Criminal Appeals

Regina (on the Application of Elvington Park Limited and Others) -v- York Crown Court [2011] EWHC (Admin) 2213

Thu, 02 Feb 2012 20:07:14 GMT

Whether Abatement Notice Rendered Invalid by Insufficient Particulars:-

The Queen's Bench Division gave guidance in respect of the contents and level of detail required to be particularised in Abatement Notices served pursuant to the Environmental Protection Act 1990, s.80.

The difficulty arose from the fact that s.80(1) is silent vis-a-vis the identification or specification of the activities which are the subject of an Abatement Notice. An Abatement Notice which referred to a nuisance simpliciter, without stating in general terms what kind of nuisance it was, would be invalid. However, beyond that, the Courts had set the required threshold of description and level of detail required to be specified therein at a low level. Accordingly, an Abatement Notice which required the abatement of excessive emissions of noise from land owned by the company caused by "motor vehicle activities, motor sport events and activities associated with them, including the use of public address systems" was not defective - there was no obligation to specify in the Abatement Notice the activities which were said to amount to the Statutory nuisance or what noise levels were said to be excessive.

Regina -v- Wearing [2011] EWCA Crim 2767

Thu, 02 Feb 2012 20:05:36 GMT

Interaction Between Findings of the Crown Court and the Social Security Appeals Tribunal:-

In the Crown Court at Liverpool the Applicant was convicted of two counts of false accounting and two counts of dishonestly failing to give prompt notification of a change of circumstances and was sentenced to a total of nine months' imprisonment. The cardinal issue between the Prosecution and the Defence at trial had been whether the Applicant had been living with her husband at the material times. At the conclusion of subsequent confiscation proceedings the Court found that the Applicant has benefited in the sum of £68,326.22 and made a confiscation order in that amount with six months' imprisonment in default.

Thereafter the Social Security Appeal Tribunal made a finding, having heard evidence from the Applicant and others, that the Applicant had discharged the burden of proving, on the balance of probabilities, that she was not living with her husband at the material times.

The Applicant appealed against her conviction to the Court of Appeal on the basis of the later findings of the Social Security Appeal Tribunal.

The Court of Appeal acknowledged the conundrum presented by the apparent inconsistency between the findings of the Crown Court and the Social Security Appeal Tribunal but dismissed the appeal against conviction. Stadlen J held that the later finding of the Social Security Appeal Tribunal that the Defendant had not dishonestly received benefits was not binding on the Crown Court where she had been found guilty of the offences in question to the criminal standard.

Parameters of Use of Draft Guidelines: Attorney-General's Reference (No 61, 62 and 63 of 2011)

Thu, 02 Feb 2012 20:02:46 GMT

Parameters of Use of Draft Guidelines and Consultation Documentation: Attorney-General's Reference (No 61, 62 and 63 of 2011) [2011] EWCA Crim 2619

In passing sentence the Judge made reference to the Sentencing Council's consultation document on drug offences. The Judge utilised the consultation document in ascertaining the appropriate sentencing starting point in light of the class of drug, the quantity of drug and the role played by the individual Defendants. The issue which arose for consideration of the Court of Appeal was that in so doing the starting point arrived at by the Judge was at odds with the current sentencing practice for those who were involved in the supply of Class A controlled drugs.

Pitchford LJ upheld the submission made on behalf of the Attorney-General that the sentencing Judge had erred when he referred to the consultation document and the draft sentencing guidelines contained therein. It was held that under the present arrangements the Sentencing Council publishes a draft guideline for a single consultation - it does not follow that the draft will remain untouched when the guideline is finalised. When the guideline is published, there will be a three month interregnum before the guideline will apply. Until there is a definitive guideline issued by the Sentencing Council (although the draft guidelines are of considerable interest as part of the background which sentencing Judges may wish to bear in mind) the proposals themselves do not constitute guidance to sentencers which serve to displace or amend or in any way undermine the authority of the guidance issued in guideline decisions of the Court of Appeal.

Christopher Chilcott v. Procurator Fiscal, Stonehaven [2011] HCJAC 7

Tue, 31 Jan 2012 16:33:52 GMT

Criminal Appeal under section 174 of the Criminal Procedure (Scotland) Act 1995:- The appellant was charged on a summary complaint in the Justice of the Peace Court in Stonehaven of driving a motor vehicle at a speed in excess of the speed limit on 9 May 2009 contrary to sections 88 and 89 of the Road Traffic Regulation Act 1984. The charge is only triable summarily and no special time limit for bringing a prosecution under those provisions of the Road Traffic Regulation Act 1984 is set by that Act and the general time limit for prosecuting statutory offences triable only summarily is specified as 6 months in section 136(1) of the Criminal Procedure (Scotland) Act 1995 which would expire on 9 November 2009 in respect of the present offence. The issue here, before 5 judges, was whether the prosecution brought against the appellant was duly commenced prior to the expiry of the 6 month time bar on 9 November 2009. Section 136(3) of the 1995 Act provides:- "(3) For the purposes of this section proceedings shall be deemed to be commenced on the date on which a warrant to apprehend or to cite the accused is granted, if the warrant is executed without undue delay". It was submitted on behalf of the appellant that since citation of the appellant to a diet had never been effected, no proceedings had been validly commenced against him and the prosecution was thus time-barred. It was further submitted that citation was essential to the proper commencement of a summary prosecution and there having been no citation the first calling of the complaint was void and all of the subsequent callings were similarly void. It was submitted on behalf of the Crown that citation was not an essential requirement for the purposes of the commencement of a summary prosecution and where a citation had been duly executed, the date of that execution constituted the commencement of the proceedings. It was further submitted that in the absence of an execution of citation, proceedings would commence when the accused attended, or was represented, at the first calling and pled in answer to the complaint. Here the court considered whether, on 3 November 2009 when the appellant answered the complaint and tendered his plea, that signaled the timeous commencement of proceedings.

William Gage v. Her Majesty’s Advocate [2012] HCJAC 14

Tue, 31 Jan 2012 16:31:46 GMT

Reference by The Scottish Criminal Cases Review Commission:- On 9 February 2004 at the High Court at Glasgow the appellant was convicted after trial, by a majority verdict, of a charge of murder. The appellant was sentenced to life imprisonment with a punishment part of twenty years. The apellant appealed against his conviction and relied, as a ground of appeal, on section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 - that there had been a miscarriage of justice based on "the jury's having returned a verdict which no reasonable jury, properly directed, could have returned". His appeal was refused (Gage v H.M.A. [2006] HCJAC 7). The SCCRC subsequently referred the case to the appeal court on various grounds including a contention advanced in the previous appeal that there has been a miscarriage of justice based on section 106(3)(b) and, as such, the appeal was heard by five judges. At the trial there was evidence that the appellant's DNA was found on items recovered from a white Saab motor car thought to be linked to the fatal shooting. Further evidence relied on by the Crown at trial included evidence linking the Saab found in Easterhouse with a white getaway car seen near the locus, evidence linking the clothing found in the Saab with the clothing observed to be worn by the killer in Acacia Way and evidence linking the appellant, on a part-facial resemblance basis, with the killer. During the trial no submission was made under section 97 of the 1995 Act that the appellant had no case to answer. There was direct evidence from a Mrs McAlroy who identified the appellant, on a resemblance basis, in court and no objection was taken, on the ground of unfairness, to her making a "dock identification" at the trial. In relation to the ground of appeal under section 106(3)(b) of the 1995 Act the court considered. various authorities and the objective test that "... the court must be able to say that no reasonable jury could have returned a guilty verdict on the evidence before them". A further ground contended that the appellant’s rights under Article 6 of the Convention of Human Rights had been breached and his trial was unfair, in particular, in relation to the circumstances in which Mrs McAlroy was allowed to make in court the resemblance identification of the eyes of the appellant as similar to those of the man she had seen near the locus. Here the court considered whether the reliance by the Crown on a dock identification, which was not preceded by a positive identification at a parade, rendered the trial unfair after considering all the relevant aspects of the trial, in particular, whether it was a minor element of the whole evidence against the appellant. It was further submitted on behalf of the appellant that there was a degree of suggestibility in the procedure adopted by the police in presenting to Mrs McAlroy a mannequin dressed in the garments recovered from the Saab. Here the court considered whether a combination of these allegedly unfair factors led to the appellant having been denied his right under Article 6 to a fair trial.

Scottish Sea Farms Ltd and Logan Inglis Ltd v. Her Majesty’s Advocate [2012] HCJAC 11

Tue, 31 Jan 2012 16:30:09 GMT

Criminal Note of Appeal Against Sentence:- On 31 May 2011, at Oban Sheriff Court, the appellants pled guilty, by way of accelerated indictment procedure under Section 76 of the Criminal Procedure (Scotland) Act 1995, to separate charges of contravening Sections 2 and 33(1)(a) of the Health & Safety at Work Act 1974 which arose out of an incident which took place on a barge moored at a sea farm operated by the first appellants on 11 May 2009. The second appellants were involved in engineering works on the barge. On that day employees of the appellants were in a confined space under the deck to fix what they thought was a problem with a burst hydraulic pipe below deck. Two employees of the first appellants suffocated and a further employee was injured and an employee of the second appellants was injured. The charge against the first appellants was that in relation to the barge they (a) failed to make a suitable and sufficient assessment of the risks involved to the health and safety of their employees and, in particular, failed to identify the presence of confined spaces on their barge and the risks associated with confined spaces, including depleted oxygen levels; (b) failed to provide information, instruction and training to ensure the health and safety of their employees in relation to working in and identifying confined spaces and the risks associated therewith; and (c) failed to provide plant and a system of work to ensure the health and safety of their employees in relation to confined spaces and rescue procedures and as a consequence two employees died as a result of the depleted oxygen levels. In relation to the second appellants the charge against them was that, in relation to the operation being carried out on the barge, they (a) failed to make a suitable and sufficient assessment of the risk to health and safety of their employee from the presence of confined spaces on the barge and (b) failed to provide information, instruction, training and supervision as was necessary to ensure so far as reasonably practicable that their employees were able to identify confined spaces and the health and safety risks associated therewith, as a consequence of which an employee entered a confined space and was exposed to risk of death. In relation to the first appellants the sheriff fined them £600,000 discounted from £900,000 on account of the early plea. In relation to the second appellants the sheriff fined the company £40,000, discounted from £60,000 on account of the plea of guilty. On behalf of the first appellants it was argued that the sentence was excessive and that the Sheriff failed to take into account a number of mitigating factors, in particular, he had failed to give sufficient weight to the lack of previous convictions, the responsible attitude to health and safety and good safety record of the company, the responsible approach shown by the employment of MENTOR, their involvement in the Scottish Marine Safety Committee and was an indication of their positive approach to health and safety. Further, it was submitted that the level of health and safety training provided by them was generally of a high standard, they had fully co-operated with the police and Health and Safety Executive, had taken responsible steps to remedy any defects in their system of working and that the company was genuine in its remorse and had not sought to evade responsibility by pleading guilty at the earliest opportunity. In relation to the second appellants it was submitted that the Sheriff had imposed an excessive sentence by failing to take into account numerous mitigating factors, namely, that the second appellants had no responsibility for the deaths or for the injury to Campbell Files, that they had an unblemished safety record and no history of non-compliance; that they had a responsible attitude to health and safety, that this had been an isolated incident, that they had taken a positive decision no longer to undertake work in confined spaces, that they had engaged external health and safety advisors who had given them incorrect advice and their prompt admission of responsibility. Here the court considered the authority in HMA v Munro & Sons (Highland) Ltd 2009 SCCR 265 and the following principles to consider whether the fines imposed were excessive having regard to what the court considered to be serious breaches of statutory duty:-(a) where death occurs as an consequence of the breach, that is an aggravating feature, multiple deaths being viewed even more seriously than single deaths;(b) a breach with a view to profit is a serious aggravation; (c) the degree of risk and extent of the danger and in particular whether this was an isolated incident or one continued over a period; (d) mitigation will include:- (1) a prompt admission of responsibility; (2) steps taken to remedy deficiencies; and (3) a good safety record; and (e) the resources of the offender and the effect of a fine on its business are important and the objective of the fine should be to achieve a safe environment for the public and bring that message home, not only to those who manage a corporate offender, but also to those who own it as shareholders.

