McColl v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 10 March 1989 |
| Neutral Citation | 1989 SCCR 299 |
| Date | 10 March 1989 |
| Docket Number | No. 14. |
| Court | High Court of Justiciary |
JC
L. J.-C. Ross, Lords Dunpark, Coulsfield.
Procedure—Solemn procedure—Trial—Jury—Seclusion of jury—Communications with jury—Jury seeking clarification of direction of trial judge—Clerk of court responding to request of jury for assistance by visiting them injury room and reminding jury of judge's directions regarding majority verdict—Clerk of court acting with implied or express authority of judge—Whether contravention of the statutory provision regarding seclusion of jury—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 153.1
Procedure—Solemn procedure—Trial—Jury—Proceedings outwith presence of accused—Jury seeking clarification of directions of trial judge as regards majority verdict—Clerk of court communicating with jury in reminding them of judge's directions regarding that verdict—Whether contravention of statutory provision as regards proceedings outwith presence of accused.—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 145 (1).1
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Sec. 145 (1) of the Criminal Procedure (Scotland) Act 1975 enactsinter alia: "Without prejudice to sec. 174 of this Act, no part of a trial shall take place outwith the presence of the accused." Section 153 (2) of that Act enacts that the clerk of the court shall enclose the jury in a room by themselves when they retire, and, save for exceptions which do not apply in the instant case, neither he nor any other person shall be present with them thereafter. Section 153 (3) of the Act enacts, inter alia, that: "until the jury intimates that they are ready to return their verdict—(a) no person shall visit the jury and no person save the judge—(i) in giving a direction … shall communicate with them: provided that the judge may, for the purpose of this subsection, authorise a person to act on his behalf; …" Section 153 (4) enacts: "If any prosecutor or other person contravenes the provisions of this section, the accused shall be acquitted of the crime of which he is charged."
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The appellant was indicted on a charge of murder by driving a motor car at the victim, or alternatively of causing the victim's death by reckless driving. By a majority verdict, the jury convicted the appellant of culpable homicide but at some stage before they returned this verdict the clerk of court had responded to a request from the jury for assistance by visiting them in the jury room. The clerk there found that the jury were having difficulty in understanding the directions given them by the trial judge as to a majority verdict of guilty. By the time of the appeal no one concerned had a clear recollection of what had happened, but the court accepted that at some stage the jury had rung for assistance, that the clerk had ascertained that their problem related to a failure to understand what they had been directed regarding a majority verdict of guilty, and that they had probably indicated that they were divided seven to seven with one abstention. The clerk had then reminded them of the judge's direction requiring eight of their number to be in favour of the guilty verdict. The exact nature of the jury's enquiry and the precise words used by them and by the clerk of court could not be established, but at some stage the clerk had advised the judge of the jury's problem, although it was unclear whether this was before or after the advice had been given or whether or not the advice had been given on the judge's authority. The trial judge did not reconvene the court
for the purpose of giving further directions. The appellant thereafter appealed to the High Court of Justiciary by way of note of appeal against conviction. At the appeal hearing the Crown accepted that there had been a breach of sec. 145 but contended that it had been academic and not material and did not amount to a miscarriage of justice. However, the Crown further contended that, if there had been an undue breach, nonetheless the court should authorise a fresh prosecution which it could do in terms of sec. 254 (1) (c) of the 1975 Act. -
Held (1) that there had been insufficient basis for concluding that there had been a contravention of sec. 153, but there had been a clear contravention of sec. 145 (1) which had resulted in a miscarriage of justice; and (2) that given the lapse of time since the event, and the fact that a critical trial witness had been a 10-year-old boy who had been corroborating in part the evidence of three young girls, and the probability that the jury were equally divided at a late stage in their deliberations, it was not appropriate to authorise a fresh prosecution; and appeal allowed.
