IN APPEAL BY
LUKE MUIR MITCHELL
against
HER MAJESTY'S ADVOCATE
SUMMARY
16th
May 2008
Today at the Criminal
Appeal Court in Edinburgh the appeal
by Luke Muir Mitchell against his conviction for the murder of Jodi Jones was
refused. The Lord Justice General, Lord
Hamilton, sitting with Lord Osborne and Lord Kingarth delivered the
following summary of their decision in Court.
"On 30 June
2003 Jodi
Jones, then aged 14, was murdered in woodland near Dalkeith. After trial in the High Court at Edinburgh
the appellant, Luke Muir Mitchell, was convicted of that murder. At the time of his trial the appellant was
16 years of age; at the time of the
murder he was just under 15.
The
appellant sought leave to appeal against conviction on various grounds. He was granted leave on six of them; in the course of the hearing of his appeal he
was allowed to introduce a further ground.
The Opinion of the Court upon his appeal - to which each of its members
has contributed substantially - is now available. It is of substantial length. It should be referred to for its terms. The summary which follows is not intended to
describe the whole reasons which have led to the court's conclusions.
Under
ground of appeal 1 a challenge was mounted to the decision made by the
trial judge in advance of the trial to reject an application made on behalf of
the appellant that his trial be heard in a court outwith the Edinburgh area. A number of circumstances (mainly media
attention) were relied on in support of the proposition that, while the
appellant could, notwithstanding that attention, obtain a fair trial, such a
trial could not be obtained in a place so near as Edinburgh to the scene of the
critical events. It was acknowledged,
however, that a decision as to whether or not to order that the trial be heard
elsewhere was one primarily for the discretion of the trial judge in the
particular circumstances of the case and that no miscarriage of justice could
in that respect be said to have occurred unless this court was satisfied that
the decision made was one which no judge acting reasonably could have
reached. For the reasons given in detail
in the Opinion of the Court (which include the steps taken by the judge in the
course of the trial to avoid the jury being prejudiced against the appellant as
a result of media attention) we are not satisfied that there was any
miscarriage of justice in that regard.
This ground of appeal is accordingly rejected.
The
appellant next contended that there was led by the Crown before the trial court
insufficient evidence in law upon which he could be convicted. Associated with that ground was the
additional ground, namely that, having regard to the totality of the evidence,
the verdict returned by the jury was a verdict which no reasonable jury
properly directed could have returned.
The case
against the appellant was wholly circumstantial. The principles to be applied in such a case
are clear: individual items of evidence
need not be incriminatory in themselves;
they should be looked at not in isolation, but in the context of the
whole evidence; if capable of more than
one interpretation, it is for the jury to decide what interpretation to
adopt; a jury is entitled to reject
evidence inconsistent with guilt precisely because it is inconsistent with
incriminatory evidence which it accepts;
guilt can be established on the basis of circumstantial evidence coming
from at least two independent sources;
and for there to be a case to answer the whole circumstances taken
together must be capable of supporting an inference of guilt. For the purpose of testing sufficiency, the
evidence relied on by the Crown must be taken at its highest, that is, it is to
be treated for this purpose as credible and reliable and is to be interpreted
in the way most favourable to the Crown.
Applying
these principles the court is satisfied that there was sufficient evidence in
law upon which a verdict of guilty could be returned. An important element in the Crown case was
the evidence of Mrs Andrina Bryson who testified to seeing a male and a
female at the Easthouses end of the Roan's Dyke Path at about 1650-55 on 30 June
2003. Two other female witnesses identified the
appellant as the young man they had seen at the Newbattle end of the Path about
50 minutes later. Taken at its
highest Mrs Bryson's evidence amounted to an identification of the
appellant as that male and of Jodi Jones as possibly that female. Taken along with other evidence (as we refer
to later) it would have been open to the jury to conclude that it was indeed
her. If that evidence was accepted, it
not only destroyed the appellant's alibi (that he was in his home during that
period) but also put him in the company of Jodi Jones at a point of time which
on other evidence may well have been shortly before she met her death. Further, it rendered the place of her death
on the general route which the appellant would have had to take to proceed from
one locality where he was sighted to the other.
The absence of any signs of struggle on the path side of the wall which
ran along the northern side of the Roan's Dyke Path suggests that, if Jodi
Jones went through the break in the wall close to where she met her death with
someone, she did so with someone she knew - such as the appellant, whom she had
gone expressly to meet that evening. The
manner of her death was also significant, as was the unexplained disappearance
of a knife which the appellant was in the habit of carrying and of the jacket
which he may have been wearing on that day.
The appellant's conduct later that evening was also significant - not
least in the apparent ease with which he was able to identify the location of
the body in relatively dense woodland on the far side of the wall. Before us the Crown also relied on a number
of other circumstances which were also capable of playing a part in building up
the case against the appellant. It is
unnecessary to list these in this summary.
When, however, they are taken into account with the circumstances to
which we have referred, there was sufficient evidence in law, in our opinion,
to allow the jury, if they accepted it, to draw the inference of guilt.
As we have
said, the appellant also contended that, even if the evidence against him was
sufficient in law, the verdict to which the jury came was one which no
reasonable jury, properly directed, could have returned. Discussion of this ground of appeal involves
an evaluation of the quality of some of the evidence led. Of particular importance in this exercise
is evaluation of the identification
evidence given by Mrs Bryson. The
quality of that evidence was criticised as to its reliability by counsel for
the appellant. In particular, the method
by which she came to make her identification - by picking out a photograph of
the appellant from a range of photographs of young males - was attacked both as
a matter of principle and as to the particular photographs used. The fact that the police had, by failing to
hold an identification parade, not followed the relevant guidelines was founded
on as a significant irregularity. Having
considered Mr Bryson's identification evidence in detail, we have come to
the view that, while its reliability was open to challenge, there were elements
in it which could reasonably provide the basis for a valid identification of
the appellant as the male she had seen and at least a possible identification
of Jodi Jones as the female. Moreover,
Mrs Bryson's evidence on this matter did not stand alone. It fitted with evidence that Jodi had left
home to meet the appellant with a view to their spending time together in the
Easthouses area. The place where
Mrs Bryson saw the male and the female was a regular rendezvous point for
the appellant and Jodi and one where they were likely to meet that evening if
it was their intention to spend time together as Jodi anticipated. The timing of Mrs Bryson's sightings
also fitted with it being Jodi and the appellant whom she saw. If the jury accepted these identifications -
as, having regard to the whole evidence bearing on them, they might reasonably
do - there was ample evidence otherwise to allow them reasonably to conclude
that Jodi's killer was the appellant. We
refer, in particular, to the evidential material discussed in the context of
the argument on sufficiency of evidence.
The jury were moreover given by the trial judge clear and comprehensive
directions about how they should approach evidence of visual identification -
with particular directions being given in relation to Mrs Bryson's
evidence. In all these circumstances the
ground of appeal based on the alleged unreasonableness of the verdict must be
rejected.
