Appeal by two Edinburgh men who argued remote jury trial had been unfair refused by High Court

About this case:

• Citation:
  [2024] HCJAC 11
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Lewis Spence and Connor Steele were each given an extended sentence with a custodial term of seven years and a three-year extension period, following the trial, which was conducted using a remote jury. Mr Spence also appealed against his sentence on the ground that the extension period was excessive.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, along with Lord Pentland and Lord Boyd of Duncansby. S Collins, solicitor advocate, and Keegan KC appeared for the appellants and the Lord Advocate, Bain KC, and M McIntosh AD appeared for the Crown.

Heavily criticised

On 15 September 2020, Peter Martin was coming out of a newsagents in Edinburgh when two cars stopped in front of him and 11 men in balaclavas jumped out. One of them pointed a sword at him, and he ran back into the shop. Five of the men, said to include the appellants, went into the shop, and were seen, with their faces covered, on CCTV and dashcam footage.

There was no dispute that the complainer, now deceased, was attacked in the manner libelled in the indictment. The appellants were identified to varying degrees by various police officers who had seen the footage. The officers’ evidence was challenged in cross primarily on the basis that their identifications were the result of discussion amongst themselves and that they were mistaken.

In her report the trial judge heavily criticised the way in which the Advocate Depute conducted the trial. She stated that had she been asked to desert the trial she would have done so, provided she had an assurance that another Advocate Depute would conduct the case. She also noted, albeit without detailed reasons, that she could understand why the appellants consider they might not have had a fair trial.

On appeal, it was submitted that the AD’s conduct resulted in frequent and repeated objections from defence counsel that could have given the jury the impression that the defence was attempting to conceal damaging evidence. Further, because the trial had been conducted remotely with the jury viewing proceedings in a cinema, they had been unable to see the appellants while evidence was being led. This meant they could not carry out a proper assessment of that evidence.

The Lord Advocate submitted that it could not be inferred from the jury’s request to view the dock on full screen that they were unable to properly address identification. She also submitted that the tone and content of some of the trial judge’s observations were inappropriate, many relating to personal matters, and reflected a hostile and hyper-critical approach.

Extraordinary remark

Delivering the opinion of the court, Lady Dorrian said the fairness of the appellants’ trial: “We recognise that this ground passed the sift (despite a complete lack of specification), but it seems likely that this was largely due to the hyperbolic nature of the trial judge’s comments (a matter to which we will return). In reality, when the matter is examined dispassionately and objectively, the ground is unstateable, as was clearly recognised by both solicitor advocates in their decision not to insist on it.”

Moving to the evidence of identification, she continued: “The suggestion that the jury did not have an adequate opportunity to view the appellants in the dock is not made out. The appellants were always visible on the quarter screen during the trial, including when all the CCTV footage was shown. They had several opportunities to see close ups of the appellants. They also had the opportunity to view the police interview video of Spence and the CCTV which was admittedly that of Steele at Western Harbour Midway.”

On the conduct of the trial judge, Lady Dorrian said: “The trial judge makes an extraordinary remark that she can understand why each appellant ‘feels he has not had a fair trial’. Coming from the person in court whose overarching obligation was to secure such a trial the remark is to say the least unusual. Nowhere in her report does the trial judge explain the basis for that remark.”

She concluded: “It is impossible to understand the rationale for the comment so far as Spence is concerned; and so far as Steele is concerned, as with certain other observations within her report, the trial judge seems to have been influenced by her own personal assessment of the evidence in the case, which of course was a matter for the jury. Suffice it to say that we are satisfied that a miscarriage of justice has not been established.”

In each case, the appeal against conviction was therefore refused. The appeal against sentence by Mr Spence was also refused.