Ross Junior Miller v. Her Majesty’s Advocate [2012] HCJAC 6

Sun, 15 Jan 2012 12:35:37 GMT

Criminal Note of Appeal against Conviction:- On 28 January 2011 at the High Court at Glasgow the appellant was convicted unanimously of the following charge:- "On 1 January 2010 at 115 Glenavon Road, Glasgow you ROSS JUNIOR MILLAR did assault … and did strike him on the body with a knife or similar instrument to his severe injury, permanent disfigurement, and to the danger of his life and you did attempt to murder him". On 18 February 2011 the trial judge sentenced the appellant to an extended sentence of 11 years comprising a custodial term of 9 years and an extension period of 2 years. The appellant appealed against his conviction on the basis that there has been a miscarriage of justice because the trial judge erred in failing to uphold a submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 that the appellant had no case to answer in respect that the Crown had failed to prove by corroborated evidence the identity of the appellant as the assailant. The Crown witness David McManus positively identified the appellant as the perpetrator of the offence. The issue here was whether there was sufficient evidence to corroborate the evidence given by McManus identifying the appellant as the perpetrator of the assault. During the trial the complainer testified that it was the person called Ross Millar who had the dagger immediately before the complainer was punched in the throat, as a result of which he sustained the stab wound to his neck. However, the complainer did not identify the appellant at an identification parade or in court. However, it appears that the complainer in his evidence referred to the appellant and his father by name, both of whom were called Ross Millar although the appellant was known as Ross Junior Millar. In his evidence the complainer testified that he had been stabbed in the neck with a knife by Ross Junior Millar and it appears the complainer distinguished between the two of them. There was also evidence of the appellant coming back into the house with a knife in his hand and saying: "Ah think ah've just murdered him." Here the court considered whether there was a sufficiency of evidence at the close of the Crown case and whether the trial judge had been correct to repel the submission of no case to answer.

Douglas Miller Harris V. Her Majesty’s Advocate [2012] HCJAC 5

Sun, 15 Jan 2012 12:34:33 GMT

Criminal Note of Appeal Against Conviction:- On 14 June 2010 at Aberdeen Sheriff Court the appellant was convicted after trial of a charge of taking or permitting to be taken or make 243 indecent photographs or pseudo-photographs of children contrary to section 52(1)(a) of the Civic Government (Scotland) Act 1982 and also a charge of having in his possession 371 indecent photographs or pseudo-photographs of children contrary to section 52(A)(1) of the Civic Government (Scotland) Act 1982 . On 13 July 2010 the Sheriff made a probation order for a period of three years and made the appellant subject to the notification requirements of the Sex Offenders Act 2003. The appellant appealed against his conviction on a number of grounds including inter alia:- (1) it was contended that the trial Sheriff's approach in dealing with the numerous objections taken would have created an impression of judicial bias against the defence case, in particular the accused's counsel, in the mind of the informed objective observer; (2) that the sheriff ought not to have admitted certain material in the face of objections which was prejudicial and irrelevant in nature, namely (a) evidence of undated access to websites; (b) evidence falling outwith the period of the libel; and (c) evidence led of a crime not charged, in particular, distribution of images, a distinct offence under section 52(1)(b) of the Civic Government (Scotland) Act 1982; (3) that the Sheriff undermined the appellant's own evidence by intervening to question him about a date in a document in a way that went beyond mere clarification and that the intervention would have conveyed to the well informed observer that the Sheriff had doubts as to the appellant's credibility on the issue; (4) that the Sheriff's directions on the meaning and definition of charge 1 were materially defective in that the Sheriff should have directed the jury on the requirement for mens rea in relation to charge 1 and it was necessary for the Sheriff to direct the jury as to the evidential foundation upon which they could conclude that the appellant "made" the images; (5) that in relation to charge 2 the Sheriff effectively withdrew the defence of incrimination, in particular, by directing the jury as to the possibility of possession by both the appellant and the incriminee and it was contended that on the evidence the element of control necessary for possession could not be established, and that the jury ought to have been directed to acquit on that charge; (6) it was contended that in relation to charge 2 the deleted items were not within the appellant's control; (7) a number of criticisms were made of the sheriff’s charge, in particular, in relation to the directions on the meaning of credibility and reliability which were given to the jury, the Sheriff wrongly referred to there being a certain amount of eye witness evidence in the case when in fact there was none, the Sheriff’s directions on the Crown burden of proof and the presumption of innocence were highly confusing, the Sheriff failed to direct the jury adequately on the significance of the alibi evidence led on his behalf, and taking all of these alleged misdirections together amounted to a miscarriage of justice; and (8) the Sheriff failed to give specific directions about which images fell under charge 1 and which fell only within charge 2 as any evidence relating to undated images or undated fragments would be relevant only to charge 2. Here the court considered whether there was any merit in the various grounds of appeal.

D.S. v. Her Majesty’s Advocate [2011] HCJAC 125

Sun, 15 Jan 2012 12:33:24 GMT

Criminal Note of Appeal Against Conviction:- On 26 August 2010 at Edinburgh High Court the appellant was convicted after trial of the following charge:- "On 1 March 2010 at ... you...did assault … and seize hold of her upper clothing, rip her bra, push her on the body, cause her to fall to the ground, forcibly remove her trousers and pants, lick her private parts, touch her private parts with your fingers and private member, touch her hinder parts with your fingers and private member, induce her to take your private member in her mouth, lie on top of her and you did rape her all to her injury". The appellant appealed against his conviction on 5 grounds:- (1) that the trial judge failed to give a direction to the jury about prior inconsistent statements and the limited use to which they can be put, and that such a direction was required since a prior inconsistent statement of the complainer was used in cross-examining her; (2) that the trial judge failed to give directions to the jury about de recenti statements, and failed to direct the jury that what the complainer had said to a witness SW about the appellant raping her could not corroborate her account; (3) that the trial judge failed to direct the jury that any distress in the case had to be spontaneous and genuine; (4) that the trial judge failed to refer to the special defence of consent which had been read to the jury at the start of the trial; and (5) that the trial judge failed to give the jury adequate directions about corroboration of the commission of the crime. Here the court considered whether these alleged failings amounted to misdirections and, if so, whether they resulted in a miscarriage of justice. The court, in particular, considered closely the failure of the trial judge to refer to the notice of special defence and give specific directions about its significance and the fact that it imposed no onus on the appellant during the course of the trial and whether it was more than simply desirable to do so but necessary and whether there was any prospect that the direction would have resulted in a different verdict.

James Gemmell and others v. Her Majesty’s Advocate [2011] HCJAC 129

Sun, 15 Jan 2012 12:32:16 GMT

Criminal Sentencing:- This was a hearing of seven appeals against sentence before 5 judges which raised important questions of principle on sentence discounting. In Spence v H.M.A. (2008 JC 174) the court gave general guidance on the levels of discount and considered that any discount should be on a sliding scale ranging from one third to nil in exceptional circumstances. When the accused gives notice under section 76 of the 1995 Act of his intention to plead guilty the court in Spence stated:- “…we would expect that a discount of the order of one-third might be afforded.” Here the court distanced itself from the authority that where an early plea is tendered an accused was "entitled to" a discount. Here the court gave detailed consideration of when a discount should be applied, what amounts to an early plea, the factors affecting any discount including saving in jury costs, time and inconvenience and sparing complainers and other witnesses from giving evidence. The court also considered factors which do not have a bearing upon any discount to be applied including the strength of the Crown case, previous convictions and issues of public protection, assistance to the authorities, remorse and any uncooperative behaviour by the accused. The court also went on to consider that where an extended sentence is imposed, the extension period should not be subject to discounting. The court further considered whether the sliding scale approach mentioned in Spence v HMA was sound.

Firth -v- Epping Magistrates' Court and the Director of Public Prosecutions [2011] EWHC (Admin) 388

Thu, 22 Dec 2011 15:37:34 GMT

The Claimant was charged with an offence of battery and bailed to appear at the Epping Magistrates' Court on the 1st September 2010. On that date the Appellant entered a not guilty plea and the advocates completed a case progression form with a view to the future management of the case. Amongst the entries endorsed upon the form by the then Defence advocate was "assault on def by Complainant...only contact made was in self-defence" thereby informing the Court and the Prosecution that the Claimant's case was that she had been assaulted and had acted in self-defence. The Prosecution subsequently applied successfully to increase the charge to one of assault occasioning actual bodily harm. In due course the case was listed for a full committal hearing on the 15th November 2010. The witness statements and exhibits served by the Prosecution did not include any evidence identifying the Claimant as the person who had committed the offence, however, the Prosecution applied successfully to admit into evidence the afor ementioned endorsement on the case progression form. The case was committed for trial to the Crown Court.

The Claimant applied for judicial review to quash the committal for trial on the single ground that the Magistrates' Court was wrong in law to admit into evidence the entry endorsed upon the case progression form. It was argued that the contents of the form in question ought not to be brought into evidence in any way as a matter of principle.

The Queen's Bench Division dismissed the application for judicial review. Toulson LJ rejected the argument that to admit such evidence would infringe against the principle that a Defendant is not required to incriminate himself and held that "it does not infringe against the principle that a Defendant is not required to incriminate himself for the Court to require that the nature of the defence is made plain well before the trial". The practical consequences could not be overlooked, e.g. because of the way that the issues were identified in the case progression form the Prosecution would not have thought it necessary to adduce identification evidence. In conclusion, it was held that if one asks rhetorically whether that approach is consistent with the object of the Criminal Procedure Rules, i.e. whether it would further the interests of justice, do fairness and encourage expedition, the answers are obvious - there is no unfairness, in such a case, in the Prosecution being able to put in evidence the case pro gression form.

Regina -v- Evans [2011] EWCA Crim 2842

Thu, 22 Dec 2011 15:36:40 GMT

The Appellant was on bail to attend the Crown Court for a plea and case management hearing on the 1st March 2011. On the 1st March 2011 the Appellant attended at the Crown Court and met his advocate. The advocate duly informed the usher that the Appellant was in attendance. The Appellant and his advocate then had a conference, which concluded at approximately 11.30 hours. When the case was mentioned in Court, at 12.45 hours, it was discovered that the Appellant had left the Court building. After enquiries revealed no reasonable explanation for the departure of the Appellant a warrant was issued for his arrest. The Appellant was arrested the following day. The Appellant was subsequently found guilty of the offence of failing to surrender to bail, for which he was sentenced to 14 days' imprisonment.

