For the appellant: Shead; Miss Mitchell; Jim Friel & Co, Glasgow

For the Crown: Mitchell, AD; Crown Agent

30 May 2006

Introduction

[1] The appellant was tried before Lady Paton and a jury at Glasgow High Court in 2002 on inter alia the following charges:

"(1) between 22 September 1999 and 26 September 1999, both dates inclusive, at Glasgow Green at The Albert Bridge on the River Clyde, Glasgow, you did assault Thomas Morgan ... and push him into the River Clyde whereby said Thomas Morgan drowned and you did murder him; ...

(3) having committed the crime libelled in charge (1) hereof, namely murder, and knowing or believing that John Houston Sinnamon ... would be a witness in any trial at the High Court of Justiciary against you in connection therewith, on 8 October 1999 at Glasgow Green at the Weir at The Albert Bridge on the River Clyde, Glasgow, you did assault him and push him into the River Clyde whereby said John Houston Sinnamon drowned and you did murder him."

On charge (1) the appellant lodged a special defence of alibi and a special defence of incrimination in which he incriminated Alexander Smith. On charge (3) he lodged a special defence of incrimination in which he incriminated Bernadette Heron. On both charges he lodged a special defence of insanity at the time of the offence.

The locus

[2] At its north end, the Albert Bridge leads into Saltmarket. Immediately on the west side of Saltmarket is Glasgow High Court, facing which on the north bank of the Clyde is Glasgow Green. The Clyde Weir referred to in charge (3) is immediately to the east of the bridge. The locus can be seen from the east side of the bridge, from the riverside part of Glasgow Green and from the High Court.

[3] There was evidence about the physical features of the locus from police officers and eye-witnesses, and from scene of crime and aerial photographs. The trial judge reports that the jury were well informed by a considerable body of evidence about the layout and physical characteristics of the relevant locations.

[4] The trial judge told the jury, probably on the first day, not to carry out any individual investigations, such as inspections of the locus, and emphasised that they should concentrate on the evidence led in court.

The case against the appellant

[5] The appellant had a history of mental illness and alcoholism. He lived in the Bellgrove Hotel, a hostel in the east end of Glasgow. One of the other residents was Thomas Morgan, for whom the appellant had conceived an enmity. On the date libelled in charge (1) he persuaded Morgan to join him for a drinking session at the locus. He then pushed Morgan into the river and watched as he drowned. A fellow drinker, Gerald Ellis, said that the appellant and Morgan went down to the river bank, but only the appellant came back. Morgan's body was found four days later. Meanwhile, the appellant told his community mental health worker what he had done and gave him a graphic description of Morgan's drowning. Over the next few days he confessed to two others, one of whom was a member of staff of Loretto House, a nearby hostel.

[6] John Sinnamon was a resident of Loretto House. He said repeatedly that the appellant had been responsible for Morgan's death. On the date libelled in charge (3) the appellant persuaded Sinnamon to join him along with Bernadette Heron and her boyfriend James Bonnar, both hostel residents, for a drinking session at the locus. He repeatedly accused Sinnamon of being a "grass" and threatened that he would not be at court to tell anything. While the group were drinking on the river bank beside the weir, Bernadette Heron went behind a stone pillar to relieve herself. James Bonnar screened her with his jacket. The appellant was again heard to say that Sinnamon would not be at the High Court to give evidence against him. He then pushed Sinnamon into the river. Bernadette Heron and James Bonnar came round from behind the pillar. They found the appellant standing alone. He had watched Sinnamon drown. He told them that he had thrown Sinnamon in. He threatened both of them not to say anything. At Sinnamon's funeral he told Bernadette Heron to keep quiet about what had happened.

[7] There was plainly a sufficiency of evidence against the appellant on both charges. Much of the trial was taken up by the evidence of six psychiatrists led by the Crown as to the appellant's mental state. The appellant did not give evidence and no evidence was led on his behalf.

The trial judge's charge

[8] In the course of her charge the trial judge said:

"Don't speculate about matters about which no evidence has been led. You must base your verdicts solely upon the evidence which you have heard in the course of the trial, and remember, as counsel have already pointed out to you, it is your memory of the evidence which counts."

