Note Of Reasons Given By Lord Brodie In Application For Leave To Appeal To The United Kingdom Court By Michael Stuart Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord Drummond Young,Lord Brodie |
| Neutral Citation | [2017] HCJAC 54 |
| Court | High Court of Justiciary |
| Date | 27 June 2017 |
| Docket Number | HCA/2016-000618 |
| Published date | 18 July 2017 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 54
HCA/2016-000618/XC
Lord Brodie
Lord Drummond Young
Lady Clark of Calton
NOTE OF REASONS
given by LORD BRODIE
in
APPLICATION FOR LEAVE TO APPEAL TO THE UNITED KINGDOM SUPREME COURT
by
MICHAEL STUART
Applicant
against
HER MAJESTY’S ADVOCATE
Respondent
Applicant: Templeton; Faculty Services Ltd
Respondent: M Meehan, AD; Crown Agent
27 June 2017
[1] This is an application by Michael Stuart in terms of section 288AA(5) of the Criminal Procedure (Scotland) Act 1995 for permission to appeal to the United Kingdom Supreme Court against what he submits was a determination of a compatibility issue by two or more judges of the High Court. As required by the Act of Adjournal (Criminal Procedure Rules) 1996 the application is made in writing in Form 40.9. The application is opposed by the Lord Advocate. Mr Templeton appeared before us and presented submissions in support of the application. The advocate depute had lodged Written Observations by the Crown. Under reference to these Observations he invited the court to refuse the application.
[2] A compatibility issue means a question arising in criminal proceedings inter alia as to whether a public authority, which includes the court, has acted in a way which is made unlawful by section 6(1) of the Human Rights Act 1998. In other words, whether the authority has acted in a way which is incompatible with a right guaranteed by the European Convention on Human Rights. On such an appeal the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue (1995 Act section 288AA(2)). When it has determined a compatibility issue, the Supreme Court must remit the proceedings to the High Court in terms of section 288AA (3) of the 1995 Act. The Supreme Court has no more general jurisdiction to review decisions of the High Court. Appeal to the Supreme Court lies only with the permission of the High Court or, failing that permission, with the permission of the Supreme Court (1995 Act section 288AA(5)).
[3] The applicant was convicted after trial on indictment in the High Court sitting at Glasgow on 14 October 2016 of a charge of contravention of section 28(1) of the Criminal Justice and Licensing Scotland Act 2010 in that he agreed with others, including Andrew Steven, Dean Kimmins and Kenneth McMullen, to become involved in serious organised crime. Steven, Kimmins and McMullen had been respectively the first, third and fourth accused on the indictment in which the applicant was the fifth accused. In his report to the Appeal Court following on the applicant’s appeal against conviction and sentence the trial judge (Temporary Judge Murphy QC) observed that the case against the applicant had been a circumstantial one, dependent upon mobile phone contact and a meeting with the first and third accused and a payment into his bank account by the first accused which was said by the Crown to be of the nature of a commission for the introduction of the third accused as a customer for a prohibited firearm and ammunition. There had also been evidence of what might be regarded as an incriminating conversation between the applicant and his brother who was then in prison. The position adopted on behalf of the applicant at trial had been that he had not been party to any such agreement and that he had had no such involvement, the payment into his bank account being a loan. The applicant had not given evidence.
[4] The circumstances now founded on by the applicant as constituting a contravention of the guarantees provided by Article 6 of the European Convention on Human Rights are set out in the application lodged on his behalf. In brief, the complaint is that following the closure of the Crown case the advocate depute at trial accepted a plea of guilty from the first accused in the presence of the jury, the terms of which included a narrative to the effect that the first accused had agreed with Kimmins, McMullen and the applicant to become involved in serious organised crime. This had been done without prior notice to counsel for the applicant. The jury was thus made aware that the first accused conceded and accepted that he had behaved in a criminal manner and that this involved the applicant. The Crown had been substantially advantaged by the manner in which the plea was recorded and the applicant had been disadvantaged.
[5] A motion was made to the trial judge on behalf of the applicant and the third and fourth accused that he should desert the trial on the basis that the applicant and his co-accused could not get a fair trial given the prejudice to their positions by reason of the circumstances of the recording of the plea. As the trial judge explained in his report to the Appeal Court he accepted that what had occurred gave rise to a real risk of prejudice but that the test for deserting the trial was whether the prejudice was so grave that no direction by the trial judge might be expected to cure it: McFadyen v Annan 1992 SCCR 186, HMA v Sinclair 1986 JC 113. The trial judge did not consider that that test was met and he repelled the motions to desert. When he came to charge the jury the trial judge gave directions to the effect that the first accused’s plea of guilty had no bearing on the case against any of the other accused, was not evidence against them and gave rise to no adverse inference (transcript of charge and verdict pages 35 and 36).
[6] Thereafter the applicant raised a compatibility issue before the trial judge by giving written notice of his intention to do so by minute in Form 40.2, as required by Rule 40.2(2) of the Act of Adjournal. It was in the following terms:
“a. The minuter has been deprived of the right to adequately present his defence under article 6(3)(b). By accepting the plea to charges 1 and 107 on the indictment as libelled, without prior consultation with counsel for the minuter, the Advocate Depute failed to afford the minuter with an opportunity to question or oppose the acceptance of the plea as libeled in open court before the jury. The plea submitted by the first accused after the closing of the Crown case but before the termination of the trial is now available to the jury as evidence of art and part criminality on the part of the minuter. The first accused has substantially supplied the Crown’s case against the minuter after closing their case.
b. As a consequence the minuter is now effectively presumed guilty; i.e. to have agreed to do something he ‘knew or suspected or ought to reasonably to have known or suspected would enable or further the commission of serious organised crime’, or to have acted with various identified persons, in breach of s5(2A)(a), (b), (c) and (d) of the Firearms Act 1968 as amended by the Anti-social Behaviour, Crime and Policing Act 2014. The burden of proof has been shifted onto the defence when it ought to have remained with the Crown until the end of the whole proceedings (Tallis v HM Advocate, 1982 SCCR 91; Lambie v HM Advocate, 1973 JC 53). The minuter no longer enjoys the...
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