Criminal Appeals

Mark Kelbile & Thomas Tams v. Her Majesty's Advocate [2008] HCJAC 45

Thu, 21 Aug 2008 11:24:00 GMT

Criminal Appeal Against Conviction:- Here the appellants appealed against their conviction at the High Court in Edinburgh on 6 July 2005 of a charge of attempted murder. The appeal was heard in two stages. In the first stage of the appeal the court held that the passages of the trial judge's charge subject of that part of the appeal, when read in the context of the trial judge's charge as a whole, did not constitute any misdirection and the appeals were refused. The second stage of the appeal was dealt with here. The remaining grounds of appeal were:- (1) that there was insufficient evidence in law to entitle the jury to convict both appellants and the trial judge accordingly erred in repelling the submission of no case to answer in respect of that charge; (2) that the nature of the evidence was such that no reasonable jury, properly directed, could have convicted both appellants and that the trial judge ought accordingly to have withdrawn the charge from the jury's consideration; and (3) in relation to the second appellant only if he was involved in a concerted assault upon the complainer there was insufficient evidence to establish that he was party to a murderous attack, and ought therefore not to have been convicted of attempted murder. Here the court considered the evidence relied upon by the Crown to establish a concerted attack by the appellants upon the complainer.

James Lieser v. Her Majesty's Advocate [2008] HCJAC 42

Wed, 30 Jul 2008 10:48:00 GMT

Criminal Note of Appeal Against Conviction & Sentence:- On 13 July 2004 at the High Court in Glasgow the appellant was convicted of a charge of murder and was sentenced to life imprisonment, with the punishment part being fixed at twelve years. There were two grounds of appeal:- (1) "In particular it was an error to direct them that the belief entertained by the accused had to be based on reasonable grounds. It is submitted that, since the crime or murder is one of intention, there is no reason why a genuine belief that one is acting in self-defence should not be a defence however that belief is arrived at"; and (2) "... it was a misdirection to suggest that the appellant had to have a reasonable belief that he was under attack. Reference is made to ground 1. By parity of reasoning it is submitted that the belief only had to be genuine." It was submitted on behalf of the appellant that the proper focus in questions of self-defence and provocation was on the mens rea of the accused and in cases of mistaken belief as to violence offered there was no reason why the court should consider any more than whether that belief was genuine and the existence of reasonable grounds would only be relevant to the jury's assessment of the credibility and reliability of the accused's position. On behalf of the appellant it was submitted there was authority for such a proposition in the law of rape where an accused who held a genuine but mistaken belief that the complainer was consenting could not be guilty of rape. On behalf of the Crown it was submitted that the trial judge's directions were in accordance with longstanding authority, for example, Owens v. H.M.A.,1946 J.C. 119, and where an accused claims that he acted in self defence because he believed that he was in imminent danger, he must have had reasonable grounds for his belief. Here the court considered whether the law as previously understood on "error" in such cases was correct.

Graeme Robertson & Paula Deborah Robertson & Michelle Lorraine Deasley v. Her Majesty's Advocate [2008] HCJAC 43

Wed, 30 Jul 2008 10:47:00 GMT

Criminal Note of Appeal in terms of section 65(8) of the Criminal Procedure (Scotland) Act 1995:- In this appeal from the sheriff court it was agreen between parties that the 12 month period provided for in section 65(1)(b) of the Criminal Procedure (Scotland) Act 1995 expired on 21 February 2008. At a trial diet on 21 January 2008, the procurator fiscal depute said that he wished to desert the second indictment pro loco et tempore and sought an extension of the 12 month time limit in terms of section 65(3) of the 1995 Act. At that time, it was recognised by the procurator fiscal depute that charges which had appeared in an earlier indictment, had been omitted from the new indictment. It was submitted to the sheriff that what had occurred was a "clerical" error on the part of the Crown and was a attributable to "human error". On behalf of the appellants the motion was opposed. The sheriff concluded that it was in the interests of justice to allow the Crown motion to desert the second indictment pro loco et tempore and to extend the time limit concerned to 15 March 2008 and took the view that the error in this case was a "venial and excusable mistake". The appellants appealed under section 65(8) of the 1995 Act against the sheriff's decision. It was submitted on behalf of the appellants that:- (1) the sheriff had wrongly held that the Crown had shown a sufficient cause which might justify the extension sought; and (2) the sheriff had failed to exercise his discretion in the proper manner, by exercising it in favour of the Crown. Here the court considered whether the reasons advanced by the Crown in seeking to justify the extension of the relevant time period could be regarded as sufficient, particularly in light of Early v. Her Majesty's Advocate, 2007 J.C. 50 and whether the error(s) was excusable.

Thomas Balmer & Alan Thomas Balmer & Anne Balmer v. Her Majesty's Advocate 2008 HCJAC 44

Wed, 30 Jul 2008 10:45:00 GMT

Petition to the nobile officium of the High Court of Justiciary:- The petition raised by the three petitioners related to the competency of an indictment brought by the respondent against "Rosepark Care Home also known as Rosepark Nursing Home, a now dissolved firm". It is alleged by the respondent that on 31 January 2004 a fire occurred at the home, and that as a result fourteen residents in the home died, four others were injured and the remaining twenty two were evacuated. The indictment contained seventeen charges against the firm. Each charge libelled against the firm related to a charge of a contravention of a statutory provision on an averment that the firm was at the material time an employer in terms of the Health and Safety at Work etc. Act 1974. At a preliminary hearing the petitioners' pleas to the relevancy of the indictment were sustained and the indictment was dismissed on the basis that the employer of those working at the home was at the material time the firm, the firm was a separate legal person from the partners and accordingly the petitioners were not employers in terms of the 1974 Act. The respondent appealed against that decision, but at the hearing of the appeal on 27 June 2007 abandoned it. Thereafter the petitioners were indicted and presented a petition to the nobile officium of the court in which they sought:- (a) declarator that the dissolved firm had not been competently indicted; (b) dismissal of the indictment; (c) declarator that the petitioners were not "accused" within the meaning of section 66 of the Criminal Procedure (Scotland) Act 1995; and, (d) declarator that in the event that the dissolved firm was convicted, the Crown might not recover from the petitioners any penalty imposed on the dissolved firm. It was submitted on behalf of the petitioners that the firm was a legal person which ceased to exist when it was dissolved on 28 February 2005, and that it therefore could not thereafter be indicted and the present indictment was therefore incompetent. On behalf of the respondent it was submitted that a partnership continues to exist after dissolution for the limited purpose of winding up its affairs and settling its outstanding liabilities and the former partners continued to have authority to act on the firm's behalf for that limited purpose and that the present indictment against the firm was such an outstanding liability and was therefore competent. Here the court considered whether the particular indictment to which these petitions were directed was a competent indictment, in view of the fact that the partnership which it sought to indict had been dissolved.

Chief Constable of the Hertfordshire Police (Original Appellant) and Cross-respondent) v Van Colle (administrator of the estate of GC (deceased)) and another (Original Respondents and Cross-appellants), Smith (FC) (Respondent) v Chief Constable of Sussex,

Wed, 30 Jul 2008 07:27:00 GMT

In these two appeals there is a common underlying problem: if the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances?

In the Van Colle case, the threat was made by Mr Brougham against Mr Van Colle (“Giles”) and culminated in the murder of Giles by Brougham. In the Smith case, the threat was made against the respondent, Mr Smith, by his former partner, Mr Jeffrey, and culminated in the infliction of serious injury on Smith by Jeffrey.

In Van Colle, the claim is brought under ss.6 and 7 of the Human Rights Act 1998, in reliance on arts.2 and 8 of the ECHR, and no claim is made under the common law. Giles’ parents state that the defendant, the Chief Constable of Hertfordshire Police, acted unlawfully in violation of art.2 of the ECHR by failing to discharge a positive obligation of the police to protect the life of their son.

In Smith, the claim is made under the common law alone. Mr Smith maintains that officers of Sussex Police owed him a duty of care to prevent his former partner from carrying out threats to kill him and that it was because they were in breach of that duty that Jeffrey was able to attack him causing him serious and permanent injury.

In Van Colle, reference was made to the test and threshold laid down in the case of Osman v. United Kingdom (1998) 29 EHRR 245 in which it was declared that the court must be satisfied that the authorities knew or ought to have known “at the time” of the existence of “a real and immediate risk to life” of an identified individual from the criminal acts of a third party. The House of Lords unanimously held that the Osman test had not been met in this case even though Giles was a witness at Brougham’s trial. Accordingly, the Chief Constable’s appeal was allowed.

