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Cite as: [2005] ScotHC HCJAC_66, [2005] HCJAC 66

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Lindsay v. Her Majesty's Advocate [2005] ScotHC HCJAC_66 (31 May 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Osborne

Lord Menzies

[2005HCJAC66]

Appeal No: XC164/03

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

NOTE OF APPEAL AGAINST

CONVICTION

MARK LINDSAY

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Muir Myles Laverty, Dundee

Respondent: Di Rollo, Q.C.; Crown Agent

31 May 2005

[1] The appellant has appealed on a number of grounds against his conviction by a jury in the Sheriff Court at Aberdeen on a number of charges.

[2] The first and second grounds relate to one of the jurors. It is stated on behalf of the appellant that after the jury was empanelled the sheriff was informed that one of the jurors knew one of the Crown witnesses and that he had formerly been a police officer. That information was made known to the Crown and the defence in chambers. They were asked whether there was any objection to him sitting as a juror. In the event he was allowed to serve.

[3] In his report the sheriff states:

" Prior to their being sworn in, I ask (sic) those who had been selected to serve as jurors whether they knew the accused or any persons named in the indictment or whether there was any other reason why anyone could not serve. No one indicated any reason. I then invited them to retire to make themselves comfortable".

The sheriff goes on to state that, after he had retired to his chambers, he was informed by the clerk of court that some years previously one of the jurors, who was a former police officer, had had dealings with the complainer in one of the charges. The juror had been retired from the police force for at least five years. The sheriff was informed that the juror had not mentioned this to any one other then the person who looked after the jurors, and in particular had not mentioned it to any other juror. The juror remained outside the jury room until the issue was resolved. The sheriff invited the procurator fiscal and the appellant's solicitor into chambers, where he asked the clerk to repeat to them what she had said to him. The sheriff goes on to state that the appellant's solicitor did not see that there was any problem, but went to speak to the appellant. On his return he said that the appellant objected. The court officer then came to say that the appellant wished to speak to his solicitor, who left. When he returned he stated that the appellant "no longer had a problem with that juror". When the members of the jury returned to their places in the courtroom, the Sheriff asked them once more whether anyone had a problem, and was not so informed by any of them.

[4] In the first ground of appeal it is maintained that, in respect that the discussion took place in chambers outwith the presence of the appellant, there was a breach of section 92 (1) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act), which provides, subject to exceptions with which we are not concerned, "no part of a trial shall take place outwith the presence of the accused". The question which arises is this, at what point does a trial commence, for the purposes of section 92 (1)?

[5] For the appellant Mr Shead submitted that the trial commenced with the swearing of the jury. He relied on section 65(9) of the 1995 Act which provides that for the purposes of that section "a trial shall be taken to commence when the oath is administered to the jury". So far as the application of section 92(1) was concerned, there was no other point of time for its commencement. From that point the accused was in the hands of the court. Mr Shead also submitted that this interpretation gained support from the principle that justice should not only be done but be seen to be done. So the matter should have been aired in open court. It was normal for the question of the excusal of a juror to be discussed by the parties in open court. Where it was clear that the juror should be excused, the sheriff could decide the matter for himself and announce his decision. In either case he would state the information which he had been given, usually by the clerk of court.

[6] The events which took place, should, in our view, be understood in the light of the statutory provisions relating to the selection of the members of the jury. Section 129 of the Criminal Procedure (Scotland) Act 1975 (the 1975 Act) made provision for the excusal and replacing of any person whose name had been drawn by ballot in court, prior to the members of the jury being sworn to try the case. Section 129 was amended by paragraph 7 of the First Schedule to the Criminal Justice (Scotland) Act 1987, which extended such excusal and replacement to the stage "before any evidence is led". As was pointed out by Lord Justice General Hope in Pullar v H.M. Advocate 1991 J.C.126 at page 135, if the opportunity was given to the jurors, by means of a brief adjournment before any evidence was led, to let the court know if they thought that there was any particular reason why they should be excused, steps could then be taken for another juror to be balloted to replace a juror who had to be excused. He noted that in Hughes, Petitioner 1990 S.L.T. 42 it had proved necessary for the whole jury to be discharged and another jury empanelled.

