Adam v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 30 May 2006 |
| Neutral Citation | [2005] HCJAC 41 |
| Docket Number | No 35 |
| Date | 30 May 2006 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Justice-Clerk (Gill), Lord Macfadyen, Lord Penrose
Justiciary - Procedure - Juror visiting locus - Whether visit constituted part of the trial outwith the presence of the accused - Whether a fundamental irregularity - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 92(1)
Justiciary - Procedure - Conversation between clerk of court and juror - Whether conversation constituted part of the trial outwith the presence of the accused - Whether a fundamental irregularity - Criminal Procedure (Scotland) Act 1995 (cap 46), secs 92(1), 99(2)
Section 92 of the Criminal Procedure (Scotland) Act 1995 provides that no part of a trial shall take place outwith the presence of the accused. Section 99 of the Criminal Procedure (Scotland) Act 1995 makes provision for the seclusion of the jury to consider their verdict. Section 99(2)(a) provides, subject to certain exceptions, that no person shall visit the jury or communicate with them while secluded to consider their verdict.
The appellant went to trial in the High Court of Justiciary on,inter alia, two charges of murder. On two separate occasions, the appellant, who had a history of mental illness and alcoholism, pushed a drinking companion into the River Clyde at Glasgow Green, whereupon both victims drowned. His second victim had been a potential witness against him in respect of the first charge. The jury heard a considerable body of evidence about the locus of both offences and were directed by the trial judge not to carry out any individual investigations, such as inspections of the locus, but rather to concentrate on the evidence led in court. The jury were sent out to begin their deliberations on 1 June 2002 and, when it became clear that those deliberations could not be concluded that day, were taken to a hotel overnight and brought back to court the following day when their deliberations continued and a verdict was reached. The jury convicted the appellant of culpable homicide on both charges. It later came to the attention of the appellant's solicitors that one of the jurors, Mrs N was concerned by certain aspects of the trial. She reported that a fellow juror had indicated that he had visited the locus,though he added that he passed that way en-route home in the evening. Mrs N further recounted that she mentioned her misgivings about this to the clerk of court whilst at the hotel on the evening of 1 June 2002. She recalled that the clerk of court had advised her to speak to the jury foreman about the matter. The appellant argued that: (1) the juror's visit to the locus, contrary to the trial judge's direction, constituted evidence-gathering and as such, part of the trial had taken place out with the presence of the appellant, contrary to sec 92(1) of the Criminal Procedure (Scotland) Act 1995. This, it was said, constituted a fundamental irregularity; and (2) the conversation between the clerk of court and Mrs N also constituted a part of the trial, which also had taken place outwith the presence of the appellant contrary to sec 92(1) and further, that the conversation also constituted a breach of sec 99(2)(a). It was argued that the appellant need not establish prejudice in either case. The Crown argued that: (1) it had not been proved that the juror visited the locus, rather that he passed that way every evening; and (2) the conversation between the clerk of court and Mrs N was not part of the trial and therefore no breach of sec 92(1) had occurred. Further, there had been no breach of sec 99 since there had been no improper influence on the jury. In any event, and in either case, it was argued that there was no miscarriage of justice.
Held that; (1) it had not been established that the juror inspected the locus, nor did anything improper (para 26); (2) that a juror visiting a locus is not an impropriety per se and it will vitiate the proceedings only if its effect is to deprive the appellant of a fair trial (para 27); (3) the conversation between the clerk of court and Mrs N could not be said to be part of the trial and accordingly, there was neither an irregularity at common law nor a breach of sec 92 (para 35); (4) there was no breach of sec 99. The section is designed to protect the inviolability of deliberations within the jury room. At the time of the conversation in this case, the jury were not enclosed (para 36); (5) in any event, there was no miscarriage of justice (para 37); and appeal refused.
Observed that: (1) even if the juror had visited thelocus and had engaged in evidence gathering, his visit did not form part of the trial (para 30); and (2) evidence gathering in private by an individual juror is not part of the trial (cf unwarranted evidence gathering by the court itself).
