APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Paton Lord Marnoch	[2013] HCJAC 101 XC202/13   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in the reference from the Scottish Criminal Cases Review Commission   FRANK CARBERRY   Appellant; against   HER MAJESTY'S ADVOCATE   Respondent: _____________

Appellant: SM McCall, A Kelly (Solicitor Advocate); John Pryde & Co (for Taylor & Kelly, Coatbridge

Respondent: I McSporran AD; the Crown Agent

 

5 September 2013

The Conviction and Appeal

[1] On 17 May 2006, at the Sheriff Court in Glasgow, the appellant was convicted, by the unanimous verdicts of the jury, of three charges of indecent assault on males during the years 2000, 2004 and 2005. On 28 June 2006, the sheriff imposed an extended sentence of seven years, five years of which were custodial. On 8 September 2006 the appellant lodged a Note of Appeal against conviction and sentence. Leave to appeal against conviction was granted in respect of one ground only; that being a challenge to the sufficiency of evidence on the first of the three charges. Leave to appeal was refused in relation to the remaining grounds, but granted on sentence. Some months went by pending the appellant's contemplation of an application, under section 107(8) of the 1995 Act, to reinstate the excluded grounds; the content of which has no bearing on the current proceedings.

[2] In or about February 2007 the appellant's agents received information from one John Daly. This was incorporated into an affidavit which was lodged in the appeal process on 16 May 2007. Mr Daly is the brother-in-law of the appellant. He is the husband of Marie Daly, who is the appellant's sister and who took over the running of the appellant's business (Ace Building & Maintenance) during his incarceration (see her letter of 17 January 2008). Mr Daly is a taxi driver. He maintained that, on or about 31 January 2007, some eight months after the trial, he was instructed to pick up a Mrs D from her address in Dumbarton Road. For some reason, he came to fall into a conversation with her about jury duty. Mrs D started telling him about a jury on which she had served in the course of the previous year. She described this as a "same sex" rape case and confirmed that it had been the appellant's trial.

[3] According to Mr Daly, Mrs D told him specifically that one of the jurors had been a university lecturer. This lecturer had:

"... told all the jurors that she had gone on the internet at home and put in [the appellant's] name. She found various articles in newspapers about him and informed the other jurors that these included allegations that he was involved with Arthur Thompson. This juror had then 'painted pictures' of [the appellant's] past to all of them".

 

Mrs D had also said that a juror, who was a mortgage consultant or broker, had gone on the internet on the night after the lecturer had done so. He "had then verified what the lecturer had found on the internet to other members of the jury". There was further information allegedly from Mrs D about various supporters of the appellant being in court during the course of the trial and whom the jurors regarded as intimidating.

[4] On 16 May 2007, the court "received" the affidavit and allowed the appellant 14 days to propose a relative ground of appeal. By this time, the section 107(8) application had been presented. The court appointed a diet of 6 June 2007 at which to decide whether to allow this application and to consider whether the new ground of appeal should form part of the appeal. The proposed ground of appeal, under reference to Mr Daly's affidavit, read as follows:

"From the terms of that affidavit it appears that the jury had access to prejudicial information about the appellant which they should not have had".

 

On this basis it was maintained that the appellant had been denied a fair trial.

[5] The court, which consisted of the Lord Justice Clerk (Gill), Lords Nimmo Smith and Eassie, refused to allow the proposed ground (and relative Devolution Minute) to be "received". They also refused the section 107(8) application. There are no written reasons for either decision recorded. It is clear nevertheless that the court considered that the hearsay of Mr Daly provided an insufficient basis for the launch of an investigation into the workings of the jury. Such a decision would have been made standing the court's knowledge that the jury had been given (charge p 3) the standard direction that:

"you must reach a verdict only on the basis of the evidence and in the light of the directions in law".

 

This direction was repeated (see eg p 8) because of what had been said in the speeches to the jury. It is a direction which many judges and sheriffs give at the commencement of a trial, before the evidence is led. It is not known whether that was done here, because the sheriff has never been asked for his comments on this matter. However, it would appear (see infra) that at least some of the jurors were aware that they should not have been seeking out extraneous information on the appellant. This would point towards some form of direction having been given in advance of what was ultimately undoubtedly said in the charge.

[6] It is apparent from the papers, notably a letter from Messrs Balfour and Manson dated 30 October 2007, that, several months later, consideration was being given by the appellant to seeking the leave of the court to appeal both decisions to the Privy Council. A diet (21 November) was assigned to hear this application. However, by letter dated 13 November (from Messrs Beltrami & Co), the application for leave was abandoned. On 16 March 2008 the appellant abandoned his appeal against conviction and his appeal against sentence was refused on 3 April 2008.

 

The SCCRC Reference (and source material)

[7] The appellant proceeded to make an application to the Scottish Criminal Cases Review Commission almost immediately (ie April 2008) upon grounds which included those based upon the same hearsay of Mrs D as set out in Mr Daly's affidavit. Whilst noting (Reference para 157) the "strange coincidence" of the affidavit's content, the SCCRC interviewed Mr Daly and, at least to a significant degree, afforded his account a certificate of credibility. After sundry communings, the SCCRC petitioned the court in order to ascertain whether the SCCRC could interview the jurors in respect of the "extrinsic" matters referred to by Mr Daly. Following upon the affirmative answer of the court (SCCRC, Petrs (No 2) 2010 SCCR 775), the SCCRC decided first to interview Mrs D.

