Robert McPhee v. Her Majesty’s Advocate [2019] HCJAC 8

Note of appeal against conviction:- On 9 February 2018, at Glasgow High Court, the appellant was convicted after trial, along with his co-accused John Miller. The appellant was convicted of 14 charges relating to his treatment of people who worked for him with the use and threats of violence in a climate of fear. On 15 March 2018, following the obtaining of a Criminal Justice Social Work Report, the judge imposed an extended sentence of 12 years comprising of a custodial element of 10 years in relation to a charge of holding a complainer in servitude (charge 22), contrary to the Criminal Justice and Licensing (Scotland) Act 2010, section 47(1)(a). Shorter periods of imprisonment were imposed on the remaining charges. Charge 22 related to the holding the complainer (GL) in a state of servitude at the Curryside Piggery, where he was forced to live, was detained against his will and was compelled to carry out work for little or no pay. Charge 29 was a contravention of section 4(1)(a) of the Human Trafficking and Exploitation (Scotland) Act 2015, by holding the complainer (KDW) in a state of servitude, detaining him and forcing him to live at the Piggery and carry out work for little or no pay. At the trial the appellant did not give evidence. During a police interview which was played to the jury the appellant denied knowledge of the complainers in charges 7–9 and 14-25. The appellant said he did know the complainers in charges 1, 16, 20-22, 24 and 27-29, however, he denied the allegations of criminality in relation to them. In relation to the appellant’s police interview the trial judge treated what the appellant said as a denial and did not give the jury directions on, what was said to be in the defence speech, exculpatory parts of the interview. Following his conviction the appellant appealed against his conviction. It was submitted that in relation to the parts of the appellant’s police interview where he said he knew the complainers the trial judge erred in not treating that as a mixed statement and the trial judge ought to have directed the jury on that exculpatory evidence contained in the appellant’s police interview. It was submitted that the jury should have been told of the status of the mixed statement and the use the jury could make of it. The submissions made on behalf of the appellant’s co-accused, John Miller, in relation to criticisms of the trial judge’s directions on the definition of servitude and related criticisms were adopted by counsel or the appellant. On behalf of the Crown it was submitted that the appellant’s interview was wholly exculpatory and that an ‘admission’ of knowing complainers did not render the statement mixed and, as such, no specific direction was required by the trial judge. In the event that the statement was considered to be mixed it was submitted by the Crown that the absence of a specific direction did not result in a miscarriage of justice as looking at the charge as a whole the jury would be left in little doubt that if they accepted what the appellant said at interview or if it left them with a reasonable doubt then they should acquit him. The court noted that the statement made by the appellant was made to the police in the course of investigations prior to 25 January 2018 and, as such, section 261ZA of the Criminal Procedure (Scotland) Act 1995, as introduced by section 109 of the Criminal Justice (Scotland) Act 2016, did not apply and the old rules of how to approach statements by an accused continued to apply. In considering whether the statement in the present case was “mixed” the court considered whether a part of it was capable of incriminating the appellant. In relation to the question of whether the appellant by admitting he knew some of the complainers was making a mixed statement the court considered that in the particular circumstances of this case it was not, albeit there may be some cases where such a statement could be considered mixed. The court considered, however, that in relation to charge 28 there was a statement by the appellant of going to York and bringing the complainer back to Scotland, which was considered to be mixed, since it involved accepting participation in the facts libelled, albeit not accepting any criminality. The court considered that in light of the particular circumstances of the case, in particular, the fact that the Crown did not rely upon the contents of the interview and the fact the defence hardly referred to it in the defence speech the court did not consider the omission amounted to a misdirection and the court considered that the trial judge’s directions were adequate. In relation to the ground of appeal relating to criticisms of the trial judge’s directions on the meaning of servitude and related issues the court refused the appeal for the same reasons as given in the John Miller opinion.