Carswell v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 21 November 2008 |
| Neutral Citation | [2008] HCJAC 70 |
| Date | 21 November 2008 |
| Docket Number | No 7 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Justice-General (Hamilton), Lord Osborne, Lord Wheatley
Justiciary - Solemn procedure - Trial - Jury - Seclusion of jury - Communication with juror outside of jury room - Whether contravention of the statutory provision regarding seclusion of the jury - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 99(2)(b)
Justiciary - Solemn procedure - Evidence - Sufficiency - Supply of drugs - No expert evidence of analysis of substance - Whether character of substance could be provided by lay evidence
Section 99(2)(b) of the Criminal Procedure (Scotland) Act 1995 provides that no juror shall come out of their room other than to receive or seek a direction from the judge or to make a request (i) for an instruction (of a particular kind); or (ii) regarding any matter in the cause.
The appellant was convicted of being concerned in the supply of diamorphine. He appealed against his conviction. Leave to appeal on three grounds was granted. At the appeal hearing the appellant was represented by the same counsel as at his trial who began to address the court. In the course of that address the appellant signalled that he wished to consult with his counsel. The court adjourned to allow him to do so. When the court reconvened, the appellant's counsel announced that the appellant had withdrawn his instructions from counsel only. Counsel sought leave to withdraw which was granted. The court then called upon the appellant to proceed (as he had been advised could happen). The appellant maintained there were other grounds of appeal which he wanted advanced. He sought an adjournment to obtain alternative representation. He stated that for some months he had been unhappy about the grounds of appeal presented by his legal advisers and had advised them accordingly. Nothing had been done to address his concerns.
The court refused to grant an adjournment. The appellant had taken no steps until some distance into the hearing of the appeal to withdraw his instructions from counsel with a view to having alternative representation. The court considered it was not in the interests of justice that an adjournment should be granted.
In addressing the court on ground (2) counsel for the appellant submitted that there had been a clear infringement of sec 99(2)(b) of the Criminal Procedure (Scotland) Act 1995. A juror had left the room for a purpose other than one authorised by that subsection. Section 92(1) was also engaged. Words had passed between the sheriff clerk and the juror, but there was no written record of what had been said. A breach of that subsection fell within the category of cases which necessarily gave rise to a miscarriage of justice. In respect of ground (3) the Crown had at no time laid a foundation in evidence for a witness being qualified to identify as heroin any substance she had seen. At this point the appellant made his interjection, the only additional factor which he relied on thereafter, in relation to ground (2) was a suggestion that the juror might have overheard conversation between the appellant and his mother. He said nothing about grounds (1) and (3).
The Crown argued that whilst an irregularity was accepted in the juror leaving the room, that irregularity had not been in circumstances which led to a miscarriage of justice. Counsel appearing at the trial had not raised any issue about it before the sheriff. As to grounds (1) and (3) there had been a sufficiency of evidence and the verdict was not unreasonable.
Held that: (1) after the jury had been secluded, a juror emerged from the jury room, whose intention it had been to go out of the building for a smoke (para 9); (2) his emergence had been immediately detected by the sheriff clerk who had instructed him to return forthwith to the jury room, which he did (para 9); (3) there had been no reason to suppose that the juror, when out of the jury room communicated with any other person nor that his communication with the sheriff clerk extended beyond his receiving the instruction referred to (para 9); (4) in these circumstances while there had been a breach of sec 99(2)(b) of the Criminal Procedure (Scotland) Act 1995 it had not led to a miscarriage of justice (para 9); (5) the communication with a single juror had been of a purely administrative nature and had not touched upon the issues with which the jury had been concerned (para 9)...
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