Binks v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 17 August 1984 |
| Neutral Citation | 1984 SCCR 335 |
| Date | 17 August 1984 |
| Docket Number | No. 16. |
| Court | High Court of Justiciary |
JC
L.J.-C. Wheatley, Lords Hunter, Robertson.
Crime—Previous convictions—Reference to previous convictions by witness for Crown due to oversight of prosecutor—Whether diet should have been deserted pro loco et tempore—Whether miscarriage of justice—Criminal Procedure (Scotland) Act 1975 (cap. 21), secs. 160 (1)1, and 228 (2)2.
Procedure—Authority to bring fresh prosecution—Whether appropriate where conviction quashed following reference to previous conviction—Criminal Procedure (Scotland) Act 1975 (cap. 21), secs. 254 (1) (c)3 and 2554.
An accused appeared with two other men appeared before the High Court on an indictment which charged them with being concerned in the importing of cannabis at Grangemouth, in contravention of sec. 170 (2) (b) of the Customs and Excise Management Act 1979, and of there being in possession of cannabis with intention to supply it, in contravention of sec. 5 (3) of the Misuse of Drugs Act 1971. The accused's defence was that he had been unaware that the sacks contained a controlled drug.
In the course of the trial a Customs Officer gave evidence for the Crown of a statement made to him by the accused and written in his notebook. The statement included the words: "I don't want to go back to jail again." The copy of the notebook supplied to the accused's counsel had this passage excised and counsel was unable to prevent the reference to the previous conviction. She submitted that this reference constituted a breach of sec. 160 (1) of the Criminal Procedure (Scotland) Act 1975 and that the trial judge should desert the dietpro loco et tempore. The Crown did not concede that a breach of that section had occurred. The trial judge refused the motion but at that stage directed the jury to disregard that evidence. He also gave a direction in his charge to ignore any reference to the past history of any of the accused. All the accused were convicted unanimously.
The accused appealed against conviction and at the appeal it was accepted that sec. 160 (1) had been breached because of negligence by the Crown.Held (1) that the issue was whether the admitted breach of sec. 160 (1) caused a miscarriage of justice in terms of sec. 228 and the importance of such a breach depended on the circumstances of each case.
(2) That although the credibility of the appellant was crucial in this case, the evidence against him was so strong that the inadmissible evidence had not led to a verdict which was different from one which would have been returned in its absence.
Authorities considered.
Observed by Lord Hunter (1) that in some cases the desertionpro loco et tempore of the diet might be appropriate and (2) that had it been necessary to quash the conviction authority should have been granted to bring a new prosecution in terms of secs. 254 (1) (c) and 255 of the 1975 Act.
William Geoffrey Binks was charged with two others on an indictment which set forth that on 28th June 1983 at Grange Dock North, Grangemouth, District of Falkirk (1) they were in relation to goods, namely cannabis, being a controlled drug of class "B" specified in Part II of Schedule of the Misuse of Drugs Act 1971, knowingly concerned in the fraudulent evasion of a prohibition on importation of said controlled drug for the time being in force under the Misuse of Drugs Act 1971, section 3; contrary to the Customs and Excise Management Act 1979, section 170 (2) (6), and (2) they did unlawfully have in their possession a controlled drug, namely cannabis, being a class "B" drug specified in Part II of Schedule 2 to the aftermentioned Act with intent to supply it to another, in contravention of section 4 (1) of the aftermentioned Act; contrary to the Misuse of Drugs Act 1971, section 5 (3).
At the High Court at Edinburgh on 21st October 1983 the appellant was found guilty as libelled by the jury. The appellant appealed against conviction on the following ground as stated in his note of appeal: "Revelation of previous conviction by the Crown constituted a breach of section 160 (1) of the Criminal Procedure (Scotland) Act 1975 and made a fair trial of the panel impossible".
The appeal was first heard on 23rd and 24th February 1984 before the High Court of Justiciary when the Court called for the notes of evidence led at the trial to be extended. The appeal was again heard on 13th July 1984.
The facts and arguments of the parties are dealt with fully in the opinion of the Lord Justice-Clerk.
At advising on 17th August 1984,—
LORD JUSTICE-CLERK (Wheatley).—The issue in this appeal is a limited one. The Crown accept that there was a breach of section 160 (1) of the Criminal Procedure (Scotland) Act 1975, and the issue is whether it caused a miscarriage of justice under section 228 of the Act.
The circumstances giving rise to the appeal are these. The appellant was charged (1) with a contravention of section 170 (2) (b) of the Customs and Excise Management Act 1979 in that on 28th June 1983 at the Grange Dock, Grangemouth, he was knowingly concerned in the fraudulent evasion of a prohibition of importation of a consignment of cannabis; and (2) that on the same date and at the same place he was in possession of cannabis with intent to supply it to another, contrary to section 5 (3) of the Misuse of Drugs Act 1971. He was conjoined in the indictment with two co-accused, Kershaw and Barry, in these charges. In the event all three were unanimously convicted of both charges and each was sentenced to four years imprisonment on charge (1) and six years imprisonment on charge (2), the said periods to run concurrently. In the course of the trial a Customs and Excise Officer, named Neish, was giving evidence and was asked by the advocate-depute to read from his notebook a statement therein incorporated which...
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Nat Gordon Fraser V. Her Majesty's Advocate
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