The jury's deliberations and verdict

[9] The jury were sent out on 1 June 2002. They were unable to reach verdicts by the end of that day. At 5.04 pm the trial judge called them back. She said that if they felt that it was likely that they would reach a verdict within the next hour or so, they should return to the jury room and continue their deliberations. She then said

"On the other hand, if you now feel that you would probably require longer than about an hour in order to arrive at your verdict, I would propose that you should stop your deliberations either immediately or within a very short period of time and proceed under the charge of Court officials to a hotel where overnight accommodation is available for you, and you would continue to be secluded, and tomorrow morning you would be brought back here and you would then be asked to return to the jury room and continue with your deliberations."

The jury returned at 5.46 pm. The trial judge said to them

"Well, ladies and gentlemen, I understand that you have indicated to my Clerk that you need some more time, so I suggest to you that you stop your deliberations now, and arrangements have been made for overnight accommodation. Now, you don't have to continue your deliberations overnight. In fact, I would advise you to forget about the case overnight until tomorrow morning, when you will be brought back to Court, and my Clerk here will assist you with the practical arrangements. So we will adjourn now and re-convene tomorrow, but my Clerk will help you with all the arrangements. The Court will now adjourn.

The jury were accommodated overnight in a hotel. On the following morning when the clerk called the diet, the trial judge said

" ... All that I do at this stage is invite you to return to your jury room and consider the case again, continue your deliberations. So that is what you do at this stage. There is no pressure of time again, ladies and gentlemen."

The jury thereafter convicted the appellant by a majority of culpable homicide on both charges. Although it is possible that the decision on each charge lay between conviction and acquittal, it seems more likely that it lay between a conviction for murder and a conviction for culpable homicide.

Mrs N's affidavit

[10] It later came to the notice of the appellant's solicitors that one of the jurors, Mrs N, was concerned by certain aspects of the trial. According to Mrs N's affidavit, Bernadette Heron and James Bonnar said in evidence that while Bernadette Heron was relieving herself they could not see what happened. Mrs N refers to a discussion about this among the jurors at some unspecified point during the trial. She describes the discussion as follows

"11 I said that I did not really believe that this woman was the type of

person who would want to have somebody screening her, she would have just relieved herself. Round about was all bushes so there was no need for anybody to have screened her and I did not believe this part of the evidence.

12 One of the other members of the jury disagreed with me and he said

that he had visited the location and there was a pathway and that when you looked down from the pathway you could see the crime scene. He indicated the area was quite open. His point was that the man would have had to screen her otherwise she would have been seen.

13 The general reaction amongst other members of the jury was that, 'You

shouldn't have been there' directed towards this other juror because we had been instructed specifically not to go to the crime scene. His reaction to this was, 'That's where I stay, I pass that way every night'. I got the impression that he actually went home that way but he had taken a wee detour to have a look because this was involved in this case."

[11] Mrs N says that when the jury went to the hotel, she mentioned these misgivings to the clerk of court. The clerk said that juries were to find a common ground and that they had to try to reach a verdict together. He suggested that she should enquire what the other jurors thought and, if there was a general opinion that this had influenced the verdict, it would be up to the foreman to make representations on the matter to the court. She says that she spoke to the foreman in accordance with the clerk's advice and that the matter was resolved within the jury room.

Grounds of appeal

[12] We have refused this appeal so far as it is based on a misdirection point (Adam v HM Adv, 2005 SCCR 479). We now have to decide it on the remaining grounds, namely that the verdict is invalidated (a) because one of the jurors inspected the locus contrary to the trial judge's instructions; and (b) because the clerk had a conversation with Mrs N after the jury were secluded.

The remit to Lord Macphail

[13] We remitted to Lord Macphail in terms of section 104(1)(d), (2) and (3) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) to enquire into the content of any discussion that might have taken place between Mrs N and the clerk of court after the jury had left the court building on the evening of 1 June 2000 and before they returned to it on the following morning (cf Kerr (JD) v HM Adv, 1999 SCCR 763; Crossan v HM Adv, 1996 SCCR 279). We directed that the appellant and the Crown would be entitled to be present at and to take part in the proceedings of the enquiry (cf 1995 Act, s 104(3)).

[14] His Lordship reports that an irreconcilable conflict emerged between Mrs N and the clerk. The clerk was adamant that no conversation took place between him and Mrs N. He said that he would never have given advice to a juror. At the material time he was preoccupied with having the jurors checked in. He did not recall that any woman juror had wished to talk to him about the case.

