McCUAIG v H. M. ADVOCATE
| Jurisdiction | Scotland |
| Judgment Date | 04 March 1982 |
| Docket Number | No. 11. |
| Date | 04 March 1982 |
| Court | High Court of Justiciary |
JC.
L.J.-C. Wheatley, Lords Hunter, Robertson.
Evidence—Disclosure of previous convictions in answer to questions by prosecutor and trial Judge—Whether fatal to conviction—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 160 (1).1
Review—Appeal against conviction on indictment—Power of High Court to quash conviction—Whether substantial miscarriage of justice required—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 254 (1) as amended by the Criminal Justice (Scotland) Act 1980 (cap. 62), Sch. 2, para. 18.2
An accused was charged on an indictment containing 51 charges, including attempting to pervert the course of justice by giving false particulars to certain police officers. In the course of the trial, the prosecutor asked a police sergeant what caution and charge had been given to the accused in respect of this offence. The sergeant stated the charge in general terms but, in answer to a question from the presiding Sheriff, read out the detailed charge from his notebook including "… and to conceal your true name and to avoid production of a reference to previous convictions relative to you …" The prosecutor did not seek a conviction on this charge and the Sheriff directed the jury to ignore the reference to the previous convictions. The accused was alleged to have made a number of detailed admissions in relation to other charges. He did not give evidence, but witnesses spoke to his defence of alibi. The accused was convicted of 16 charges, all but one unanimously. He appealed on the ground that sec. 160 (1) of the Criminal Procedure (Scotland) Act 1975 had been breached.
Held (refusing the appeal) (1) that the power of the High Court to quash a conviction on appeal had been altered by the amendment made to sec. 254 (1) of the Criminal Procedure (Scotland) Act 1975 by Sch. 2 to the Criminal Justice (Scotland) Act 1980. The previous imperative requirement to quash a conviction subject to a discretionary power not to do so had been replaced by a discretionary power to quash the conviction.
(2) That in the circumstances, even accepting that a breach of sec. 160 (1) had occurred, there had not been a sufficient miscarriage of justice to warrant setting aside the verdict.
Samuel Winslow M'Cuaig was convicted before a Sheriff and jury at Hamilton of 16 charges of theft, contravention of section 3 of the Road Traffic Act 1972 (cap. 20), and assault. In the course of the trial, reference was made by a witness for the Crown to a previous conviction of the accused.
The relevant circumstances are given in the following excerpt from the report of the Sheriff (Lockhart):—"On 19th October 1981, which was the fifth day of the trial, Detective Sergeant Brian Brittle, stationed at Stewart-Street Police Office, Glasgow, was giving evidence. He had stated that he was 41 years of age and had 15 years police service. He stated that on 7th May 1981 he was on duty in Stewart Street Police Office when he was instructed to attend with Detective Constable Kerr at the house of the appellant at 125 Lochdochart Road, Easterhouse. The Detective Sergeant-stated that he met the appellant in his house and cautioned and charged him. The Procurator-fiscal Depute then asked him, “What was he cautioned and charged with?” The Detective Sergeant replied, “It was in respect of attempting to pervert the course of justice by giving false particulars to officers the previous day.” The Court had been informed by the Procurator-fiscal Depute at the outset of the Detective Sergeant's evidence that he would be speaking to charges 7-12. Your Lordships will note that charge 12 reads: “Date libelled and charged 11th hereof, at Stewart Street Police Office, you Samuel Winslow M'Cuaig did pretend to Karen Howie and Ross McLellan, both Detective Constables of Strathclyde Police, that your name was James Kennedy, born on 7th December 1959 and that you resided c/o M'Cuaig, 125 Lochdochart Road, Glasgow and did cause said officers of Strathclyde Police, maintained at the public expense for the public benefit to devote their time and service in the investigation of said representation made by you which you knew to be false and did temporarily deprive the public of the service of said officers and did render the lieges liable to suspicion and accusation of crime.”
It was clear to me that the Procurator-fiscal Depute was proceeding to ask the Detective Sergeant what the appellant's reply was to this caution and charge. It appeared to me that the jury required to know details of the false particulars which were given to officers the previous day before the reply to this caution and charge would have any relevance. I accordingly asked the question, “Could you be more specific about the caution and charge?” The Detective Sergeant replied, “I could be if I referred to my notebook.” No objection was raised to this by the Procurator-fiscal Depute or Mr Finlayson and permission was given to refer to the notebook. The Detective Sergeant read therefrom: “Having been apprehended and detained in lawful custody on a criminal charge namely fraud and having formed a criminal purpose to hinder, frustrate and defeat the course of justice, you did on 5th May 1981 at Stewart Street Police Office, Glasgow, pretend to officers of Strathclyde Police that your name was James Kennedy, said name being false, and this you did with intent to deceive the said police officers, the criminal authorities and to conceal your true name and to avoid production of a reference to previous convictions relative to you and you did by said means attempt to defeat the ends of justice.”
At this point Mr Finlayson for the appellant objected to the evidence and the jury withdrew. Mr Finlayson stated that the Procurator-fiscal Depute by introducing this charge had allowed prejudicial material to go before the jury, namely that his client had previous convictions. He argued that this information should not have been elicited.
The Procurator-fiscal Depute, Mr Hamilton, was clearly very distressed by this turn of events. He stated to me that he had not endeavoured to elicit this information. He had no wish to bring out any reference to previous convictions. He stated that there was no indications in the precognitions before him that there was any references to previous convictions in the charge of attempting to pervert the course of justice which had been put to the appellant by Detective Sergeant Brittle. There had been no intention on his part to bring out this reference. He stated that if he had thought that there would be...
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