APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2014] HCJAC 43
	Lord Eassie Lord Brodie Lady Clark of Calton Appeal No: XC274/13 XC275/13 OPINION OF THE COURT delivered by LORD EASSIE in appeal against conviction by KEVIN PATRICK O'DONNELL First Appellant; and DARREN ROSS Second Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

First Appellant (O'Donnell): M Mackenzie; Drummond Miller LLP

Second Appellant (Ross): S Collins, Solicitor Advocate; Capital Defence

Respondent: Prentice QC (sol ad) AD; Crown Agent

30 May 2014

Introductory

[1] On 4 April 2013 the appellants were convicted after trial before a jury in the sheriff court in Dundee. Both appellants were convicted of charge 1 on the indictment. That charge libelled that on 22 or 23 November 2012 both of them broke into commercial premises in Dundee and stole a number of items including, in particular, a Mercedes C180 motor car and a BMW 325 convertible motor car registered number ND05 DWV. Charge 2 on the indictment originally involved both appellants but as respects the first appellant (O'Donnell) the sheriff upheld a no case to answer submission. The charge libelled a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The second appellant (Ross) was convicted of this charge which alleged that on 23 November 2012 at a jewellers' shop in Perth when acting along with others he did "behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did enter said shop with your head concealed by a hood and face masked while brandishing a weapon, namely a pry bar". Charge 4 on the indictment alleged that on 24 November in certain streets in Dundee the second appellant (Ross) drove a motor car registered number ND05 DWV dangerously in contravention of section 2 of the Road Traffic Act 1988. Charge 5 on the indictment alleged that on 23 November in various, different streets in Dundee the first appellant (O'Donnell) also contravened section 2 of the Road Traffic Act 1988 by driving a Mercedes C180 vehicle (no registration number given) dangerously. The appellants were each convicted of the contravention of section 2 of the 1988 Act. Other charges on the indictment, including charge 3, were not before the jury either by reason of a successful no case to answer submission or their having been withdrawn by the prosecutor.

[2] In summary therefore the first appellant (O'Donnell) was convicted of (a) breaking into the commercial premises and stealing among other things a Mercedes and a BMW car and (b) driving a Mercedes C180 vehicle dangerously - charges 1 and 5. The second appellant was (a) also convicted of breaking into the commercial premises and stealing those two vehicles; (b) convicted of the contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 at the jewellers' shop in Perth; and (c) a charge of dangerous driving in respect of the BMW motor vehicle (charges 1, 2 and 4).

[3] The grounds of appeal on behalf of each appellant, put shortly, are concerned with the terms in which the presiding sheriff charged the jury respecting the evidence in the case. In order to set those criticisms in a context it is appropriate first to summarise briefly the evidence.

The prosecution evidence

[4] The commercial premises in question in charge 1 were a secured, fenced compound shared by a motor repair company and a motor car sales company. Civilian witnesses from those businesses gave evidence that on the morning of 23 November 2012 they discovered that the padlock securing the gate to the compound had been forced open; that a window of a "portacabin" in the compound had been forced open and that keys to a number of cars had been taken from a locked cash box within a locked filing cabinet in the "portacabin". A Mercedes C180 and a BMW 325 convertible were missing from the cars stored in the compound. A further civilian witness gave evidence of having seen two cars being driven out of the premises a little before midnight on 22 November 2012, with a third person following the vehicles on foot.

[5] Later investigation by the police discovered in another BMW car - which remained within the compound - a mask. According to the civilian witnesses the keys for this car, which were found in its ignition key socket, had been among those locked up in the "portacabin"; the electrical battery of the car was "flat" and hence its engine could not be started. Evidence was led from forensic scientists to the effect that there was DNA material on parts of the mask which in its profile provided matching with DNA material taken from the first appellant (Mr O'Donnell). The probabilities of another individual having a similar DNA profile were said to be one billion to one. The forensic scientists acknowledged that the deposition of the DNA material on the mask could have occurred at any time in a span of months prior to the finding of the mask on 23 November 2012.