The
appellant also challenged the identification evidence (of Mrs Bryson and
of others) as "unfair". But that
evidence having been properly admitted (as to which there was no challenge in
the appeal), any question of unfairness can go only to the reliability or
weight of the evidence in question. That
was a matter for the jury. If, as we
have already held, the verdict was one to which the jury, properly directed,
could have come, this ground of appeal must also be rejected.
A ground of
appeal was also advanced challenging the decision of the trial judge to allow
evidence to be led about certain bottles of urine. But it was acknowledged that this ground
could not on its own justify the conclusion that there had been a miscarriage
of justice. Moreover, the trial judge
gave clear directions to the jury that they should not judge the appellant on
the basis of his personal conduct or habits or lifestyle, except to the extent
that these might be relevant to the issues of fact which they had to
decide. We have come to the view that,
in the particular circumstances before him, the trial judge did not err in
allowing the evidence in question to be led and that there is no merit in this
ground of appeal.
The
appellant was on 14 August 2003 interviewed under caution by police
officers. In the course of the trial the
Crown sought to lead before the jury evidence of some but only a few of the
questions and answers put and given in the course of that interview. Objection was taken on behalf of the
appellant to that course of action but the objection was repelled by the trial
judge. The challenge was renewed on
appeal, it being maintained that the interview was conducted in circumstances
which were wholly and manifestly unfair to the appellant. Having considered the transcript of the
interview, we are driven to the conclusion that some of the questions put by
the interviewing police officer can only be described as outrageous. At times the nature of the questioning was
such that the questioner did not seem to be seriously interested in a response
from the appellant but rather endeavouring to break him down into giving some
hoped-for confession by his overbearing and hostile interrogation. Such conduct, particularly where the
interviewee was a 15 year old youth, can only be deplored. However, the issue for determination in this
appeal is whether the answers to the particular questions, which alone the
Crown sought to introduce in evidence, were elicited in such circumstances that
the trial judge was bound to hold that they were inadmissible. Having considered the response of the
appellant throughout and in detail each of the passages in dispute, we are
satisfied that the trial judge was entitled to take the course which he
did. Moreover, having regard to the
context of the questions and responses, many of which related to matters
already otherwise properly in evidence, we are not persuaded that on this
ground a miscarriage of justice can be said to have resulted.
The
appellant also contended that certain evidence given by DC Michelle Lindsay
should not have been admitted. This
constable had been appointed at an early stage in the police inquiry as a
family liaison officer to the appellant's family. While at the appellant's home on 2 July
2003 she
had a conversation with him which resulted in him giving her certain
information, including providing a sketch plan.
The trial judge, in the face of an objection on behalf of the appellant
and having heard evidence as to the circumstances surrounding the conversation
in question, allowed DC Lindsay's evidence to proceed. Before us it was not contended that the trial
judge was not entitled to take in the circumstances the course which he
did. Nor was it suggested that any
unfairness in this matter - looked at alone - could have been such that a
miscarriage of justice had resulted.
Even if the term "family liaison officer" was, having regard to the role
of the officer in relation to the appellant's family, potentially misleading,
there was no evidence that the appellant was in any way in fact misled by the
officer's enquiries of him or in the drawing of the sketch. Nor could the information provided be
regarded, given the other evidence led at the trial, as being of particular
significance by itself. This ground of
appeal must accordingly be rejected.
By his
final numbered ground of appeal the appellant sought to challenge decisions by
the trial judge to permit the Advocate depute, in the face of objection on
behalf of the appellant, (a) to examine the appellant's mother Corinne
Mitchell, and (b) thereafter to lead certain evidence - all in relation to
events on 7 October 2003 when the appellant, accompanied by his mother,
obtained a tattoo at certain premises in Edinburgh. Mrs Mitchell was led as a Crown
witness. She was known to be likely to
give evidence in support of the appellant's defence of alibi; and in the event did so. It was in the Crown's interest to discredit
her testimony to that effect. Prior to
adducing her, the Crown had not disclosed to the defence information about
events at the tattoo parlour which had come to its notice in the course of the
trial. Whether or not in the
circumstances the Crown had an obligation to disclose the information earlier
than it did (as to which we express no concluded opinion), we are not persuaded
that the absence of earlier notice led to any substantial prejudice to the
appellant; it could thus not be said to
have led to a miscarriage of justice.
The second ground of objection related to the implications which
evidence in relation to the events at the tattoo parlour might have for the
character of the appellant as presented to the jury. While we are unable to agree with the trial
judge that no inference of bad character could possibly be drawn from that
evidence, we do not, for reasons which we explain, consider that it can be said
that any miscarriage of justice resulted from the leading of the evidence in
question. This ground of appeal must
accordingly also be rejected.
Counsel
submitted finally that, even if no particular ground of appeal on its own
warranted quashing of the conviction, the matters complained of when taken
together were such as should lead to that result. Anyone looking at the evidence in totality,
he said, would "be left with a sense of unease". We have already addressed and rejected the
ground of appeal based on the proposition that no reasonable jury, having
regard to the totality of the evidence, could have returned a guilty
verdict. As to other matters of
complaint, while there may be cases where the combined effect of a series of
unsatisfactory features in a trial may result in a miscarriage of justice, we
are not persuaded that this is such a case.
In the
foregoing circumstances the appellant's appeal against conviction, in so far as
based on the existing grounds of appeal, must be refused. In the course of the hearing of the appeal
Mr Findlay moved the court to allow to be argued a proposed additional
ground of appeal (1A of the appeal process).
The Crown having opposed such allowance, the court on 22 February
2008
continued consideration of the appellant's motion to a date to be afterwards
fixed, under directions that any further proposed evidence in support of that
ground be lodged within four weeks from that date. If the appellant is to insist on his motion,
a date will now require to be fixed for its consideration. The appellant also has an appeal against
sentence yet to be considered."
NOTE
This
summary is provided to assist in understanding the Court's decision. It does
not form part of the reasons for that decision. The full opinion of the Court
is the only authoritative document.
|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General
Lord Osborne
Lord Kingarth
|
[2008] HCJAC28
Appeal No: XC90/05
OPINION OF THE COURT
delivered by THE LORD
JUSTICE GENERAL
in
APPEAL AGAINST CONVICTION
and SENTENCE
by
LUKE MUIR MITCHELL
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: Findlay, Q.C., Farquharson, Young; Beaumont & Co., Edinburgh
Alt: Beckett, Q.C.,
Balfour; Crown Agent
16 May 2008
[1] This is the
Opinion of the Court to which all its members have contributed substantially.
Introduction
[2] On 21 January 2005, after a trial
in the High Court at Edinburgh, the appellant was convicted of the murder of
Jodi Jones on 30 June 2003, near Dalkeith in Midlothian.
The deceased was 14 years of age.
The appellant was just under 15 years of age at the time of the murder,
and 16 at the time of his conviction.
The appellant was on 11 February 2005 sentenced to detention without limit
of time, a punishment part of 20 years being imposed. He has appealed against both conviction and
sentence.
