Judges pour cold water over firefighter’s appeal against wilful fire-raising conviction

A part-time firefighter who was found guilty of wilful fire-raising but claimed that a “miscarriage of justice” had occurred has failed in an appeal against conviction.

David Mackay argued that the sheriff “erred” in leaving it to a juror who knew one of the witnesses to hear the evidence and then decide whether he felt himself biased, but the Criminal Appeal Court ruled that the fact that a juror knows a witness “was not per se a reason for assuming potential bias”.

The Lord Justice Clerk, Lord Carloway, sitting with Lady Smith and Lord Brodie, heard that the appellant was sentenced to two years imprisonment after being convicted of two charges involving wilful fire-raising in areas of forestry following a four-day trial at Fort William Sheriff Court in August 2014.

The first was on 27 March 2013 at the Carnoch electricity sub-station in Argyll and the second was four days later on 1 April 2013 in Glen Tarbert.

The appellant, who worked for Scottish Water, was also a part-time firefighter based at Strontian and loci of the charges were within a few miles of that address.

Unknown to the appellant, there was a global positioning system (GPS) installed in his Scottish Water van and in relation to both charges the vehicle was located yards from where the fires were set and he was identified as the driver.

The appeal raised issues about the sufficiency of evidence and also concerned the appropriate procedure to adopt when a juror notifies the court that he knows one of the witnesses.

During the lunchtime interval after the first morning of the trial, a juror passed a note to the clerk of court asking if it would be a problem that he knew one of the witnesses, “JF”.

The juror said that he did not think that this connection would affect his consideration of the case, but the clerk made this information known to parties.

The issue was discussed by the parties and the sheriff in chambers immediately after lunch, but the trial continued without objection.

On the following day, the appellant’s agent decided that she should raise the same matter as had been discussed in chambers “in open court”, and the sheriff interrupted with “yes” and the matter was not pursued.

The court heard that the witness, “JF”, who had seen the first fire and had gone to the locus of the second fire four days later, spoke to two firefighters, including the appellant, and mentioned that a white van had been seen in the lay by near the locus in minutes before it started.

His evidence was to the effect that the appellant had said that a colleague from Scottish Water had told him that the glen was on fire when he had met him in Strontian.

Under the first ground of appeal it was submitted that the discussion in chambers had contravened section 92(1) of the Criminal Procedure (Scotland) Act 1995, which prohibits any part of a trial taking place outwith the presence of the accused, and this was a “fundamental irregularity” contrary to a peremptory statutory provision.

The second ground of appeal was that there had been “insufficient evidence” to prove that the fires had been set deliberately as there had been no forensic evidence, and that there was “no evidence” that the appellant had committed the act even if the van were linked to the locus and the appellant linked to the van.

The identification of the appellant had been only as the driver of the van and not as the perpetrator of the crimes, therefore “mutual corroboration” should not have been applied, it was submitted.

However, the judges ruled that there was no miscarriage of justice.

In relation to the juror and the witness, the judges observed that an accused has a “fundamental right” to be tried in his presence, but that there was “a distinction between matters intrinsic to the trial on the one hand and administrative matters relating to it on the other”.

Delivering the opinion of the court, the Lord Justice Clerk said: “It is essential, as a general rule, that all substantive parts of the trial should take place in the accused’s presence, to enable him to know what is happening in the case against him and to comment where appropriate. However, administrative matters relating to the management of the trial are not intrinsic to it and can be dealt with outwith the accused’s presence without breaching section 92 of the 1995 Act.”

He added: “In any event, no miscarriage of justice can be seen to have occurred. The fact that a juror knows a witness is not per se a reason for assuming potential bias and acceding to a motion to reduce the jury to 14. Bias is not to be presumed from the mere fact that a juror chances to know one of the witnesses.

“There would have to be something more, whereby the fair minded and informed observer, having considered the nature of the connection between the witness and juror, would conclude that there was a real possibility that the juror (and hence the jury) would be biased. There is nothing of that nature in this case. Had a motion to excuse the juror been made on the information before the court, the sheriff would have been bound to refuse it.”

The court further held that there was sufficient evidence to infer that the fires had been started deliberately and that the appellant had committed the offences.

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