APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lady Paton Lord Marnoch	[2011] HCJAC 126 Appeal No: XC314/10   OPINION OF THE COURT   delivered by THE LORD JUSTICE GENERAL   in   APPEAL   by   BARRY JOHN McGRORY Appellant;   against   HER MAJESTY'S ADVOCATE Respondent:   _______

 

Appellant: Shead, MacKenzie; Gilfedder & McInnes

Respondent: Ferguson, Q.C., A.D.; Crown Agent

 

21 December 2011

 

[1] The appellant was convicted after trial in the High Court at Glasgow of the murder in the early hours of 25 October 2009 of Paul John McGee, a serving soldier then on leave. He was sentenced to life imprisonment, a punishment part of twenty years being specified. The deceased had died from a stabbing injury. On the same indictment was Ian Wallace, who was not charged with the murder but with a number of assaults, including an assault on Paul John McGee, which had preceded the fatal attack. After the close of the Crown case Wallace pled guilty to one of these charges of assault and thereafter to the remaining three of them. The trial then proceeded against the appellant alone.

[2] In the course of the Crown case the Advocate depute had put in evidence transcripts, in redacted form, of two interviews which the co-accused, Wallace, had had with police officers later on 25 October, The recordings of the interviews, in edited form, were played in the jury's presence. Copies of the redacted transcripts were issued to them. The appellant was, of course, not present at either of these interviews. In each of them Wallace gave an account of the events which culminated in the deceased's death. In the first of these interviews he stated that late on the evening of 24 October the appellant had arrived at a house where he and his girlfriend were babysitting for a relative. Thereafter Wallace and the appellant had gone out together in the appellant's car. As they were going towards Lochwinnoch a taxi came up behind their car, kept flashing its lights and then overtook and cut in in a manner which just avoided contact with the front of the appellant's car. The appellant, according to Wallace, was upset at this conduct and proceeded to follow the taxi. The taxi stopped, as did the appellant's car, various persons disembarked and a fight began. At one point the appellant told Wallace to get back into the car, which he did. The appellant drove off. Wallace then noticed that the appellant had possession of a handbag and a purse, which he threw out of the car while it was moving. Wallace then stated:

".. an the blade, he threw the blade tae me, when we were sitting in the motor, like that get rid of that, get rid of that, a wis like that get tae fuck. ... Doesnae matter if you touch it. An a done that wi ma jayket an a like tried to like throw it oot the cor because he was fuckin ready to start on me. He wis like fuckin dae, dae it, an a threw it oot an a think it's lying at the Gryffe, just at the edge, on next to the wee bridge."

[3] At the second interview a few hours later Wallace gave a similar account of events leading up to the fight and of being driven off by the appellant. As he described the route which was then taken the following exchange took place:

"Suspect: That's when ad realized that he'd the bag an that and then as we got alang a bit mair that's when he threw the knife, he's like that throw it oot the windae, throw it oot the windae. He said ave lost the hondle off it, must still be up there, must still be up there.

DC1: What did the knife look like?

Suspect: It was a big fuckin thing, an army knife type thing.

...

DC1: And could you see a handle on the knife?

Suspect: A didnae look at it mate a just tossed it, ... a know that much.

DC1: So he's tossed it to you, where does it go when he tossed it at you?

Suspect: Landed on the erm of ma jacket an a threw it oot the windae aye, tossed it outside the windae."

Later in that interview Wallace was asked about his involvement in the fight. The following exchange took place:

"DC1: Did you stab anybody with a knife during this?

Suspect: Naw.

DC1: Did you have a knife in your possession?

Suspect: Naw."

Towards the end of the interview Wallace was arrested and told he would be charged with murder. In response to a caution he said, "Naw, I never murdered anybody."

[4] In advance of the trial the appellant gave notice of his intention to incriminate Wallace for the murder. It was plain that the deceased had died from a stab wound. In practical terms the issue at the trial was whether that wound had been inflicted by Wallace or by the appellant.

