sccrcunjustdecisions.myfastforum.org

admin · Site Admin Joined: 12 May 2007 Posts: 40

Please feel free to Publish any Appeal Decision you feel to be Unjust on this Forum.
Let me start by Giving some

I Must Start with My Own Of Course

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne
Lord Johnston

Lord Dawson

[2006] HCJAC 35
Appeal No: XC75/06

OPINION OF THE COURT

delivered by LORD OSBORNE

in

AN APPEAL AGAINST REFUSAL OF

EXTENSION OF TIME

at the instance of

WILLIAM McKENNA BECK

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Brodies
Respondent: A, Mackay, A.D. Crown Agent

31 March 2006

The background

[1] The appellant, following a trial in the High Court of Justiciary, was convicted on 30 March 1982 on two charges, the first being one of theft, the second being one of assault involving the use of hammers as weapons and robbery of certain property, including £21,000 of money. He was sentenced to a period of six years imprisonment. Thereafter, an intimation of intention to appeal was given on the appellant's behalf. There followed an extension of time for the lodging of a note of appeal. A note of appeal was then lodged on 27 May 1982 by the appellant himself. It contained two brief grounds of appeal. Subsequently the appellant elaborated these grounds of appeal in further documents which were submitted to the Clerk of Justiciary, dated 24 June 1982, 17 July 1982, 9 August 1982 and 19 August 1982. All of these documents were prepared by the appellant himself, since he did not have the benefit of legal aid. It has not been made clear to us exactly what transpired when the appellant's appeal was heard by the Criminal Appeal Court, but, on 7 October 1982, the court refused the appellant's appeal against conviction. We are not aware whether any opinion was issued in association with that decision; suffice it to say that no opinion is available to us. Following the refusal of the appellant's appeal against conviction, he thereafter served his sentence. At some date, which was not specified, the appellant made an application to the Scottish Criminal Cases Review Commission, with a view to having his case referred to the Criminal Appeal Court for reconsideration. We were informed that that Commission did not make such a referral.

[2] By letter dated 28 November 2005 from solicitors acting on behalf of the appellant what bore to be an application for extension of time within which to lodge a note of appeal against conviction under section 111(2) of the Criminal Procedure (Scotland) Act 1995 was made. In that application the background of the matter was set forth. Reference was made to the former appeal. Thereafter it was said:

"It appears that the appeal was refused but it may have been the position that the court simply refused leave to argue any of the grounds of appeal. He was denied legal aid and was as a consequence unrepresented. By contemporary standards at least he was denied the fair hearing to which he was entitled. He now seeks an opportunity to challenge his conviction but on grounds which were, so far as can be understood with one exception, not presented to the court at the original appeal."

Thereafter, the application set forth a number of criticisms of the original proceedings at the trial, which might be characterised as, in effect, grounds of appeal. The document concludes in this way:

"The applicant has always maintained his innocence. He is anxious to have the opportunity to persuade your Lordships that there has been a miscarriage of justice. Given the nature of the issues it is submitted that it is in the interests of justice that the time period be extended to allow the necessary grounds of appeal to be drafted and lodged."

[3] When the appellant's application for extension of time was submitted, in accordance with section 103(5)(a) of the 1995 Act, it was placed before a single judge of the High Court of Justiciary, who refused the application as incompetent, in view of the interlocutor of the Criminal Appeal Court dated 7 October 1982, refusing the appellant's appeal against conviction. Thereafter the appellant expressed himself to be dissatisfied with that decision. Accordingly, in accordance with section 105 of the 1995 Act, the application was submitted to this court and was the subject of a hearing before us on 14 March 2006. Prior to that hearing, there were submitted what were described as grounds of appeal against the decision of the single judge. They were in the following terms:

"It is respectfully submitted that the court erred in refusing to grant the application for an extension. The appellant maintains that he has been wrongfully convicted. He has, it is submitted, obviously arguable grounds of appeal. Properly understood there is no statutory bar to the remedy sought. He has tried to persuade the Scottish Criminal Cases Review Commission to refer his case to your Lordship's court, but the Commission had declined to do so. The reasons given are not sustainable.

It appears that the Crown failed to disclose material information to the defence at the time of the trial which they were duty bound to do. That information bore on the critical issue of identification evidence. Their failure to do so deprived the appellant of the fair trial to which he was entitled. It does not appear to have been a matter which was raised by the advocate depute at the time of the appeal hearing.

The appellant appeared unrepresented at the hearing of his appeal. There was a duty on the court to ensure that he had a fair hearing and yet it seems that the court did not raise the issue of the apparent misdirection in the judge's charge. If it was an arguable ground of appeal (or at least stateable) then it was the court's duty to raise it ex propiu (sic) motu. The apparent failure to do so rendered the hearing of the appeal unfair. That being so the interlocutor then pronounced would require to be set aside.

In any event if the court acted or failed to act in a way which denied the appellant the fair hearing to which he was entitled then only your Lordship's court can offer the necessary redress by now allowing the grounds of appeal to be presented so that the issues can be properly argued on the appellant's behalf.

In the circumstances your Lordships are invited to allow the appeal or in any event extend the time limit for lodging grounds of appeal."

Submissions

[4] When this matter came before us, counsel for the appellant entered upon a wide-ranging consideration of a number of aspects of the appellant's situation. He drew our attention to the unsuccessful application to the Scottish Criminal Cases Review Commission for a referral to the court. In that connection, reference was made to Cochrane v H.M. Advocate (unreported) 7 March 2006. He also laid emphasis upon the fact that, so it appeared, the appellant did not have the benefit of legal aid or legal representation at the time of his appeal in 1982. Reference was made to Bonar and Maxwell v United Kingdom 1995 S.C.C.R. 1, in which the European Court of Human Rights indicated that legal representation was necessary to achieve equality of arms and hence a fair trial in terms of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Looking back, it was submitted that the appeal hearing in 1982 was unfair. There was also considerable discussion of the possible impact of section 124(2) of the 1995 Act upon the appellant's position. In that connection counsel referred to a number of cases in which the court had exercised the nobile officium in such circumstances as to show that that enactment had to be seen as qualified by the power of the court, in the exercise of its nobile officium, to remedy injustices. In that connection reliance was placed upon Hoekstra 2000 S.C.C.R. 367. In the course of argument before us consideration was also given to the effect of sections 6(1), 7(1) and 22(4) of the Human Rights Act 1998. Counsel acknowledged that the issue of the retrospective operation of the provisions of the 1998 Act was a matter of great complexity and uncertainty. Reliance was also placed on Higson and Docherty v H.M. Advocate 2004 S.C.C.R. 63 and Holland and Sinclair v H.M. Advocate 2005 S.C.C.R. (P.C.) 417. Counsel for the appellant indicated that, if the court were to reach the conclusion that the present application under section 111(2) of the 1995 Act was incompetent, it should treat the application as one to the nobile officium of the court.

[5] The Advocate depute submitted that section 111(2) of the 1995 Act provided a power which could be used to extend the statutory period of time available for lodging a note of appeal. However, that enactment did not enable an individual who had already appealed and had his appeal determined to apply subsequently for an opportunity to lodge a second note of appeal. The only circumstances in which there might be, as it were, a second appeal, were those described in section 194B(1) of the 1995 Act which dealt with referrals of a case by the Scottish Criminal Cases Review Commission to the court. In such a situation, where a referral was made, that enactment provided that:

" ... the case shall be heard and determined subject to any directions the High Court may make, as if it were an appeal under Part VIII or, as the case may be, Part X of this Act."

The decision

[6] It has to be borne in mind that what we are considering in this case is what bears to be an application for extension of time under section 111(2) of the 1995 Act and nothing else. Section 111(2) of the 1995 Act is in these terms:

"Any period mentioned in section 109(1) or 110(1)(a) of this Act may be extended at any time by the High Court in respect of any convicted person; and an application for such extension may be made under this subsection and shall be in as nearly as may be the form prescribed by the Act of Adjournal."

Section 109(1), of course, deals with persons desiring to appeal under section 106(1)(a) or (f) and imposes a requirement to lodge with the Clerk of Justiciary within two weeks of the final determination of the proceedings written intimation of intention to appeal. Section 110(1)(a) creates a requirement that a convicted person may lodge a written note of appeal with the Clerk of Justiciary within eight weeks of lodging intimation of intention to appeal, subject to certain qualifications which have no application to the present case. The purpose of section 111(2) is plainly to give intending appellants the opportunity to avoid the consequences of failure to comply with the time limits to which we have referred, in appropriate cases. The premise upon which section 111(2) operates is that there has not been an appeal, but that a convicted person desires that there should be. In our opinion, section 111(2) was never intended by the legislators to afford to a person who has in fact appealed against conviction and has had that appeal determined upon certain grounds the opportunity again to initiate appeal proceedings, either upon those grounds, or upon some other grounds. While section 111(2) does not contain any express qualification to that effect, in our view such a qualification is to be inferred from the context of that enactment, in particular, the other provisions regarding appeals in solemn proceedings to be found in Part VIII of the 1995 Act. Nothing said to us by counsel for the appellant persuades us that section 111(2) can be used in the way in which the appellant seeks to use it. Accordingly, we conclude that the refusal of the appellant's application for extension of time as incompetent by the single judge to whom it was originally referred was correct. Whatever other remedies, if any, may be available to the appellant, he cannot by the means which he has chosen properly initiate fresh appeal proceedings after his original appeal has been determined.

[7] At one stage in the discussion before us it was faintly suggested that we should treat the present application for an extension of time within which to lodge a note of appeal against conviction as an application to the nobile officium of the court. We are not prepared to take that course. If the appellant wishes to seek to invoke the nobile officium of the court, having regard to the peculiar circumstances of this case and, in particular, to the fact that the appellant has already had an appeal determined by the court and has made an application to the Scottish Criminal Cases Review Commission for a referral of his conviction to the court, without success, we consider that any application to the nobile officium would require to be supported by relevant and specific averments designed to indicate how it is claimed that that power could properly be utilised in the circumstances of the case.

