APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Abernethy Sheriff Principal Lockhart	[2009] HCJAC 92 Appeal No: XC494/08 XC496/08 OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LADY PATON in NOTE OF APPEAL AGAINST CONVICTION by (1) TERRY GARDENER and (2) RYAN JAMES GLYNN Appellants; against HER MAJESTY'S ADVOCATE Respondent:

First Appellant: M C Mackenzie; Doyle & Co

Second Appellant: Shead; McClure Collins

Respondent: McSporran, Advocate depute; Crown Agent

9 December 2009

Introduction

[1] On 16 June 2008 the appellants were found guilty by majority verdict of the following offence:

"On 12 November 2005 at Cambusnethan Street, Wishaw ... you ... did assault Michael Taylor ...then aged 14 years ... and did present knives at him, demand that he hand over his jacket and did strike him on the face with a knife to his injury and permanent disfigurement."

Both appellants appeal against conviction on the ground that the sheriff misdirected the jury on the doctrine of concert.

The grounds of appeal

[2] The first appellant's Note of Appeal states that:

"... The sheriff erred in directing the jury that if it was not satisfied that the two accused were acting in concert in pursuance of a joint criminal purpose then both should be acquitted. No directions were given that a different verdict could be reached for each accused. Accordingly, looked at broadly and on this point, the directions were contradictory and confusing."

The second appellant's Note of Appeal states that:

"1. The sheriff misdirected the jury when she directed it that the jury had to be satisfied of joint involvement in the common criminal plan, otherwise both accused must be acquitted (p 15).

(i)                 In the light of the available evidence, that misdirection would present a disincentive to the jury to acquit [the second appellant] even if it was of the view that the co-accused had acted alone in assaulting the complainer.

(ii)               The jury was faced with confusing and contradictory directions. It was directed that it could accept and reject such parts of the evidence as it wished. However it was directed that it must return the same verdict for both accused. That could mean rejecting evidence which it found established against an accused because to accept the evidence would be inconsistent with the direction that it must return the same verdict in respect of each accused."

The evidence at the trial

[3] The sheriff reports that:

" ... 2.1 The Crown led evidence from two civilian eye witnesses, Michael Taylor, the victim of the assault and Douglas Birnie, a friend of the accused. Circumstantial evidence was led from Police Constable David Coulthard. Detective Constable Graham Richmond gave evidence of tape recorded interviews with both accused which were played in court; transcripts of these interviews were available to the jury. There were three Joint Minutes of Agreement admitting further evidence. No defence witnesses were led for the Appellant or his co-accused and neither gave evidence ..."

[4] The sheriff gave an outline of the evidence. That outline can be summarised as follows:

[5] Constable David Coulthard was called to a disturbance in Cambusnethan Street during the evening of 12 November 2005. At 8.30 pm he spoke to the two appellants and Douglas Birnie. Mr Birnie was sober, but the appellants were drunk, "very agitated and highly strung". The constable was told that they had been assaulted by youths, and were looking for them. They did not wish to make a complaint. They said that they would "sort it out themselves". The police searched them, and found no weapons. Later that evening, at 9.10 pm, the constable was called to a slashing incident at Cambusnethan Street, only yards from where he had spoken to the appellants and Mr Birnie. He later took a statement from the 14-year-old victim Michael Taylor, who described being threatened with knives by two men (subsequently identified as the appellants). Mr Taylor told the police that he had been slashed, but did not say which of the appellants had inflicted the injury.

[6] Douglas Birnie was a friend of the appellants. He said that the first appellant was "out of breath and looked hurt, with a couple of cuts and bruises. He was angry and wanted to go and look for the boys." Mr Birnie described talking to the police. At that stage the appellants were "not happy about the fighting and were slightly angry". Mr Birnie drove the appellants around the scheme. One of the appellants told him to stop the car. All three got out of the car and approached a boy aged 13 or 14 years, thinking that he had been with the group of boys who had assaulted the first appellant. There was a lot of shouting and anger. The boy looked scared and upset, and was crying. With some prompting based upon a statement which he had given to the police after the incident, Mr Birnie described both appellants as having knives:

"I saw Ryan [the second appellant] had a knife I think it was a silver kitchen knife, a big one, Terry [the first appellant] had a smaller knife ... the boy was hit and screamed ....."

Mr Birnie later saw the boy covered in blood from his face. In court Mr Birnie did not agree with that part of his police statement where he was noted as telling the police that it was the second appellant (and not the first appellant) who slashed the boy. In court Mr Birnie maintained that he had been standing behind the two appellants and had not seen who hit the boy. He remembered pulling the second appellant back. In cross-examination, Mr Birnie retracted some of his evidence.