The Appellant sought to appeal against his conviction for the offence of failing to surrender to bail on the basis that he had surrendered to bail at the Crown Court on the 1st March 2011 by making himself known, through his advocate, to a responsible officer of the Court, namely the usher. It was argued that to report to the usher is a convenient and practical way of putting oneself at the disposal of the Court.

The Court of Appeal dismissed the appeal against conviction. Hughes LJ held that "whatever may be the position in Courts such as Magistrates' Courts where there is no physical movement into an identifiable place of custody or perhaps no custody officers in the Courtroom, in the great majority of Crown Courts the dock is such a place and it is staffed for the purpose by uniformed custody officers...the plain threshold for such control and responsibility on the ordinary case is placing oneself in the dock". The Court of Appeal explained that the 'general practice' of accepting surrender by way of entry into the dock accords not only with common experience and general practice, but also with principle. Accordingly, reporting to the usher in the courtroom does not amount to surrender to bail.

Regina -v- Levesconte [2011] EWCA Crim 2754

Thu, 22 Dec 2011 15:35:15 GMT

On the 16th December 2010 the Appellant was made the subject of a suspended sentence order (the operational period of which was two years) for offences of dwelling-house burglary and criminal damage. On the 7th February 2011 the Appellant committed another offence of dwelling-house burglary. On the 13th May 2011 the Appellant appeared to be sentenced for the offence of dwelling-house burglary committed on the 7th February 2011 and for breach of the suspended sentence order. The Appellant was sentenced to 16 months' imprisonment for the offence of dwelling-house burglary and the suspended sentence was activated in full.

In passing sentence Mr Recorder Lasok QC said that "because the offence for which I am sentencing you now was committed during a period of suspension for the previous offence of burglary I think that your offending behaviour in relation to this incident was aggravated by that factor".

The Appellant pursued an appeal against sentence on the single ground that the learned Recorder erred in increasing the sentencing starting point for the new offence of dwelling-house burglary by reason of the fact that it was committed whilst the Appellant was subject to a suspended sentence order whilst also activating the full term of the suspended sentence and ordering that it be served consecutively.

The Court of Appeal allowed the appeal against sentence. Maddison J held that "it was not appropriate for the Recorder to treat the fact that the offence was committed during the operational period of the suspended sentence as a factor justifying the increase of the second sentence, not at least in circumstances where the suspended sentence was activated in full". The reason for this is that the Appellant had already been dealt with for that very fact by the implementation of the full original sentence and to take it into account again was to increase the sentence referable to that fact beyond the maximum for which the Defendant had been at risk. The same factor was carrying weight with respect to two separate offences. The sentence of twelve months' imprisonment was substituted for the sentence of 16 months' imprisonment for the offence of dwelling-house burglary committed on the 7th February 2011.

Mark Ashton v. Her Majesty's Advocate [2011] HCJAC 124

Thu, 15 Dec 2011 14:28:33 GMT

Criminal Note of Appeal Against Conviction:- On 26 January 2011 at Glasgow Sheriff Court, the appellant was found guilty unanimously and by direction of the trial sheriff of a contravention of section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, namely, having with him an offensive weapon, a broken bottle, in a public place without lawful authority or reasonable excuse whilst on bail. On 21 February 2011, the appellant was sentenced to eight months imprisonment from 14 October 2010. The appellant appealed against his conviction on the grounds that the sheriff misdirected the jury that the broken bottle which was the offensive weapon referred to was per se an item which had been adapted for causing personal injury, and, further, that it was a matter for the jury to consider whether or not the bottle had been broken for the purpose of being capable of being used to cause personal injury. Here it was submitted on behalf of the appellant that the question as to whether the broken bottle was an article made or adapted for use for causing injury to a person was one of fact which should have been left to the jury to determine. It was further submitted that simply because a bottle was broken did not necessarily mean that it had been either made or adapted for use for causing injury to a person, because, for example, if a member of staff in a public bar picked up a broken bottle it would automatically be held to be an offensive weapon. On behalf of the Crown it was submitted that if a person is in possession of a broken bottle he is in possession of an offensive weapon for the purposes of section 47 of the 1995 Act and if the person has such an article in a public place he must rely on the defence of reasonable excuse or lawful authority contained in section 47(1A) to avoid committing an offence. Here the court considered whether the broken bottle in the possession of the appellant in a public street was obviously a weapon adapted for use for causing personal injury.

Christopher Cornwall v. Procurator Fiscal, Edinburgh [2011] HCJAC 122

Thu, 15 Dec 2011 14:24:54 GMT

Criminal Appeal Against Sentence:- On 16 August 2011, at a trial diet at Edinburgh Sheriff Court, the appellant pled guilty to two charges of breaking into office premises and stealing £3,000 of computer equipment. He also pled guilty to the theft of a car and subsequent contravention of section 2 of the Road Traffic Act 1988 whilst pursued by the police. The latter two offences were committed whilst the appellant was on bail. The appellant also pled guilty to a breach of curfew. The Sheriff sentenced the appellant to 4 and 6 months on the two computer theft charges and 12 months in cumulo on the car theft and dangerous driving charges. The sentences were all concurrent. The sheriff did not allow any discount on account of the pleas tendered. Here it was submitted that a non-custodial sentence would have been appropriate as an alternative to custody. It was further submitted on behalf of the appellant that even if a custodial sentence were appropriate the length of the sentence was excessive. Here the court considered the appellant's previous convictions and the locus of the theft charges (commercial premises), in considering whether there was an alternative to a custodial sentence. The court then considered whether 12 months was excessive having regard to the nature of the offences and the fact that the sheriff made concurrent sentences with the two unrelated charges of breaking into commercial premises and, finally, whether a discount ought to have been applied albeit the pleas were tendered at the trial diet.

Robbie Batchelor v. Procurator Fiscal, Dundee [2011] HCJAC 123

Thu, 15 Dec 2011 14:21:27 GMT

Criminal Appeal Against Sentence:- On 28 March 2010 the appellant pled guilty to two charges of writing graffiti on a wall whilst subject to an Anti Social Behaviour Order and the second was a breach of that ASBO by having a can of spray paint with him. The appellant was put on probation for a year, but breached that on two occasions. On 10 August 2011, the appellant pleaded guilty to six further charges of graffiti writing at various locations, including the walls of commercial premises, while subject to the ASBO and whilst on bail. The appellant was also convicted of breaching the ASBO conditions. On 7 September 2011, the sheriff revoked the probation order and imposed a period of 6 months detention in respect of the first complaint and he was sentenced to 8 months detention, which had been reduced from 12 months for the early plea, in respect of the second complaint. The appellant appealed against his sentence on the grounds that, whilst a custodial sentence was inevitable, the total sentence of 14 months was excessive, having regard to the fact that it was the appellant's first custodial sentence. Here the court considered whether the consecutive sentences imposed were excessive.

Colin Kelly v. Her Majesty's Advocate [2011] HCJAC 119

Wed, 30 Nov 2011 14:34:44 GMT

Application for leave to lodge a late intimation of intention to appeal:- The applicant was convicted of rape in January 2009 and was sentenced to a term of six years' imprisonment. Here the applicant applied under section 111(2) of the Criminal Procedure (Scotland) Act 1995 for an extension of the period of time within which to lodge an intimation of intention to appeal against conviction. The issue here related to evidence which was led at the trial of an interview which the applicant had with police officers in circumstances where he had not been offered the services of a lawyer for the purposes of that interview. The situation was covered by the European Court decision of Salduz in November 2008 and the case of Cadder v H.M.A. 2010 SCCR 951. In Cadder, Lord Hope at paragraph 60 considered the circumstances in which it would not be permitted to reopen closed cases and at paragraph 62 defined closed cases as:- "... in the light of these authorities I would hold that convictions that have become final because they were not appealed timeously, and appeals that have been finally disposed of by the High Court of Justiciary, must be treated as incapable of being brought under review on the ground that there was a miscarriage of justice because the accused did not have access to a solicitor while he was detained prior to police interview." Here it was accepted on behalf of the applicant that the case fell within that definition and, accordingly, the court took the view that the applicant's conviction had to be treated as incapable of being brought under review on the ground that there was a miscarriage of justice for the reason given. It was submitted on behalf of the applicant that Lord Hope's observation need not be treated as absolute and that there may be circumstances where intimation has not been lodged timeously, which would justify extending the time limit. Here the court considered that such cases should not be allowed to be reopened except in special circumstances and whether such circumstances existed here.

G.M. v. Her Majesty's Advocate [2011] HCJAC 112

Wed, 30 Nov 2011 14:33:00 GMT

Criminal Note of Appeal Against Conviction:- On 8 April 2010 at the High Court at Glasgow the appellant was convicted of a charge of rape. At the trial the Crown relied on the appellant's police interview, which was conducted without the appellant having had the benefit of legal advice. Here, pending the decision of the Supreme Court in Jude and Others v H.M.A. 2011 SLT 722 in relation to waiver, the court considered whether, without the evidence of the police interview, there would have been:- (a) a legal sufficiency of evidence in proof that intercourse took place; and (b) the possibility of a different verdict. Here it was submitted on behalf of the appellant that the only possible corroboration of the complainer's account was to be found in the words of the witness CL and the appellant's statement to CL that he had "slept with" the complainer. It was submitted here that that phrase did not necessarily mean that he had had sexual intercourse with the complainer and whilst it was accepted that one of the meanings of the expression was "to have sex with" the meaning that the appellant had intended was a matter of speculation. It was further submitted on behalf of the the appellant that if he failed in his argument on corroboration the court should nonetheless allow the appeal because it was impossible to say what the course of trial would have been if the Crown had not led the evidence of the interview as the trial judge expressly directed the jury on the evidence of the complainer and of the appellant's police statement, he impliedly excluded from their consideration the statement spoken to by CL and the Crown could not reconstruct a case that was never put to the jury for its consideration. It was submitted on behalf of the Crown that the appellant's comment to CL could mean that the appellant had had intercourse with the complainer and therefore the requirement of corroboration was met, whatever different interpretations of those words might be. Here the court considered whether the words "slept with" were capable of the interpretation that would establish a formal sufficiency of evidence even without the police interview. At the trial the Crown had relied upon the evidence of the complainer, the evidence of de recenti distress and the evidence of the police interview. The Crown did not found upon the evidence of CL about the telephone call from the appellant. Here the Crown invited the court to uphold the conviction on a different basis from that on which it presented its case at the trial. Here the court considered whether there was a real possibility that the jury would have reached a different verdict if the evidence of the police interview had not been led.

