of evidence or the misdirection of the jury (such as in McIntosh v H.M. Advocate 2003 SCCR 137). Where, on the other hand, a submission of no case to answer has been wrongly rejected, the court is dealing with the situation in which the accused should not have been required to consider giving, let alone to give, evidence in his own defence. We also disagree with the submission of the Advocate depute that to look at the issue solely on the basis of the evidence at the close of the Crown case could result in a wrongful acquittal and result in a miscarriage of justice. It is not uncommon that the court may require to quash a conviction by reason of a failure to adhere to the law in regard to the manner in which trials are to be conducted, despite the fact that the jury have held that the accused was guilty (see Drummond v H.M. Advocate 2003 SCCR 108). If justice is not clearly seen to be done, it is hardly an answer to say that, even if the case had been properly conducted, the result would have been the same.

[13] In our opinion it was a miscarriage of justice that the conviction of the appellant was secured in circumstances in which he should have been acquitted immediately after the close of the prosecution evidence and should not have been required to consider giving evidence on his own behalf. If the correct approach to a case such as the present is that the prosecutor can rely on the evidence of the accused as supplying the necessary evidence to secure his conviction, this would run counter to the view of the Thomson committee in the passage from their report which we have quoted earlier in this opinion.

[14] We should add that, at the invitation of the court, we were furnished with a number of decisions in England and Australia as to the effect of the wrongful rejection of a submission of no case to answer. A reading of these decisions has not assisted us in the present case. They were not decided in the context of legislation similar to that in Scotland, and furthermore they do not speak with one voice.

[15] Accordingly we will allow the appeal and quash the appellant's conviction in respect of the charge.