Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 54

HCA/2016-000618/XC

Lord Brodie

Lord Drummond Young

Lady Clark of Calton

NOTE OF REASONS

given by LORD BRODIE

in

APPLICATION FOR LEAVE TO APPEAL TO THE UNITED KINGDOM SUPREME COURT

by

MICHAEL STUART

Applicant

against

HER MAJESTY’S ADVOCATE

Respondent

Applicant:  Templeton;  Faculty Services Ltd

Respondent:  M Meehan, AD;  Crown Agent

27 June 2017

[1]        This is an application by Michael Stuart in terms of section 288AA(5) of the Criminal Procedure (Scotland) Act 1995 for permission to appeal to the United Kingdom Supreme Court against what he submits was a determination of a compatibility issue by two or more judges of the High Court.  As required by the Act of Adjournal (Criminal Procedure Rules) 1996 the application is made in writing in Form 40.9.  The application is opposed by the Lord Advocate. Mr Templeton appeared before us and presented submissions in support of the application.  The advocate depute had lodged Written Observations by the Crown.  Under reference to these Observations he invited the court to refuse the application.

[2]        A compatibility issue means a question arising in criminal proceedings inter alia as to whether a public authority, which includes the court, has acted in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.  In other words, whether the authority has acted in a way which is incompatible with a right guaranteed by the European Convention on Human Rights.  On such an appeal the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue (1995 Act section 288AA(2)).  When it has determined a compatibility issue, the Supreme Court must remit the proceedings to the High Court in terms of section 288AA (3) of the 1995 Act.  The Supreme Court has no more general jurisdiction to review decisions of the High Court.  Appeal to the Supreme Court lies only with the permission of the High Court or, failing that permission, with the permission of the Supreme Court (1995 Act section 288AA(5)). 

[3]        The applicant was convicted after trial on indictment in the High Court sitting at Glasgow on 14 October 2016 of a charge of contravention of section 28(1) of the Criminal Justice and Licensing Scotland Act 2010 in that he agreed with others, including Andrew Steven, Dean Kimmins and Kenneth McMullen, to become involved in serious organised crime.  Steven, Kimmins and McMullen had been respectively the first, third and fourth accused on the indictment in which the applicant was the fifth accused.  In his report to the Appeal Court following on the applicant’s appeal against conviction and sentence the trial judge (Temporary Judge Murphy QC) observed that the case against the applicant had been a circumstantial one, dependent upon mobile phone contact and a meeting with the first and third accused and a payment into his bank account by the first accused which was said by the Crown to be of the nature of a commission for the introduction of the third accused as a customer for a prohibited firearm and ammunition.  There had also been evidence of what might be regarded as an incriminating conversation between the applicant and his brother who was then in prison.  The position adopted on behalf of the applicant at trial had been that he had not been party to any such agreement and that he had had no such involvement, the payment into his bank account being a loan.  The applicant had not given evidence.

[4]        The circumstances now founded on by the applicant as constituting a contravention of the guarantees provided by Article 6 of the European Convention on Human Rights are set out in the application lodged on his behalf.  In brief, the complaint is that following the closure of the Crown case the advocate depute at trial accepted a plea of guilty from the first accused in the presence of the jury, the terms of which included a narrative to the effect that the first accused had agreed with Kimmins, McMullen and the applicant to become involved in serious organised crime.  This had been done without prior notice to counsel for the applicant.  The jury was thus made aware that the first accused conceded and accepted that he had behaved in a criminal manner and that this involved the applicant.  The Crown had been substantially advantaged by the manner in which the plea was recorded and the applicant had been disadvantaged.

[5]        A motion was made to the trial judge on behalf of the applicant and the third and fourth accused that he should desert the trial on the basis that the applicant and his co-accused could not get a fair trial given the prejudice to their positions by reason of the circumstances of the recording of the plea.  As the trial judge explained in his report to the Appeal Court he accepted that what had occurred gave rise to a real risk of prejudice but that the test for deserting the trial was whether the prejudice was so grave that no direction by the trial judge might be expected to cure it:  McFadyen v Annan 1992 SCCR 186, HMA v Sinclair 1986 JC 113.  The trial judge did not consider that that test was met and he repelled the motions to desert.  When he came to charge the jury the trial judge gave directions to the effect that the first accused’s plea of guilty had no bearing on the case against any of the other accused, was not evidence against them and gave rise to no adverse inference (transcript of charge and verdict pages 35 and 36).

