Jury manual is only guidance: appeal court
The jury manual produced by the Judicial Institute for Scotland to assist judges in their charges to juries, does not remove a judge's duty to give directions tailored to the circumstances of the case, an appeal judge has stated.
Lord Malcolm in the criminal appeal court issued the reminder as the court allowed an appeal by Peter McGartland on five out of six charges on which he had been convicted, relating to being concerned in supplying drugs found in a parcel addressed to an inmate in Kilmarnock Prison.
The parcel had contained 29 packets of drugs, hidden in another item; the accused's DNA had been found on one packet. After retiring, the jury had requested further directions on considering the accused's "knowledge that he was involved in a drug supplying operation", and whether they needed to satisfy themselves beyond reasonable doubt that he was involved in the supply of each individual package of drugs, or whether the belief that he was involved in the supply of one of the drugs was sufficient to cover the charges for all.
Other than indicating that the evidence was much the same in relation to each charge, the sheriff had said she could not go beyond directing the jury to consider each charge one by one and decide what evidence they accepted.
Lord Eassie said this was inadequate and did not really answer the jury's questions. "What the questions required were supplementary directions specifically tailored to the issue raised by those questions", he continued. "I consider that the jury should have been clearly directed to the effect that if a person had knowledge that he was engaged in the supply of one drug which subsequently came to be associated in a further supply along with other, different drugs, he would not be concerned in the supplying of those other drugs unless he had knowledge, or reason to believe, that the drugs which he had supplied were to be included along with those other drugs in the larger supply."
Agreeing, Lord Malcolm noted that the sheriff had stated that she “followed closely the guidance provided to the judiciary in such matters”, a reference to the jury manual. He added: "While improvisation on the criminal standard of proof and the burden on the Crown may well provoke an appeal, in general the jury manual does not remove the trial judge’s duty to tailor the charge to the specific circumstances of the case, all with a view to giving proper and clear directions to the jury. Simply to repeat the terms of the manual is no guarantee against a misdirection appeal.
"In his foreword to an earlier edition of the manual, the then Lord President, Lord Hamilton, emphasised that every charge is unique. 'Accordingly the sole responsibility for stating the law and formulating accurately and comprehensively the appropriate directions to deliver must lie with the judge or sheriff presiding over the case.' The manual is no more than a first port of call, providing a useful, but non‑authoritative, checklist of points to bear in mind. Juries are entitled to a bespoke charge adapted to the evidence and to the particular issues arising in the trial", Lord Malcolm said.
The judges, with whom Lord Wheatley agreed, refused a separate ground of appeal directed to the packet on which the accused's DNA had been found.