[8] It is of importance, for present purposes, to note precisely what the SCCRC Reference states that this juror said to the statement taker (as distinct from what Mr Daly deponed that she had said to him). It is as follows:

"165. In the course of her interview, D confirmed that one of the jurors had found information about the applicant on the internet. She thought that this juror was a mortgage broker..."

 

She "flatly" denied that she had been a party to the information. Rather, she had told the juror that she was not interested in the information and would decide the case on its merits. She did not know whether the mortgage broker/consultant had told anyone else about his discoveries and could not remember anything about a lecturer.

[9] The court was provided with the statement taken from Mrs D by the SCCRC on 9 August 2010. The form of this document suggests that, rather than being asked simply to provide her own narrative, the affidavit of Mr Daly was put to her for comment. This is a recurrent feature in the statements taken from other jurors. It is less than ideal as it rather places the statement taker in the role of an inquisitor, who has formed his own preliminary view, rather than an inquirer. Be that as it may, Mrs D stated that she did remember the taxi journey which she had taken over three years previously. However, she said that the content of Mr Daly's affidavit was not correct in so far as it stated that she had said that two jurors had "googled" the appellant's name. Rather, as is also observed in the Reference (supra para 165), only one juror had done this. Mrs D had told that juror, who was male, that she did not want to know and that she was going to look at the case on the basis of the evidence led in court. There is no note of when, during the course of the trial, Mrs D's exchange with this juror took place. On reflection, Mrs D considered, perhaps not surprisingly, that the taxi journey may have been a "set up"; in that Mr Daly was not one of her regular drivers. She was concerned that one of the "iffy looking" people dressed in suits in the public gallery during the trial might have followed her home and obtained her address.

[10] Mrs D's account was taken by the SCCRC (para 167) as being "partially confirming" of the content of Mr Daly's affidavit "insofar as she said that a jury member had obtained information from the internet about the applicant". This may be so, at least if it is understood to mean that a juror had told her that he had done so. However, it is a striking feature of Mrs D's statement that, apart from the existence of the taxi journey and a mention of one googling juror, it is a different, if not a radically different, account of events from that contained in the hearsay report from Mr Daly. In particular, her account is of a male mortgage broker (not a female lecturer) finding information on the internet. It contains no reference to him, or anyone else, telling the other jurors about finding newspaper articles about the appellant, and, in particular, of any involvement with Arthur Thompson. Indeed, it does not say that what the juror had found was in any way adverse to the appellant. It makes no mention of any other juror carrying out an internet search and confirming what the first one had found to other members of the jury. The significance of all of this requires examination.

[11] The SCCRC decided to interview the other jurors. The Reference states (para 168) that Juror No 1 could not "remember" anyone googling the appellant. He thought that he would have done so, had this been done. The statement produced from this juror is in rather more definite terms. It reads that, when he was asked if he remembered a juror looking up the appellant on the internet, he had responded "No, absolutely not". Even if he regarded his memory as "pretty poor these days", he would have liked to think that he would have "remembered something like that". He stated: "I wasn't party to any discussion like that". This is quite different from a mere failure to remember whether something had occurred. It is a clear statement that it had not.

[12] The Reference states (para 169) that Juror No 2 recalled that some people (jurors) had said that "the appellant was a gangster", but could not remember who they were or anyone googling the appellant. Again, if regard is had to the statement, that is not what the juror is recorded as saying. It was that some of the jurors "thought he was a gangster". This appears to be no more than idle comment at some indeterminate point during the trial rather than the conveyance of personal knowledge acquired outwith the court and relied upon in the course of the jury's deliberations. In this context, it is worth remarking that, having observed him at the trial, the sheriff regarded the appellant as a "sinister and devious figure" (Appeal Report p 12). This was before he had read the reports available at the sentencing diet which reinforced (ibid p 13) his view that the appellant was "a dangerous and devious man".

[13] Jurors Nos 3, 4, 6, 7, 8 and 9 either did not respond to the SCCRC's request, indicated a desire not to give a statement, or could not be contacted. Juror No 5 was a lecturer. The Reference, which identifies the lecturer as female, states (para 172) that she had said that she had not googled the appellant nor had she been aware of anyone else doing so. It quotes the juror as stating that the statement taker had put it to her that it would be a natural impulse to find out about the man who was on trial, but she had replied that she knew that this should not be done "in the interests of fairness". The quoted passage from her statement makes it clear that her position is that she did not look up information on the appellant on the internet because she knew that she should not do so. Why she should have formed this view is unclear but, as mentioned above, it suggests that the sheriff may have advised the jurors of this at the outset or that there was material to that effect provided to all cited jurors.

[14] The Reference states (para 178) that Juror No 10 said that she had not discovered anything about the appellant during the trial, although she could "'vaguely remember' someone saying something about the internet". Her statement confirms this. Juror No 11 was Mrs D. The Reference then narrates (para 179) that Juror No 12 was a financial adviser (specifically not a mortgage broker/consultant). The statement taker noted that he "seemed nervous". The juror said that no-one had spoken to him during the trial about the appellant and he could not recall anyone googling the appellant. He had not done so himself. His statement reveals that, somewhat surprisingly, this juror was warned by the statement taker that "he need not answer any question that might incriminate him". It confirms this juror's position that he did not google the appellant nor had he received any extraneous information about him.