[15] His Lordship reports that Mrs N gave him the impression that she was completely honest and straightforward. His Lordship also interviewed the foreman. He reports that the foreman was an excellent witness. He is convinced that the foreman was telling the truth. He is wholly satisfied that the clerk gave his evidence honestly and did not seek to mislead him. He has no doubt that the clerk genuinely believed that he adhered to his usual scrupulous practice on the occasion in question; but he concludes that the clerk advised Mrs N to speak to the foreman on the lines that she mentions in her affidavit. He says that it would not be altogether surprising if the most conscientious clerk, distracted by a persistent juror at a busy time, were to dismiss her by uttering such words in an unguarded moment. He accepts that such conduct on the part of the clerk was very much out of character, but he considers that it is not difficult to understand how it happened.

[16] His Lordship concludes that there was a discussion at the hotel between Mrs N and the clerk; that Mrs N told the clerk that a member of the jury had examined the locus, contrary to the instructions of the trial judge, and that she said "What can I do about it? He shouldn't have done that," or words to that effect. He finds that the clerk replied "Why don't you ask the foreman? Put it to the foreman of the jury to ask all the members of the jury tomorrow morning if it affected their judgment," or words to that effect; and that later that evening Mrs N spoke to the foreman and told him what the clerk had suggested.

The statutory provisions

[17] Sections 92 and 99 of the 1995 Act, so far as material, provide as follows:

"92 - Trial in presence of accused

(1) Without prejudice to section 54 of this Act ... no part of a trial shall take place outwith the presence of the accused ...

99 - Seclusion of jury to consider verdict

... (2) Except in so far as is provided for, or is made necessary, by an instruction under subsection (4) below, while the jury are enclosed and until they intimate that they are ready to return their verdict -

(a) subject to subsection (3) below, no person shall visit the jury or

communicate with them; and

(b) no juror shall come out of the jury room other than to receive or seek a

direction from the judge or to make a request -

(i) for an instruction under subsection (4)(a), (c) or (d) below; or

(ii) regarding any matter in the cause ... "

Submissions for the appellant

[18] Counsel for the appellant submitted that the juror's visit to the locus in defiance of the trial judge's instruction constituted evidence-gathering and therefore that part of the trial took place outwith the presence of the appellant. The case was on all fours with Aitken v Wood (1921 JC 84) and Brims v MacDonald (1993 SCCR 1061). If the juror's conduct was an irregularity, it affected the entire verdict (McTeer v HM Adv, 2003 SCCR 282). In Gray v HM Adv (1994 SCCR 225) the court held that a visit to the locus by a juror was not per se an impropriety; and that if there was evidence-gathering on a such a visit, it was not to be assumed that there was a miscarriage of justice. In this case, however, the juror visited the locus with the specific purpose of seeing the layout.

[19] Moreover, since that visit amounted to the taking of evidence, part of the trial had taken place outwith the presence of the appellant (Aitken v Wood, supra; Brims v MacDonald, supra). There was therefore a breach of section 92(1) of the 1995 Act. This point was not taken in Gray v HM Adv (supra). The breach of section 92 was a fundamental irregularity. It was irrelevant whether the appellant was prejudiced thereby (Drummond v HM Adv, 2003 SCCR 108).

[20] The conversation between the clerk and Mrs N was also a part of the trial. It took place outwith the presence of the accused. For the reasons given in Aitken v Wood (supra) and Brims v MacDonald (supra), it too was an irregularity at common law and a breach of section 92.

[21] In any event, there was a breach of section 99(2)(a) of the 1995 Act. The clerk communicated with the jury without the authority of the trial judge after they had been secluded. He gave them directions as to how they should deal with the question of the juror's visit to the locus. In an appeal under section 99, as in an appeal under section 92, the appellant need not prove prejudice (Drummond v HM Adv, supra). In any event, there was prejudice to the appellant since it could not be assumed that the verdict was untainted. The jury were not required to give reasons and the size of the majority was not recorded. The appellant was entitled to an acquittal (s 99(5)). Counsel accepted that this submission was not supported by Thomson v HM Adv (1997 JC 55) or Gordon v HM Adv (2006 SCCR 1).

Submissions for the Crown

[22] The advocate depute submitted that it was not proved that the juror visited the locus. According to Mrs N, the juror said that the locus was where he stayed and that he passed that way every night. She had the impression that he had made a detour; but it was only an impression. Simply to know the locus could never found an appeal (Gray v HM Adv, supra). Even if the juror visited the locus, it was not known what he did there or what he learned from his visit. If it was not shown that he visited the locus, the question under section 92 did not arise.