Vincent Anderson and Richard Miller v. Procurator Fiscal, Alloa [2011] HCJAC 118

Wed, 30 Nov 2011 14:31:52 GMT

Criminal appeal under section 174(1) of the Criminal Procedure (Scotland) Act 1995:- This was an appeal by both appellants following the sheriff's decision following a debate at which evidence was led, to repel pleas in bar of trial and refuse associated devolution minutes at the instance of both appellants. The minutes related to entrapment. The circumstances related to "Test Purchase Officers" on 6 February 2010 being instructed to attend a nightclub to make enquiries regarding the availability of controlled drugs there, to make evidential test purchases and to identify individuals involved in the supplying of controlled drugs. Thereafter, two police officers made contact with the appellants during which cocaine was obtained from them. It was submitted on behalf of the first appellant that the two police officers had crossed the line into unauthorised illegitimate activity and entrapment when they selected the first appellant at random and initiated the conversation relating to drugs. It was submitted that the first appellant was not the subject of the authorisation and had not been behaving in any way suspiciously. It was submitted that the officers in engaging with individuals at random within the nightclub amounted to a disproportionate interference in the right to privacy under article 8 of the European Convention of Human Rights of each customer of the nightclub attending there to enjoy entertainment. On behalf of the second appellant it was accepted that his fate depended on the outcome of the case for the first appellant. On behalf of the Crown it was submitted that the conduct of the police officers towards the first appellant fell within the terms of the authorisation which was in entirely appropriate terms, but even if it were not so, the conduct involved was not such as to require authorisation under section 7 of the 2000 Act and there was nothing in the conduct of the officers that could be described as entrapment. Here the court considered the conduct of the Test Purchase Officers and whether it fell within the terms of the authorisation granted and whether they had, to any extent, "lured, incited or pressurised the accused into committing the crime".

George Wilson Scott v. Her Majesty's Advocate [2011] HCJAC 110

Wed, 02 Nov 2011 15:17:43 GMT

Criminal Note of Appeal Against Conviction and Sentence:- On 24 April 2009 the appellant was convicted of the following:- "on 12 September 2007 at the Eastgate Centre, Eastgate, Inverness you did assasult John Morrison, formerly residing at 31 Dalneigh Road, Inverness and did inject him with an excessive quantity of Diamorphine...and you did murder him". The appellant was sentenced to life imprisonment with a punishment part of 13 years. The appellant appealed against his conviction and sentence by way of Note of Appeal. Here it was submitted on behalf of the appellant that the trial judge had misdirected the jury in relation to what constituted assault, in particular by directing them that if they were satisfied that the appellant injected the heroin into the deceased, that amounted to an assault. It was submitted that that misdirection was crucial as it must have caused the jury, in addressing the issue whether the appropriate conviction was for murder or culpable homicide, to concentrate their attention on matters unfavourable to the appellant's case, which at worst, was that he should be convicted of culpable homicide. The court considered the circumstances of the case, in particular, that the deceased had not previously abused heroin in any way, that the appellant was aware of that and that the heroin was stronger than normal to consider whether injecting the deceased, who wished to be injected, amounted to assault. The court considered whether the trial judge's direction that, if the jury were satisfied that the appellant administered the injection of heroin, they must conclude that he was guilty of assault, was sound. The court goes on to differentiate the circumstances of this case from others involving drug addicts providing assistance to one another in the administration of drugs. The court also considered the issue of consent in light of Khaliq v. H.M.A. 1984 J.C. 23 and whether the consent of the deceased had any relevance here having regard to the circumstances described above.

Her Majesty's Advocate v. Pedro Pena Noche [2011] HCJAC 108

Wed, 02 Nov 2011 15:16:51 GMT

Crown Note of Appeal Against Sentence:- On 28 February 2011, in the High Court at Glasgow, the respondent, a Spanish national, pled guilty to a contravention of section 1 of the Road Traffic Act 1998. The plea was tendered at the first preliminary hearing. On 29 March 2011following the production of a social enquiry report and a medical report the sentencing judge imposed a community service order for the maximum period of 300 hours, disqualified the respondent from holding or obtaining a driving licence for a period of 4 years and ordered endorsement of the respondent's licence. On 26 April 2011 the appellant lodged a Note of Appeal in terms of sections 108 and 110 of the Criminal Procedure (Scotland) Act 1995 against the sentence of community service on the ground that the sentence was unduly lenient. It was submitted on behalf of the appellant here that the sentencing judge had erred in taking the view that the circumstances giving rise to the fatal collision had been exceptional and the sentencing judge had failed to fully consider the issue of the duration of the period when the respondent was driving dangerously on the wrong side of the road. It was submitted that there need not always be a custodial sentence imposed in cases of causing death by dangerous driving, however, the authorities and the English sentencing guidelines made it clear that in the absence of exceptional circumstances the imposition of a custodial sentence was appropriate. It was further submitted that the sentencing judge failed to treat the injuries sustained by the other occupants of the vehicle as aggravating features in the case. It was submitted on behalf of the respondent that the sentence imposed in the present case should not be held to have been unduly lenient on account of the momentary error in his driving, in the context of the stress he was under at work on the day in question, allied to the respondent’s personal circumstances and his good character. It was conceded on behalf of the respondent that the injuries suffered by the other passengers was an aggravating feature and the sentencing judge had erred in that respect. Here the court considered whether the sentencing judge was correct to take the view that the only factor implying culpability was the fact that the respondent was on the wrong side of the road at the point at which the collision occurred. The court went on to consider whether the sentence imposed was unduly lenient having regard to the Definitive Guideline entitled "Causing of Death by Driving" issued in July 2008 by the Sentencing Guidelines Council in England.

Mohammed Ashif and Aliah Ashraf v. Procurator Fiscal, Glasgow [2011] HCJAC 106

Wed, 02 Nov 2011 15:15:54 GMT

Bill of Suspension:- The complainers were indicted to the Sheriff Court at Glasgow on a charge of fraud. The Crown intends to present evidence which includes material recovered in a search of a house at 70 Thrashbush Road, Wishaw, a property occupied by the first complainer. The search was carried out in terms of a warrant granted by the sheriff at Glasgow on 4 August 2008. The issue here was whether the sheriff had jurisdiction to grant the warrant on the ground that the sheriff lacked jurisdiction to grant it because the premises in question lay outwith his sheriffdom and that the authority to search granted to "Detective Constable Ian Blair of Strathclyde Police or other officers of law" to carry out the search did not restrict the authority to officers falling under the jurisdiction of the Sheriff. Here it was submitted on behalf of the complainers that :- (1) in order for the warrant to be valid the sheriff granting it must have jurisdiction to do so; (2) at common law a sheriff's jurisdiction was delimited by the territorial boundaries of the sheriffdom; and (3) because of its wording section 297(1) of the Criminal Procedure (Scotland) Act 1995 does not innovate upon the common law in respect of a sheriff's jurisdiction. It was submitted on behalf of the Crown that the sheriff had always had the power to grant a warrant for a search to be executed in another sheriffdom in relation to an alleged offence in respect of which he had jurisdiction. It was further submitted that the effect of s.297(1) was to remove the need for the additional administrative process of requiring to have the warrant backed or endorsed before it could be validly enforced. Here the court considered whether the sheriff in Glasgow had jurisdiction to grant a search warrant for execution anywhere in Scotland without backing or endorsation in relation to an offence alleged to have been committed within Glasgow.

Edith Jane King v. Her Majesty's Advocate [2011] HCJAC 109

Wed, 02 Nov 2011 15:14:47 GMT

Bill of Suspension:- On 30 August 2007 the complainer was convicted of racially aggravated conduct contrary to section 50A (1)(b) and (5) of the Criminal Law (Consolidation) (Scotland) Act 1995. The appellant was admonished. Following lengthy procedure an application for an extension of time to lodge an appeal by stated case was refused. Subsequently an application was made to the Scottish Criminal Cases Review Commission for review of the conviction. Following further procedure it was considered appropriate for the issue to be dealt with by way of a Bill of Suspension. The circumstances of the offence involved the appellant making a racist remark on the telephone to Stuart Jackson who had put his phone on loudspeaker in which she stated “at least my kids knew who their father was and was not a wee black Paki bastard". The appellant did not intend that this remark be audible to Carla Jackson who is of mixed parentage but overheard the remark and was alarmed and distressed by the comment. The issue here was whether mens rea was a requirement for a conviction on the charge. On behalf of the appellant it was submitted:- (1) that mens rea is an essential ingredient of a statutory provision unless Parliament has indicated, by express words or necessary implication, that it is not; (2) the mens rea requirement for conviction under the section is the intention to cause a person alarm or distress; and (3) the disjunctive "or" in sub-section (b) should be read as the conjunctive "and", requiring that, where actual alarm or distress is relied upon, intention to cause it must also be proved. There had also been lodged a Devolution Issue minute lodged contending that there had been unreasonable delay in the determination of the appeal, however, no argument was advanced in support of that when it was conceded that the responsibility for the delays in the procedure were not as a result of fault by any public authority. On behalf of the Crown it was submitted that the statutory provisions contained a mens rea requirement and proof of acting in a manner which was racially aggravated required evidence that the appellant evinced malice and ill-will towards a person based on that person's race or evidence that the action was motivated by malice and ill-will towards members of a racial group. It was further submitted that where alarm and distress were caused to a person by the conduct then the person responsible should be convicted. Here the court considered whether it was sufficient for the harm and distress to be caused from the deliberate remark made with ill will and malice, albeit the target of the remark was not meant to hear it. The court also considered whether there must be a public element to behaviour before it can amount to an offence under section 50A(1)(b). The court also went on to consider whether there was a sufficient finding in fact that the complainer was a member of a racial group and the conduct was evinced towards the complainer on her membership of that group. Finally the court gave consideration to the issue of whether the appellant’s Article 10 and 17 rights had been infringed.

Kevin Glancy v. Her Majesty's Advocate [2011] HCJAC 104

Thu, 27 Oct 2011 13:04:08 GMT

Criminal Note of Appeal Against Conviction:- On 23 September 2010, following trial on indictment at Glasgow Sheriff Court, the appellant was found guilty of being in possession of a knife in a public place contrary to section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. The appellant was sentenced to two years imprisonment from 28 June 2010. Section 49(4) provides a statutory defence which provides:- "It shall be a defence for a person charged with an offence under subsection (1) above to show that the person had a reasonable excuse or lawful authority for having the article with him in the public place". In the present case the appellant did not dispute that he was carrying the knife. He gave evidence that he had been in the house of a friend and his brother had telephoned asking him for a sharp knife to prepare food. The appellant took the knife from his friend's house intending to take it to his own home and give it to his brother. The jury rejected the position put forward by the appellant and convicted him. Here it was submitted that the sheriff misdirected the jury in telling them that the onus of establishing the statutory defence, contained in section 49(4), lay with the appellant on a balance of probabilities. It was contended that that was a misdirection and was contrary to the principles of article 6(2) of the ECHR with regard to the presumption of innocence . Further, section 49(1) interfered with article 8 convention rights which must not be interfered with any more than was necessary in a democratic society. It was submitted that section 49(4) required to be read down so as to impose an evidential burden of proof rather than a persuasive or legal burden. It was submitted on behalf of the appellant that the case of Donnelly v H.M.A. 2009 SCCR 512 where the the appellant was convicted under section 49(1) was wrongly decided. It was submitted that any burden of proof on the appellant in relation to the statutory defence should be an evidential one only and it remained for the Crown to exclude the defence, once raised, beyond reasonable doubt. Here the court considered whether Donnelly was correctly decided. The court went on to consider whether the sheriff had misdirected the jury by failing to provide any direction on what was meant by the term "balance of probabilities" in the context of the statutory defence. It was submitted on behalf of the Crown that the phrase was one of ordinary English usage and would be understood by the jury and there had been no misdirection.