[3] At the outset
of this appeal, parties indicated their agreement that the report by the trial
judge, which provided detailed information about the background circumstances
and the evidence led at the trial, was of particular assistance in our
consideration of the case. The following
summary of the procedural history and evidence is taken mainly from that
report. Where the appellant disputes
matters of fact alleged to support the Crown case, this has been highlighted in
the summary of the submissions made on his behalf before us.
Procedural history
[4] At a preliminary diet on 6 October
2004,
counsel for the appellant, Mr Findlay, Q.C., made a motion that the
location of the trial be moved outwith the local area of the murder, which it
was said included Edinburgh.
This was due to the high level of publicity given to the circumstances
of the murder, and to the interest which the police had shown in the appellant
during their investigations. That motion
was refused. On 1 November
2004, a
motion for the separation of charges was also refused. The appellant faced charges involving the
possession of knives and the supply of controlled drugs as well as the murder
charge.
[5] The
appellant's trial first called on 11 November
2004, when
the unempanelled jurors were directed that it would be inappropriate for them
to serve should they know any party to the case, or have any personal
connection with its circumstances.
Thereafter, a jury was empanelled and evidence was led. On 16 November
2004 it was
discovered that the then girlfriend of the appellant had a connection with a
juror: she used to be the girlfriend of that juror's son, who himself had
attended the same school as the appellant and the deceased. The trial was deserted pro loco et tempore. On 18 November
2004 new
jurors were again admonished by the trial judge prior to being empanelled. The
trial thereafter took place over a period of 42 days, being the longest in
Scottish legal history against a single accused charged with murder.
Background
Relationship between the deceased and
the appellant
[6] The appellant and the deceased both
attended St David's High School in Dalkeith. They began a relationship in
around March 2003. From an early stage that relationship involved sexual
intercourse. By June 2003 they were
seeing each other most week nights, and at the weekend.
[7] The deceased
lived in the Easthouses area of Dalkeith with her mother, Judith Jones, her
sister, Janine Jones, and her mother's partner, Alan Ovens. There was some evidence that she took
cannabis, but her family generally regarded her as sensible and reliable. She had an interest in music, particularly
the rock band Nirvana. She liked to wear dark baggy clothing. The evidence suggested that the appellant was
the deceased's first real boyfriend. The appellant lived with his mother,
Corinne Mitchell, and his brother, Shane Mitchell, in the Newbattle area, to
the west of Easthouses. He had a similar
taste in music and clothing. He
regularly used cannabis. There was evidence that the appellant was also sexually
involved with another 15 year old girl, Kimberley Thomson.
Locus
[8] Easthouses
and Newbattle are linked by the Roan's Dyke Path, which provides a shortcut
between these settlements. The deceased lived around 250 metres from the
east end of the path, and the appellant about 600 metres from the west
end. The path was about 900 metres long. Evidence suggested that it would take
a fit person about 15 minutes to walk from the appellant's house to the
east end of the path. The appellant
would sometimes collect the deceased at her house. On other occasions they
would meet at the east end of the path.
The deceased had been told by her mother that she was not allowed to
walk along the path on her own.
[9] For much of
its length the path is bordered on its north side by a high stone wall, which
has fallen into disrepair. The wall and
the path run westward from a junction with other paths. To the north of the
wall is an area of wooded ground bounded on its north by a park and a golf course. A number of gaps in the wall provide access
to the wooded area. Of some importance
as regards this appeal are two such gaps. The first is found next to some
graffiti ("the Gino point") as one makes one's way along the path westwards from
Easthouses. The second gap forms a "V"
shape in the wall ("the V point") and is found further along the path, about
two-thirds of the distance from its east end.
There is an overhang of trees and a number of bushes at this point,
which form a kind of canopy overhanging the path.
Events prior to the murder
[10] The deceased's
freedom to go out of an evening was restricted by her mother in the weeks prior
to her death, but she was released from that restriction on the afternoon of
the murder. She arrived home at around
1605 hours. At 1635 she used her
mother's mobile phone to send a text message to the appellant. The appellant responded at 1636. A further
text was sent by the deceased to him at 1638.
The terms of these text messages were not preserved. The deceased left her house at about 1650,
informing her mother that she was going to meet the appellant and would be
"mucking about up here". At 1654 a call was made from the appellant's mobile telephone
to the speaking clock. Between about
1705 and 1720 Leonard Kelly was cycling along the path from the west to the
east end, and heard a noise, which he described as "a strangling sort of sound,
a human thing", coming from the far side of the wall. John Ferris and Gordon Dickie rode a moped
along the path at about the same time. They did not hear anything of the sort
described by Kelly. They did not see
him, nor he them.
The discovery of the deceased's body
[11] The appellant telephoned
the deceased's house at 1732, but received no reply. At 1740 he called again, and spoke to Alan
Ovens, asking if the deceased was in. He
was informed that she had left to meet him.
He replied, "OK, cool". Ovens
informed Judith Jones about this call.
The deceased was due to return home by 2200, but did not. At 2241 Judith Jones sent a text to the
appellant's mobile phone, indicating that the deceased was again grounded. The appellant then telephoned Mrs Jones,
informing her that he had not seen the deceased. At 2300 a search party,
consisting of the deceased's grandmother, Alice Walker, Janine Jones and her
boyfriend, Steven Kelly, left the deceased's house and began walking along the
path from the Easthouses end heading west.
The appellant, accompanied by his dog, walked from the west end of the
path heading in the opposite direction.
He met the rest of the search party near the east end of the path. Thereafter all the members of the party
headed west along the path.
[12] In
circumstances more fully described below the deceased's body was found in the
wooded area behind the wall bordering the path, about 13.6 metres west of
the "V" point. Access was gained to the
wooded area via the "V" point. There were
foliage, overhanging branches and a tree stump, which obscured the view
westwards on the north side of the wall at that point. To obtain a view westwards along the inside
of the wall it was necessary to walk some distance northwards beyond this tree
stump. Once beyond the stump, the
presence of other vegetation, including a large tree, again restricted the view
westward along that side of the wall. Only
from about that point could one see the feet of the deceased, which were lying
closer to the wall than her head.
[13] The deceased's
body was found naked apart from some socks on the front part of her feet. Other items of clothing were strewn around
the area. Her trousers had been used to
tie her hands behind her back. There was
no evidence of recent sexual abuse. There was no sign of a struggle except in the
area around the body. She had a number
of injuries, including cuts to the throat, the right cheek, the left breast,
numerous cuts to the stomach and cuts round both eyes. Some of these injuries appeared to have been
inflicted post-mortem. Defensive
injuries suggested that the deceased had struggled with her assailant. The cut
to the neck had severed the deceased's windpipe and jugular vein, as well as
the carotid artery on the left side.
This would have caused death within a couple of minutes. According to the pathologist, Professor
Anthony Busuttil, the implement which caused the injuries to the throat was a
stout, sharp-pointed, bladed weapon. Professor Busuttil gave evidence that a
reddish hair bobble, or "scrunch", was situated at the back of the deceased's
head, but was not easily visible among her hair which was largely uncontained
by it.
