Mark Urquhart V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Eassie,Lord Penrose |
| Neutral Citation | [2009] HCJAC 18 |
| Court | High Court of Justiciary |
| Date | 18 February 2009 |
| Docket Number | XC99/05 |
| Published date | 18 February 2009 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Eassie Lord Penrose | [2009] HCJAC 18 Appeal No: XC99/05 OPINION OF THE COURT delivered by LORD EASSIE in APPEAL by MARK MURDO URQUHART Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Kerrigan, Q.C., Niven-Smith; Morison Haggerty, Dunfermline
Respondent: Duguid, A.D., Q.C.; Crown Agent
18 February 2009
Introduction
[1] On 14 January 2005 at a sitting of the High Court of Justiciary in Edinburgh the appellant was found guilty by the jury of a charge of rape. The terms of the libel of which he was convicted were:
"on 24 January 2004 at a lane between Central Park car park and Chapel Street, both Cowdenbeath, Fife, you did assault [JK], c/o Fife Constabulary, Cowdenbeath, and did handle her private parts, attempt to kiss her on the mouth, seize her arms and force her to the ground, restrain her there, place your hand over her mouth, place her legs over your shoulders, lower her clothing, insert your private member into her private parts and you did rape her."
[2] The appellant sought, and on 9 May 2005 was granted, leave to appeal against that conviction on the ground that in his charge to the jury the trial judge had misdirected the jury in a manner constituting a miscarriage of justice ("the original ground of appeal"). A hearing on the original ground of appeal was thereafter fixed for 17 February 2006 but on that date counsel withdrew from acting for the reason that the appellant had withdrawn his instructions to his solicitors. The appellant then sought a continuation of the appeal (which was granted) in order to instruct other solicitors with a view to lodging supplementary grounds of appeal based on alleged failings of those representing him at the trial. Following the commonly used professional shorthand, we shall refer to those supplementary grounds as "the Anderson grounds".
[3] Eventually, more than a year later, on 11 April 2007, the proposed Anderson grounds were lodged; responses were then sought from those acting for the appellant at the time of the trial; and the Anderson grounds were in due course considered by the judge who had considered the original ground of appeal. On 4 June 2007 he granted leave as respects three paragraphs of the Anderson grounds. In an application under section 107(8) of the Criminal Procedure (Scotland) Act 1995 the court, on 11 July 2007, allowed a fourth paragraph to be added. Thereafter a number of procedural hearings took place in which those acting for the appellant informed the court that the appeal was not yet ready to proceed for a variety of reasons. It is perhaps not profitable to record or discuss the reasons wherefor those acting for the appellant in place of those originally instructed in the appeal considered the appeal not ready to proceed but inevitably further delay has resulted from them.
The original ground of appeal
[4] The original ground of appeal is couched in these terms:
"The presiding judge misdirected the jury in his charge to the jury regarding the standard of proof required for conviction. At page 11 of the said charge to the jury (lines 17 and 18) he directs the jury as follows:
'However, if you thought that the accused is guilty but at the same time you had a reasonable doubt about his guilt our law says that you must give him the benefit of that doubt and acquit him. If you have no such doubt then you must convict. So it depends upon what is a reasonable doubt is [sic]. It is quite difficult to explain but a reasonable doubt is a doubt based on good reason. It is the kind of doubt that would make you pause or hesitate and reconsider an important decision in your own lives.' [Quotation not indented in the original.]
At page 14 of the charge to the jury (lines 7-11) the presiding judge directs the jury 'if there is evidence from a single source that makes you think that the accused is not guilty or gives you a reasonable doubt about his guilt, that evidence would allow you to acquit and that is what you would do.'
At page 14 and 15 (starting at line 24 of page 14) the presiding judge directs the jury '... but a reasonable doubt can be established by a single source of evidence.'
In the directions at page 11 referred to above the jury are directed that if they thought the accused is guilty but at the same time hold a reasonable doubt then the law says they must acquit. Thereafter the presiding judge defines reasonable doubt as a doubt which makes you hesitate and reconsider a decision. Taken together the jury were asked in these directions to decide if the appellant was guilty and then if so to consider whether they hold a doubt such as would cause them to reconsider that conclusion. This is a material misdirection because the jury should not have drawn a conclusion of guilt before they were satisfied beyond a reasonable doubt of the same. Moreover the definition of reasonable doubt is normally a doubt which results in hesitation not reconsideration.
