Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 55

HCA/2014/3952/XC

Lord Justice Clerk

Lady Smith

Lord Brodie

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

DAVID MACKAY

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Act: McCluskey; Faculty Services Ltd (for Bridge Litigation, Glasgow)

Alt:  Brown QC AD; the Crown Agent

7 May 2015

Introduction
[1]        On 21 August 2014, after a trial lasting 4 days at Fort William Sheriff Court, the appellant was convicted of two charges involving wilful fire raising in areas of forestry.  The first was on 27 March 2013 at the Carnoch electricity sub-station, Argyll.  The second was four days later on 1 April 2013 in Glen Tarbert.  On 16 September 2014 he was sentenced to 2 years imprisonment on each charge, to run concurrently.

[2]        The appeal raises issues about the sufficiency of evidence.  It also concerns the appropriate procedure to adopt when a juror notifies the court that he knows one of the witnesses.

Evidence
[3]        The appellant worked for Scottish Water.  He was also a part time fire fighter based at Strontian.  The loci of the charges are within a few miles of that address.   Unknown to the appellant, there was a global positioning system (GPS) installed in his Scottish Water van.  In relation to charge 1, this demonstrated that the van had left Strontian at about 1.19pm on the date libelled in charge 1 (27 March 2013).  At 1.24, the van was located at a point just a few yards from where the fire at Carnoch was set.  The van had remained at the locus for just under a minute before returning to Strontian at about 1.30.  A witness identified the appellant driving a Scottish Water van shortly after 12 noon on the same day heading towards Strontian.  He had seen the same van parked at the fire station 90 minutes later.  The fire fighters had been called out to the fire at 1.39pm.

[4]        In relation to charge 2, the watch fireman at Strontian had been called out to 2 fires on 1 April 2013.  This was a public holiday which attracted double pay for fire crews, including the appellant.  The second of the fires had been at Glen Tarbert and had taken some 5 hours to extinguish.  There had been no obvious ignition source.  The appellant’s van was tracked from outside Strontian at about 2.05pm on that date to a point only a few yards beyond where the fire was set at about 2.18.  It remained there for a few minutes before returning to Strontian at 2.28pm.  Another witness identified the appellant driving the van towards the locus at about 2pm.

[5]        On 1 April 2013, the owner of the Carnoch estate had been picnicking with his family at a point overlooking Glen Tarbet.  His wife had commented on the presence of a white van in a lay by, near what was to become the locus of the fire.  She had shouted “fire” as the van had pulled off.  The owner had used his binoculars and had seen the fire where the van had been.  He had telephoned his tenant, namely JF, aged 71.  He told him of the fire and that the occupant of the van had started it.  He had then gone to the fire station, where he met the appellant and told him that he had seen someone setting the fire.  The appellant responded by saying that one of the fire fighters had seen the fire and tried to get it under control.  This had surprised the owner, as he had not seen anything of this. 

[6]        JF, who had also seen the first fire four days earlier, had gone to the locus of the second fire and spoken to 2 fire fighters, including the appellant.  He mentioned the white van to the appellant.  The appellant had said that another employee from Scottish Water had told him that the glen was on fire when he had met him in Strontian, which was 5 miles away.

[7]        At interview on 12 April 2013 the appellant said that he had been alerted to the second fire through his pager.  No-one else had used his van on 1 April.  He agreed that it had been his van in the lay by at about 2.18.  He said that he had not started the fire.  He could not recall telling JF that a colleague from Scottish Water had told him about the fire. He had gone to the area for no particular reason other than a drive.

The Juror and the witness
[8]        The trial began on the morning of 18 August 2014; the jury having been empanelled by 11.30am.  During the lunchtime interval, a juror passed a note to the clerk of court asking if it would be a problem if he knew the witness, JF.  The juror’s concern may have been prompted by the sheriff’s standard introductory remarks about drawing such matters to the attention of the clerk.  JF had not yet given evidence, but the fact that he was involved in the case had been mentioned by one of the witnesses that morning.  The clerk spoke to the juror, who told him that the witness had previously worked for his father.  He had known him for years.  The juror said that he did not think that this connection would affect his consideration of the case.  The clerk made this information known to parties.

[9]        The issue was discussed by the parties and the sheriff in chambers immediately after lunch.  Whether that was at the instance of the clerk or one of the parties is uncertain.  The clerk was present in chambers.  The sheriff reports that he did not initiate this procedure.  The sheriff has a limited recollection of what transpired.  His report proceeds upon an assumption, presumably erroneous, that these events occurred on the afternoon of the second day of the trial (see infra). 

[10]      Exactly what was said in chambers is unclear.  According to an affidavit from the appellant’s agent, she stated that “the defence would wish the removal of any bias”.  The procurator fiscal depute and the sheriff had expressed a desire to continue the trial with all 15 jurors.  The agent maintains that the sheriff instructed the clerk to tell the juror that, should he later feel that he was feeling compromised because of the relationship, the juror should re-raise the matter.  The trial continued without objection.

