APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General
Lord Kingarth
Lord MacLean
|
[2006]
HCJAC 84
Appeal
No: XC90/05
OPINION OF THE COURT
delivered by THE LORD
JUSTICE GENERAL
in
APPLICATION UNDER
SECTION 107(8) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
LUKE MUIR MITCHELL
Applicant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act: D. Findlay, Q.C., Farquharson; Beaumont & Co., Edinburgh
Alt: A. Mackay, A.D.; Crown Agent
14 November 2006
Introduction
[1] The applicant
was, on 21 January 2005, convicted after trial in the High
Court at Edinburgh of the murder on 30 June 2003 near Dalkeith, Midlothian of Jodi
Jones. At the time of her death she was
14 years of age. The applicant at that
time was a few weeks short of his 15th birthday; at the date of his conviction he was
aged 16. On 11 January
2005 the
trial judge sentenced him to be detained without limit of time, a punishment
part of 20 years being specified.
[2] The applicant
sought leave to appeal against his conviction and sentence. A Note of Appeal containing twelve grounds of
appeal against conviction and one against sentence was lodged. A single judge, acting under section 107(1)
of the Criminal Procedure (Scotland) Act 1995, granted leave to appeal against
conviction and sentence but specified as arguable grounds of appeal against
conviction only six of the grounds set forth in the Note, namely, grounds 3, 5,
6, 7, 9 and 10. Unrestricted leave to
appeal against sentence was granted. The
applicant subsequently made an application under section 107(8) of the Act for
leave to found his appeal on certain grounds of appeal which had been specified
as unarguable, namely, grounds 1, 2, 4, 11 and 12. It was stated that ground 8 was not to be
insisted in. Mr Findlay was heard orally
in support of the application and the Advocate Depute in response.
Ground 1
[3] Ground 1 is
concerned with the disposal by the trial judge at a preliminary hearing on 16
October 2004
of an application by the applicant that his trial should be heard outwith Edinburgh.
The trial judge refused that application but granted leave to appeal
against his decision. In the event no
appeal was then taken. Mr Findlay told
us that, given the youth of his client and the stress to which he was subject,
a decision had been taken not to delay matters by appealing that decision at
that time.
[4] The basis of
the application made on 6 October was that for weeks prior to the trial there
had been extensive media coverage surrounding the death of Jodi Jones. The applicant's name had been widely
canvassed in the press as being connected with her death. There had been both national and local
publicity. The national publicity was in
newspapers having a national circulation and on television. The case had attracted special interest in
and around the Edinburgh area. The alleged crime had been committed within a
small community. Beyond the local area,
there was more interest in the case in Edinburgh than anywhere else. This was because people from the local area
travelled into Edinburgh to work. While it was not submitted to the trial judge
that, by reason of the publicity, the applicant could not get a fair trial
anywhere, it was submitted to him that for that reason he could not get a fair
trial in the Edinburgh area.
[5] Having heard
the Advocate Depute in reply and considered certain authorities cited to him,
the trial judge took the view that the issue was one of jury management,
including the excusal from jury service of any person who had a connection with
the locality or the school which had been attended by both the applicant and
Jodi Jones.
[6] In the event,
the trial judge took certain measures to minimise the risk of prejudice to the
applicant by reason of the trial being in the Edinburgh area. After a trial diet which ran for a few days
but was then aborted (to which we shall return) the trial commenced on 18
November 2004 when the trial judge gave to the jury clear and robust
instructions as to their duties as jurors, including telling them that it was
inappropriate for anyone to serve as a juror who knew Jodi Jones or knew
Luke Mitchell or any of the people whose names appeared in charge 2 (a
charge of being concerned in the supplying of cannabis resin). He also told them that it would be
inappropriate for anyone to serve as a juror who had connections with the area
where Jodi Jones lived and where she was allegedly murdered,
or connections with St David's Roman Catholic High School in Dalkeith where some of the
persons he had mentioned were or had been pupils. Such connections would, for example, he said,
be living in that area or having family members living in that area or family
members who were, or in the last few years had been, pupils at
St David's. During an adjournment
which immediately followed the giving of that instruction, an empanelled juror
intimated that he worked with a colleague who had children at the school and
had been told something about the case by that colleague. The trial judge discharged that juror and
another juror was balloted. At an
earlier stage an unempanelled juror who had been balloted but lived in the
Dalkeith area had been objected to by Mr Findlay on that account. The trial judge excused him, a further juror being
balloted without objection. As finally
composed the jury comprised ten jurors who lived in Edinburgh and one in each of Whitburn,
Livingston, South
Queensferry,
Ratho and Penicuik. No objection was
taken to any of these jurors on the ground of their respective addresses.