Jamie Rai v. Her Majesty's Advocate [2011] HCJAC 105

Thu, 27 Oct 2011 13:00:13 GMT

Criminal Note of Appeal Against Conviction and Sentence:- The appellant pled guilty at Dumfries Sheriff Court to charges of driving a motor vehicle while uninsured and disqualified from driving contrary to section 143(1) and (2) and section 103(1)(b) of the Road Traffic Act 1988. Following trial the appellant was also found guilty by the jury of causing death by driving a mechanically propelled vehicle, and at that time was driving the circumstances were such that he was committing an offence under section 103(1)(b) and section 143 of the Road Traffic Act 1988, contrary to section 3ZB. The appellant appealed against conviction and sentence in relation to the section 3ZB charge and against sentence in relation to the section 103(1)(b)charge. The issue at the trial had been whether the appellant had caused the death of the deceased in terms of section 3ZB of the Road Traffic Act 1988. In Regina v Williams [2011] 1 WLR 588 the Court of Appeal held that the offence in question could be committed without any fault or other blameworthy conduct on the part of the accused in relation to his driving of the vehicle and that the simple question to be decided at trial was whether the death had been caused by driving while the driver was without insurance or without a licence or disqualified. Here the focus was on whether the Crown had proved, to the requisite standard, that the deceased had been alive at the time the appellant's vehicle collided with him. The only grounds of appeal argued here related to criticisms of directions given by the Sheriff in his charge to the jury. The Sheriff stated to the jury that the Crown case was a circumstantial one and their task was to consider whether the combination of facts and circumstances presented to them pointed, to the requisite standard, to the appellant having caused the deceased's death or materially contributed to it. Those directions did not correspond with what was said by the Court of Appeal in the Williams case where the court said that it was sufficient that the accused's driving was a cause of the death which was more than minute or negligible. The court considered whether this amounted to a misdirection. Criticisms were also made of the Sheriff because the directions failed to make clear to the jury that for them to convict the appellant on the charge in question they would require to be satisfied that the deceased was alive at the point of collision with the appellant's vehicle. In his charge the Sheriff stated:- "The driving must have caused the death in the sense that 'but for' the accused being on the road, Mr Singh would not have been killed. And if you think about it, ladies and gentlemen, the accused should not have been on the road, he was not allowed to drive." It was submitted on behalf of the appellant that that statement could have given the jury the impression that it was sufficient evidence of the appellant's guilt in terms of the section 3ZB charge that he had been driving illegally on the road and that was a material misdirection. The court considered here whether the sheriff had adequately directed the jury that to convict on the section 3ZB charge the jury had to be satisfied that the appellant had caused or materially contributed to the deceased's death by colliding with him. In relation to the appeal against sentence the court considered whether a discount should have been applied in respect of the section 103(1)(b) charge given that a section 76 letter had been submitted in respect of the section 143 and section 103 charges yet the statutory maximum of 12 months imprisonment had been imposed. Further, the court went on to consider whether the sentence of 18 months imposed in respect of the section 3ZB charge was excessive having regard to the circumstances of the case and having regard to the statutory maximum for such an offence being 24 months.

Edward John Dearie v. Her Majesty’s Advocate [2011] HCJAC 102

Thu, 20 Oct 2011 12:57:32 GMT

Criminal Note of Appeal Against Conviction:- On 17 September 2010 at the High Court at Glasgow the appellant was found guilty after trial of a charge of murder, a charge of attempted murder and a charge of attempting to defeat the ends of justice. The appellant appealed against his conviction for murder. The first ground of appeal related to alleged misdirections by the trial judge in relation to a failure to give sufficient directions to the jury on the subject of culpable homicide. It was submitted that the trial judge should have, when giving the standard direction on what constituted murder, included a reference to the possibility of a verdict of culpable homicide if the jury were not satisfied that the appellant acted with evil intent under reference to the case of Ferguson v H.M.A. 2009 SLT 67, notwithstanding the fact that the defence had not specifically raised the issue with the jury. The court considered whether in a murder prosecution the fact that death was caused by a single blow automatically requires in every case that the trial judge gives an alternative direction on culpable homicide. The court considered here whether there was any basis, other than by provocation which had been raised, by which the issue of culpable homicide could have arisen. The second ground of appeal related to the judge wrongly directing the jury as to the relationship between self-defence and provocation. It was submitted that the legal test for self-defence and the legal test for provocation are different and distinct and it was therefore misleading and wrong for the trial judge to suggest that the difference between them was only a matter of degree. It was submitted that since provocation was very much a live issue before the jury it was essential that the jury should not be confused on the matter by what the trial judge had to say to them in his directions and what was said amounted to a material misdirection and resulted in a miscarriage of justice. Here the court considered whether the trial judge’s directions in relation to self-defence and provocation were adequate.

Mustafa Elsherkis v. Her Majesty’s Advocate [2011] HCJAC 100

Thu, 20 Oct 2011 12:55:37 GMT

Criminal Note of Appeal Against Conviction:- On 15 November 2010 at Edinburgh High Court the appellant was convicted by a majority verdict of a charge of murder that was racially aggravated. On 6 December 2010 the trial judge sentenced the appellant to be imprisoned for life and fixed the punishment part of that sentence at 15 years. In addition the trial judge made a recommendation for deportation of the appellant in terms of section 6(2) of the Immigration Act 1971. The appellant appealed against his conviction on a number of grounds relating to various criticisms of the trial judge’s charge to the jury. It was submitted that the trial judge erred when the jury were advised that if there was a deliberate intention to kill the deceased that amounted to murder because obviously such an intention was wicked. It was submitted that all intentional killings were not wicked and wickedness was not a necessary inference that could be drawn from an intention to kill, for example, provocation or diminished responsibility would result in a conviction for the lesser crime of culpable homicide, even although the assailant had intended to kill his victim. It was further submitted that the trial judge failed to properly direct the jury on the basis upon which they could conclude that the appellant was guilty of culpable homicide. Finally, it was submitted on behalf of the appellant that the trial judge had failed to give directions in relation to the evidential status of prior statements given by witnesses to police officers following the incident. On behalf of the Crown it was submitted “that the judge's charge should not be considered as an academic lecture”. It was submitted that having regard to the particular circumstances of the case if the jury concluded that there was an intention to kill, there could be no doubt that the necessary wickedness was established. It was further submitted that read as a whole the trial judge’s directions were adequate in relation to culpable homicide and whilst directions about the relevance of prior statements may have assisted the failure to do so did not amount to a misdirection. Here the court considered whether it is sufficient in certain cases for the trial judge to direct the jury that if they concluded that the accused intentionally killed his victim they should convict him of murder. The court considered the particular circumstances of the present case in considering whether the failure to direct the jury fully in relation to mens rea and whether the sentence "intending to kill someone is obviously wicked" amounted to a material misdirection.

Leslie Mitchell v. Her Majesty’s Advocate [2011] HCJAC 96

Thu, 20 Oct 2011 12:52:22 GMT

Criminal Note of Appeal Against Sentence:- On 30 April 2010, at Falkirk Sheriff Court, the appellant pleaded guilty, under section 76 of the Criminal Procedure (Scotland) Act 1995, to a breach of the peace. The breach involved engaging two young children in conversation and asking them if he could tickle their legs, attempted to entice them into a car and placed them in a state of fear and alarm. In the Social Enquiry Report the appellant described himself as a "recovering paedophile". On 1 June 2010, the sheriff remitted the appellant to the High Court with a view to considering whether an Order for Lifelong Restriction was the appropriate disposal were the risk criteria in section 210E of the 1995 Act to be made out. On 21 June 2010, the sentencing judge made a risk assessment order. On 27 September 2010, having considered the Risk Assessment Report, the sentencing judge made an OLR with a punishment part of 4 years. This period was calculated from a starting point that a determinate sentence of 6 years would have been appropriate, but it required to be discounted for the early plea. Here it was submitted on behalf of the appellant that the statutory test for making an OLR had not been met as the sentencing judge could not have been satisfied that "the nature of, the circumstances of the commission of, the offence either in themselves or as part of a pattern of behaviour are such as to demonstrate that there is a likelihood that he, if at liberty, will seriously endanger the lives, or physical or psychological well-being, of members of the public at large". It was further submitted that the test was a high one of "seriously" endangering the public "at large" which should mean everyone and not just teenage girls. Further, there was no physical contact with or threat to the children and that the offence was at the lowest end of the offending spectrum, the appellant had no previous convictions and it was only because of the appellant's honesty that there was any pattern of behaviour to consider at all. It was also submitted that the appellant was assessed as posing only a medium risk to the safety of the public at large which did not fit with the test of there being a "likelihood" of serious endangerment, which implied the existence of a "high" risk of harm. As far as the punishment part was concerned it was submitted that it was excessive and the trial judge had not made the appropriate calculation following Petch v. H.M.A. 2011 SCCR 199. Here the court considered whether the sentencing judge was entitled to reach the conclusion that the criteria as set down in section 210E were met on the basis of the material before him. It considered that an OLR must be imposed where the court is satisfied that there is a "likelihood" that the offender will seriously endanger the public. In relation to the calculation of the punishment part the court had to identify the appropriate determinate sentence, which it would have imposed had it not been for its decision to make an OLR. Such a sentence would be discounted having regard to the utility of an early plea where appropriate. Having reached that point, the court must take off from the determinate sentence any element imposed for the protection of the public, and so fix the period attributable to the punishment part. Then that sentence ought to be halved because regard has to be had to the provisions for the early release of short or long term prisoners, who are either released or eligible for parole after the expiry of half of the determinate period.

James McLean v. Her Majesty’s Advocate [2011] HCJAC 99

Thu, 20 Oct 2011 12:48:50 GMT

Criminal Note of Appeal Against Conviction:- On 11 January 2011, following a trial on indictment at Glasgow Sheriff Court, the appellant was found unanimously guilty of two charges of assault and robbery. The appellant appealed against his conviction on the basis that the sheriff had failed to adequately direct the jury in relation to the eye-witness identification evidence. The first complainer, a 23 year old male, had been able to identify the appellant from photographs on an emulator sheet shown to him by the police on the night of the incident, however, he identified a stand-in at a VIPER parade two months later, and said he had been confused. At the trial the witness did identify the appellant, together with a distinctive hooded top which was seized from the appellant two days after the incident. A police officer had also identified the appellant from CCTV footage. The second complainer, a 28 year old female, identified the appellant from an emulator sheet of photographs shown to her by the police the day after the incident and subsequently identified him at a VIPER parade although at that time she had said that she was not sure. She was not asked to identify the appellant in court. She did not identify the distinctive hooded top in court. It was submitted on behalf of the appellant that the sheriff ought to have directed the jury on the terms of the Jury Manual at paragraph 16.2 in relation to the first complainer in respect that he had made an identification in court, but had failed to make an identification at the VIPER parade. Here the court considered whether such a specific direction was essential particularly given that this was not a case where proof depended solely on a dock identification.

