Note recording Lord Bracadale’s reasons for repelling Thomas and Gail Sheridan’s pleas in bar of trial at their trial for perjury.  The Sheridans had argued that the trial would breach their right to a fair trial in terms of Article 6 of the European Convention of Human Rights contending that the pre-trial publicity meant that the trial could not be before an impartial tribunal. In particular they argued that:

1. prejudicial material remained accessible at the time of the trial;
2. some of the material purported to emanate from police sources; and
3. the Crown had failed to take adequate steps to render the prejudicial material inaccessible.

Lord Bracadale applied the test[1] for prejudicial pre-trail publicity set out in Stuurman v HMA (1980) and had regard to observations made in Montgomery v HMA (2001) to the effect that the Stuurman test took account of:

a)     the length of time since publication;
b)    the focusing effect of listening to evidence over a prolonged period; and
c)     the likely effect of the directions by the trial judge.

Was there pre-trial publicity?
The first question was whether there had in fact been pre-trail publicity.  Having been presented with 13 lever arch files of material and a report of material available on the internet, Lord Bracadale unsurprisingly accepted that there had been pre-trial publicity.  Although it was highly improbable that any potential juror would have read all of it, and there was therefore a danger of overestimating the impact of the material on any particular juror, it was likely that some of the jurors would have encountered some of the prejudicial material.

Could the effect of the pre-trial publicity be removed?
The passage of time
Lord Bracadale noted that there had been significant time between publication of most of the prejudicial material (in 2006 following the defamation verdict) and the perjury trial due to take place in 2010. However, there had been publications in the intervening period which harked back to and rehearsed the earlier prejudicial material.  Additional allegations had also been made in the intervening period in relation to interfering with witnesses and evidence. Moreover, much of the material was still available on the internet. All of which meant Lord Bracadale found that the argument that the passage of time was a safeguard to a fair trial was a weak one.

Focusing effects of the hearing of the evidence
In contrast Lord Bracadale considered that the focusing effects of listening to the evidence over a pro-longed period was a powerful safeguard. It was not just a polite fiction:

“It is within the daily experience of judges and counsel that juries do become engrossed in the evidence and return verdicts which reflect the evidence. It seems to me that listening to the evidence and hearing it being tested in cross examination in the immediacy of the court environment will be likely to focus the minds of jurors on what they are hearing in court. That is more likely, in my view, to dispel notions that they may have picked up from reading prejudicial material, rather than to reinforce preconceived views. In addition, the jury will have regard to the evidence as a whole, which is a significant consideration.”

Directions of the trial judge
With regard to the directions of the trial judge, the court must assume that jurors will follow the directions given to them by the trial judge. This was a case in which special directions were necessary and would require to cover, for example, internet research and to putting knowledge of the case gleaned from the media from their minds.

Decision
Lord Bracadale had been satisfied that, when taken together, the safeguards removed the risk of prejudice and a fair trial had been available to the Sheridans.

The note repeats the directions Lord Bracadale gave to the jury in his introductory remarks, the reminders he gave during the trial and also the directions given in his charge to the jury.

The full text of the note is available from Scottish Courts here.

Pryor v The Chief Constable of Greater Manchester Police, 30 June 2011

English Appeal Court case described by Lord Justice Ward as a “sorry tale” and concerning the police seizure of a vehicle believed to have been driven without a valid insurance certificate.

Mr Pryor purchased a car (a Honda) which he lent to his friend Mr Burton whilst he was abroad. He gave Mr Burton a signed letter confirming that he was the registered owner of the vehicle and stating that Mr Burton had his full permission to drive the vehicle.

Mr Burton was stopped by Greater Manchester Police for using a mobile phone whilst driving. The police asked Mr Burton to produce his licence, MOT and an insurance certificate.  Mr Burton produced the paperwork including the letter from Mr Pryor and a Saga Insurance certificate for his own car (a Ford) which states that:

“The policy holder may also drive with the consent of the owner a motor car not owned by and not hired under a hire purchase or self-drive agreement to the policyholder”

However, this did not satisfy the police who phoned Saga and were informed by them (wrongly as it turned out) that Mr Burton was only insured to drive other cars under his policy if the other vehicle had its own insurance cover.  According to the police computer the Honda had no cover.  The police then seized the Honda under s165A of the Road Traffic Act 1988.

In terms of s165, the police can require a person driving a motor vehicle to produce various documents including a “relevant certificate of insurance”.  In terms of s165A, if the person fails to produce the documents requested and the constable has reason to believe the vehicle is being driven without the documentation in place; the police can seize the vehicle.

Mr Pryor brought a claim against the police for wrongful interference with property.  The claim was dismissed by the District Court on the basis that the issue was whether the police officer had reasonable grounds for believing that Mr Burton was driving without insurance.  Notwithstanding the fact that Mr Burton was driving with permission and with insurance,  what was important whether the police had reasonable grounds for believing that the vehicle was being driven without insurance and the (albeit misleading) information from Saga had provided those reasonable grounds.

However, the Court of Appeal allowed the appeal finding that (in the words of Lord Justice Ward) it was “plain as a pikestaff” that the police had failed to establish grounds for seizure of the Honda and had wrongly interfered with Mr Pryor’s goods.

In order to justify seizure of a vehicle three facts must be present:

1. a constable in uniform must require that a driver produces a relevant certificate of insurance,
2. the driver must fail to produce the relevant certificate, and
3. the constable must have reasonable grounds for believing that the vehicle was being driven without insurance.

The Judgement in the District Court rested on the third element of the test.  However, the Court of Appeal made it clear that that this element of the test only applies if the driver fails to produce the relevant certificate.

The police attempted to argue in court that the “relevant certificate” was the certificate for the Honda not the Ford, however, Lord Justice Ward said that was “simply wrong”. The purpose of the Road Traffic Act is to ensure that users of motor vehicles are insured against third party risks.  Mr Pryor was covered because his policy (for the Ford) extended to his driving, with the consent of the owner, a car not owned by him.  The certificate he produced said exactly that.  Since the certificate he produced demonstrated that he was not guilty of driving without insurance it was plainly a relevant certificate.

As Mr Pryor had not failed to produce the relevant certificate (in terms of the second part of the test), the police constable’s belief, that the certificate did not mean what it said, was neither here nor there.

A noteworthy aside is that the insurance company clearly believed that the cover was only extended if the car being driven was itself insured by its owner.  It will be interesting to see whether this case leads to a rewording of some insurance policies.