[6] The next chapter which is pertinent for present purposes is evidence to the effect that CCTV footage indicated the progression at about 0800 hours on 23 November 2012 along Dundee Road in Perth of a Mercedes car and a BMW car. The vehicles entered a car park in the town centre and were parked there. Three young men were seen to emerge from the car park. Some time later, after 0900 hours, three persons entered the jewellery shop in question. Two had hooded clothing and wore scarves partially obscuring their respective faces. The third seemingly did not have such apparel albeit that he had in his sleeve a "green object" said to resemble the handle of a pry bar said to have been stolen from the car sales premises in Dundee. A member of the staff within the jewellers invited the three men to leave, which they did without, it seems, much question or remonstration. There was identification evidence from those within the shop that the person who entered the shop and who was not wearing hooded apparel or a scarf was the second appellant (Ross).

[7] Chronologically, the next chapter of evidence relates to charge 5 (the contravention of section 2 of the Road Traffic Act by the first appellant (O'Donnell)). Putting matters shortly, on the evening of 23 November 2012 a motorist driving northwards on Coupar Angus Road in Dundee was confronted by a car emerging at speed from a side street. The police having been alerted, attempts were made by the police to "box in" the Mercedes at a set of road works. That attempt failed and following a chase along various streets the driver of the Mercedes came to grief in negotiating a right angled junction when the car mounted a kerb and the air bags in the vehicle operated. Nine people emerged from the two door coup�. While the driver of the pursuing police car parked the vehicle the other officer left and seized hold of the first appellant. He deponed that the first appellant was the first person to have left through the offside door of the car. The other police officer gave evidence that he saw "the driver" being detained by his colleagues.

[8] As respects charge 4, two police officers gave evidence respecting the manner in which the vehicle in question was driven on the evening of 24 November 2012 and video footage taken from the police car was played to the jury. For present purposes it is unnecessary to rehearse that in any detail. One of the police officers gave evidence that as the BMW passed at high speed he recognised its driver as "one of the Ross brothers". It was agreed by joint minute that the second appellant's brother was in fact in prison on 24 November 2012. Evidence was also led that, at a later date, the car having been located, scenes of crime personnel found the butt of a smoked cigarette in the ashtray provided principally for passengers in the rear of the vehicle. Later scientific examination of DNA material on the butt disclosed a mixed profile being partly that of the profile of the second appellant and partly that of another unrelated person.

The defence evidence

[9] Two of the nine days of the trial in which evidence was led were devoted to defence evidence. Both of the appellants gave evidence and both adduced other witnesses. Both had lodged special defences.

[10] The first appellant (O'Donnell) lodged a special defence of alibi in respect of charge 1, to the effect that at the time at which the compound was broken into and the cars driven out, which the civilian witness placed at shortly before midnight on 22 November 2012, he was at the house of a Kevin Marney. Mr Marney gave evidence in support of the first appellant's evidence that he was attending the party at Mr Marney's house at that relevant time.

[11] As respects charge 5, the first appellant gave evidence to the effect that on the evening of 23 November 2012 he had been at his sister's birthday party. He left that party and on making his way to his mother's house a blue car drew up and from within it his cousin, Kayleigh Russell, asked him if he wished a lift. He accepted the invitation and sat in the back of the car on the driver's side among the other passengers. When the car came to a halt and the airbags operated, he was not the first person to emerge from the offside door and was not the driver, although he had been seized and detained by the police on that assumption on their part.