[23] At the post-conviction stage, the issue was whether there had been a miscarriage of justice (Russell v HM Adv, 1991 SCCR 790, at p 796). The jury were given a strong direction to base their verdict on the evidence alone. It was to be assumed that juries would comply with the judge's directions (McCadden v HM Adv, 1985 SCCR 282; Pullar v HM Adv, 1993 SCCR 514). The appellant had not shown that anything done by the juror in question had been detrimental to the defence.

[24] The conversation between Mrs N and the clerk was not a breach of section 92. It was not part of the trial (Cunningham v HM Adv, 1984 JC 37). The trial had been adjourned for the day (Thomson v HM Adv, 1997 JC 55, at p 58B-C). Even if there was a breach of section 92, there was no miscarriage of justice. These were simply the words of a harassed clerk of court to a persistent juror in an unguarded moment. They could not be described as directions to the jury (cp McColl v HM Adv, 1989 SLT 691). The fact that the clerk could not recall the incident emphasised the off-hand nature of his remarks.

[25] There had been no breach of section 99 because there had been no improper influence on the jury (Thomson v HM Adv, supra; Gordon v HM Adv, supra).

Conclusions

The juror's alleged visit to the locus

[26] In my opinion, this ground of appeal fails at the outset because it has not been shown that the juror to whom Mrs N refers inspected the locus, still less that by visiting it he did anything improper. The juror has not been traced and interviewed. In this respect the case can be contrasted with Gray v HM Adv (2)(2005 SCCR 106) where the court heard evidence on the point from the juror himself. Although I accept that Mrs N is credible and reliable, we have only her hearsay evidence as to what the juror said and her own impression as to what he did.

[27] In any event, I do not accept the proposition that if the juror visited the locus, that vitiated the proceedings. In my opinion, such a visit is not an impropriety per se (Gray v HM Adv, supra, Lord Justice Clerk Ross at p 233F-234E). It vitiates the proceedings only if the effect of it is to deprive the accused of a fair trial (Gray v HM Adv (2), supra). That cannot be said here. The locus was a public place. Seemingly, it was well known to the juror. It was visible to any juror who passed it on his way to or from the court. In any event, the jury heard ample evidence about the layout of the locus. We have no reason to infer that if the juror visited the locus he learned anything material that was not brought out at the trial.

[28] Counsel submitted that the broad principle for which he contended was supported by Aitken v Wood (supra) and Brims v Macdonald (supra). In both of those cases the irregular exercise in fact-finding was carried out by the court itself and it related to a material issue. In my opinion, these cases are distinguishable on both points. The actings of an individual juror cannot be equiparated with those of the court itself; and in any event it has not been shown in this case that the factual question allegedly raised by the juror had any material bearing on the issue in the trial. On the contrary, in my view, it did not. Moreover, the jury were expressly directed by the trial judge to decide the case solely on the evidence that they had heard in the course of the trial (cp Gray v HM Adv, supra, Lord Justice Clerk Ross at p 234B-E).

[29] On the view that I have taken, the question whether the alleged visit constituted part of the trial does not arise. However, since this is the second case in recent months in which the question has arisen (cf Gray v HM Adv (2), supra) and since we have heard submissions on it, I shall set out my views.

[30] In my opinion, even if the juror visited the locus and even if he then engaged in evidence-gathering, his visit did not constitute part of the trial. On this point too the submission for the appellant is based on Aitken v Wood (supra) and Brims v MacDonald (supra). In Aitken v Wood, the complainer in a trial for assault spoke to the assault and said that her arm still bore a mark from it. The magistrates, one of whom was a doctor, having heard the evidence and submissions, retired to consider their verdict. They then called the complainer into their room and examined her arm. The court held that that constituted the taking of additional evidence. It struck at the principle that no proceedings in a criminal trial should take place outwith the presence of the accused. It vitiated the proceedings (ibid, Lord Justice General Clyde at p 86). In Brims v MacDonald (supra) the sheriff visited the locus in order to test the accuracy of evidence from a police officer that there was a blind bend there. The court held that the sheriff in effect took evidence at the locus and therefore that part of the proceedings took place outwith the presence of the accused (ibid, Lord Justice Clerk Ross at p 1065B-D).

