APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General
Lord Kingarth
Lord MacLean
|
[2006]
HCJAC 79
Appeal
No: XC48/05
OPINION OF THE COURT
delivered by LORD MacLEAN
in
APPEAL AGAINST CONVICTION
by
PETER McLEOD
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: A. Ogg, Solicitor Advocate; Gilfedder &
McInnes, Edinburgh
Alt: Murphy, Q.C., A.D.; Crown Agent
31 October 2006
[1] The
appellant, Peter McLeod, was convicted at Paisley Sheriff Court on 12 November
2004 by a
unanimous verdict of the jury of assault to severe injury and breach of bail
conditions, and on 14 December 2004 he was sentenced to 3 years
imprisonment, 3 months of which were attributable to the bail aggravation. Leave to appeal against conviction was
granted on appeal to the second sift judges on 25 May
2005. The single ground of appeal is
"that there
was a miscarriage of justice in respect that the jury, having retired to
consider their verdict, the bar officer communicated with them and gave them
certain advice concerning their deliberations outwith the presence of any other
person and in breach of sections 92 and 99 of the Criminal Procedure (Scotland) Act 1995"
which will be hereinafter referred to as
"the Act".
[2] In his report
the sheriff says that he was first aware of the circumstances of the
communication between the bar officer and the jury on 15
November 2004,
three days after the conviction of the accused.
Having heard from the appellant's agent in the presence of the
procurator fiscal depute what it was thought had taken place in the jury room,
the sheriff instructed his clerk to obtain a report from the bar officer. It was provided on 16
November 2004
and the sheriff then provided copies to be issued to the appellant's agents and
to the Crown.
[3] The bar
officer's report is in the following terms:
"When the green light came on, I
entered the jury room intending to ask my normal two questions, namely - Have
you reached a verdict? Have you chosen a
spokesperson? When I asked the first
question I received the reply 'Can we ask you a question?' I answered no initially and repeated my
question. The man who was the
spokesperson leaned forward and said 'If we can just ask the question, it'll be
okay'. I then asked if they required the
sheriff to give a ruling. The spokesman
insisted there was only a simple question.
I relented, thinking that if I knew the question, I could find the
person to deal with it. Then he asked,
'What if some of us don't agree with the wording when the verdict is
given?' I can't remember the exact words
used but that was the gist of it. I
replied by asking 'Can at least 8 of you agree on the wording?' He turned to the woman on his left and said
to her 'That's right, isn't it?' She
nodded and I then asked 'Can I say that you have reached a verdict?' He replied 'Yes'. I then left the jury room.
The fiscal and the defence agent were
sitting at the table in the courtroom and I said to them that I had been asked
a funny question and outlined what it was.
Sounds continued to come from the jury room including laughter, while
the various participants in the trial were gathered. I then went to find Sheriff Pettigrew.
When the verdict was read out I was
surprised to hear that it was unanimous, in view of the question I had been
asked. After the jury had gone and the
courtroom was being tidied up, I remarked on my surprise to the defence
agent. I can only assume that the jury
had some further discussion and that was the sounds heard while the
participants were gathering."
[4] The advocate
depute accepted that the question whether sections 92 or 99 of the Act were contravened
depended upon how the court viewed the nature and purpose of the question asked
by the bar officer. If we considered
that, however expressed, it was or was reasonably capable of being understood
as a direction or advice, he conceded that the sections had been contravened
and that there would have been a miscarriage of justice. In the circumstances of this case he would
not, therefore, seek to maintain the conviction. He maintained, however, that the question
should rather be regarded as a ham-fisted effort on the part of the bar officer
to obtain further information. It may
have been unfortunate and not appropriate but it appeared to have had little effect
and was not of such a nature as to constitute a miscarriage of justice.
[5] Miss Ogg
maintained, on the other hand, that it was effectively a direction which the
bar officer was not authorised to give and which was not given in open
court. For either reason we should hold
that there had been a miscarriage of justice.
[6] Section 99 of
the Act provides for what may happen procedurally after a jury has retired to
consider their verdict and are enclosed.
Until they intimate that they are ready to return their verdict, no
person shall visit the jury or communicate with them (section 99(2)(a)). But the judge,
or any person authorised by him for the purpose, may communicate with the jury
for the purpose of giving a direction whether or not that is requested by the
jury (section 99(3)).