[8] Accordingly, in all the circumstances, we refuse the appellant's application under section 111(2) of the 1995 Act as incompetent.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne
Lord Johnston
Lord Penrose

Then Gary Ready

[2007] HCJAC 15
Appeal No: XC246/06

OPINION OF THE COURT

delivered by LORD OSBORNE

in

APPEAL AGAINST CONVICTION

by

GARY READY

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: A. Ogg, Solicitor Advocate; Allan McDougall

Alt: Mackay, A.D.; Crown Agent

16 February 2007

The background circumstances
[1] On 10 March 2006 at Glasgow Sheriff Court the appellant was found guilty by a majority of the jury on charge 3 of the indictment which he faced. That charge was in the following terms:

"(3) on 26 July 2004 at Millbeg Place, Glasgow, you did assault Thomas Thomson, c/o Shettleston Police Office, Glasgow and did stab him in the body with a knife to his severe injury, permanent disfigurement and to the danger of his life;

you did commit this offence while on bail, having been granted bail on 20 May 2004 at Glasgow District Court."

On 31 March 2006 a sentence of four years imprisonment was imposed in respect of that conviction.

[2] The appellant has appealed against his conviction on two grounds in the following terms:

"(1) the sheriff erred and misdirected himself in repelling the submission of 'no case to answer' made on behalf of the appellant; and (2) that the appellant believes that there were irregularities within the jury room which require investigation."

In consequence of criticism levelled at the unspecific nature of the second ground of appeal, an additional ground was subsequently lodged, intended to be an elaboration of it. That ground was in the following terms:

"(2) that the jury (a) failed to comply with the terms of their oath to well and truly try the accused and give a true verdict according to the evidence and (b) failed to comply with the directions of the trial judge as to how they should reach their verdict in respect that they, or a number of them did not consider the evidence, declined to discuss it with their fellow jurors and returned a verdict to bring proceedings to an end quickly."

This second ground of appeal has, as its basis, circumstances that were brought to the attention of the sheriff by Mr Wyse, a solicitor who had acted for the appellant at the trial, following the determination of the proceedings on 31 March 2006. This occurred at a meeting in the sheriff's chambers at which both the procurator fiscal depute and the sheriff clerk were present. Mr Wyse explained that, following the conviction of the appellant, he had received a letter from a female juror in the case. The effect of the letter was to express the concern of this juror that three of the other jurors had not given the case fair consideration. That letter, which has now been produced in this appeal, is in the following terms:

"I was a serving juror in the case of Gary Ready and as a serving juror I don't think the case brought upon the jurors was a fair decision as due to a lack of thought and consideration and my sincere opinion that 3 of the serving jurors wanted the case over with as soon as possible as they didn't give it their due concern as what they where (sic) supposed to due (sic) I myself as one of the serving jurors voiced my opinion on many occasions through the way the case was getting handled with 3 of the jurors and I sincerely think the case against Mr Ready should be brought to a retrial as my concience (sic) is telling me he sincerely didn't get a fair enough hearing from the jurors concerned."

The letter was signed by the writer.

[3] There has also been lodged a precognition of a male person who was acquainted with the appellant, in which he narrates a meeting with an acquaintance in a bar in Glasgow. The acquaintance, a male, was the partner of the female juror who wrote the letter narrated. In the conversation that ensued, an account was given by him of her experience as a member of the jury. It included the suggestion that she had been "more or less nearly fighting with two or three of the jurors because they weren't really interested in the case". There followed a meeting between the male person who has given the precognition and the female juror. On the occasion of that meeting, the female juror wrote the letter quoted above. At the meeting the juror is reported in the precognition to have said:

"There was no way in this world that he should have got a guilty. There was no evidence to convict him but three jurors were not interested in listening to any of the evidence. One was giggling and laughing when they were going over the evidence in the jury room. (It was an Irish lassie.) In fact the Irish lassie turned round in front of the jurors and said:

'Fuck this. I'm not coming back on Monday, let's just give him a guilty and get to fuck out of here.'"

[4] It is pertinent to narrate the comment made by the sheriff on the second ground of appeal, in its unelaborated form. In his Report to this court he said this:

"As to the second ground of appeal concerning irregularities occurring in the jury room, this is a matter about which I have little knowledge. My notes record that the jury first retired to consider their verdict at 3.30pm on Thursday 9 March. The court was reconvened at 4.50pm when it was established that the jury were not in sight of a verdict and wished to see the transcript of the taped interview of the appellant. The court was then adjourned to the following day and arrangements were made to provide the jury with some copies of the transcript. On Friday 10 March the court was again convened and the jury resumed their deliberations at 10.33am with copies of the transcript. The jury returned at 11.55 and delivered the verdict complained of having been engaged in deliberation for a total period of about 2 hours and 40 minutes over the two days."

[5] At a procedural hearing at which the grounds of appeal were considered and preparations for the appeal discussed, the issue was raised of whether any practical steps required to be taken in respect of ground of appeal 2. It was indicated by Miss Ogg, on behalf of the appellant, that some enquiry into the matters raised in that ground would require to be made. The court then raised the issue of whether such an enquiry would be lawful or appropriate, whereupon it was recognised that a debate would be necessary to discuss those matters. A further procedural hearing was fixed for that purpose, which took place on 6 February 2007.

The submissions
[6] Miss Ogg, on behalf of the appellant, moved the court to remit the case to the sheriff principal to make enquiries of the juror who had written the letter mentioned and to invite her to expand upon the terms of the letter. She contended that there was no obstacle to the taking of that course. She made three submissions in that regard. First, she submitted that section 8 of the Contempt of Court Act 1981, which rendered certain actions a contempt of court, could not apply to the court itself; if the court decided that it was appropriate to enquire into statements made or opinions expressed in the course of the deliberations of the jury, the provisions of that section would not constitute an obstacle. Second, Miss Ogg submitted that the common law position in Scotland was expressed in Swankie v Her Majesty's Advocate 1999 S.C.C.R. 1. In that case the court had stated that an enquiry into the conduct of a member of a jury was not lightly to be entered upon, especially where the court was being asked to order an investigation into the jury's deliberations. She maintained that what had been said in that case showed that such an investigation would be undertaken in appropriate circumstances. Thirdly it was submitted that, if there were thought to be sensitivities about enquiring into the deliberations of a jury, any inquiry undertaken here would not in fact involve that. The allegation was that certain jurors had not been prepared to undertake proper deliberations but had simply wished to terminate the proceedings as quickly as possible. That did not amount to deliberation. In connection with her submissions Miss Ogg drew the attention of the court to R. v Mirza [2004] 2 Cr.App. R. 8; Scottish Criminal Cases Review Commission, Petitioners 2001 S.C.C.R. 775; McCadden v Her Majesty's Advocate 1985 S.C.C.R. 282; Adam v Her Majesty's Advocate 2006 S.C.C.R. 354; and Gray v Her Majesty's Advocate 1994 S.C.C.R. 225.

[7] The Advocate depute moved us to refuse the appellant's motion. He submitted that an inquiry into the matters suggested would be illegitimate. It was useful to see what had happened during the course of the trial, as described in the sheriff's report. What emerged from that was that the jury had had ample time to consider their verdict over two separate days. That suggested that there had been full deliberation concerning the issues in the case. He then referred to the terms of the letter written by the female juror and the precognition which we have mentioned. He contended that it was clear from the terms of those documents that the concerns were focused upon the behaviour and observations of certain jurors during the course of the jury's deliberations. The law was that the court would not enquire into such matters. The justification for such a posture was not so much section 8 of the Contempt of Court Act 1981, but rather the provisions of the common law. He submitted that the law of Scotland as well as of other jurisdictions had been explained by Lord Hope of Craighead in R. v Mirza, particularly in paragraphs 95-97. The general rule was that the court would not investigate or receive evidence about anything said in the course of the jury's deliberations while they were considering their verdict in their retiring room. In the view of Lord Hope, expressed at paragraph 123, the only modification of that rule related to a situation where there was a complete repudiation by the jury of their only function which, as the jurors' oath put it, was to give a true verdict according to the evidence. Thus a trial which resulted in a verdict by lot or the toss of a coin, or was reached by consulting an Ouija board in the jury room, would not be a trial at all. If that were what had happened, the jurors would have no need to be protected as the verdict would not have been reached by deliberation. The Advocate depute contended here that the court was not dealing which any such situation. The material put before the court in support of ground of appeal 2 was in the nature of a criticism of the quality of the deliberations which had taken place. He submitted that the case of R. v Mirza demonstrated that there were weighty public policy reasons why there should be no inquiry into the deliberations of a jury. In support of his submissions the Advocate depute also relied upon the observations of Baron Hume in Commentaries of the Law of Scotland Respecting Crimes, 4th ed. [1844] at p.429. While it might be legitimate for inquiry to be conducted into matters extrinsic to the deliberations of the jury, as was contemplated but not ordered in McCadden v Her Majesty's Advocate, that was not what was involved in the present case. The difficulties attached to the notion that inquiry should be conducted into the deliberations of a jury were considered by Lord Rodger of Earlsferry in R. v Mirza at paras.161-174. At para.166 his Lordship contemplated the possibility that an inquiry might be made if it were suggested that a "verdict" had been arrived at by a totally illegitimate or irrational process, although he reserved his opinion on that point. As he saw it, the difficulty was of devising a workable exception to the rule against enquiry into deliberations that would not undermine the rule itself. The Advocate depute submitted that the opinions of the House of Lords in R. v Mirza were not inconsistent with the Scottish authorities.

[8] In any event in McCadden v Her Majesty's Advocate the court had indicated that a very rigorous test had to be applied to material tendered as the basis for a suggested inquiry. He submitted that the material that had been placed before the court in this case did not pass that test. The letter written by the juror here expressed concern in rather general terms. The precognition which had been furnished contained hearsay material. The court should not enter upon an inquiry of the kind suggested on the basis of such material.

[9] In the case of Kerr v Her Majesty's Advocate 1999 S.C.C.R. 763 an investigation was ordered, but that was in relation to the question of whether the provisions of section 99(2) of the Criminal Procedure (Scotland) Act 1995 had been contravened; a consequence of such contravention would have been that a person affected fell to be acquitted in terms of section 99(5). That case was not comparable to the present one. Likewise, in Gray v Her Majesty's Advocate the court had ordered certain enquiries to be made, but these were concerning whether one of the members of the jury had visited the locus of the crime alleged. The matters raised in that case were extrinsic to the deliberations of the jury. Scottish Criminal Cases Review Commission, Petitioners arose out of the same circumstances as were concerned in Gray v Her Majesty's Advocate. Swankie v Her Majesty's Advocate could not be relied upon for the proposition that a court would order an inquiry into matters concerned with the deliberations of the jury; important authorities, such as Hume's Commentaries had not been put before the court in that case.