[12] The second appellant gave evidence denying any involvement in the charges. Particularly as respects charge 4 (the contravention of section 2 of the Road Traffic Act 1988) the second appellant, in addition to giving notice of a defence of alibi, gave notice incriminating a Barry Dunn. In that respect the sheriff's report to this court respecting the first appellant (O'Donnell) says -in a passage whose equivalent is not to be found in his report respecting the second appellant (Ross):

"Darren Ross gave evidence on his own behalf and gave alibi evidence to the effect that he had been at home with his girlfriend, Fiona Winter, who also gave evidence supporting his account. In his evidence, he described being at the same birthday party as had been referred to by the appellant and of meeting his cousin, Barry Dunn, who was not called to give evidence, at that party. The party was in a flat in a multi-storey at Ancrum, Dundee. Darren Ross spoke of going down to ground level with Barry Dunn and of seeing a black BMW convertible there with two young men in it. He had stood and talk (sic) to Mr Dunn about family matters and then Mr Dunn got into this car and it drove off. He did not know the other occupants. He was a smoker. Mr Dunn was a smoker. He could not remember but postulated the possibility that they might have shared a cigarette and that this BMW, which had been a convertible, was the same vehicle as had later been driven dangerously in another part of the city. He had not been in that vehicle and had never been its driver."

The grounds of appeal

[13] The grounds of appeal may be summarised by saying that the appellants contend that the sheriff misdirected the jury by (i) placing undue emphasis on the evidence supportive of the prosecution case and omitting to give appropriate weight to the defence evidence; and (ii) by imparting to the jury his own views on the credibility or reliability of witnesses, in particular, the credibility or reliability of the appellants.

[14] Particularly in their written notes of argument both of the appellants and the Advocate depute referred to a number of authorities in this particular field. We do not regard it as necessary to list them all. They included such authorities as Simpson v HM Advocate 1952 JC 1; Shepherd v HM Advocate 1996 SCCR 679, particularly at page 685G; Brady v HM Advocate 1986 SCCR 191; McArthur v HM Advocate 1989 SCCR 646; and McDade v HM Advocate 1994 SCCR 627. In the event there was no real dispute between the appellants and the Crown respecting the law. Broadly, and so far as pertinent to the present appeals, the following strands appear to us to emerge from the cases to which we were referred:

(1) Generally there is no obligation on a presiding judge in Scotland to summarise or discuss the evidence[1]. But in so far as the presiding judge does so, he must present matters in a fair and balanced way.

(2) The presiding judge must be careful not to trespass upon the province of the jury by expressing or implying his or her views of the credibility or reliability of a witness or witnesses; and

(3) Where a presiding judge has materially failed to present a balanced view of the evidence, or has materially trespassed on the jury's function, those failings are not readily to be rescued by the judge's deployment of essentially standard directions as to the respective roles of judge or jury or general directions to ignore any impression which the jury might derive from his or her remarks as to the acceptability of the testimony to which the presiding judge has referred.

Discussion

[15] Various passages in the charge delivered by the sheriff were the subject of critical discussion by those appearing for the respective appellants. While the complaints of want of balance and trespass on the province of the jury may in some instances have a degree of overlap, we find it convenient first to approach matters from the latter perspective, namely the conveyance to the jury of the sheriff's own views of aspects of the evidence in the case.

[16] The first passage to which we were referred as an example of the sheriff expressing his own view of the evidence occurs at a relatively early stage in his charge. At page 20 of the transcript the sheriff says:

"Charge 4 concerns Mr Ross only, and is an alleged contravention of Section 2 of the Road Traffic Act 1988. Section 2 is a charge of dangerous driving. Mr Laverty is perfectly correct to say to you as a matter of law an alternative conviction is open to you of a contravention of Section 3, which is driving without due care and attention, or without reasonable consideration for other road users, careless driving as we normally think of it, but I would be thinking that you were a very poor jury, frankly, if you thought it appropriate to convict of an alternative Section 3 in relation to the driving that we've seen on both sets of videos from the police traffic cars. I'm encourage[d], and I'm obliged to all three gentlemen in the well of the court for effectively conceding that that's the situation. The quality of driving is shocking" [Emphasis added]