[15] The Reference continues by stating (paras 180 to 182) that Jurors Nos 13, 14, and 15 could not recall anyone talking about the internet or googling the appellant. Juror 14 would have remembered if this had been done, because she knew that it was on a list of "dos and don'ts" provided for jurors. The court was not provided with the statement of juror 13. The statement of juror 14 is clear that she had not heard any extraneous information about the appellant during the trial. The statement of Juror 15 is not just that she did not recall anyone googling the appellant; it is that she did not "know anything about that", which is rather different.

[16] The SCCRC originally reached the conclusion that any impropriety that may have occurred during the trial could not be said to have deprived the appellant of a real chance of acquittal, applying the test in McInnes v HM Advocate 2010 SC (UKSC) 28. Accordingly, the SCCRC did not believe that a miscarriage of justice might have occurred. That was in January 2011. Thereafter, further submissions were made and a petition for judicial review of the SCCRC determination was presented. The SCCRC had particular regard to certain English cases, notably R v Hewgill [2012] Crim LR 134 and R v Mears [2011] EWCA 2651.

[17] Upon re-considering the matter, the SCCRC concluded (para 203) that the circumstances of this case were:

"similar to Mears if not more serious. It seems that at least one member of the jury downloaded information from the internet pertaining to the [appellant's] character".

 

This is based upon what Mr Daly claims Mrs D said she was told by the mortgage broker and is in the face of what Mrs D and the financial adviser themselves actually said. The SCCRC found that there were articles on the internet concerning the appellant which had a "generally unflattering tone". It is not at all clear exactly what articles these were. None are identified in the Reference other than by a footnote (para 203) which refers uncritically to the content of the appellant's petition for judicial review (infra). The articles from the press mentioned in the petition appear, on their face, to have been located not by means of a general google search but by using press search engines such as "High Beam" and "Questia". The Reference continues:

"The Commission discovered during its investigation that certain jury members may have had the impression that the applicant was a 'gangster'. The apparent nervousness of juror 12 during his interview may (if indeed he was lying) suggest that he knew that what he had done was wrong".

 

Applying the test of whether the fair minded, independent and informed observer would conclude that there was a real risk that members of the jury had received information from an extraneous source that they could not put out of their minds, the SCCRC (at paras 205 and 206) reversed its previous decision and decided to refer the case on the basis that a miscarriage of justice may have occurred.

[18] The SCCRC went on to consider the question of the interests of justice, including the issues of finality and certainty. The Reference states (para 209) that, although he had served his sentence, a "great social stigma" attached to the convictions, which the appellant had "vigorously contested" from the outset. In addressing "certainty" specifically, the SCCRC regarded (para 210) the need for an authoritative judgment on googling jurors to be a relevant factor. It noted the strength of the evidence against the appellant at trial, but understood that, if apparent bias were made out, that evidential strength would be of no moment. It accordingly considered that it was in the interests of justice to refer the case.

 

Press Articles

[19] In his petition for Judicial Review (supra), the appellant made reference to a number of press reports which, it was averred, were available on the internet. These included a report from the Sunday Mail, from 2000, which described the appellant as a "well-known gangster", a "heavy" and "former associate of" a well-known gangster. It stated that he had made legal history by assaulting a woman by using a severed horse's ear. A report from the Daily Record in 2001, which referred to him as a "love rat gangster", repeated that information and quoted him as saying:

"I have been involved in so many dark dealings with major crooks and hoodlums in the past, I am just surprised I am still alive".

 

It stated that two years previously he had been fined for stalking and terrorising a married couple with whom he had previously worked in a security firm. One year previously, he had been slashed by two Moroccans in Spain in an assassination attempt.

[20] The Sunday Mirror had referred to him as a "former gangster" and "convicted criminal" in 2002. It said that he had been banned for three years from show jumping for bringing the sport into disrepute. Members of the Show Jumping Council were reported to be scared of him. In the same year the Scotsman too had repeated this and continued that he was:

"on first name terms with every Glasgow gangster by dint of having once been one... He was jailed for assault when he was 23 for knocking out a rival's eye".

 

A Sunday Mail report of 24 August 2003 relating to the appellant carried the headline:

 

"Gangster Accused of Child Sex Attack: Scot forced to flee Spain".

 

The relative article quoted the appellant as claiming to be a "former sidekick" of a late gang boss for whom he spent years running brothels and working as a "thug for hire".

[21] In April 2004, the Sunday Mail referred to the appellant having links to organised crime and to alleged sex attacks on a teenage boy. He was said to have been an enforcer who ran a sex sauna and was a key figure in the war for control of Glasgow's security firms. In April 2005 the Sunday Mirror reported the appellant to be "A gangland hard man" who had been convicted of "threatening a partially blind great-granny". He traded on a reputation "as a bully and brutal security enforcer in Glasgow" with "convictions going back 20 years". It said that he had been cleared of a sex attack on a youth on the Costa Blanca.

[22] The SCCRC reached the view (para 203) that any information relative to this alleged sexual assault had not entered the jury room, although it was a feature of the press reports nearest in date to the trial diet. This may be explained if, as already observed, the press reports were not immediately accessible upon a general internet search but only if specialist searches were conducted. It should also be noted that, whatever the reputation of the appellant, in so far as previous convictions are concerned, the schedule reveals that, at the material time, the appellant had no convictions on indictment and (contrary to the press reports) he had never been imprisoned. He did have several convictions for breach of the peace and assault, but all of these were dealt with by way of fines. There is no suggestion that the jury had access to these previous convictions.

