Swankie v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 20 October 1998 |
| Date | 20 October 1998 |
| Docket Number | No 6 |
| Court | High Court of Justiciary |
JC
L J-C Cullen, Lord Kirkwood and Lord Hamilton
Procedure—Solemn procedure— Jury—Conduct of juror—Juror indicating to third party after trial that fellow juror had indicated at jury's deliberations that pannel had committed some drugs offence previously after which there was no further discussion on evidence against pannel made—Whether further investigation be made—Whether miscarriage of justice—Proper test
The pannel was convicted along with his co-accused of drugs offences. Two or three days after the conclusion of the trial a third party spoke to a member of the jury who was employed by the same company as him. That person asked the juror how the jury could have found the pannel guilty. The juror informed the third party that a fellow juror had stated that the pannel “had been done before and got five years for some sort of drugs offence”. Further discussion about the evidence against the pannel ceased. The pannel thereafter appealed against conviction on the ground that information prejudicial to him had been communicated to the jury during the course of their deliberations which had affected the outcome. In the circumstances the pannel requested the appeal court to remit to the sheriff principal to investigate and report based upon two affidavits of the third party.
Held (1) that in considering whether the conduct of a juror should be investigated after the conclusion of the trial the appeal court had to be satisfied that the evidence placed before it to substantiate the claim was prima facie sufficiently substantial, convincing and trustworthy to warrant an enquiry, which enquiry was not lightly to be entered upon; (2) that that test meant that it was for the appeal court to make an assessment of not only the content and significance of the evidence but also its apparent quality; (3) that the later affidavit of the third party, who had been a close associate of the pannel, showed that the third party had, prior to his claimed conversation with the juror, formed an adverse view about the outcome of the trial so far as the pannel had been concerned and the account which he said that he gave of the context in which the alleged disclosure had been made could not be reconciled with what was known to have been before the jury for their determination; and (4) that the second affidavit differed in at least one important respect from the earlier one which had been sworn to, and while the significance of the allegation that the jury were informed of the pannel's previous conviction should not be minimised, the evidence tendered was not sufficiently convincing or trustworthy to warrant enquiry; and appealrefused.
McCadden v HM AdvocateSC 1985 JC 98 applied.
Arthur Thomas Swankie was charged on an indictment at the instance of the Right Honourable the Lord Hardie, QC, along with several co-accused, the libel of which set forth contraventions of the Misuse of Drugs Act 1971.
The pannel pled not...
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Petition No. Of 2008 By The Scottish Criminal Cases Review Commission
...Review Commission v HM AdvocateSCUNK 2001 JC 36; 2001 SLT 905; 2000 SCCR 842 Stewart v Fraser (1830) 5 Mur 166 Swankie v HM AdvocateSCUNK 1999 JC 40; 1999 SLT 1225; 1999 SCCR 1 Textbooks etc. referred to: Hume, D, Commentaries on the Law of Scotland Respecting Crimes with a supplement by Be......
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R v Mirza; R v Connor and Rollock
...53 Cr App R 466; R v Young (Stephen) [1995] QB 324. The position is similar in Scotland: Stewart v Fraser (1830) 5 Murray 166; Swankie v H M Advocate (1999) SCCR 1. Subject to differences as to the scope of the exception, a similar exclusionary rule has prevailed in Commonwealth countries......