Appellant: MC MacKenzie; Drummond Miller

Respondent: Bain, QC, AD; the Crown Agent

13 December 2012

[1] On 13 February 2012, at Kilmarnock Sheriff Court, the appellant was convicted of a charge which, as the verdict was returned by the jury, libelled that:

"on 26 August 2011, at ... Kilmarnock, ... [he] did assault [SY] and demand money, pursue him, push him on the body, place a knife against his body, search his pockets and did rob him of a mobile phone and £55 thereby of money".

He was sentenced to 26 months' imprisonment (including 3 months for a bail aggravation).

[2] The evidence came first from the complainer, who had been returning to his flat having put his bin out. He was approached by the appellant who, essentially, presented a knife at him and removed £55 and a mobile phone from his pocket. The complainer contacted the police shortly afterwards. During cross-examination it was put to the complainer that, rather than this being a robbery, the appellant had been recovering a debt. He had previously provided the complainer with three weeks of board and lodging. Consequently, the complainer had owed the appellant money, which the complainer had promised to give him back. He had done so in part by handing over the £55, but had included his phone as security for the balance. This was all denied by the complainer.

[3] There was evidence to corroborate the complainer's account, from a female friend of the appellant, in relation to the removal of the money and the phone and which confirmed the use of violence. The only other witness was a police officer, who had traced the appellant and had recovered both the phone and money from him. He had been present when the appellant had been cautioned and charged. He was asked by the procurator fiscal depute if there had been any reply to the caution and charge. He had replied "No". At that, the procurator fiscal depute went on, without objection, to ask, "So he never said 'I was given the money' or 'I was given the mobile phone'". The officer said "No" and repeated that there had been no reply made.

[4] Notwithstanding the detail of the positive account put to the complainer in cross-examination, the appellant elected not to give evidence.

[5] In her speech to the jury, the procurator fiscal depute mentioned that the appellant had not given evidence. She had proceeded to say that that had meant that she had not had an opportunity to question him or to test his evidence in a similar way to that which she had been able to do with the witnesses. She then commented on the absence of a reply to caution and charge. In particular, she told the jury that they could take the failure to provide an explanation when charged "into account", although she did not explain the manner in which they might do that. Effectively, however, she was asking the jury to draw an adverse inference from the absence of a reply.

[6] The agent for the appellant, in his address to the jury, stated that no adverse inference could be drawn from the fact that the appellant had not given evidence, or had not replied to a caution and charge. He said that he was "quite certain" that the sheriff would give them a clear direction to that effect. The sheriff, indeed, directed the jury that, as a generality, they could not draw "any adverse inference" from the absence of evidence from the appellant, but he gave no directions at all on the effect of a lack of a reply to the caution and charge.

[7] The appellant has lodged a Note of Appeal complaining about the questions asked by the procurator fiscal depute in relation to the caution and charge, the depute's remarks to the jury about that and the sheriff's failure to direct the jury that no adverse inference could be taken from the absence of a reply. This, it was argued, had resulted in a miscarriage of justice. It is important to note that the matter was presented purely in terms of the Scots criminal law principles of fairness and not upon a breach of Article 6 of the European Convention. This was no doubt advisedly, given the European jurisprudence in this area (see, for example, Adetoro v United Kingdom, unreported 20 April 2010, No. 46834/06 paras 47-49).

[8] In response, it was accepted by the Crown, as it was bound to be, that the procurator fiscal depute should not have asked the jury to draw an adverse inference from the appellant's failure to respond to caution and charge. However, standing the evidence in the case, there had been no miscarriage of justice, which was the appropriate test (see Brodie v HM Advocate 2012 HCJAC 147, LJC (Gill) at paras [34] et seq). Indeed, it would have been open to the sheriff to have directed the jury that they could have made something of the absence of evidence from the appellant, given the positive case presented in cross-examination but not supported by evidence.

[9] The court considers that the procurator fiscal depute ought not to have asked the police officer the leading question about the failure of the appellant to explain that he had been given the money and phone. Indeed, it is uncertain what probative value the evidence about the general absence of a reply to the caution and charge might have had. However, it was not objected to and nothing turns upon the admission of this evidence in these circumstances (Criminal Procedure (Scotland) Act 1995 section 118(8)).

[10] The comments of the procurator fiscal, which effectively invited the jury to draw an adverse inference from an accused person's failure to reply to caution and charge, were clearly inappropriate and may well, in many cases, lead to a conclusion that a miscarriage of justice has occurred (Robertson v Mitchell 1951 JC 11). Where such comments are made, the court considers that a direction should be given by the sheriff to the effect that no such inference can be drawn. The failure by the sheriff to give such a direction was an error in law. The question, however, remains of whether the misdirection was a material one and that therefore a miscarriage of justice has occurred (Brodie v HM Advocate (supra)). In that regard the court notes the preponderance of evidence against the appellant and the absence of any contrary version of events for the jury to consider. It is of significance that the cross-examination put forward by the defence agent was not supported by any evidence. In these circumstances, the sheriff could, and probably should, have directed the jury that, although the appellant's failure to give evidence did not add to the Crown case, they could more easily draw the inferences which they were invited to draw by the Crown, in the absence of an alternative explanation for the appellant's possession of the complainer's cash and phone (see McIntosh v HM Advocate (No. 1) 1997 SCCR 68). The sheriff's failure to do so must have been beneficial to the appellant's cause.

[11] Having regard to all the circumstances, the court has concluded that no miscarriage of justice has occurred. There is no realistic possibility that, had the sheriff properly directed the jury in relation to the absence of a reply to caution and charge, the verdict would have been one of acquittal. The appeal is accordingly refused.

DL