Scottish High Court of Justiciary Decisons

You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Boath v. Her Majesty's Advocate [2005] ScotHC HCJAC_116 (08 September 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_116.html
Cite as: [2005] HCJAC 116, [2005] ScotHC HCJAC_116

[New search] [Help]

Boath v. Her Majesty's Advocate [2005] ScotHC HCJAC_116 (08 September 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Hamilton

Lord Wheatley

Lord Macphail

[2005HCJAC116]

Appeal No: XC227/04

OPINION OF THE COURT

delivered by LORD WHEATLEY

APPEAL AGAINST CONVICTION and SENTENCE

PAUL PHILLIP BOATH

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: P. Wheatley, Q.C., Solicitor Advocate J.A. Brown, Solicitor Advocate; Paterson Bell, Kirkcaldy

Respondent: J. Beckett, Q.C., A.D.; Crown Agent

8 September 2005

[1] On 17 December 2003 at Dundee Sheriff Court the appellant was found guilty by a majority verdict of the jury of a charge of culpable and reckless fireraising. The appellant had originally been charged on an indictment which contained the alternative offences of wilful fireraising and culpable and reckless fireraising in the following terms:-

"on 21 October 2002 you PAUL PHILLIP BOATH did, in the house then occupied by you, at 95b St. Fillans Road, Dundee set fire to a mattress and other flammable material and the fire took effect thereon and on said house and this you did wilfully and to the danger of the occupants of neighbouring houses;

- or alternatively -

on 21 October 2002 you PAUL PHILLIP BOATH did, in the house then occupied by you, at 95b St. Fillans Road, Dundee, culpably and recklessly set fire to a mattress and other flammable material whereby the fire took effect on said house, all to the danger of the occupants of neighbouring houses."

[2] Following the jury's verdict the appellant was sentenced by Sheriff Davidson to three years imprisonment, backdated to 17 December 2003.

[3] The evidence against the appellant was comprehensive in character. There was testimony from an expert witness which excluded the possibility that the fire in the appellant's house described in the indictment had been started accidentally. The witness indicated that there was no evidence to suggest that the fire could have been caused through some kind of electrical fault, or that it could have originated from some source external to the house. The fire had started in the centre of one of the rooms in the house, and the rapid progress of the fire following ignition could only have been achieved by someone in the room setting the fire shortly before its discovery. It was clear from the forensic investigation that furniture had been piled up in the centre of the room, which again suggested that the fire had been started deliberately. In short, the expert evidence in the case concluded that the fire had been set deliberately, and by someone who had been in the house just before the presence of the fire was noticed.

[4] The second source of evidence came from the occupier of the upstairs flat, and was to the effect that he had heard the movement of furniture from the appellant's house for about an hour, followed by the sound of the door shutting. The occupier of the flat above then looked out of his window at this point and saw the appellant and someone younger leaving the close and going onto the street. About two minutes later the witness heard the smoke alarm from the appellant's flat. He left his own flat and went downstairs, where he heard the smoke alarm continuing to go off inside the appellant's house. He returned upstairs to telephone the Fire Brigade, by which time there was smoke seeping into his flat. In addition, the witness thought he saw a lick of flame through the floorboards. He telephoned the emergency services and then sought the evacuation of the rest of the building.

[5] In addition to these two principal sources of evidence, there was other circumstantial evidence which the jury was entitled to consider. The appellant, at about the material time, asked a bus driver if he could find out if a house at St. Fillans Road was on fire. He telephoned another witness, saying something to the effect that he had "done it now". He arrived back at the house of his current partner (the mother of another Crown witness John Worsley) and telephoned the fire service in what the sheriff, in his Report, describes as a state of incoherent panic. There was a number of unexplained and material contradictions in the information which the appellant supplied during his police interview. To complete the picture of the evidence, there was evidence from a witness John Worsley, who was 12 years of age at the time, and who said that he and the appellant had been in each other's company throughout the course of the evening in question. His evidence in essence refuted any suggestion that the appellant had been in any way connected with the start of the fire. It was clear that the account of events given by John Worsley was entirely inconsistent with all other parts of the prosecution case. The accused did not give evidence.

[6] Against that background the appellant maintains that when he came to charge the jury, the sheriff gave two serious misdirections which, especially when taken together, amounted to a miscarriage of justice. The first of these misdirections concerned that part of the charge where the sheriff dealt with the evidence of the witness John Worsley. The appellant complains that, in the course of describing the evidence, the sheriff must be understood to have given the jury the impression that certain parts of it should be accepted by them, and the other parts, particularly those dealing with aspects of the defence case, should be discounted. In particular, the appellant maintained that the evidence of John Worsley had been singled out as being unreliable. The sheriff had compared his evidence unfavourably with the other testimony in the case and had selected that evidence for special scrutiny.