[7] The single
judge expressed in the following terms his reasons for refusing to grant leave
to appeal on ground 1:-
"The decision taken by the trial
judge, prior to the trial, concerned a matter falling within his discretion. It appears from his report that he correctly
directed himself as to the law and had regard to all material
considerations. The ground of appeal
recognises that the media coverage of the case extended nationally. The argument seems to be that coverage was
liable to have a particular effect on a jury drawn from the population of the Edinburgh area, because of connections between
the small community within which the crime occurred and that wider
population. The anticipated danger in
other words, appears to be that the jurors might be prejudiced as a result of
contact with persons belonging to the community within which the crime took
place. It is apparent that the trial
judge took steps to ensure that jurors having connections with the locality of
the crime, and jurors who felt that there was any reason why they could not
decide the case impartially on the evidence, should be excused. The directions which he gave to the jury are
acknowledged to have been clear and robust.
None of the members of the jury, as finally composed, came from the
locality (see para.118). In these
circumstances this ground of appeal is not arguable. That conclusion is not affected by what is
said about the discharge of a juror during the first trial diet. It appears from the report of the trial judge
(at para.115) that the juror was not discharged because of any failure on her
part. Since she was unaware of her
connection with the appellant, she could not have been prejudiced as a
consequence of that connection".
[8] The final two
sentences of that passage refer to an event which occurred during the aborted
trial. On the fourth day of that trial
investigations revealed that a girl who in effect regarded the applicant as her
current boyfriend had had as a previous boyfriend the son of one of the
jurors. On being questioned about this
by the trial judge, the juror stated that she was aware that the girl had been
her son's girlfriend and that the relationship had come to an end but appeared
to be genuinely surprised that the girl now regarded the applicant as her
boyfriend. After hearing counsel the
trial judge discharged that juror. It
is, however, quite clear that she was discharged on objective grounds, not
because of any failure on her part to disclose a matter within her
knowledge.
[9] One other
event of possible significance occurred during the aborted trial. A report in a national newspaper had included
the sentence:-
"The schoolgirl Jodi Jones smoked
cannabis with her boyfriend hours before he killed her, a court heard
yesterday".
The author of that piece appeared by order before the trial
judge. An explanation for the admitted
inaccuracy of that report - on the basis of the evidence at that stage led in
the trial - having been given through counsel, the trial judge decided to take
no further action. In the event no later
published media items gave cause for concern as to the fairness of the trial.
[10] Before us Mr
Findlay acknowledged that to found on the contention advanced in ground of
appeal 1, he required to show cause why leave
should be granted for him to do so. He
accepted that it was clear from Beggs
v HM Advocate 2006 S.C.C.R.25 that,
while it was a necessary pre-condition to cause being shown that the grounds
sought to be advanced were arguable, something more than that was
required. Mr Findlay reiterated
that prior to the trial there had been widespread publicity, much of it hostile
to the applicant. While it was the normal
practice for trials to take place in the general locality of the scene of the alleged
crime, that was not inevitably so. In
recent times a number of high profile trials had consciously been indicted for
trial in places remote from the scene.
The apparently brutal murder of a young girl and the suggested
involvement in her death of a young man, both from the same area, gave rise to
much interest and emotion in the community.
Public interest and memory of relevant matters were likely to be less in
places remoter from the scene than Edinburgh was.
Although the trial judge had taken steps at the outset both of the trial
which had been aborted and of the trial which carried on to a verdict to
minimise the risks, these remained as illustrated by the circumstance that a
juror in the aborted trial had had to be discharged because of an initially
undisclosed connection with the applicant.
