Scottish High Court of Justiciary Decisons

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Cite as: [2018] ScotHC HCJAC_64, [2018] HCJAC 64

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Menzies

Lord Glennie

Lord Turnbull

[2018] HCJAC 64

HCA/20018/000116/XC

OPINION OF THE COURT

delivered by LORD MENZIES

APPEAL AGAINST CONVICTION

GARY McKNIGHT

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: Keenan, Sol Adv; Capital Defence Lawyers (for Graham Walker, Solicitors, Glasgow)

Respondent: Prentice, Sol Adv, QC, AD; Crown Agent

4 October 2018

[1] On 29 January 2018 the appellant was convicted at Falkirk Sheriff Court after trial of

two charges in the following (amended) terms:

“(1) On 25 August 2015 at Hazel Avenue, Menstrie you GARY McKNIGHT did

assault John Rawding, c/o The Police Service of Scotland and did drive motor vehicle

registered number NC54 ESO towards him at speed, mount a pavement and strike

said John Rawding with said vehicle to his severe injury and to the danger of his life.

and

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(2) On 25 August 2015 at Hazel Avenue and Cedar Grove, Menstrie you GARY

McKNIGHT did assault Craig Thomson, c/o The Police Service of Scotland and did

punch and kick him on the head and body, to his injury.”

The appellant was sentenced to four years imprisonment. He has appealed against

his conviction.

The evidential background

[2] The trial lasted five days. The sheriff in his report to this court stated as follows:

“4. The picture presented by the Crown on that evidence was as follows: the

complainer in the first charge had stolen a bike belonging to witness Lynne

Crawford which had been left unsecured outside a friend’s house in Tullibody. Ms

Crawford was at that time in a relationship with the appellant who lived with her at

another address in Tullibody. She telephoned the appellant, who was driving home

in his car, a Nissan X Trail 4 x 4, and who said he’d look out for it. The appellant

then came across the complainers at the locus in Menstrie, a short drive from the

house in Tullibody. Both complainers were riding bikes. The complainer in charge 1

was riding the bike that had been stolen and the appellant recognised it as such. The

complainers were travelling in the opposite direction to the appellant. The appellant

decided to take matters into his own hands. He proceeded to turn right at a

roundabout shortly ahead, not by turning left and going round the roundabout, but

by turning to the right immediately before the roundabout and doing a u turn, then

proceeding at speed in the direction from which he had originally come and towards

the complainers. They were now aware that they were being pursued and headed

for a gap in a wall leading from the pathway at the side of the road to some houses.

The appellant intentionally mounted the grass verge and footpath and drove his

vehicle towards the gap. In doing so he struck the complainer in charge 1. His

vehicle came to a halt. Thereafter, he got out of the vehicle and assaulted the

complainer in charge 2. He retrieved the bike, which had been damaged by the

collision, put it in his car and drove off. He drove to the house of Ms Crawford’s

friend and parked the car in the drive next to the house. The police were alerted and

were made aware of the registration number of the appellant’s vehicle (NG54 ESO)

and the registered keeper’s address, as well as a description of the vehicle. The

registered keeper’s address was the address of the appellant. They went to that

house but there was no trace of the car. However, they spotted a vehicle of the same

description in the drive of the friend’s house albeit there were two refuse bins placed

directly at the back of it obscuring the rear number plate. They encountered the

appellant outside the house and when told that they were there in connection with

an incident in Menstrie, the appellant indicated he was aware of the incident and

confirmed he was the driver at the relevant time. The vehicle was identified as the

vehicle involved in the incident. The appellant was detained.

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5. In his interview at the police station (Crown Label 1 and Crown

Production 13), the appellant, whose solicitor was present, at various stages replied

“no comment” to questioning but also went on to give an explanation as to what had

occurred, as he put it, his ‘version of events’. In short, he stated that he was

attempting to cut off the first complainer’s escape by driving into the gap in the wall

and that he did not intentionally hit the complainer with his car. In relation to the

second charge, he admitted striking the second complainer and putting him to the

ground after the complainer tried to hit him. In reply to caution and charge, as set

forth in the joint minute, the appellant replied:

Charge 1: ‘That’s not true.’

