SCCR Referrals

James Carroll Paul Kinsella v. Her Majesty’s Advocate [2011] HCJAC 58

Mon, 20 Jun 2011 10:07:06 GMT

Reference from the Scottish Criminal Cases Review Commission:- On 9 June 2005 after a trial at Perth High Court the jury by majority convicted the appellant of a charge of assault and robbery he having previously pled guilty to a separate charge of assault to severe injury and permanent disfigurement. He was sentenced to an extended sentence of 9 years 6 months comprising a custodial term of 4 years on the assault and robbery charge and a custodial term of 4 years 6 months on the assault charge with an extension period of one year, said periods of imprisonment to run consecutively. The appellant lodged a note of appeal against conviction and sentence in respect of the assault and robbery charge. Leave to appeal was refused at both the first and second sift. The appellant applied to the S.C.C.R.C. seeking a referral of his case to the High Court of Justiciary. On 30 March 2007, they issued a statement of reasons to the appellant in which it indicated that it would not refer his case to the High Court. The S.C.C.R.C undertook to consider any further submissions before it came to a final decision. Further submissions were made on behalf of the appellant, following which it was decided to refer the appellant's case to the High Court of Justiciary. The grounds of appeal related to a complaint on behalf of the appellant after the Crown sought and obtained a dock identification of the appellant by the witness Pauline Ray after she had made an earlier identification of the appellant from a selection of photographs. No identification parade was held and it was contended that that decision not to hold the parade deprived the appellant of the safeguard provided by the controlled conditions of a parade. Further, there were a number of issues of non-disclosure in relation to the emulator sheets and the earlier identification and it was the appellant’s contention that the Crown, in seeking a conviction on behalf of the Lord Advocate were acting ultra vires and incompatibly with the appellant's right to a fair trial under Article 6(1) of the Convention. It was submitted that had the undisclosed material been available to the defence it would have enabled those then representing the appellant to challenge more effectively the evidence on which the Crown relied in relation to the identification of the appellant. There were also complaints made regarding the failure by the police to properly investigate the appellant’s alibi, together with criticisms of the appellant’s defence team at the original trial who it was claimed inadequately prepared for his trial. It was further submitted on behalf of the appellant that an analysis of the relevant evidence in support of the appellant's alibi inevitably lead to the conclusion that it was "improbable" that the alibi was a fabrication and, as a consequence, no reasonable jury, properly directed, could have returned a verdict of guilty. It was submitted on behalf of the Crown that at in determining the issue of the fairness of the trial it was necessary to assess the whole circumstances of the trial and, once that had been done, it was evident that there had been no miscarriage of justice. In relation to the issue of the “failure” of there being no identification parade, it was conceded that such a parade could be of significance in determining the question of the fairness of an identification, however, it was not necessary to always hold such a parade before it could be said that a dock identification was unfair. Here the court considered the various elements to the appeal following a consideration of the relevant evidence in the case. In particular, the court considered whether:- (1) the emulator sheet containing an image of the appellant taken in 1994; (2) the witness statement of Ruth Robertson; and (3) the crime report, ought to have been disclosed, and secondly whether, in the event of a failure to disclose and having regard to what actually happened at the trial, the trial was nevertheless fair. In other words that with disclosure there was a real possibility that the jury would have arrived at a different verdict. The court considered this in the light of the dock identification and the absence of an identification parade and considered whether the trial judge had erred in refusing to allow those acting on behalf of the appellant to object during the course of the trial as the objection had not been taken timeously. The court went on to consider the perceived failures of the police in adequately investigating the appellant’s alibi and of the defence in failing to recover the taxi firm's records in considering whether there had been an unfair trial. The court considered all of the individual complaints individually and cumulatively to decide whether there had been an unfair trial or a miscarriage of justice.