In Smith, the question being asked was whether a duty of care should be found to exist when the police, without having assumed any particular responsibility towards the eventual victim, are engaged rather in discharging their more general duty of combating and investigating crime. Generally speaking, it is accepted that in the discharge of this function, the police owe no legal duty of care to individuals affected – the “core principle” as set out in the case of Hill v. Chief Constable of West Yorkshire [1989] AC 53. The House of Lords held (by a 4:1 majority, Lord Bingham of Cornhill dissenting) that there was no basis to depart from this core principle in this case and allowed the Chief Constable’s appeal.

Robert Lowe v. Her Majesty's Advocate [2008]HCJAC 41

Tue, 15 Jul 2008 17:40:00 GMT

Criminal Note of Appeal Against Sentence:- On 9 October 2007 the appellant pled guilty under section 76 of the Criminal Procedure (Scotland) Act 1995 to a contravention of section 5(1)(aba) of the Firearms Act 1968 in respect of a pistol found by the police locked in a safe in his house on 30 November 2006. Section 51A of the Firearms Act 1968 provides that, where a person over the age of 21 is convicted of an offence under section 5(1)(aba), the court shall impose a sentence of at least five years imprisonment unless "the court is of the opinion that there are exceptional circumstances relating to the offence which justify its not doing so". The sentencing judge held that exceptional circumstances did not exist in relation to the appellant when he came to be sentenced. It is against that decision that the appellant appealed here.

John Dye v. Her Majesty's Advocate [2008] HCJAC 40

Tue, 15 Jul 2008 17:39:00 GMT

Criminal Note of Appeal Against Conviction:- On 5 October 2005 the appellant was convicted on indictment of two charges of sexual abuse of children. The Crown relied upon mutual corroboration of the two complainers who were aged 6-8 and 5-7 in respect of charges one and two respectively. At the trial, the defence was based on an attack on the credibility and reliability of the complainers' evidence and, as such, each complainer had to be accepted as credible and reliable as to the essentials of the relevant charge. During the trial counsel on behalf of the appellant sought to challenge the evidence of the complainers with reference to previous statements made by them. Counsel applied to the sheriff during the course of the trial, under section 275, to be allowed to question the complainers about the previous statements. The sheriff granted some parts of the applications, but refused other parts. In relation to the parts that were refused by the sheriff it was conceded by the Crown here that the sheriff had erred in that the proposed cross-examination was permitted by section 263(4) of the 1995 Act, and did not fall within the ambit of section 274. It was submitted that the sheriff's refusal to allow the previous statements to be put led to a miscarriage of justice. Here the court considered whether such evidence could have had such a bearing upon a reasonable jury's determination of the credibility and reliability of the complainer's evidence as to have affected the conclusion which they arrived at.

Robert Cameron v. Her Majesty's Advocate [2008] HCJAC 39

Tue, 15 Jul 2008 17:38:00 GMT

Criminal Note of Appeal Against Conviction:- The court issued an opinion on 20 February 2008 on the appellant's original ground of appeal which related to sufficiency of evidence. In the course of those proceedings the court allowed the appellant to lodge an additional ground of appeal under section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995. The additional ground related to the existence and significance of evidence which was not heard at the original proceedings. Fresh evidence was led before the court here and the question for the court here was whether the new evidence was of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of the critical issue in the case. In addition a petition was lodged on behalf of the appellant in relation to Crown non disclosure and consideration of that was continued pending the outcome of the outstanding Privvy Council case of McDonald and Others v HM Advocate, 2008 S.C.C.R. 154.

PETER WILSON, CHIEF CONSTABLE OF FIFE CONSTABULARY FOR JUDICIAL REVIEW OF A DECISION OF THE POLICE APPEALS TRIBUNAL DATED 19TH MARCH 2006 [2008] CSOH 96

Mon, 07 Jul 2008 08:53:00 GMT

Appeal of decision of Police Appeals Tribunal ('the tribunal'). S30 Police (Scotland) Act 1967. Regulation 20 Police (Conduct) (Scotland) Regulation 1996 (SI 1996/1642. The tribunal allowed an appeal of a decision by a misconduct hearing which had found the respondent, a police officer, guilty of one of three serious charges. He was found guilty at that misconduct hearing of having sex with a woman whilst she was asleep and against her will, and conducting himself in an oppressive and imposing manner. The tribunal overturned this decision on appeal. The tribunal did not hear the evidence again but based its decision on the evidence on record. Whether the tribunal should have reheard the evidence. Whether the tribunal's criticism of the misconduct hearing's decision on the facts was sound , based only on recorded evidence. Case remitted for a fresh hearing before a differently constituted tribunal.

MICHAEL VOUDOURI+TRUST UNION LLC v. HER MAJESTY'S ADVOCATE [2008] HCJAC34

Mon, 07 Jul 2008 08:51:00 GMT

S1 Proceeds of Crime (Scotland) Act 1995 - s72(1) Value Added Tax Act 1994. Appeal of confiscation order made by sentencing judge under 1995 Act following a conviction under 1994 Act. Confiscation of property, the title of which was held by the minuters, Trust Union LLC, a company incorporated in Delaware, USA. Appellant held power of attourney in Trust Union and negotiated missives for purhase of a house. Held by the sentencing judge that inferences could be drawn that significant funding for the house had come from the appellant. Disputed whether the property was 'realisable property' as defined by 1995 Act.

GEORGE CLARK+JAMES SMITH+LIAM FAGAN v. HER MAJESTY'S ADVOCATE+PROCURATOR FISCAL, AIRDRIE [2008] HCJAC 35 Appeal No: XC79/07, XC117/07 and XJ1204/07

Mon, 07 Jul 2008 08:44:00 GMT

s210A Criminal Procedure (Scotland) Act 1995 - s92(2) Sex Offenders Act 2003. Appeal by three individuals of sentences following similar convitions. Convicted of acts of public indecency. Disputed whether public indecency constitutes sexual offence for the purpose of 2003 Act. Whether imposition of extended sentence competent and whether conviction entailed notification requirements (i.e notification within the 'sex offenders register'). Whether public indecency is a 'sub species' of shameless indecency.

DANIEL JACKSON also known as BLYTH also known as EDWARDS v. HER MAJESTY'S ADVOCATE 2008 HCJ 37.html

Thu, 03 Jul 2008 14:51:00 GMT

Appeal against sentence for culpable homicide. Appellant pleaded guilty to charge of culpable homicide after driving dangerously and causing the death of a child and injury of her mother. Disputed whether starting point of 16 years sentence was too high. Whether period of 7 years to effect public protection was wrong in principal. Whether approach to discount correct and appropriate. Discount of twenty five percent applied to sentence.

R v Rahman and others (Appellants) (On Appeal from the Court of Appeal (Criminal Division)), [2008] UKHL 45

Wed, 02 Jul 2008 14:01:00 GMT

In March 2005, the four appellants were convicted before a judge and jury of murdering Tyrone Clarke in April 2004. It was not alleged or proved that any of the appellants had personally struck the fatal blow or blows and they were convicted as accessories or secondary parties to the joint enterprise which culminated in the death of Mr Clarke. The Criminal Division of the Court of Appeal dismissed their appeals against conviction in February 2007. Their appeals to the House raise a narrow but significant question on the direction to be given to the jury concerning the liability of an accessory on facts such as arose in the present case.

It is accepted that the jury must have found that each appellant participated in the attack either (i) by using violence to the victim, or (ii) by surrounding him to enable others to use such violence, or (iii) by being present intending that his presence should encourage others to attack the victim.

The principal question in the appeal was whether an intention by the primary party to kill must be either known to or foreseen by a secondary party if the secondary party is to be held criminally liable for the killing.

There was evidence that the participants in the attack knew that weapons such as baseball bats, a scaffolding pole and a knife or knives might be used to inflict serious bodily harm. There was also evidence on which the jury would have been entitled to conclude that the fatal stab wound was inflicted with the intention of killing Mr Clarke. In these circumstances the judge had directed the jury that they could convict a particular defendant if they were sure that he realised that:-

“one or more of the attackers might produce and use a knife in the attack and that such attacker might kill with the intention of killing Tyrone Clarke or causing him really serious injury.”

Mr Harrison QC submitted that this was a misdirection. The judge should have told the jury that, if they concluded that the principal had struck the fatal blow with the intention of killing the victim, then they should acquit the appellants if they considered that the intention to kill had taken the principal’s action beyond the scope of the common design and rendered it fundamentally different from anything contemplated by the appellants.