Charge 2: ‘It was eh, it was a 50/50 thing fella, it was self defence as I said to you

when I got out the motor to check on that boy, he was trying to attack us.’”

The sheriff’s charge

[3] The sheriff in his report to this court accepted that when charging the jury he did not

give a direction on mixed statements. However, he referred to two passages in his charge in

which he gave a direction as to the statement given to the police. At pages 13/14 of his

charge he gave the following direction:

“Now in this case you’ve heard evidence, and you’ll see from the transcripts, that the

accused answered certain questions put to him by police officers with the phrase,

‘No comment’, or words to that effect. Now, you cannot read anything adverse

against the accused by his acting in this way in the interview. The fact that he did so

cannot be held against him. The accused, in so acting, was simply exercising his

right but, of course, you will recall that in fact he went on to give an explanation in

relation to the incident and that’s obviously for you to consider, but the ‘no

comment’ responses within that interview should not, in any circumstances be held

against him.”

Later in his charge the sheriff gave the following direction (at pages 23/24):-

“Now, finally, please, I would like you to consider all of the evidence relied on by the

Crown and the submissions made by the fiscal. Give equal consideration to the

defence case. In reaching your verdict you have to assess the quality, strength and

effect of the evidence and decide if the case against the accused had been proved or

not. It’s your decision what conclusion you reach. If you believe what the accused

said to the police in the interview in so far as that pointed to his innocence, if you

believe evidence supporting his special defence of self defence, if you believe any

other evidence pointing to his innocence, you must acquit him, Even if you don’t,

but that evidence leaves you with a reasonable doubt about the Crown case, you

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must acquit him. But if you are satisfied beyond reasonable doubt that he’s guilty, it

is your duty to convict him.”

[4] The sheriff concluded his report to this court with the following observations:

“The critical issues were: in charge 1, whether the appellant deliberately attacked the

complainer with his vehicle; and in charge 2, whether he acted in self-defence. In my

view, in light of the above directions, the jury were well aware that they could take

into account the exculpatory parts of his statements to the police in deciding those

issues.”

Submissions for the appellant

[5] Mr Keenan for the appellant, emphasised that the appellant did not give evidence at

the trial, and the only evidence of his position with regard to these charges was contained in

his police interview. The content of that interview was critical evidence for the defence. His

position, as explained to the police at interview, was that the collision with the bicycle in

charge 1 was accidental, and lacked the necessary intent for assault. His position with

regard to charge 2 was that such force as he used against the complainer in charge 2 was in

self-defence. There was no dispute that the interview constituted a mixed statement, and

there was no dispute that the sheriff did not give a specific direction to the jury as to how

they might treat mixed statements, such as was discussed in the Jury Manual at pages 25.1 -

25.5, and in Morrison v HM Advocate 1990 JC 299 and McCutcheon v HM Advocate 2002

SCCR 101.

[6] Although the sheriff made reference to the transcript in the passage quoted above (at

pages 13/14), he only dealt with the “no comment” responses within the interview. He did

not direct the jury as to what use they might make of the exculpatory elements of the

interview. Although the second passage quoted above (at pages 23/24) went some way to

addressing the issue, it did not go far enough, and did not do so satisfactorily.

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[7] Mr Keenan drew attention to three specific deficiencies in the charge – (1) the jury

were not directed that the whole statement was available to them as evidence in the case; (2)

they were not directed specifically that the statement was available as evidence where the

accused had not given evidence at trial; and (3) they were not directed that the mixed

statement in this case was an exception to the general rule against hearsay evidence. These

were specific directions which should have been given – McGirr v HM Advocate 2007 SCCR

80 at para 12; Jones v HM Advocate 2003 SCCR 94 at para 11; Scaife v HM Advocate 1992

SCCR 845 at 847/848.

[8] Moreover, when the charge was considered as a whole, other directions were apt to

confuse the jury as regards the correct approach to the mixed statements. Early in his charge

(at pages 1/2) the sheriff stated:

“What does evidence consist of? Well, first, you must understand what’s evidence

and what’s not…. What’s been agreed by each side and recorded in a joint minute, is

evidence … What a witness says in the witness box is evidence. Questions – and this

is important – or suggestions put to witnesses aren’t evidence. They only become

evidence if the witness agrees with what’s been put, but if all a witness did was to

agree with what’s put, you need to take care in deciding what weight to give to that.