[6]        Thereafter the applicant raised a compatibility issue before the trial judge by giving written notice of his intention to do so by minute in Form 40.2, as required by Rule 40.2(2) of the Act of Adjournal.  It was in the following terms:  

“a. The minuter has been deprived of the right to adequately present his defence under article 6(3)(b).  By accepting the plea to charges 1 and 107 on the indictment as libelled, without prior consultation with counsel for the minuter, the Advocate Depute failed to afford the minuter with an opportunity to question or oppose the acceptance of the plea as libeled in open court before the jury.  The plea submitted by the first accused after the closing of the Crown case but before the termination of the trial is now available to the jury as evidence of art and part criminality on the part of the minuter.  The first accused has substantially supplied the Crown’s case against the minuter after closing their case.

b.  As a consequence the minuter is now effectively presumed guilty;  i.e. to have agreed to do something he ‘knew or suspected or ought to reasonably to have known or suspected would enable or further the commission of serious organised crime’, or to have acted with various identified persons, in breach of s5(2A)(a), (b), (c) and (d) of the Firearms Act 1968 as amended by the Anti-social Behaviour, Crime and Policing Act 2014.  The burden of proof has been shifted onto the defence when it ought to have remained with the Crown until the end of the whole proceedings (Tallis v HM Advocate, 1982 SCCR 91;  Lambie v HM Advocate, 1973 JC 53).  The minuter no longer enjoys the presumption of innocence he is entitled to enjoy under article 6(2).  (Barberà, Messegué and Jabardo v Spain, no.  10590/83 § 77, ECHR).

c.  The minuter has been placed at a position of disadvantage.  The prosecution has gained a substantial advantage in the proof of their case and it is an advantage of a nature that can not now be challenged by the minuter in the leading of evidence or offset by counsel or the Judge in addressing the jury.  It is an inherent principle to the right to a fair trial that of the equality of arms, the Crown have now gained an advantage such that the defence can not achieve a redress if the trial continues (R v Fredrick [1990] Crim. L. R. 403 (CA (Crim Div)).  As a result the minuter’s right to a fair trial under article 6(1) has been compromised to a point where a fair trial is impossible.”

[7]        The trial judge determined the compatibility issue by concluding that the applicant’s Convention rights had not been breached.  The trial proceeded and the applicant was convicted by majority verdict of the jury. As required by section 110 of the 1995 Act he lodged an intimation of intention to appeal and a Note of Appeal.  As Mr Templeton confirmed to us during his submissions, the applicant’s Note of Appeal contained four proposed grounds of which only ground 2 related to the complaint of prejudice due to the manner of the recording of the plea by the first accused. The right of appeal is subject to a requirement for leave (sections 106(1) and 107).  The decision whether to grant leave is that of a single judge of the High Court (section 107(1)) but where leave is refused by a single judge the appellant may apply to the High Court for leave in terms of section 107(4) of the 1995 Act. The practice is to consider applications for leave on paper without appearance.  The applicant was refused leave by a single judge.  His appeal from that refusal in terms of section 107 (4) was refused by a formation of the High Court constituted by the judges who constitute this court.

[8]        The applicant submits that permission ought to be now granted for an appeal to the Supreme Court for the following reasons:  (1) the applicant is suffering loss of liberty through a conviction based on an action of the Crown enacted to secure a conviction by denying the applicant a fair trial;  (2) the Appeal Court accepted that the act was improper but that it had supposedly been cured by a direction whereas the act and the consequent prejudice could not be cured by a direction;  (3) it is in the public interest to ensure in future that the Crown do not take such advantage of circumstances to subvert the trial process and given the apparent differing position in the English jurisdiction (R v Frederick 1990 Crim L R 403), it is in the public interest that the United Kingdom has consistency as to whether such actions are curable by jury directions.

