Appellant: A Mason; Paterson Bell, Edinburgh

Respondent: I McSporran; Crown Agent

10 March 2011

[1] On 22 July 2008, in the High Court at Glasgow, the appellant was found guilty by a jury of a charge of murder in the following terms:-

"(1) on 23 and 24 October 2006 at Flat 14/6, 34 Scaraway Terrace, Glasgow you IAN TAYLOR and TRACEY HASTIE did assault Brian Sharp, then residing there, tie him to a chair with tape, repeatedly strike him on the body with a hammer and a fork or similar implements and repeatedly strike him on the head with a hammer or similar implement and you did murder him;"

The appellant's co-accused was also convicted on that charge.

[2] The appellant has appealed against that conviction on several grounds, but, for the present purposes, it is necessary only to mention ground 3(a), in respect of which leave to appeal has been granted. That ground avers that the trial judge misdirected the jury in the following respects:

"(a) During the trial a number of civilian witnesses gave evidence about statements made by the appellant's co-accused, Tracey Hastie, in their presence. When the learned trial judge came to direct the jury, he omitted to give any direction as to the use that could be made of this hearsay evidence. In particular, he failed to direct the jury that this evidence could not be used to prove the case against the appellant."

[3] The circumstances were that, in the trial, there was evidence from three lay witnesses concerning statements made by the co-accused Tracey Hastie; the witnesses concerned were Christopher Johnston, Catherine Dillon and Robert Ward. It should be mentioned that there was also evidence from police officers about a statement made at a police interview by Tracey Hastie. So far as the evidence from the lay witnesses was concerned, it has to be recognised that that evidence was prominent, of a significant nature and potentially incriminatory of the appellant. In the course of the trial, counsel for the appellant raised the matter of what might be described as an interim direction which, it was suggested by counsel, might be given by the trial judge to the jury at the time when they were hearing evidence of the kind mentioned. We have a transcript of the proceedings at that stage. The trial judge agreed to give an interim direction and, in connection with the discussion of the matter then, said that he was going to have to give a direction about the admissibility of statements against the appellant at some stage. Further, he was going to require to give such a direction in his charge to the jury.

[4] What he then did, was, first of all, to emphasise to counsel, in the course of the discussion, that the direction that he would give at that time would be along the lines that a statement made by one accused incriminating a co-accused in the absence of the co-accused, was not admissible, and he recognised that he would require to elaborate that at a later stage.

[5] After that discussion about these matters, the jury were brought back into court and the trial judge gave a direction. It is appropriate to quote exactly what he said:

"I was ready to start more or less at 11 o'clock but there has been a matter that I have been having a little discussion with [counsel about] and I should say something about it now, although I want to stress that I will be coming back to deal with it when I come to charge you after the conclusion of the evidence. But, can I just give you one direction in law at the moment that you might want to bear in mind when you are listening to the evidence of Mr Johnston, who has been giving evidence yesterday afternoon, and is going to go on giving evidence this morning, and I do not know, it may apply to other witnesses later on in the case. But the direction is that a statement made by one accused person incriminating a co-accused, in the absence of that co-accused person, is not admissible as evidence against the co-accused. Now that is probably not the easiest concept to grasp, but if you just bear that in mind, I will return and remind you of that when we come to the charge."

[6] What followed after the completion of the evidence was that speeches were made to the jury and in particular, a speech was made by counsel for the appellant. In a passage in the transcript of the speeches which we have available, starting at page 69, counsel for the appellant made reference to the kind of evidence with which this ground of appeal is concerned; at an early stage in his remarks he reminded that jury that what was alleged to have been said by Tracey Hastie to certain other persons, was not admissible evidence against Ian Taylor in the trial and he foreshadowed that that matter would be dealt with by the trial judge.

[7] Finally, the jury were charged by the trial judge and we have a transcript of his charge. It is appropriate to quote the relevant part of the charge. Before doing so, it should be explained that, in the passage concerned, the trial judge was explaining to the jury what he described as certain specialities relating to the evidence. He then went on at pages 9 and 10 of the transcript in these terms:

"Now, the second speciality is that in their respective statements to the police, the accused persons, Ian Taylor and Tracey Hastie each mentioned their co-accused, each mentioned the other, and also in her judicial examination, which you will recall Miss Kell read out, Tracey Hastie mentions Ian Taylor. Before any of this evidence was led several weeks ago, you may remember I gave you a warning, an instruction about this type of evidence and I will now repeat that instruction. What either accused said about the other accused was said outwith that other accused's presence. In these circumstances, what either Ian Taylor or Tracey Hastie said to the police can be evidence for or against themselves but is not evidence for or against the other accused person...".

He then goes on to explain the reasons for that principle of the law of evidence.

[8] It is evident from a consideration of that particular passage in the charge, that, in fact, the trial judge did not revert, as he had promised he would in giving the earlier interim direction, to all of the matters dealt with earlier. In particular, what he said in the charge, in the passage just quoted, we consider, fairly read, relates only to statements made by either accused to the police. Against a background of evidence in the case in which there was other significant evidence of statements by Tracey Hastie concerning the appellant, about which the witnesses Johnston, Dillon and Ward gave evidence, we consider that the direction which the trial judge gave was insufficient and, to that extent, constitutes a misdirection. That is because there was an omission in it to give the direction an appropriate scope which embraced, not only statements made to the police, but also the statements which may have been made by Tracey Hastie to the three other witnesses mentioned. Having regard to the significance of those parts of the evidence in the context of the trial, we have concluded that the misdirection was a material one.

[9] In the course of the discussion of this ground of appeal before us, reference was made to the case Little v HMA 2003 SCCR 713, in which it was held that, where a trial judge has omitted a material direction or given a material misdirection in the course of the charge, neither the trial judge nor the Crown can pray in aid anything the judge may have said in the course of introductory remarks to the jury. We are of the view that the principle in that case applies just as much to what might be described as interim directions given in the course of a trial; that is so especially in a situation where, when those directions were given, it was promised to the jury that they would be given a full direction on the matter concerned in the course of the charge. Thus, we consider that what was said in the interim direction quoted earlier cannot indeed be prayed in aid in connection with the integrity of the charge itself.

[10] The Crown accepted before us that there had been a material misdirection in the form of an omission of an important direction in the charge to the jury and, after careful consideration, it was said that it had been concluded that they were not in a position to argue that that had not resulted in a miscarriage of justice, having regard to the evidential prominence of the statements concerned. In all these circumstances, we have concluded, with reluctance, that the misdirection has been productive of a miscarriage of justice and that it is necessary to quash the appellant's conviction. It would have been a simple matter for the trial judge to give the normal directions which would have been appropriate in all the circumstances of the case, but unfortunately, for whatever reason, he did not do so.

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