The trial judge had, in refusing to order that the trial take place more
remotely than in Edinburgh (say, in Glasgow or Dunfermline) erred in the exercise of his
discretion. He had failed sufficiently
to take into account the potential impact of the publicity, given the nature of
the alleged crime and its location. He had
wrongly assumed that because the publicity was in the national media it would
be of equal interest nationally. He had
granted leave to appeal. The reasons why
the opportunity to appeal had not been taken up had already been
explained. While it could not be
demonstrated that the publicity had had an effect on the verdict, there were
risks, shown to have been of substance, that the trial would be, and in the
event had been, unfair.
[12] It is not in
dispute that the disposal of the application that the trial
take place more remotely than in Edinburgh involved an exercise of a discretion
by the trial judge. The criteria against
which an appeal court will interfere with the exercise of such discretion are
well known and need not be repeated here.
The trial judge granted leave to appeal against his decision. The proper inference from the granting of
leave is that the trial judge, having heard full argument, took the view that
there was a contention that could arguably be presented for review of his
decision - or at least that it was in the interests of justice that the
location of the trial be considered by a larger bench. The single judge who refused to give leave
for this ground does not in his reasons advert to the circumstance that the
trial judge granted leave to appeal; no reference to that circumstance is
made in the written ground of appeal which the single judge was considering. However, we regard the trial judge's grant of
leave as a significant factor and as being, in the circumstances of this case, cause why this court should consider of new the arguability
of this ground of appeal.
[13] We have come
with some hesitation to the view that this ground is arguable. As the ground is accordingly to be fully
argued we do not consider it appropriate to set out at length our reasons for
that decision. Suffice it to say that
there is an argument that the trial judge failed adequately to take into
account the circumstance that the publicity (the detail of which we have not
seen but which we were led to believe was both widespread and hostile to the
applicant) might have had an impact of particular strength not only in the
immediate locality of the crime but in a somewhat wider area embracing the city
of Edinburgh and other towns in the Lothians.
Before this ground of appeal could succeed after trial, it would of
course be necessary to demonstrate that the decision to proceed with the trial
in Edinburgh led in the event, and
notwithstanding the measures taken during the trial, to a miscarriage of
justice. But that issue is better
considered when at the appeal more detail is provided of, among other things,
the nature, timing and extent of that publicity. In the whole circumstances we shall specify
ground 1 as an arguable ground of appeal.
Ground 2
[14] The next
ground of appeal which the single judge held not to be arguable concerns the
trial judge's refusal at another preliminary hearing to separate the
applicant's trial for murder from his trial on two other charges, namely, an
alleged contravention of section 49(1) of the Criminal Law (Consolidation)
(Scotland) Act 1995 (having on various occasions a knife or knives) and an
alleged contravention of section (4)(3)(b) of the Misuse of Drugs Act 1971
(being concerned on various occasions in the supplying of cannabis resin). Mr Findlay submitted that there was no
evidential link between the applicant's possession of knives and the murder nor between the latter crime and his being involved in the
supplying of cannabis resin. The only
purpose of leading evidence in respect of these other charges was, he said, to
cast the applicant in an unfavourable light.
In the event the charge under section 49(1) had been withdrawn by
the Advocate Depute who had also described the offence under section 4(3)(b) as "small beer".
Where murder is charged it is the duty of the court to prevent any risk
of prejudice which might arise to the accused if it is tried along with other
charges which are not evidentially linked to the murder charge (HM Advocate v McGuiness 1937 J.C.37, per Lord Justice-Clerk Aitchison at
page 39).
[15] The Advocate
Depute submitted that it was only where a material risk of real prejudice to
the accused could be demonstrated that a trial judge would normally be
justified in granting a motion for separation of charges (Reid v HM Advocate 1984
S.L.T.391, per Lord Justice-General Emslie at page 392). The trial judge in this case had been well
entitled to exercise his discretion by refusing the motion. There was a clear evidential connection
between the murder charge (death having been caused by cutting of the throat by
a sharp implement and the victim's body having been mutilated by such an
implement) and the charge under section 49.