The House of Lords rejected that submission. It rested on the proposition that the deliberate killing of Mr Clarke by stabbing him with a knife could be regarded as a complete departure from anything which the appellants contemplated as part of their common design in attacking the opposing group of youths. In the present case the appellants knew that they were taking part in a joint attack with the purpose of causing serious injury, in which one or more of the participants were armed with a knife. Obviously, those participants would not have had a knife with them unless they were prepared to use it in the attack, if the occasion arose. In the absence of any evidence to the contrary, the jury would have been entitled to conclude that the appellants must have realised this when they joined in the attack. Moreover, the appellants were in no position to control what would be done with the knife or knives during the attack. So, in no sense could killing due to the use of a knife be regarded as a complete departure from what the appellants contemplated as being involved in the common design.

The House of Lords unanimously dismissed the appeals.

CHARLES McKENNA v HMA [2008] HCJAC 33

Thu, 26 Jun 2008 09:45:00 GMT

Appeal against conviction for attempted sodomy. Appeal on the grounds that moorov principle of mutual corroboration should not have been applied. Ground 1 of appeal was that separate acts of a sexual assault including digital penetration did not corroborate the charge of attempted sodomy. Ground 2 of appeal was that the Trial Judge had erred in directing the Jury that alleged attempted sodomy could be regarded as part of the same course of conduct as other charges involved. Appeal refused.

Peter Mulligan v HMA [2008] HCJAC 32

Thu, 26 Jun 2008 09:35:00 GMT

Criminal appeal of conviction for rape. Appeal on the grounds that there had been a miscarriage of justice due to conduct of trial judge during Trial. Appellant admitted intercourse but denied that he had done so without consent. Averred by appellant that the complainer had claimed to be a virgin and that this may have been the reason for her distress following the incident, rather than rape. Medical evidence was produced by the complainer showing a previous sexual activity, without objection. The distress theory was not put to the complainer in cross-examination. The principal focus of the appeal based on the intervention of the Trial Judge during cross-examination of DC Lyall. Distress theory put to DC Lyall in wording that stated the complainer was a virgin. The Judge intervened to state that the complainer was not a virgin and that a medical report may be examined to that effect. Further ground of appeal based on admission of heresay evidence without objection. Whether miscarriage of justice. Whether appellant could in any event avoid the consequences of Section 118(8) of the 1995 Act. Appeal refused.

R v. Davis (Appellant) (On appeal from the Court of Appeal (Criminal Division)), [2008] UKHL 36

Wed, 18 Jun 2008 22:00:00 GMT

On New Year’s Day ‘02, a shot was fired which killed two men. The appellant, Iain Davis, was in due course extradited from the US, indicted on two counts of murder, tried at the Central Criminal Court before His Honour Judge Paget QC and a jury and, convicted on both counts. He appealed to the House of Lords against the dismissal of his appeal against conviction by the Court of Appeal Criminal Division.

At trial the appellant admitted that he had been at the party but claimed that he had left before the shooting and denied having been the gunman. Seven witnesses (three of whom were the only witnesses who identified the appellant as the gunman) claimed to be in fear for their lives if it became known that they had given evidence against the appellant. To ensure the safety of these three witnesses, and induce them to give evidence, the trial judge made an order containing various “protective measures”, namely, (1) the witnesses were to give evidence under a pseudonym; (2) the addresses, personal details and any identifying particulars were to be withheld from the appellant and his legal advisers; (3) the appellant’s counsel was permitted to ask the witnesses no question which might enable any of them to be identified; (4) the witnesses were to give evidence behind screens so that they could be seen by the judge and the jury but not by the appellant; and (5) the witnesses’ natural voices were to be heard by the judge and the jury but were to be heard by the appellant and his counsel subject to mechanical distortion.

Appellant’s counsel objected to these restrictions at trial, and argued on appeal that they were contrary to the common law of England, inconsistent with article 6(3)(d) of the ECHR and rendered the appellant’s trial unfair. The Court of Appeal rejected these submissions. The court certified the following point of law of general public importance as involved in its decision:

“Is it permissible for a defendant to be convicted where a conviction is based solely or to a decisive extent upon the testimony of one or more anonymous witnesses?”

The appellant’s challenge did not rest on the anonymity of the witnesses alone but on the combination of the five protective measures. It was the lawfulness of the protective measures, and their effect (if any) on the fairness of the appellant’s trial, that were to be considered in this appeal.

The House of Lords held (unanimously) that the protective measures imposed by the court hampered the conduct of the defence in a manner and to an extent which was unlawful and rendered the trial unfair. Whilst the House recognised the problems confronting the authorities which had led them to adopt these measures, it was not open to the House in its judicial capacity to make such a far-reaching inroad into the common law rights of a defendant as would be involved in endorsing the procedure adopted in the present case. The ability of counsel for the appellant to cross-examine the decisive witnesses against him was gravely compromised. Similarly, the appellant’s trial did not meet the standard required by article 6 of the ECHR (per Lord Roger of Earlsferry).

The House concluded that it was for the Government and Parliament to take notice if there were indeed areas of the country where intimidation of witnesses was rife and to decide what should be done to deal with the conditions which allow it to flourish. Tackling those conditions would be the best way of tackling the problem which lay behind this appeal. Parliament was the proper body both to decide whether such a change was now required, and, if so, to devise an appropriate system which would still ensure a fair trial.

The appeal was accordingly allowed and the case remitted to the Court of Appeal with the invitation to that court to quash the conviction and to decide, if application was made, whether to order a retrial.

Mark Humphrey v. Her Majesty's Advocate [2008] HCJAC30

Thu, 29 May 2008 14:25:00 GMT

Criminal Note of Appeal Against Conviction:- On 14 October 2005 the appellant was convicted of a charge of rape at Glasgow High Court. The appellant appealed against conviction on the following ground:- "That the learned judge erred in repelling the submission by the defence at the close of the evidence that the leading by the Crown of hearsay evidence in terms of section 259 of the Criminal Procedure (Scotland) Act 1995 relating to a deceased witness Joseph Robertson was unfair and in breach of the appellant's right to a fair trial in terms of Article 6 of the European Convention on Human Rights..." The appeal did not, however, proceed by way of a devolution issue. It was submitted on behalf of the appellant that the admissibility of hearsay evidence which could not be cross-examined amounted to a lack of fairness in the trial particularly where the evidence was decisive as counsel submitted it was in the present case. Counsel for the appellant submitted that the deceased's evidence was not simply corroborative but the substance of the case against him. For the Crown it was submitted that the case was strong circumstantially and the heresay evidence of the deceased provided only a part, and not even an essential part, of the whole Crown case and could not remotely be categorised as decisive. Here the court considered all of the evidence led in the trial against the appellant with a view to ascertaining whether the heresay evidence of the deceased was decisive. The court further considered whether the trial judge had dealt with the issue of fairness to the appellant with regard to the admission of the s.259 statement adequately.

Luke Mitchell v. Her Majesty's Advocate [2008] HCJAC28

Fri, 23 May 2008 07:18:00 GMT

Criminal Appeal Against Conviction:- On 30 June 2003 Jodi Jones was murdered in woodland near Dalkeith. Following a trial at the High Court in Edinburgh the appellant was convicted of her murder. The appellant sought leave to appeal and six grounds of appeal were granted and a further ground put forward during the course of the appeal hearing. The grounds of appeal were:- (1) that the trial judge erred in not granting a motion by the defence prior to the trial to move the trial out of Edinburgh due to the extensive rpe trial publicity in connection with tyhe circumstances round the murder and the relationship between the deceased and the appellant; (2) that there was insufficient evidence in law led by the Crown upon which the appellant could be convicted.; (3) that the admission of identification evidence by a number of witnesses was "unfair"; (4) that the trial judge erred in allowing evidence to be led by the Crown about bottles of urine being kept under the appellant's bed; (5) that the trial judge erred in allowing parts of the appellant's police interview by admitted in evidence on the basis that the manner of police questioning rendered the interview inadmissible; (6) that certain evidence given by DC Michelle Lindsay, and Corinne Mitchell should not have been admitted in evidence; and (7) having regard to the totality of the evidence, the verdict returned by the jury was a verdict which no reasonable jury properly directed could have returned. Here the court considered these grounds of appeal. Here the court considered whether there had been a miscarriage of justice.