[7] Michael Taylor gave evidence that he had been approached by three men whom he had not met before. The car driver stood to one side. The two appellants (whom Mr Taylor identified in court) had knives under their duffle coats. The first appellant told Mr Taylor to give him his jacket, and moved his knife from side to side, asking about the whereabouts of two boys whom he named. Mr Taylor tried to walk away, but was slashed on his right cheek and ear. In evidence he stated that he thought that it was the first appellant ("the wee one") who slashed him, because that appellant was closest to him. In cross-examination, Mr Taylor accepted that he had been approached by the second appellant just before the trial. The second appellant had spoken to him, suggesting that it was the first appellant who had actually inflicted the knife injury.

[8] Evidence relating to the appellants' police interviews established that the first appellant complained of having been assaulted and injured by a group of boys. He denied having a knife, slashing anyone or seeing anyone slashed. The second appellant complained of having been assaulted by "hundreds of wee guys". He denied having a knife or assaulting a boy who was on his own with a knife.

[9] The sheriff's report does not narrate certain other parts of the evidence, for example evidence that the first appellant called at his grandmother's house after speaking to the police but before the slashing incident. The significance which the Crown attached to that evidence was made clear only in the course of the present appeal hearing, when it was suggested that the proper inference to be drawn was that the first appellant had intentionally armed himself with a knife at his grandmother's house before continuing his search for the youths who had assaulted him.

[10] In the context of concert, the sheriff noted in each report:

"1.2 In her address to the jury, the procurator fiscal depute sought convictions against both accused solely on the basis of joint criminal responsibility [emphasis added]. I considered this was an entirely proper position on the evidence led, and I directed the jury that this was the only basis on which they could convict the accused ..."

The sheriff added that, in her view, there was no corroboration of Michael Taylor's evidence that the first appellant was the actual perpetrator. As for the second appellant, there was no evidence at all that he was the actual perpetrator. Thus in her view the option of convicting one or other appellant on the basis of individual responsibility was not open to the jury. As she explained in paragraph 3.2 of her report relating to the first appellant:

" ...The Crown sought a conviction on the basis of joint criminal responsibility. I accordingly directed the jury that they could convict the accused only if they were satisfied that there was joint criminal responsibility and otherwise they must acquit both. I gave no direction that if the jury decided an accused was not party to a joint criminal purpose, they could convict him only of what he did himself."

Closing speeches at the trial

[11] The sheriff's report raised a doubt as to whether the Crown had indeed sought convictions against both appellants solely on the basis of joint criminal responsibility. Transcripts of the closing speeches were obtained. In the transcript, the procurator fiscal is recorded as addressing the jury in the following terms:

"(Page 3) ... My function as prosecutor is to prove to you beyond reasonable doubt that this crime has been committed and that it was Ryan Glynn and Terry Gardener who are responsible for the crime ... I seek to persuade you, ladies and gentlemen, that the Crown has discharged this burden of proof and that you can retire, deliberate and conclude that Ryan Glynn and Terry Gardener are guilty as they have been charged ...

(Pages 10-13) ... Michael [Taylor] was slashed in the face. Michael thinks it was Terry. Douglas [Birnie] tells the police that he thinks it was Ryan. You'll remember Douglas giving his evidence. He was deeply uncomfortable, particularly at this chapter of his evidence. He had his arms folded, he had his gaze down. He doesn't want to be a grass ... Douglas accepts that what he told the police was the truth, but with one exception, the exception being that he named Ryan as the slasher. He tells us he doesn't know. He doesn't know if it was Ryan. He just gave the police a name. He thought that's what they wanted.

Now, to be fair to Douglas, and to be fair to Michael Taylor, Ryan Glynn and Terry Gardener both had knives. It could have been either of them who slashed Michael Taylor. It might have been interesting for us to know who it was. We might like to know which one of the two it was who slashed him. But ultimately in law it doesn't matter a jot. It doesn't matter which one of them slashed him. They've both been charged with this assault. Even although there's only [one] slash mark on Michael's face, this is perfectly proper as they were acting together. The sheriff will tell you the law about that but, for my part, all I need to say ... is that these two ... both had knives. They both made Michael Taylor scared. They both made him cry. They were both responsible for putting him in Wishaw General that night. They are both responsible for getting him mixed up in all of this. They are both responsible for the injury to Michael Taylor's face, the injury that has marked his face, the injury that has left him permanently disfigured and the injury that has left him gutted ... Ryan Glynn and Terry Gardener are both responsible for that ...

