Michael Wishart V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Philip,Lord Eassie |
| Judgment Date | 17 October 2013 |
| Neutral Citation | [2013] HCJAC 168 |
| Court | High Court of Justiciary |
| Date | 17 October 2013 |
| Docket Number | XC621/12 |
| Published date | 18 December 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2013] HCJAC 168 | |
| Lord Eassie Lord Drummond Young Lord Philip | Appeal No: XC621/12 OPINION OF THE COURT delivered by LORD EASSIE in the APPEAL AGAINST CONVICTION AND SENTENCE by MICHAEL WISHART Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: C Mitchell; Capital Defence, Edinburgh
Respondent: Niven Smith, Advocate depute; Crown Agent
17 October 2013
[1] The appellant was prosecuted in the sheriff court on an indictment which contained five charges of indecent assault alleged to have been committed upon adult females. Following trial, the jury found the appellant not guilty of charges 1 and 2; found charge 5 not proven; but convicted the appellant on charges 3 and 4. The appellant appealed against conviction on those two charges and also against sentence.
[2] Having heard counsel and the advocate depute on the appeal against conviction we intimated our decision that the grounds of appeal were not well founded but that we would give our reasons for that decision in writing at a later date. This we now do. It may be added that following the hearing of the appeal against conviction we proceeded to consider and decide the appeal against sentence, in respect of which reasons were given orally.
[3] Although there are three grounds of appeal against conviction, counsel for the appellant accepted that the third ground was dependent upon the first being successful. The first ground of appeal stems from the terms of the charge to the jury given by the sheriff who presided at the trial. The particular complaint about the terms in which the sheriff charged the jury is that at several points the sheriff employed the noun "victim" (either singularly or in the plural) to describe, it is said, the complainer or complainers.
[4] Put very shortly the contention for the appellant was that in doing so the presiding sheriff conveyed to the jury an acceptance that the crimes had been committed. It was not suggested that the sheriff had any intention to act in an impartial way; but his choice of the language introduced a subliminal or apparent bias in the tribunal, which, it was argued, also infringed the appellant's rights under article 6 of the European Convention on Human Rights to trial before an independent and impartial tribunal.
[5] The first reference to which exception is taken by the appellant occurs at an early point in the sheriff's charge when giving general directions to the jury about their need to approach matters judicially:
"My next point is the need to avoid irrelevant influences. It's very important that you reach a verdict on the basis of evidence and reasonable inferences from that evidence. Do not speculate or guess. Don't be swayed by emotional considerations or any prejudices. Put sympathy aside for the victims of the crimes that are alleged. Your function is now a judicial one. Your verdict, whatever it is, will have consequences for others; these will be for others to deal with, so you should put them out of your mind".
The second use of the term comes at a point at which the sheriff was giving directions more tailored to the particular circumstances of the case. It arose in the context of his giving directions respecting the evidence given of a de recenti statement made by the complainer (DW) on charge 2. Having explained to the jury that evidence of that statement was allowed for the limited purpose of assessing DW as a witness and that it was not evidence which could corroborate DW's evidence in court, the sheriff said:
"So, remember, if the victim gives an account around the time of the incident that differs substantially from her later evidence in court, you might doubt her credibility and reliability as a witness. But if that earlier account is substantially similar to the evidence given later in court, that could point to consistency and reflect favourably on her credibility and reliability".
The third reference occurred in a very similar context where the jury were given essentially similarly structured directions...
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