Appellant: C M Mitchell; Drummond Miller

Respondent: G Mitchell, Q C, AD; the Crown Agent

23 October 2012

[1] On 7 April 2011, at Cupar Sheriff Court, John Goldie ("the appellant"), who is now deceased, was found guilty of six charges involving two complainers. The first group of three charges libelled respectively: common law lewd, indecent and libidinous practices against the first complainer, a close relative of the appellant, while she was under the age of 12, at addresses in Fife and in a car; and two similar charges under section 5 of the Sexual Offences (Scotland) Act 1976 and under section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995, involving the same complainer when she was under 16, also occurring in a car in the 1990s. The charges all involved the appellant going into the complainer's bedroom, removing her clothing and touching and licking her private parts. The second group of offences involved: common law lewd practices towards another close relative in the 1980s by touching her private parts over her clothing in a car; a similar charge under section 5 relative to incidents in the late 1980s and the early 1990s; and a further charge, also in similar terms, but libelling indecent assault, occurring in the 1990s through to 2008. Ultimately the verdicts of the jury on charges 1, 4, 5 and 6 were by a majority, but those on charges 2 and 3 were unanimous.

[2] Leave to appeal was granted on one point only, viz: that it was not possible for the jury to return verdicts other than by a majority and that, as a result of the jury failing to do so, the appellant had not received a reasoned judgment and had thereby not had a fair trial. It therefore falls to notice some aspects of the sheriff's charge to the jury, which was unfortunately not properly electronically recorded as it should have been. However, the sheriff was able to report, in detail, that he had directed the jury that, in relation to sufficiency of evidence, it was necessary for the jury to hold that the principles of mutual corroboration applied. He said, in particular:

"You have to believe the witnesses who speak to the individual charges. If you don't, there can be no corroboration. So if you believe the complainer in any particular charge, then you would have to find corroboration from a credible witness who speaks to any of the other charges.

Because each complainer is corroborating the other it goes further. Unless you accept as credible, reliable and accurate and have no reasonable doubt about the evidence of both complainers, the accused must be acquitted of all charges. If one of them is not believed, or if there is a reasonable doubt, then the whole case goes. It follows that this case must result either in a conviction of at least one charge in respect of each complainer, or an acquittal of all the charges. There is no room for convicting in respect of one complainer and not the other. It's all or nothing".

[3] The appellant's submission was that the returning of some verdicts in respect of both complainers by a majority, and others against one complainer unanimously, was inconsistent. It was therefore not "reasoned" and hence not compatible with the right to a fair trial under Article 6 of the European Convention on Human Rights. It demonstrated that the jury, as a whole, could not have understood the directions. It was accepted that the court had faced a similar set of circumstances in HJL v HM Advocate 2003 SCCR 120, where it had been argued that there was an inconsistency in returning a verdict unanimously on one charge, but by a majority on the other. The court had held that the verdicts demonstrated that the majority of jurors had properly followed the directions and the appeal had accordingly been refused. Nevertheless, that case, it was submitted, was determined prior to the European Court of Human Rights' decisions in Judge v United Kingdom 2011 SCCR 241 and its forerunner, Taxquet v Belgium (2012) 54 EHRR 26. The jury ought to be regarded as a homogeneous whole (see McTeer v HM Advocate 2003 JC 66, LJC (Gill) at para [16]), and it was not enough to say that a majority of the jurors had believed both complainers. Had the jury properly understood the directions, they could not have returned the verdicts which they did. They could not be seen to have been operating within the framework of the directions given (see Leihne v HM Advocate 2011 SCCR 419, LJG (Hamilton) at para [47]).

[4] The Crown response was that the ultimate question was whether the proceedings as a whole could be viewed as fair. This required the accused and the public to be able to understand the reasons for the verdicts in the context of the speeches and charge. Jury trial was compliant as a generality with Article 6 (see Judge v United Kingdom (supra)). Both the accused and the public would be able to understand that the majority of the jury had understood and followed the directions. The verdicts could not be classified as unreasonable, hence the absence of an appeal on that ground (see section 106(3) of the Criminal Procedure (Scotland) Act 1995). HJL v HM Advocate (supra) was binding on the court and there was nothing in the European Convention jurisprudence with which it was inconsistent.

[5] The question for this court is whether the proceedings, viewed as a whole, were fair, and seen to be fair, in Article 6 terms. This requires an assessment of whether sufficient safeguards were in place to avoid any risk of arbitrariness and to enable the accused to understand the reasons for the verdicts. Such safeguards include, for example, the directions given, the framework for the jury's verdicts and also the availability of an appeal (Taxquet v Belgium (supra) at para 92). The public, or at least the informed observer, must be able to understand the verdicts which have been returned (Judge v HM Advocate (supra) at para 35).

[6] Both the informed observer and the appellant in this case would be left in no doubt about the reasons for the verdicts. This was a straightforward trial, involving three essential witnesses; the two complainers and the appellant. The issue was one of credibility, eminently suitable for determination by a jury. The jury were directed, first, that, if they believed the appellant, or his evidence provided them with a reasonable doubt, then they must acquit. They were also clearly directed, secondly, that, in order to convict of any charge, not only did they have to believe the evidence of the complainer involved in that charge, but also believe the complainer on at least one of the other charges. The reason for this was that, unless they believed both complainers on at least one charge involving that complainer, the requirement for corroboration, a major component in the law of evidence in all criminal cases, could not be met. Thus, in the context of the issue to be resolved and the framework of the directions, the verdict is easily understandable to both the accused and the informed observer as meaning that at least a majority of the jurors rejected the appellant's version of events and accepted as credible and reliable the evidence of each complainer on the charges libelled. They must have accepted that the charges had been proved beyond reasonable doubt on the strength of that evidence. In these circumstances, the court does not consider that there has been any unfairness, in Article 6 terms, with the verdicts returned.

[7] It is perhaps worthy of comment that neither party, nor the sheriff, noticed any apparent inconsistency in the verdicts at the time. The proposition that there might have been a misunderstanding in the minds of a minority of jurors about the applicability of the principles of mutual corroboration is essentially speculative. The verdicts returned are logically explicable on the basis that, whereas all jurors believed the first complainer on charges 2 and 3, one or more of them derived corroboration for these charges from different elements of the second complainer's testimony; that is to say from the evidence on different charges relating to that complainer. In any event, had the sheriff considered that there was a potential inconsistency and required the jury to retire in order to reconsider their verdicts, all that could have achieved in favour of the appellant was that all the verdicts would have been returned by a majority.

[8] In these circumstances, the court does not consider that any miscarriage of justice has occurred and it will therefore refuse this appeal.

DL