Frank Carberry v. Her Majesty's Advocate [2013] HCJAC 101

Reference from the Scottish Criminal Cases Review Commission:- On 17 May 2006 at Glasgow Sheriff Court the appellant was convicted of three charges of indecent assault on males. On 28 June 2006 the sheriff imposed an extended sentence of seven years, five years of which were custodial. On 8 September 2006 the appellant lodged a Note of Appeal against conviction and sentence. In February 2007 the appellant's agents received information from John Daly, a taxi driver, which subsequently formed an affidavit in which he described picking up a passenger, Mrs D, who stated that she was a juror in the case and one of her fellow jurors had carried out internet research in relation to the appellant and disseminated the findings of that research to other members of the jury. The proposed ground of appeal stated:- "From the terms of that affidavit it appears that the jury had access to prejudicial information about the appellant which they should not have had" and the appellant had been denied a fair trial. The court refused to allow the proposed ground and relative Devolution Minute to be "received" and refused the section 107(8) application. On 16 March 2008 the appellant abandoned his appeal against conviction and his appeal against sentence was refused on 3 April 2008. Thereafter the appellant made an application to the Scottish Criminal Cases Review Commission and the SCCRC thereafter interviewed Mrs D and the other jurors. The SCCRC reached the conclusion that any impropriety that may have occurred during the trial could not be said to have deprived the appellant of a real chance of acquittal and in January 2011 the SCCRC did not believe that a miscarriage of justice might have occurred. Thereafter, further submissions were made and a petition for judicial review of the SCCRC determination was presented and on re-considering the matter, the SCCRC concluded that the circumstances of this case were:- "similar to Mears (R v Mears [2011] EWCA 2651) if not more serious. It seems that at least one member of the jury downloaded information from the internet pertaining to the [appellant's] character". As a result, the SCCRC reversed its previous decision and decided to refer the case on the basis that a miscarriage of justice may have occurred. Here the court rejected the reference in terms of section 194DA of the Criminal Procedure (Scotland) Act 1995 on the basis that it was not in the interests of justice that the appeal proceed. That was on the basis that the court has a gate-keeping power to reject a reference and, whilst the power should only be exercised in exceptional cases, this was such a case. The court here considered that the material available in the present case, namely the statements taken from the jurors, was markedly different from the original hearsay information from Mr Daly's affidavit, and the information produced fell well short of the standard required before the court would contemplate instructing a judicial inquiry into the happenings in a jury room.