King v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 09 March 1999 |
| Neutral Citation | 1999 SCCR 330 |
| Date | 09 March 1999 |
| Docket Number | No 35 |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lord Sutherland and Lord Coulsfield
Procedure—Solemn procedure—Appeal—Grounds of appeal—Unreasonable jury verdict—Test for determining miscarriage of justice—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 106(3)(b)
Section 106(3) of the Criminal Procedure (Scotland) Act 1995 enacts,inter alia, that a person may bring under review of the High Court any alleged miscarriage of justice which may include such miscarriage based on "(b) the jury's having returned a verdict which no reasonable jury, properly directed, could have returned.”
The pannel was tried for murder. There was a substantial body of Crown evidence from neighbours of the deceased to indicate that at about 2 am on Saturday, 2 March 1996 the pannel had been involved in a violent struggle with the deceased. The time of death could not be precisely determined but the Crown pathologist put it at some time before 4 am on Sunday, 3 March 1996. None of the deceased's neighbours had seen or heard anything to suggest that the deceased had been assaulted on a second occasion during the weekend. In view of the nature of the deceased's injuries, death was stated to have occurred within a short period of minutes and not hours after the assault. The Crown also led four witnesses, three of whom knew the deceased by sight. Each witness's evidence was to the effect that the deceased had been seen at various times after 2.30 am on Saturday. The Advocate-depute did not challenge these witnesses. The accused was convicted and appealed on the ground set out in sec 106(3)(b).
Held (1) that the test in sec 106(3)(b) was objective: the Appeal Court had to be able to say that no reasonable jurycould have been satisfied beyond reasonable doubt that the pannel was guilty; (2) that in applying that test the Appeal Court had to pay full regard to the consideration that the jury had had the advantage, which was denied to the Appeal Court, of seeing and hearing the witnesses give their evidence; and (3) that the reasonable jury would have been entitled to accept the very powerful evidence pointing to guilt and to reject the evidence of the other four witnesses precisely because their evidence could not be correct if, as the Crown evidence which they were accepting showed, the pannel killed the deceased early on Saturday morning; and appeal refused.
Observed that the mere fact that the Advocate-depute did not directly challenge the four witnesses did not give them a certificate of credibility and reliability which the jury must accept: resolving issues of credibility and reliability was pre-eminently the jury's function.
John Ian King was charged at the instance of the Right Honourable the Lord Hardie, QC, Her Majesty's Advocate, on an indictment the libel of which set forth a charge of murder.
The pannel pled not guilty and the cause came to trial before a judge and jury in the High Court at Edinburgh.
After trial, the pannel was convicted.
The pannel thereafter appealed to the High Court of Justiciary.
Cases referred to:
Chidiac v The QueenUNK (1990) 171 CLR 432
Corbett v The Queen [1975] 2 SCR 275
M v The QueenUNK (1994) 181 CLR 487
R v FrancoisUNK [1994] 2 SCR 827
R v YebesUNK [1987] 2 SCR 168
Webb v HM Advocate 1927 JC 93
Textbooks, etc referred to:
Renton and Brown, Criminal Procedure (6th edn), para 29–03 Sutherland Committee Report on Appeals Criteria and Alleged Miscarriages of Justice (Cmnd 3245, 1996), paras 2.25, 2.67, 2.68 and 2.70.
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Rodger), Lord Sutherland and Lord Coulsfield for a hearing.
At advising, on 9 March 1 999, the opinion of the court was delivered by the Lord Justice-General (Rodger):
Opinion of the Court—The appellant is John Ian King who was convicted of murder by a majority verdict in the High Court at Edinburgh in March 1997. At the time of the trial he was aged 30. He appealed against his conviction and, partly because the trial judge did not prepare his original report for this court until November of that year, the appeal process was prolonged. During that prolonged period of gestation, the appellant's representatives lodged three sets of grounds of appeal, raising various matters, but in addressing the court on behalf of the appellant, senior counsel limited himself to the latest set of grounds. In fact it soon became apparent that, with the exception of one subsidiary matter, the appeal could best be focused by reference to the contention that, even supposing there was a technical sufficiency of evidence, there was a miscarriage of justice on the basis that the jury returned a verdict which no reasonable jury, properly directed, could have returned. Although counsel made a little play with the suggestion that there was not sufficient evidence to convict of murder in this case, the Crown evidence which we mention later in the opinion shows beyond all question that there was an abundance of evidence upon which a jury could convict the appellant, if they accepted it. The key feature of this case is not the lack of Crown evidence pointing to the appellant's guilt, but rather the existence of other evidence, inconsistent with the evidence pointing to guilt. We do not therefore deal further with the ground of appeal relating to sufficiency of evidence.
