Andrew Laing v The Queen

An appellant whose criminal appeal is dismissed has a constitutional right to reasons. The court need not answer every argument, but must give enough explanation to assure fair consideration and show why the appeal failed. Reasons should be written or, if given orally, recorded for transcription. The seriousness of the conviction and sentence increases the importance of compliance. A failure to give reasons does not by itself make an otherwise safe conviction unsafe. A higher appellate court may remedy the deficiency by giving reasons where the substantive appeal has merit. After abolition of corroboration, an accomplice warning remains discretionary and depends on the circumstances, issues and evidence.

Andrew Laing was convicted in the Supreme Court of Bermuda of conspiracies to import cannabis and diamorphine and of assaulting a special constable. He received consecutive sentences totalling 18 years.

The Court of Appeal for Bermuda dismissed his conviction appeal and refused leave to appeal against sentence on 9 March 2009. No written reasons were available. The Board extended time for seeking permission to appeal. At the hearing, the appellant sought permission on substantive grounds concerning the accomplice direction and on the procedural ground that the Court of Appeal had failed to give reasons. The central issue was whether that failure required further appellate relief despite the conviction being otherwise safe.

1. Substantive grounds. The Board refused permission to appeal on the adequacy of the trial judge’s directions. Under section 32(2) and section 32(3) of the Evidence Act, abolition of the corroboration rule did not prevent a judge from advising the jury, in the interests of justice, to consider whether accomplice evidence should be supported. The warning remained discretionary. Its content depended on the circumstances, the issues raised, and the content and quality of the evidence, consistently with R v Makanjuola [1995] 1 WLR 1348. The trial judge had identified the witness’s possible grudge and motive, required the jury to treat her evidence with the utmost caution, highlighted the special need for caution, and advised them to look for supporting material. The directions were adequate and the conviction was not unsafe.
2. Right to reasons. Giving reasons is an important element of a fair hearing and part of an appellant’s constitutional right where an appeal is dismissed. The approach in Ruiz Torija v Spain (1995) 19 EHRR 553 showed that reasons need not answer every argument in detail; compliance depends on the circumstances. Fairness requires enough explanation to assure the appellant that the case was properly considered and to explain why the appeal failed.
3. Effect of the omission. The failure of an appellate court to give reasons does not require an otherwise sound conviction to be quashed. As explained in Maharaj v The State [2008] UKPC 28, a higher court’s reasons may in substance remedy the failure where the substantive appeal has merit. Here the Board found no unsafe conviction and its reasons made good the inadequacy. Permission to appeal on the procedural ground was therefore also refused.
4. The Board stressed that, particularly in serious criminal cases with severe sentences, reasons should be given in writing or, if delivered orally, recorded so that they can promptly be transcribed.

1. Privy Council: In [2013] UKPC 14, permission to appeal was refused on the substantive grounds concerning the trial directions and on the procedural ground concerning the absence of reasons.
2. Court of Appeal for Bermuda: On 9 March 2009, the appellant’s conviction appeal was dismissed and leave to appeal against sentence was refused. No written reasons were given.
3. Supreme Court of Bermuda: The appellant was convicted on 21 June 2007 and sentenced on 6 July 2007 to consecutive terms of 17 years for the drug offences and one year for the assault.