Lord Wheatley

Lady Paton

Lord Reed

[2009] HCJAC 48


delivered by LORD WHEATLEY



in the case of







Appellant: Shead; McAuley, McCarty & Co, Glasgow

Respondent: Ogg, Q.C., A.D.; Crown Agent

16 April 2009

[1] In this case the appellant was charged with an assault and robbery which took place on 7 February 2000. For various reasons, the trial did not take place until 29 and 30 May 2002. The evidence of identification against the appellant consisted in the first place of DNA evidence detected on a piece of skin like material, discovered inside a mask made from a distinctively coloured jersey, which had been discarded at the locus by one of the three persons involved in the robbery. The DNA material related to the appellant. The only other evidence of identification came from the shopkeeper who described the man who had discarded the mask as having dark hair, being of medium build and height, and thin faced. The complainer also said that the man was local because he had seen the person on several occasions before. This description, for present purposes only, we accept as one which could have applied to the appellant. However, the shopkeeper not only failed to identify the appellant, he specifically said that the man who had discarded the mask was not the person sitting in the dock. The appellant was found guilty by a majority verdict of the jury.

[2] The appellant then lodged an appeal based on a supposed insufficiency of evidence which was heard some 6 years ago, and the opinions delivered by the Court following the appeal are reported at 2003 SCCR 758. The appeal was unsuccessful, the Court taking the view that the presence of the DNA material in the circumstances and the general description of events given by the complainer, plus the failure on the part of the appellant to offer any explanation as to how his DNA came to be within the mask, was sufficient evidence in law to justify a verdict of guilty on the part of the jury. It is clear from the reports that the description of the robber given by the complainer in evidence was thought to have little value. The appellant then took his case to the Scottish Criminal Cases Review Commission, who referred the matter back to this Court broadly on the same grounds as before. Once again, we understand that the Crown would have vigorously opposed the original grounds of appeal now before us.

[3] However, on the morning of the appeal, a fresh ground was tabled by the appellant. This ground reads as follows:

"4. The advocate depute erred when he invited the jury to assess for themselves whether the description of one of the robbers given by the complainer corresponded with the physical appearance of the appellant:-

(page 15, line 11 - Closing Speech Advocate Depute).

'And it is a matter for you, ladies and gentlemen to assess and you have the opportunity of looking at the man in the dock and it is for you to assess if that man is of medium height, medium build, dark hair and thin face, it's a matter for you to form an impression ladies and gentlemen.'

The learned trial judge failed to direct the jury to ignore the invitation made by the advocate depute, and instead he directed the jury as follows:-

(Page 20 Line 7 - Judge's Charge)

'and whether you draw the inferences from the evidence that the Crown wish you to draw are entirely matters for you. They are entirely matters within your function'.

Accordingly there has been a miscarriage of justice."

Although lodged on behalf of the appellant, it quickly became clear that the drafting of this ground of appeal had been inspired by the Advocate depute, who on reading the papers for the appeal had become aware, for the first time, of what he considered to be a serious problem with the way in which the case had been presented to the jury by the prosecution, and as a result with the jury's verdict. Although it was not immediately clear what the ground of appeal meant, the Advocate depute, in a careful and measured submission, indicated the nature of his concern.

[4] The original appeal had been presented on the basis that the DNA evidence by itself provided insufficient evidence in law to justify a conviction. This argument was rejected by the Court having regard to the circumstances under which the DNA evidence was discovered and the failure of the appellant to offer any explanation. The Advocate depute specifically maintained that the decision of the Appeal Court in 2003 was correct.

[5] The Advocate depute referred however to the speech for the prosecution at the trial and the way in which the trial judge as a consequence of that speech required to direct the jury on the question of sufficiency of evidence. The Advocate depute at the trial specifically did not ask the jury to convict on the DNA evidence alone; in other words he did not rely on the circumstances of this discovery to provide the necessary inference that the appellant must have been responsible for the robbery. Rather he relied on the partial description given by the complainer for the necessary corroboration, notwithstanding that the complainer had in his evidence specifically excluded the appellant as being the person who had discarded the mask in the course of the robbery. This in turn led the trial judge to direct the jury that that was the way, and the only way, in which the Crown could ask for a conviction. The original appeal had therefore been presented on a basis which did not reflect the basis on which the Crown case had been presented to the jury.

[6] The difficulty with the basis on which the case had been presented to the jury, in the Advocate depute's submission, was that although the jury had a general description of the robber, there was no evidential link to relate that description to the appearance of the accused at the date of the robbery. The jury had simply been asked to look at the accused at the date of the trial (over two years later) and to decide whether he matched the complainer's description in order to provide corroboration of the DNA evidence. The Advocate depute argued that there had to be evidence that, at the date of the offence, the accused's appearance matched the description provided by the complainer, given that the complainer's evidence had specifically exculpated the accused as being the robber. There was however no such evidence before the jury. Although the jury were entitled to consider the appearance of the accused in assessing the evidence, they were not entitled to supply a deficiency in the evidence by inferring from the appearance of the accused at the trial that he had matched the description of the robber two years earlier.

[7] We decided that it was in the interests of justice to allow this additional ground of appeal to be received and argued. It was then conceded by the Advocate depute that there had been a misdirection of the jury in that regard, for the reasons which he had earlier explained, and that in consequence a miscarriage of justice had occurred. Since the point has been conceded, and the Crown do not seek to support the conviction, it is unnecessary for us to consider whether the Advocate depute's submissions were well-founded. We accept that, if there was a misdirection as the Advocate depute submitted, it follows that the only corroborating evidence relied on by the Crown was not properly put before the jury, and the basis on which they were asked to convict was therefore flawed. In these circumstances it also follows that a miscarriage of justice has occurred and we therefore quash the conviction.

[8] It only remains for us to record our surprise that this critical point was only raised on the morning of the appeal, and by the Crown, some 8 years after the original conviction. It was not raised in the original appeal, nor is it referred to in the present reference or in the original grounds of appeal before us, despite lengthy consideration and preparation over a period of years.

[9] In the circumstances, we have not heard any submissions in support of the original grounds of appeal. In quashing this conviction therefore we wish to make it particularly clear that we regard Maguire v HM Advocate as still representing the law of Scotland in this area and that without the intervention of the Crown in this responsible manner, there remains the distinct possibility that this conviction would have stood.