McCADDEN v H. M. ADVOCATE
| Jurisdiction | Scotland |
| Judgment Date | 26 July 1985 |
| Date | 26 July 1985 |
| Docket Number | No. 19. |
| Court | High Court of Justiciary |
JC
L.J.-C. Wheatley, Lords Robertson, Brand.
Review—Appeal against conviction on indictment—Power of High Court to remit for inquiry into matters affecting appeal—Alleged malpractice of juror—Test to be applied in deciding whether court should order inquiry into allegation—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 252 (d).
An accused was convicted by a majority verdict of a jury of a contravention of the Misuse of Drugs Act 1971. He appealed against his conviction on certain grounds. At the hearing of the appeal his counsel moved the court to allow an extra ground of appeal to be tabled on the ground that since the trial information had come to light which established that there had been a miscarriage of justice. This information was to the effect that during the course of the trial a member of the jury had made statements in public showing prejudice against the accused and a fixed intention to find him guilty. Counsel suggested that the court should order an inquiry into the matter under a remit to a judge under sec. 252 (d) of the Criminal Procedure (Scotland) Act 1975.
Held (refusing the motion) (1) that an inquiry under sec. 252 (d) would be competent in such a situation.
(2) That before such an inquiry would be ordered the court must however be satisfied that the evidence placed before it to substantiate the allegation of malpractice was prima facie sufficiently substantial, convincing and trustworthy to warrant an inquiry.
(3) That the evidence produced here was not sufficiently convincing to warrant an inquiry; in particular there was no evidence to establish that the juror's statements were translated into effective action in the jury room.
Observations on the safeguards in the existing jury system against an ill-intentioned
juror effecting a miscarriage of justice and on the procedures available where improper conduct by a juror came to light.Observed that there is no statutory provision preventing disclosure of a jury's voting figures and that after a jury had returned a majority verdict of guilty it would be logical for them to be asked how many of them were in favour of guilty.
Patrick McCadden was charged in the High Court at Glasgow on indictment, and convicted by a majority verdict, of a contravention of section 4 (3) (b) of the Misuse of Drugs Act 1971. He appealed against his conviction on various grounds. The appeal was heard on 12th July 1985, when his counsel moved the court to allow a further ground of appeal to be lodged. He argued that information had come to light since the trial to the effect that a member of the jury had made public statements during the trial showing prejudice against the accused and a fixed intention to find him guilty. Further details of the allegations made appear from the opinion of the Lord Justice-Clerk.
At advising on 26th July 1985, the opinion of the court was delivered by the Lord Justice-Clerk.
LORD JUSTICE-CLERK (Wheatley).—The appellant was convicted by a majority verdict of the jury of a contravention of section 4 (1) coupled with section 4 (3) (b) of the Misuse of Drugs Act 1971 and sentenced to 10 years' imprisonment. He has appealed against that conviction and has tabled three grounds of appeal, two of which relate to "the insufficiency of evidence" and the third to an alleged wrongful admission of evidence by the trial judge.
When counsel for the appellant, Mr Jackson, who had not been counsel at the trial, opened the appeal he stated that there was a further ground of appeal which he wished to lodge and argue. This had become necessary, he said, because of information that had come to light after the trial, which established that there had been a miscarriage of justice. This was to the effect that one of the jury had made a statement publicly during the course of the trial, and before the Crown case had closed, showing prejudice against the accused and a fixed intention to find him guilty. When asked to explain why this matter was being raised at this late date, Mr Jackson made a statement to the following effect. The trial started on 5th February 1985 and ended on 15th February 1985. About mid-March certain persons called at the office of the appellant's solicitor and gave certain information to the solicitor about remarks alleged to have been made by a juror during the currency of the trial. The solicitor consulted counsel who had acted at the trial and he advised that statements should be taken from the persons who had provided the information. This was done and precognitions from Joseph Elder, aged 21, and Steven Hall, aged 20, were produced to this court. These two, along with the appellant's brother John McCadden, were the people who had called at the solicitor's office in March. Elder's precognition is in these...
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