Gordon Crozier v. Her Majesty’s Advocate [2011] HCJAC 95

Thu, 13 Oct 2011 11:59:12 GMT

Criminal Note of Appeal Against Conviction:- On 7 April 2010 the appellant was convicted after trial in the High Court at Perth of:- (1) a contravention of section 1(1)(a) of the Firearms Act 1968, namely being in possession of a self-loading pistol firearm without holding a firearms certificate; (2) a contravention of section 5(1)(aba) of the Firearms Act 1968, namely, being in possession of a prohibited weapon, namely a self loading pistol, without the authority of the Secretary of State or Scottish Ministers; and (3) a contravention of section 1(1)(b) of the Firearms Act 1968 in that the appellant had possession of ammunition, namely five cartridges, without holding a relevant firearm certificate. The firearm and the ammunition were found in a plastic bag in the boot of a car in which the appellant was travelling, concealed beneath the battery shelf of a compartment to which access was gained through the boot. The appellant appealed against his conviction on the ground that the learned trial judge erred in repelling a submission of no case to answer in which it was contended there was insufficient evidence to establish that the appellant was in possession of the firearm and ammunition as there was insufficient evidence from which to draw the inference that the appellant had the requisite knowledge of the items’ presence in the boot. Further grounds of appeal were lodged at the bar in relation to Cadder points regarding the appellant’s police interview. It was submitted on behalf of the appellant that the evidence demonstrated that two people, namely the appellant and his girlfriend, had access to the vehicle both before the journey began and during the journey. The appellant did not have exclusive access and control of the vehicle and because the items were not on open view and there was no evidence of dissociation on the part of his girlfriend from the car there was insufficient evidence to link the appellant to the items. Further, it was submitted that in the absence of the contents of his interview there was no evidence that the appellant was the owner of the motor car which was crucial when it came to the inferences which the Crown sought the jury to draw that the appellant had possession and control of the items. Here the court considered the issue of sufficiency of evidence, particularly the evidence of a surveillance officer who observed the appellant placing the bag in the boot of the car, together with the appellant being the driver of the car during its return journey from Edinburgh to Liverpool and the evidence from other police officers of the appellant's having responded to the HORT 1 form by stating that he was the keeper of the car on the day in question and held a policy of insurance for the car. The court went on to consider whether, without the terms of the appellant's police interview being before the jury, there was a reasonable chance that the jury would have acquitted the appellant.

Paul William Lumsden v. Her Majesty’s Advocate [2011] HCJAC 89

Thu, 06 Oct 2011 10:17:54 GMT

Criminal Note of Appeal Against Conviction:- The appellant was convicted, following trial before a sheriff and jury, of two charges of lewd, indecent and libidinous practices towards two young girls, SD and KS, between 1986 and 1992. The appellant had imposed upon him an extended sentence of 4 years, with a custodial period of 30 months. The appellant appealed against his conviction on a number of grounds although only one of these was argued here, namely, that the trial sheriff failed to direct the jury in relation to how they should deal with the fact that in 1993 SD told police officers that she had not been abused by the appellant, as a consequence, the jury were not informed that they could use that evidence to test the credibility and reliability of SD’s evidence at the trial in which she stated that she had in fact been abused. It was submitted on behalf of the appellant that the failure by the sheriff to so direct was a material misdirection which amounted to a miscarriage of justice. In the sheriff’s report the sheriff doubted whether a straight denial was a prior inconsistent statement and noted that the jury were well aware that SD had previously denied the account given in court and as such considered a specific direction on the issue as unnecessary. It was conceded on behalf of the Crown that the absence of the normal direction on a prior inconsistent statement was not ideal, however, in the particular circumstances of the case, did not amount to a misdirection and there was no miscarriage of justice. Here the court considered whether a direction by the sheriff in relation to section 263(4) of the Criminal Procedure (Scotland) Act 1995 was necessary to properly guide the jury on how they might approach the previous inconsistent statement when assessing her evidence. If indeed the omission by the trial sheriff did amount to a misdirection the court went on to consider to what extent it was material and whether a miscarriage of justice had occurred.

Robert Foye v. Her Majesty’s Advocate [2011] HCJAC 94

Thu, 29 Sep 2011 12:56:04 GMT

Criminal Note of Appeal Against Sentence:- On 23 January 2008 the appellant pled guilty under accelerated procedure in terms of section 76 of the Criminal Procedure (Scotland) Act 1995 to a charge of rape. On 1 October 2008, the court, being satisfied that the risk criteria were met, made an order for lifelong restriction under section 210F of the 1995 Act, and, in terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, ordered that a period of nine years imprisonment should be served by the appellant before the provisions of sections 2(4) and 2(6) of the 1993 Act should apply. That sentence was ordered to run consecutively to the total period of imprisonment to which the appellant was already subject, namely a sentence of 10 years for a charge of attempted murder. The appellant appealed against the sentence of nine years as a punishment part. On 26 March 2009, the appeal came before a two-judge sentence appeal court when the court remitted the appeal to a bench of three judges to be heard along with the appeal of Morris Petch in order to revisit the issue of the formula for determining a punishment part of a discretionary life sentence. On 18 December 2009, the appeal came before a court constituted by three judges. The court, having heard counsel for the appellant and the Advocate depute, was satisfied that the submissions that had been made raised important issues in relation to the five-judge decision in Ansari v H.M.A. 2003 S.C.C.R. 347. It appointed the appeal to be heard by a bench of seven judges. On 1 March 2011, that court, by majority, overruled the decision of the majority of the court in Ansari. It decided, with Lord Osborne and Lord Emslie dissenting, that the approach of Lord Reed in that case to the interpretation of the provisions of section 2(2) of the 1993 Act, as amended, should be adopted by sentencing judges. The court then remitted the appeal to a court of three judges here for final disposal. Here the court considered the appeal against sentence having regard to the 7 judge decision of the appeal court in Morris Petch and Robert Foye v. H.M.A. [2011] HCJAC 20 to determine what the appropriate sentence should be. In the first place the court considered whether the sentencing judge was entitled to decide that the appropriate disposal was the selection of a discretionary life sentence. The court then went on to consider the three steps outlined by the Lord Justice General in Petch and Foye :- (1) the identification of a determinate sentence which notionally might have been imposed if a life sentence had not been; (2) exclude from that notional sentence any element for public protection; and (3) the exercise is that required by section 2(2)(aa)(iii) of the 1993 Act which will ordinarily involve taking half the figure brought out by the exercise up to that point to ascertain the appropriate punishment part. The court also considered two issues in relation to the discount applied:- (a) when the discount should be applied in the three steps noted above; and (b) the appropriate discount to be applied given the stage the plea was tendered and whether the maximum discount available should be similar to the maximum available in murder cases , namely one-sixth(to a maximum of 5 years) as considered in H.M.A. v Boyle 2010 S.C.C.R. 103.

Vladimir Jakovlev and Alexsandr Podgornoi v. Her Majesty’s Advocate [2011] HCJAC 90

Thu, 22 Sep 2011 13:00:17 GMT

Criminal Note of Appeal Against Sentence:- On 3 December 2010 following a trial at the High Court at Edinburgh the appellants were convicted unanimously of the following charge:-"On 2 April 2010 at 1 Beattie Court, Hawick you did assault Christopher James McColm, then residing there, and did force entry to the property there, repeatedly punch and kick him on the head and body, repeatedly stamp on his head and body and repeatedly strike him on the head and body with a metal pole, a mirror, a portable heater and a clothes horse or similar implements, whereby he was so severely injured that he died on 3 April 2010 within the Western General Hospital, Edinburgh and you did murder him." On26 January 2011 the appellants were sentenced to the statutory sentence of life imprisonment with the punishment part fixed at 19 years and the sentencing judge ordered the deportation of each appellant at the conclusion of their respective sentences. The appeal against sentence by each appellant was directed at the punishment part of 19 years. Here the court considered the circumstances of the case, in particular, the vulnerability of the deceased, the lack of any motive, the lack of any provocation by the deceased, the persistence of the attack and the level of violence used (43 external injuries distributed over his entire body). Here the court examined the recent authorities in relation to the fixing of punishment parts for life sentences for murder where the appeal court in Smith v HMA [2010] HCJAC 118 approved 35 years as an appropriate starting point for the punishment part of a life sentence imposed in respect of the murder of a mother and child and in HMA v Boyle 2010 SCCR 103 where the appeal court indicated that a punishment part of 16 years should be considered the norm or starting point for determining the punishment part in all but the most exceptional cases of murder by stabbing. Here the court considered whether the sentencing judge had erred in the exercise of his discretion in selecting a punishment part of 19 years having regard to the circumstances of the murder and taking into account the available recent guidance for sentencing judges in such cases.

Barry Rodden & Paul Rodden v. Procurator Fiscal, Glasgow [2011] HCJAC NO. 85

Thu, 22 Sep 2011 12:57:43 GMT

Criminal Note of Appeal under section 174(1) of the Criminal Procedure (Scotland) Act 1995:- On 13 March 2011 the sheriff at Glasgow repelled the appellants' pleas to the competency of a complaint which contained one charge alleging a breach of section 19(5)(b) of the Private Security Industry Act 2001. It was contended at debate on behalf of the appellants that the charge was time-barred. On 6 February 2009 a requirement in terms of section 2 of the Private Security Industry Act 2001 was made of the appellants indicating that production of certain documentation should be made within fourteen days. The complaint was not served until 8 December 2010. The dispute between the parties is whether the offence was completed as at 20 February 2009, the date by which time the documentation should have been produced, which would mean the complaint was time-barred, or whether the charge amounted to a continuous offence which would mean that the proceedings were competent. An offence under section 19(5) of the 2001 Act is an offence which is triable only summarily, as provided by section 19(7), and is therefore one to which the provisions of section 136 of the Criminal Procedure (Scotland) Act 1995 applies which section provides inter alia:- “136.(1) Proceedings under this Part of this Act in respect of any offence to which this section applies shall be commenced- (a) within six months after the contravention occurred; (b) in the case of a continuous contravention, within six months after the last date of such contravention…”. The issue in this appeal was whether the offence fell within sub-paragraph (a) or sub-paragraph (b) of section 136 and at what point in this summary offence was completed.