Outline of the Crown
case at trial
[14] In his address to the jury the Advocate depute
relied on a number of circumstantial adminicles and highlighted three "key"
chapters of evidence.
[15] The first key
concerned the discovery of the deceased's body.
Of the search party it was the appellant who first went through the "V"
point. The Crown asked the jury to
accept the evidence of the other members of the search party to the effect that
he had gone straight to the "V" as the party moved down the path, that he did
not progress beyond this point before returning to it and that he knew to look
left and to explore further in that direction as soon as he climbed through the
gap. The inference was that he already knew where the body was located. This explanation was to be contrasted with
the appellant's account at police interview when he had stated that, having
gone some distance past the "V", he had been alerted by the dog to something
behind the wall at that point, had retraced his steps and then climbed through
the gap.
[16] The second key
was the evidence of the witness Andrina Bryson.
She had seen a male and a female standing near the Easthouses end of the
path at around 1650 or 1655. The female
was standing close to the beginning of the path on the pavement looking towards
the male, who was on the path. The
witness identified the appellant from a book of photographs as being the male
whom she had seen. She noted him as
wearing a khaki green, hip-length, fishing-style jacket. Its collar was up, and
it had a pocket which was bulging. She was unable to identify the female, but
gave a description of someone with black, shoulder length hair, which seemed to
be contained like a ponytail, wearing a navy blue jumper with a hood and a pair
of lighter trousers, which she took to be a pair of jeans. The Crown submitted that, if she had left the
house and proceeded directly to the path, the deceased would have been near the
Easthouses end of the path at the time of this sighting, and asked the jury to
accept that this was a sighting of the appellant and the deceased together.
[17] Thereafter the
Crown relied on a variety of other circumstantial adminicles to implicate the
appellant.
[18] Lorraine
Fleming and Rosemary Walsh identified the appellant as someone whom they had
seen at around 1740 to 1745 on the evening of the murder at a gate between the
west end of the path and the appellant's house, Miss Fleming suggesting that it
appeared that he had been "up to no good".
[19] There was
evidence that the appellant had owned and worn a parka-style jacket in the
months prior to the murder, that he was wearing such a jacket early in the
evening of the deceased's murder and that no such jacket was found when the
appellant's home was searched on 4 July 2003. The Crown sought to link this with evidence
that a log burner in the back garden of the appellant's home was used on
30 June at around 1830 - 1930 and later, at around 2200, and with evidence
of an unusual smell emanating from it.
[20] The appellant
had an interest in knives, having been seen, in particular, with a 4 inch
lock-knife, contained in a pouch (a "skunting" knife), in the months prior to
the murder (a sample knife was lodged as a production). That knife and pouch
were not found during the police search of the appellant's house on 4 July
2003. The appellant was seen returning home from
the area of Newbattle Road at around 2200 on the night of the
murder. The suggestion was made that he
could have disposed of the knife at that time.
Another knife and pouch were purchased for him in December 2003 by his
mother, Corinne Mitchell. During a
search of the appellant's home on 14 April 2004, the pouch from the knife, but not
the knife itself, was recovered. A
number of inscriptions had been made on the pouch: the numbers "666"; an inscription which read "JJ 1989 - 2003", these
being the years of the deceased's birth and death; and the words "The finest day I ever had was
when tomorrow never came", a quote from the lead singer of Nirvana.
[21] Two days after
the murder the appellant purchased, and subsequently viewed, a Marilyn Manson
DVD, "The Golden Age of the Grotesque", which included images of apparently naked
women tied together and subjected to a form of abduction. Manson had an
exhibition of the same name publicised on his website, which included images
depicting the death of the actress Elizabeth Short, also known as "The Black
Dahlia", who was mutilated and murdered in Los Angeles in 1947. Professor Busuttil gave
evidence that, while the circumstances of death were not identical, there was
some similarity between the location and type of injury inflicted upon the
deceased, and those inflicted upon the actress Elizabeth Short. There was no evidence that the appellant had
accessed this website.
[22] Evidence was
also led about generally unusual behaviour by the appellant. There was some
evidence that he had an interest in Satanism, which was expressed in essays
which he wrote and in graffiti which appeared on his school books.
[23] Another
circumstance relied on by the Crown was a comment made by the appellant to the
witness David High on the evening of 30 June to the effect that the deceased
would not be coming out on that evening.
This comment was made after the appellant had spoken to Alan Ovens and
been informed that the deceased had left to meet him. The Crown invited the inference that the
appellant knew the deceased was already dead.
[24] The Crown led
evidence to undermine the credibility of Corinne Mitchell. In particular, evidence was led that she was
present when the appellant obtained a tattoo in October 2003, and that she had
confirmed his age as being over 18. This
tattoo depicted a skull with flames coming from it. Mrs Mitchell had stated to members of staff
- "that's really him". The Crown's
position was that this evidence demonstrated an unhealthy relationship between
the appellant and his mother, to the point where she was indulging
inappropriate behaviour on his part, and undermined her evidence in support of
his alibi. The witness denied several of these allegations. Evidence from
members from staff at the tattoo parlour, as well as expert fingerprint
evidence of a consent form signed in the name of an acquaintance of Mrs Mitchell
with the appellant's fingerprints upon it, was led. This evidence was subject
to a defence objection. It was admitted but the jury was directed that it was
only relevant to Mrs Mitchell's credibility.
[25] The Crown also
referred to the appellant's police statements at interview. In particular, in his closing submissions, the
Advocate depute referred, at length, to excerpts from an interview on 14 August
2003. It was suggested that the appellant came
across as calculating, clever and dishonest.
Reference was made to contradictory statements concerning the failure to
raise the alarm when the deceased failed to meet the appellant; to lies
regarding his use of cannabis and the amount of contact he had had with
Kimberley Thomson; and to outbursts which demonstrated the appellant's temper
and arrogance. It was also suggested
that the appellant's claim that no time had been fixed for meeting with the
deceased and his description of his movements on the evening of the murder were
incredible and that his assertion that he thought that the deceased had not
turned up perhaps because she had been grounded did not make sense, given his
prior conversation with Alan Ovens.
[26] The third key
on which the Crown relied was the evidence of Shane Mitchell, the appellant's
brother. While not unequivocal, his
evidence suggested that the appellant was not at home at the times asserted in
the alibi and contradicted the appellant's position in police interviews.
Defence case
[27] The appellant
did not give evidence. His position was
outlined in a number of statements which he gave to police officers, both as a
witness and subsequently under caution as a suspect in the case. His position throughout these statements was
that he had been at home during the period in which the Crown case suggested the
deceased was murdered. He saw the
deceased at lunchtime on the day of the murder.
She had taken the school bus home after school and he had walked. He had not seen her alive after that
point. He had returned home at around
1600 or 1605 and the deceased had texted him at 1620, asking if he was coming
out. He had replied that he would do so later on, as he had to make
dinner. Arrangements were made for the
deceased to come down to the Newbattle area but no time was arranged for the
meeting.