Dominic Ferrie v. Her Majesty’s Advocate [2010] HCJAC 62

Thu, 24 Jun 2010 16:03:42 GMT

Reference from Scottish Criminal Cases Review Commission:- In August 2002 the appellant was convicted at Glasgow High Court after trial of a charge of murder under certain deletions to the charge. The appellant’s co-accused, Stewart Quinn, was convicted under the same deletions and at a subsequent trial Stephen Nisbet was convicted of the same charge. On 16 September 2005 the appeals of all three were refused. The circumstances of the case were that the appellant, Quinn and Nisbet assaulted the deceased in three phases:- (i) they attacked him in the house; (ii) they threw him out of the window; and (iii) they attacked him in the rear garden by kicking and stamping and by striking him on the head and body with pieces of concrete. It was clear that the blows that caused the death were inflicted in the rear garden. Here the Commission referred the appellant's case on the grounds of:- (1) insufficiency of evidence; and (2) the unreasonableness of the jury's verdict; with further additional grounds lodged on behalf of the appellant, namely:- (a) that there was insufficient evidence to establish that the appellant participated in the assault outside the house; (b) the jury should have been directed on the critical issue as to the appellant's participation in the assault on the ground; (c) the trial judge should have directed the jury on the possibility that the appellant was guilty only of a serious assault on the deceased within the house; (d) the directions of the trial judge suggested that it was sufficient for the appellant to be convicted on the basis of concert if he had been part of a common plan to carry out a serious assault on the deceased; and (e) the trial judge misdirected the jury by failing to direct them that if they did not find concert to be established in relation to the appellant they should acquit him. Here the court considered whether a miscarriage of justice had occurred having regard to the evidence led at the trial, in particular, the three phases of the incident and the evidence of the appellant’s participation in them, together with the criticisms of charge to the jury by the trial judge.

Andrew Charles Affleck v. Her Majesty’s Advocate [2010] HCJAC 61

Thu, 24 Jun 2010 16:00:08 GMT

Reference from Scottish Criminal Cases Review Commission:- On 13 November 2003 at the High Court at Kilmarnock the appellant was convicted by a majority verdict of murdering three people and attempting to murder three more by wilfully setting fire to a house at 17 Sanderson Avenue, Irvine. On 4 December 2003 the appellant was sentenced to life imprisonment with a punishment part of 27 years imprisonment. The appellant appealed against conviction and sentence and on 19 May 2005 the Court refused the appellant's appeal against conviction. On 30 August 2006 the Court upheld the appeal against sentence substituting a period of 23 years. On 7 August 2008 the Scottish Criminal Cases Review referred the case in terms of Section 194B of the Criminal Procedure (Scotland) Act 1995. On 5 December 2008 the appellant lodged a note of appeal against conviction following on the Commission's referral two grounds of appeal were argued. The first of these related to the Crown failing to disclose the outstanding drugs charges of the essential Crown witness Devine which resulted in the defence being unable to properly prepare and present the case for the appellant, and thus breached the appellant's Article 6 rights and deprived him of a fair trial. The second ground related to a contention that that the jury returned a verdict which no reasonable jury, properly directed, could have returned in terms of Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. Here the court considered firstly whether the Crown should have disclosed the relevant material. The court then went on to consider:- "had the outstanding charges in relation to Devine been disclosed and taking all the circumstances of the trial into account, is there is a real possibility that the jury would have arrived at a different verdict?" The issue for the court turned on the issue of whether the non-disclosure gave rise to a real risk of prejudice to the defence.

Petition No. 1 of 2008 by the Scottish Criminal Case Review Commission [2010] HCJAC 49

Mon, 07 Jun 2010 18:43:33 GMT

Here the petitioners, the Scottish Criminal Cases Review Commission, applied to the court under section 194D(3) of the Criminal Procedure (Scotland) Act 1995 for the opinion of the High Court in relation to their ability to investigate an allegation concerning the conduct of a juror or jurors prior to seclusion. In Clow v H.M.A. (2007 SCCR 201) the court held that the confidentiality of jury deliberations was a well-established principle of Scots law:- “Suffice it to say that we are satisfied that any enquiry into the words or actions of serving jurors should be made only by the court or in furtherance of orders made by it." Here counsel for the petitioners submitted that at common law, as under the Contempt of Court Act 1981, the distinction between what could be investigated and what could not was at the point when the jury retired to consider their verdict. It was submitted that the common law rule of jury confidentiality did not apply before a jury retired to deliberate on their verdict. It was further submitted on behalf of the petitioners that if the rule did apply before the jury retired, there was an exception for matters which were extrinsic to their deliberations and it would be inappropriate to require the petitioner to seek permission from the court before making enquiries of jurors. On behalf of the Crown it was submitted that the common law rule applied from the moment of empanelment, however, extrinsic matters did constitute a well established exception to the general rule. It was further submitted that in every case the petitioners should seek permission from the court before contacting jurors. Here the court considered whether the restriction referred to in Clow should also apply to the petitioners and whether a distinction between extrinsic and intrinsic factors would have a bearing on what could be investigated by the petitioners.

