Cunningham v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 01 February 1984 |
| Neutral Citation | 1984 SCCR 40 |
| Date | 01 February 1984 |
| Docket Number | No. 5. |
| Court | High Court of Justiciary |
JC
L.J.-C Wheatley, Lords Hunter, Robertson.
Procedure—Communications between enclosed jury and judge by means of clerk of court—Jury seeking clarification of directions—Trial judge in answering jury raising additional matters—Whether violation of requirement for trial to be in presence of accused—Whether clerk of court "present with" or "visiting jury"—Whether trial judge giving "further directions"—Criminal Procedure (Scotland) Act 1975 (cap. 21), secs. 145 (1)1,1532, 228 (2)§.
Review—Power of High Court to quash conviction in respect of a miscarriage of justice and to grant authority to bring a new prosecution—Conviction quashed on procedural irregularity—Whether grant of authority to bring a new prosecution appropriate—Criminal Procedure (Scotland) Act 1975 (cap. 21), secs. 254(l) (c)§ and 255**.
In the trial of an accused on three charges the jury, having retired to consider their verdicts, sought the guidance of the judge through the clerk on the question of a correct verdict on the second charge. This charge was one of assault by stabbing to the severe injury of the complainer and of attempted murder. The jury stated that they were equally divided, one juror having been excused duty after being empanelled. The judge had given a clear direction in his charge that in order for there to be a conviction there had to be a majority of at least eight. He reaffirmed that this was the position through the clerk of court. Further communications took place between the judge and the enclosed jury via the clerk of court. but there was no record of these events and it was not clear whether such communings took place on two or three occasions, or in what order. In the
345course of these the jury raised the question with the judge through the clerk of court whether they could change their minds on the matter on which they had been equally divided. The judge informed them through the clerk that as they had not concluded their deliberations they were entitled to do so. It occurred to the judge that the position might be complicated by the fact that the second charge had three elements and through the clerk he drew the attention of the jury to the possibility of convicting the accused on certain parts of the second charge and acquitting on others. He further enquired whether the jury had considered their verdict on the third charge, to which they replied they had not. During all these communings the court was not reconvened. The appellant was convicted on the second and third charges and appealed on the ground that the communings between the judge and jury were in breach both of the principle that all criminal trials by jury should take place in open court and of the provisions of sec. 153 of the Criminal Procedure (Scotland) Act 1975.Held(1) that the clerk of court could not be described in the above circumstances as having been "present with" the jury or as having "visited" them other than as authorised by the trial judge in giving a direction on his behalf, but that the presiding judge could be described as having given "further directions", and there had not therefore been a contravention of sec. 153 which would have resulted in an acquittal under sec. 153 (4).
(2) That sec. 145 of the Act, reflecting the position at common law, required that further directions to a jury be given in open court and be properly recorded; that there had therefore been a contravention of sec. 145 (1) and a miscarriage of justice under sec. 228 (2).
(3) That, as the miscarriage of justice was caused only by a procedural irregularity, it was proper in the circumstances that leave be granted to bring a new prosecution; and convictions on the second and third charges set aside and leave granted to bring a new prosecution in terms of secs. 254 (1) (c) and 255 if so desired.
Sayers & Ors. v. H.M. AdvocateSC 1982 J.C. 17;Hamilton v. H.M. AdvocateSC1980 J.C. 66;Brownlie v. H.M. Advocate, 20th December 1966, Unrep;M'Beth v. H.M. Advocate, 4th March 1976, Unrep;Mackenzie v. H.M. AdvocateUNK 1983 S.L.T. 220discussed.
Observed per the Lord Justice-Clerk that preliminary communings with a jury with a view to obtaining further directions did not require to be conducted in open court.
Observed per Lord Hunter that it was not always necessary that administrative matters should be dealt with in open court.