[7] Except for
the provisions of section 54 of the Act relating to insanity in bar of trial,
no part of a trial shall take place outwith the presence of the accused (section
92(1)). Thus any such direction as has
just been referred to above must be given in open court in the presence of the
accused. It will then be the subject of
public record so that there is no doubt what occurred and what was said. (Cunningham
v H.M. Advocate 1984 S.C.C.R. 40; McColl v H.M. Advocate 1989 S.C.C.R. 289).
[8] We agree with
Miss Ogg that when the bar officer went into the jury room, he visited the jury
in accordance with the provisions of section 99(2)(a)
and that the two questions he intended to ask were of an administrative
nature. It appears that he was able to
ask the first of these two questions twice, but that it was not responded
to. Instead, he became drawn into
listening to the question asked of himself because, as
he says in his report, if he knew the question he could find the person to deal
with it. Although he could not remember
the exact words of the question, the gist of it was, "what if some of us do not
agree with the wording when the verdict is given?" Thereupon the bar officer did not seek out
the proper person to deal with that question but chose to respond to it
himself. This he did by asking "Can at
least 8 of you agree on the wording?"
That seemed to satisfy the spokesperson and the lady next to him. The bar officer then repeated his initial
question and received the reply from the spokesperson that the jury had reached
a verdict.
[9] We consider
that the effect of the question asked by the bar officer was, at the least,
intended to guide or advise the jury and could even be regarded as a
direction. Expressed in a different way
- that is, not in the form of a question - it conforms with what we anticipate
the sheriff himself might have said to the jury in answer to the question by
way of a direction. On any view it is
difficult to resist the conclusion that what was said could reasonably have
been understood as a direction or advice.
But, of course, the bar officer was not authorised by the sheriff to
give such a direction and thus what the bar officer did was directly contrary
to section 99(2) of the Act. It follows
also, in our opinion, that there was a breach of section 92(1) because what was
said by the bar officer to the jury was not said in the presence of the accused
and there was, as a consequence, no accurate and official record of what had
been said by the bar officer to the jury.
[10] A not
dissimilar situation arose in Gordon v
H.M. Advocate 2006 S.C.C.R. 1. In that case the bar officer, referred to as
the court officer, attended on the jury after they had rung their bell and
ascertained that the jury required directions in law as to how to deal with
deletions and whether they could find parts of the indictment not proven. She then took it upon herself to give them
advice and reported back to the parties.
She could not however remember specifically what she had said to the
jury. The jury bell rang again and the
jury indicated that they were ready to return a verdict. No verdict was in fact returned by the
jury. The matter was then reported to
the presiding sheriff who took steps to find out what had passed between the
bar officer and the jury. The
determination he reached was not conclusive.
The presiding sheriff was moved in the circumstances to apply section
99(5) of the Act which would have resulted in an acquittal of the accused, or
alternatively to desert the diet simpliciter. In the event, the sheriff, in view of the
"irregularity" which had occurred, refused both motions, but decided instead to
desert the indictment pro loco et tempore. That decision was challenged in a Bill of
Advocation which sought acquittal of the complainer. The court, however, refused to pass the Bill.
[11] We turn now to
the disposal of the appeal. So far as
the contravention of section 99 is concerned, Miss Ogg accepted that, on the
authority of Thomson v H.M. Advocate 1997 S.C.C.R. 121, she
could not move for the appellant's acquittal in terms of section 99(5). That is because, as Lord Justice General
(Rodger) said in that case at page 129A, the relevant contravention of section
99 must be with a view to the securing of a conviction. That could not be said of the conduct of the
bar officer in this case. On the other
hand, we could regard this properly as a miscarriage of justice. She also insisted that the contravention of
section 92 was such that we should hold that it amounted to a miscarriage of
justice, as was the case in Cunningham and
McColl. The advocate depute did not dispute these
contentions in the event that his primary submission was not accepted. We agree that both contraventions of section
99 and 92 can properly be regarded in the particular circumstances of this case
as miscarriages of justice and we will quash the conviction. Both counsel for the appellant and the
advocate depute accepted that in these circumstances a new trial should be
allowed and this we shall grant.