[7] When the 1975 Act was replaced by the 1995 Act, it was evidently considered appropriate to confine the primary legislation to a provision for the choosing of the jurors by ballot in open court and the recording of the persons so chosen in the minutes of the proceedings as the jury to try the accused (section 88(2) of the 1995 Act). On the other hand paragraph 14.2(2) of the Act of Adjournal (Criminal Procedure Rules) 1996 replaced another part of section 129 of the 1975 Act by providing:

"Where any of the persons whose names shall be so drawn does not appear, or is challenged (with or without cause assigned) and is set aside or, before any evidence is led, is excused, then such further names shall be drawn until the number required for the trial is completed"

The normal practice in this respect is set out in Renton & Brown, Criminal Procedure paragraph 18-41. We do not accept a submission made by Mr Shead that the fact that the replacement of jurors was left to regulation by subordinate legislation indicates that the provisions of section 129 were of no significance.

[8] In the present case it is not entirely clear whether members of the jury had been sworn prior to the events to which we refer. However, we will assume that this was the case. The adjournment provided the opportunity for one or more jurors to be excused, and a new juror or new jurors to be sworn in court, before any evidence was led. So, in any case in which there is an adjournment at that stage, it cannot be known for certain that the jurors who have already been sworn are to compose the jury to try the accused. Thus, whatever may have been the position prior to 1987, the legislation which has applied since that time enables the substitution of jurors to take place up to the time when the leading of evidence begins. It follows that in a case such as the present, in which there was an adjournment, the trial did not commence prior to the leading of evidence. We should add we are not persuaded that the provision which is made by subsection (9) of section 65 specifically for the purposes of that section is of relevance to the application of section 92 (1). In any event there is certainly room for argument that, so long as it is possible for one or more jurors to be replaced, it cannot be said that the oath has been administered to the jury.

[9] For these reasons we considered that section 92(1) was not contravened.

[10] Mr Shead then submitted, in support of the second ground of appeal, that the appellant had been deprived of trial before an independent and impartial tribunal, and that the sheriff should have discharged the juror ex proprio motu.
[11] In his report the sheriff states that he saw no reason to do so. It may be noted that in this ground of appeal it is stated that the appellant recollects that he was not told by his solicitor that the juror was a former police officer and that, had he been made aware of that fact, he would have instructed him to object. However, this is in conflict with the account given by his solicitor in a letter and attendance note which are before the court, in which he states that there was a discussion in chambers, and that the appellant initially wanted to object to the juror but thereafter changed his mind. Mr Shead did not rely on the appellant's account, but submitted that the sheriff should have discharged the juror, whatever the appellant's instructions. He did not submit that a retired police officer should always be disqualified. However, in this case there had been prior dealings with the complainer. He understood that the juror had been a senior officer in the C.I.D.

[12] In our view the Advocate depute was correct when he submitted in reply that it cannot be self-evident that, on the strength of his previous dealings with a complainer, the juror would lack the appearance of independence and impartiality. The fair-minded and informed observer who considered the facts would not, in our view, conclude that there was a real possibility that the juror was biased.

[13] In the third ground of appeal it is maintained that the appellant was denied a fair trial by reason of his being required to wear handcuffs during the trial. There was no cogent reason for justifying this exceptional step. The measures taken by the sheriff were not apt to dispel the prejudice to the appellant.