Mark Anthony Cunningham was charged before the High Court at Edinburgh with breach of the peace, assault by stabbing to severe injury and attempted murder, and breach of section 41 (1) (a) of the Police Scotland Act 1967. After trial the Crown withdrew charge 1 and was found guilty by a majority verdict on charge 2 under deletion of the attempt to murder, and guilty under charge 3 as amended. The appellant appealed againt conviction.
The case was heard before the High Court of Justiciary on 16th December 1983.
The facts of the case were set out in the opinion of the Lord Justice-Clerk. The arguments of the parties appear fully in the opinions delivered.
At advising on 1st February 1983,—
LORD JUSTICE-CLERK (Wheatley).—[His Lordship set out the terms of the indictment and of the appellant's convictions and continued.] Basically the complaint is this. After the jury retired to the jury room to consider their verdict and had deliberated for some time, they communicated with the judge through the clerk of court on a matter on which they wished further guidance. This matter was the correct verdict on the second charge (which as previously noted was one of assault by stabbing with a knife to severe injury and attempted murder), when they were divided 7-7, one juror having been excused duty after being empanelled. The trial judge had given a clear and explicit direction on this point in his charge to the jury, from which the jury ought to have appreciated that such a position would result in an acquittal on the matter on which they were divided. This was re-affirmed by the judge to the jury through the agency of the clerk of court. At a subsequent stage the jury raised a further question with the judge through the medium of the clerk of court, namely whether they could change their minds on the matter on which they had been equally divided. They were informed by the judge through the clerk of court that as they had not concluded their deliberations they were entitled to do so. There were other matters drawn to the attention of the jury by the judge via the clerk of court. One was to ascertain what was meant by their reference to the second charge in relation to the equal division of votes, since there were three aspects of that charge on any one or more of which a verdict could be returned, namely, simple assault, assault to severe injury, and attempted murder. Another was to enquire whether they had considered their verdict on the third charge. I shall deal in more detail with these matters later, and at this stage I simply note that there seems to me to be a difference of view or recollection whether the communings with the jury took place on two or three occasions. What is clear, however, is that all these communings between the judge and the jury took place between the jury room and the judge's chambers through the medium of the clerk of court, and that the court was never re-convened for these purposes. There is accordingly no record of these events, not even in the minutes of proceedings.
It is a matter of agreement that when the request for further guidance was first made to the judge by the jury, the judge convened both the advocate-depute and counsel for the appellant to his chambers and informed them of the jury's request. From that point onwards counsel were kept fully appraised of the communications which passed between the judge and the jury, all being present when the respective questions and answers were given to or reported by the clerk of court as a result of his liaison with the jury. A problem arises from an apparent difference in recollection between counsel for the appellant and the judge, not so much in relation to the communications which took place as to when and the order in which they took place. The learned Dean of Faculty explained that the senior counsel who led for the defence at the trial had given him his account of the course of events, which seem to be reflected in the extensive grounds of appeal which have been lodged. The Dean explain to the Court that the counsel, Mr R. E. Henderson, Q.C., had taken the view that since his recollection of events was the basis of the grounds of appeal it was undesirable that he should argue the appeal. The Dean approved of that view, and, if I may say so, I consider that Mr Henderson acted in a responsible and proper manner. That is underlined by the fact that the Dean explained that Mr Henderson very fairly accepted that his factual narrative of events was open to contradiction. The trial judge has given to the Court in his report his recollection of the events, and as I have already indicated the contradiction relates to the order of events rather than to the content of them. The learned advocate-depute who appeared for the Crown in the appeal informed the Court that the advocate-depute who conducted the trial, but who has since been appointed to the shrieval bench, had no positive recollection at this stage to enable him to express a view on the contradictions, but was prepared to say that he was not in a position to contradict what appears in the grounds of appeal. It is accepted all round that the most honest endeavours to provide an exact account of what occurred are liable to conflict, particularly when there is no record of those events against which the recollections can be checked. This, understandably, was a point fully stressed by the Dean when submitting that this whole procedure, apart altogether from being incompetent and illegal, was faulty and deficient when compared to the procedure, which he argued was the...
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