[5] The transcripts of Wallace's interview had been admitted in the course of the Crown case. Their whole contents were, arguably at least, admissible against Wallace as implicating him on the assault charges which he faced. However, once Wallace had pled guilty and the trial proceeded against the appellant alone, these transcripts were not properly available for the jury's consideration unless Wallace gave evidence and the transcripts were used for the purpose of challenging his credibility or reliability. Wallace was not in the event called as a witness. Given the contents of the interviews, in particular, Wallace's account of the appellant's instructions as to the disposal of the knife and Wallace's denial that he had had it in his possession in the course of the fight, it was clearly important that the jury be instructed that, for the purpose of determining the case against the appellant, they should ignore what Wallace had said outwith the appellant's presence - this being prejudicial, and by that stage inadmissible, evidence. The jury received no instruction to that effect.

[6] Somewhat surprisingly each of the Advocate depute and counsel for the appellant made some reference, in their closing addresses to the jury, to what Wallace had said at interview. But the making of these references did not absolve the trial judge from the duty to direct the jury that what Wallace had said at interview, in so far as directly or indirectly incriminatory of the appellant, should be disregarded by them in their deliberations. His omission to do so was a misdirection (Jones v HM Advocate 1981 SCCR 192; Muirhead v HM Advocate 1999 SLT 1231; McArthur v HM Advocate [2006] HCJAC 83). It would also have been appropriate to withdraw the copy transcripts from the jury before they retired.

[7] There remains the question whether that misdirection resulted in a miscarriage of justice. In McInnes v HM Advocate 2010 SCCR 286 the Supreme Court had to address the question whether, in the context of non-disclosure by the Crown of certain material, there had, in contravention of Article 6 of the European Convention, not been a fair trial. Lord Hope said at para 24:

"The question which the appeal court must ask itself is whether after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant's Convention right, the jury's verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome - if the jury might reasonably have come to a different view on the issue to which they directed their verdict if the withheld material had been disclosed to the defence."

In the immediately preceding paragraph he had said:

"The threshold [for the reversing of the verdict of the jury] which must be crossed is the same as that which applies in any case where it is maintained that, because there was a violation of Article 6(1) that affected the way the trial was conducted, there has been a miscarriage of justice. I also agree that, in a case of that kind, the question whether there has been a miscarriage of justice and the question whether the trial was unfair run together. It is axiomatic that the accused will have suffered a miscarriage of justice if his trial was unfair. The statutory ground for setting aside the jury's verdict under section 106(3) of the 1995 Act enables the appeal court to provide an effective remedy to the appellant for the breach of his Convention right. This is done when the appeal court makes its own assessment as to whether the trial as a whole was fair. It will allow the appeal on the ground that there was a miscarriage of justice if it concludes that it was not."

Lord Rodger said at para 30:

"... the law deals in real, not in merely fanciful, possibilities. So, in cases like the present, an appellate court will only hold that a trial has been unfair and quash the jury's verdict as a miscarriage of justice if there is real possibility that, if the statements had been disclosed, a jury might reasonably have come to a different verdict. Mutatis mutandis, this is the same as the test in Stirland v Director of Public Prosecutions, which has often been applied by the appeal court."

Lord Brown said at para 35:

"What, then, in the context of an undisclosed statement, makes a trial unfair? This, ultimately, is the determinative question in the case. I would answer it as follows. The trial will be adjudged unfair if, but only if, the appeal court concludes that the non-disclosure gave rise to a real risk of prejudice to the defence. This in turn depends upon whether the appeal court regards the non-disclosure as having denied the defence the real possibility of securing a different outcome. In short, in a case such as this, the appeal should be allowed if the court decides that, had defence counsel been in a position to make use of the undisclosed statement, the jury might reasonably have come to a different conclusion, otherwise not. It is that which must decide whether the jury's verdict should be allowed to stand. I understand Lord Hope's approach in paragraph 22 to be entirely consistent with this formulation."

Lord Walker agreed with Lord Hope and Lord Rodger. Lord Kerr agreed with Lord Hope and Lord Brown.