[14] In his report the sheriff states that prior to the trial the appellant's solicitor had requested that he should be released from handcuffs during the trial. The sheriff stated that if the appellant's escorts were not unhappy with that, he would have the handcuffs removed, and that the position would be reviewed each day. The clerk of court telephoned the prison each morning and was advised each day other than the last that it was not safe to release the appellant from the handcuffs. In these circumstances the appellant was handcuffed on each day with the exception of the last. However, the sheriff suggested that the handcuffs could be disguised by a towel or similar item, and this was done. The letter from the appellant's solicitor, to which we are referred earlier, states that, while the sheriff said that he had to decide whether in these circumstances the appellant was required to wear the handcuffs, he recalls that they were hidden from view by way of clothing or material being put over them. He also recalls that the appellant was brought into court before the members of the jury so that he was seated between the officers before they took their places, and that he did not leave the court until after the members the jury had left so that they would not see him walking with handcuffs.

[15] The sheriff also states in his report that prior to the commencement of the trial the appellant's solicitor raised the issue of the officers' insignia and epaulets. The clerk of court was eventually informed by a senior personnel officer at the prison, after consulting with the assistant governor, that the officers could remove the insignia and epaulets, if so directed by the sheriff. In the circumstances he gave that the direction.

[16] Mr Shead submitted that the sheriff had given no reason why telephone calls were made to the prison. No justification had been given for requiring the appellant to wear handcuffs every day except the last one. The use of a towel was hardly a satisfactory means of concealing handcuffs. The appellant had informed him that it slipped off when he was being taken out of court. The appellant had suffered obvious and marked prejudice. The sheriff should in any event have followed the guidance given by the court in Trotter v H.M. Advocate 2000 S.C.C.R 968 at paragraphs 10-11 and established by means of inquiry of the Crown whether there were reasons which would justify such an exceptional measure.

[17] As was pointed out by the court in Trotter, the decision as to whether any prisoner should be handcuffed in court should be taken by the presiding judge. It is not suggested in the present case that the sheriff did not take the decision, although he plainly did so in the light of advice from the prison. There require to be reasons justifying this exceptional measure. We have no reason to question the existence or adequacy of such reasons in the present case, although it would have been preferable if the sheriff had spelt out in his report why it was considered unsafe to have the appellant released from handcuffs. Further it would have been better if the communication in regard to this matter had been with the Crown. However, taking into account the whole circumstances, we are not satisfied that the appellant was denied a fair trial.

[18] The remaining ground of appeal which was argued relates to the sheriff's directions in respect of charge (4), which was a charge of breach of the peace. It is maintained that the sheriff misdirected the jury by setting too low a test for that crime. At pages 9-10 of his charge he stated that breach of the peace

"is a crime of creating a disturbance of some kind, behaving in such a way as might reasonably be expected to cause an ordinary person to be alarmed, upset or annoyed or tempted to provoke a disturbance of the peace. Now it is not necessary to show actual alarm or that the accused intended to cause a disturbance. It is enough if the conduct in your mind may reasonably be thought to have caused this disturbance to which I have referred"

[19] Mr Shead pointed out that in Smith v Donnelly 2001 S.C.C.R. 801 the court pointed out at paragraph [17]:

"It is, in our view, clear that what is required to constitute the crime is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community... What is required, therefore, it seems to us, is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person".

In the present case the context was the conduct of the appellant in a private house towards police officers. He pointed out that in Smith v Donnelly at paragraph [20] the court confirmed that a robust approach should be taken to cases involving the use of bad language, and that the refusal to cooperate with police officers, even if forcefully or truculently stated, was not likely to be sufficient in itself to justifying a conviction.

[20] We consider that Mr Shead was correct in maintaining that the sheriff had referred to too low a test. It is not enough, for example, to point to conduct which is simply annoying. However, in the present case the conduct on the part of the appellant which the jury found proved did not simply consist of conduct too trivial to be dignified as breach of the peace. According to the terms of the charge the appellant repeatedly shouted, swore and repeatedly uttered threats of violence to two police officers, and repeatedly threatened to stab both of them with a knife or similar object, whereby they were placed in apprehension for their safety. In these circumstances there can be no doubt that the conduct held proved against the appellant constituted breach of the peace according to the criteria set forth in Smith v. Donnelly. For this reason we consider that, while the sheriff misdirected the jury, there was no miscarriage of justice