While it may be that the alternative of a contravention of section 3 of the Road Traffic Act was unrealistic and not actively contended for by either of the solicitors acting for the appellants, it was nonetheless for the jury to make its findings respecting the manner in which the vehicles had been driven and the quality of the driving. However as was pointed out to us, the sheriff expressly, and without qualification, tells the jury that "the quality of the driving is shocking". Of perhaps greater moment, in our view, is the remark which preceded the sheriff's expression of his views, namely that he would regard the members of the jury as "a very poor jury" if they thought it appropriate to convict on the alternative. The remark risks conveying to the jury, or at least some members of it, that their decisions may be the subject of some critical examination by the sheriff which entails a consequent risk of enhancing the effect on the jury of any subsequent expression of view respecting the evidence.

[17] Instances of the sheriff conveying to the jury his views on the evidence led were said to be found a little later in the sheriff's charge to the jury when he adverted to the evidence led by the Crown respecting the incident at the jewellers' shop in Perth. Thus, at page 46, having referred to CCTV footage (from the shop) the sheriff says:

"All we seem to see is a team of three men entering the shop. We can all see that from the CCTV pictures. They come in together, they leave together, so it's reasonable to infer that they are acting together. And some of them appear to be concealing their faces."

While, as we understood her, counsel accepted that on its own this passage may be of no great moment, she pointed out that the sheriff is not only giving his interpretation of the images, for example by saying that some of the individuals appeared to be concealing their faces, but he was effectively steering the jury to a finding of concert rather than leaving it to the jury to decide whether the inference that the men were acting together should be drawn. (The submissions of counsel for the first appellant were adopted by the solicitor advocate for the second appellant).

[18] But perhaps more telling of the sheriff's entry into the province of the jury is his treatment of the evidence given by the staff of the jewellers who, it appears, did not testify to having suffered any of the fear or alarm with which the statutory provision is concerned. At page 47 of the transcript the sheriff instructs the jury:

"But back to Mrs Grant [a member of the staff]. Mrs Grant doesn't know what to think when masked men enter a jeweller's shop. She may have been diverted, to be fair to her, by the arrival of a genuine customer, and possibly didn't fully grasp what was taking place.

Paul Williams, an employee in the jeweller's shop, told you that he was in the back shop and came through to find three young people in the shop, two with scarves over their faces. He thought they were "druggies", his word, not mine, and he wanted them out of the shop. He thought they were there to steal. One of them, he said, was a little more confrontational. That one had a Snap-On tool up his sleeve, similar to Label 4, and he recalled the bright green handle, and he described the other two as wearing, one wearing a dark t-shirt with words like "Jack and Jones" emblazoned on it, and the other had a grey top with luminous green piping. But the confrontational one he identified as Mr Ross.

Unhelpfully for the Crown, the same Mr Williams said that he had not felt shocked or threatened and it ultimately, apparently, required a staff meeting before a decision to call the police was reached. It seems the staff in that jeweller's shop didn't like scruffy people, or Eastern Europeans coming in to their nice shop. It's an interesting illustration of the whole question of prejudice, ladies and gentlemen, which you're not allowed to entertain, but apparently it's entertained if you want to buy anything in this particular jeweller's, so there you have it.

Mr Mitchell, the owner, at least seemed to demonstrate a little more common sense, you might think. He told you that he didn't think the three in the shop were in to collect for the Salvation Army. They were possible there to steal. But, he told you, Paul, the manager, is good at dealing with difficult customers, so he was left to deal with the situation.

Mr Esson, all six feet four of him, had been in the back shop and saw three gentlemen enter the premises with their faces concealed, and he immediately regarded them as suspicious. His summary of the events, as I've noted it, is that they came in, roamed around, were asked to leave, mumbles something and then left. The front man he identified as Darren Ross." [Passages particularly complained of italicised]."