[28] The last text
was sent at about 1640. The appellant's
position was that, thereafter, he had listened to music while cooking dinner.
His mother arrived home at 1715. The
witness Shane Mitchell was not in the house at this time. He waited at the house for the deceased. He
left at around 1730 or 1740, as she had not arrived. He waited at the entrance
to the estate on Newbattle Road, moving between that point and a track at
Barndale Cottages, closer to the west end of the path. He had walked further along the road at one
point to see if he could see the deceased.
As he was standing at Barndale Cottages he had seen boys whom he knew
from school. He had waited for around
45 minutes. Thereafter, he had
wandered into Newbattle Abbey walking up and down a path, wasting time. He then contacted David High and made
arrangements to meet him.
[29] The appellant
thought that something must have happened which meant that the deceased was not
coming out, such as that she had forgotten, changed her mind, been grounded, or
met somebody. He had spoken to the
witness Ovens around 25 minutes after he had been waiting outside, and was
told that the deceased had left. David
High had appeared around 25 minutes after the appellant had phoned him. After spending some time at the Abbey, the
appellant went home, arriving between 2105 to 2110. He watched a video until he received the text
from the deceased's mother at 2241.
[30] As regards the
discovery of the deceased's body, the appellant's position was that he had
walked some yards ("not even 20 yards" and other estimates being given) past
the "V" point with his dog, which had been trained as a tracker dog. It had gone straight to the wall at that
point and started clawing up at it. He
had then doubled back to the "V" point, handed the dog to Mrs Walker and
climbed through. He had looked to his
left, walked around six paces in that direction and had seen the deceased's
legs close to a tree, and, as he took another step, her body. The dog had started to climb up on the wall at
a point "parallel" to the point where the deceased's body was found. Some information in this regard was given to
a police liaison officer appointed to the appellant's family, Detective
Constable Michelle Lindsay, to whom the appellant provided a sketch plan,
indicating where the deceased might have gone and where her body was
found.
[31] The appellant
lodged special defences of alibi and incrimination. The alibi defence was to the effect that he
was not on the Roan's Dyke Path between the hours of 1700 and 1745, being at
his home and at other points around the Newbattle Abbey Road area. The special defence of incrimination,
unusually, did not name any suspect for the murder, simply stating that the
deceased was murdered by "person or persons whose identity is or identities are
to the panel unknown". However, the fact
that the witnesses Ferris and Dickie had had the opportunity to commit the
murder influenced the defence approach to cross-examination, and was hinted at
in Mr Findlay's introductory remarks before us.
Grounds of appeal
[32] Mr Findlay made
submissions on each of the seven grounds on which leave to appeal had been
granted. In the course of the hearing he
sought and was granted leave to present an additional ground of appeal (ground
3A) to the effect that, having regard to the totality of the evidence, the
verdict returned by the jury was a verdict which no reasonable jury properly
directed could have returned, reference being made to sec. 106(3)(b) of the
Criminal Procedure (Scotland) Act 1995. He
submitted that a number of these grounds, of themselves, suggested that a
miscarriage of justice had taken place. However, many were interrelated and,
when taken in the round, suggested that the appellant had been denied a fair
trial at common law. That submission is
considered separately, after the following analysis of the individual grounds
of appeal.
Ground of appeal 1
[33] Ground of appeal 1 is stated in the
following terms:
" That
the Learned Trial Judge erred in refusing an application to have the Appellant's
trial heard in a jurisdiction outwith the Edinburgh area. In all the circumstances given the nature of
the crime under consideration, the local interest which it in turn generated
and the significant, substantial and largely speculative press coverage that it
attracted on a regular basis until the trial proceedings themselves, the
accused could not and did not receive a fair trial.
Whilst
leave to appeal the Learned Trial Judge's decision (of 6 October 2004) was
granted it was not in the Appellant's interests to pursue the matter and risk
further delays to his trial diet, given his age, inexperience of the criminal
justice system and the fact that he had been in custody since April 2004 for a
trial originally indicted in July 2004.
There being significant concerns about the appellant's mental and
physical wellbeing, further delays in bringing this matter to trial were not
deemed to be in his best interests.
It
is accepted that the press coverage of this matter extended nationally. The media interest was not limited to
reporting factual matters but amounted to large scale speculation about the Appellant
himself which was sustained until this matter proceeded to trial. The Learned Trial Judge failed to take into
proper consideration the effect of that coverage in the context of the intense
local interest that this murder generated.
This crime was committed within a small community the majority of whose
working adult population are required to commute into Edinburgh.
It will be submitted that outside the local area the chances of any
individual taking anything more than a passing interest in the press coverage
were reduced and the risk of prejudice to the Appellant could have been
eliminated by transferring proceedings outside of Edinburgh.
It will further be submitted that the risk of prejudice could not and
was not be (sic) met by directions to
the jury. This was evidenced in the
course of proceedings with the need to discharge a juror in the first trial who
failed to disclose a connection to the Appellant notwithstanding clear and
robust directions from the Learned Trial Judge prior to being empanelled. The overriding concern of the Court must be to
ensure a fair trial. It will be
submitted that in refusing to transfer this trial outside of the local area the
Learned Trial Judge failed to manage the risk of prejudice to the Appellant and
he did not therefore receive a fair trial."
Submissions for the
appellant
[34] By way of
introduction to his submissions, Mr Findlay said that, following his
instruction in the case, he had had a
meeting with the Advocate depute concerning several matters, but, in
particular, the location of the trial. Counsel
had had concerns regarding the fairness of any trial that might be held in the Edinburgh area because of the horrific nature
of the crime and the publicity which it had attracted. His view had been that any trial ought to be
held outwith the Edinburgh area. However, the Crown had thought otherwise and
indicted the appellant for trial in Edinburgh.
A motion had been brought before the court to the effect that the court
should order that the trial be held outwith the Edinburgh area, which motion was resisted by
the Crown. The trial judge, who heard
this motion, repelled it.
[35] The submission
to be made was that the court's failure to accede to the defence motion
relating to the location of the trial was unfair in the circumstances of the
case. As a consequence, there was no
fair trial. A miscarriage of justice had
occurred upon that ground. Counsel
founded on the commencement, build-up and persistence of intense media coverage
of a particularly emotive nature. Given
the character of the offence, a violent murder of a young girl in the Edinburgh area, the event had understandably
attracted much local interest. Against
that background, it was contended that to have held the trial in the Edinburgh area involved a real risk of
injustice. Moving the location of the
trial might not have completely eliminated that risk, but it could have been
substantially reduced. It was, of
course, recognised that it was for the Crown to decide the location of a trial,
but such a decision was subject to the supervision of the court. It was accepted that traditionally criminal
trials had been held in the area where the crime had been committed; however, that traditional rule of practice
was now, mainly, honoured in the breach;
the modern practice followed by the Crown was to try cases where it was
convenient to the Crown to do so. Thus,
in substance, the traditional rule had been departed from.
[36] Counsel
contended that the media attention given to the present case had been on an
exceptional scale. Much of that
attention had been in the national press.