[10] Summarising his position, the Advocate depute said that his fundamental position was that the court could not lawfully initiate an inquiry into matters which formed part of the deliberations of the jury. In any event, the material that had been placed before the court was insufficient to justify any inquiry. None of the cases put before the court demonstrated that enquiries had been ordered into matters which formed part of the deliberations of the jury. They had involved matters which had been extrinsic to such deliberations.

[11] Finally, the Advocate Depute relied upon Pirie v Caledonian Railway Company (1890) 17 R. 1157. In that case it had been held that, after a jury had been discharged, it was incompetent to show by the evidence of jury men that the verdict did not correctly express the result at which the jury had arrived. The Lord President emphasised that the verdict of a jury could not be challenged by the jurors themselves who had returned the verdict, or by any others. The utmost danger and uncertainty would be the consequence if questions were to be raised against the verdicts of juries by examining the jurors themselves after their verdict had been delivered. It was submitted that that case was wholly consistent with the analysis of the law of Scotland undertaken by Lord Hope of Craighead in R. v Mirza.

[12] Miss Ogg, in reply, pointed out that, in Pirie v Caledonian Railway Company, Lord Shand had contemplated that there might be an exception to the general rule in a case where it was contended that a jury had reached their result in an improper manner, as for example by casting lots, instead of deliberating.

The decision
[13] In the course of the discussion before us little significance was attributed to the provisions of section 8 of the Contempt of Court Act 1981. That section provides, inter alia, as follows:

"8(1) Subject to subsection (2) below, it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.

(2) This section does not apply to any disclosure of any particulars -

(a) in the proceedings in question for the purpose of enabling the jury to arrive at their verdict, or in connection with the delivery of that verdict; or

(b) in evidence in any subsequent proceedings for an offence alleged to have been committed in relation to the jury in the first mentioned proceedings, or to the publication of any particulars so disclosed."

The form of this section is to render the defined activities a contempt of court. If the court itself were to decide that an inquiry into the matters defined in the section was necessary in the interests of justice, it is difficult to see how the provisions of the section could operate, since it is plain that the court could not be in contempt of itself. Accordingly, attention in the debate before us was focused upon the common law. As regards that, the general rule in Scots law was expressed in this way by Lord Hope of Craighead in R. v Mirza in para.94:

"It is common ground that the primary obstacle to the admission of the evidence which the appellant seek to adduce in this case is to be found not in the statute but in the common law rule that evidence of jury deliberations after the verdict has been delivered is inadmissible. ... The general rule is that the court will not investigate, or receive evidence about, anything said in the course of the jury's deliberations while they are considering their verdict in their retiring room. ... The rule was also recognised long ago in Scotland: see Hume, Commentaries of the Law of Scotland respecting Crimes, the first edition of which was published in 1797. What, Hume asked, was to be done if the verdict is challenged on the ground that it had been obtained improperly, such as by the use of unlawful means to obtain the jury's assent to it? He gave this answer, as it appears in the fourth edition (1844) at p.429, in terms which place the rationale for the rule on a more secure basis:

'If a plea of this sort, in impeachment of the substance of a verdict, can at all be listened to, one thing at least seems to be clear, that it can only be in those cases, comparatively but few in number, where the jury re-enter the Court straightway on breaking up their private sitting. For if they disperse, and disclose their verdict (as sometimes happens), then are they exposed to all the temptations, from the opinions and commentaries of the world, against which it is the very object of our law to guard, when it orders them to be inclosed; and they may thus be prevailed with to disavow their genuine verdict, on false and affected grounds. Nay, though they conceal even, as they ought to do, the result of their deliberations, yet still they learn the sentiments of others concerning the case and the evidence, and are liable to be influenced, less or more, by what they thus hear passing in the world.'

In Pirie v Caledonian Railway Company ... Lord President Inglis said that it was out of the question for the court to entertain any challenge after the trial to a verdict which had been delivered and agreed by the jurors as their verdict. He said that this point had been regarded as settled in Scotland in Stewart v Fraser (1830) 5 Murray 166, in which the Lord Chief Commissioner Adam had referred to the passage from Hume's Commentaries which I have set out above in which, as the Lord President put it, the principle could not have been better expressed."

In succeeding paragraphs 106, 107, 115-119, Lord Hope of Craighead enters into a detailed analysis of the justification for the general rule. In para.123 he recognises the possibility of a modification to it that distinguishes, after the verdict has been delivered, between the things which are intrinsic to the deliberation process and those which are extrinsic to it. In para.123, he says this:

"So it is arguable that an allegation that the jury as a whole declined to deliberate at all, but decided the case by other means such as drawing lots or by the toss of a coin, can be placed into a different category. Conduct of that kind, were it ever to occur, would amount to a complete repudiation by the jury of their only function which, as the jurors' oath puts it, is to give a true verdict according to the evidence. A trial which results in a verdict by lot or the toss of a coin, or was reached by consulting an ouija board in the jury room, is not a trial at all. If that is what happened, the jurors would have no need to be protected as the verdict was not reached by deliberation - that is, by discussing and debating the issues in the case and arriving at a decision collectively in the light of that discussion. The law would be unduly hampered if the court were to be unable to intervene in such a case and order a new trial. But that is not the situation which is before us in these appeals."

[14] Likewise Lord Rodger of Earlsferry, in paras.161-174, analyses the nature of the general rule and its justification. In para.165, he said this:

"For these reasons, even though invited from time to time to reconsider their approach, the highest appeal courts have consistently refused to entertain appeals based on the allegations of a juror, made later, that during their deliberations other jurors showed bias, failed to apply the judge's directions or otherwise acted improperly. If that was indeed the juror's view, then the time to make it known was before the verdict was returned - either by sending a note to the judge, or by speaking to the jury bailiff or by declaring the objection in open court."

In para.172, he continued:

"If it were indeed possible to devise a workable exception which would not eat up the rule, then that might be the ideal solution. But over the years judges of the highest authority have considered the matter and have not found such a solution. They have therefore affirmed the rule that evidence about jurors' deliberations should not be admitted."

[15] During the course of the debate before us reliance was placed by Miss Ogg upon McCadden v Her Majesty's Advocate and Swankie v Her Majesty's Advocate. In the former of these cases, the court held that the statutory powers available then under the Criminal Procedure (Scotland) Act 1975 section 252(d) were available to enquire into the ground of appeal there stated, which was in fact concerned with a matter extrinsic to the jury's deliberations, but decided that the material placed before the court was not substantial enough to justify inquiry. Having regard to the ground of appeal that was there stated and to the fact that the authorities which we have had the benefit of considering were not before the court, we cannot regard anything in that decision as militating against the view which we intend to take in this case. In Swankie v Her Majesty's Advocate the ground of appeal tabled was that a member of a jury had disclosed to the jury during the deliberations that the appellant had a previous conviction for drugs offences. Against that background the court held that an enquiry into the conduct of a member of the jury was not to be lightly entered upon, especially where the court was being asked to order an investigation into the jury's deliberations. We note from the report of that case that neither the passage from Hume's Commentaries, nor Pirie v Caledonian Railway Company was cited. In those circumstances, we take leave to doubt whether the opinion expressed there that an inquiry might be entered upon even where it amounted to an investigation into the jury's deliberations was soundly based.

[16] In the end, Miss Ogg's position was that the matters sought to be enquired into here did not in fact truly form part of the jury's deliberations, since the alleged observations by the three members of the jury referred to were not related to the merits of the case. We cannot accept that submission. It appears to us that discussion by jurors of whatever nature within the confines of the jury room after enclosure must be seen as part of the jury's deliberations, unless they fall within the modification to the general rule contemplated by Lord Hope of Craighead in para.123 in R. v Mirza. There is no question in this case of a suggestion that the jury had completely repudiated their function. What the allegation here amounts to is that the three jurors concerned had not given appropriately thorough consideration to the issues in the case and wished the jury's deliberations to be brought to an early close. It appears to us that it is inevitable that, from time to time, one juror may regard the general attitude of another to jury service as unsatisfactory. However, in our opinion, for sound reasons of public policy, investigation into such matters cannot be entertained. If it were, the trust which the jury system justifiably enjoys would be undermined.

[17] In all these circumstances we shall refuse the motion made by Miss Ogg. In view of the fact that the debate before us occurred in the course of a procedural hearing, as opposed to the full hearing of the appeal, we do not think it appropriate at this stage to refuse the second ground of appeal, but no doubt, in due course, that will be done.

admin · Site Admin Joined: 12 May 2007 Posts: 40

The appeal of Wullie Gage is too long to post directly as above, but please find it on the Link Below

http://www.scotcourts.gov.uk/opinions/2006hcjac7.html

admin · Site Admin Joined: 12 May 2007 Posts: 40

:55 22/07/200717:55 22/07/2007THE APPEAL AGAINST CONVICTION

by

JAMES JACKSON
presently detained in

Bowhouse Prison
Mauchline Road
Kilmarnock
KA1 5AA

Tel 01563 548800

Said Huwaish
10 Churchill Avenue
Johnstone
PA5 0RG

Tel 01505 705 419
Mob 07880 695 028
IN THE HIGH COURT OF JUSITICIARY

NOTE OF APPEAL
under section 110 of the Criminal Procedure (Scotland) Act 1995

To Clerk of Justiciary
Name of convicted person James Jackson
Date of birth 26 July 1958
Prisoner in the Prison of HMP Kilmarnock
Date of final determination of proceedings 31 May 2005
Crime or offence to which the appeal relates Assault and Robbery
Court and name of Judge High Court sitting at Glasgow, Lord McEwan
Sentence 7 years

The above named convicted person appeals against conviction on the following grounds

Please see paper apart.