The applicant had been in the habit of carrying a knife but none had
been found immediately after the murder; some months later a similar knife had
been purchased for him. As to the charge
under section 4(3)(b), the applicant's supplying of cannabis resin was
relevant to the whole context of his relationships with the victim and with
other young people with whom they had associated, including an incriminee on
the murder charge who was said also to have been a supplier of cannabis. When the applicant had been arrested, a
substantial amount of cannabis resin had been found in his bedroom.
[16] In our view no
cause has been shown for granting leave to argue this ground of appeal. We note that no application was made to the
trial judge for leave to appeal against his decision at the preliminary
hearing. That is consistent with a recognition that there was in this matter no arguable
ground of appeal. It is plain that there
is not. While we acknowledge that particular
care must be shown in murder cases to avoid prejudice to an accused by
indicting him also for crimes which are not said to be evidentially relevant to
the murder and its surrounding circumstances (HM Advocate v McGuiness),
the trial judge at the preliminary hearing was clearly entitled, on the
material placed before him by the Crown, to be satisfied that there was reasonably
claimed here to be such an evidential link.
That claimed link was also founded on by the Crown at the trial. The single judge properly addressed and
determined this issue.
Ground 4
[17] The third
ground of appeal which the single judge held not to be arguable is to the
effect that the trial judge misdirected the jury on the issue of circumstantial
evidence. The present case is one in
which the whole evidence against the accused was circumstantial in
character. The trial judge, as Mr
Findlay acknowledged, directed the jury on the basis of the approach to a case
of that kind laid down in Megrahi v HM Advocate 2002 J.C.99; 2002 S.C.C.R.509 at paras.31-35. In the ground of appeal it is submitted that
that approach "merits further consideration".
While Mr. Findlay disavowed any intention to argue that the approach
adopted in Mackie v HM Advocate 1994 S.C.C.R.277 and
disapproved in Fox v HM Advocate 1998 S.C.C.R.115 should have
been adopted, it was difficult to divine what alternative, if any, was being
argued. In the end it appeared that the
contention was that the trial judge, while giving the direction he had, should
have given the jury a further direction on how they should approach their
decision-making in a wholly circumstantial case. In our view there is no warrant in Megrahi or in the line of authority upon
which it relies for any requirement to give a further direction of the kind
suggested. At para.[34]
of Megrahi there is cited a passage
from Fox v HM Advocate in which Lord Justice General Rodger stated:-
"[I]t is of the very nature of
circumstantial evidence that it may be open to more than one interpretation and
that it is precisely the role of the jury to decide which interpretation to
adopt ...".
While that observation was made in a case in which
circumstantial evidence was used as corroboration for direct evidence, it was
held in the same paragraph in Megrahi
that it was equally applicable to a case in which the evidence was wholly
circumstantial. That determination,
having been made by a court of five judges, is binding upon us. We see no basis for remitting the case to a
larger bench. A further direction of the
kind adumbrated by Mr Findlay appears to us to require the court to enter
upon the very issue of interpretation which it is the function of the jury to
resolve. This ground is not, in our
view, arguable nor has cause been shown for granting leave to argue it.
Ground 11
[18] The next
ground of appeal which the single judge held not to be arguable concerns
whether or not the jury should have been secluded overnight on
20-21 January 2005. The jury
retired to consider their verdict at 11.26 on 20 January. The court was reconvened at 16.19 that
day. The jury at that stage had made it
known to the clerk that they were "nowhere near reaching a verdict". The trial judge, having given the jury
further clear directions that they should not discuss the case with anyone
else, permitted them to go home overnight.
The court reconvened the following morning. The jury retired again at 10.05. On their return at 11.39 they delivered their
verdicts of guilty on the two remaining charges.
[19] Mr Findlay
acknowledged that this ground could not stand alone as an arguable ground of
appeal. He submitted, however, that in a
case such as this, where the applicant was a young person who had been
subjected to unfair media treatment, the court should have been particularly astute
to ensure that the jury, at the critical stage after they had retired to
consider their verdict, were not subject, even inadvertently, to external
influence. In another prosecution
involving a young accused in which there had been much media interest, the jury
had been secluded overnight at a hotel.