[9]        There is however a preliminary question as to whether a compatibility issue has been determined by two or more judges of the High Court in this case.  It arises in this way.  Undoubtedly a compatibility issue was determined by the trial judge.  The applicant appealed against conviction and sentence in terms of section 110 of 1995 Act.  As we have already indicated, the procedure set out in section 110 includes the requirement to lodge a Note of Appeal as specified in section 110(3).  It is not competent to found on a ground not contained in the Note of Appeal except with leave of the court (section 110(4)).  In the present case, the applicant lodged a Note of Appeal in terms of which he narrated that he appealed against conviction and sentence on what he stated to be “the following grounds”.  There followed in the Note of Appeal four numbered paragraphs, only paragraph 2 being now of relevance.  It includes the contention, which is repeated, that having regard to the plea being recorded in open court and in front of the jury, the applicant could not receive a fair trial.  The latter part of that single paragraph begins with the sentences: “Further this situation raised a compatibility issue in terms of the Human Rights Act 1998 and a minute was lodged and argued at the conclusion of the evidence.  This was refused.”  There then follows a quotation of the material terms of the compatibility minute (as appears above) with a final sentence: “The appellant could not receive a fair trial for the reasons outlined.”  Thus , although the minute is quoted, there is nothing in the Note of Appeal which states explicitly that the appeal is directed at the determination of the compatibility issue by the trial judge.  Prior to consideration of the application for leave to appeal by the High Court in terms of section 107(4) of the 1995 Act, there was submitted to the court a note by Mr Templeton supporting a grant of leave to appeal.  No mention is made in that note of the compatibility issue.  However, notwithstanding the absence of any explicit reference to a request to the High Court to determine the compatibility issue or to reconsider the determination of the compatibility issue by the trial judge it was submitted to us by Mr Templeton on behalf of the applicant that by refusing leave to appeal, as the High Court had done, where a compatibility issue had been lodged and determined by the trial judge, the High Court must be taken to have determined that issue.  It was his submission that while the point may not have been stated explicitly it could be clearly inferred from the terms of the Note of Appeal.  When the advocate depute came to address the court, he supported Mr Templeton in his submission that it was reasonably apparent from the Note of Appeal that one of the matters which the applicant wished to bring to the consideration of the High Court in appealing against the refusal of leave by the single judge was determination of the compatibility issue.  In these circumstances, while we have certain reservations as to whether it can properly be said that there has been a determination of a compatibility issue, we are prepared to proceed on the basis put forward by Mr Templeton and agreed with by the Crown.  We shall therefore consider the merits of the application for permission. 

[10]      We have read the application for permission to appeal and the associated written material presented with it.  That includes a written submission dated 19 June 2017 and specific to this application.  While the emphasis would appear to be on what appears at paragraph (c) of the compatibility minute:  that the prejudice to the applicant by reason of the taking of the plea was such that a fair trial was impossible, and therefore essentially a repetition of the point available under the common law of Scotland under reference to McFadyen v Annan, we also note the submission at paragraph (a) that the applicant was deprived of his right adequately to present his defence, as guaranteed by Article 6(3)(b) of the Convention and the submission at paragraph (b) that he was effectively presumed guilty. We have not been persuaded that any of the submissions in the compatibility minute are reasonably arguable.  Moreover, while section 288AA(5) of the 1995 Act does not set out any particular criteria by which this court should determine an application of this sort, the approach which has been adopted is that it will only be appropriate to grant permission if the case raises not only an arguable point  of law but an arguable point  of law of general public importance (see Jones and Doyle v HM Advocate  XC302/09 and XC303/09 at paragraph [4], and Macklin v HM Advocate [2013] HCJAC 41 at paragraph [1]).  We have not identified any such point here.  We accept the Crown’s submission on that.  Importantly, while the decision in the instant case is criticised in its result, it is not said that it demonstrates a general divergence of Scots law and practice from the requirements of Article 6 as explained by the Strasbourg jurisprudence (cf Maclennan v HMA HCA/2015/4818/XC at paragraph [5]).  It was suggested that the law was different in England and reference was made to the (brief) report of R v Fredrick [1990] Crim LR 403 (CA (Crim Div)).  There is of course no general expectation that criminal law and practice in Scotland should be the same as in England but, equally, where a difference in approach can be identified which bears on the fairness of the proceedings, that may inform a question as to whether Scots law and practice are Convention compliant.  However, that is not the situation here.  Putting it shortly, as we understand matters in England, as in Scotland, each case has to be decided on its own facts and the question will be whether particular prejudice can be cured by an adequate warning in the trial judge’s summing up (R v Batth [1990] Crim LR 727, Sookram v The Queen [2011] UKPC 5 at paras 16,17,19 and 20)

[11

]      We shall therefore refuse the application.  That of course is not necessarily an end to the matter because it is open to the Supreme Court to grant permission if it considers it appropriate to do so in the event of a renewal of the application