That the sheriff's view of the evidence of the staff in the jeweller's shop was a negative one and that the jury were encouraged to discount it is further underscored in this passage which comes a very little later, at page 50:

"Now, ladies and gentlemen, you've seen the CCTV footage from the shop and it's for you to apply this test in terms of Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 to what you see, for you are the 'reasonable people' envisaged by Part B of the section, not strange people who work in jeweller's shops in Perth. Do you see anyone behaving in a threatening or abusive manner which would cause you to be frightened or alarmed, or would you have been likely to, had you been present, which behaviour was done deliberately to cause fear or alarm, or done recklessly without the person doing it caring whether they caused fear or alarm? There's no evidence of any spoken threat, there's no evidence of any spoken abuse, so if there is cause there for fear and alarm it must be in what you can see on the CCTV footage, or in what the witnesses from the shop told you, or both. I think it's fair to say, at best, that the evidence from the witnesses in the shop was confused." [Passages particularly complained of italicised].

In our view, when read as a whole, these passages convey to the jury the sheriff's view that these witnesses were "strange people" whose testimony should be discounted. Nor was the evidence of the shop personnel "confused". It is, we think, a clear trespass on the jury's province.

[19] A criticism was also made of what the sheriff said in regard to the finding of the mask in the BMW with the flat battery which contained DNA material, a profile of which matched the profile of the DNA material taken from the first appellant. At page 58 of his charge the sheriff says to the jury:

"But you do not know how or when that mask came to be in that car, or how Kevin O'Donnell's DNA comes to be on the mask. There is, however, no suggestion that it was deliberately put there by some other person, so you have to think with care how some material containing his DNA, his genetic profile, came to be on his mask if he had never seen it, as he says. If it's suggested that it must somehow have been transferred there, how on earth did his DNA get transferred to a mask found within the secure compound of this garage, in a car, with keys in the ignition, which must, therefore, have been entered by someone who got the keys from the box from the filing cabinet from the office, all of which had been broken into. You're entitled to consider how this coincidence may have occurred, ladies and gentlemen." [Passage complained of emphasised].

While at one point counsel in her submissions counsel essayed a wider criticism of the whole approach in this passage, ultimately, we understood stress to be placed upon the sheriff's use of the phrase "how on earth". In his report to this court the presiding sheriff indicates some acknowledgement that his use of that phrase might not have been entirely felicitous. It no doubt may convey to the jury a view that transfer of material to the mask is utterly improbable, particularly since the sheriff associates that remark with an apparent notion that transfer would have to occur in the context of the break- in to the secure compound, thereby ignoring the evidence that transfer of DNA material might have occurred many months prior to that event. Taken in isolation we accept that such infelicity as occurs in this passage may not be of sufficient importance as in itself to amount to a miscarriage of justice, but the passage goes with the other passages in which the sheriff may be seen to impress his view upon the jury.

[20] Of much greater significance is the sheriff's treatment of the evidence relating to the identification of the first appellant (O'Donnell) as the driver of the Mercedes car in issue in charge 5. As already indicated, that identification depended on the evidence of the police constable (PC Haig) and to a lesser extent his colleague (PC Murray) that when the Mercedes came to grief and the airbags operated the first appellant was the first, from among the nine in the car, to emerge from the offside door of the vehicle. The sheriff seemingly interpreted the confidence with which these officers gave their evidence as meaning that the only issue for the jury's consideration was one of credibility. He said this to the jury:

"Now, Constable Haig is the passenger in the traffic car, and he and Constable Murray have followed the Mercedes as best they can to the junction of Faraday Street and Telford Road. He's pretty clear that this vehicle isn't going to make the left hand turn and he sees what you saw on the video, the Mercedes striking the kerb hard, slewing round, and then the airbags deploying, and two people, one of whom is patently a fat, young woman falling out of the passenger door. But you also see him, that's Constable Haig, running across the screen, making for the driver's door and, as he put it, 'The driver got out and I put him to the ground.' He wasn't in any doubt about that, nor was he in any doubt that the person that he put to the ground was Kevin O'Donnell. So ladies and gentlemen, either he is lying or Kevin O'Donnell was the driver responsible for the driving that you've seen.