[11]      On the following day, the trial re-commenced in the afternoon.  The appellant’s agent had, in the interim, decided that she should raise the same matter as had been discussed in chambers “in open court”.  She did this, albeit fleetingly.  The transcription of the proceedings, which has been obtained, is that all that the agent said was:

“… in relation to a juror who has made it known to the court he is known to one of the Crown witnesses.  I simply wish to have it placed on record that that is a concern to the defence.  It’s already been discussed with Your Lordship.  I’d simply…”.

The sheriff had interrupted with “yes” and the matter was not pursued.

[12]      The minutes record the agent “expressing concerns” that the juror knew the witness.  Enquiries had established that the “witness had worked with the jurors (sic) however, did not feel that this would predujice (sic) any decisions he may be required to make”.  It is minuted that the court “informed the juror that at any point he felt uncomfortable with the evidence given and position he was in he should inform the court immediately without speaking to any of the other jurors”.  It would appear, therefore, that the minute actually reflects what happened in chambers the previous day in accordance with the agent’s request that the discussion be put on record.  The agent expressly accepts in her affidavit that at no point, whether in chambers or in open court, did she move the court to excuse the juror and to proceed with the remaining fourteen (cf 1995 Act, s. 90).

[13]      JF’s testimony was heard later that afternoon.  It lasted just 12 minutes.  He was asked 5 questions of a peripheral nature in cross-examination.  His credibility was not challenged.  There was no reference to his evidence by either party in their speeches to the jury.

Grounds of Appeal and submissions
[14]      The first ground of appeal narrated that JF was a significant witness because he had spoken to the “unusual and suspicious conversation between himself and the appellant.  Therefore his credibility and reliability was an issue”.  The discussion in chambers had contravened section 92(1) of the Criminal Procedure (Scotland) Act 1995, which prohibits any part of a trial taking place outwith the presence of the accused.  This had been a fundamental irregularity contrary to a peremptory statutory provision.  A miscarriage of justice had thereby occurred.  There was no need to show actual prejudice (Drummond v HM Advocate 2002 SCCR 108, Watson v Griffiths 2004 SCCR 723).  The sheriff had erred in leaving it to the juror to hear the evidence and then to decide whether he felt himself biased.  Any directions to the juror ought to have been given to the juror by the sheriff in open court and not by the clerk or bar officer (McLeod v HM Advocate 2006 SCCR 676; McColl v HM Advocate 1989 SCCR 229).

[15]      The second ground was that there had been insufficient evidence to prove that the fires had been set deliberately.  There had been no forensic evidence.  The fires might have been started in a number of ways.  There was no evidence that the appellant had committed the act, even if the van were linked to the locus and the appellant linked to the van.  Mutual corroboration should not have been applied.  The appellant had not been identified as the perpetrator of the crimes.  Howden v HM Advocate 1994 SCCR 19 did not apply as the identification of the appellant had been only as the driver of the van and not as the perpetrator of the crime. 

[16]      The advocate depute contended that there had been no miscarriage of justice.  No application to excuse the juror had been made in chambers or open court (Pullar v HM Advocate 1993 JC 126).  The discussion in chambers had not formed part of the trial.  There was no need for it to have occurred in open court.  Even if it had been part of the trial, no prejudice could possibly have occurred (Drummond v HM Advocate (supra); Lindsay v HM Advocate 2005 SCCR 514).  It was not to be assumed that the juror’s knowledge of the witness would have led him to ignore the evidence or directions of the trial judge (Pullar v HM Advocate (supra) at 134, 1996 SCCR 755 at 762, 763).  There was no need for the sheriff to have interviewed the juror (McGrory v HM Advocate 2013 SCCR 113).  Although it had been said in Allan v HM Advocate 2009 SCCR 331 (at para [16]) that no communication should normally take place between the judge and his advisers in an informal manner where what was said was not recorded, the commentary to the report of that case had questioned the application of that dictum in relation to administrative matters.  In this case, the matter had been formally recorded upon the following day.  The appellant did not submit that there was any bias of the juror towards the appellant.  The fair minded and informed observer would not conclude that there was a real possibility of bias (Lindsay v HM Advocate 2005 SCCR 515).  The communication between the juror and clerk was one of an administrative nature and did not constitute a contravention of section 92 (Carswell v HM Advocate 2009 JC 59).

[17]      There had been sufficient evidence that the fires had been set deliberately.  The fires had broken out within a relatively close time span.  There had been no obvious ignition source.  The owner of the Carnoch estate had given evidence of the fire being present as the van had driven off.  The appellant had told him that the fire had been deliberately set.  The evidence demonstrated that the appellant had been sufficiently identified as the perpetrator.  He had been seen in the vicinity of both fires.  As the sheriff had reported, the ground of appeal ignored the remarkable coincidence of the brief visits of the van to each locus shortly before the fire was observed.