Nat Gordon Fraser v. Her Majesty's Advocate [2008] HCJAC26

Wed, 07 May 2008 10:13:00 GMT

Criminal Appeal Against Conviction:- On 29 January 2003 the appellant was convicted of the murder of his wife, Arlene, who disappeared from her home on 28 April 1998 and was never seen again. He was sentenced to life imprisonment, with a punishment part of twenty five years imposed. Here he appealed against conviction and against the length of the punishment part. The cornerstone of the Crown case at trial was the notion that the appellant had returned to the family home following the murder and placed the deceased's three rings in the bathroom. Indeed the trial judge had directed the jury during his charge that the jury could only convict the appellant if they held that the appellant had in fact returned the rings to the family home following the murder. The appellant lodged two grounds of appeal:- (1) that the evidence of two police officers who had seen jewellery, including the rings, in the bathroom of the family home by the sink was new evidence and that, since it was not heard by the jury, the conviction amounted to a miscarriage of justice; and (2) that the Crown's failure to disclose the evidence of the police officers to the defence before the trial amounted to a miscarriage of justice. Here the court considered the totality of the circumstantial evidence in the case and whether the Crown failure to disclose the police officers' statements amounted to a miscarriage of justice.

Graham Hughes v. Her Majesty's Advocate [2008] HCJAC20

Thu, 01 May 2008 10:20:00 GMT

Criminal Note of Appeal Against Conviction:- The appellant was indicted on a charge of assault against AH (charge 1) and on two charges of lewd, indecent and libidinous practices and behaviour against AH (charge 2) and JH (charge 3). The appellant was convicted of all three charges following trial. Evidence was led by the Crown from AH and JH. Following the completion of the Crown's case, a submission of no case to answer was made, but repelled. Thereafter the appellant himself gave evidence, as did several witnesses led on his behalf. There were four grounds of appeal:- "(1) There was insufficient evidence in relation to charge 1. There was no corroboration of the complainer's evidence on this charge, and in particular no corroborated evidence to establish the necessary mens rea for the crime of assault. The sheriff erred in rejecting a submission of no case to answer; (2) The sheriff misdirected the jury in relation to charge 1. She erred in directing the jury that they could use the evidence of the complainer in charge 3 (a charge of lewd and libidinous practices) to corroborate the evidence of the complainer in charge 1 (a charge of assault); (3) There was insufficient evidence to entitle the jury to convict the appellant of charges 2 and 3. The sheriff erred in rejecting a submission of no case to answer. The conduct spoken to in relation to each of these charges was significantly different, the sex of the complainer in each was different, and in the whole circumstances the sheriff erred in holding that there was sufficient similarity to allow the jury to apply the Moorov doctrine; and (4) Esto there was sufficient evidence to justify a conviction on charges 2 and 3, there was insufficient evidence to justify conviction on these charges as libelled. In particular there was no evidence of attempted anal penetration in relation to charge 2, and no evidence of simulated sexual intercourse in relation to charge 3." It was submitted on behalf of the appellant that the Moorov doctrine could not be applied as between charge (3) and either of the other two charges and between the charges (1) and (3) and charges (2) and (3) there was insufficient similarity to justify the application of the Moorov doctrine. Here the court considered whether the Moorov doctrine could properly be applied between each of charges (1) and (2), spoken to in evidence by the first complainer and charge (3), spoken to by the second complainer and whether there was a sufficiently close link in time, character and circumstances as to demonstrate that each offence could be seen as an individual element in a single course of criminal conduct.

Mark Lindsay v. Her Majesty's Advocate [2008] HCJAC19

Thu, 01 May 2008 10:19:00 GMT

Criminal Appeal Against Conviction:- On 23 March 2004 the appellant was found guilty of a charge of murder by a unanimous verdict of the jury at Aberdeen High Court. During the course of the trial the main line of defence was a special defence of incrimination. Shortly after his arrest the appellant made a statement to the police in which he identified the incriminee as having been responsible for the murder. The appellant did not give evidence at trial. The grounds of appeal broadly related to defective representation in three separate areas:- (1) that the appellant maintained that he had expressed a wish to give evidence, but at the end of the prosecution case he had been advised against doing so by his senior counsel; (2) that an attack on the character of two Crown witnesses during cross examination by senior counsel would have resulted in the appellant losing his statutory protection and would have inevitably exposed the appellant, had he given evidence, to an examination of his own criminal history, which was significant, and this may have had an effect on his decision not to give evidence; and (3) that no forensic evidence was led by the defence. Here the court considered the grounds of appeal in light of written responses from senior and junior counsel at trial and the instructing solicitor to determine whether there had been a miscarriage of justice.

Peter John Horribine v. Procurator Fiscal, Edinburgh [2008] HCJAC 21

Thu, 01 May 2008 09:21:00 GMT

Criminal Appeal Against Sentence:- On 21 September 2007 at the first calling of the case the appellant pled guilty as libelled to the two charges on the complaint against him, namely, driving whilst disqualified and without insurance, contrary to sections 103(1)(b) and 143(1) and (2) of the Road Traffic Act 1988 (as amended). In relation to the s.103 charge the appellant was sentenced to six months' imprisonment and disqualified from driving for a period of five years; on the second charge the appellant was admonished. The appellant appealed against the sentence on the basis that the custodial sentence imposed was excessive in that the sheriff did not, in respect of the early plea, allow any discount on the sentence of six months, being the maximum which the sheriff could have imposed. In his report the sheriff stated:- "As I understand it, however, such a discount remains a matter for my discretion and in all the circumstances I chose not to exercise that discretion in favour of the appellant. I did so because in my view my powers in relation to this appellant were wholly inadequate. This man should have been prosecuted on indictment. He has an appalling record." It was submitted on behalf of the appellant that the sheriff's reasoning, in particular, in relation to his remarks regarding the forum in which the proceedings were brought were wholly illegitimate. On behalf of the Crown it was submitted that the trial judge had reached his decision to impose the maximum custodial sentence partly because of the seriousness of the offence and partly with a view to protection of the public. Here the court held that it was illegitimate for the sentencer, in circumstances where discounting factors existed, to impose the maximum by reason of his belief that the maximum available to him was inadequate punishment for the offence in question.

Paul Stevenson & Scott Rankine & William Stevenson v. Her Majesty's Advocate [2008] HCJAC 12

Thu, 01 May 2008 09:21:00 GMT

Criminal Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellants were indicted to Paisley Sheriff Court on charges of violence allegded to have occured on 26 December 2004. The charges included allegations of the use of a variety of weapons including a brick, a shovel, a brush and a broom. After sundry procedure a trial diet was assigned for 19 September 2006. Prior to the commencement of the trial it was discovered that the various weapons, all of which were on the list of label productions on the indictment, were missing. It appears that some months prior to the trial the various items were destroyed having been mistaken for rubbish which was being cleared out from the police station where they had been stored. On 16 October 2006 a fresh indictment, without any reference to the various weapons, was served on the appellants citing them to a trial diet on 15 November 2006, with a first diet on 31 October 2006. On 31 October the appellants tabled two preliminary pleas:- (1) that proceedings on the most recent indictment were incompetent as the date fixed for the first diet was less than 15 clear days after the date of service of the indictment, contrary to the terms of section 66(6)(a)(i) of the Criminal Procedure (Scotland) Act 1995; and (2) that each of the appellants was prejudiced by the loss of these objects to such a degree that they could not receive a fair trial and re-indicting the appellants without including these objects as labelled productions was unfair and oppressive. The sheriff repelled the first plea in law and repelled the second plea in hoc statu, and granted leave to appeal to the High Court of Justiciary. Here the court considered whether the procedural irregularity in not having 15 clear days between service of the indictment and the first diet amounted to a fundamental nullity. The court considered whether the shortening of the induciae by one day caused the appellants any prejudice and whether the shortened induciae represented a defect in procedure sufficiently grave to have the effect of rendering subsequent procedure null. In relation to the plea of oppression the court considered whether the re-indicting of the appellants without including the objects as labelled productions was unfair and oppressive. The question for the court was whether there was such prejudice to the prospects of a fair trial that it would be oppressive to require the accused to face trial, the test of oppression being the same in such cases as in any other situation, namley, the court required to ask whether the risk of grave prejudice to the prospects of the accused receiving a fair trial was so grave that no direction by the trial judge to the jury could be expected to remove it.