There was much interest in the case.
More particularly, there had been much speculation that the killer of
the deceased had been her boyfriend, the appellant. It had been made clear by the police at a
fairly early stage that the appellant was the only suspect. That had been the case since 4
July 2003. Anyone taking an interest in current affairs
could not have failed to become aware of the background to the case. During the course of the trial itself there
had been some evidence which indicated that certain witnesses had in fact been
influenced by the publicity of which they had become aware. If that were the case, it was likely that
jurors would have been similarly affected.
[37] While the
justice system under solemn procedure operated upon the basis that jurors
accepted directions given to them by the judge presiding at the trial, it was
plain that sometimes trials had had to be deserted because of information or
circumstances which had tainted the jury.
That showed that the palliative of appropriate directions was not
all-powerful. It was impossible to say
for sure that the jury in the present case had not been tainted. The position of the appellant was not that
there could not have been a fair trial at all;
his position was that a fair trial could not have been achieved within
the Edinburgh area, in all the circumstances.
[38] In evaluating
the appellant's submissions it was necessary to examine some of the coverage
itself. There had been prepared several
volumes containing extracts of press articles relating to the case. These ran from July 2003. Volume A commenced on 2
July 2003. The first extract was from the Daily Record
of that date, which had contained headlines such as "Innocence Destroyed",
associated with a photograph of the deceased at a young age, "Find Jodi
Maniac", "Soaked in Blood"; "Killer in
the Mist" and "Girl's Throat Slit in Attack Frenzy". These headlines had been associated with
pages of coverage, including photographs of the locus, the house of the
appellant, the house of the deceased and other relevant locations. On subsequent days, the same newspaper had
featured a range of similar headlines referring to the killer as a "Fiend" and
including "Shocked Villagers Gripped by Fear as Cops Hunt Killer on the
Loose". There had been references to the
appellant as the boyfriend of the deceased as early as 4
July 2003
when a floral tribute had been left by him near to the locus where the
deceased's body had been found. By 5
July 2003
attention was being focused on the position of the appellant. The Daily Record of that date had contained a
headline "Jodi's Boy Quizzed. Search at
Home of Murdered Girl's Sweetheart". It
was contended that that material was significant and powerful.
[39] A wide range
of newspapers had been involved at that time in providing similar coverage. These included the Dundee Courier, the
Evening Times, the Daily Mail, the Daily Record, the Evening News, the
Scotsman, Metro, the Daily Star, the Daily Express and the Herald. In the Herald of 2 July 2003 the murder had
been characterised as one of the worst murders that the police officer leading
the investigation had seen in 28 years.
An atmosphere of fear and suspicion had been engendered by newspaper
articles. For example, the Daily Mail of
3 July 2003 bore the headline "Police Warn Parents that Jodi's Brutal Killer
Could Strike Again". Volume A of the
press coverage showed that that level and character of material continued to be
published throughout July 2003. The material
had been designed to and had had the effect of driving up the emotional level; it gave the impression that the killer was a
maniac, or a monster, and drove home that this had been a local event; the killer might strike again in the same
locality, that is to say the Edinburgh area.
[40] Counsel went
on to draw our attention to Volume B of the extracts of published
material. It contained similar material
to Volume A, but other newspapers had been involved. These were the Sun, the Daily Mirror, the Sunday
Herald, the Times, the News of the World, the Sunday Mirror, Scotland on
Sunday, the Sunday Times and the Press and Journal. The circulations of these newspapers were
very extensive. On the other hand, it
had to be accepted that they circulated nationally, not just in the Edinburgh
area. That having been said, it was
submitted that the media coverage was more intense in publications circulating
in the east of Scotland.
[41] Our attention
was then drawn to the contents of Volume C of the extracts of published
material, which related to the month of August 2003. Counsel submitted that this material showed
that, at that time, attention had begun to be focused on the appellant
himself. There were accounts of the
circumstance that he had then been told to stay away from school and not to attend
the funeral of the deceased. That had
been associated with publicity accorded to statements made by the police, to
the effect that they were almost certain that they knew who was responsible for
the death of the deceased. Publicity had
also been accorded to occasions when the police had called in the appellant for
questioning. It was submitted that this
material tended to imply that the appellant was in fact the person responsible
for the death of the deceased. Further
suspicion concerning the position of the appellant inevitably arose from the
fact that on 14 August 2003 he was detained and questioned at length by police
officers. That event received very
widespread publicity.
[42] Counsel went
on to draw our attention to Volumes D and E of extracts of press coverage. The former related to the month of September
2003. The latter related to the months
of October, November and December of that year.
During that period, it was contended that the case had still been
prominently covered in the press. At
that stage the appellant had been described as the only suspect. In the closing months of 2003 the press
coverage of the matter could properly be described as accusatory of the
appellant. He had been repeatedly
described as the only suspect and references had been made to his exclusion from
school and from the funeral of the deceased.
There had been extensive and critical publicity accorded to the
appellant's visit to the deceased's grave on the day of, but after, her
funeral. On 5 September
2003
considerable publicity had been given to the fact that the procurator fiscal
was then considering whether there was sufficient evidence for a prosecution
against the appellant, who was named as the subject of a police report. Counsel went on to point out that there had
been a revival of press interest in the case when the appellant had been
arrested and charged with the murder.
[43] Counsel
submitted that, having examined a broad cross section of the media material
produced, the character of the coverage was clear. Given the nature, extent and duration of the
publications involved, he contended that it was impossible to conceive that
there were many people who had not acquired some knowledge of the investigation
into the murder. Furthermore, they would
be aware that the murder was of a young girl who had died in horrific
circumstances, where there had been Satanic overtones. The press coverage plainly suggested that the
appellant had had something to do with her death. He was seen as central to the police
investigation. The press had also suggested
that the crime had impacted heavily on the local community, which included
Edinburgh itself. Of course, it had to
be accepted that memory fades; however,
if it were suggested that a killer was "on the loose", that plainly affected
people living in the locality concerned.
Furthermore, throughout the appellant had been the prime suspect. There had been little or no public support
for him.
[44] All this
material had been brought to the attention of the Crown and the trial
judge. The problem could have been
largely eliminated, or at least minimised, if a decision had been taken to the
effect that the trial should be held outwith the Edinburgh area. In subsequent discussion, counsel accepted
that the decision as to whether a trial should be held in the locality in which
the crime had been committed, or elsewhere, was a matter for the exercise of
the discretion of the judge before whom the issue came. Thus, it was accepted that this ground of
appeal could succeed only if the appellant could persuade the court that the
decision actually taken was one which could not have been reached by any
reasonable judge. The submission was
that that could be said in this case. At
this point in the discussion, counsel referred to the transcript of proceedings
before the trial judge on 6 October 2004.
He accepted that while specific extracts from publicity material
relating to dates after September 2003 had not been put before the trial judge,
the point had been made that the publicity had continued beyond September 2003
with differing levels of intensity. In
that connection reference was made to Volume F of the material. There had been a renewal of intense publicity
when the appellant had been arrested and charged with the murder on 14
April 2004,
although he had not been named until he had attained 16 years of age. That occurred on 24 July 2004 when there was further publicity
about the appellant; this time he was
named.