Said Huwaish
Agent for the Appellant
10 Churchill Avenue
Johnstone
PA5 0RG
Tel 01505 705 419
Mob 07880 695 028

Date 13th November 2006

HIGH COURT OF JUSTICIARY

UNTO THE RIGHT HONOURABLE THE LORD JUSTICE GENERAL, LORD JUSTICE CLKER AND LORDS COMMISSIONERS OF JUSTICIARY

MINUTE

by

JAMES JACKSON, presently detained in HMP Bowhouse Prison, Kilmarnock

SAID HUWAISH
10 Churchill Avenue
Johnstone
PA5 0RG
Tel 01505 705 419
Mob 07880 695 028

Date 13th November 2006
HIGH COURT OF JUSTICIARY

UNTO THE RIGHT HONOURABLE THE LORD JUSTICE GENERAL, LORD JUSTICE CLERK AND LORDS COMMISSIONERS OF JUSTICIARY

MINUTE

by

JAMES JACKSON, presently detained in HMP Bowhouse Prison, Kilmarnock

HUMBLY SHEWETH

1.That the Minuter was convicted, inter alia, of a charge of assault and robbery at the High Court sitting at Glasgow

2.That he has appealed against conviction by Note of Appeal. A date has yet to be fixed for a hearing of the Appeal.

3.That the Minuter seeks to raise a devolution issue within the meaning of Schedule 6 to the Scotland Act 1998 (“the Act”) on the following grounds

Article 6 (1) of the European Convention on Human Rights (“The Convention”) provides, inter alia, that “…everyone is entitled to a fair and public hearing within reasonable time…”.

On 20th May 1999 in terms of section 44 of the Act the Lord Advocate became a member of the Scottish Executive.

By virtue of section 57(2) of the Act the Lord Advocate as a member of the Scottish Executive has no power to act in a way which is incompatible with Convention rights.

4.Reference is made to the grounds of appeal and in particular grounds.

5.Separatim. For the Lord Advocate to seek to support the conviction would be for him to act in a way which would be incompatible with the Minuter’s rights under Article 6(1) of the Convention and accordingly ultra vires.

6.That a copy of this minute has been intimated to Her Majesty’s Advocate and the Solicitor-General for Scotland conform to said execution of service attached to this minute.

MAY IT THEREFORE PLEASE YOUR LORDSHIPS

To order that there be a diet and to assign a date for that diet.

IN RESPECT WHEREOF

SAID HUWAISH
Agent for the Minuter
10 Churchill Avenue
Johnstone
PA5 0RG
Tel 01505 705 419
Mob 07880 695028

IN THE HIGH COURT OF JUSTICIARY

NOTE OF APPEAL

for

JAMES JACKSON

Under Section 110 of the Criminal Procedure (Scotland) Act 1995

SAID HUWAISH
Agent for the Appellant
10 Churchill Avenue
Johnstone
PA5 0RG
Tel 01505 705 419
Mob 07880 695028
SUMMARY OF THE FACTS OF THE CASE

This is a case of an alleged armed robbery which never took place. The appellant was convicted of assault and robbery in circumstances which resulted in a true miscarriage of justice.

The appellant is 48 years old, married with 3 children, and earned his living from driving vans and trucks for other people.

On Monday 29 September 2003 at about 7pm, Mr Victor Gough (33 year old computer technician and owner of a computer parts and repair business) made a very quick visit to the appellant’s home. Mr Gough asked the appellant if he would drive a van for him early the next morning as someone else who was supposed to do that job for him had let him down at the last minute. The job entailed driving a van from Paisley to Mr Gough’s premises and after unloading the can there to take the van to Barrhead and leave it there in return for a payment of £200 upon completion of the job.

Mr Gough did not elaborate more of the job claiming that he was in a hurry to go somewhere else and, before he left, asked the appellant to make his own way to Barrhead early the next morning to meet a friend of Mr Gough at around 7.30 or 7.45am. The appellant was not given time to ask any questions but agreed to do the job before Mr Gough left.

On Tuesday 30 September 2003 the appellant left home around 7.00am and on approaching Barrhead he received a call on his mobile form a person (unknown to the appellant) claiming to be Mr Gough’s friend when arrangements were made to meet at the bingo hall in the Main Street in Barrhead. The appellant parked his car there where he met that person driving a black Honda car and the appellant was taken to the junction of Arklestone RoadHawkhead Road and Glasgow Road in Paisley. The appellant was then asked to wait at that location for a few moments for the van to arrive.

At around 8.20am the same person who was driving the black Honda car appeared with the van (a MAN truck, 7.5 tonne, registration number FE52 KYN) followed by the same black Honda car. The same person got out of the van quickly and asked the appellant “do you know where you are going” to which the appellant replied “yes”. The appellant then got into the truck and made his way to Mr Victor Gough’s premises at Sydehead Holdings near Beith. Shortly thereafter, the appellant received a call on his mobile from Mr Gough who wanted to know if the appellant was on his way. Subsequently, the appellant noticed that a police vehicle was trailing him. At no stage throughout the journey from Paisley to Mr Gough’s premises did the police attempt or indicate to the appellant to stop the vehicle. Indeed, the police report clearly indicates that the officers had instructions not to stop the van. Nonetheless, only one police witness testified that he indicated to the appellant to stop and that the appellant refused to do so. The Crown relied on that unchallenged evidence.

Eventually the appellant arrived at Mr Gough’s premises and after he got out of the van he was arrested by the police. Subsequently, an armed siege took place at Mr Gough’s premises as Mr Gough refused to come out of the house for over 3 hours. Armed Police Response Units and a police helicopter were used in the operation. A police report was then submitted to the Crown Prosecutor detailing the events of the armed siege. At the trial the Advocate Depute denied that an armed siege took place and when the appellant raised this issue during his testimony the Advocate Depute called him “a liar and an elaborate liar”.

Mr Gough was arrested and subsequently released by the police. Any charges against him were not pursued by the Crown and he was never cited as a witness in the appellant’s trial. In fact, Mr Gough was in SpainPortugal during the trial.

The appellant is 6’1” tall and without glasses his eyesight is very poor. He was never identified as one of the assailants in the armed robbery by anyone or any means, including the Crown witnesses who described the assailants as being between 5’7 and 5’9 tall – none of whom wore glasses.

The appellant at no stage attempted to conceal his actions nor could be have foreseen what he was getting into. In (McKinnon v HMA 2003), the Court confirmed that an objective test (reasonable foreseeability) is used to assess the guilt of those acting in concert.

The judgement in the appellant’s case has redefined the crime of an assault and robbery as that of strict liability or state of affairs offence.

A through hard and careful investigation brought to light additional and fresh evidence which confirms that no armed robbery had ever taken place and that the allegations of an armed robbery were fabricated by employees of the Bax Global Warehouse (Crown witnesses Mr Mark Small and Mr Gavin Percy – whilst acting with others) to cover up their theft of a van-load of expensive computer components from their employer. In addition, the Advocate Depute has had his work done for him, partly because the defence counsel recklessly accepted that a crime of assault and robbery was committed and partly as a result of the learned Judge’s misdirection to the jury.

Finally, the fatal gaps in the prosecution’s case were filled by the learned trial Judge’s charge to the jury and by the reckless and total failure of the defence counsel to cross-examine and to lead evidence in replication.

In his book, Criminal Appeals, at para7.04, Lord McClusky noted “The final position may therefore be that the Court will cease to look for supposed degrees of miscarriage of justice. The High Court now tends to look rather at the seriousness, importance and materiality of the error (misdirection, wrongful exclusion of evidence, misconduct of the prosecution, etc), the High Court, in the light of its judgement about the importance of the error in the context of the whole trial, goes on to make the further judgement as to whether or not what went wrong may have affected the understanding and the deliberations of the jury in such a way as to lead them to draw an important inference of inferences adverse to the appellant. If the judgement is that the error was likely to have influenced the jury to reach a material judgment adverse to the appellant it will hold that the ground of appeal has been made out, that the ‘alleged’ miscarriage of justice was a true miscarriage of justice, and, a miscarriage of justice having occued, the conviction appealed against must be quashed.”

SIGNIFICANT ADDITIONAL EVIDENCE AND OTHER EVIDENCE NOT HEARD AT THE ORIGINAL PROCEEDINGS

The appellant prays your Lordships to allow the additional evidence and other evidence not heard at the original proceedings. This additional evidence, which was discovered as a result of hard work and more careful investigations, was not available and could not reasonably have been made available at the trial. The other evidence which was not heard at the trial was partly because it was withheld by the Crown prosecution and partly because the Defence Advocate di not follow the Appellant’s instructions.

In (Campbell v HMA) the Lord-Justice Clerk observed that in applying the new provisions (reasonable explanation) the Court should be guided by its understanding of the interest of justice.

There was a miscarriage of justice because the jury’s verdict was delivered in ignorance of evidence which would have been likely to have had a material bearing on the jury’s determination. We respectfully submit that this evidence of such significance as to lead to the conclusion that the jury would have been bound to acquit. This evidence can be summarised as follows

1.That an armed siege did actually take place at Mr Victor Gough’s premises on the same day the alleged armed robbery took place. Police report, photographs of the siege and police witness statements are attached.

Despite this, the Crown Prosecutor denied that an armed siege took place, and when the appellant tried to raise this issue during his testimony in the court, the Advocate Depute called him “a liar” and “an elaborate liar”.

2.Although Mr Victor Gough was charged, the Crown did not pursue the case against him any further. Mr Gough was a crucial witness but was never cited by either the Prosecutor or the Defence Advocate. It is alleged that Mr Gough is a police informer and the police did not confirm nor deny this.

3.Investigations revealed that Mr Gough had previously asked Mr John McAtear to drive a van on the day of the alleged armed robbery. At the last minute, Mr McAtear declined to do this job due to other pressing commitments. Mr Gough then approached the appellant on the same day when Mr McAtear made it clear that he was unable to do the driving of the van. The appellant was not aware that this witness (Mr McAtear) existed and it was only by chance that this witness was discovered when the appellant’s son came across him in a bar in Beith when he (Mr McAtear) told the appellant’s son of the events leading to the incident. Mr McAtear’s precognition is attached.

4.On the night before the alleged armed robbery, the appellant’s daughters, Ashley and Stephanie Jackson, were in the house when Mr Victor Gough came to ask the appellant to drive the can. Precognitions of both Ashley and Stephanie Jackson are attached.