George Beattie v. Her Majesty's Advocate [2009] HCJAC 22

Thu, 05 Mar 2009 13:47:00 GMT

Scottish Criminal Cases Review Commission:- Referral under Section 194B of the Criminal Procedure (Scotland) 1995 Act:- On 4 October 1973 the appellant was convicted of murder at Glasgow High Court following trial and sentenced to life imprisonment. An application for leave to appeal against conviction was subsequently refused. On 2 December 1993 the appellant's case was referred to the appeal court by the Secretary of State in the exercise of his power under section 263(1) of the Criminal Procedure (Scotland) Act 1975, on the basis that a forensic report had not been disclosed to the appellant or his legal representatives. That reference resulted in an appeal, which was refused on 2 December 1994. The appellant thereafter made an application to the Scottish Criminal Cases Review Commission. In July 2001 the Commission decided to refer the appellant's case again to the appeal court under section 194B of the Criminal Procedure (Scotland) 1995 Act. Here the court considered the fairness of statements made by the appellant to the police, in light of concerns by the police of the apellant being "a bit simple" and that the trial judge ought to have conducted a trial within a trial to determine the issue of fairness. The court also considered the "special knowledge" nature of certain statements made by the appellant. Further, the court considered the fairness of the appellant's visit to the locus in the company of police officers after the appellant had been cautioned and charged with murder. Here the court considered whether such statements or conduct was voluntarily. The court considered several criticisms of the trial judge's charge including inter alia that the trial judge did not give to the jury a direction on "mixed statements". A further ground of appeal was based on section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, that no reasonable jury, properly directed, could have convicted the appellant. A further ground of appeal was based on fresh evidence in relation to psychological evidence on the unreliability of the appellant's various police statements. Here the court considered the various grounds of appeal and whether a miscarriage of justice had occurred.

Abdelbaset Ali Mohammed Megrahi v. Her Majesty's Advocate [2008] HCJAC68

Tue, 18 Nov 2008 08:38:00 GMT

Criminal Appeal - Bail Application:- On 31 January 2001 the applicant was convicted after trial of the murder of 270 persons after a bomb exploded on Pan Am Flight 103 over Lockerbie. The applicant was sentenced to imprisonment for life with a punishment part of twenty seven years. An appeal against conviction was on 14 March 2002 unanimously refused by a court of five judges. On 28 June 2007 the Scottish Criminal Cases Review Commission referred the case to the Court of Appeal following an examination of the case. Thereafter, the applicant lodged a note of appeal which extended far beyond the reasons for the Commission's reference. Here the court considered whether the applicant should be admitted to bail pending the outcome of the appeal. A number of factors were placed before the court on behalf of the applicant:- (1) the grounds of appeal have a reasonable prospect of success; (2) the lapse of time until the likely disposal of this appeal; (3) The applicant is 56 years of age, married with several children and grandchildren and has been diagnosed as suffering from an incurable cancer; and (4) there was little prospect of the applicant absconding to Libya. Here the court considered the critical question being whether the applicant's present and future health was such that the court should, on compassionate grounds, admit him to bail against the gravity of the charge to which he had been convicted.

Paul McInnes v. Her Majesty's Advocate [2008] HCJAC 53

Tue, 30 Sep 2008 13:21:00 GMT

Criminal Appeal:- On 13 December 2001after trial at the High Court at Glasgow the appellant was convicted of assault to severe injury, permanent impairment and to the danger of life and attempted murder. The appellant was sentenced to eight years imprisonment. Albeit he did not appeal against his conviction and sentence the appellant subsequently made an application to the Scottish Criminal Cases Review Commission which referred his case to the appeal court. The only ground of appeal argued related to the contention that the appellant's right to a fair trial had been denied. The submission largely concerned alleged failures by the Lord Advocate to disclose prior to the trial material which would have been of assistance to the defence of the appellant. Here the court considered whether the appellant had been denied a fair trial because his counsel did not have access to a statement which the police had taken from an eye witness immediately after the witness had viewed an identification parade.