Daniel McNeil McGill Adam, otherwise known as Daniel McNeil Adams, was indicted at the instance of the Right Honourable Colin David Boyd QC, Her Majesty's Advocate, the libel of which set forth charges of: (i) murder; (ii) assault and robbery; and (iii) murder. The appellant went to trial before Lady Paton and a jury at the High Court of Justiciary in Glasgow and was convicted of culpable homicide on each of charges (i) and (iii) on 2 June 2002. He was sentenced to life imprisonment, and ordered to be detained at the state hospital, Carstairs. The appellant lodged a note of appeal, containing one ground of appeal, which was subsequently supplemented by a further three grounds. The fourth ground of appeal (concerning misdirection of the jury on reasonable doubt) was argued before the court and refused on 27 April 2005 and the cause continued on the remaining grounds of appeal. The court remitted the cause to Lord Macphail for investigation. The cause again called before the court on 24 March 2006 when the remaining grounds of appeal were heard.
Cases referred to:
Adam v HM AdvocateUNK [2005] HCJAC 60; 2005 SCCR 479
Aitken v Wood 1921 JC 84; (1921) 2 SLT 124
Brims v MacDonaldUNK 1994 SLT 922; 1993 SCCR 1061
Crossan v HM AdvocateUNK 1996 SCCR 279
Cunningham v HM AdvocateSCUNK 1984 JC 37; 1984 SLT 249; 1984 SCCR 40
Drummond v HM AdvocateUNK 2003 SLT 295; 2003 SCCR 108
Gordon v HM AdvocateSCUNK [2005] HCJAC 84; 2006 JC 87; 2006 SCCR 1
Gray v HM AdvocateSCUNK 1994 JC 105; 1994 SLT 1237; 1994 SCCR 225
Gray v HM Advocate (No 2)UNK 2005 1 JC 233; 2005 SLT 159; 2005 SCCR 106
Kerr v HM AdvocateUNK 1999 SLT 1359; 1999 SCCR 763
McCadden v HM AdvocateSCUNK 1985 JC 98; 1986 SLT 138; 1985 SCCR 282
McColl v HM AdvocateSCUNK 1989 JC 80; 1989 SLT 691; 1989 SCCR 229
McTeer v HM AdvocateSCUNK 2003 JC 66; 2003 SLT 453; 2003 SCCR 282
Pullar v HM AdvocateSCUNK 1993 JC 126; 1993 SCCR 514
Russell v HM AdvocateSCUNK 1991 JC 194; 1992 SLT 25; 1991 SCCR 790
Thomson v HM AdvocateSCUNK 1997 JC 55; 1998 SLT 364; 1997 SCCR 121
The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Gill), Lord Macfadyen and Lord Penrose, for a hearing on 24 March 2006.
At advising, on 30 May 2006-
Lord Justice-Clerk (Gill)-
[1] The appellant was tried before Lady Paton and a jury at Glasgow High Court in 2002 on, inter alia, the following charges:
'(1) between 22 September 1999 and 26 September 1999, both dates inclusive, at Glasgow Green at The Albert Bridge on the River Clyde, Glasgow, you did assault Thomas Morgan … and push him into the River Clyde whereby said Thomas Morgan drowned and you did murder him; …
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(3) having committed the crime libelled in charge (1) hereof, namely murder, and knowing or believing that John Houston Sinnamon … would be a witness in any trial at the High Court of Justiciary against you in connection therewith, on 8 October 1999 at Glasgow Green at the Weir at The Albert Bridge on the River Clyde, Glasgow, you did assault him and push him into the River Clyde whereby said John Houston Sinnamon drowned and you did murder him.'
On charge 1 the appellant lodged a special defence of alibi and a special defence of incrimination in which he incriminated Alexander Smith. On charge 3 he lodged a special defence of incrimination in which he incriminated Bernadette Heron. On both charges he lodged a special defence of insanity at the...
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