[7] We are of the view that this complaint is not made out. The sheriff in the course of his charge gave the jury the correct and standard directions that all matters of credibility and reliability lay entirely within their discretion. The sheriff explained in his Report that he discussed the evidence in his charge at some length because the trial had been interrupted by the weekend. In these circumstances the sheriff came to consider the evidence of John Worsley at pages 51 and 52 of his charge. The passage in the charge particularly complained of by the appellant is at page 52, lines 11 to 17, and it is correct that there the sheriff urges the jury to consider the evidence of the witness with great care. However, this particular part of the charge has to be examined not only in the context of the whole charge, but also in the complete context of that part of the charge where the passage complained of arises. At page 51, line 23, to page 52, line 10, the sheriff clearly lays out in a neutral and objective fashion the choice which the jury has to make in considering John Worsley's evidence. As that evidence is inconsistent with a number of other independent sources of testimony it was in our view not unreasonable, although perhaps not strictly necessary, for the jury to be advised by the sheriff that the evidence of this particular witness should be considered with great care. We therefore find that, while the investigation or description of evidence by a judge in the course of a charge always carries potential risks, in the present case nothing was said by the sheriff which was so misleading for the jury that there are reasonable grounds for complaint. In particular we are of the view that the sum of the sheriff's charge indicates clearly that if the jury believed the evidence of John Worsley, or that it cast a reasonable doubt on the guilt of the accused, then they should acquit.

[8] The second misdirection complained of by the appellant is perhaps, on the face of things, somewhat more substantial. After the jury had retired to consider the verdict, they indicated that they had a difficulty, and wished further directions. The narration of what happened is contained in the transcript of evidence, and parties are now agreed that, despite some initial confusion as to what the sheriff thought he had heard, the tape recording from which the transcript was made confirms that what is contained in the transcript is entirely correct. The relevant part of the transcript reads as follows:-

"THE SHERIFF: Good afternoon, Ladies and Gentlemen. All right, Ladies and Gentlemen, I understand that you have given an indication of having a difficulty. Can I ask your spokesperson to rise, please, until I hear what the difficulty is?

THE FOREMAN OF THE JURY: It was an example that if we have a majority of a decision.

THE SHERIFF: Right.

THE FOREMAN: Is it then that the majority within that - you know, a majority within the majority, if you like?

THE SHERIFF: Right, yes, I follow what you mean. Okay. When I addressed you this morning I suggested to you, I think, that there were really three alternative forms of verdict of guilty, as well as the possible verdicts of not guilty or not proven. The three alternative forms of verdict of guilty are guilty of the first alternative on the indictment as it is set out - and that involves you having to believe beyond a reasonable doubt that Mr Boath started the fire, and started the fire with the intention of setting fire to the flat.

There is a second form of the charge, which involves you having to believe beyond reasonable doubt that Mr Boath started the fire and showed a wilful - sorry, not wilful, showed a culpable and reckless disregard to the consequences of the fire spreading to the flat.

And the third alternative I suggested to you - and I should have said in this case that you would have to delete everything after the words 'flammable material' in the first part of the charge, was that he deliberately set fire to the mattress and the other flammable material, but there was neither the deliberate element of the flat catching fire, nor did you think that the consequences of his actions would necessarily lead, on a reckless basis, to the fire occurring.

Now, there are 15 of you, as you appreciate. Before you can return any particular verdict there must be eight of you in favour of returning that particular verdict, and what I suggested to you this morning was that you start with the most serious alternative, if you like, which is the first charge as it is laid out on the front page of the indictment, that is to say did he wilfully set fire to these items with the intention of setting fire to the flat. If either of you think that he did that, that is eight or more of you think that he did that, then the verdict would be guilty of that first alternative.

If, on the other hand, you cannot get to a situation where at least eight of you favour that decision, you then go on to look at the second alternative, and that is: 'did he deliberately set fire to the mattress and the other flammable material, but without the intention of burning the flat, but equally without having proper regard, sensible regard, to the consequences of setting the fire that he set, so that he could be said to have acted with reckless disregard to those consequences. If eight of you favour that verdict, which is the alternative, then that is what you would convict him of.

The final option, as I suggest to you, is that you find simply that he deliberately set fire to the mattress and other flammable material. If eight or more of you were of that view then you would delete the words in the first charge of the indictment 'and the fire took effect thereon and on said houses, and this you did wilfully, to the danger of the occupants ... (inaudible due to background coughing) ... houses', because you wouldn't be thinking that it took effect on the house.