The Note of Appeal
[23] The initial Note of Appeal presented after the Reference maintained that the jury had not been impartial because:

"(i) The jury obtained press publicity concerning the appellant in the course of the trial...".

 

The court questioned this generality as it was far from evident from the primary evidence (the jurors' statements) relied upon in the Reference that the jury, or any member of it, had had sight of any "press publicity". This ground of appeal thus appeared to differ from the basis of the Reference, which was founded upon: one juror googling the appellant and finding unspecified information about him; one juror recalling that someone had said something about the internet; and some jurors surmising that the appellant was a gangster.

[24] A new Note of Appeal was formulated in the following, amongst other, terms:

"There has been a miscarriage of justice because the tribunal by which he was convicted lacked the objective appearance of impartiality. The fair minded and informed observer would conclude that there was a real risk that member(s) of the jury had received information from an extraneous source that they could not put out of their minds and which might adversely have affected their view of the appellant...

 

It appears that at least one member of the jury found information about the appellant on the internet during the currency of the trial. A taxi driver (John Daly) was told by a member of the jury (Juror D) that, during the course of the trial, another juror had searched the appellant on the internet and found information about him... Juror D has confirmed that...during the currency of the trial, a fellow juror told her that he had found information about the appellant on the internet... Another juror (juror 10)... had a recollection of overhearing a conversation in the jury room during which someone said something about the internet but...could not recollect if the person said anything about what information they had found on the internet...

 

At the time of the trial, there was information on the internet about the appellant which disclosed his criminal history and otherwise suggested he was of bad character and an associate of organised criminals... Juror 2 remembered some people saying that the appellant was a gangster which suggested there may have been some media influence... The fair minded and informed observer would conclude that it seems at least one member of the jury found information on the internet pertaining to the appellant's character..."

 

In light of the available juror statements, the content of Mr Daly's affidavit falls to be treated as hearsay and of no relevance for present purposes. It might be available to test the testimony of Mrs D, were the case to proceed to an oral hearing of evidence, but it would not be competent evidence of fact. Shorn of its illustrative content, the only operative ground of appeal stated is simply that "It appears that at least one member of the jury found information about the appellant on the internet during the currency of the trial".

[25] The Note proceeds to present what is stated as an alternative ground based on Article 6 of the European Convention on Human Rights. It also narrates that a "compatibility issue" under section 288ZA of the 1995 Act arises because the Lord Advocate prosecuted the appellant in circumstances in which there was a real possibility that the jury would be biased and thus breached Article 6. It was proposed to amend this ground to include an averment that the court had acted in a manner contrary to Article 6 by "presiding over the trial" and "convicting the accused following the verdict of the jury".

 

The Hearing and Submissions

[26] In a Note dated 15 May 2013, following upon a hearing in relation to whether the Reference should be accepted in terms of section 194DA of the 1995 Act, the court expressed concerns about: (1) whether the material in the Reference supported a case, worthy of inquiry, that a member of the jury had downloaded material prejudicial to the appellant and had disseminated it to other jurors; (2) whether the SCCRC had properly taken into account certain factors which might be seen to be relevant to the interests of justice requirement; notably the decision of the Court of Criminal Appeal not to entertain a ground of appeal based upon the information in Mr Daly's affidavit; and (3) whether the grounds of appeal then proffered reflected the basis for the Reference or whether they would require leave of the court to be argued in terms of section 194D(4A and B). The latter matter has been superseded by the reformulation of the grounds, but, otherwise, similar questions remain regarding the new grounds. The court required to be addressed on all points and in particular whether, in light of RM v HM Advocate (No 1) 2012 SCCR 691, this was an appeal following upon a Reference which should be rejected in limine because it was not in the interests of justice that it should proceed.

 

Appellant

 

[27] In a helpful and clear submission, it was contended on the appellant's behalf that the appeal should pass the gateway provision introduced by section 194DA and proceed to the next stage. That stage would be to appoint a single member of the court to hear testimony concerning the proceedings in the jury room relative to any internet search. This would involve the citation of all the jury members and an adversarial process in the High Court whereby each juror would be examined and potentially cross-examined on their activities and comments during the Sheriff Court trial which occurred over seven years ago.

[28] Notwithstanding the reference to Article 6 of the European Convention in the Note of Appeal, it was accepted that the Convention jurisprudence in this area was no different from Scots law. Apparent bias inevitably led to a miscarriage of justice (McTeer v HM Advocate 2003 JC 66; McLean v HM Advocate 2001 SLT 1096). It could not be cured on the basis that the jury were assumed to follow a direction to proceed solely upon the evidence. A compatibility issue arose notwithstanding that neither the procurator fiscal nor the sheriff may have been aware of any apparent bias on the part of the jury. Knowledge was not essential (Miller v Dickson 2002 SC (PC) 30; Campbell v HM Advocate 2004 SCCR 220). In a written Note presented after the hearing relative to the court's concerns about the retroactivity of section 288ZA, it was said that the compatibility issue in the Note of Appeal was whether the first instance court had acted "unlawfully in terms of section 6 of the [Human Rights Act 1998]". After the coming into force of section 288ZA, this was properly characterised as a compatibility issue arising in the current appeal proceedings.