[45] Counsel next
turned to make submissions on the authorities which he considered relevant to
the matter. The first of these was Stuurman v HM Advocate 1980 J.C. 111.
The issue in that case had been whether a fair trial could take place at
all in the light of the pre-trial publicity, not whether a trial in a
particular location could not be fair.
At page 123 the Lord Justice General (Emslie) stated what had become the
recognised principle to be applied in cases concerned with pre-trial
publicity. The issue had been whether
the risk of prejudice in consequence of the publications was so grave that even
the careful directions of the trial judge could not reasonably be expected to
remove it. Counsel next referred to HM Advocate v Mitchell 1993 S.C.C.R. 793, a case closer to the circumstances of
the present case, since the location of the intended trial had been an
issue. The sheriff had made a decision
in favour of the accused person, considering that, despite a lapse of 12
months, there still existed a risk of prejudice attributable to newspaper
publicity, which could not be expected to be removed by suitable directions
from the trial judge. Reference was made
to the observations of the Lord Justice Clerk at page 801. Counsel went on to draw our attention to McLeod v HM Advocate 1997 J.C. 212.
The issue in that case had been whether the effect of pre-trial
publicity prejudicial to the accused rendered a particular trial venue
inappropriate. In that case, the
decision of the sheriff was reversed, the High Court considering that the
sheriff should have exercised his discretion by granting the motion before him,
which was to desert the diet in order to have a fresh indictment brought in a
different court. Reference was made to
the observations of Lord Coulsfield at page 215 to 216. In HM
Advocate v Fraser 2000 S.C.C.R.
412 the issue had been whether a fair trial could take place at all in the
light of prejudicial pre-trial publicity.
The contention that no fair trial was possible had been rejected. A factor in the decision was the area in
which the preponderance of the published material had been circulated, as
appeared from the observations of Lord Osborne at page 421. Counsel went on to rely on Crummock (Scotland) Limited v HM Advocate 2000 J.C. 408. That case had been concerned, not so much
with publicity, as with the impartiality of the potential jury. Reference was made to the observations of the
Lord Justice Clerk at page 412. Counsel
then proceeded to draw our attention to Sinclair
v HM Advocate [2007] H.C.J.A.C.
27. The issue in that case had been
whether a fair trial could take place.
Reference was made to paragraphs [15] and [16] of the Opinion of the
Court, delivered by the Lord Justice General.
In that Opinion emphasis had been placed upon the presumption that had
to be made that there was trust between judge and jury, including an
understanding that jurors would not deliberately disobey the instructions which
they were given by the trial judge.
[46] At this point
in the discussion, the issue was raised whether it was significant that the
appellant had decided not to appeal against the decision reached in advance of
the trial by the trial judge in relation to the issue of its location. Counsel submitted that that circumstance was
of no significance. He accepted that,
after trial, the appellant required to demonstrate that the decision in
question constituted a miscarriage of justice;
there was no dispute about that.
There had been good reasons why an appeal had not been taken at that
stage.
[47] Counsel then
referred to Mitchell v HM Advocate [2006] H.C.J.A.C. 84 in
which a decision had been given in the present case, following a hearing under
section 107(8) of the 1995 Act. In that
decision, it had been held that ground of appeal 1 was arguable.
[48] A factor of
importance in the present case was the circumstance that the trial judge had
given extensive guidance to the jury at the commencement of the first trial,
which had had to be aborted. What he had
said was reproduced in Appendix A to the trial judge's report to this court. What had followed that introduction to the jury
was that the first trial had commenced, after which a problem had arisen. One juror had been lost on account of her not
being well. Following that, a problem
had arisen relating to a second juror on the fourth day of the trial. The nature of that problem is described in
paragraph [114] of the trial judge's report to this court and summarised at
paragraph [5] of this opinion. It
had been submitted to the trial judge that the juror would have been discharged
from service as a juror at the outset if it had been known that the
circumstances existed that had subsequently been brought to the attention of
the court. The trial judge concluded
that that juror ought to be discharged.
What these circumstances showed, submitted counsel, was that clear and
unequivocal directions given to the jurors at the outset of the trial had not
been obtempered. The explanation for
that was unknown. The foregoing
considerations tended to undermine the assumption that the jury would
necessarily follow the directions given by the trial judge in relation to the
effect of extraneous influences, such as publicity.
[49] Counsel
submitted that, in evaluating this ground of appeal, the court was in the realm
of the assessment of risks to the proper administration of justice caused by
the publicity which the case had attracted.
In that connection he made reference to certain passages of evidence at
the trial. At page 544 of the transcript
of proceedings for 2 December 2004, in the cross-examination of
Rosemary Walsh, there was a passage of significance: the witness agreed that by 15
August 2003
the murder inquiry had been running for some time with no person charged; there was much concern and anxiety in the
location of the murder about that circumstance.
Likewise, at page 599 of the same volume, in the cross-examination of
Andrew Holburn, the witness agreed that he had taken an interest in what had
been reported in newspapers about the matter.
He had seen certain photographs of the deceased published, but not of
the appellant. At page 629 and following
of the same volume of the transcript, the witness Carol Heatlie agreed that she
had seen photographs in newspapers and on television of the person whom she
claimed to recognise in connection with her evidence, namely the appellant. She had seen the interview conducted on
television with the appellant and his mother.
It was difficult to say that such influences had not affected the
evidence of such a witness. Reference
was also made to pages 733 to 734 of the transcript of proceedings of 6
December 2004
narrating the evidence of George Ramage.
Counsel also drew attention to pages 344 to 345 of the transcript of
proceedings of 1 December 2004, which recorded the evidence of
Lorraine Fleming. She had seen news
photographs and reports of the appellant.
It was contended that what she described amounted to the "building up of
a piece of evidence" concerning identification.
It was submitted that the foregoing examples showed that media coverage
had had a significant influence in relation to witnesses.
[50] Counsel
submitted that there were several features of the present case, consideration
of which led to the conclusion that a miscarriage of justice had occurred on
account of the decision of the trial judge that the trial should proceed in Edinburgh.
These were, first, the fact that the victim of the crime was a young
girl; second, the nature and extent of
the publicity accorded to the case and the level of emotion engendered by
it; third, the publicity regarding the
horrific circumstances of the murder and the coverage of the position of the
appellant himself; fourth, the question
of whether the publicity was so local or so national in character that moving
the case from Edinburgh to some other location would be a cogent step to take; and fifth, the matter of the management of
the trial. The appellant's contention
was that a miscarriage of justice had occurred.
If that were determined by the court, there could be a fresh trial
elsewhere; the appellant would not
resist a motion for a fresh trial.