John Joseph Jenkins v. Her Majesty’s Advocate[2011] HCJAC 86

Thu, 01 Sep 2011 18:21:01 GMT

Criminal Note of Appeal Against Conviction:- On 21 September 2010 at the High Court at Glasgow the appellant was convicted after trial of four charges including inter alia a charge of murder. The appellant was sentenced to life imprisonment in relation to the murder charge, with a punishment part of twenty years. The appellant appealed against his conviction on the grounds that in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 the verdict returned by the jury in respect of the murder charge was a verdict which no reasonable jury, properly directed, could have returned and accordingly there had been a miscarriage of justice. The appeal centred upon criticisms of the quality, character and strength of the identification evidence led in support of the charge. The trial judge had directed the jury that they could only convict the appellant of murder if they accepted the identification evidence in court by a Crown witness, Asken (the deceased’s son), and it was contended that his identification of the appellant was significantly flawed in a number of respects. In addition, a Devolution Issue minute was lodged late at the start of the appeal hearing whereby it was contended that the leading and reliance upon the dock identification evidence from Asken, by the Lord Advocate, rendered his trial unfair and in breach of his right to a fair trial under article 6(1) of the European Convention of Human Rights. It was submitted on behalf of the appellant, in relation to the dock identification of the appellant that in his first police interview, shortly after the incident on 31 October 2009, the witness said he had got a good look at the assailant, but said it was doubtful he would recognise him again. On 3 November 2009 he gave his second police statement and said he could not identify his mother's assailant and did not know the person who was a stranger to him. It was submitted that there had been alot of discussion among the deceased's family as to who had been responsible for her death and the witness was told that Sean Paul Jenkins was the suspect. Asken was asked by members of the family to look up a Bebo account where a photograph of Sean Paul Jenkins appeared. The witness then said he recognised him and went to the police station and informed the police that he was 100% sure that the person in the photograph was his mother's assailant. The appellant was over 30 years of age at that time, while Sean Paul Jenkins was around 15 years of age. At a VIPER identification parade held on 13 November 2009 the witness was shown video pictures of persons who moved from side to side. Sean Paul Jenkins was at position 7 in the parade. Asken asked to be allowed to look again at the person at position 1 in the parade and the person at position 7. He then proceeded to identify the person at position 1 as his mother's assailant. None of the persons in the parade was the appellant. In his statement to the police in relation to that identification, he positively identified the person at position 1 as the person who had stabbed his mother, or at least he was a good resemblance to him. The witness said that the man identified came up the side of his mother and hit her on the side. At a further VIPER parade held on 10 December 2009, the witness made no identification and informed the police "I cannae recognise any of them" despite the video containing a photograph of the appellant. On 16 December 2009, the witness, along with a number of members of his family, attended Airdrie Sheriff Court when the appellant appeared in the dock handcuffed to policemen. A number of members of the family had known the appellant before the events of 31 October 2009 and the identification by the witness at that time was in the context of the witness knowing that the person, the appellant, was a suspect. After seeing the appellant in the dock the witness had gone to a café with the other members of the family and discussed matters before the witness went to a police station where he said he was 100% certain that the appellant was his mother's assailant. In his evidence in court the witness explained that he had recognised the appellant in Airdrie Sheriff Court because of the way in which he looked then and the way in which he moved and this dock identification took place on 3 September 2010, around nine months after the incident. Here the court considered the limited circumstances in which an appellate court might interfere with the verdict of a jury under section 106(3)(b) where the issue is one of credibility and/or reliability of evidence which the jury must have relied upon to convict. The court also considered the dangers of dock identification, particularly in light of the specific circumstances of this case and the background to the dock identification of the appellant by Asken in considering whether there had been a miscarriage of justice.

Bernard John Paul Flanagan v. Her Majesty’s Advocate [2011] HCJAC81

Fri, 26 Aug 2011 11:17:08 GMT

Criminal Note of Appeal Against Conviction:- Following trial at the High Court at Livingston the jury found the appellant guilty by majority of being concerned in the supply of cocaine contrary to section 4(3)(b) of the Misuse of Drugs act 1971. On 15 October 2010, the appellant was sentenced to eight years imprisonment. On 20 December 2010 the appellant lodged a note of appeal against conviction containing a ground of appeal which related to the failure by the trial judge to direct the jury in relation to the special defence of incrimination which had been lodged on the appellant’s behalf and which had been read out to the jury at the start of the trial. It was submitted here on behalf of the appellant that if the jury had been properly directed it would have been open to them to acquit the appellant in relation to the special defence. Further, it was submitted that it was important that the purpose and the effect of the special defence should have been fully explained to the jury and the failure by the trial judge to do so amounted to a material misdirection and resulted in a miscarriage of justice. On behalf of the respondent it was submitted that there was no misdirection having regard to the circumstances present in the case and even if there was it did not amount to a miscarriage of justice. It was further submitted that while it might be that the directions given or not given in the present case did not follow the best practice, the jury here could have been left in no doubt whatsoever as to the nature of their duty in relation to the evidence given the remainder of the trial judge’s standard directions as to the presumption of innocence, the burden of proof, the standard of proof and corroboration. Here the court considered, having regard to a number of authorities, whether it was appropriate for a special defence of incrimination to be lodged in a case where the charge libelled was under section 4(3)(b) of the 1971 Act. It was noted here that there may be certain circumstances in such cases where such a special defence may be lodged, however, it was observed that in many cases brought under this section the allegation is that the accused person has been concerned in some particular way in the supplying of a controlled drug and therefore some other person could not be concerned in that particular way in such supply, and as such, a special defence of incrimination would be inappropriate. In disposing of this appeal the court considered that a special defence of incrimination was lodged on the appellant's behalf without objection and that the trial judge did not give specific directions in relation to it. The court considered whether the trial judge's omission to direct the jury in relation to that special defence amounted to a misdirection.

Ramesh Kaith v. Her Majesty’s Advocate [2011] HCJAC82

Fri, 26 Aug 2011 11:16:12 GMT

Criminal Note of Appeal Against Conviction and Sentence:- On 28 October 2010 following trial at the High Court the appellant was convicted of being concerned in the supply of heroin and crack cocaine in Aberdeen and elsewhere in the united Kingdom during the period from 1 April 2009 to 3 February 2010 contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The appellant was sentenced to 9 years imprisonment. The appellant appealed against his conviction and sentence on the basis that:- (1) there was insufficient evidence and that a submission made at the close of the Crown case in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 should have been sustained; (2) in any event the libel should have been restricted to a period between 29 October 2009 and 30 December 2009; and (3) the sentence of 9 years was excessive. It was submitted on behalf of the appellant that there was insufficient evidence to link the appellant with the drug supply operation taking place and the evidence as a whole was insufficient, and the no case to answer submission should have been sustained. It was further submitted that even if the trial judge was correct to repel the section 97 submission the libel should have been restricted from 29 October 2009 to 30 December 2009 to reflect the evidence against the appellant. The submissions in relation to the appeal against sentence were advanced on the basis of the contention that the period of the libel should be restricted which reduced the appellant’s culpability. On behalf of the Crown it was submitted that the trial judge was correct to repel the section 97 submission as there was sufficient evidence. It was submitted that it was a circumstantial case, that the evidence should be looked at as a whole and that independent strands of evidence which might not necessarily, when looked at individually, point to guilt, but the whole body of evidence may entitle the jury to draw that inference. It was conceded by the Crown that the appellant’s involvement should be restricted to the point of the appellant’s detention and arrest on 21 January 2010, however, it was arguable that the libel could have extended further to when the appellant first leased out 4 Merkland Road in September 2008. Here the court considered the circumstantial evidence in the case in deciding whether the trial judge had been correct to repel the section 97 submission having regard to the wide range of conduct which may comprise a contravention of section 4(3)(b) including knowingly providing and financing the premises required for cutting up, weighing, bagging, and distributing heroin and cocaine. The court also went on to consider, in light of the Crown concession, whether the sentence imposed was excessive, having regard to the value of the drugs recovered, namely, £25,380, £38,500, and £82,000.

Mary Ryan v. Her Majesty’s Advocate [2011] HCJAC83

Fri, 26 Aug 2011 11:04:48 GMT

Criminal Note of Appeal Against Conviction:- On 3 September 1999 at the High Court at Glasgow the appellant was convicted after trial of charges of murder, theft and attempting to defeat the ends of justice. The appellant had been indicted with two other accused, Patrick Francis Devine and Francis Martin Thomas O'Donnell on the same three charges. The co-accused Devine, the boyfriend of the appellant, was convicted of attempting to defeat the ends of justice but acquitted of the other two charges. O’Donnell was convicted of murder but acquitted of the other two charges. The appellant was sentenced to life imprisonment in relation to the murder charge with a recommendation that the appellant should serve a minimum period of 15 years. The appellant was admonished in respect of the other two charges. The appellant appealed against her murder conviction, as did her co-accused O’Donnell (see below). Two grounds of appeal were insisted upon by the appellant:- (1) that there was insufficient evidence to establish that the appellant knew the murder was to take place or that she was acting in concert with those who actually killed the deceased; and (2) that the Crown failed to disclose, in advance of the original trial, the police statements given by Crown witnesses William McKinnon and Christina Lawson and there was a realistic possibility that the appellant had not received a fair trial through that non-disclosure. It was submitted on behalf of the appellant that the case against her had been a circumstantial one and, as such, it was necessary for the Crown to be able to point to factual circumstances which, when looked at in the round, were capable of giving rise to an inference of guilt beyond reasonable doubt. It was further submitted that the Crown had been unable to establish that the appellant had entered in to a pre-arranged plan to murder the deceased. It was conceded on behalf of the appellant that there had been sufficient evidence to entitle the jury to hold that the appellant had been present when the deceased was killed, however, there was no evidence that the appellant had been involved in a concerted criminal plan to murder the deceased in the manner that had occurred. It was submitted on behalf of the Crown that the jury had been entitled to take the view that the appellant had lured the deceased to his death, having hired the Megane car and persuaded him to be driven by her. It was submitted by the Crown that the common criminal purpose involved the appellant hiring a car, driving the deceased in that car so that he met up with those who intended to kill him, being present whilst the deceased was killed, taking part in the subsequent destruction of the hire car and engaging in an attempt to cover up her involvement by destroying the hire car. It was conceded on behalf of the Crown that the police statements of McKinnon and Lawson should have been disclosed, however, it was submitted that there was no real possibility that the jury would have reached a different verdict in respect of the appellant had these police statements been disclosed prior to the trial. The court considered here whether the jury heard sufficient evidence which entitled them to convict the appellant on the charge of murder. The court further considered, as it had done in the O’Donnell appeal, whether the contents of the two police statements given by McKinnon would have enabled the cross-examination of him to have been taken further than it was taken by senior counsel for O'Donnell at the trial. The court also considered, as it did in the O’Donnell appeal, whether the failure to disclose by the Crown of the Lawson police statement resulted in any unfairness at the appellant’s trial and if it had been available whether there was a realistic possibility that the jury would have reached a different verdict.

Francis O’Donnell v. Her Majesty’s Advocate [2011] HCJAC84

Fri, 26 Aug 2011 11:03:49 GMT

Referral by the Scottish Criminal Cases Review Commission:- On 3 September 1999 at the High Court at Glasgow the appellant was convicted of a charge of murder, along with his co-accused Mary Ryan. He was acquitted of charges of theft and attempting to defeat the ends of justice. The appellant was sentenced to imprisonment for life on the murder charge with a recommendation that he should serve a minimum period of 15 years. The appellant appealed against his conviction by way of a Note of Appeal. Leave to appeal was granted, but the appeal was later refused on 18 February 2004. Thereafter the appellant made an application for review of his conviction to the Scottish Criminal Cases Review Commission. The Commission subsequently referred the appellant's case in terms of Section 194B of the Criminal Procedure (Scotland) Act 1995. The Statement of Reasons raised a number of issues including whether the trial judge had erred in failing to fully direct the jury on the evidence of the applicant's confession to the Crown witness William McKinnon. It also raised concerns regarding the failure by the Crown to disclose Crown witness statements in relation to Mckinnon and Christina Lawson. Here it was submitted on behalf of the appellant that the most important evidence against the appellant was the confession made to McKinnon. It was submitted that the trial judge failed to give adequate directions in relation to the evidence of William McKinnon. A joint minute had been entered into between the Crown and those representing the appellant, agreeing that the appellant had been in the Republic of Ireland at the time when the murder was committed. It was submitted that the only basis upon which a conviction could be sought was by virtue of concert and the trial judge's charge to the jury did not contain a direction that the confession could be used only as evidence of the appellant's being involved in the crime on an art and part basis. It was further submitted that the trial judge had misdirected the jury by failing to direct them regarding the basis on which they could convict the appellant of the murder particularly as it was accepted that he had been in Ireland at the material time and, as a consequence of that, the jury should have been given directions relating to the construction that they ought to put on the evidence relied upon by the Crown relating to the confession. It was further submitted on behalf of the appellant that the jury ought to have been directed that they could not use the confession as an admission that he had been an actor and it was necessary that they should have been told that they required to ignore that part of it. It was further submitted on behalf of the appellant that there had been defective representation on the part of trial counsel to properly pursue the issue of the statements of Lawson and McKinnon at the trial. It was submitted on behalf of the Crown that there was nothing to suggest that the jury had convicted the appellant as an actor in the murder, particularly in light of his acquittal in respect of the other two charges. It was submitted here that the trial judge adequately directed the jury on concert having regard to the positions adopted by the trial advocate depute and senior counsel for the appellant in their respective speeches to the jury. Whilst it was conceded that in the original appeal, the appeal court had identified a misdirection, they had rightly taken the view that there had been a compelling circumstantial case against the appellant that the technical misdirection was not of any materiality in the circumstances of this case and no miscarriage of justice had occurred. Here the court considered whether there had been a misdirection to the jury on the issue of the basis upon which they could convict the appellant with no specific direction in relation to the “Blackpool confession”. The court further considered the issue of whether if the undisclosed material in question had been made available, taking all the other circumstances of the trial into account, was there a real possibility that the jury would have arrived at a different verdict. The court went on to consider the trial judge’s directions in relation to the witness Mackinnon and his status as a socius criminis and whether they were adequate. Finally, the court considered the issue of defective representation on the part of those representing the appellant at the time of the trial, on the basis that there was a failure to obtain further information from the Crown about the statement of Lawson and, having obtained that information to cite and lead evidence from her to attack the evidence of the witness McKinnon.