5.Crown witnesses and employees of the Bax Global Warehouse, Mr Mark Small and Mr Gavin Percy, gave statements to the police. Their statements are attached where fatal gaps and contradictions are highlighted. It is respectfully submitted that both of these witnesses conspired with others to steal from their employer, a truck load of expensive computer components. They have fabricated the story of an armed robbery in an effort to cover their tracks. Thorough investigations point to the likelihood of that taking place rather than an alleged armed robbery, for many reasons, including

(a)Both witnesses (Small and Percy) claim that the assailants drove into the warehouse in a “black Audi” car. There was no hesitation on their part as to the make of the vehicle.

Close examination of the still photographs from CCTV footage reveal that the car was indeed a Toyota Avensis which could not possibly be mistaken with an Audi car. A Toyota Avensis shape can be distinguished from any other shape of car. The front end of a Toyota Avensis does not even remotely resemble the front end of an Audi, especially when it comes to the shape and features of the headlights.

Witnesses, Small and Percy, deliberately identified the black vehicle as an Audi car to mislead the police and distract them from searching for the real car involved.

(b)Close examination of the still photographs from the CCTV footage reveals a black car arriving at the warehouse roller shutter gates at 80758 and the van (truck) leaving the warehouse at 80935.

This means that within a space of a mere 1 minute and 37 seconds the whole incident of an alleged armed robbery was completed. This defies logic because both witnesses, Small and Percy, claimed that
(i)the assailants got out of their car
(ii) witness Percy was forced out of his van,
(iii) one of the assailants (with a gun) went into the office and forced witness, Small out,
(iv) Both witnesses were marched to the other side of the warehouse,
(v) Tape was put on the hands and feet of the witnesses asking “where is the Intel”
(vi) The van was loaded with the components
(vii) The black car reversed, and
(viii) The van was driven out of the warehouse.

That we respectfully submit, My Lords, is an impossible task within a very
short period of time. This is especially so when none of the assailants appeared
to be in a hurry in the still photographs.

Therefore the only other logical explanation is that the whole act was pre-
arranged with the cooperation of witnesses Small and Percy whereby the van
was already pre-loaded with the expensive Intel components ready to be taken
away. What enforced our opinion here is the fact that the assailant arrived at
the warehouse only moments after the delivery of Intel components to the
warehouse. That would only have been possible with the cooperation of the
employees at the Bax Global Warehouse by telephoning their accomplices after
the delivery of the Intel components to the warehouse. In his statement by the
police, Mr Small stated that he could not find his mobile phone after the
incident. Had the police found his mobile phone it would have implicated him
in the incident because we believe that he used his mobile to invite his
accomplices to the warehouse after the delivery of the Intel components.

(c)Close examination of the still photographs from the CCTV footage reveals the hooded assailants covering their heads to avoid being identified and one of them wearing light or white trousers. Neither Witness Small nor Witness Percy referred to these facts in their statements.

In fact the witnesses stated that the assailants were between 5’7 and 5’9 tall. Mr Small also stated that the man with the gun is “a black man with a shiny face” which Mr Percy never referred to. Mr Percy also claimed that the assailants wore “black stocking masks”. Neither witnesses mentioned that any of the assailants wore glasses.

The appellant is 6’1 tall and without his glasses his eyesight is very poor. He was never identified by anyone or by any means, including witnesses Small and Percy, as being at the locus. In addition, the Crown failed to produce any DNA evidence to implicate the appellant. Furthermore, the witnesses made no mention that any of the assailants wore a woollen hat and neither witness gave description of the assailant who drove the truck (van).

(d)There are several serious contradictions and fatal gaps in the statements given by witnesses Mr Mark Small and Mr Gavin Percy. These include

(i) In one of his statements Mr Percy said “I put the Intel cartons in the van along with the goods”. This is not the same when Mr Percy referred to one carton only. In addition, in another statement, Mr Percy claimed that one of the assailants shouted “where is the Intel” to which Mr Percy replied that it was “beside the pole”. So where were the Intel box(es), “beside the pole” or “in the van along with the goods”
(ii) Mr Percy claimed that while his feet were tied and his hands tied behind his back “and I managed to get out of my jacket and hopped into the office where I dialled 999”. On the other hand, Mr Small claimed that he dialled 999 from the office. Therefore, who dialled 999 Was it Mr Small or Mr Percy How was it possible for Mr Percy to get out of his jacket and free his hands while he was lying down on the floor face down with his feet tied and his hands tied behind his back Would it not be first instincts for the witnesses to free one another and to make sure that both of them were alright and uninjured before contemplating dialling 999
(iii) In one statement, when referring to the gun used, Mr Percy said “I saw that it was an automatic handgun” and in another statement he said “I would describe the gun as being like an automatic pistol, dark in colour with like a flat barrel”. Mr Percy managed to describe the gun in detail but offered no description of the assailant holding the gun. On the other hand, Mr Small described the gun as being “a dark grey hand gun revolver type with a chamber. I think it has a tan coloured handle”. Mr Small also stated that the gunman had “a shiny black face” and that he was not covering his face. Mr Small also stated that he can identify the gunman if he saw him again. On the other hand, Mr Percy made no reference to any black man being present at the locus and said that the assailants were wearing stocking masks.
(iv) Mr Small stated that “I opened the door and let him (Percy) move his van (the truck that was stolen) in”. This contradicts Mr Percy’s position when he stated that “I got to work at 5 minutes to 8. I parked the van (the one he used to come to work in), rang the bell (at the side door) and Mark Small, the other delivery driver let me into the warehouse. I went in and shut the door down”. Therefore the van that was stolen, was it outside the warehouse as Mr Small claims or was it inside the warehouse as Mr Percy claims
(v) Mr Percy made several statements to the police. In one statement he refers to 3 assailants and in another he refers to 4 assailants.

All of the witness statements raised more questions than offered answers. None of the Crown witnesses, including Mr Small and Mr Percy, were cross-examined by the Defence Advocate. The only witness that was cross-examined by the Defence Advocate was the tachograph expert. Mr Small admitted in the Court that he was robbed of another van a year earlier. We suspect that the proceeds of that crime helped Mr Small buy his sandwich shop shortly thereafter.
GROUNDS OF APPEAL

A – MISDIRECTION BY THE TRIAL JUDGE

1.The statement made by the learned trial Judge (page 3, lines 11 – 1 Cool

is an improper statement as the Judge is a master of Law only. The learned trial Judge did not make it clear that his own views on the facts must be disregarded but left it to the jury to accept or reject his views. ( R v Iroeghan 1988).

2.The learned trial Judge has misdirected the jury by his definition of “reasonable doubt” (page 11, lines 1 – 9) by using the word “important” on line 8. This in essence has redefined “reasonable doubt” as being applicable to “important” decisions only and not to any other decision.

In relation to “reasonable doubt”, the High Court has defined this as “a reasonable doubt arises if it is a doubt that would cause the juror or judge to hesitate or pause in the conduct of his own affairs before taking a decision”.

In previous case Law, the High Court has made it clear that even the slightest deviation from this definition of “reasonable doubt” in a jury direction may well be fatal to a conviction.

In (A v HMA 2003), Lord-Justice Clerk Gill, in delivering the unanimous opinion of the Court stated “…a restatement of a recognised direction in other terms may complicate or modify the legal test and in that may create the risk of a misdirection.”

In (MacDonald v HMA 1996), it was held that the Sheriff had misdirected the jury when he defined a “reasonable doubt” as one that would cause the juror, in the conduct of their own affairs, to “stop” doing something. It was held that by referring to stopping doing something as opposed to hesitating or pausing before doing it, the Sheriff had misdirected the jury on the standard of proof by overstating it. The appeal was allowed and the conviction quashed.

In addition, the learned trial Judge failed to make it clear to the jury that, in the event of their having any reasonable doubt as to the accused’s guilt, the accused should have the benefit of such doubt.

3.The learned trial Judge appeared to impose his own views on the matters properly with the jury’s province when he stated (page 11, lines 22 – 25) that “the essential matters are first of all whether the crime has been committed at all – as to which in this case you may not have very much doubt but again, it’s a matter for you.”

In (Simpson v HMA, supra), Lord Justice-General noted at page 3 that the Judge is not entitled to trespass on the jury’s province as masters of the facts, nor is it enough for him to pay lip service to this principle by saying that the facts are for the jury, if the then unduly impresses his own views on them.

4.In reference to corroboration, the learned trial Judge (page 12, lines 1 – Cool

has misdirected the jury as to what circumstances could be treated as corroborative of guilt and failed to properly illustrate the way the law fell to be applied. In addition, the learned Judge failed to clearly indicate which elements of evidence which could not be used for corroboration and, at the same time, which elements of evidence which could be taken to corroborate the appellant’s statement.

This misdirection may have affected the understanding of the corroboration rule by the jury as well as their deliberation in such as way as to lead them to draw important inferences adverse to the appellant and, as a result, there was a true miscarriage of justice.

The corroboration rule requires, at its core, that at least two pieces of evidence are from independent sources. Not only must the two pieces of evidence be from independent sources, they must also coincide. Where the two pieces of evidence conflict with each other, the corroboration rule is not satisfied.

In (Lochwood v Walker 1910 S.C.(J.)3.), Lord Justice-Clerk, at page 5, put it “No doubt our Law does not require that every fact in a case shall be proved by the witnesses, but it most certainly does require that every crucial fact shall be so proved.”

In (Morton v HMA 1938), Lord Justice-Clerk Aitchison said “No person can be convicted of a crime…unless there is evidence of at least two witnesses implicating the person accused with the commission of the crime or offence with which he is charged. This rule has proved an invaluable safeguard in the practice of our criminal courts against unjust conviction, and it is a rule from which the courts ought not to sanction any departure.”

The learned trial Judge failed to distinguish between the facts that need to be corroborated and made no clear distinction between the “essential or crucial facts” and “evidential facts”. The distinction between the two is crucial as there is the danger an evidential fact may be offered in proof of an essential fact.

It is only the “facts in issue” or “crucial facts” (facta Probanda) that require corroboration. In a criminal case, the crucial facts are the facts which establish the accused’s guilt of the crime libelled in the indictment expressly. On the other hand, evidential facts that comprise circumstantial evidence do not require to be corroborated. Evidential facts are reliable and admissible only if they are relevant to the essential facts.