But it’s what the witness says in the witness box that’s the evidence.”

Nowhere did the sheriff indicate that the contents of a mixed statement to the police might

amount to evidence.

[9] Indeed, some other directions given by the sheriff might have suggested that the

statement by the accused in police interviews did not amount to evidence. At page 8 of the

charge the sheriff directed the jury: “In this case the accused has neither given evidence nor

led evidence from any other source… Don’t assume the Crown case is … proved just

because there’s been no defence evidence.” At page 10/11 the sheriff directed the jury as

follows:

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“Now, another aspect of this evidence was the use of prior statements. You’ll

remember I have already explained that normally speaking it is only what a witness

says in the witness box which constitutes evidence. The consequence of that is that

usually evidence of what a witness said to someone else is called hearsay and is not

admissible. However, there are exceptions to that rule…”.

The sheriff then went on to direct the jury about the use they could make of prior

inconsistent statements, and prior statements adopted by the witness as their evidence. He

made no reference at any point in his charge to the statement made by the accused to the

police as being an exception to the hearsay rule.

[10] It was submitted that it was a material misdirection for the sheriff not to give a

specific direction to the jury that, in the absence of oral evidence from the accused in the

witness box, the contents of his interview with the police were available as evidence to be

considered. Reference was made to Irvine v HM Advocate 2000 JC 321 at 324B/E, and Lennox

and Boyle v HM Advocate 2002 SCCR 954 at paras [6] to [9].

[11] The sheriff’s charge was liable to confuse the jury as to whether they could have

regard to the appellant’s statement to the police. This statement was of critical importance

to the defence, because it was the only place at which the appellant set out his position

regarding accident in relation to charge 1, and self-defence in relation to charge 2. Nowhere

in his charge did the sheriff touch on the appellant’s position regarding accident.

[12] If the jury followed that part of the charge which directed them as to what amounted

to evidence, they may have excluded that appellant’s police interview as evidence. If they

followed the direction as to what constitutes an exception to the hearsay rule, they were told

that the general rule is that the contents of a prior statement are hearsay, and they were told

about one exception to this general rule. The sheriff did not go on to explain, for example,

that the appellant’s police interview was another exception to the general rule on hearsay,

nor did he indicate that it had any evidential value.

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[13] As in the case of Lennox and Boyle v HM Advocate, there were contradictions between

different parts of the sheriff’s charge, and it cannot be assumed that the jury were able to

resolve these, or that they applied the directions at pages 23/24 of the charge rather than the

earlier, and contradictory, directions.

[14] The contents of the appellant’s interview with the police were so central to his

defence that a miscarriage of justice had occurred and the convictions should be quashed.

Submissions for the Crown

[15] The advocate depute reminded us that a charge to the jury should not be regarded as

an academic exposition of the law of evidence, but should be tailored to the issues arising in

the trial. The issues which the jury required to resolve were clear and in sharp focus – was

the collision in charge 1 an assault or was it accidental, and was the force used by the

appellant in charge 2 an assault or in self-defence.

[16] The advocate depute accepted that the sheriff’s charge did not give the standard

Morrison and McCutcheon direction. However, in this case the issues were narrow and clear,

and what the sheriff did was adequate.

[17] If the court took the view that there was a misdirection, the advocate depute

submitted that in any event there was no miscarriage of justice. At page 17/18 the sheriff

referred to the appellant’s position regarding self-defence in relation to charge 2. He went

on to give them standard directions about self-defence, with which no issue had been taken.

This could only have been relevant if the contents of the appellant’s statement to the police

amounted to evidence to which the jury could have regard. The jury must be taken to have

understood this. In a trial in which the issues were so narrow and focussed, it was

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stretching credulity to suggest that the jury would not have understood that they could

consider the contents of the police interview, and the appellant’s position stated therein.

[18] There was therefore no misdirection, and even if there was, there was no miscarriage

of justice, and the appeal should be refused.