Barry Campbell v. Her Majesty's Advocate [2008]HCJAC50

Wed, 24 Sep 2008 18:03:00 GMT

Referral by the Scottish Criminal Case Review Commission:- In 2003 the appellant stood trial and was convicted of a charge of assault, a contravention of the Firearms Act 1968 section 1(1)(a) and a charge of attempting to pervert the course of justice. A cumulo sentence of four years in respect of the common law offences was imposed and a consecutive sentence of two years was imposed in respect of the firearms offence and the six years sentence of imprisonment was back dated to 12 July 2002. The appellant sought leave to appeal in respect of the firearms charge and the sentence of six years. The appeal against conviction did not pass the first or second sift procedure and the appeal against sentence was refused. Subsequently the appellant lodged an application relating to the firearms charge with the Scottish Criminal Cases Review Commission. The Commission carried out investigations, and ultimately referred the case to the High Court of Justiciary in terms of section 194B of the Criminal Procedure (Scotland) Act 1995. The appellant then lodged a further Note of Appeal relating to the trial judge repelling the no case to answer submission at the end of the Crown case in relation to the firearms charge at the original trial. Here the court considered whether there was sufficient evidence to entitle a jury to draw an inference beyond reasonable doubt that the appellant had knowledge and control of a rifle concealed in a cupboard.

Jason Alexander Jordan v. Her Majesty's Advocate [2008] HCJAC24

Wed, 07 May 2008 09:14:00 GMT

Reference by the Scottish Criminal Cases Review Commission:- On 8 February 2006 at the High Court in Kilmarnock the appellant pled guilty to a charge on indictment under section 76 of the 1995 Act in the following terms:- "Between 15 February 2004 and 2 June 2004 at 106 Wedderburn Street, Dunfermline, you did make indecent photographs or pseudo-photographs of a child: CONTRARY to the C ivic Government (Scotland) Act 1982, Section 52(1)(a) as amended." The maximum period of imprisonment in relation to such an offence is ten years. On 2 March 2006 the appellant was sentenced to an extended sentence of 8 years and 8 months, of which the custodial term was 4 years and 8 months and the extension period was 4 years. The sentence was backdated to 8 February 2006. The sentencing judge indicated that had it not been for the plea of guilty she would have imposed a custodial term of 7 years. The appellant appealed against that sentence. The principal ground of appeal was that the sentence was incompetent, as the sentencing judge had taken as the starting point before discount a sentence which exceeded the statutory maximum. The Appeal Court refused the appeal stating inter alia "...the ultimate result the sentence she imposed did not contravene the provisions of section 210A(5) of the 1995 Act." The Commission thereafter referred the case because the appellant's sentence had been arrived at through an incompetent process of reasoning. Here the court considered the referral in light of the statutory maximum that may be imposed.

Petition of Mohamed Raza for Judicial Review of a Decision of Scottish Criminal Cases Review Commission [2007] CSOH 152

Tue, 11 Sep 2007 09:32:00 GMT

Judicial Review of a decision of the Scottish Criminal Cases Review Commission not to make a reference to the High Court of Justiciary in terms of section 194B of the Criminal Procedure (Scotland) Act 1995:- In February 2005 the appellant was convicted on indictment of several charges of indecent assault and was sentenced to three years imprisonment on the most serious charges, which involved very intimate contact with and injury to one complainer, and imprisonment for one year on the remaining charges to run consecutively with the first sentence. The petitioner applied to the High Court of Justiciary for leave to appeal on the basis that the sentence of four years imprisonment was excessive. The sifting judge refused leave to appeal and an an appeal against that refusal was refused by two judges, who considered that the grounds of appeal were not arguable. The petitioner applied to the Commission, asking it to exercise its power to refer the case to the High Court and a statement of reasons the Commission stated:- "In light of the whole facts and circumstances of the applicant's case, the Commission is not persuaded that the length of sentence imposed upon the applicant was such that it could be said that a miscarriage of justice may have occurred." Here the petitioner sought to have that decision reduced. It was submitted on behalf of the petitioner that the Commission, in terms of section 194C(a) of the Criminal Procedure (Scotland) Act 1995, had erred by applying its mind to the merits of his case, rather than to whether it was arguable.

David Baillie v. Her Majesty's Advocate [2006] HCJAC 91

Fri, 08 Dec 2006 00:00:00 GMT

Referral by the Scottish Criminal Case Review Comm

George McPhee v. Her Majestys Advocate

Tue, 06 Dec 2005 00:00:00 GMT

Referral by Scottish Criminal Cases Review Commission:

Hugh Guthrie McCormack v. Her Majestys Advocate

Wed, 30 Mar 2005 21:00:00 GMT

Referral From Scottish Criminal Cases Review Commission :

The Free Church of Scotland v. The General Assembly of the Free Church of Scotland

Thu, 24 Mar 2005 00:00:00 GMT

Referral by Scottish Criminal Cases Review Commission

Jason Harper v. Her Majestys Advocate

Tue, 15 Mar 2005 00:00:00 GMT

Referral by Scottish Criminal Cases Review Commission