Scottish High Court of Justiciary Decisons

Appellant:  Erroch, AD;  Crown Agent

Respondent:  Mackenzie;  McGeehan & Co

12 December 2014

[1]        This is an appeal at the instance of the Crown in terms of sections 107A and 110 of the Criminal Procedure (Scotland) Act 1995.  The appeal is taken from a decision of the trial judge to uphold the defence submission of no case to answer which was made at the trial of the respondent, Christopher Mason, in Glasgow High Court on 8 December 2014.  The procedural circumstances are as follows. 

[2]        The respondent appeared for trial at Glasgow High Court on 4 December 2014 in respect of an indictment which had a single charge subject to a bail aggravation.  The substantive part of the charge is in these terms:

“On 24^th February 2014 at The Bank of Scotland, 1475 Dumbarton Road, Glasgow you CHRISTOPHER MASON did assault KN, c/o Police Service of Scotland, Pollok, Glasgow an employee there, threaten her with a firearm or imitation firearm, repeatedly demand money from her and did attempt to rob her“

On 4 December 2014 a jury was empanelled; the joint minute was read and the trial was adjourned to the following day.  Evidence was led on Friday 5 December 2014 and Monday 8 December 2014.  On 8 December 2014 a submission was made in terms of section 97 of the 1995 Act to the effect that the respondent had no case to answer.  The trial judge upheld that submission.  It is that decision against which the Crown now appeals.  The trial judge suspended the effect of the acquittal in terms of his powers under section 107A(7) of the 1995 Act. 

[3]        In presenting the appeal, the advocate depute referred to the evidence which had been led and relied on by the Crown at trial as amounting to sufficient evidence to support the indictment.  That evidence is narrated in the Crown note of appeal.  We would summarise it as follows. 

[4]        There was clear evidence from the complainer, KN, of facts and circumstances which would amount to an attempted robbery as narrated in the libel in the indictment.  A person who it is agreed was the present respondent entered the bank and sat down in front of the complainer wearing what the complainer described as a disguise.  That was a long-haired wig, a white baseball cap and a colourful scarf which covered part of his face, at least at certain times during the conversational exchanges between the complainer and the respondent.  The fact that the respondent was wearing these items is admitted in terms of the joint minute and these items were recovered from the respondent’s home address.  According to the complainer, the respondent demanded money; told her he had a gun; and motioned to his waistband where she saw something which appeared to be silver, wrapped in duct tape and having the appearance of the handle of a gun.  Then, according to the complainer, the respondent again motioned toward it briefly.  The complainer was shown CCTV footage which was recorded in the bank and she described what appeared there.  She was cross-examined about that.  She accepted that it was difficult to make out on the CCTV what she had described as being in the waistband of the respondent’s trousers.  She gave evidence of the respondent moving his scarf up and down during the conversational exchange in order that his mouth became uncovered and he was better able to speak to her.  At the end of his exchanges with the complainer, the respondent, as can be seen on the CCTV footage which the court viewed, stood up and left.  At that point the complainer described pressing the panic button to indicate that an incident had occurred.  The same CCTV footage was described by a detective constable, DC Keith.  As described by DC Keith, the CCTV images show the respondent approaching the complainer, sitting opposite her, motioning to his waistband then leaving.  In his evidence, DC Keith specifically pointed out the respondent making what he described as a movement to his waistband area and to his repeatedly putting his scarf over his face. 

[5]        There was evidence from a witness who had been in the bank, KM.  She was waiting in a queue when she saw the respondent stand up and leave.  She noticed that he had what she described as a package in the top part of his trousers which he covered by pulling up his trousers as he walked out.  Under reference to a police statement, she accepted that she had described that as “grey and shiny” to police officers when they had questioned her. 

[6]        A further witness, PR, described seeing a man who appeared to be wearing a black wig and being in an agitated state walking up and down and then entering the bank.  Shortly afterwards the witness saw the same man running from the bank and pushing something into his trousers.  The witness PR described that as something shiny.  Its shape was square. 