In the directions at pages 14 and 15 above there was a misdirection because no evidence is required in order for a jury to have a reasonable doubt the accused being presumed to be innocent.
It is submitted that the said misdirections have resulted in a miscarriage of justice."
In his submissions to us, counsel for the appellant rehearsed what was said in this ground but added little by way of material amplification of its terms.
[5] We take first the criticism to be distilled from the somewhat unstructured terms of this ground of appeal that the trial judge erred in his explanation to the jury of what was meant by reasonable doubt, namely by adding after the reference to a doubt causing hesitation, a reference to a re-consideration of an important decision in the lives of the jury members. The trial judge goes on in the succeeding passage of his charge to exemplify further what he meant by this in practical terms.
[6] However, in so far as the ground of appeal complains of the adding of the words "and reconsider", the short answer to that complaint is to be found in the decision of this court in Adams v HM Advocate 2005 S.C.C.R. 479, to which we were referred by the Advocate depute. In that case the presiding judge charged the jury that a reasonable doubt was "the sort of doubt which, if it affected a matter of importance in your own life, would cause you to pause and reconsider." The appeal was directed to the propriety of the inclusion of the words "and reconsider". And the appeal was refused. In paragraph [9] of his Opinion in that case Lord Macfadyen, with whom the other members of the court agreed, said:
"It is possible, in my opinion, to dispose of this ground of appeal very briefly. Accepting, as the appellant did, that it is legitimate to direct a jury that reasonable doubt is the sort of doubt that would cause a juror, in a matter of importance in his or her own life, to pause or hesitate (see, for example, MacDonald v HM Advocate, Lord Justice Clerk Ross at p 671B), the only issue raised on the appellant's behalf is whether the addition of the words 'and reconsider' altered the standard in a sense adverse to the appellant. This case is, in my opinion, distinguishable from cases such as MacDonald, Buchanan v HM Advocate and A v HM Advocate, in which the additional words used implied that a reasonable doubt was one which would dissuade the juror from a particular course of action. Considering the language used by the trial judge in the present case, I can see no sensible purpose that would be served by a pause or hesitation other than that it should afford the opportunity for further thought; for 'reconsideration' of, 'reflection' upon or 'review' of the situation, I am therefore of opinion that to articulate that point by the introduction of the words 'and reconsider' into the sentence in question made no material difference to the sense of the direction. Those words did not, in my opinion, set an unduly high standard for reasonable doubt and thus lower the standard of proof incumbent on the Crown. In my view that is clearly so when the words which Mr Shead sought to criticise are read, as they ought to be, as part of the whole passage in the charge dealing with reasonable doubt. They therefore did not constitute a misdirection."
[7] In so far as the other criticisms suggested in this original ground of appeal are concerned, it is of course important to see the passages of which complaint is made in their proper context within the trial judge's charge as a whole. The passage at page 11, lines 7 to 18, quoted in the opening part of the original ground of appeal, is preceded by the following passage, commencing at page 10, line 8:
"The third heading is about the standard or quality of the evidence that is required before there can be a conviction and the rule is that the standard of proof required before there can be a conviction in Scotland is that the jury must be satisfied beyond reasonable doubt that the accused is guilty. Now, what does that mean? Well, it doesn't mean that you can find the accused guilty if you think well, he is guilty on balance rather than not guilty. It is not a weighing up of the evidence and seeing which way the scales fall. But equally of course you can't expect things to be proved as a matter of absolute certainty. Human beings aren't capable of coming to court in these sort of situations and proving things to that sort of level. So how it is usually explained is like this: if you are satisfied on the basis of the evidence you have and the directions that I have given to you that the accused is innocent of this charge then it is quite simple, you just acquit him. If you're satisfied on the same basis that the accused is guilty beyond reasonable doubt then you would convict him. However, if you thought that the accused is guilty ... [here the charge continues into the passage quoted at the outset of the original ground of appeal and...
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