[29] The gate-keeping power of the court to reject a SCCRC Reference should be exercised only in exceptional circumstances. The power had been introduced to meet the concerns of the government about the opening of floodgates in the aftermath of Cadder v HM Advocate 2011 SC (UKSC) 13). It was a judicial review function rather than one which involved the court conducting an inquiry de novo. It should only be engaged if the court could hold that no reasonable reference body could have come to the view that it was in the interests of justice to allow the appeal to proceed. It was, however, accepted that, in reaching its decision to refer, the SCCRC did not appear, within the body of the Reference, to have taken account of the court's decision to refuse to entertain the proposed ground of appeal. This was so albeit that the SCCRC had been aware of that decision. In a letter from the SCCRC dated 2 July 2013, in response to questions from the appellant's agents, it was stated that the SCCRC had taken this into account. If the court had concerns in this regard, it could ask the SCCRC to expand upon this. In relation to the appellant's decision not to proceed with his application for leave to the Privy Council, this had been done on the advice of counsel, who had recommended, for reasons which were not explored, that the appellant apply to the SCCRC instead.

[30] It was sufficient for the appellant's purposes if it could be shown that one juror had googled the appellant and discovered that he was a known associate of gangsters. The same would apply if a juror had read one of the press reports concerning the appellant and not disclosed it. It was accepted that the material placed before the court required to be sufficiently "substantial, convincing and trustworthy to warrant an inquiry" (McCadden v HM Advocate 1985 JC 98, LJC (Wheatley) at 104). The evidence provided by the SCCRC met that test. The denial by the particular juror concerned required to be examined (see Gray & O'Rourke v HM Advocate 2005 JC 233).

 

Crown

[31] The advocate depute submitted that the decision on whether to reject the Reference was a discretionary one for the court. There was material which could justify rejection. The court required to ask itself whether the evidence was prima facie substantial enough to warrant an enquiry. It was not. Where the SCCRC had purported to draw an inference, it was actually engaging in speculation. It was worth considering what was prima facie convincing and trustworthy in the statements. The best that could be said was that a juror may have googled the appellant. The question was whether that merited opening up a conviction years after the event. It was not sufficient that a juror had googled the appellant. In McTeer and McLean (supra) the significant fact was not that the juror had information or displayed animus towards the appellant but that he had failed to declare it when asked to do so. Also, they involved personal knowledge relative to the case. That was not the position here. Even if it were established that hearsay information that the appellant associated with criminals, or was a criminal, had been accessed by a juror, that would not be a reason for concluding that the impartial observer would doubt the impartiality of the jury. There was no basis for doing so.

[32] On finality and certainty, the SCRRC had taken into account that the uncertainty of the law in relation to a googling juror was a factor. This appeal was not a vehicle for an exploration of that issue given the state of the evidence. The SCCRC had not given any consideration to the court's refusal to entertain the ground of appeal or the appellant's abandonment of his attempts to appeal that decision. It flew in the face of the provisions on finality and certainty to ignore these matters. This was an exceptional case in which the court would be justified in rejecting the Reference.

 

Decision

[33] In terms of section 194DA of the 1995 Act, the court may "reject" a Reference if it considers that it is not in the interests of justice that an appeal arising from the Reference should proceed. In determining that matter, the court must have regard to the need for finality and certainty in the determination of criminal proceedings (section 194DA). This provision was inserted into the 1995 Act by the emergency legislation (Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 section 7), which was introduced following upon the decision of the United Kingdom Supreme Court in Cadder v HM Advocate 2011 SC (UKSC) 13. As the appellant submitted, there was an apprehension that there would be a spate of appeals as a result of that decision. However, the provision is not restricted to cases, akin to Cadder, involving the questioning of suspects. It applies to all appeals proceeding upon a Reference. The court accordingly introduced a filtering procedure (Act of Adjournal (Criminal Procedure Rules) 1996, rule 19B.1.(3)) for all such cases as the new statutory provisions presupposed a decision at the outset of the appeal process.

[34] The court thus has a new gate-keeping power to reject a Reference. However, that power should only be exercised in an exceptional case, where, as was said by the Lord Justice General (Gill) in RM v HM Advocate (No 1) 2012 SCCR 691, the SCCRC can be seen as having:

"demonstrably failed in its task; for example, by failing to apply the statutory test at all, by ignoring relevant factors; by considering irrelevant factors; by giving inadequate reasons, or by making a decision that is perverse".

 

The particular context is, however, important in relation to the interests of justice test. The test is a high one and, as expressed by the Lord Justice General, is at least the equivalent of that for judicial review in civil proceedings. It may be higher. Nevertheless, where the SCCRC has failed to take into account a material relevant consideration or taken into account an irrelevant one, its decision will be open to question and the court may form a different view. No doubt, even if the reasoning of the SCCRC were deemed defective by reason of, for example, the failure to take into account a relevant consideration, the court will still wish to consider the whole Reference and determine for itself whether it is nevertheless in the interests of justice that the consequent appeal should proceed. A Reference will be almost always be perceived to be "perverse", in the sense of being one which no reasonable referral body could have taken, if, having considered its terms, it is not, or has not been, possible for the appellant to formulate a ground of appeal which is ex facie arguable (i.e. having some prospect of success). In such a situation it will not be in the interests of justice for the appeal to proceed notwithstanding the SCCRC's determination to the contrary.

[35] The appellant's proposition is that the SCCRC's investigations, following upon the provisional acceptance of the truth of the content of Mr Daly's affidavit, are sufficient to justify the court in launching an adversarial inquiry into the proceedings of a jury. The dangers of embarking upon such a course in relation to the general administration of justice were pointed out with some force in McCadden v HM Advocate 1985 JC 98. There, the court stressed the importance of considering the safeguards which are in place in the system "to prevent the sort of thing complained of here taking place" having the desired effect (LJC (Wheatley), delivering the Opinion of the Court, at 101). As the court said (at 102):

"The whole concept of a trial by jury has inherent in it the possibility that conflicting personal views and prejudices will exist among the jurors".