Decision

[19] It is not disputed that the appellant’s police interview was a mixed statement. This is

clearly correct. With regard to charge 1, the appellant accepted that he caused his car to

collide with the bicycle being ridden by the complainer, but his position was that he was

attempting to shut off a gap through which the complainer was seeking to escape, and that

the collision was not intentional. With regard to charge 2, he accepted that he hit the

complainer, but only after the complainer had hit him first, and that he was acting in self-

defence. There were plainly elements of the interview which were exculpatory, and other

elements which were incriminatory. The interview was led in evidence by the Crown. The

appellant did not give evidence on his own behalf. This might be described as a paradigm

of a mixed statement requiring a direction to the jury.

[20] What is required by way of direction will vary from case to case, but there are certain

essential elements. The general principles were set out by the Lord Justice General (Cullen)

giving the opinion of a court of nine judges, in McCutcheon v HM Advocate 2002 SCCR 101

(particularly at paragraph 11). The requirements were conveniently summarised by the

Lord Justice Clerk (Gill) delivering the opinion of the court in McGirr v HM Advocate 2007

SCCR 80 at paragraph [12]:

“[12] We repeat once more that it is for the trial judge and not the jury to decide

objectively whether a statement made by the accused is a mixed statement, that is to

say one that is partly incriminatory and partly exculpatory in its effect (cf

McCutcheon v HM Advocate; McIntosh v HM Advocate, Lord Justice Clerk Gill at

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para 18). Where the Crown lead evidence of such a statement, the trial judge must

direct the jury that its contents are available as evidence for or against the accused,

whether or not the accused gives evidence (Jones v HM Advocate); and that they must

determine whether the whole or any part of the statement is to be accepted by them

as the truth. He should also specifically direct them that if they believe the

exculpatory part or parts of the statement, or if the statement creates in their minds a

reasonable doubt as to the guilt of the accused, they must acquit (cf, Scaife v

HM Advocate at p 848E).”

[21] In his report to this court the sheriff accepted that he did not give a direction on

mixed statements, but expressed the view that in light of the directions which he gave at

pages 13/14 and 23/24 (quoted above) the jury were well aware that they could take into

account the exculpatory parts of his statement to the police in deciding the critical issues.

[22] We do not agree. We emphasise that we are not suggesting that a trial judge must

take a purely formulaic approach and repeat word for word the possible directions on

mixed statements given in the jury manual. However, we consider that it is essential that

the trial judge should cover (in his own words) those aspects to which the court referred at

paragraph [12] of McGirr, quoted above.

[23] The sheriff’s failure to give a direction specifically about how the jury should treat

the police interview was exacerbated by the way in which he directed the jury in other

passages of his charge. At pages 1/2 he told them that they must understand what’s

evidence and what’s not, and directed them that the terms of the joint minute was evidence,

and what a witness says in the witness box was evidence, but he did not at any point in his

charge go on to explain that the contents of the police interview were evidence. He told the

jury that the accused had neither given evidence not led evidence from any other source,

and he directed them that they should not assume the Crown case is proved just because

there had been no defence evidence. He went on (at pages 10/11 of his charge) to deal with

the use of prior statements, and reminded the jury that normally speaking it is only what a

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witness says in the witness box which constituted evidence, and that the consequence of this

was that usually evidence of what a witness said to someone else is called hearsay and is not

admissible. He went on to explain that there were exceptions to this rule, and dealt with the

situation in which a witness adopted parts of their prior police statements. He then went on

to mention the accused’s police interview, but did not direct them that this was another

exception to the general rule about hearsay. He explained to the jury (correctly) that the

appellant’s “no comment” responses within the interview should not, in any circumstances,

be held against him, but he did not go on to direct the jury as to what they should make of

any exculpatory or incriminatory parts of the interview. We consider that this omission

amounted to a misdirection.

[24] Moreover, despite the submissions for the Crown to the contrary, we consider that

this misdirection has resulted in a miscarriage of justice. The exculpatory parts of the

appellant’s police interview were the crux of his defence. They were the only place in the

evidence in which the appellant’s position on each charge was to be found. The absence of a

clear direction as to mixed statements, and how the jury should consider the police

interview, in the context of the charge as a whole, gave rise to a real risk of confusion.

[25] For these reasons we are satisfied that a miscarriage of justice has occurred, and we

shall quash the convictions.