Jury riders - and a fine mess

Posted yesterday on the Scottish courts website (but apparently issued last week), a report of some very peculiar procedures. The case is HM Advocate v Tracey [2007] HCJ 14.

What seems to have happened in this case is as follows. Mr Tracey was charged with having unlawful sexual intercourse with DM, who was under the age of thirteen, on a “number of occasions”. He pled guilty as libelled, and both he and the judge signed that plea. Thereafter, the Crown and his solicitor explained that there was a dispute as to some facts which would be relevant to sentence, particularly his knowledge of DM’s age and whether or not he had intercourse with her on a third occasion after being told of her age.

Since neither of these facts had the slightest bearing on whether Mr Tracey was guilty of the offence or not, the proper course of action might have seemed obvious: either (a) the Crown would have to accept Mr Tracey’s claims for the purposes of sentencing or (b) a proof in mitigation would have to be held, before a judge sitting without a jury. And a proof in mitigation was exactly what the advocate depute and Mr Tracey’s solicitor asked for.

But the judge, Lord Turnbull, was having none of this. He took the view that these were matters for a jury to decide – seemingly by attaching a rider to their verdict – and directed that a plea of not guilty be recorded. The case called for a continued preliminary hearing before Lady Dorrian and finally went to trial before Lord Uist. When the Crown case had closed, Mr Tracey’s agent explained that he intended to call no evidence and that he would be inviting the jury to convict his client.

Unsurprisingly, this peculiar spectacle of a “trial” appears to have caused Lord Uist some concern (not that Mr Tracey’s agent can be criticised in any way). After legal debate, he issued an opinion to the effect that (a) it was doubtful that Lord Turnbull had any power to annul Mr Tracey’s original plea once it had been signed but even if he did, (b) juries should not be invited to add riders to their verdict (meaning that the jury could do nothing useful in this case) and that (c) the matters in dispute between the Crown and defence were a matter for him – which he would determine on the evidence already led – and not for the jury. A plea of guilty was then tendered and the advocate depute moved for sentence, which will take place at a later date.

(All this is procedurally very difficult. Lord Uist takes the view that the initial guilty plea, once signed by Mr Tracey and the judge, "constituted a conviction which could be removed only by being quashed on appeal" (para 7). But if that is true, then surely Mr Tracey was not entitled to plead guilty after the trial, having already been convicted of the offence? And can a sentence still competently be imposed on the first conviction given the proceedings thereafter? Perhaps thankfully, no argument along these lines was made.)

Lord Uist reviews the authorities on jury riders in some detail, and his opinion on this neglected topic is well worth reading. In addition, it might be observed that Lord Turnbull’s initial actions seem incompatible with the case law on pleas in mitigation. In that regard, the appeal court has said that an accused is, in mitigation, entitled to deny any statements made by the Crown unless his denial is inconsistent with his plea of guilty or is manifestly false given other admissions which he has made (Galloway v Adair 1947 JC 7). Mr Tracey’s claims would not have come close to falling foul of that rule.

Update (11/01): Mr Tracey was today sentenced to 21 months' imprisonment and placed on the sex offenders register. See this post.