 

The jury numbers, the judge's directions and the need for an absolute majority for a guilty verdict are all features designed in part to secure a fair trial and a just verdict notwithstanding conflicting personal views and prejudices.

[36] Jurors are not sterile beings immune from the normal thoughts and feelings of ordinary persons. Furthermore, "it is not to be lightly assumed that jurors will ignore the directions" of the trial judge (ibid). Although the particular circumstances in McCadden were different from what is alleged in the appellant's case, the court considered carefully the effects of having inquiries into the workings of a jury on the basis of flimsy material. It set out in clear terms what standard of material was required in the following passage (at 104):

"...it cannot be held that an appeal based on alleged malpractice by a juror resulting in a miscarriage of justice can never be entertained whatever the circumstances. However, before an inquiry into the facts to ascertain whether the allegation is well-founded is ordered the appeal court must be satisfied that the evidence placed before it to substantiate the claim is prima facie sufficiently substantial, convincing and trustworthy to warrant an inquiry. Having regard to the built-in safeguards in the present system to prevent such a miscarriage of justice, and the dangers to the administration of justice which could result from a too facile a resort to such a form of inquiry, ... such an exacting test [is] fully justified".

 

[37] The court fully endorses that approach in the modern era. Applying it to the material presented both in the Reference and in the statements produced, the court has little hesitation in concluding that it falls well short of the standard of information required before the court would contemplate instructing a judicial inquiry into the happenings in a jury room either before or after seclusion.

[38] In analysing the material, it is important to note just what the original hearsay information from Mr Daly's affidavit actually was and to examine the extent to which it was borne out by the content of the statements taken from the jurors. First, Mr Daly deponed that he had been told that it was a university lecturer who had gone onto the internet. It is known that the only lecturer on the jury was female. Mrs D does not say that a female, or any other, lecturer went on the internet. Secondly, Mr Daly swore that he was told that information in the form of articles from newspapers had been located, in which the appellant's connections to Arthur Thompson were mentioned. Mrs D refutes this. She simply says that information about the appellant was found by a different juror, but that she did not know what the information was as she specifically did not ask. Thirdly, Mr Daly maintained that he was told by Mrs D that the lecturer told the other jurors about the appellant's past. Mrs D denies that this happened. There was no such dissemination of information. Fourthly, Mr Daly said that a mortgage consultant had repeated the exercise. The consultant had both searched the internet and told the jury about what he had found. Mrs D denies that this happened. In these circumstances, the court is mildly astonished that the statement of Mrs D could be taken by the SCCRC as "partially confirming" the content of Mr Daly's affidavit in any real sense. Rather, it seems to contradict almost all the salient points.

[39] When reference is made to the content of the statements of the jurors, it is worthy of comment that this content does not always correspond to the summaries in the Reference (see supra). What is abundantly clear, however, is that, apart from Mrs D's reference to "one of the jurors" finding unspecified "information about the [appellant] on the internet", there is nothing in the statements taken which points to any juror: (a) conducting an internet search on the appellant; (b) finding anything bad about the appellant there; or (c) conveying any internet-gleaned information to other jurors. The information provided by all the jurors contradicts the facts contained in the hearsay account given by Mr Daly of what Mrs D had told him in the taxi. It all points to there having been no discussion about any internet discoveries relative to the appellant in the jury room at all. That is the import of the statements when viewed as a whole.

[40] The court is concerned by the idea that a juror was effectively interviewed under caution in circumstances where there was no evidence that he had done anything wrong. He appears to have been questioned on the basis that a hearsay account given by a relative of the appellant was true and in the face of a statement from the author of that hearsay that it was not. The court is not at all surprised that the juror might have been nervous. More importantly, it does not consider that it is legitimate to draw an inference that, because the taker of the statement suspected that the juror might not be telling the truth, the opposite of what he said might be true and thus worthy of judicial inquiry. Apart from what Mrs D said she had been told, there is no evidence that the financial adviser on the jury googled the appellant or found anything adverse to the appellant, far less that he told other jurors about what he had found. Applying the test in McCadden (supra), the court does not consider that what is contained in the Note of Appeal, following upon the Reference, that "at least one member of the jury found information about the appellant on the internet" is a ground which "is prima facie sufficiently substantial, convincing and trustworthy to warrant an inquiry".

[41] It is important to note that the gravamen in McTeer was that the foreman of the jury had personal knowledge of the appellant and had failed to declare this despite the direction from the court to the jurors to do so. The allegation there (which was accepted by the Crown) was that the foreman of the jury was one PC, who was the father of GC, who was in turn said to have been a victim of a previous assault by the appellant. It should be noted en passant, and in relation to the need for reliable information before engaging upon inquiries, that, after the appeal had succeeded, it transpired that GC's father was not PC but EC, who had not been on the jury at all. In McLean, the complaint was that one of the jurors was aware, from her personal knowledge, that the appellant was a shoplifter. Again the problem identified was that a juror with personal knowledge significantly adverse to the credibility of the accused had sat on the jury and participated in the decision making process. In McTeer, which was an assault case, the personal knowledge assumed was that the accused was violent. In McLean, in which the accused gave evidence, it was that the accused was a dishonest person. It is not surprising therefore that the court reached the view that there was an appearance of partiality in both cases. There is no issue concerning personal knowledge in the appellant's case.