[8] The function of the Supreme Court under schedule 6 of the Scotland Act is to decide whether or not the appellant's trial was fair. The function of the High Court under the Criminal Procedure (Scotland) Act 1995 is to address "any alleged miscarriage of justice" brought under its review by the appellant (section 106(3)). To remedy any established miscarriage the court has the powers, including the power to set aside the verdict of the trial court, conferred by section 118. The Supreme Court has a like power. Where a devolution issue arises in an appeal to the High Court that court, in discharging its functions under the 1995 Act, will require to address the fairness of the trial.

[9] In the course of para 33 of McInnes Lord Hope said:

"It is axiomatic that the accused will have suffered a miscarriage of justice if his trial was unfair."

That proposition has, so far as we are aware, not been addressed specifically by the High Court but we agree that it is difficult, if not impossible, to envisage a situation in which the court, having concluded that in all the circumstances the trial was unfair, could do otherwise than also conclude that there had been a miscarriage of justice.

[10] In Fraser v HM Advocate 2011 SCCR 396 (another case concerned with non-disclosure) Lord Hope noted at para 28 that there had been a difference of view in the High Court (Coubrough's Executrix v HM Advocate 2010 SCCR 473 and Black v HM Advocate [2010] HCJAC 126; 2011 SLT 287) as to whether the McInnes test was applicable in relation to a case where there had been a misdirection by the trial judge. At para 29 Lord Hope continued:

"It is, of course, exclusively a matter for the High Court of Justiciary to identify the test that is to be applied in appeals which do not raise a devolution issue: McInnes, para 5. I very much hope that it may find it possible to resolve the differences of view that have emerged as to the use that may be made of the McInnes test. We are, after all, both construing the same words in the same section of the same Act, and we are both required to read and give effect to those words in the way that section 3(1) of the Human Rights Act 1998 directs."

Lord Brown at para 47 observed:

"As Lord Hope observes at paragraph 29, it is exclusively a matter for the High Court of Justiciary what test to apply in appeals which do not raise a devolution issue. As, however, that paragraph also suggests, it would be somewhat bizarre to apply different tests in deciding whether or not there has been a miscarriage of justice depending on whether the appeal court is concerned with undisclosed material which should have been disclosed (a devolution issue) or with fresh evidence (not a devolution issue). As I indicated in McInnes (at paras 36 and 37), the test, which is ultimately one for the appeal court, is logically the same for fresh evidence appeals as for those involving undisclosed statements."

[11] In opening this appeal Mr Shead for the appellant invited us to apply the McInnes test to this and to other aspects of the appeal. He urged us to find that there was a real possibility that the jury, had they been properly directed, would have come to a different verdict. The Advocate depute stated that the Crown was, for the purposes of this case only, content to proceed on the basis that the McInnes test was apt. He made no further concession.

[12] In the absence of a full debate on this issue we are reluctant to express any definitive view as to the appropriate scope of the McInnes test. As a doubt has arisen on this matter, it may be best that, where it is a live issue on which the appeal depends, it be decided by an enlarged court. For the purposes of this appeal we are content to proceed on the basis that the McInnes test is apt.

[13] One matter of controversy did, however, arise during the discussion, upon which we should express a view. In advancing the McInnes test as applicable Mr Shead initially suggested that the test in Stirland v Director of Public Prosecutions [1944] AC 315 (referred to by Lord Rodger in para 30 of McInnes) was "the other side of the coin" of the McInnes test. This appeared to have been essentially Lord Rodger's view. However, later in his submissions Mr Shead advanced the proposition that the Stirland test was more favourable to an appellant and should be adopted in this case. That proposition was disputed by the Advocate depute.

[14] In Stirland v Director of Public Prosecutions the House of Lords was concerned with the proviso to section 4(1) of the Criminal Appeal Act 1907 under which the Court of Criminal Appeal was entitled in various circumstances, including where "on any ground there was a miscarriage of justice", to allow the appeal "Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred." Of that provision Viscount Simon said in Stirland at page 321-

"... the provision that the Court of Criminal Appeal may dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred in convicting the accused assumes a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict."

[15] Section 2 of the Criminal Appeal (Scotland) Act 1926 (re-enacted as section 254 of the Criminal Procedure (Scotland) Act 1975) was in the same terms. In McKenzie v HM Advocate 1959 JC 32 (a case of misdirection by omission) the High Court adopted and applied that test, Lord Justice Clerk Thomson at page 38 observing that it "is a high and exacting test". The same approach was adopted by the court in Paterson v HM Advocate 1974 JC 35, per Lord Justice Clerk Wheatley at page 42.

