Tobin v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 16 March 1934 |
| Date | 16 March 1934 |
| Docket Number | No. 12. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Ld. Anderson. Lord Murray.
Crime—Art and part—Judge's charge—Duty of judge explicitly to direct jury as to necessity of considering evidence against each accused separately and as to competency of convicting certain of accused and acquitting others.
Review—Appeal under Criminal Appeal (Scotland) Act, 1926 (16 and 17 Geo. V. cap. 15)—Misdirection to jury—Charge of acting in concert—Failure explicitly to direct jury as to necessity of considering evidence against each accused separately and as to competency of acquitting certain of accused while convicting others—Whether "substantial miscarriage of justice"—Act 1926, sec. 2 (1) proviso.
The Criminal Appeal (Scotland) Act, 1926, by sec. 2 (1), empowers the High Court of Justiciary to allow an appeal against conviction on indictment, but provides that the Court may, although of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal "if they consider that no substantial miscarriage of justice has actually occurred."
An appellant and three others were charged with having, acting in concert, knowingly had in their possession explosive substances under such circumstances as to give rise to a reasonable suspicion that they did not have such explosive substances in their possession for a lawful object, contrary to the Explosive Substances Act, 1883, sec. 4 (1). The material evidence was to the following effect. Late at night the four accused climbed together into a yard behind business premises, but did not enter the premises; later they boarded a motor omnibus together; two of the accused were arrested in the omnibus in possession of explosives; some time previously the appellant and the fourth accused had left the omnibus, and, when arrested, they had no explosives in their possession. In charging the jury the Sheriff-substitute did not expressly direct them to consider separately the evidence implicating each accused, and in particular the appellant, in the crime, nor did he explicitly explain that it was competent to acquit some of the accused and convict others. The jury, by a majority, found all the accused guilty as libelled.
Held that the failure to direct the jury to consider the evidence against each of the accused separately and to explain that it was competent to convict certain of the accused without convicting others amounted to a misdirection, and that, as it was not certain that the jury, if properly directed, might not have acquitted the appellant, the appeal could not be dismissed on the ground that no substantial miscarriage of justice had actually occurred.
Patrick Joseph Tobin, Edward Cairns, James Cox, and John Cassidy were charged in the Sheriff Court at Dumbarton at the instance of His Majesty's Advocate on an indictment which set forth "that you, acting in concert, did, between 11 p.m. on 5th December 1933, and 2 a.m. on 6th December 1933, in the courtyard of the Vale of Leven Co-operative Society's premises at 54–64 Bank Street, Alexandria, in the Parish of Bonhill and County of Dumbarton, and also on a public service vehicle, viz., a motor omnibus (VD 1699) belonging to the Scottish Motor Transport Company, while said vehicle was travelling on the public road leading between Alexandria and Old Kilpatrick, in said county, knowingly have in your possession or under your control explosive substances, viz., a cartridge Polar Ammon Gelignite, a fuse with detonator attached, and 2 low tension electric detonators, under such circumstances as to give rise to a reasonable suspicion that you did not have such explosive substances in your possession or under your control for a lawful object; contrary to the Explosive Substances Act, 1883, section 4, subsection (1)."
The accused were tried before the Sheriff-substitute (A. J. P. Menzies) and a jury on 21st February 1934.
The evidence, so far as material to this report, was to the following effect. About 11.25 p.m. on 5th December the four accused climbed over two walls into the yard of the co-operative society's premises. They were not seen to leave the yard, but the premises had not been entered. Sometime before midnight the four accused boarded a motor omnibus at Alexandria for Glasgow, but Tobin and Cassidy left it shortly afterwards. Cox and...
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