[42] Contrary to the view of the SCCRC (para 194), neither R v Hewgill [2012] Crim LR 134 nor R v Mears [2011] EWCA 2651 are in point. Hewgill involved an acquitted accused communicating with members of the jury about a co-accused over a period of two hours, with the jurors reporting the matter to their colleagues before reaching a verdict. Mears concerned a juror discussing the case with a third party. The juror had been communicating by text with her fiancé, who had been observing proceedings (including parts not involving the jury) from the public gallery. One of the messages from the fiancé said "guilty". Both cases are concerned with breaches of the standard direction to juries not to discuss the case with other persons. They are not concerned with accessing hearsay information publicly available. In relation to the latter, it remains not unreasonable to expect that juries will normally continue to act in accordance with the standard directions to decide the case solely upon the evidence properly led in court.

[43] The test to be applied, were the court to be deciding the merits of the case, is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased (Porter v McGill [2002] 2 AC 357, adopted in Helow v Secretary of State for the Home Department 2009 SC (HL) 1, Lord Rodger at para [14]). Such an observer reserves judgment until he has seen and fully understood both sides of the argument. He is not unduly sensitive or suspicious. He is informed on all relevant matters (Helow (supra), Lord Hope at paras [1] to [3]). These will include the directions given to jurors. On the information contained in the statements, such an observer would not consider that there was any real possibility that the jury was biased. Quite the contrary, the statements, taken at face value, indicate that the unanimous verdicts of the jury were reached following upon a consideration of the evidence alone.

[44] The court is quite unable to make the leap from a comment from a juror (No. 2) that some members of the jury thought that the appellant was a gangster to a conclusion that the jury had somehow accessed material adverse to the appellant on the internet. In this connection, from the description which the sheriff gives of the appellant during the trial and the presence of the "iffy" characters in court, it is hardly surprising that some members of the jury might have formed that view. Furthermore, it is clear from the press articles produced that, at the time of the trial or shortly before it, the appellant had a reputation in Glasgow as a gangster, or former gangster. According to the press reports, he seems to have gloried in that reputation.

[45] As referred to above, juries are not selected from the ignorant in the community. If a person has a reputation in the community, the jury, or at least some jurors, will be expected to be aware of this. The appellant himself is most likely to know, or be in a position to find out, about what his reputation actually is. If it is considered that the reputation of an accused in a particular community is so bad that it is likely to prejudice an accused's prospects of obtaining a fair trial, he is entitled to enter a plea in bar of trial or to request the court to transfer the trial to another part of the country. It will be for the court to decide on whether it is in the interests of justice to take particular steps to eliminate, or to reduce as far as possible, the prospect of any potential unfairness. If a person with a particular reputation does not seek any such measures, the court is entitled to proceed on the assumption that the accused is content that the trial should proceed in the forum selected according to the normal practices and procedures of that forum. It will not be a good ground of appeal that measures not asked for should have been taken. In this particular case, for the appellant to succeed, he would have to demonstrate that the googling juror accessed information which was not already in the public domain and which was prejudicial to his interests in a material way. The material presented does not begin to demonstrate this.

[46] There are two further matters of concern in relation to the considerations which did, and did not, feature in the Reference. The first is that, in relation to a consideration of the interests of justice, the SCCRC are statutorily bound to consider "finality and certainty in the determination of criminal proceedings" (1995 Act s 194C(2)). In deciding whether to reject a reference, the court must have regard to the same need for such finality and certainty (s 194DA). These provisions, also introduced by the emergency legislation, mark a departure from the previous position whereby it was solely for the SCCRC to determine where the interests of justice lay (Crombie v Clark 2001 SCCR 231, Lord Prosser, delivering the Opinion of the Court, at para [4]). They may again be amended by making it a requirement that, before quashing any conviction challenged in an appeal following upon a reference, the court must be satisfied not only that there has been a miscarriage of justice but also that it is in the interests of justice, having regard, inter alia, to the principles of finality and certainty, to do so (Criminal Justice (Scotland) Bill 2013 section 82, introducing new sections 194(1A) and (1B) into the 1995 Act).

[47] The direction to have regard to finality and certainty relates to the need, in any civilised criminal justice system, for there to be a recognised end to the criminal process, at least in all but the most exceptional of cases. As the Lord Justice General (Gill) said in Toal v HM Advocate 2012 SCCR 735 (at para [108]):

"...the need for finality and the interests of justice are not opposed concepts. The former is an aspect of the latter. There is a legitimate public interest in the maintenance of a jury verdict unless there is a substantial reason to doubt its integrity... Where there is a challenge to a jury's verdict, it is in the interests of justice that it should be brought to a final decision within a reasonable time. Expeditious disposal of appeals is in the interest of appellants, of victims, ... and of the public generally..." .

 

[48] In determining whether it is in the interests of justice for a case to proceed upon a reference, regard must be had to what has gone on in any prior appellate proceedings involving the same case (see Hunt v Aitken 2009 SCCR 919, Lord Reed, delivering the Opinion of the Court, at para [4]-[5]). When the court has refused to allow a Note of Appeal to be amended to include a new ground, that will normally be seen as an end to the pursuit of that ground (subject to any competent appeal) not only by the appellant but also by others affected by the case, such as any victims, and the public in general. It will almost always be a relevant and material consideration therefore to take into account the fact of such a refusal, and any reasons for it, before determining that it is in the interests of justice that a reference be made or that an appeal be allowed to proceed on the strength of it. There is no suggestion in the Reference itself that the SCCRC did have regard to this important consideration. The court notes that the letter from the SCCRC dated 2 July 2013 states that the SCCRC did take this into account but, assuming that to be so, the manner in which it did so is not explained.