Test in sec 106(3)(b) of the Criminal Procedure (Scotland) Act 1995
Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 is in these terms: “By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on—… (b) the jury's having returned a verdict which no reasonable jury, properly directed, could have returned.” It is common knowledge that the provision was introduced by sec 17 of the Crime and Punishment (Scotland) Act 1997. That section came into force during the running of the appeal and so made this ground available to the appellant, although it had not been open to him when his appeal was lodged shortly after his trial. It is also common knowledge that sec 106(3)(b) of the 1995 Act was inserted in the light of the Report by the Committee on Appeals Criteria and Alleged Miscarriages of Justice chaired by Sir Stewart Sutherland (June 1996). There was, in fact, a precedent for a provision of this kind in Scots law. Section 2(1) of the Criminal Appeals (Scotland) Act 1926 required the court to allow an appeal if they considered that the verdict of the jury should be set aside “on the ground that it is unreasonable or cannot be supported having regard to the evidence”. The wording was similar to that in sec 4(1) of the Criminal Appeal Act 1907 which applied in England and Wales at that time. Section 2(1) of the Scottish Act was re-enacted as sec 254(1) of the Criminal Procedure (Scotland) Act 1975 and remained on the statute book until the appeal provisions were altered by the Criminal Justice (Scotland) Act 1980 under which the miscarriage of justice test was inserted in sec 228 and the reference to an unreasonable verdict in sec 254(1) was removed. The effect of the change in the wording was to introduce an element of uncertainty as to the court's power to find a miscarriage of justice in cases previously covered by the legislation. The Sutherland Committee considered the situation and concluded that: “There could well be exceptional cases where, even allowing for the advantages enjoyed by the jury, it would be difficult to understand how any reasonable jury could not have entertained at least a reasonable doubt” (para 2.67). They therefore recommended that the power to find that a miscarriage of justice had occurred in such circumstances should be specifically stated in the form which we now find in sec 106(3)(b) (paras 2.68 and 2.70).
At the hearing we were not referred to the old provision or to any cases interpreting it. The principal authority on its interpretation wasWebb v HM Advocate. In that case the judges appear to have assimilated review of jury verdicts in criminal cases to the established jurisdiction to review the verdicts of juries in civil cases. Each of the judges formulated the test to be applied in his own words. We refer to the versions given by two of them. Lord Justice-Clerk Alness said (at p 95) that the court would set the verdict aside if “the jury have not duly performed their functions, and have given a verdict which no reasonable jury, properly instructed, would have given”. Lord Ormidale asked (at p 97) whether the verdict before the court was “so flagrantly wrong that no reasonable jury discharging their duty honestly could have returned it”. It is therefore not perhaps difficult to see why the Sutherland Committee acknowledged that the test which they were proposing would be very similar to that enshrined in the 1926 Act (Report, para 2.71).
All the judges in Webb emphasise that the court should pay due regard to the function of the jury in our system of criminal justice. In that system decisions on guilt or innocence in serious cases are taken—and are intended to be taken—by juries. This court has therefore respected those decisions and has tended to consider that it should not question them where there was sufficient evidence upon which the jury would have been entitled to convict. By adopting the recommendation of the Sutherland Committee and enacting sec 106(3)(b) Parliament has required the court to modify that approach in the circumstances defined in the provision, for it envisages that—as under the legislation of 1926—there can be a miscarriage of justice even though there is, technically, sufficient evidence to convict.
In seeking to formulate the appropriate test we begin with the words of sec 106(3)(b). If we ask in what circumstances there may be the kind of miscarriage of justice which the provision covers, then it is obvious first of all that the jury will...
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