Michael Stuart v. Her Majesty’s Advocate [2017] HCJAC 54

Application for leave to appeal to the United Kingdon Supreme Court:- On 14 October 2016, at Glasgow High Court, the applicant was convicted after trial of a contravention of section 28(1) of the Criminal Justice and Licensing (Scotland) Act 2010 in that he agreed with others, including Andrew Steven, Dean Kimmins and Kenneth McMullen, to become involved in serious organised crime. Here the applicant sought, in terms of section 288AA(5) of the Criminal Procedure (Scotland) Act 1995, for permission to appeal to the United Kingdom Supreme Court against what he submitted was a determination of a compatibility issue by two or more judges of the High Court. The application was opposed by the Crown. The circumstances were that at the close of the Crown case the advocate depute at trial accepted a plea of guilty from the first accused (Andrew Steven) in the presence of the jury, the terms of which included a narrative to the effect that the first accused had agreed with Kimmins, McMullen and the applicant to become involved in serious organised crime. This course had been done without prior notice to counsel for the applicant (or for Kimmins or McMullen). As a result of this development in the trial the jury was made aware that the first accused conceded and accepted that he had behaved in a criminal manner and that this involved the applicant (and Kimmins and McMullen). A motion was made on behalf of the applicant, Kimmins and McMullan that the trial should be deserted pro loco et tempore on the basis that the applicant and his co-accused could not get a fair trial given the prejudice to their positions due to the circumstances of the recording of the plea and that the Crown had been substantially advantaged by the manner in which the plea was recorded and the applicant and his co-accused had been significantly disadvantaged. The trial judge considered that the test from McFadyen v Annan 1992 SCCR 186, namely, whether the prejudice was so grave that no direction by the trial judge might be expected to cure it had not been met and repelled the motions to desert. During his charge to the jury the trial judge gave specific directions to them that the first accused’s plea of guilty had no bearing on the case against any of the other accused. Thereafter the applicant raised a compatibility issue before the trial judge by giving written notice of his intention to do so. The trial judge determined the compatibility issue by concluding that the applicant’s Convention rights had not been breached. The trial proceeded and the applicant was convicted by the jury. Thereafter, in terms of section 110 of the 1995 Act, the applicant lodged an intimation of intention to appeal and a Note of Appeal. The applicant was refused leave by a single judge. His appeal from that refusal in terms of section 107 (4) was refused by a formation of the High Court constituted by the same judges who constituted the present application. Here it was submitted on behalf of the applicant that permission ought to be granted for an appeal to the Supreme Court due to:- (1) the applicant has lost is liberty through a conviction based on an action of the Crown to secure a conviction by denying the applicant a fair trial; (2) the act of the Crown was improper and the consequent prejudice could not be cured by a direction; (3) it was in the public interest to ensure in future that the Crown do not take such advantage of circumstances to subvert the trial process and in England there is a differing approach (R v Frederick 1990 Crim L R 403) and it is in the public interest that there is consistency within the United Kingdom in relation to the important issue whether such actions are curable by directions to the jury. In relation to an issue of whether the court here could competently deal with the application the court, with some hesitation, considered the merits of the application.This was because it had not been expressly stated within the applicant’s Note of Appeal that the appeal was also directed at the trial judge’s determination of the compatibility issue at the conclusion of the trial, albeit it was contended on behalf of the applicant, and the point was not disagreed with on behalf of the Crown, that it could be clearly inferred from the terms of the Note of Appeal. On considering the merits of the application the court refused to grant leave. The court observed that the basis of the application was that the prejudice to the applicant was such that a fair trial was impossible which largely mirrored the common law of Scotland. In addition, having regard to section 288AA(5) of the 1995 Act the case did not raise an arguable point of law nor was the contended point of law of general public importance. In relation to the submission that the law in Scotland differed to the English position the court reiterated that the issue is not whether there are any differences in criminal law or pratice between the two systems but, rather, whether any alleged unfairness could be adequately dealt with to ensure compliance with the Convention, for example, by adequate directions from the trial judge.