Human rights application to UK Supreme Court based on guilty plea of co-accused in front of jury dismissed

Michael Stuart claimed that the effect of the plea was that he was “effectively presumed guilty” and as a result there was a breach of his right to a fair trial in terms of article 6 of the European Convention on Human Rights (ECHR), but the Appeal Court of the High Court of Justiciary was not persuaded that the point was “reasonably arguable”.

Serious organised crime

Lord Brodie, Lord Drummond Young and Lady Clark of Calton heard that the applicant was convicted in October 2016 following a trial on indictment at the High Court in Glasgow of a charge of contravention of section 28(1) of the Criminal Justice and Licensing Scotland Act 2010 in that he agreed with others, including Andrew Steven, Dean Kimmins and Kenneth McMullen, to become involved in serious organised crime.

In his report to the Appeal Court following on the applicant’s appeal against conviction and sentence the trial judge Temporary Judge Murphy QC observed that the case against Stuart, the fifth accused on the indictment, had been a circumstantial one, dependent upon mobile phone contact and a meeting with the first and third accused, Steven and Kimmins, and a payment into his bank account by the first accused which was said by the Crown to be of the nature of a commission for the introduction of the third accused as a customer for a prohibited firearm and ammunition.

The position adopted on behalf of the applicant at trial had been that he had not been party to any such agreement and that he had had no such involvement, the payment into his bank account being a loan.

Guilty plea

But following the closure of the Crown case the advocate depute accepted a plea of guilty from the first accused in the presence of the jury – without prior notice to counsel for the applicant – the terms of which included a narrative to the effect that Steven had agreed with Kimmins, the fourth accused McMullen and Stuart to become involved in serious organised crime.

The jury was thus made aware that the first accused conceded and accepted that he had behaved in a “criminal manner” and that this involved the applicant.

A motion was made to the trial judge on behalf of the applicant and the third and fourth accused that he should desert the trial on the basis that they could not get a fair trial given the “prejudice” to their positions, as the Crown had been “substantially advantaged” by the manner in which the plea was recorded and the co-accused had been “disadvantaged”.

Risk of prejudice

In his report to the Appeal Court the trial judge accepted that what had occurred gave rise to a “real risk of prejudice” but that the test for deserting the trial was whether the prejudice was so grave that no direction by the trial judge might be expected to cure it.

The trial judge did not consider that that test was met and he repelled the motions to desert and when he came to charge the jury he gave directions to the effect that the first accused’s plea of guilty had “no bearing” on the case against any of the other accused, was not evidence against them and gave rise to “no adverse inference”.

However, Stuart lodged an application in terms of section 288AA(5) of the Criminal Procedure (Scotland) Act 1995 for leave to appeal to the UK Supreme Court in London, arguing that it was in the “public interest”.

It was submitted that he had been “deprived” of his right to adequately present his defence because his co-accused’s plea had been accepted without prior consultation and therefore without opportunity to challenge the terms of the narrative, that he was “effectively presumed guilty”, and that his right to a fair trial had been “compromised” because of the substantial advantage gained by the prosecution.

No arguable point of law

In a written note of reasons, Lord Brodie said: “While the emphasis would appear to be on what appears at paragraph (c) of the compatibility minute: that the prejudice to the applicant by reason of the taking of the plea was such that a fair trial was impossible, and therefore essentially a repetition of the point available under the common law of Scotland under reference to McFadyen v Annan, we also note the submission at paragraph (a) that the applicant was deprived of his right adequately to present his defence, as guaranteed by article 6(3)(b) of the convention and the submission at paragraph (b) that he was effectively presumed guilty. We have not been persuaded that any of the submissions in the compatibility minute are reasonably arguable.

“Moreover, while section 288AA(5) of the 1995 Act does not set out any particular criteria by which this court should determine an application of this sort, the approach which has been adopted is that it will only be appropriate to grant permission if the case raises not only an arguable point of law but an arguable point of law of general public importance. We have not identified any such point here. We accept the Crown’s submission on that.”