(Page 14) I invite you to convict both of these men as libelled."

The sheriff's charge

[12] The sheriff, in her charge (pages 15 to 16) directed the jury on concert, and gave a specific direction in the following terms:

"In this case the Crown quite properly, because of the evidence, seeks conviction against both accused on the basis they were acting in concert in pursuance of a joint criminal purpose in assaulting Michael Taylor.

Now if you are not satisfied beyond reasonable doubt that is the case in respect of each accused, you must acquit both. There is not sufficient evidence in law to convict either accused of the assault alone. You can only convict if you are satisfied beyond reasonable doubt that both were involved in a joint criminal enterprise in assaulting Michael Taylor with a knife."

Submissions for the first appellant

[13] Counsel for the first appellant accepted that the sheriff had given the standard direction that the evidence against each appellant should be considered separately. However the sheriff had failed to direct the jury that, if they were not satisfied that there had been a concerted attack upon the complainer, a separate verdict could be returned in respect of each appellant. Counsel then submitted (in a proposition which seemed in some respects to be against interest) that Mr Birnie's evidence could provide the necessary corroboration for Michael Taylor's identification of the first appellant as the attacker who actually used the knife. But the jury had not been given the tools with which to differentiate between the appellants. They had been forced to accept evidence relating to one appellant simply because they had not been given those tools. Reference was made to Gordon, Criminal Law (3^rd ed) paragraph 5.17; Capuano v HM Advocate 1984 SCCR 415; Howitt and Duffy v HM Advocate 2000 SCCR 195; Low and Reilly v HM Advocate 1993 SCCR 493; Cussick v HM Advocate 2001 SCCR 683; Touati and Gilfillan v HM Advocate 2008 SCCR 211; Johnston v HM Advocate 2009 SCCR 518. The misdirection was material and had resulted in a miscarriage of justice. The first appellant's conviction should be quashed.

Submissions for the second appellant

[14] Counsel for the second appellant submitted that a trial judge should in normal course give directions not only in relation to concert but also in relation to the alternative (namely individual responsibility for one's own acts): Cussick v HM Advocate. The approaches adopted by the prosecution and the defence in their addresses to the jury did not remove the obligation resting upon the trial judge to give those directions if, as a matter of law, there was sufficient evidence pointing to one accused as actor: cf Ferguson v HM Advocate 2009 SCCR 78. Thus if there was evidence available to support a conviction on the basis of individual actings, the jury should be so directed. Counsel submitted that there had been such a basis in respect of the first appellant, although not in respect of the second appellant. The sheriff had nevertheless yoked the two appellants together in a way which was unacceptable. The evidence was such that it was not inevitable that the jury would convict the second appellant on the basis of concert. Accordingly it was essential that the jury be told of the alternative of individual responsibility. If the jury had been charged appropriately, the first appellant alone might have been convicted, and the second appellant acquitted. The misdirection had resulted in a miscarriage of justice. Reference was made to O'Donnell v HM Advocate, 18 February 2004, paragraphs [25], [28], [34] and [38]; Smith v HM Advocate 2008 SCCR 255; and Herity v HM Advocate 2009 SCCR 590, paragraphs [14] to [18]. The second appellant's appeal against conviction should be allowed, and his conviction quashed.

Submissions for the Crown

[15] The Advocate depute confirmed that it was the Crown's position that there was sufficient evidence to convict the first appellant qua actor. Although that evidence had not been identified or relied upon in respect of individual responsibility by the procurator fiscal at the trial, the relevant evidence was as follows. Constable Coulthard had seen the first appellant and two others a short time before the slashing. The first appellant had been in an intoxicated and agitated state. He claimed to have been the victim of an assault by young persons. He did not wish to make a formal report, but said that they would deal with it themselves. The two appellants had been searched, and no weapons found. Mr Birnie gave evidence that he had driven the appellants around the estate, looking for the persons involved. During his police interview, the first appellant frankly acknowledged that he was intent on finding someone. The first appellant also explained to the police that he had visited his grandmother's house. He claimed to have made a phone-call there, but the clear inference was that he had armed himself with a knife in order to deal with the boys who had assaulted him. He was looking for young people, and when a young boy (Michael Taylor) was seen, the car was stopped. The first appellant was one of the persons who got out of the car and whose approach and manner frightened Mr Taylor and reduced him to tears. It was the first appellant who put questions to Mr Taylor, demanding that he hand over his jacket and asking about the whereabouts of two boys whom he named. The first appellant was identified by Mr Taylor as the person who slashed him. On the basis of those adminicles of evidence, the Advocate depute confirmed that, in the Crown's view, the complainer's evidence taken with the surrounding circumstantial evidence was sufficient for the jury to have convicted the first appellant qua actor.