In the five Judge decision in the landmark case of (Fox v HMA 1998), it was stressed that the corroborating (supporting) evidence must “confirm or support” the other piece of evidence being relied upon.

The Appeal Court in (Fox v HMA 1198 SLT.335) also adapted the dictum of Lord President Normand in (O’Hara v Central SMT Co, 1941 SC.363 at 379) to the effect “Corroboration may be facts and circumstances and proved by other evidence than that of the single witness who is to be corroborated. There is sufficient corroboration if the facts and circumstances proved are not only consistent with the evidence of the witness, but more consistent with it than with any competing account of the events spoken to by him.”

The most important feature of corroboration is the identity of the accused. No one may be convicted of any criminal offence in Scotland unless there are at least 2 independent items of evidence that point to the accused having been the perpetrator. Therefore, the identity of the accused is a critical element.

In acquitting the accused in (Bruce v HMA 1936 J.C.93), Lord Wark on appeal pointed out that “…identification of an accused is not a matter which ought to be left to implication…”

The identification of the appellant as the perpetrator of the crime libelled was never established at the trial. The appellant was never identified by any one or by any means which could have linked him to the crime. There was not even a hint that the appellant resembled any of the assailants. Therefore, there was not any direct evidence to link the appellant to the crime.

The Crown then sought to rely for corroboration on the appellant’s clothing, about which the learned trial Judge much later on in his charge to the jury noted (at page 25, lines 9 – 16) “If the clothing is nondescript and could be seen and worn by hundreds of people you would see every day. In this case there is nothing distinctive about it at all, so while you must consider it because it is important you will have to be very careful what weight you attach to it for the reasons that I have given.”

In this context, the learned trial Judge failed to direct the jury that it would not be open to them to rely on such evidence of clothing for corroboration. In (Cordiner v HMA, 1991 SCCR 652), the Court held that “such a failure to give appropriate directions resulted in a miscarriage of justice.”

In any event, the Crown’s reliance for corroboration on the appellant’s clothing (“nondescript and could be seen and worn by hundreds of people you would see every day”) is totally floored because corroborating evidence must “confirm or support” the principal piece of evidence. Neutral evidence can never corroborate, no matter how much of it there is.

In (Gallagher v HMA 2000), the accused appealed against a conviction for robbery and assault to severe injury. The principal source of evidence was the testimony of the complainer. The complainer claimed that the accused and the co-accused were involved in the assault. The Crown relied upon 3 adminicles of evidence as corroboration;
(a)the accused’s admission of being in the flat at the time,
(b)around a week after the incident blood was found on the accused’s trainers,
(c)the accused was seen running away from the flat at the time of the incident.

The High Court allowed the Appeal and quashed the conviction, all of these admiciles were regarded as being entirely neutral.

Furthermore, the learned trial Judge misdirected the jury on the facts when he referred to the witness Percy (31-32) that his evidence that one of the men, who was wearing a woollen hat, went to the truck. Consideration of his statements (now disclosed) shows no indication of any such recollection on his part. Nevertheless, the Crown relied on that evidence as part of its case against the appellant.

One of the basis principles of legal and criminal responsibility is that those who are punished are those who deserve it, ie, those who are considered to be morally or individually as well as factually responsible for what has been done. The circumstantial evidence which lef to the conviction of the appellant came only from the creative assertions and explanations by the Advocate Depute which went unchallenged and not from real circumstances. There was no evidence to entitle the jury to convict the appellant. All of the foregoing lead to a true miscarriage of justice.

5.The learned trial Judge expressed opinions upon matters not properly falling within his
province. On page 17 (lines 10 – 13), he stated “that there isn’t very much difficulty about that bit of the case. I don’t think anyone is disputing that anything other than that took place.” In this misdirection the trial judge also presented something as clearly proved without referring to evidence to the contrary. This may have resulted in a miscarriage of justice.

6.In illustrating the Law (Doctrine of Art and Part or Concert) and how this law fell to be
applied, the learned trial Judge had misdirected the jury (page 18, line 22 – 25 and page
19, line 1 – 20). The illustration and example given by the Judge not only helped to fill
in the fatal gaps in the Crown’s case, but also have affected the understanding and
deliberation of the jury in such a way as to lead them to draw inferences adverse to the appellant. As a result, there was a true miscarriage of justice.

The learned trial judge failed to give accurate and adequate direction in relation to the application of the Doctrine of Art and Part, or acting in concert.

We respectfully submit to your Lordships our understanding of Art and Part Liability. Art and Part Liability arises where 2 or more individuals participate in the commission of a crime. This participation can be the result of a common plan or purpose, or can arise spontaneously. Conversely, if a number of people are involved in a criminal incident but no common purpose, either planned or spontaneous, can be shown, then each will be judged only on the basis of their own actions. Where there is no or insufficient evidence of a common plan, the courts have focused on whether the unplanned actions were reasonably foreseeable.

This approach adopted in recent cases such as in (Boyne v HMA 1980) and in (Cadona v HMA 1996) indicate that the blanket responsibility that was once assumed to accompany evidence of a common plan, eg in (HMA v Gallagher 1950), is now more fragile. Individual responsibility is now more closely examined and both the foresight, mens rea, and participation of each assued is more carefully examined. In Scots Law an objective test of mens rea is adopted, (Blane v HMA 1991), whereby the accused is judged by the standards of (what a reasonable man should or would have foreseen in the circumstances)

The learned trial Judge failed to illustrate the law in the foregoing terms and his omission of critical legal issues prejudiced the appellant’s position.

In addition, the learned trial Judge failed to direct the jury by giving another example more consistent with the competing account of the events spoken to by the appellant. The misleading and only example given to the jury by the trial judge constituted prejudice to the appellant and cannot possibly be viewed to be to his advantage.

The appellant gave a clear, innocent, credible and consistent story from the minute of his arrest, then to the police and in the witness box which exculpate him.

It is important that the provider of assistance must be aware that he is assisting a criminal purpose. There must also be some connection between the actual perpetrator of the harm and the assistance provider.

In (HMA v Johnstone and Stewart 1926), the two accused were charged with procuring an abortion while acting in concert. The 2 women had never met, however, Johnstone had obtained Stewart’s name from a third party and had passed this onto persons interested in obtaining an abortion. Lord Moncrieff directed the jury that if they accepted the evidence that the women were strangers and no money was paid by Stewart to Johnstone for referral, then art and part guilt could not be established. Johnstone was acquitted and Stewart was convicted.

In the same context, the learned trial Judge did not give any direction to the jury (with the exception to the “common plan” delivered much later in his charge and which “plan” was never established in the court) on the possibility of the grounds for unsafe conviction. The learned Judge’s illustration and example delivered to the jury confused the issued of between “art and part liability” and “vicarious liability”. The result of his direction may have led the jury to believe that “art and part liability” and “vicarious liability” are one and the same. The terms of the Judge’s charge in relation to the foregoing issues were such as show a bias and have constituted a miscarriage of justice resulting in the appellant being convicted by unanimous decision of the jurors (Tallis v HMA 1982 SCCR 91).

Therefore, the appellant was prosecuted for a crime he did not personally commit and his conviction in effect made him vicariously liable for the actions of others. There was not a shred of evidence that the appellant acted for the commission of the crime libelled. In addition, accession after the fact is not recognised in Scotland. Assistance or participation following the commission of a crime does not result in criminal responsibility for that crime.

7.The learned trial Judge referred to some of the evidence inaccurately and misleadingly. For example
(a)On page 20 (lines 3 and 4) he stated “…to tie up and frighten the officials into saying where the expensive things are…” This is inaccurate and misleading as none of the witnesses (Mr Small and Mr Percy) testified or stated that any of the assailants asked for the expensive things. Indeed, the witnesses stated that one of the assailants asked “where is the Intel”, and this implied that the assailants had prior (inside) knowledge that the “Intel components” were delivered to the warehouse only moments prior to the alleged armed robbery. The actual evidence paints a completely different picture from the Judge’s misleading direction as to the facts which may have implied to the jury (or even ruled out) that there is no conspiracy between the witnesses and the assailants.

(b)On page 21 (lines 8 – 15), the Judge stated “…the Crown say that if you hold that the panel on trial was at the warehouse with others and took part, as we heard described, and drove away then he is art and part guilty of the lot and that, ladies and gentlemen, is a view which you would be entitled to take on the evidence.”

The manner in which this direction was delivered could have indicated to the jury that the only appropriate verdict in this case is the verdict of guilty. This is especially the case as the jury is likely to have forgotten that the judge used the word “if” long before he finished his sentence.

It would have also been possible for the jury to interpret the direction to mean that the Crown has provided sufficient evidence that the accused did take part in the armed robbery and was at the locus (“as we heard described”) and hence he is art and part guilty.

In addition, for the learned Judge to state “this is a view which you would be entitled to take on the evidence” could have implied in the understanding of the jury that the Crown has discharged the burden of proof to the required standard which may have lead the jury to return a guilty verdict by unanimous decision. This is a serious misdirection which resulted in a true miscarriage of justice.

(c)On page 25 (lines 1 – 4), the Judge misdirected the jury on the facts when he stated “you have heard about that, this black jacket, this pair of jeans…which was found in the lorry.”

This is an inaccurate statement because these items were not found in the lorry (van) but were worn by the appellant at the time of his arrest. The Judge’s statement could have served to allow an inference that the appellant attempted to change his clothing to change his appearance.

(d)On page 28 (lines 2 – Cool

, the Judge stated “I have decided in this case the interview (with the police) can be categorised as… a mixed statement…”

The learned trial Judge ought not to have given this direction to the jury considering that there is no foundation to support his view which he impressed upon the jury and his failure to elaborate on the subject as to which parts of the appellants interview contained “mixed statements”. This is a misdirection which may have lead the jury to draw important inferences adverse to the appellant and, as a result, lead to a miscarriage of justice.

(e)On page 31 (lines 21 – 25), the Judge stated “…this witness Percy…said he was doing the paperwork when a big, black Audi came charging in up to the van…”

This contradicts witness Percy’s testimony and statement when he stated that he was in the van waiting for the roller door to open to allow him to drive the van out of the warehouse.