Neil Mccoll was charged on indictment at the instance of the Rt. Hon. the Lord Cameron of Lochbroom, Q.C., Her Majesty's Advocate, which set forth that: "(1) on 29th August 1987 on the road known as Hecla Square, Glasgow, you did assault Donald Cowden, 61 Birdie Way, Hertford, Hertfordshire, James McIlwraith Smith, 59 Killoch Drive, Glasgow, Philip Lowe, 32 Bellside Avenue, Drumchapel, Glasgow, William McDonald, 12 Halgreen Avenue, Glasgow, Thomas Wood, 48 Summerhill Road, Glasgow and Alastair Wilson, 7 Ryedale Place, Glasgow and drive a motor vehicle, namely a motor car registration mark OCP 802T from said road on to a pavement on which they were standing and at them, whereby the lives of said Donald Cowden, James McIlwraith Smith, Philip Lowe, William McDonald and Thomas Wood were endangered by you did cause said motor car to strike said Alastair Wilson, whereby he was fatally injured and you did murder him; Or Alternatively date and place above libelled you did cause the death of another person, namely said Alastair Wilson by driving said motor vehicle recklessly in the manner and with the consequences above libelled: contrary to the Road Traffic Act 1972, sec. 1 as substituted by the Criminal Law Act 1977, sec. 50 (1); (2) date and place above libelled you being the driver of said motor vehicle and an accident having occurred owing to the presence of said motor vehicle on said road, whereby personal injury was caused to said Alastair Wilson, you did fail to stop: contrary to the Road Traffic Act 1972 sec. 25 (1) and (4); (3) date and place above libelled you being the driver of said motor vehicle and an accident having occurred owing to the presence of said motor vehicle on said road whereby personal injury was caused to said Alastair Wilson and you not having given your name and address to any person having reasonable grounds for requiring same, you did fail to report said accident at a police station or to a constable as soon as reasonably practicable and in any case within twenty-four hours of the occurrence thereof: contrary to the Road Traffic Act 1972, sec. 25 (2) and (4); (4) date above libelled in the house at 79 Inchfad Drive, Glasgow, you being the person keeping a vehicle, namely said motor car, the driver of which was alleged to be guilty of offences to which sec. 168 of the Road Traffic Act 1972 applied, namely the offences above libelled in the alternative at charge (1) and at charges (2) and (3), you did fail to comply with the requirement of sec. 168 (2) (a)of said Act, in respect that on being required by John Milligan, sergeant, Strathclyde Police on behalf of the Chief Officer of Police for Strathclyde to give information as to the identity of the driver of said vehicle at the time of said offences, you did fail to do so: contrary to the Road Traffic Act 1972, sec. 168 (3); (5) date and place above libelled at charge (1), you were when driving a motor vehicle, namely said motor car, unfit to drive through drink or drugs: contrary to the Road Traffic Act 1972 sec. 5 (1); and (6) date above libelled, at Clydebank Police Office, Montrose Street, Clydebank, you did without reasonable excuse fail to provide specimens of breath for analysis by means of a device of a type approved by the Secretary of State, required in pursuance of sec. 8 of the aftermentioned Act: contrary to the Road Traffic Act 1972, sec. 8 (7) as substituted by the Transport Act 1981, sec. 25 and Sched. 8 thereto, said specimens being required to ascertain the proportion of alcohol in your breath at the time you were driving said motor vehicle on the date and at the place above libelled at charge (1)."
The cause came to trial at the High Court of Justiciary in Glasgow before Lord McDonald and a jury between 8th and 10th December 1987. On 10th December 1987 the jury unanimously found the pannel not guilty of murder, but by a majority found him guilty of culpable homicide on charge (1), and guilty of the other charges on the indictment. The pannel thereafter appealed to the High Court of Justiciary by note of appeal against conviction. The second ground of appeal was in the following terms:—"There was a miscarriage of justice in that the clerk of court communicated with the jury and gave certain advice outwith the presence of any other person in breach of both sections 145 and 153 of the Criminal Procedure (Scotland) Act 1975 (as amended)."
The cause came to appeal before the High Court of Justiciary comprising the Lord Justice-Clerk (Ross), Lord Dunpark and Lord Coulsfield for a hearing thereon on 14th July 1988. Eo die, their Lordships continued the appeal in order to obtain the trial judge's comments on a statement submitted to the appeal court by the clerk of the trial court and to allow the Crown and...
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