And to get to that conclusion you would have to be of the view that he set fire to the mattress and the other flammable material deliberately, but he didn't intend that the flat should burn, and it wasn't obvious that setting fire to those items would have the effect of causing the flat to burn.

Now, what I also suggested to you was that if you got into a situation where eight or more of you were of the view that the verdict should be guilty, but there was a dispute amongst you as to exactly what he should be guilty of, then you should go - if you only have two alternatives, you should go for the lesser alternative, because that would involve him being convicted of the lesser charge, and that would take proper regard of the doubt that there must be about the greater charge, given the fact that not eight of you could come to the conclusion that he is guilty of the greater charge.

It is not straightforward, I am sorry. It is not an easy thing to try and set out for you, but I hope that is of some assistance. Okay would you like to retire and continue with your deliberations? And remember what I have said to you before, you can take as much time as you require".

[9] The solicitor advocate for the appellant argued that the sheriff in the course of this passage had in effect told the jury that they had to have eight of their members in favour of any verdict and that this amounted to a material misdirection and misstatement of the law. There only has to be a majority of eight for a verdict of guilty. By suggesting that there required to be a majority for any verdict, it was submitted, the jury may have been confused into thinking that they could not acquit. This was particularly so because at page 57, line 23 to page 58, line 1 of the charge, the sheriff has indicated in the simplest terms that if the jury were not satisfied beyond reasonable doubt that guilt had been established then they would have to go on to consider whether the verdict should be one of not guilty or one of not proven, both of which are verdicts of acquittal. Accordingly, in giving fresh directions to the jury, the sheriff's remarks were premised on his opinion that the jury were considering a guilty verdict, and this was not necessarily the case. They could have been contemplating a verdict of acquittal and should therefore have been directed also to consider verdicts of not proven and not guilty, in addition to the directions which were given. Reference was made to the case of Glen v H.M. Advocate 1988 S.C.C.R. 37.

[10] In response the Advocate depute maintained that the supplementary direction given to the jury should not be looked at in isolation. There was a structure as to how, in his charge, the sheriff had approached the various verdicts open to the jury. In particular, at page 56, line 23 and onwards, he had described fully and clearly what alternative verdicts of guilty might be available to the jury. Further, and in particular, at page 57, line 17, the jury were clearly told in the course of the charge that if they did not believe that the Crown had established the guilt of the accused on either alternative beyond reasonable doubt then that would result in a verdict of acquittal. In the course of this part of the charge, the sheriff made it clear that if there was no majority in favour of finding the appellant guilty of anything, then they should return an acquittal verdict. According the jury were not told that they could not acquit the appellant; all verdicts were left open to them.

[11] We are satisfied that in this case the appellant has not demonstrated that there has been a miscarriage of justice. Certainly the sheriff would have been well advised in accordance with good practice to have asked the jury to produce their question in writing. The intimation of the jury's difficulty does not appear to have been mentioned to the parties. Further, the sheriff failed to ask the jury if his response to their questions had clarified their confusion. But, looking at the charge as a whole, and in particular to those passages referred to by the advocate depute at pages 56 to 58, we do not consider that the jury would have been left in any material doubt as to what verdicts were properly open to them. The circumstances under which they would have a duty to acquit are described at two separate parts of the charge. Moreover, in introducing his supplementary direction the sheriff reminded the jury of the verdicts of not guilty and not proven (page 62 lines 2-3). We also place some weight on the context in which the sheriff reached the understanding which he did of the matter on which the jury sought a further direction. It appears from the transcript that he interpreted the jury's difficulty as being what they should do about the alternative verdicts of guilty that were available to them, and did not consider that any difficulty might arise as to what they should do in the event that they had decided to acquit and were uncertain as to which acquittal verdict they should select. That is a conclusion which he felt proper to reach in the context and circumstances of the case, and his assumption appears to have been both justified and correct, as it was on the matter of alternative verdicts of guilty that he had had in his charge to give the most elaborate directions and, he having given them a further direction on those verdicts, the jury did not seek any further enlightenment from him. Be that as it may, the charge taken as a whole cannot have left the jury in any serious doubt as to all of the options that were properly before them, and in these circumstances we do not consider that there has been any miscarriage of justice. The case of Glen v H.M. Advocate is clearly distinguishable from the present; there the trial judge had specifically advised the jury that a majority verdict was necessary for an acquittal.

[12] Having disposed of the matter in principle, the solicitor advocate for the appellant then submitted that the sentence of three years imprisonment was excessive for the alternative charge of culpable and reckless fireraising. Although the appellant has an extensive record (though without any analogous convictions) and his conduct gave rise to serious risk to life and property, we think that on a comparative basis that assertion has something to recommend it, and in the circumstances we shall reduce the sentence of three years imprisonment to one of 18 months imprisonment.