Alexander Paterson v Her Majesty's Advocate [2008] HCJAC 18

Thu, 01 May 2008 09:17:00 GMT

Criminal Appeal Against Conviction:- The appellant was indicted to Hamilton Sheriff Court on seven charges comprising common law and statutory charges of lewd, indecent and libidinous practices and behaviour. At a first diet it was noticed by the Crown and the defence that charges 5 and 6, both contraventions of section 6 of the Criminal Law (Consolidation)(Scotland) Act 1995, which renders criminal certain indecent behaviour towards a girl aged between 12 and 16, were irrelevant in that on the face of each of charges (5) and (6) at the dates libelled the complainer was, according to the date of birth libelled, over the age of 16. The prosecutor moved the court to allow charges (5) and (6) to be amended, the effect of the amendment, was to change the charges from contraventions of the statute to allegations of breach of the peace. The motion was opposed by the defence but allowed by the sheriff. Following trial the appellant was convicted of all but one of the seven charges including the two breach of the peace charges. There were a number of grounds of appeal including inter alia:- (1) that the amendments made changed the character of the offences and the sheriff had erroneously exercised his discretion in allowing the amendments; (2) that the evidence on these charges was insufficient in law to establish a breach of the peace; and (3) that the sheriff misdirected the jury in relation to what constituted a breach of the peace. Here the court considered whether the amendment allowed by the sheriff amounted to the curing of a fundamental nullity or whether the original charge was simply irrelevant and therefore open to amendment. The court went on to consider whether the conduct complained of in charges five and six amounted to a breach of the peace and whether the sheriff misdirected the jury as to the definition of breach of the peace.

Elyes Alili v. Her Majesty's Advocate [2008] HCJ3

Thu, 03 Apr 2008 12:48:00 GMT

Criminal Appeal Against Sentence:- On 21 November 2006 the appellant pled guilty on indictment at Edinburgh Sheriff Court to a charge of having in his possession or under his control with the requisite intention an identity document, namely a French identity card in the name Dani Dib, that was false and that he knew or believed it to be false contrary to the Identity Card Act 2006, section 25(1)(a). He was sentenced to a period of thirty two months' imprisonment and a recommendation was made that the appellant be deported from the country on completion of his sentence. The appellant appealed against these disposals. At an earlier hearing the appeal against the length of the custodial part of the sentence was heard and the sheriff's sentence was reduced to 12 months discounted from 18 months on account of the early plea. The earlier hearing in relation to the deportation order could not be heard as the court sought further information from the sheriff. The sheriff thereafter forwarded a supplementary report in relation to the Crown motion for deportation that was granted by the sheriff. Here the court considered the recommendation for deportation in light of the further information provided by the sheriff, in particular, the court considered whether the continued presence of the appellant in the country would be contrary to the national interest.

Bryan Donaldson v. Her Majesty's Advocate [2008] HCJAC14

Thu, 20 Mar 2008 17:08:00 GMT

Criminal Appeal Against Conviction:- The appellant was found guilty of a charge of attempted murder that included an averment that the appellant did "seize her by the head, struggle with her, push her head towards an open fire, ignite a quantity of fireworks causing them to explode and detain her in said cottage against her will all to her severe injury and you did attempt to murder her." There were two grounds of appeal argued both of which arose from parts of the judge's charge. The first related to the judge's directions in relation to what amounted to "severe injury". The judge contrasted it with injuries which could be described as "trivial". On behalf of the appellant it was submitted that such a description was an over simplification. The remaining ground of appeal related to the part of the judge's charge which dealt with the appellant's evidence and described the accused's position in relation to the evidence of the complainer as being "an elaborate hoax by her as an act of revenge for his infidelity". It was submitted on behalf of the appellant that this terminology, also used by the advocate depute in his speech to the jury, was highly tendentious and likely to lead to a miscarriage of justice.

Heidi Marie MacKay v. Her Majesty's Advocate [2008] HCJAC16

Wed, 12 Mar 2008 11:20:00 GMT

Criminal Note of Appeal Against Conviction:- On 15 June 2006 the appellant was convicted of:- "On 17^{or 18 January 2006 at 88 Creag Dhubh Terrace, Inverness you ... and Thomas James Allan did assault Brian Cooper residing there and did repeatedly punch and kick him on the head and body, repeatedly stamp on his head and body, stand on his head, repeatedly strike him on the body with a metal instrument, place a pillow over his head and compress same restrict his breathing, struggle with him and did murder him".}The co-accused was acquitted of murder but was convicted of assault. During the trial and the examination-in-chief by his counsel of the co-accused, counsel sought to elicit evidence from the co-accused, that he had made a prior statement to the police, that was effectively self-serving, seeking to exculpate himself and expressly incriminating the appellant. Counsel for the appellant sought to have the trial deserted when the trial judge ruled that such evidence was both competent and relevant at the material time in the trial. The trial judge refused the motion to desert. On behalf of the appellant at appeal it was submitted that the leading of such evidence was prejudicial to the appellant's position and was unfair and the trial should therefore have been stopped. It was conceded by counsel, however, that the leading of such evidence was not incompetent but rather the challenge was limited to a complaint of prejudice. A further ground of appeal related to a failure on the part of the trial judge to deal with the issue of culpable homicide when charging the jury. Here the court considered whether, in the particular circumstances of the case, such a verdict had been canvassed in the evidence or formed part of a submission to the jury by counsel.

Abdelbaset Al Megrahi v. Her Majesty's Advocate [2008] HCJAC 1

Wed, 12 Mar 2008 11:18:00 GMT

Petition for Recovery of Documents:- Under section 194B of the Criminal Procedure (Scotland) Act 1995 the Scottish Criminal Cases Review Commission referred the case to the High Court. In its Statement of Reasons the Commission explains that in 2006 the Crown Office informed it of the existence of two protectively marked documents in its possession. The documents had never been made available to the defence. A representative of the Commission was given conditional access to these documents. The Commission sought the consent of the Crown to disclose the documents but was informed that such consent could not be given without the permission of the relevant authorities of the country from which the documents had originated and although attempts had been made to secure consent no such consent had been given. A petition was presented for the recovery of the two documents on the grounds that disclosure of the document ought to be made to the petitioner for the purposes of his appeal. Here the argument was restricted to the competency of the Advocate General's fourth plea-in-law which stated:- "It being in the public interest that the documents sought be immune from recovery, the Petition should be refused". The Lord Advocate adopted the position that the appropriateness of disclosure was subject to the Advocate General's plea of public interest immunity and the competency of the Advocate General's plea was not dependent on the Lord Advocate positively asserting an immunity in a field in which she had no direct involvement.

Murdo Smith v. Her Majesty's Advocate [2008] HCJAC 7

Wed, 13 Feb 2008 10:23:00 GMT

Criminal Appeal Against Conviction:- In 2002 the appellant, a man in his fifties with no previous convictions, was convicted after trial at the High Court, of being concerned in the supplying of heroin contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. At the close of the Crown case, defence counsel submitted that there was no case to answer in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. That submission was rejected. The appellant was ultimately convicted by majority verdict, and sentenced to five years imprisonment. The case against him comprised of a search of his home and the recovery of bank-notes totalling £81,300 found in a hidden safe, a briefcase, and a carrier bag in a cupboard in the main bedroom. When the bank-notes were analysed, they were shown to be heavily contaminated with heroin. No other illegal drugs, traces of such drugs, tick-lists, or other paraphernalia normally associated with drug-dealing were found in the appellant's home. It was submitted on appeal that there was insufficient evidence to convict the appellant, in particular there was no "...identifiable act of participation, established by sufficiently relevant corroborative evidence...The mere possession of money was insufficient in law to establish that the Appellant was knowingly concerned in the supplying of drugs". It was submited on behalf of the appellant that one could not be concerned in the supplying of a controlled drug if one was not aware of being involved in the supplying of something. It was submitted for the Crown that the court could draw the necessary inferences that the appellant was concerned in the illegal supplying of diamorphine. Here the court considered whether the defence submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 should have been sustained.

Procurator Fiscal, Glasgow v. Craig Von & Carson Hume [2008] HCJAC9

Wed, 13 Feb 2008 10:22:00 GMT

Crown Appeal under section 174 of the Criminal Procedure (Scotland) Act 1995:- The respondents appeared on complaint in relation to charges of breach of the peace aggravated by relgious prejudice. On 31 October 2006 at an intermediate diet the respondents lodged Devolution Minutes for which they requested a diet of debate which duly occurred on 15 November 2006. Those acting on behalf of the respondents made an application to the Procurator Fiscal for the names of various police officers involved in the incident be disclosed to them. The Crown refused. The Court, having heard argument, sustained the Minutes and dismissed the case against both respondents. Here the Crown appealed against the decision to dismiss the case arguing that the defence should have sought a specification of documents to recover the information they sought prior to the lodging of a Devolution Minute and Article 6 had not been breached to a determinative level and the case should be remitted to the sheriff to proceed. It was submitted on behalf of the respondents that the attitude of the Crown in response to the legitimate demands being made for disclosure by the defence, were so outrageous that it offended Section 57(2) of the Scotland Act in respect that the Lord Advocate had acted in a way incompatible with the rights of the Convention available to an accused person.