Samuel Petto v. Her Majesty’s Advocate [2011] HCJAC 78

Sat, 13 Aug 2011 09:39:13 GMT

Criminal Note of Appeal Against Conviction:- On 4 October 2004 at the High Court in Glasgow, the appellant pled guilty to a charge of culpable homicide by repeatedly stabbing Arthur Thomas Rawlinson with a knife and a charge of murder which was committed by the appellant, Walter Charles Sneddon Thomson and Steven Telford setting fire to a tenement block whereupon a fire took hold and resulted in the death of Myra Donachie who was residing there. On 22 October 2004 the appellant was sentenced to 10 years' imprisonment on the culpable homicide charge and to life imprisonment with a punishment part of 18 years on the murder charge. Here the appellant sought to withdraw his plea of guilty to the murder charge as a consequence of the decision of the appeal court in H.M.A. v Purcell (2008 JC 131). The appeal was heard together with his then co-accused, Steven Telford’s, appeal. The court in Purcell approved the definition of the mens rea for murder as described in Gordon's Criminal Law (3rd ed, at para 23.33):-"The actual situation is that there is murder wherever death is caused with wicked intention to kill or by an act intended to cause physical injury and displaying a wicked disregard of fatal consequences". It was submitted here on behalf of the appellant, before 5 judges, that since the libel did not allege that the appellant assaulted the deceased, or had any intention to cause injury to her or any other person, it did not amount to a relevant charge of murder. As such, the plea of guilty to murder was tendered in error, and the appellant should be allowed to withdraw it. It was submitted on behalf of the Crown that if the ratio of Purcell was that for murder there had to be an act amounting to an assault, the decision was wrong as murder could be committed without any intention to inflict harm or injury and wicked recklessness was a distinct form of mens rea for murder. It was further submitted that the conclusive nature of a plea of guilty meant it could be only be withdrawn in exceptional circumstances, which were not present here. In this appeal the court considered the case having regard to the case of Purcell which related to a charge of murder following on from the accused having driven a car recklessly and caused the death of a child on a pedestrian crossing where it was accepted by the Crown that he had had no intention to injure anyone. Here the court considered the circumstances of the case which involved the specific act of setting fire to a ground floor flat in a typical Glasgow tenement with the use of a large quantity of petrol as an accelerant. The court examined the definitions of murder by the institutional writers and their application here. The court considered whether fire raising as a wilful act satisfied the requirement of intent for the murder charge to be relevant. The court also commented that a comprehensive re-examination of the mental element in homicide cases is overdue.

Steven Telford v. Her Majesty’s Advocate [2011] HCJAC 79

Sat, 13 Aug 2011 09:36:37 GMT

Criminal Note of Appeal Against Conviction:- On 4 October 2004 at the High Court in Glasgow, the appellant pled guilty to a charge murder which was committed by the appellant, Walter Charles Sneddon Thomson and Samuel Petto setting fire to a tenement block whereupon a fire took hold and resulted in the death of Myra Donachie who was residing there. On 22 October 2004 the appellant was sentenced to life imprisonment with a punishment part of 10 years. Here the appellant sought to withdraw his plea of guilty. The submissions made on behalf of the appellant were substantially the same as those made in Petto v. H.M.A. above and relied on the decision in H.M.A. v Purcell (2008 JC 131) and on a statement in Gordon (Criminal Law, 3rd ed, para 23.33) that was considered in that case. It was submitted that murder was committed where there was either a wicked intention to kill or to cause physical injury and the conduct displayed a wicked disregard of its fatal consequences. It was submitted on behalf of the appellant that murder could not be committed in the absence of an a wicked intention to kill or an intention to cause physical injury and the conduct displayed a wicked disregard of its fatal consequences. It was further submitted that for a charge of murder to be relevant, it had to set out averments of assault on the victim or an intention to cause him physical injury and here the absence of words such as “wilfully” rendered the charge irrelevant. It was further submitted that as the plea of guilty had therefore been tendered in error he should be allowed to withdraw it. Here the court considered whether the appellant's plea of guilty could be withdrawn and whether the appellant had the necessary mens rea for murder having regard to the same circumstances as were considered in Petto.

Imran Shahid v. Her Majesty’s Advocate [2011] HCJAC 76

Sat, 13 Aug 2011 09:34:20 GMT

Criminal Note of Appeal Against Conviction:- In November 2006 the appellant was convicted of the murder of Kriss Donald in Glasgow. A number of the appellant’s grounds of appeal have previously been dealt with and refused. Here the final ground of appeal was considered and related to the dock identification of the appellant made by the Crown witness Jamie Wallace which, it was contended, was incompatible with the appellant's Convention rights. Jamie Wallace gave evidence in the trial of the appellant that the appellant had been involved in the abduction of Kriss Donald in a street in Pollokshields, Glasgow. In advance of the trial Jamie Wallace had been shown photographs and had failed to pick out of these photographs a photograph of the appellant. Jamie Wallace had also identified stand-ins at a subsequent identification exercise and had failed to pick out the appellant in a VIPER identification parade. Here it was submitted on behalf of the appellant that there are three safeguards which were significant in considering the overall fairness of a trial when it comes to dock identification:- (1) the rights of the defence; (2) the directions given by the trial judge; and (3) the significance of other evidence in the case. The main criticism advanced on behalf of the appellant here were that the directions by the trial judge on how the jury should treat the dock identification by Jamie Wallace were inadequate and resulted ion a miscarriage of justice. Here the court considered whether the special directions required where a witness made an identification in court when he had failed to do so on earlier occasions were properly given and whether the trial judge sufficiently drew the jury's attention to what had been said by the Crown and by defence counsel in relation to these matters in their respective speeches to the jury in assessing whether there had been a miscarriage of justice in this case.

Irene Singleton & Peter Singleton v. Her Majesty’s Advocate [2011] HCJAC 70

Sat, 13 Aug 2011 09:30:49 GMT

Criminal Note of Appeal Against Conviction:- Following a trial at the High Court in Edinburgh in June 2010 the appellants, who were brother and sister, were convicted by a majority of the jury of the following charge:- “on 7 June 2009 at the premises known as Ali's Takeaway, 887 Shettleston Road, Glasgow you IRENE SINGLETON and PETER SINGLETON did assault David McShane… and did push him, struggle with him, repeatedly punch and kick him on the head and body and repeatedly stamp on his head, whereby he was so severely injured that he later died at Glasgow Royal Infirmary … and you did murder him.” Here the appellants appealed against their convictions on the grounds of alleged misdirections by the trial judge on the issue of provocation and it was submitted that these misdirections resulted in a miscarriage of justice. It was submitted on behalf of the appellants that the trial judge had erred in implying in the charge to the jury that there was some onus on an accused person to give evidence where provocation was relied on. Further, it was submitted that the trial judge had improperly tainted the whole exercise by his obvious reluctance to leave the issue of provocation before the jury "... as counsel wanted me to". In addition, it was submitted that comments on the parties' respective positions were inaccurate and inadequate to inform and instruct the jury as to the effect of a plea of provocation. It was submitted on behalf of the appellants that it was for the jury to decide whether the assault by the appellants was "grossly disproportionate" by comparison with the violence initially offered by the deceased and if evidence on this issue was sufficient to justify self-defence being left to the jury, then the same should apply to provocation. In essence it was submitted that the issue of provocation had not been properly left to the jury by the trial judge. It was submitted on behalf of the Crown that the trial judge had not sought to invert the onus of proof, that there was no implied reluctance to leave the issue of provocation to the jury and that the charge, when read as a whole, was sufficient to enable the jury to consider provocation, but, in any event, it could not be said that any miscarriage of justice had resulted. Here the court considered the alleged misdirections particularly in relation to onus and the use of the words "... as counsel wanted me to" to see whether any miscarriage of justice resulted. The court also considered whether, having regard to the particular circumstances of the case, the plea of provocation should have been withdrawn from the jury’s consideration.

Craig Colin McSporran v HMA [2011] HCJAC 56

Sat, 06 Aug 2011 22:27:00 GMT

This was a defence appeal against the competency of sentence. The accused originally pled guilty to a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 on 26 October 2010 at Glasgow Sheriff Court. The procurator fiscal depute gave a narration to the court but that narration did not accord with the evidence or the narration previously agreed between the defence and the Crown. Sentence was deferred until 19 November 2010. On that date, the fiscal depute advised the court that the narration previously given was erroneous. The Sheriff refused a request by the defence for a short adjournment to clarify the facts with the fiscal depute and instead fixed a proof in mitigation for 12 January 2011 on the basis that the Sheriff would not be available to hear the case before January due to her commitments as a temporary High Court judge.

Parties agreed the correct narrative but on 12 January 2011, the appellant's solicitor submitted that the adjournment to that date was incompetent in terms of section 201 of the 1995 Act and that it had not been stated that cause had been shown for an adjournment in excess of four weeks, nor had it been minuted. He submitted that any further proceedings on the indictment were therefore incompetent and that the Sheriff could not proceed to sentence the appellant. The Sheriff repelled that submission on the basis that the adjournment was at common law and section 201 did not apply.

The High Court considered the Sheriff's report and submissions for the appellant and the Crown. The court distinguished McCulloch v Scott 1993 S.C.C.R. 41 on the grounds that, in the present case, the court would not have been able to pass any sentence until the circumstances of the offence had been clarified - that was the purpose of the proof in mitigation. The purpose of the adjournment was not therefore to enable enquiries to be made in terms of section 201. That section related to enquiries by a third party when the court was ready to embark on the sentencing process, as opposed to enquiries by the court itself. The court approved the decision in Burns v Lees 1994 S.C.C.R 780, and rejected the appellant’s submission that the case was wrongly decided and may require to be referred for review to a larger court. In obiter dicta, the court referred to Hunter v Carmichael 1995 S.C.C.R 453, where it was held that "cause shown" need not be minuted. The court also indicated that had section 201 applied, the Sheriff's purpose for adjourning the diet for a period in excess of four weeks would have constituted cause shown. The appeal was refused.