David Cameron v. Her Majesty’s Advocate [2017] HCJAC 74

Note of appeal against conviction:- On 13 December 2016, at Stirling Sheriff Court, the appellant was convicted after trial on indictment of a charge of assault to severe injury, permanent disfigurement and to the danger of life. A charge of possession of diazepam contrary to section 5(2) of the Misuse of Drugs Act 1971 (charge 2) was withdrawn by the Crown. The appellant was acquitted of a charge of contravening section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 by shouting, swearing and threatening violence towards two persons (charge 3) which was said to have taken place on the same day as the conduct in charge 2. On 10 January 2017 the appellant was sentenced to an extended sentence of 6 years comprising of a custodial term of 4 years imprisonment and an extension period of 2 years. During the course of the trial the complainer gave evidence and, during the cross examination of him by the appellant’s solicitor, he made a number of prejudicial comments about the appellant and his character, including “this is his third knife crime”. At the conclusion of the complainer’s evidence the sheriff was invited by the appellant’s solicitor to desert the trial diet pro loco et tempore on the basis that he could not receive a fair trial in light of the prejudicial comments made by the complainer. The trial sheriff asked the appellant’s solicitor whether a direction at that stage should be given, however, the solicitor indicated that to do so would simply draw attention to the offending comments. The sheriff refused to desert the trial as it was considered that the comments had been unfortunate and unsolicited during the course of the cross-examination of the complainer. The sheriff gave directions to the jury in his charge that their verdict should only be based on evidence relating to the day in question and that anything else was irrelevant. Here it was submitted on behalf of the appellant that the trial sheriff had erred in refusing to desert the trial in light of the highly prejudicial remark that it was the appellant’s “third knife crime”. It was further submitted that, whilst the appellant had an extensive record, it was mainly for dishonesty and there was only one conviction for carrying a sharp or bladed weapon in 2001. As such the prejudicial comment regarding the appellant was not even accurate and the fiscal depute at the trial had been unwilling to enter into a joint minute agreeing that the comment was erroneous for fear of the jury thinking the appellant had no previous convictions. It was further submitted on behalf of the appellant that the directions given by the trial sheriff had been inadequate to cure the prejudice. It was submitted that the appellant had been unanimously acquitted of charge 3 and the remark may have affected the jury’s assessment of the evidence in relation to charge 1. In the sheriff’s report to the court it was stated that there had been no miscarriage of justice, however, it was submitted on behalf of the appellant that that was not a matter for the sheriff, but, rather, it was the sheriff’s duty to ensure the trial proceedings as a whole were fair. Here the court refused the appeal having regard to the test set out in Fraser v HMA 2014 JC 115. The court reiterated that it is generally for the court at first instance to determine whether any alleged prejudicial remarks are such that a desertion is necessary and that discretion is seldom to be interfered with given the court at first instance is best placed to consider the impact of any such comment on the trial proceedings as a whole. The court noted that, as in Jackson v. HMA [2017] HCJAC 72, the offending remark came during the course of robust cross-examination when the complainer was being accused of being responsible for being stabbed and, if a complainer is aware of certain background information regarding an accused, it is perhaps to be expected that such information may be elicited if that complainer thinks it supports his position that he was stabbed by an accused. The court highlighted that decisions in relation to the questions to be asked of prosecution witnesses in cross-examination are delicate and sometimes the consequences of those will need to be accepted if, for example, the witness is being accused of a criminal act in a particular tone. In the particular circumstances of the case the court considered that the steps taken by the trial sheriff to deal with the potential prejudice were adequate and no miscarriage of justice had occurred. In addition, the court considered that the sheriff’s remarks in relation to no miscarriage of justice having occurred in light of the convincing evidence of the complainer were helpful to the court and are to be encouraged when reports are being prepared for an appellate court.