Procurator Fiscal, Dumfries v. Alan Cotton [2008] HCJAC 8

Wed, 13 Feb 2008 10:17:00 GMT

Crown Appeal in Stated Case:- On 25 September 2006 the respondent was recorded driving his motor vehicle at a speed of 87mph on a stretch of road where the maximum permitted speed was 70mph. On 28 September 2006 the police sent out a notice of intended prosecution by recorded delivery to the respondent's registered address but it not received by the respondent (it appeared that the recorded delivery message had been lost by the Royal Mail before delivery). A complaint containing a charge of speeding was served on the respondent by the appellant, and a trial was fixed. At trial the respondent argued that he should be acquitted because a notice of intended prosecution had not been served on him in terms of section 1 of the Road Traffic (Offenders) Act 1988 as amended. The Justices agreed with the respondent, and acquitted him of the charge. Here the Crown appealed against that decision. It was submitted on behalf of the Crown that once the statutory requirement imposed on the Crown to issue warning of prosecution in terms of section (1A)(c) is achieved, whether the notice was received, or not, is irrelevant.

John Locke v. Her Majesty's Advocate [2008] HCJAC 6

Wed, 06 Feb 2008 18:17:00 GMT

Criminal Appeal:- On 14 November 1983 the appellant was sentenced to three years' imprisonment for rape and on 25 March 1988 was sentenced to fifteen years' imprisonment for the rape of a sixteen year old girl. On 4 August 1998 the appellant was convicted after trial in the High Court at Inverness of the rape of a fifteen year old girl on 2 April 1998, within three months of the appellant having been released after serving ten years of his previous term of imprisonment. The appellant had also been convicted of other crimes of violence, namely, in 1976 he had been sentenced to twelve months in a Young Offenders Institution for assault to severe injury and in 1984 to three years' imprisonment for robbery. On 4 August 1998 the trial judge imposed on the appellant a cumulo sentence of life imprisonment and, in terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993(as then amended), fixed the "designated part" of the sentence at fifteen years. The appeal comprised the ground that there had been a miscarriage of justice - "in that the designated part of 15 years is excessive having regard to the matters which the learned trial judge was required to take into account in terms of the Prisoners and Criminal Proceedings (Scotland) Act 1993, Section 2, and the failure of the learned trial judge to take into account the early release provisions of Section 1 of the said Act in the calculation of the said designated part." On 2 May 2003 a bench of five judges in Ansari v H.M.A., 2003 SCCR 347, by a majority, fixed the "punishment part" of that appellant's discretionary life sentence but the approaches adopted by the majority and the minority respectively to the task of fixing that part were different. In March 2004 the appellant in this case submitted proposed amended grounds of appeal including a challenge to the correctness of the approach adopted by the majority of the court in Ansari. In this case the appeal was appointed "to a full hearing before 3 judges to consider the question of the soundness of the decision in Ansari v HMA 2003 SCCR 347 prior to a decision being made as to whether it will be necessary thereafter to remit to a bench of 7 judges ... " Here the court considered whether to remit the appeal to a bench of seven judges, or, to appoint a further hearing to consider whether the designated part of that sentence was excessive.

Her Majesty’s Advocate v Emma Jean Grant [2007] HCJAC 71

Thu, 24 Jan 2008 14:49:00 GMT

Appeal - The respondent had been indicted in respect of alleged contraventions of the Misuse of Drugs Act 1971. At the first diet the respondent lodged a minute in terms of section 79 of the Criminal Procedure (Scotland) Act 1995 objecting to the admissibility of evidence of three named Crown witnesses as this would constitute a contravention of section 4(3)(a) of the 1971 Act. Accordingly, the evidence of the three witnesses would, in terms of HM Advocate v Cormack be inadmissible. On the motion of the prosecutor, unopposed by the defence, consideration of this minute was continued to the trial diet at which time the minute was argued by the parties. The sheriff decided to grant the minute and held that the evidence of the three witnesses, was inadmissible. In his report to this court the sheriff summarised the submissions of parties and the cases to which reference was made before him, which were discussed here. Once the sheriff had given his decision, the prosecutor requested leave to appeal to this court, and the solicitor for the respondent did not oppose this motion, agreeing that it was appropriate and desirable for the matter to be determined by appeal before commencement of the trial.

Colin MacDonald v Her Majesty’s Advocate [2008] HCJAC05

Thu, 24 Jan 2008 14:46:00 GMT

This was an appeal against a decision of Lord Bracadale in respect of a preliminary issue as to the competency, or relevancy, or both of the charges of breach of the peace that had been brought against the appellant. The matter raised was that the issues raised in the two charges should go for determination by a jury at trial. The Court had to consider whether the charges were competently brought.

Robert Paterson v HMA

Thu, 17 Jan 2008 14:46:00 GMT

Bill of Advocation – Appeal Court, High Court of Justiciary – Petition to nobile officium/order of pro loco et tempori substitution for proceedings simplicator.
Case involved indictment of complainer on six charges including murder by shooting and assault by presenting a fire-arm. Charge 6 was a charge of attempting to pervert the course of justice. Crown witnesses had been warned about lines of cross-examination which were likely to arise. Discussed test of whether re-trial would inevitably be unfair. Not accepted that since error on part of Crown more prejudice caused to complainer. Refusal to grant Bill of Advocation. Petition to the Nobil Officium incompetent since remedy provided at this Hearing.

Robert Paterson v HMA [2007] HCJAC3

Thu, 17 Jan 2008 13:32:00 GMT

Appeal – section 65(8) Criminal Procedure (Scotland) Act 1995 – appealed extension of time limit for commencement of Trial and extension of time limit for detention under Section 65 of 1995 Act.

This case involved indictment of appellant on six charges including murder by shooting and assault by presenting a firearm. Evidence from key witness contained in Crown statement. Important passage in statement “redacted” and obscured from vision. Written copy of statements revealed evidence. It was disputed that discretion of Trial Judge exercised properly in extending period of detention. Whether Crown’s error excusable. Account taken by Appeal Court of broader range of considerations relevant at that stage including serious nature of principal charge and public interest. Appeal refused.

John McDonald +Brendan Dixon+Richard Blair v. Her Majesty's Advocate [2007] HCJAC 75 Appeal No: XC732/05, XC213/05 and XC406/05

Thu, 10 Jan 2008 17:31:00 GMT

Appeal – Three appellants - The appellant McDonald was convicted of murder and of various firearms offences and was appealing against that conviction. The appellant Dixon convicted of murder and of attempting to defeat the ends of justice. He was appealing against conviction and sentence. The appellant Blair was convicted of murder. He was appealing against conviction. In each of these appeals the appellant had lodged a petition for recovery of documents. Associated with the petitions for recovery of documents there was a devolution minute. These matters were considered here in respect of all three appellants.

Jason William McCafferty OR Simpson + Dennis Christie v. Her Majesty's Advocate [2007] HCJAC76

Thu, 10 Jan 2008 14:30:00 GMT

In these two appeals the court considered the law and practice of the backdating of sentences passed on persons prosecuted in solemn proceedings who have spent time in custody continuously from the date of committal for further examination to the date of conviction and the date (if different) of sentence. If the sentence is to be backdated, it considered if it should be to the date of committal for further examination, or to the date of committal until liberated in due course of law (full committal). In doing so, the court had to consider the proper interpretation and application of Section 210(1) of the Criminal Procedure (Scotland) Act 1995.

Lord Advocate v. Joseph Harrison [2007] HCJAC 74

Wed, 19 Dec 2007 18:01:00 GMT

Criminal Note of Appeal - Crown Appeal Against Sentence - Culpable Homicide:- On 19 October 2005 the respondent pled guilty to a charge of culpable homicide:- "On 22 February 2005 at Castle Terrace, Aberdeen, Denside of Catterline or elsewhere, whilst within motor car registered number P595 FSR, you did assault Susan Mary Third ... and did seize her by the neck, place your hands around her neck and compress same, place a ligature and compact disc carrier case or similar item against her neck and compress same, and did kill her". On 3 August 2006 the respondent was sentenced to a period of imprisonment of nine years (six years and an extended sentence of three years) backdated to 28 February 2005. Here the Crown appealed against the imposition of that sentence on the basis that it was unduly lenient in terms of the Criminal Procedure (Scotland) Act 1995, sections 108 and 110. The basis of the tendering of the plea was that the Crown accepted that the respondent was suffering from diminished responsibility at the time of the commission of the offence in that he was suffering from a mental disorder, within the meaning of the Mental Health (Care and Treatment)(Scotland) Act 2003. After the imposition of an interim compulsion order and a period of examination and treatment in the State Hospital, it was concluded, by the doctor treating the respondent, that he was no longer suffering from a mental disorder and could be sentenced in the normal way. The sentencing judge passed sentence on the basis that the respondent's responsibility for the offence was substantially diminished. It was submitted on behalf of the Crown that the risk presented by the respondent was high and a full account had not been taken of that. For the respondent it was submitted that all the relevant risk factors which should be taken into account were before the sentencing judge. The court also considered whether a discount of 25% at a continued preliminary hearing was appropriate in the circumstances of the case, in particular, the extensive psychiatric investigations carried out by the defence.