[16] Section 254 of the 1975 Act was, however, repealed by schedule 2 to the Criminal Justice (Scotland) Act 1980, there then being substituted for it the simpler provision that any person convicted on indictment might bring under review of the High Court "any alleged miscarriage of justice in the proceedings in which he was convicted". That provision is, with some elaboration, that now contained in section 106(3) of the Criminal Procedure (Scotland) Act 1995. Notwithstanding the important legislative change in 1980, the test in McKenzie and in Paterson (both adopting Stirland) has on occasion subsequently been applied. In Greenhalghse v HM Advocate 1992 SLT 1118 counsel for the appellant invited the court to apply the same test as in Paterson and the Advocate depute did not dispute that approach (per Lord Justice General Hope at page 1122). In the event, even adopting it, the court reached the conclusion without much difficulty that a reasonable jury, having been given the direction which was omitted in that case, would nevertheless without doubt have convicted the appellant on the evidence properly admissible against him. In Touati v HM Advocate 2008 SCCR 211 the court at para [34], in distinguishing the position of the second appellant from that of the first appellant (whose appeal was refused), said:

"Although on the evidence the jury would, having regard among other things to the evidence of the use by the second appellant of another weapon, have been entitled to return a verdict of murder against him, it was not inevitable that they would do so. They could have taken the view that his mens rea, on whatever basis, was that of a person guilty of culpable homicide. For the reasons we have given the second appellant was denied the opportunity of the jury, properly instructed, returning such a verdict. In these circumstances we are satisfied that the second appellant suffered a miscarriage of justice."

In neither of these cases was the court required, against competing arguments, to address the appropriate test.

[17] Mr Shead did, however, in Woodside v HM Advocate 2011 SCCR 12 (another non-disclosure case) venture his contention for a test more favourable to an appellant than that identified by Lord Hope in McInnes. He relied on, among other things, Lord Rodger's reference at para 30 of McInnes to Stirland. Of that submission the court (presided over by Lord Bonomy) said at para [15]:

"In our opinion Mr Shead's submission misrepresented Lord Rodger's reliance on that passage as indicating support for a weaker test. His emphasis is on the 'real possibility' of a different verdict having regard to the whole circumstances of the case, and the actions of the reasonable jury properly directed. Obviously if the circumstances, viewed through the eyes of a jury acting reasonably and in obedience to the directions given, do not give rise to a realistic prospect of a different verdict in the light of the availability of the non-disclosed material, then the jury must 'inevitably' return the same verdict. We do not understand Lord Rodger to be saying any more than that. We certainly do not read his comment as indicating that there is some other freestanding test of the inevitability of the same verdict to be applied in circumstances such as the present."

This approach was adopted and applied by a differently constituted court in Hay v HM Advocate [2010] HCJAC 125; 2011 SLT 293.

[18] In these circumstances we are satisfied that the Stirland test, devised in the context of construction of a statutory provision now repealed, is inappropriate in the construction of section 106(3) of the 1995 Act - whether in a case giving rise to a devolution issue or otherwise. It is liable to lead to confusion and is better avoided. We accordingly reject it as being inapplicable to the issue arising in this appeal.

[19] The Crown conceding for the purposes of this appeal the applicability of the McInnes test, we address its effect. As we have said, the jury was misdirected because they were not instructed that what Wallace had said at interview was not available to them as material upon which they could rely in considering their verdict upon the appellant. The evidence legitimately before them which incriminated the appellant comprised, first, a statement which, according to Wallace's girlfriend, the appellant had made on returning with Wallace to the house where she was babysitting. She testified that, with reference to Wallace's state when in the fight, the appellant had said:

"Your face was going blue. I had tae dae something so I plugged the cunt."