[7]        In addition, there was evidence relating to a period shortly after what had occurred in the bank when a male wearing a white baseball cap and a tartan or striped scarf was seen by the witness LB in a garden.  At that point a police helicopter was overhead, having been called out on information that someone had presented a firearm (or had a firearm) in a bank.  The evidence of LB was to the effect that when the police helicopter was overhead, the man that she saw, the man with a white baseball cap and a tartan/striped scarf, appeared to be hiding in bushes. 

[8]        Having drawn the court’s attention to the evidence set out in the note of appeal which we have summarised, the advocate depute reminded the court that at the stage of considering a submission in terms of section 97 of the 1995 Act, the Crown case must be taken at its highest, in other words it was to be assumed the evidence was credible and reliable and that in respect of circumstantial evidence that the inference most favourable to the Crown might be drawn by the jury.  He referred in this connection to what had been said by Lord Kirkwood in the case of Fox v HM Advocate 1998 SCCR 115 at pages 138G to 139C. 

[9]        Ms Mackenzie, who appeared on behalf of the respondent, accepted that the advocate depute had correctly stated the applicable law.  However, she submitted that the evidence relied on by the Crown did not in fact support the crucial parts of the complainer’s evidence, these being that the respondent had demanded money from the complainer and made a threat based on the assertion that he had a gun in his possession.  She reminded the court that there was no evidence that what may have been said by the respondent having been heard by any person other than the complainer during the time that he was in the bank. 

[10]      Having considered what was submitted to us, we accept the advocate depute’s submission that in the evidence relied on by the Crown and summarised by us, there was sufficient, if accepted by the jury as credible and reliable, to entitle the jury to convict in terms of the libel in the indictment.  The question for a trial judge when considering submissions in terms of section 97 of the 1995 Act relates to the sufficiency of the evidence and not to its quality.  In the passage cited by the advocate from Fox v HM Advocate Lord Kirkwood said this about the judge’s task:

“At the stage of a no case to answer submission, the trial judge must take the Crown case at its highest and proceed on the assumption that the evidence of the principal witness will be accepted by the jury.  He must then consider whether or not the evidence of facts and circumstances alleged by the Crown to provide the necessary corroboration is, in law, capable of providing that corroboration.  If, in the course of the Crown case a competing explanation has emerged, such as an account given by the accused in the course of a police interview, the trial judge cannot assume that that competing account will be accepted by the jury.  It may well be that the jury will decide to reject that account.  If they choose to do so then that competing account will disappear and the only question which would then arise is whether or not the facts and circumstances founded on by the Crown were capable, in law, of corroborating the evidence given by the principal witness.  Even though that evidence may be capable of providing the necessary corroboration, it is for the jury to decide whether it does corroborate the evidence of the principal witness and whether they are satisfied beyond reasonable doubt that the accused is guilty of the offence with which he has been charged.  If the trial judge held that the supporting evidence was equally consistent with the competing explanation given by the accused, and he proceeded to sustain the submission of no case to answer on that basis, it is my opinion that he would thereby be encroaching on the function of the jury.  Of course, each case must depend on its own particular facts and a situation could arise where in the course of a trial an alternative explanation emerged which could account for the facts and circumstances founded on by the Crown and, having regard to the nature of the competing explanation, it would be proper for the trial judge to reach the conclusion that by its very nature the evidence was so inherently ambiguous as not to be capable of providing the necessary corroboration (Mongan v H.M. Advocate 1989 SCCR 25).”

[11]      In looking at the trial judge’s report in the present case it appears to us that he fell into error by entering into what is the province of the jury, that is the assessment of the quality of the evidence and a consideration as to whether the inferences which the Crown would seek to draw from the circumstantial evidence are inferences which are to be drawn in the particular case.  Whether the evidence which has been led by the Crown in this case will satisfy a jury is a matter for the jury and a matter that has yet to be determined.  However, in our view, the evidence led by the Crown which includes direct evidence speaking to the whole narrative in the indictment, is apt, if accepted, to support a conviction in terms of the indictment.

[12]      Accordingly, we will allow the Crown appeal and in terms of section 107D of the 1995 Act we shall quash the acquittal as being wrong in law and direct the trial to proceed in respect of the offence libelled. 

SM