Michael John Murphy v. Her Majesty's Advocate [2007] HCJAC72

Thu, 13 Dec 2007 16:51:00 GMT

Application for Leave to Appeal to the Privy Council Under Paragraph 13 of Schedule 6 to the Scotland Act 1998:- On 20 June 2003 the appellant was convicted after trial at of a number of offences against children. The appellant appealed against the conviction and the appellant's appeal was refused by a majority of the Criminal Appeal Court. Thereafter an application was made on behalf of the appellant for leave to appeal to the Privy Council under paragraph 13 of Schedule 6 to the Scotland Act 1998. It was submitted that the right to a fair trial enshrined in Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms extended to the preparation of a defence on the part of an accused person and in the present case the appellant had been prejudiced by having been brought to trial so many years after the events to which the allegations against him related. It was submitted that he had been disadvantaged in comparison with the position of the Crown, in that the Crown's case relied upon persons who had been pupils at the approved school, whereas the staff of which the appellant had been a member were older and defence witnesses who may have been available at the time were now dead or otherwise unavailable. Further, an electrical generating device referred to in certain of the allegations against him had not been capable of being used as a weapon in an assault and that device had been discarded and was unavailable at the time of the trial. It was submitted that the greater the gap of time between the dates of the alleged crimes and the date of trial, the more difficult it was for an accused person to defend himself and leave to appeal should be granted. It was submitted on behalf of the Crown that (1) the contemplated appeal was incompetent and, (2) esto it was competent leave to appeal should not be granted. Here the court considered whether there had been "a determination of a devolution issue" by the court as it was only then that the court could grant leave for an appeal to the Judicial Committee of the Privy Council in terms of paragraph 13 of Schedule 6 to the 1998 Act.

Alexander Touati & Russell Gilfillan v. Her Majesty's Advocate [2007] HCJAC 73

Thu, 13 Dec 2007 16:50:00 GMT

Criminal Note of Appeal Against Conviction:- The appellants were convicted of the murder of James Connelly and a charge of attempting to defeat the ends of justice by concealing weapons and clothing used and worn at the time of the commission of the murder. Three grounds of appeal were insisted upon by the first appellant. Criticisms of the judge's charge were made in particular the trial judge's treatment of self-defence and provocation and of the basis upon which the jury might find that the first appellant was the actor in the use of the sword. It was submitted that the trial judge had failed to put self defence and provocation in the context of the appellant's account of events. It was submitted on behalf of the second appellant that he had been denied a fair trial due to the length and the complexity of the trial and there was a greater need for specific directions from the trial judge, in particular, how the jury should approach and deal with certain aspects of evidence in the trial. It was further submitted that the directions on provocation were seriously flawed. It was further submitted that the trial judge had inadequately dealt with a question that had arisen about the conduct of a juror in the course of the trial. The conduct in question was that a female juror had for some time been scowling not just at the first appellant but also at the other accused. She had at one point, it was reported, mouthed the words "you four are going down" or words to that effect. The jury had not been directed that, if any of its members had concerns about the conduct of any fellow juror, this should be brought to the attention of the judge before a verdict was returned. It was submitted that such a direction was essential and the absence of it resulted in an unfair trial.

James William Scott v. Her Majesty's Advocate [2007] HCJAC 68

Thu, 06 Dec 2007 16:12:00 GMT

Criminal Note of Appeal Against Conviction and Sentence:-On 16 March 2004 at the High Court in Glasgow the appellant was found guilty by majority of murder. A number of grounds of appeal were lodged and argued here:- (1) that there was insufficient corroborative evidence to justify the case going to the jury there being only one eye witness to the attack, namely the deceased's father; (2) that the introduction of the identification evidence, namely that the principal eye-witness had seen the appellant in a cell in a holding area, on the door of which was the appellant's name and the notation "ID" prior to the conduct of the identification parade, was incompatible with his right to a fair trial in terms of Article 6(1) of the European Convention on Human Rights, and resulted in an unfair trial; (3) the alleged failure of the trial judge to give directions on the unreliability of identification evidence, particularly so given the absence of any such evidence from any source other than the deceased's father; (4) an alleged failure by the Crown to disclose material information to the defence concerning the full nature of the criminal history of the deceased's father, and to see that such evidence was placed before the court. The court here considered the various grounds.

George Francis Burns v. Her Majesty's Advocate [2007] HCJAC 66

Wed, 28 Nov 2007 18:32:00 GMT

Criminal Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- In this case the appellant has been indicted in relation to various statutory offences related to indecent photographs or pseudo-photographs of children under the Civic Government (Scotland) Act 1982 and a single charge of breach of the peace. Two of the offences are alleged to have occurred on 18 February 2003 and the alleged in the remaining charges between 1 January 2000 and 18 February 2003. On 18 February 2003 the appellant was arrested at a service station at Luton in Bedfordshire.following information from the United States of America about the appellant being a member of an online paedophilic group. He was taken to a local police station where he was interviewed. Prior to his release on police bail the interviewing officer stated to him:- "What I'm going to recommend to the Custody Sergeant is that you be bailed from here, because I don't know what jurisdiction to charge you in ... I will be recommending that you are charged with offences in the future and they will either be in England and Wales or in Scotland. And unless circumstances change drastically, I don't see you having another opportunity in relation to these offences, which is conspiracy to distribute, yeah, being available to you". The appellant was subsequently indicted and lodged a devolution minute in which he contended that he had been deprived of his entitlement to a hearing within a reasonable time contrary to Article 6 of the European Convention on Human Rights. More particularly it was claimed on his behalf that he had been given "official notification" of the charges on 18 February 2003 at Luton Police Station and the clock, as far as unreasonable delay was concerned, started ticking at that date. Here the court considered whether that amounted to "..official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence" (Eckle v Federal Republic of Germany (1982) 5 EHRR 1).

Stewart Robertson & Stephen Gough v. Her Majesty's Advocate [2007] HCJAC 63

Tue, 13 Nov 2007 18:54:00 GMT

Criminal - Petition and Bill of Suspension:- On 10 April 2001 the petitioner was called as a Crown witness at Paisley sheriff court in a trial on indictment. During the course of his evidence he was repeatedly warned regarding his failure to answer the questions put to him by the procurator fiscal depute and the procurator fiscal depute and the sheriff warned him several times about prevarication. The sheriff told him that he was considering making a finding of contempt. Thereafter a solicitor addressed the sheriff on behalf of the petitioner and the solicitor did not deny that the petitioner had prevaricated and described a background of intimidation by way of explaining the petitioner's conduct. The sheriff then made a formal finding of contempt. Here the petitioner averred that his right to a fair hearing under article 6(1) of the European Convention on Human Rights had been breached. In relation to the Bill of Suspension, the complainer has become notorious for persistently being naked in public. On four separate occasions between 15 November 2005 and 1 March 2006 the complainer was found in contempt at Edinburgh Sheriff Court for refusing to wear clothing in court. Four Billls were presented and in each it was averred that to appear in court undressed does not amount to a contempt of court. In this five bench decision the court considered inter alia (1) what amounts to contempt of court and (2) should the sheriff have dealt with the matter ex proprio motu in each of these cases? It was submitted on behalf of the petitioner and complainer that the question of contempt should have been remitted to another sheriff. The question whether Article 6 affords an accused person in Scotland any more protection than they are afforded at common law was also discussed.