[51] Questioned by
the court as to whether it was being contended that the trial judge, in
reaching his decision concerning the location of the trial, had ignored
relevant material, counsel said that the basis of the criticism of his decision
was that it was one which no reasonable judge could have reached. The trial judge had failed to give proper
weight to the material put before him and to reach the only reasonable
conclusion that, in the circumstances, was open to him; that is to say to obviate a demonstrable risk
of prejudice by causing the trial to be held in a location other than
Edinburgh. The problem was that jurors
did not necessarily obtemper the instructions given to them by a presiding
judge. Other than possible inconvenience
to some persons, there was no reason why the trial could not have been caused
to take place away from Edinburgh.
The palliative of judicial directions can never be absolutely effective,
as was recognised in the case of Stuurman
v HM Advocate.
Submissions of the
Advocate depute
[52] The Advocate
depute began by drawing attention to the background of this ground of
appeal. As appeared from the decision of
the court under section 107(8) of the 1995 Act in the present case, paragraphs [11],
[12] and [13], the court had concluded, only with some hesitation, that this
ground of appeal was arguable. The
matter of this ground of appeal was the subject of treatment by the trial judge
in his report between paragraphs [89] and [99].
The position of the Crown was that the decision of the trial judge as to
the location of the trial had been reasonable in all the circumstances. A miscarriage of justice could not arise out
of a reasonable decision by the trial judge.
[53] It was
important to recognise that there had been an acceptance on the part of the
appellant that a fair trial was possible.
That had been the position taken up before the trial judge at the
preliminary hearing on 6 October 2004, as appeared from paragraph [90] of
his report, and it was reiterated in the appellant's submissions before this
court. It followed from that position
that any potential prejudice to the appellant created by media coverage was
capable of being cured in some trial court, somewhere. Thus, what was being suggested on behalf of
the appellant was that measures to cure it, which would have been sufficient
elsewhere, were not sufficient in a trial in Edinburgh.
[54] It was
accepted by everyone that there had been extensive media coverage of the case,
as appeared from paragraph [96] of the trial judge's report. However, the copies of the coverage produced
showed that that publicity was of a national character, both in the press and
on television. That had an important
bearing upon the issue relating to the location of the trial. Furthermore, it ought to be recognised that a
substantial part of the publicity which the case had attracted was based upon
statements made by or on behalf of the appellant. The fact that some of the publicity had been
generated in that way was relevant to the present issue. If some disadvantage was self-inflicted, the
appellant could hardly complain of it.
[55] Most of the
publicity had occurred in the immediate aftermath of the death of the
deceased. It was a matter of concession
that, by around September 2003, the intensity of the coverage had very largely
died down. In that connection reference
was made to pages 70 to 71 of the transcript of proceedings of 6
October 2004. In addition, it had been accepted that the
publicity in itself was not of what could be called an improper nature. For example, it did not involve the
revelation of previous convictions.
[56] It had been
suggested that there was significance in the fact of the atmosphere of fear
that had been generated by the publicity in the Edinburgh area. However, even if there had been a heightened
risk that Edinburgh jurors might be fearful of the murderer, they would not be
likely to convict the wrong person because of that. Rather, they would be anxious to convict the
actual perpetrator. In this connection
the Advocate depute relied on Crummock (Scotland) Limited v HM Advocate, particularly paragraph [13]
of the Opinion of the Court. The present
case contrasted sharply with Sinclair v
HM Advocate, as appeared from
paragraphs [3] to [7], [16] and [20] of the Opinion of the Court; the argument under consideration there was
that no fair trial was possible anywhere.
[57] A particular
point made on the appellant's behalf was that, in the media coverage during the
period of July to September 2003, the appellant had been portrayed as the "only
suspect". However, that was not said
itself to be prejudicial; he was, in
fact, also the only person who had been indicted. That was a feature of many prosecutions. Furthermore, he had had a relationship with
the deceased and had been due to meet her on the day of her death. In this connection the Advocate depute drew
attention to B.B.C., Petitioners 2002
J.C. 27, particularly paragraph [19]. In
that case the court had concluded that an order under section 4(2) of the
Contempt of Court Act 1981 was unnecessary, albeit that, in the trial in
question, there were likely to be frequent references to the incriminee in a
trial for murder of a nature highly prejudicial to him. The court had expressed its confidence in the
system of trial by jury to provide a fair trial for the incriminee with proper
directions. The Advocate depute, in this
connection, also relied upon Montgomery v
HM Advocate 2001 S.C. (P.C.) 1 at
pages 24 and 26 - 31.
[58] The Advocate
depute wished to emphasise the significance of the national character of the
publicity in the present case. If the
preponderance of the publicity was national in character, then the benefit of
the trial being held in a location within Scotland but remote from Edinburgh
would be illusory, since jurors in such location would have been just as much
exposed to the publicity as jurors in Edinburgh would have been. Furthermore, it was important to note that
none of the jurors finally selected for the trial lived in the Dalkeith area,
as appeared from paragraph [118] of the trial judge's report. Of the jury, as finally constituted, ten
jurors lived in Edinburgh and one each came from Whitburn,
Livingston, South
Queensferry,
Ratho and Penicuik. No objection had
been taken to the juror from Penicuik.
Thus the jury emanated from areas other than that most directly affected
by the occurrence of the crime and the associated publicity.
[59] It had to be
borne in mind that the trial judge had taken thorough steps to warn the jury as
regards material which they could not take into account in reaching their
decision. In this connection the
Advocate depute relied on what the trial judge had said at page 7 and following
of the transcript of his charge to the jury.
The instructions given were quite clear;
extraneous material had to be excluded from the minds of the jurors.
[60] It had been
conceded on behalf of the appellant that the trial judge, in reaching a
decision as to whether the trial should take place in Edinburgh or not, had been exercising a
discretion. Accordingly, his decision
could not relevantly be attacked unless one of the recognised bases of
criticism of a discretionary decision could be established. The contention was that the decision reached
was one which no reasonable trial judge could have reached. In this connection it had been said that
nothing would have been lost by trying the case elsewhere than in Edinburgh.
But that was beside the point.
The question was whether the trial judge had applied the proper test and
reached a decision which was within the range of reasonable decisions. It was submitted that the reasons that he had
given for his decision at pages 201 to 204 of the transcript of proceedings of 6
October 2004
showed that he had done that. In any
event, even if the trial judge had reached an unreasonable decision, it was
still necessary for the appellant to demonstrate that a miscarriage of justice
had occurred.
[61] It had been
argued on behalf of the appellant that the Crown allocated cases to locations
as a matter of its convenience. That was
not so. Since April 2005 the Crown did
not select venues for trials. It selected
venues for preliminary hearings.
Thereafter, it was the court itself that allocated cases to a particular
venue.
[62] It was the
position that following upon the decision of the trial judge as to the location
of the trial, the appellant had been given leave to appeal that decision. For reasons given by counsel for the
appellant, he had not availed himself of that grant of leave by appealing in
advance of the trial. It had to be
emphasised that that decision had had the result of imposing an additional
burden upon the appellant now, in respect that it was now necessary for him to
demonstrate that a miscarriage of justice had occurred as a result of the trial
judge's decision. That would not have
been necessary had there been an immediate appeal of the decision in question.
[63]