His colleague, PC Murray, the driver of the traffic car, tells you that after the collision with the kerb, the door opens, the car is full of smoke, the airbags have deployed, two of the passengers are out, 'PC Haig gets out while I park. A male gets out and Haig takes a hold of him. I have seen the driver's door being opened and the driver being taken hold of', and he identifies the driver as Kevin O'Donnell, and he's not in any doubt about that. So, again, either he is lying or Kevin O'Donnell was the driver, because there is really no scope for mistake about the evidence of these two police officers." [Emphasis added].

In so presenting this important conflict in the evidence as one of truth or falsehood, we consider that it is clear that the sheriff thereby excluded from the jury's consideration the obvious possibility of mistake or error in the confused situation arising with the Mercedes having been unable to negotiate the corner and the airbags having operated. We were informed that the very experienced solicitor representing the first appellant at the trial cross-examined the police officers on that obvious basis of there being scope for error. Before us, the Advocate depute properly conceded that if the sheriff thus excluded from the jury's consideration the possibility of simple error in testimony that was a material misdirection which it was difficult to say would not amount to a miscarriage of justice. We agree with the soundness of that concession. But we also consider that the premise upon which it was made is satisfied. The sheriff, by his approach and choice of language effectively directed the jury that there was no scope for mistake or error on the part of the police officers in question.

[21] But the criticisms of the sheriff respecting his expression of views on the identification of the first appellant do not really end with that material misdirection. Elsewhere the sheriff makes these remarks respecting the first appellant's testimony to having been a passenger in the rear of the car and seated on his cousin's lap:

"Now, of course, you have to give careful consideration to the position of the defence, and you heard evidence from Kevin O'Donnell and from Mr Marney on his behalf, but, strangely, not from his wee cousin on whose knee he sat in the Mercedes, or from any other occupants of the Mercedes for that matter as to who the driver was, or, at least, that it wasn't him. He gave notice, as he was required to do, both to the Crown and to the court of a defence of alibi in relation to all of the charges he originally faced, except for this Charge 5, the charge of dangerous driving."

In a further passage which we are about to quote the sheriff again refers to the failure of the defence to lead the evidence of the "wee cousin". In that respect it is to be noted that in McDade v HM Advocate at page 631G to 632C the Lord Justice-Clerk (Ross) in delivering the opinion of the court was critical of a trial judge's observation that a witness who might have been called by the defence was not called. While the matter might have been one for comment by the prosecutor at the trial, directing the jury's attention to that as a matter for their consideration was a further example, in that case, of the trial judge having trespassed upon the jury's province as masters of the fact.

[22] But, on this aspect, there is, regrettably, yet more. In his final remarks to the jury, before addressing the more mundane matters of the verdicts open to them, the sheriff concludes his discussion of the evidence in the case with this passage respecting the testimony of the first appellant:

"Lastly, Mr O'Donnell in relation to Charge 5 says he was not the driver of this vehicle when the dangerous driving, which driving he admits was dangerous, occurred. On the contrary, he was in the back seat on his wee cousin's knee. We did not hear from his wee cousin who could have exonerated him, apparently, so it depends on whether you believe him. Was it just an unhappy coincidence that he was out of the Marney flat, missing the birthday party, when someone was driving around Dundee picking up people to a dangerous number in this Mercedes, or was he the driver? Why, if it was patently overcrowded, you're entitled to ask yourselves, did he get into it? Why, if he was going from Charlestown to Lochee, did he end up on the Muirhead to Newtyle road? It's a matter for you, ladies and gentlemen. If you believe him, or the evidence that he's given about this gives rise to any reasonable doubt in your mind, then he must get the benefit of that doubt. If, however, you reject this evidence and find compelling evidence from the Crown however, you reject this evidence and find compelling evidence from the Crown witnesses, then you would be entitled to convict him (inaudible)." [Emphasis added].