(f)On page 32 (lines 11 – 15), the Judge stated “he (witness Percy) said that the third man went to the truck, he had a woollen hat…and he said what he wore was very similar…”

The learned trial Judge in this instant referred to the evidence inaccurately and misleadingly which prejudiced the appellant in such a way as to point to him as the driver of the van when it was taken from the warehouse. This contradicts witness Percy’s position in that he was unable to identify the person or the clothing of the person ho went to the truck. In addition, consideration of Mr Percy’s statements (now disclosed) shows no indication that any of the assailants wore a woollen hat nor any indication that the assailant who went to the truck was wearing a woollen hat. In fact, Mr Percy stated that the assailants wore “dark stocking masks.”

(g)On page 33 (lines 7 – 9), the Judge stated “…when Percy tells you that whoever was the driver wore these clothes or clothes like these.”

This is an inaccurate statement by the learned trial Judge as witness Percy stated that “one of the robbers (not the driver) wore clothes like these.”

(h)On page 35 (lines 11 and 12), the Judge stated “you are not bound to convict but you would on that evidence be entitled to convict.”

This statement or direction by the learned trial Judge could have been taken by the jury as a judicial indication that the not guilty verdict was not appropriate to this case. The Judge misdirected the jury by imposing his own views on matters properly with the jury’s province. This may have resulted in a miscarriage of justice.

We therefore, respectfully submit to your Lordships that this is not part of the trial Judge’s function to comment on the evidence. The fact that a Judge tells the jury that it is their recollection of the evidence, and not his, that counts will not always prevent an erroneous description of the evidence from constituting a misdirection (Larkin v HMA 1998 SCCR 30). It is also a misdirection to put the facts before the jury in such a way as to confuse them, or to present something as clearly proved without referring to evidence to the contrary, or to fail clearly to focus an issue where there has been confusing or conflicting evidence.

8.The learned trial judge dealt with the evidence unfairly. He gave undue weight to the Crown’s evidence and insufficient attention to the appellant’s defence evidence. In his charge to the jury, the Judge’s direction emphasising the Crown’s evidence consumed some 20 pages (pages 16 – 36 inclusive) while reference to the defence evidence took up a mere one and a half pages (from bottom of page 36 – top of page 3 Cool

. It was previously held by the High Court that it is a misdirection to fail to put the defence case properly to the jury (Scott (A T) v HMA 1946 J.C.90).

Although, admittedly, the learned Judge was fair to the appellant in a few places, the overall terms of charge were such as show bias and this may have constituted prejudice to the appellant. Accordingly this may have affected the understanding and deliberation of the jury in such a way as to lead them to draw important inferences adverse to the appellant and, as a result, the appellant may have been subjected to a miscarriage of justice.

9.The learned trial judge erred in Law by failing to distinguish carefully between the persuasive and the evidential burdens in which they rest with different parties. This, in past case law, led to several successful appeals where the distinction between two burdens has been implicit in each appeal judgement.

Scots Law recognises only one burden of proof, namely the persuasive burden, and there is a danger that any reference to a shifting of “the” burden of proof will be taken, incorrectly, to mean a shift in the persuasive burden.

On page 14 (lines 4 – 11) the learned Judge stated “If he gives evidence and his evidence tends to exculpate him…, so if you believe him then he must be acquitted.”

On page 28 (lines 19 – 21), the Judge also stated “You have got to consider whether the answers given (by the appellant) to the police questions are true answers or not.”

In (Tallis v HMA 1982 SCCR 91, at page 99), the trial Sheriff directed the jury in the following terms “the situation may arise, ladies and gentlemen, that the Crown puts forward such a strong case that it is only if you are satisfied with the explanation given by the accused, that you would be entitled to acquit him and again that may very well be the situation here, but again is a matter for you to make up your minds about, ladies and gentlemen.”

On appeal, it was said of this charge that it was “a serious misdirection in law”, in that it was a “plain indication” to the jury that in certain circumstances the onus of proof shifts to the accused and unless he can discharge it by explanation which satisfies the jury, ie, of his innocence, then conviction must follow.

The misdirection in law in the above case is similar but not as serious as the misdirection given by the trial Judge in the appellant’s case. This is because the learned Judge made up the jury’s mind for them when he said (page 28, lines 2 – Cool

that “I have decided in this case the interview (with the police) can be categorised as…a mixed statement…”

The learned trial Judge then followed that up on the same page (page 28, lines 19 – 21) by saying “you have got to consider whether the answers given (by the appellant) to the police questions are true answers or not.”

Accordingly this misdirection by the learned trial Judge comprising an error in law as well as a judicial indication that the appellant was not telling the truth, may have affected the understanding and deliberation of the jury in such a way as to lead them to draw important inferences adverse to the appellant. As a result, the appellant was subjected to a true miscarriage of justice.

10.The learned trial Judge in his charge to the jury that the charges libelled against the appellant were linked in time, character and circumstances. This implication, although not expressly stated, points to the application of the Moorov Doctrine. For example

On page 21 (lines 6 and 7) the Judge stated “timing in these cases can sometimes be important.”

On page 30 (lines 23 – 25) the Judge stated “…that the evidence…shows that a gang of 4 people drove in a black car…”

On page 31 (lines 2 and 3) the Judge stated “…and that thereafter the robbery took place.”

On page 30 (lines 4 – 6) the Judge stated “…it does not seem to be disputed…that a very serious robbery with violence, with guns, did place.”

On page 30 (lines 7 – 10), the Judge stated “…within 13 minutes the accused is seen in Barrhead driving the very same truck in the road that was described to you on his way to the place where he ultimately went.”

(It may be worth mentioning at this point that the trial Judge made an error as to the facts. First, the witnesses (Small and Percy) made reference to “one gun” only, while the Judge referred to “guns”. Secondly, police officers gave conflicting accounts of the events in their statements. One officer, however, namely PC Glen Discombe, gave a statement to the effect that a short time after 8.45am, a G Division panda spotted this vehicle (van) in the Barrhead area and began to follow this vehicle. CCTV footage shows the can leaving the warehouse at 809am and thereafter the van was spotted in Barrhead after 845am. This means that at least 36 minutes has lapsed before the van was spotted in Barrhead. To this end, the trial Judge (at page 30) stated, “…within 13 minutes the accused is seen in Barrhead driving the very same truck.” Therefore, the statements made by the trial Judge in relation to the foregoing are inaccurate statements of fact.)

The Moorov Doctrine is a very important exception to the corroboration rule and its recent concept is to be found in the case of (Moorov v HMA 1930). This device allows evidence from one charge in the indictment to be used to corroborate another charge in the same indictment. However, where the Moorov Doctrine is relied upon to prove corroboration between two or more charges, the court should only allow the more serious charge to corroborate the less serious, but the less serious will not operate to provide corroboration for the more serious charge (HMA v Brown 1969). In addition, there are strict conditions which must be met before the Moorov Doctrine can apply including that the accused must be positively identified by at least one witness on each relevant charge.

In this case, there is not a shred of evidence placing the appellant at the locus where the alleged “assault and robbery” took place. The appellant also was never identified by any witness or by any means to link him to the crime libelled.

The learned trial Judge erred in law and failed to give adequate and proper directions to the jury in relation to the application of the Moorov Doctrine and how the law fell to be applied. In particular he failed to leave it to the jury to decide whether the connection which the application of the rule required was proved to their satisfaction. It was for the jury to resolve these issues, being essentially issues of fact (Sinclair v HMA 1990 SCCR 412).

The learned trial Judge made an inaccurate and misleading reference to the evidence and his direction was formed in such a way that it can only be interpreted as pointing to the guilt of the appellant. The context and the manner in which the direction to the jury may have affected the understanding and the deliberation of the jury in such a way as to lead them to draw important inferences adverse to the appellant and, as a result, there was a miscarriage of justice.

11.The learned trial Judge failed to direct the jury on the possibility of the grounds for unsafe conviction. There is an irreconcilable conflict between the evidence pointing to the appellant’s guilt and evidence pointing towards his innocence.

The trial Judge also failed to focus an issue where there has been confusing or conflicting evidence and, in particular, the possibility that the Crown Prosecution may have withheld evidence which may have deprived the appellant from the right to a fair trial. Although the Advocate Depute had in his possession copies of the police report and several police witness statements indicating clearly that an armed siege took place at Mr Victor Gough’s premises, he denied such an armed siege took place and when the appellant referred to the armed siege during cross-examination, the Advocate Depute called him “a liar” and “an elaborate liar”.

The learned trial Judge also failed to make an issue of the defective representation of the Defence Counsel (Mr Gordon Jackson, QC), who was absent for almost all of the trial and failed to cross-examine all of the witnesses with exception to one; namely the tachograph specialist. As a result, the appellant was deprived of the opportunity to present his defence which denied him the right to a fair trial.

12.Finally, in the Judge’s report dated (21 September 2006), in relation to the Note of Appeal lodged by the appellant, Lord McEwan, on page 6 stated “I remain of the opinion that this appellant was properly convicted on compelling evidence. He was well represented by a very experienced Senior Counsel and there was no unfair behaviour by the Crown.”

We respectfully submit to your Lordships that the opinion as expressed by Lord McEwan is incomprehensible considering, at least, the contradiction which he expressed in his charge to the jury. For example

On page 14 (lines 13 – 16), the Judge stated “…the defence case also consists of cross-examination of the Crown witnesses, and in this case in particular the tachograph witness.”

On page 22 (lines 10 – 15), the Judge stated “Now can I ask you, please, to look at a document…which is called the Special Defence and I will read it shortly to you because nothing very much so far has been said about it.”

On page 26 (line 25) and page 27 (line 1), the Judge stated “…because frankly there was very little said about the CCTV evidence.” (“the rather jerky black and white CCTV images from the factory – the warehouse.”)