[31] On this point too, in my opinion, these cases are distinguishable on the ground that in both of them the unwarranted evidence-gathering was carried out by the court itself. I do not consider that the gathering of evidence in private by an individual juror can be considered to be part of the trial.

[32] But in my view these cases raise a difficulty to which I alluded in Gray v HM Adv (2) (supra, at para [9]). In both, the decision seems to conflate two distinct ideas, namely that the court engaged in evidence-gathering and that in doing so it conducted part of the proceedings outwith the presence of the accused. In my opinion, while the first idea is right, the second is wrong. I cannot see how the actings complained of in those cases were part of the proceedings of the trial. On the contrary, I think that it was the fact that those actings were not part of the trial that constituted the impropriety.

[33] If I am right in thinking that the Aitken v Wood (supra) and Brims v MacDonald (supra) are distinguishable from this case, it follows that this ground of appeal fails also under section 92. It is therefore unnecessary for me to consider the submission of counsel for the appellant that where there is such a breach, the appellant need not demonstrate that he has been prejudiced by it. That submission was founded on Drummond v HM Adv (supra), which is binding on us. In that case the appellant was required to leave the court, in what was thought to be his own interests, while an evidential question was being discussed outwith the presence of the jury. His counsel confirmed that he did not object to that procedure. On the appellant's return, the judge told him what had been discussed. Although this was a matter of the merest technicality, this court held that there was a breach of section 92, since the accused had the absolute right to be present throughout the trial; that the breach was fundamental, and therefore that the verdict could not stand.

[34] It occurs to me that there is a possible alternative view of that case, namely that since the only ground of appeal is now that of miscarriage of justice (1995 Act, s 106(3)) and since at the post-conviction stage that issue is the court's over-riding concern (Russell v HM Adv, supra), it was unnecessary that a provision designed to proscribe trial in absence should be construed so rigorously. But since the question was not fully debated before us, I express no concluded view on it.

The conversation between Mrs N and the clerk

[35] For substantially the reasons that I have given in discussing the previous ground of appeal, I do not consider that a conversation between an individual juror and the clerk of court can be said to be part of the trial. Moreover, I am of the view that the conversation in this case could not be said to be part of the trial in the circumstances in which it occurred. The trial judge's words before and after the overnight adjournment confirm that when the trial was adjourned on 1 June, the jury's deliberations were brought to an end for that day. The jury did not resume their deliberations until they returned to court on the following morning and were again enclosed in the jury room. For these reasons, in my opinion, there was neither an irregularity at common law, at any rate in the specific respect on which counsel founded, nor a breach of section 92 (cf Thomson v HM Adv, supra, at p 58B-C).

[36] Nor, in my opinion, was there a breach of section 99. The section is designed to protect the inviolability of the deliberations within the jury room (cf s 99(2)(a), (b)). At that stage, the jury had been instructed to break off their deliberations until the following day. The jury were not at that stage enclosed.

Miscarriage of justice

[37] In any event, even if there was a procedural irregularity on the part of a juror or on the part of the clerk, I consider that there was no miscarriage of justice (cf Cunningham v HM Adv, supra). There is no evidence that the juror learned anything adverse to the defence from his visit, or that the clerk exerted any improper influence on the jury (Gordon v HM Adv, supra). On the other hand, there was eye-witness evidence incriminating the appellant on both charges; there were circumstantial similarities in the evidence relating to them, and there was evidence of numerous confessions by the appellant, at least one of which disclosed special knowledge. Although the appellant had lodged a special defence of alibi on charge (1) and of incrimination on both charges, the defence led no evidence and, as is clear from the trial judge's charge, the defence concentrated on the questions of insanity and diminished responsibility.

Disposal

[38] I propose to your Lordships that we should reject these remaining grounds and therefore refuse the appeal.

For the appellant: Shead; Miss Mitchell; Jim Friel & Co, Glasgow

For the Crown: Mitchell, AD; Crown Agent

30 May 2006

[39] I agree that for the reasons given by your Lordship in the chair, the outstanding grounds of appeal should be refused.

For the appellant: Shead; Miss Mitchell; Jim Friel & Co, Glasgow

For the Crown: Mitchell, AD; Crown Agent

30 May 2006

[40] I agree that for the reasons given by your Lordship in the chair, the outstanding grounds of appeal should be refused.