In our view the employment of that form of rhetoric, while no doubt appropriate to the prosecutor's speech, inevitably runs the risk of conveying to the jury that the sheriff personally does not place any credence in the evidence which had been given by the first appellant. We were asked to, and did, listen to an audio recording of this particular passage of the sheriff's charge since it was said that the sheriff's vocal performance was material. While it is no doubt true that the sheriff gave additional vocal emphasis to the interrogatives "why" in the passage in question we do not really consider that such enhanced vocal emphasis makes any difference to the otherwise objectionable nature of the way in which the sheriff by ordinary rhetoric apparent on the face of the transcript questioned the credibility of the testimony which the first appellant had given.

[23] Passing from that, our attention was also directed to the manner in which the sheriff dealt with the evidence of the second appellant and in particular his incrimination on charge 4 of Mr Barry Dunn. As already mentioned, a cigarette butt was recovered from the BMW with DNA material which produced a mixed profile, one of the persons contributing to the mix being a person whose DNA profile provided a match with the profile of the second appellant, the other being an "unrelated person".

[24] At page 70 of his charge to the jury the sheriff tells the jury:

"Well, you're entitled to ask yourselves how a cigarette end apparently bearing his DNA got into the ashtray in the back of this BMW. He's given you an explanation, and it's up to you what you make of that.

The Crown, sadly, haven't made any effort to demonstrate the lack of any previous connection between this car and Mr Ross, and the tentative explanation from him and, to be fair to him, it was said tentatively about this mystery may be inconsistent with the result, because Barry Dunn, with whom he says he shared the cigarette, is related to him. So you would be entitled to infer that this is evidence which supports Constable Lee's identification of Mr Ross as at least the occupier of the car."

We observe in passing both that the sheriff makes no attempt to set out the explanation spoken to in his evidence by the second appellant and that while Barry Dunn was described as a "cousin", there was, we understand, no evidence of the genetic link if any and whether the relationship was one relevant in DNA science. Be that as it may, counsel pointed to the use of the adverb "sadly" as being consistent with the impression elsewhere of favouring the Crown. Likewise the reference to the evidence concerning the cigarette end being a "mystery" (when the appellant had in fact given evidence of sharing a cigarette with Mr Barry Dunn immediately before Dunn entered the BMW) is likewise, said counsel, indicative of a negative approach to the defence witnesses' evidence. Though taken in isolation these criticisms of the sheriff's choice of language do not amount to much, we do not consider that the criticisms are wholly without merit. Moreover it is to be observed that they occur in a sentence which the sheriff himself accepts is a confusing sentence.

[25] However, in our view, of greater concern is what the sheriff says later, at page 81ff of his charge respecting the incrimination of Mr Dunn. The passage reads:

"The last thing I need to say to you special to this case is about the special defence of incrimination of Barry Dunn. While I have some sympathy with defence solicitors because of the daft rules under which they now have to operate in relation to having to submit defence statements at a very early stage of proceedings when they might not have had an opportunity to fully investigate matters, I do have a concern about the special defence in this case because, in effect, Mr Ross told you in his evidence that if the crimes he faces were committed, or, no, he didn't tell you in his evidence, that's not fair, Mr Ross, through this notice, intimates to the court and to the Crown that if the crimes he faces were committed at all, then they were committed by Barry Dunn when, in fact, the most he can say in his evidence about that is that he saw Barry Dunn get into a black BMW. Now, he could have restricted his notice of incrimination to that extent or, more aptly, not given any such notice at all because it really isn't a notice of incrimination, or there really isn't evidence of incrimination.

However, it is always the function of the Crown to prove the case against an accused person, including the contents of a notice of incrimination. In effect, they have to disprove any special defence led and if there's no substance to the special defence and no prejudice to the position of the Crown, then the collapse of the special defence is simply one less thing for the Crown to have to deal with." [Emphasis added].

