Robert Mcateer+ben Ahern+christopher Muir+ross Steven V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Kirkwood,Lord Macfadyen |
| Court | High Court of Justiciary |
| Date | 25 February 2003 |
| Published date | 11 March 2003 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Kirkwood Lord Macfadyen
| OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEALS by (1) ROBERT McTEER, (2) BEN AHERN, (3) CHRISTOPHER MUIR and (4) ROSS STEVEN Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellants: Jackson, QC, J. Farquharson; Carr & Co
Shead; Gilfedder & McInnes:
Brown; Morisons:
Carroll, Solicitor Advocate; Carr & Co.
Respondent: Peoples QC, AD; Crown Agent
25 February 2003
[1]The appellants were convicted at Hamilton Sheriff Court on 1 February 2002 after trial before a sheriff and jury of the following charge:
"On 7 October 2000, at Westwood Road, East Kilbride, you Christopher Muir ... Robert McTeer, Ben Ahern and Ross Steven did while acting along with others whose identities are meantime to the prosecutor unknown, assault Alexander McShane, c/o East Kilbride Police Office, and did repeatedly strike him on the head and body with a bottle, repeatedly strike him on the head and body with a belt, repeatedly strike him on the head and body with a piece of wood, and did repeatedly punch and kick him on the head and body, all to his severe injury."
A fifth accused was acquitted on this charge. The trial seems to have proceeded in a straightforward way; but after it had been concluded, the first appellant complained that the foreman of the jury knew him. To explain the significance of this, it is necessary to rehearse some previous history that is not in dispute.
[2]Some years earlier the family of the first appellant were friendly with a family called Chambers who lived near them in East Kilbride. The first appellant was at one time a friend of Gary Chambers, who was about two years older than him. On at least one occasion Gary Chambers' father, Peter Chambers, had answered the door to the first appellant. All four appellants and Gary Chambers were pupils at Duncanrig Secondary School, East Kilbride.
[3]On 19 July 1997 the first appellant assaulted Gary Chambers in Mossneuk Road, East Kilbride. He was referred to a children's hearing. The ground of referral was that the first appellant had assaulted Gary Chambers "by striking him to the head with a bottle to his serious hurt and injury." The first appellant admitted the ground of referral. The report to the children's hearing by the Social Work Department stated that the first appellant's mother telephoned Gary Chambers' parents to apologise for the assault. It appears that the ill-will between the first appellant and Gary Chambers continued thereafter and that they fought with one another on at least two occasions.
[4]When the jury citations were sent out for the trial in this case, a leaflet was enclosed which explained in outline the procedure to be followed in a criminal jury trial. The leaflet included the following advice.
"What should you do if you know the accused?
If you think you know the accused you should inform the clerk of court immediately. The clerk will then report the matter to the Judge who will decide whether you should be excused from serving as a juror on the trial in question ..."
Among those cited for jury service was Peter Chambers.
[5]The sheriff clerk who acted in the trial has given an affidavit. She says that she cannot remember the trial in any detail. She describes her usual practice in dealing with prospective jurors. Before the jury were balloted, she would read over to them the names and addresses of the accused and of the witnesses and give a brief description of the charges. She would then explain that if any prospective juror knew of any reason why he should not serve, he should make that fact known to her. She would then give the prospective jurors time to think about the question and then ask it again. She assumes that she followed this procedure in the present case. The Crown accepts that we should proceed on that assumption. At this stage, Chambers did not make known his connection with the first appellant.
[6]Chambers was then balloted as a juror. Although the sheriff has not dealt with the point in his report, it is almost certain that in accordance with the procedure recommended by the appeal court in Pullar v HM Adv (1993 SCCR 514, at...
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