On page 27 (lines 2 – 9), the Judge stated “It was said to you in speeches that there are 4 people who got out of the car…and from my memory not a great deal was said about it. We were certainly asked to look at it and we did but there wasn’t a great deal said to flesh it out…”

On page 34 (lines 11 – 13), the Judge stated “It’s certainly true that evidence was given – it wasn’t cross-examined, I don’t know why but it wasn’t…”

Furthermore, in a precognition taken by Turnball McCarron Solicitors from Mr David Todd – the Solicitor who instructed Defence Counsel Mr Gordon Jackson, QC – Mr Todd stated
“It is fair to say that Gordon Jackson (Defence Counsel) did not appear for much of the trial”;
“Junior Counsel…told me that she has been instructed by Senior Counsel, Gordon Jackson, not to cross-examine any of the witnesses”;
“they (Counsel and Appellant) may not even have met at any point where evidence would have been discussed in detail”;
“to be honest with you we were almost permanently looking for Gordon Jackson”;
“All in all, I suppose you could say that Gordon Jackson put up a pretty poor show.”

A copy of Mr Todd’s precognition is attached and highlighted.

B – MISCONDUCT BY THE PROSECUTOR

The Crown Prosecution deliberately withheld evidence and failed to disclose all material evidence to those advising the appellant in advance of the trial. It was their duty to disclose such evidence. That evidence included (but not limited to) the police report, all witness statements and the results of all forensic investigations.

Even after the trial was concluded and the appellant was convicted, the Procurator Fiscal refused to disclose the evidence which they previously withheld during the trial. It was not until recently that the Procurator Fiscal was forcedordered to make this evidence available but only after a petition was made to the High Court.

It is a fundamental aspect of the right to a fair trial by Article 6(1) of the European Convention On Human Rights (ECHR) that there should be equality of arms. That principle was not respected in the present case. The duty of disclosure was on the Crown and there was a breach of that duty. That failure deprived the appellant of the opportunity to prepare and present his defence to the fullest extent.

The implementation of the Human Rights Act 1998 (HRA) and the Scotland Act 1998 has lead to a sea-change in the way in which both layers and the public sector bodies (including the Lord Advocate, the police and the Courts) work. Public bodies have to be aware that their every action may have implications for the human rights of a citizen and their administrative practices and procedures have to be altered accordingly.

Section 6(1) of the HRA states that it is unlawful for a public authority to act (including failure to act) in a way which is incompatible with the ECHR.

Section 57(2) of the Scotland Act 1998 states that a member of the Scottish Executive has no power to do any act so far as the act is incompatible with the ECHR or European Community Law.

In this context, by way of example,

1.The appellant gave evidence on his own behalf. He was cross-examined by the Advocate Depute who suggested that his account of events was untruthful. In particular, it is understood that the Advocate Repute called into question the evidence given by the appellant to the effect that there has been “an armed siege” at the premises occupied by a man called Victor Gough. It was suggested that the appellant was not being truthful when describing what occurred and the Advocate Depute called him “a liar” and “an elaborate liar”

It is understood that armed police and a helicopter were deployed and that police officers were present at the locus for several hours before Mr Victor Gough gave himself up. Police report and statements (now disclosed) clearly show that this is the case.

If so, then the learned Advocate Depute ought not to have cross-examined the appellant along the lines described. His decision to withhold evidence and to conduct himself in the fashionmanner described deprived the appellant of his right to a fair trial.

2.In his charge to the jury the trial Judge refers to the witness Percy (at 31-32) and his evidence that one of the men, who was wearing a woollen hat, went to the truck. Consideration of his statement (now disclosed) shows no indication of any such recollection on his part.

On the other hand, it is clear that the Crown relied on that evidence as part of its case against the appellant.

The Lord Advocate (and his Depute) could not act incompatible with the appellant’s Convention rights, including his rights under Article 6(1) and Article 6(3)(b) and (d). In the circumstances described, he had no power to conduct himself in the manner which he did and no power to seek the conviction of the present appellant. Such acts are ultra vires. Reference is made to (Steven v HMA 2002, SLT 1249, Lady Paton at pp 1252 K ([18]) to 1253 B ([20]) ).

C – MISCONDUCT BY THE DEFENCE ADVOCATE (DEFENCE REPRESENTATION)

The defective representation, misconduct and total failure on the part of the Defence Advocate denied the appellant the right to a fair trial which resulted in a true miscarriage of justice.

The appellant was deprived of his opportunity to present his defence because

1.His Defence Advocate acted contrary to his instructions including failure to lodge evidence and to cross-examine, during progress of a trial.

2.The Defence Advocate failed to prepare the defence case and did not consult with the appellant on any matter of the evidence. As a result, evidence which should have been excluded was admitted and evidence which should have been admitted was excluded.

The appellant had no prior knowledge of the content of the Minute of Agreement and that the last minute was asked to sign it anyway without the content being explained to him.

For this reason, the prosecution has had their work done for them not only because of the defective representation, but also that a crime which was committed was admitted.

3.The Defence Counsel was hardly present at the trial and in his absence, Junior Counsel was instructed by him not to cross-examine any of the witnesses and not to interfere with the proceedings.

4.All of the witnesses were not cross-examined with the exception to one witness. As a result, any evidence submitted by the Prosecution went unchallenged. For example, the Crown case was that the appellant was one of those who carried out the robbery. The appellant’s position was that he has been asked to drive the lorry but he was ignorant of the fact that the robbery had taken place. The Crown led evidence suggesting that the appellant would not stop when signalled to do so by a police officer. This was contrary to other police officers when they gave statements (now disclosed) that they had instructions “not to stop the lorry”. Indeed, he was arrested only after he voluntarily reached the destination where he was asked to deliver the lorry. None the less, the Crown relied on evidence to the contrary in his speech to the jury after which the Judge expressed concerns about that unchallenged evidence. That evidence ought to have been challenged by those acting for the appellant.

It was formerly held in (McCarrol v HMA 1949, SC10) that the inadequacy of the accused’s legal advisor was not a ground of appeal. That decision was overruled by a Full Bench in (Anderson v HMA 1996 SCCR 114 1996 SLT 155), in which it was held that where the inadequacy of an accused’s legal representative is such as to deprive the accused of his right to a fair trial this may amount to a miscarriage of justice which would justify setting aside a conviction and ordering a new trial.

The appellant subsequently complained to the Faculty of Advocates about the very poor conduct of his Defence Advocate. Surprisingly, the Faculty rejected the complaint and agreed with the Defence Advocate’s position in that he is entitled to exercise his professional judgement not to cross-examine any of the witnesses and not to be present at the trial if he wished.

The Faculty of Advocates’ position contradicts the High Court’s opinion on the subject where it previously held that, although Counsel and representing Solicitors are entitled to exercise their own discretion and judgement as to how to present the case for the accused, but what purports to be a tactical decision amount in fact to a failure adequately to present the accused’s defence, there will be a denial of the right to a fair trial.

An accused’s legal representative is under obligation to obtain instructions from the accused as to his intended defence and to act on those instructions.

In (E v HMA) the appellant produced a number of lines of evidence to his advisors, including evidence relating to factors which might have affected the reliability of the complainer’s evidence. His suggested lines of defence were not acted upon by Counsel, who preferred (in his own professional judgement) to approach the issue of credibility of the complainers by adopting more aggressive tactics which could have the effect of antagonising the jury. The effect of this strategy, in view of the appeal court, was to deprive the accused of his defence to the charge.

In (McGinty v HMA), the High Court emphasised the where an appellant was represented by Counsel at his trial, it is the responsibility of Counsel to ensure that the appellant’s instructions as to his defence have been obtained, and to give directions to the instructing Solicitors about the preparations which are required in order to ensure that the defence can be presented to the trial court. The appeal in that case, based on alleged failings on the part of instructing agents, was described by the Court as “misconceived” in that it ignored the fact that it is Counsel’s responsibility to advise on the preparations of the case.

The Defence Advocate recklessly failed to represent the appellant and to lead evidence in replication to counter the evidence led by the Crown so as to challenge, contradict and weaken the evidence produced by the Crown. As a result, the Court was persuaded by the unchallenged evidence it heard from the Crown.

The Court will be more likely to accept as true an item of evidence from the prosecution that the Defence Counsel has not bothered to refute since “the silent defender does take the risk”. This risk may be so serious as to allow a single unchallenged item of evidence from the prosecution to discharge not only the evidential burden but also the persuasive burden on that issue. As a result, in such cases, the standard of proof required to discharge the evidential burden may be no more than “prima facie” evidence.

In (McIlhargy v Herron 1972 S.C.3 Cool

, the Court put it in the following terms “I am not…suggesting that any fact in a criminal prosecution can be established merely by failure to cross-examine, and there are many cases where wise defending counsel asks as few questions in cross as possible. On the other hand, the silent defender does take the risk, and, if he fails to challenge evidence given by witnesses for the Crown by cross-examination or, in addition, by leading substantive evidence in support of his challenge, he cannot complain if the Court not merely accepts that unchallenged evidence but also, in the light of all the circumstances, draws from it the most unfavourable and adverse inference to the defence that is capable of supporting.”

There was no Legal Aid available to the appellant and the Defence Counsel refused to continue to represent him at the beginning of the trial until he was paid in full the fees which demanded amounting £7,000 (seven thousand pounds). A friend of the appellant paid these fees as the appellant had no means to cover such high fees. Also, in exercising his professional judgement, the Defence Advocate not only failed to cross-examine Crown witnesses but also gave specific instructions to Junior Counsel, who babysat the trial, not to cross-examine. However, “mere nomination does not ensure effective assistance” and Junior Counsel’s legal fees were met by Legal Aid for babysitting the trial.

In one of the cases which went before the European Court of Human Rights
In (Artico v Italy 1981), the applicant had been convicted of fraud and obtained the appointment of a Legal Aid lawyer for his appeal. From the outset, the lawyer rarely made an appearance due to other commitments and the applicant was, therefore, virtually unrepresented at his appeal, which he lost.

Article 6(3)(c) of the ECHR entitles everyone charged with a criminal offence to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interest of justice so require. The Italian Government argued that its responsibilities were fully discharged when the lawyer has been appointed but the European Court of Human Rights was not prepared to accept that argument. It said “The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective…mere nomination does not ensure effective assistance.”

We respectfully submit to your Lordships that in all of the circumstances described above there has been a miscarriage of justice, that the verdict of the trial court should be set aside, and that the conviction following thereon should upon review be quashed.

SAID HUWAISH
Agent for the Appellant