While it may have been intended as a general observation on recent changes in criminal procedure, as was submitted to us, the second sentence in the passage quoted risks conveying to the jury that because of the "daft rules" the second appellant's solicitors have put forward an unfounded line of defence and the fact that that has happened causes the sheriff concern. Similarly, to refer to the defence of incrimination as having "collapsed" is to express a view about the evidence which the appellant gave respecting the actions of Mr Barry Dunn. That apart, the passage appears to us to contain a number of errors. First, of course, a special defence of incrimination does not require to be lodged at an early stage. Secondly neither counsel, nor the Advocate depute, were able to explain the sheriff's concept of a "restricted" notice of incrimination. Lodging the special defence of incrimination was a proper precaution on the part of the second appellant's solicitors to avoid any possible objection to the evidence which the appellant was likely to give respecting Mr Dunn having entered the BMW. In these circumstances we think there is force in the submission made to us that the sheriff's treatment of the defence of incrimination is perhaps a variant on the general criticism of impressing or conveying his view of the evidence to the jury.

[26] The other principal criticism of the sheriff's charge, namely a failure to provide a properly balanced account of the evidence, can, we think, be dealt with more briefly. The contention advanced in argument was, in essence, that -while the Crown case is rehearsed at length, and going well beyond anything needed to illustrate or demonstrate a point of law - the defence evidence receives scant attention except in so far as the sheriff directly or inferentially casts doubt upon it. We regret to have to say that on our reading of the charge we find some force in that evaluation of matters. In contrast to the extensive exposition of the Crown evidence, the sheriff's references to the defence evidence are at best perfunctory. By way of example, the evidence given by the second appellant and his partner Ms Winter which is briefly summarised in the sheriff's report respecting the first appellant is not rehearsed to any extent in the sheriff's charge. Indeed it is barely mentioned. Respecting the defence evidence on Mr Dunn and the sharing of the cigarette, all that the sheriff says:

"He has given you an explanation, and it's up to you what you make of that."

No attempt is made to remind the jury of that explanation in a way which matches the respects in which the jury are reminded of important elements from the Crown. Indeed, one searches in vain for any coherent exposition in the sheriff's charge of the evidence given by the appellants and adduced on their behalf.

[27] We naturally accept that where, as in the present case, the presiding judge enters into a discussion of the evidence, the achieving of an appropriate balance between focus on the prosecution evidence and focus on the defence evidence is in itself a matter of judgment and that an appellate court must recognise that there is no requirement to achieve a precise balance and that there is a generous element of latitude residing in the presiding judge. We also recognise that judging whether or not an appropriate balance has been achieved may normally be a matter of general impression reading the charge as a whole. While in the preceding paragraph of this opinion we have given illustrations of what appears to be a lack of balance we stress that we have nonetheless looked at the charge as a whole. We regret to have to say that, in our view, the presiding sheriff did not secure a fair and proper balance in his treatment of the evidence. As we have already expressed at greater length, he also impressed his views on the evidence on the jury. Quantum valeat, the respective first sift judges, both of whom granted leave, appear also to have formed such an impression of the terms of the sheriff's charge to the jury. The oft repeated dicta that it is necessary to read the charge as a whole also have corresponding application in a case such as this in which, while some of the individual criticisms of the sheriff's charge might be said not to be productive of the miscarriage of justice, we must have regard to the accumulation of those criticisms. We have ultimately come to the conclusion that the accumulation of those criticisms which we consider to have force is such that we cannot say that no miscarriage of justice has occurred.

[28] For completeness, we would add that there was some discussion as to whether the deficiencies or criticisms in question might be related to particular charges, with the consequence that the conviction on some charges might stand while the conviction on others would fall to be quashed. Unsurprisingly, those representing the appellants did not contend for such a piecemeal approach. For his part, the Advocate depute, accepted, in our view wholly properly, that one could not begin to dissect the various criticisms and relate them to particular charges. The convictions either stood or fell as a unity. For the reasons which we have already given, we consider that the convictions fall.

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