David Mackay Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Brodie,Lord Justice Clerk |
| Judgment Date | 07 May 2015 |
| Neutral Citation | [2015] HCJAC 55 |
| Court | High Court of Justiciary |
| Date | 07 May 2015 |
| Published date | 30 June 2015 |
| Docket Number | HCA/2014 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 55
HCA/2014/3952/XC
Lord Justice Clerk
Lady Smith
Lord Brodie
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
DAVID MACKAY
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Act: McCluskey; Faculty Services Ltd (for Bridge Litigation, Glasgow)Alt: Brown QC AD; the Crown Agent
7 May 2015
Introduction
[1] On 21 August 2014, after a trial lasting 4 days at Fort William Sheriff Court, the appellant was convicted of two charges involving wilful fire raising in areas of forestry. The first was on 27 March 2013 at the Carnoch electricity sub-station, Argyll. The second was four days later on 1 April 2013 in Glen Tarbert. On 16 September 2014 he was sentenced to 2 years imprisonment on each charge, to run concurrently.
[2] The appeal raises issues about the sufficiency of evidence. It also concerns the appropriate procedure to adopt when a juror notifies the court that he knows one of the witnesses.
Evidence
[3] The appellant worked for Scottish Water. He was also a part time fire fighter based at Strontian. The loci of the charges are within a few miles of that address. Unknown to the appellant, there was a global positioning system (GPS) installed in his Scottish Water van. In relation to charge 1, this demonstrated that the van had left Strontian at about 1.19pm on the date libelled in charge 1 (27 March 2013). At 1.24, the van was located at a point just a few yards from where the fire at Carnoch was set. The van had remained at the locus for just under a minute before returning to Strontian at about 1.30. A witness identified the appellant driving a Scottish Water van shortly after 12 noon on the same day heading towards Strontian. He had seen the same van parked at the fire station 90 minutes later. The fire fighters had been called out to the fire at 1.39pm.
[4] In relation to charge 2, the watch fireman at Strontian had been called out to 2 fires on 1 April 2013. This was a public holiday which attracted double pay for fire crews, including the appellant. The second of the fires had been at Glen Tarbert and had taken some 5 hours to extinguish. There had been no obvious ignition source. The appellant’s van was tracked from outside Strontian at about 2.05pm on that date to a point only a few yards beyond where the fire was set at about 2.18. It remained there for a few minutes before returning to Strontian at 2.28pm. Another witness identified the appellant driving the van towards the locus at about 2pm.
[5] On 1 April 2013, the owner of the Carnoch estate had been picnicking with his family at a point overlooking Glen Tarbet. His wife had commented on the presence of a white van in a lay by, near what was to become the locus of the fire. She had shouted “fire” as the van had pulled off. The owner had used his binoculars and had seen the fire where the van had been. He had telephoned his tenant, namely JF, aged 71. He told him of the fire and that the occupant of the van had started it. He had then gone to the fire station, where he met the appellant and told him that he had seen someone setting the fire. The appellant responded by saying that one of the fire fighters had seen the fire and tried to get it under control. This had surprised the owner, as he had not seen anything of this.
[6] JF, who had also seen the first fire four days earlier, had gone to the locus of the second fire and spoken to 2 fire fighters, including the appellant. He mentioned the white van to the appellant. The appellant had said that another employee from Scottish Water had told him that the glen was on fire when he had met him in Strontian, which was 5 miles away.
[7] At interview on 12 April 2013 the appellant said that he had been alerted to the second fire through his pager. No-one else had used his van on 1 April. He agreed that it had been his van in the lay by at about 2.18. He said that he had not started the fire. He could not recall telling JF that a colleague from Scottish Water had told him about the fire. He had gone to the area for no particular reason other than a drive.
The Juror and the witness
[8] The trial began on the morning of 18 August 2014; the jury having been empanelled by 11.30am. During the lunchtime interval, a juror passed a note to the clerk of court asking if it would be a problem if he knew the witness, JF. The juror’s concern may have been prompted by the sheriff’s standard introductory remarks about drawing such matters to the attention of the clerk. JF had not yet given evidence, but the fact that he was involved in the case had been mentioned by one of the witnesses that morning. The clerk spoke to the juror, who told him that the witness had previously worked for his father. He had known him for years. The juror said that he did not think that this connection would affect his consideration of the case. The clerk made this information known to parties.
[9] The issue was discussed by the parties and the sheriff in chambers immediately after lunch. Whether that was at the instance of the clerk or one of the parties is uncertain. The clerk was present in chambers. The sheriff reports that he did not initiate this procedure. The sheriff has a limited recollection of what transpired. His report proceeds upon an assumption, presumably erroneous, that these events occurred on the afternoon of the second day of the trial (see infra).
[10] Exactly what was said in chambers is unclear. According to an affidavit from the appellant’s agent, she stated that “the defence would wish the removal of any bias”. The procurator fiscal depute and the sheriff had expressed a desire to continue the trial with all 15 jurors. The agent maintains that the sheriff instructed the clerk to tell the juror that, should he later feel that he was feeling compromised because of the relationship, the juror should re-raise the matter. The trial continued without objection.
[11] On the following day, the trial re-commenced in the afternoon. The appellant’s agent had, in the interim, decided that she should raise the same matter as had been discussed in chambers “in open court”. She did this, albeit fleetingly. The transcription of the proceedings, which has been obtained, is that all that the agent said was:
“… in relation to a juror who has made it known to the court he is known to one of the Crown witnesses. I simply wish to have it placed on record that that is a concern to the defence. It’s already been discussed with Your Lordship. I’d simply…”.
The sheriff had interrupted with “yes” and the matter was not pursued.
[12] The minutes record the agent “expressing concerns” that the juror knew the witness. Enquiries had established that the “witness had worked with the jurors (sic) however, did not feel that this would predujice (sic) any decisions he may be required to make”. It is minuted that the court “informed the juror that at any point he felt uncomfortable with the evidence given and position he was in he should inform the court immediately without speaking to any of the other jurors”. It would appear, therefore, that the minute actually reflects what happened in chambers the previous day in accordance with the agent’s request that the discussion be put on record. The agent expressly accepts in her affidavit that at no point, whether in chambers or in open court, did she move the court to excuse the juror and to proceed with the remaining fourteen (cf 1995 Act, s. 90).
[13] JF’s testimony was heard later that afternoon. It lasted just 12 minutes. He was asked 5 questions of a peripheral nature in cross-examination. His credibility was not challenged. There was no reference to his evidence by either party in their speeches to the jury.
Grounds of Appeal and submissions
[14] The first ground of appeal narrated that JF was a significant witness because he had spoken to the “unusual and suspicious conversation between himself and the appellant. Therefore his credibility and reliability was an issue”. The discussion in chambers had contravened section 92(1) of the Criminal Procedure (Scotland) Act 1995, which prohibits any part of a trial taking place outwith the presence of the accused. This had been a fundamental irregularity contrary to a peremptory statutory provision. A miscarriage of justice had thereby occurred. There was no need to show actual prejudice (Drummond v HM Advocate 2002 SCCR 108, Watson v Griffiths 2004 SCCR 723). The sheriff had erred in leaving it to the juror to hear the evidence and then to decide whether he felt himself biased. Any directions to the juror ought to have been given to the juror by the sheriff in open court and not by the clerk or bar officer (McLeod v HM Advocate 2006 SCCR 676; McColl v HM Advocate 1989 SCCR 229).
[15] The second ground was that there had been insufficient evidence to prove that the fires had been set deliberately. There had been no forensic evidence. The...
To continue reading
Request your trial