[16] Initially the Advocate depute sought to maintain that the procurator fiscal had not, in her address to the jury, abandoned any case based upon individual responsibility. That had not been the intention. The circumstances in O'Donnell v HM Advocate were distinguishable, for in that case the Crown conceded as a matter of fact that the appellant had been physically out of the country, and therefore only able to participate art and part. Ultimately however the Advocate depute accepted that the issue of any abandonment of a case based on individual responsibility had to be decided upon a proper construction of the procurator fiscal's speech to the jury. If the court considered that there had in effect been such an abandonment by the Crown of the "actor" option, then it was the Advocate depute's contention that the sheriff's charge could not be criticised. Esto there had been any misdirection, that could only work to the advantage of each appellant. In the result, there had been no miscarriage of justice, and the appeals should be refused.

Discussion

[17] The Crown, in our view, based its case solely on concert. However that did not necessarily constrain the sheriff or the jury. Thus if the evidence disclosed an obvious and sufficiently corroborated alternative case (based on individual responsibility) which was reasonably open to the jury, the sheriff might be required to direct the jury on inter alia that alternative basis, despite the position adopted by the Crown: cf Johnston v HM Advocate 2009 JC 227, paragraphs [28] to [40]; Ferguson v HM Advocate 2009 SCCR 78; Cussick v HM Advocate 2001 SCCR 683, paragraph [8].

[18] That said, we do not consider that the evidence in the present case revealed such an obvious and sufficiently corroborated alternative case based on individual responsibility. On the contrary, the adminicles of evidence selected by the Advocate depute for the first time during the appeal hearing and relied upon as supportive of the complainer's evidence about who slashed him, were subtle and disparate. Some of the circumstances relied upon by the Advocate depute as implicating the first appellant qua actor were mirrored by similar circumstances implicating the second appellant. The adminicles relied upon by the Advocate depute as implicating the first appellant had not of course been identified and relied upon by the trial prosecutor in the context of individual responsibility. Far from adopting that course, the procurator fiscal invited the jury to ignore the question of individual responsibility and to focus on joint responsibility: cf the approach in Docherty v HM Advocate 1945 JC 89. In the result, it is our view, based partly on the evidence led and partly on the approach adopted by the prosecutor, that a verdict dependent upon individual responsibility could not readily be characterised as "an obvious alternative" or "a live issue" at the trial: cf the observations in Ferguson v HM Advocate. It is unnecessary for this court to give a concluded view as to whether or not there was indeed sufficient evidence of individual responsibility on the part of either appellant. However it seems to us that had the matter been a live issue at the trial, it would have been a contentious one at that stage.

[19] Against that background, we are unable to accept that it would have been appropriate for the sheriff ex proprio motu to scrutinize the evidence in order to compile what might pass as a sufficiently corroborated case based on individual responsibility and to direct the jury accordingly. To do so would in the particular circumstances of this case have gone beyond the proper function of a judge, and would have come close to acting as prosecutor. Such an approach would be far removed from what was envisaged in cases such as Ferguson v HM Advocate, where the facts relied upon by the Crown revealed an obvious alternative verdict in law, entitling the jury to convict the accused of a lesser offence (namely culpable homicide rather than murder, depending upon the jury's view about the accused's intention).

[20] Ultimately we have not been persuaded that, in the particular circumstances of this case, the sheriff should have directed the jury on the issue of individual responsibility. Nor are we persuaded that the absence of such a direction was unfair or confusing for the jury. The sheriff's directions on concert were clear and full, covering inter alia the separate assessment of evidence in relation to each appellant, the stages to be adopted in the proper approach to concert, and the concepts of pre-planned and spontaneous concert. Her directions, including the specific direction that there was insufficient evidence in law to convict either appellant alone of the assault, in effect raised the threshold test for conviction for each appellant: the jury had to be satisfied beyond reasonable doubt in relation to each appellant that each was acting in pursuance of a common criminal purpose, and that the nature and extent of that common criminal purpose entitled them to convict the appellant in question of the crime libelled. Failing appropriate satisfaction in relation to either appellant, they had to acquit both. Those directions in our view were, if anything, advantageous to the defence in that they enhanced the possibility that the two appellants might be acquitted.

[21] In all the circumstances we are not persuaded that there was a misdirection, or that there was any unfairness or miscarriage of justice in respect of either appellant.

Decision

[22] For the reasons given above, both appeals against conviction are refused.