Decision
The Juror and the witness
[18]      Section 92 of the Criminal Procedure (Scotland) Act 1995 provides that “no part of a trial shall take place outwith the presence of the accused”.  In Drummond v HM Advocate 2003 SCCR 108, Lord Marnoch, delivering the Opinion of the Court, traced the history of section 92 back to its origins in the Criminal Justice Act 1587.  He stressed (at para [15]) that a breach of this peremptory section will “generally give rise to a ‘fundamental irregularity’, with the necessary result that any ensuing conviction will fall”.  In the normal case, therefore, if any part of a criminal trial, such as the leading of evidence, hearing of objections, making of submissions, giving directions to jurors or taking the verdict, takes place in the absence of an accused, there will be no need for an appellant to show actual prejudice for any consequent conviction to be regarded as a miscarriage of justice.

[19]      The accused has a fundamental right (subject to the exceptions in the 1995 Act, s 92(2)) to be tried in his presence.  Nevertheless, the court in Drummond recognised that: “The situation might be different if it could be affirmed with certainty that no prejudice to the accused could possibly have occurred”.  The court could not affirm the absence of prejudice in Drummond, in which the accused had, during the course of his own testimony, been excluded from the courtroom, pending a debate about what another witness had said during the earlier part of the trial.  Consent of his counsel to this procedure could not waive the fundamental right.

[20]      There is a distinction between matters intrinsic to the trial on the one hand and administrative matters relating to it on the other.  It is essential, as a general rule, that all substantive parts of the trial should take place in the accused’s presence, to enable him to know what is happening in the case against him and to comment where appropriate.  However, administrative matters relating to the management of the trial are not intrinsic to it and can be dealt with outwith the accused’s presence without breaching section 92 of the 1995 Act (Thomson v HM Advocate  1997 JC 55, LJG (Rodger) at 58, Lord Coulsfield at 68).  In a situation such as the present, for example, it is inevitable that there will be communication between the juror and clerk.  The juror will require to inform the clerk of his potential difficulty and the clerk may require to clarify the extent of that difficulty with the juror before telling the sheriff and the parties of the fruits of his enquiries.

[21]      What occurred in chambers was not a substantive part of the trial.  A communication had been received from the juror.  This was communicated to parties.  The discussion in chambers was about what should happen next.  It was an informal exchange of views.  It was thereafter for the parties to decide, in the formal context of the trial, whether to make a motion to excuse the juror in terms of section 90 of the 1995 Act.  Had such a motion been made, the sheriff would have had to decide: (a) whether further enquires of the juror ought to be made; and (b) whether to grant the motion and proceed with only 14 jurors.  Such formal steps would require to be taken in the presence of the accused.  However, that stage was never reached.  All that the appellant’s agent did in chambers was to express a general concern.  This was repeated in court on the following day.  In the absence of any positive application, there was no obligation on the sheriff to take any formal steps in the trial process.

[22]      In any event, no miscarriage of justice can be seen to have occurred.  Contrary to what is said in the Note of Appeal, the witness’s credibility was not challenged.  His evidence was not particularly “significant”.  In this case, therefore, it can be affirmed that no prejudice to the appellant could possibly have occurred.  The fact that a juror knows a witness is not per se a reason for assuming potential bias and acceding to a motion to reduce the jury to 14.  Bias is not to be presumed from the mere fact that a juror chances to know one of the witnesses (Pullar v HM Advocate 1996 SCCR 755 at para 38).  There would have to be something more, whereby the fair minded and informed observer, having considered the nature of the connection between the witness and juror, would conclude that there was a real possibility that the juror (and hence the jury) would be biased.  There is nothing of that nature in this case.  Had a motion to excuse the juror been made on the information before the court, the sheriff would have been bound to refuse it.

[23]      This case does illustrate once more the problems which can occur where there are discussions in chambers in solemn cases.  The first problem with such discussions is that they are not electronically recorded.  This can present difficulties in ascertaining exactly what has been said or decided in the event of a dispute.  In this case, the sheriff’s notes were not sufficient to prompt an accurate memory.  There was no minute made in the court process at the time.  If, for whatever reason, it is thought necessary to have an informal discussion in chambers, it will often be important, if the discussion is not recorded electronically, to convene the court immediately thereafter and to place what has happened on record.  That was done here to some extent, but only on the following day and in a limited fashion.

[24]      In the normal situation, the better practice remains one of avoiding discussions with parties about a particular case in chambers.  If all communications take place in court, and are thus electronically recorded, the type of situation which has arisen here will be avoided (Allan v HM Advocate 2009 SCCR 331, Lord Carloway, delivering the Opinion of the Court, at para [16]).

Sufficiency
[25]      The testimony disclosed that on each occasion a Scottish Water van was seen near the locus at or about the time when a fire was observed.  The time gap in relation to the first charge was minutes and on the second the van and the fire were seen simultaneously.  It was reasonable to infer in each case that an occupant of the van was connected with the fire, and hence that the fires were deliberately set.  The appellant was connected to the van as its driver on each occasion.  The appellant himself said that no-one else had used it on 1 April. The van had made apparently pointless trips to each loci a few minutes before the fire crews, including himself, were called out.  Each fighter stood to gain from such call outs.  In these circumstances, there was a clear sufficiency of evidence without a need to apply the principle in Howden v HM Advocate 1994 SCCR 19.  However, the similarities in the crimes and the presence of the Scottish Water van at each location at the relevant time were sufficient to permit its application.

[26]      The appeal is accordingly refused.