Paul Spence v. Her Majesty's Advocate [2007] HCJAC 64

Tue, 13 Nov 2007 18:52:00 GMT

Criminal Note of Appeal Against Sentence:- The appellant was convicted of culpable homicide and was sentenced to 8 years detention in a Young Offenders Institution. He appealed against that sentence. The appellant was indicted for murder and had offered in general terms a plea to culpable homicide, the charge that he was eventually convicted of. It was decided that this may be a case where guidance could be provided by the court under section 118(7) of the Criminal Procedure (Scotland) Act 1995) as to the matter of sentence in circumstances where an accused had, it was said, offered to plead to a lesser charge and in the event had been convicted of that lesser charge. The sentence was appealed on two grounds:- (1) the youth and personal circumstances of the appellant and the "low level of violence" used and (2) the inadequacy of any discount for the appellant's offers to plead guilty to culpable homicide prior to the trial. At trial the jury heard that the appellant had voluntarily armed himself with a knife and deliberately used it upon an unarmed person, in circumstances where his action was neither justified nor mitigated by provocation. Here the court provided some general guidance as to the levels of discount which might be expected in the event of an intention to plead guilty being clearly indicated at particular stages in solemn proceedings and subsequently adhered to, with the maximum third discount for the earlierst section 76 pleas reducing down to a maximum of 10% for a plea at a trial diet. In relation to the present case the court considered whether the appellant's sentence of 8 years detention was excessive.

Zhi Pen Lin v. Her Majesty's Advocate [2007] HCJAC 62

Tue, 06 Nov 2007 19:21:00 GMT

Criminal Note of Appeal Against Sentence:- At Forfar Sheriff Court the appellant pled guilty to a contravention of section 4(2)(a) of the Misuse of Drugs Act 1971, namely the production of cannabis between 10 February and 5 March 2007. Due to the plea being tendered at the first diet the appellant's sentence was discounted from 5 years' imprisonment to 3 years and 9 months. On leave to appeal being granted, this appeal was identified as a case in which it might be appropriate for the court to exercise its power, under section 118(7) of the Criminal Procedure (Scotland) Act 1995, to issue guidance on sentencing. In these circumstances intimation was given to the Crown that the court would welcome being addressed by it on the general issues arising. A court of three judges was convened. Here the court considered (1) the appropriate starting point for such "gardeners" involved in relatively large scale operations of the production of cannabis and (2) whether in the present case the starting off point of 5 years was excessive.

Francis Donnelly (Snr), Francis Donnelly (Jnr) and Darryn Donnelly v. H.M.A. [2007] HCJAC59

Thu, 01 Nov 2007 17:01:00 GMT

Criminal Note of Appeal Against Conviction and Sentence - Concert:- On 9 February 2004, after trial, the appellants were found guilty of inter alia a charge of attempted murder and each appellant was sentenced to 8 years imprisonment. The appellants appealed against their convictions on the basis that:- (1) the trial judge had erred in directing the jury on concert in that there was no evidence that the appellants either had a knife or had knowledge or grounds to suspect that a knife would be used by another and there was no evidence from which it could reasonably be inferred that he had been party to a common criminal purpose with the scope of attempt to murder, either with or without a knife; (2) the trial judge misdirected the jury in relation to the approach that they required to take to determine the extent of the common criminal purpose and (3) the trial judge misdirected the jury in relation to the use of the words "You are dead", alleged to have been said by the wife of the first named appellant and it was submitted that the directions given by the trial judge on this issue may have caused confusion as to what use the jury could make of the words quoted. Here the court considered whether the trial judge's directions to the jury on concert were adequate.

Michael Murphy v. Her Majesty's Advocate [2007] HCJAC57

Thu, 11 Oct 2007 09:01:00 GMT

Criminal Note of Appeal Against Conviction & Sentence:- On 20 June 2003, at the High Court in Edinburgh, the appellant was found guilty of ten out of fourteen charges following trial. The appellant was a member of the de la Salle Order. Following training, the appellant took his vows in 1959, after which he went to work at St Ninian's School, Gartmore, an approved school, where he worked between 1961 an 1969. The appellant was a welfare officer. In relation to the ten charges of which he was convicted there were nine complainers.The appellant was subsequently sentenced to two years imprisonment in cumulo. A number of documents containing various grounds of appeal were lodged, however, many were not insisted upon. Remaining grounds included:- (1) "Further and in any event, the appellant did not receive a fair trial within the meaning of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms as a result of the delays hereinbefore referred to. Reference is made to the Devolution Minutes presented to the Court at said preliminary diet."; (2) a challange to the manner in which identification evidence was led at trial, in particular, the manner in which the Crown during the trial failed to ask witnesses to make "dock identifications" yet still relied on other areas of identification evidence from those witnesses; (3) oppression in that the trial judge misdirected the jury in so far as he failed to give them adequate directions about prejudice to the appellant as a result of the absence or loss due to the passage of time of evidence which would have been available to the appellant for use in his defence to the charges libelled and (4) defective representation following a failure by his senior counsel at the trial not to renew de novo the plea of oppression advanced on behalf of the appellant at a pre-trial hearing. Here the court considered inter alia whether sufficient evidence had been led at trial to identify the appellant as the perpetrator of the crimes set out in the charges with which the appeal related. The court considered in relation to oppression whether the trial judge had failed to give adequate directions concerning such prejudice.

Colin Anderson v. Her Majesty's Advocate [2007] HCJAC 50

Thu, 27 Sep 2007 08:29:00 GMT

Criminal Appeal Against Conviction:- On 28 April 2005 the appellant was convicted of rape after trial. The appellant appealed against his conviction on the basis of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 namely that "there has been a miscarriage of justice in respect that the verdict returned by the jury was one which no reasonable jury, properly directed, could have returned..." In particular the appeal related to (1) the incredible and unreliable evidence of the complainer viewed against the remaining Crown evidence that was led, and (2) the evidence of injury and distress relied on by the Crown for corroboration of the complainer's evidence was of insufficient materiality to support a conviction. Here the court considered whether, on the evidence led at the trial, no reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty.

Scott Pickett v. Her Majesty's Advocate [2007] HCJAC47

Tue, 11 Sep 2007 11:33:47 GMT

Criminal Note of Appeal Against Conviction and Sentence:- On 12 July 2004 the appellant pled guilty to inter alia "on 16 August 2003 at Kilmorie Drive at its junction with St Blane's Drive, Rutherglen, you did assault Simon George Weir .... and did drive motor vehicle registered number P12 KET at him, cause said motor vehicle to strike him causing him to fall to the ground, and repeatedly drive said motor vehicle over his body all to his severe injury and permanent disfigurement and you did attempt to murder him and you did previously evince malice and ill-will towards him" under deletion of the words "and you did attempt to murder him and you did previously evince malice and ill-will towards him". The Court sentenced the appellant to six years imprisonment in cumulo. By a Note of Appeal, dated 16 August 2004, the appellant appealed against his sentence. The appellant's appeal against sentence called on 19 November 2004, when it was continued to a date to be afterwards fixed to allow counsel for the appellant to consider whether there was a proper basis for lodging an appeal against conviction. On 9 May 2005 grounds of appeal against conviction were lodged on behalf of the appellant in which it was submitted that the appellant was under a material misapprehension as to the nature of the charge to which he was pleading guilty and the plea was tendered on a material misunderstanding as to the nature of the offence. Here the court considered whether the plea of guilty to the charge, as modified, was tendered under some real error or misconception or in circumstances which were clearly prejudicial to the appellant.

HMA v. Russell Hutchison +2 [2006] HCJAC 45

Wed, 22 Aug 2007 17:00:00 GMT

Criminal Appeal by Stated Case by Procurator Fisca

F.K. v. Her Majesty's Advocate [2007] HCJAC28

Mon, 07 May 2007 23:00:00 GMT

Criminal Appeal Against Conviction & Sentence - Moorov Doctrine

Fabian Buehrig Wright v. Her Majesty's Advocate [2007] HCJAC16

Fri, 02 Mar 2007 00:00:00 GMT

Criminal Note of Appeal against Sentence:

Usman Wali v. Her Majesty's Advocate [2007] HCJAC 11

Fri, 02 Feb 2007 00:00:00 GMT

Criminal Appeal Against Conviction and Sentence- Knowledge of Possession

William Smith (AP) v K D Scott Electoral Registration Officer [2007] CSIH 9

Wed, 24 Jan 2007 00:00:00 GMT

Appeal by stated case

Matthew James Brooks v Procurator Fiscal [2007] HCJAC 9

Fri, 19 Jan 2007 00:00:00 GMT

Criminal – Appeal

Mark Weir and David Muir and James Garty and Stephen Harvey and Lee Tosh and Andrew Sellers v Her Majesty’s Advocate [2007] HCJAC 2

Wed, 10 Jan 2007 00:00:00 GMT

Criminal – Appeal under s.74 Criminal Procedure (Scotland) Act 1995