[49] The decision of the Court of Criminal Appeal on 6 June 2007, in respect of Mr Daly's affidavit, was that the content of this affidavit did not provide a sufficient basis to instruct an inquiry into the jury's communings. That decision was entirely in line with the dictum of the Lord Justice Clerk (Wheatley) in McCadden (supra). Furthermore, the appellant chose not to seek leave to appeal the court's decision. That is another relevant and material factor which requires to be taken into account. In such circumstances, the court would expect the SCCRC to explain why it nevertheless determined to refer the case back to the court five years later on what is an identical point with no more significant substantiating material. In this regard, the court considers the Reference to be inadequately reasoned in terms of the Lord Justice General's dictum in RM v HM Advocate (at para [33] supra). The court itself is unable to see what basis there might be for referring a case where the ground of appeal, and the supporting material for it, has been deemed inadequate even to allow it to be entertained in the appeal process and the appellant has elected not to pursue that matter by seeking leave to appeal. For this reason also the court, having had regard to the need for finality and certainty, does not consider that it is in the interests of justice that this appeal proceed

[50] The second matter is that the terms "finality and certainty" in the legislation are references to the need for the particular case to be seen as concluded (other than in exceptional circumstances); hence the phrase "in the determination of criminal proceedings". They do not constitute a direction to the SCCRC or the court to have regard to the need for certainty in the substantive law. In so far as the SCCRC have determined otherwise (para 210), an irrelevant consideration has been taken into account, again in terms of the dictum in RM (supra).

[51] In relation to the appellant's alternative ground under Article 6 of the Convention, the court does not perceive that any separate point arises. It is accepted that the applicable principles of domestic law are no weaker, from the appellant's perspective, than those arising under the European jurisprudence. Indeed they may be stronger (cf Pullar v United Kingdom 1996 SCCR 755). In these circumstances, where the domestic law is compliant with the principles of the Convention, there is no need to look further at these principles as if they formed a separate code of law as distinct from an umbrella provision by which domestic principles can be tested.

[52] The proposed Note of Appeal purports to raise a "compatibility issue" in terms of section 288ZA of the 1995 Act based upon the actings of the Lord Advocate. The proposed amendment to the Note seeks to raise another such issue in relation to the court "presiding over the trial" and "convicting the accused following the verdict of the jury". This amendment appears to attempt to make a distinction between the sheriff and the court, which includes the jury. Be that as it may, a compatibility issue under section 288ZA includes a question of whether a public authority (including the court) has acted in a way which is made unlawful by section 6(1) of the Human Rights Act 1998. The compatibility provisions provide, inter alia, for the possibility of an appeal to the United Kingdom Supreme Court where a compatibility issue has been decided by the High Court.

[53] Section 288ZA only came into force on 22 April 2013 (Scotland Act 2012 (Commencement No 3) Order 2013 (SI No 6)). The court understands from this and the terms of the Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (SI No 7) that there can only be a compatibility issue in respect of something which has occurred before that date if it was capable of being a devolution issue (a "convertible devolution issue"). If it were otherwise, a right of appeal, for example, would come into being in respect of an act when such a right did not exist at the time of that act. It follows from this that a compatibility issue cannot arise in respect of an act of the court occurring prior to the commencement date, since it could never have been a devolution issue. It can arise in respect of an act of the Lord Advocate (including a procurator fiscal), provided that the devolution issue had not been "finally determined" before the commencement date (SI 2013 No 7 para 2(1)(c); see O'Neill v HM Advocate [2013] 1 WLR 1992, Lord Hope at paras 4-11). Any devolution issue arising as a result of the actings of the procurator fiscal was determined when the court refused to allow the matter to be included in the original grounds of appeal (see eg Cadder v HM Advocate 2011 SC (UKSC) 13, Lord Hope at para [11]). A determined devolution issue cannot become converted into a compatibility issue by virtue of a Reference from the SCCRC.

[54] The court, in any event, doubts the relevance of the somewhat vague contention that the Lord Advocate acted in a manner incompatible with Article 6 "In prosecuting the appellant before the jury..." (see Note of Appeal). The procurator fiscal would have been entirely ignorant of any taint of the jury throughout the proceedings. In this respect the case is distinguishable from Millar v Dickson 2002 SC(PC) 30 where all the facts were known; even if the Crown's understanding of the law did not ultimately find favour. On any view, the prosecution of the appellant before the jury could not have been in breach of Article 6 unless and until a juror had googled the appellant and came up with damaging material which might have affected his judgment. It is not specified when this was and that lack of specification may be critical. If any googling was at a stage after the fiscal had concluded his speech to the jury, the fiscal would have been functus in so far as any conviction was concerned. Without specification, it is difficult to identify what act of the fiscal could be regarded as a breach of the fair trial requirement and thus a devolution issue. In any event, it follows from the court's conclusions on the material presented that it is not satisfied that there was any breach of Article 6 which could give rise to a compatibility issue, convertible or otherwise.

[55] For all of these reasons, the court considers that this is an exceptional case in which it is not in the interests of justice that this appeal proceeds. It will therefore reject the Reference in terms of section 194DA.