APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: XJ278/02
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
PROCURATOR FISCAL, Lochmaddy
Appellant: Wheatley, Solicitor Advocate; Gilfedder McInnes
Respondent:Mulholland, Solicitor Advocate, A.D.; Crown Agent
12 October 2004 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.  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.  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).  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".
"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".
"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. 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.  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".