[20] In our view
there is no substance in Mr Findlay's contention. Before the jury were released for the night
the trial judge gave to them a clear direction that they should not discuss the
case with anyone else. This reinforced
directions in similar terms which he had given to them at earlier stages. There is no reason to suppose that they, or
any of them, would have failed to comply with that direction. The jury's promptly reached collective decision
the following morning is wholly consistent with personal reflection,
uncontaminated by external influence, having individually taken place overnight
leading to a more focused deliberation the following morning. This ground of appeal is plainly not in itself
arguable; nor
is it rendered arguable by being taken in conjunction with any other ground or
grounds of appeal. No cause has been
shown for granting leave to argue it.
Ground 12
[21] The final
ground of appeal which the single judge held not to be arguable concerns
certain information about a possible connection between a defence witness and
one of the jurors. The witness, who was
an employee of the firm of solicitors acting for the applicant, gave in the course
of the trial uncontroversial evidence about times taken to walk along a route
from the applicant's home to certain points of significance and to run back
part of the way. According to the
grounds of appeal the witness subsequently informed her employers that
"she would
be known to [the juror] and that there was reason to believe that [the juror]
would be hostile to both her and her sister.
It is believed that [the juror] may believe that [the witness's] sister
caused her to lose her employment in recent times. It is submitted that [the juror] ought to
have brought this matter to the attention of the court as she was well aware
she was obliged to".
[22] Mr Findlay
hardly submitted that this was an arguable ground of appeal. In effect he simply drew the circumstances to
the court's attention against the possibility that it might regard them as
suitable, in the course of the appeal, for the carrying out of further inquiry.
[23] In our view there
is no basis for any such inquiry nor consequentially
for allowing this ground to go forward.
The witness gave uncontroversial evidence: she was not cross examined by the Advocate
Depute. The substance of what she spoke
to had already been the subject of testimony by other witnesses. The jury, prior to this witness giving
evidence, had made an accompanied site visit to the locus and can have found
nothing surprising in her evidence.
There is no reason to suppose that the juror recognised
the witness nor, even if she did, that that recognition impinged to any extent
upon her approach to the evidence at the trial.
This ground of appeal is in itself unarguable and is not rendered
arguable by being taken in conjunction with any other ground of appeal. No cause has been shown for granting leave to
argue it.
The grounds in
conjunction
[24] We have already
held that, in respect of grounds 11 and 12, they are not rendered arguable by
being taken with any other ground or grounds of appeal. Mr Findlay submitted that, in relation
to the whole grounds of appeal which the single judge had held to be unarguable,
it was necessary to see them in the context of the many complex issues which
this "unique" trial gave rise to.
Grounds 1 and 2 were inter-related, he said, with ground 4; in the context, for
example, of hostile publicity and extraneous charges, the jury might more
easily draw an inference adverse to an accused in a wholly circumstantial
case. There was also an
inter-relationship with ground 6 (which had been granted leave); there also evidence
had been led (about the finding of several bottles of urine in the applicant's
bedroom) whose only purpose was to seek to convince the jury that the applicant
was an "oddball" character. Similarly
ground 5 (which had been allowed) was another aspect of the unfairness of the
trial - witnesses who had identified the applicant in court had never been
asked to attend an identification parade; prior to giving evidence they had seen
in the media photographs of the applicant.
[25] We do not
doubt that it is necessary to have regard to the inter-relationship of grounds
of appeal and to the possibility that grounds of appeal, if viewed individually,
may appear unarguable but, if viewed cumulatively or in conjunction with
arguable grounds, may be rendered arguable.
Ground of appeal 1, in respect of which we have
already held that cause has been shown for it to be argued at a full hearing,
may gain added strength or give added strength to other grounds when they are
read in conjunction. We have
already held that grounds 11 and 12 do not, either alone or in conjunction with
any other ground to which we were referred, constitute arguable grounds. The same is true of grounds 2 and 4. The latter is a pure question of law. The
former is likewise a question of law, namely, whether the trial judge erred in
the exercise of its discretion by not separating the charges. Neither could be rendered arguable by being
considered in conjunction with other grounds.
Decision
[26] In the whole circumstances we grant this
application to the extent of specifying ground of appeal 1 as a ground upon
which the applicant may found in his appeal.
Quoad ultra we refuse the
application.
