Six men who conspired to murder family lose appeal against conviction based on jury bias investigation

Brian Ferguson, Andrew Gallacher, Robert Pickett, Andrew Sinclair, John Hardie, and Peter Bain were sentenced to various terms of imprisonment for their roles in the offence ranging from 13 to 20 years. They each argued that the trial judge had failed to adequately investigate an incident which occurred during the course of the defence speeches.

The first appellant was represented by Graham QC; the second, Mackintosh QC; the third, Jackson QC; the fourth, I McSporran QC (sol adv); the fifth Findlay QC and the sixth McConnachie QC and CM Mitchell QC. The respondent was represented by P Kearney AD.

The appeals were heard by the Lord Justice General, Lord Carloway, sitting with Lord Pentland and Lord Matthews.

Already made up their minds

The charges brought against the appellants centred upon the electronic tracking of the Daniels family’s vehicles, the acquiring of a variety of weapons and other equipment, and the carrying out of a series of assaults involving deliberate collision with the Daniels’ vehicles and striking their occupants to their severe injury in an attempt to murder them.

The trial of the appellants took place over several weeks in the first half of 2019, with speeches to the jury commencing on Tuesday 2 April, the forty-eighth day of the trial. The speech on behalf of the second appellant, Mr Gallacher, began on Wednesday 10 April, and was scheduled to continue the following day after an adjournment.

On the morning of Thursday 3 April, counsel for the second appellant approached the clerk of court informally and told him that the second appellant’s partner, Ashleigh Muldoon, had overheard three female jurors discussing the case at a bus stop the previous evening, saying that they had already made their mind up. It was alleged that the clerk had responded to counsel by saying “well, she’s a liar”, and that the trial judge was made aware of this response.

The matter was canvassed in open court once the diet had called. It was ultimately decided by the trial judge that the matter should be investigated before the trial continued, and he ordered the clerk of court to investigate the matter. Having regard to the nature of the allegation and the scope of the inquiry, which might require to be revisited as it progressed, the judge determined that he, as the decision maker, should remain apart from the investigation.

It was determined that Ms Muldoon believed juror number 3 had said to another of the jurors “Och well, we’ve already made up our minds, but I suppose we have to hear what they have to say”. When questioned, the three jurors confirmed that they had been at the bus stop together but denied discussing the case and said they had not noticed another woman walking through them.

Following the clerk’s investigation, he concluded that there was no independent support for Ms Muldoon’s evidence. The trial was permitted to continue. After the trial’s conclusion Ms Muldoon wrote to the Scottish Courts and Tribunals Service to complain that the investigation had been “prejudiced” and that the clerk had unfairly branded her a liar.

It was submitted that the investigation should not have been carried out by the clerk of court after he had already expressed bias towards Ms Muldoon. He was not a decision-maker in the trial, and it was inappropriate for him to reach conclusions on where the truth lay in these matters. Further, there was no statutory power enabling a clerk to investigate and report on trial-related matters.

No reason to doubt competence

The opinion of the court was delivered by Lord Carloway. Noting a similarity between the case and the comments made in Pike v HM Advocate (1987), he said: “Where an allegation of juror misconduct is made, the nature of any inquiry will depend on the particular facts and circumstances. If there is information which prima facie supports the allegation, some inquiry will almost certainly be needed.”

He continued: “Any such inquiry has to be made in the context of a continuing jury trial, which should not, for a variety of reasons, be unduly delayed or interrupted and in which the jurors’ attention should not be unnecessarily distracted from the central questions in issue.”

Evaluating the trial judge’s approach, he said: “The decisions of the trial judge had due regard to the particular circumstances. He first ensured that everyone had a clear written statement of what had been reported to the second appellant’s law agent. Secondly, he told parties of his intention to instruct the clerk of court to investigate the alleged transgression.”

He went on to say: “If any party had considered that to be inappropriate, for whatever reason, they could have objected to such a course then, before the clerk’s investigation had commenced. Any allegation of bias, if it was to be made, which was based on a remark which the clerk had made informally to counsel, ought to have been made then.”

On the contention that the clerk of court was unqualified to carry out any investigation, Lord Carloway said: “This particular Depute Clerk was a clerk of many years’ experience. There is no reason to doubt his competence to carry out the delegated task. The trial judge would have been well aware of his clerk’s skills and experience.”

Addressing the possibility of bias from the clerk’s comment of 3 April, he said: “Even if it were accepted that such a remark had been made, it was at best an ill-informed and perhaps flippant remark made prior to the calling of the trial diet. As such it provides no stable foundation for a plea that the trial thereby became unfair.”

For these reasons, the appeals were refused.