The other admissible evidence against the appellant came from Helen Laycock, who at the time of the deceased's death was in a relationship with him. She testified that at one point in the course of the altercation, when Wallace and the deceased were both on the ground, she had seen the appellant crouching over the deceased. Shortly thereafter she saw him standing with his right hand behind his back. She had the impression he was hiding something there. She had questioned him and he had responded but she had no clear recollection at the trial of what he had said - the words "something shiny" or "something sharp" may have been used. At about this time she saw the deceased move and then fall. The car containing the appellant and Wallace then left the scene.

[20] It is not disputed that that evidence constituted a sufficiency on which the appellant could be convicted. But there was also before the jury and, so far as they were concerned, usable by them the account which Wallace had given at police interview. This account, although not given on oath, plainly implicated the appellant as the person who had stabbed the deceased; if Wallace, as he claimed, had not used the knife upon the deceased, then clearly the appellant had. Wallace's accounts of the appellant's subsequent instructions about getting rid of the knife were also, on their face, damning. The trial judge did not direct the jury to disregard that account; nor did he restrict the material available to them by specific reference to the testimony which was admissible (cf Jones v HM Advocate). In these circumstances there was, in our view, a real possibility that, had the jury been given the direction they should have received, there would have been a different outcome. There was thus in this respect a miscarriage of justice and the appeal must on this basis (ground of appeal 6) be allowed.

[21] In these circumstances it is unnecessary to address the other grounds of appeal and we do not do so - with one exception. Ground of appeal 1 involved a challenge to the integrity of the verdict by a reason of perceived, or possibly actual, bias on the part of a juror. In the event, the juror was cited to, and gave evidence before, this court. In fairness to him we consider it right to address this ground of appeal.

[22] On the fourth day of the trial it was noticed that one of the jurors (who ultimately became the foreman of the jury) was wearing a wristband which gave counsel for the appellant some concern. According to the trial judge's report the words printed on the wristband were "Save our Troops"; but it emerged from the proceedings before us, which included taking evidence from the juror in question and examining the wristband which he brought with him, that the words were in fact "I SUPPORT OUR TROOPS". That examination also disclosed that the juror had acquired the wristband some months before the trial, when he had been given it in response to a donation made by him to a military charity. He had worn the wristband regularly since his acquisition of it, had in fact worn it throughout the trial and continued thereafter to wear it except when pursuing his occupation as a taxi driver. The juror assured the court that his impartiality as a juror was in no way affected by his support for the armed forces.

[23] Mr Shead did not dispute the integrity of the juror's position but suggested that he might have been "unconsciously biased". At an earlier stage in the appeal (before the juror was led in evidence) he had submitted that there was an appearance of bias.

[24] We are not persuaded that there was a miscarriage of justice by reason of any unconscious bias on the part of the juror. While, as was established in evidence before the jury, the deceased was at the time of his death a serving soldier home on leave, and the juror was a donor to a military charity who, by his regular wearing of the wristband, continued to evince support for the armed forces, there is no proper basis for an inference that the juror was unconsciously biased in favour of the prosecution. The circumstance that the deceased was a serving soldier was wholly incidental to the events which gave rise to his death. There was no doubt that he had been unlawfully killed. The issue for determination was whether it had been proved beyond reasonable doubt that his killer was the appellant - rather than the co-accused, against whom the appellant had lodged and insisted in a special defence of incrimination. There is no reason to suppose that, in addressing that issue, the juror's reasoning was unwittingly influenced by the profession of the victim.

[25] In the course of the trial counsel for the appellant had invited the judge to excuse the juror from service. The trial judge, without making any enquiry of the juror in question, had declined to do so. The relative ground of appeal was to the effect that in the circumstances the verdict of the jury lacked the necessary appearance of impartiality. In the course of the hearing of the appeal we decided that it would be in the interests of justice to explore the background to the wearing of the wristband. Accordingly, as earlier stated, we heard evidence from the juror - to the effect narrated. Against that evidence, which was not challenged, no issue of apparent bias truly arises. The fair-minded observer, furnished with the information as to the circumstances in which the wristband was acquired and subsequently worn, would have had no reason to doubt the impartiality of the juror and accordingly of the jury's verdict. This ground of appeal is accordingly refused.

[26] However, for the reasons earlier stated, the appeal is allowed. Before disposing of it we shall hear parties on any aspect of further procedure.