Criminal Appeals

David Neil v. Her Majesty's Advocate [2008] HCJAC 76

Wed, 17 Dec 2008 17:51:00 GMT

Appeal under Section 65 of the Criminal Procedure (Scotland) Act 1995:- On 21 September 2007, the appellant appeared with five co-accused on petition at Alloa Sheriff Court, on a charge of being concerned in the supplying of cannabis resin. As such the twelve month time bar was 21 September 2008. The appellant was granted bail at that time and was subsequently indicted on the same charge. In advance of the first diet those acting on behalf of the appellant made repeated requests for a copy of a Crown production and despite numerous reminders the Crown failed to provide a copy. The case was adjourned on a number of occasions mainly for the Crown to provide a copy of the previously requested production. Subsequently, due to the non availability of an essential Crown witness the Crown made a motion in terms of section 65(3) of the Criminal Procedure (Scotland) Act 1995, seeking an adjournment of the trial diet, and an extension of the 12-month period until 17 October 2008, being the last day of the sitting commencing on 14 October 2008. The minutes record a Crown motion "to adjourn the trial in respect that an essential Crown witness was absent and lack of court time left within the sitting and on Crown motion to extend the timebar until 17 October 2008". The sheriff granted the Crown's motion. The appellant appealed against the grant of the extension in terms of section 65(8) on the grounds that the absence of an essential Crown witness and pressure of business were insufficient grounds for the granting of the extension. Here the court considered the appeal with particular reference to the two-stage test set out in H.M.A. v. Swift 1984 J.C. 83 and the conduct of the Crown in failing to provide the defence with a copy of the production requested.

Seyed Naghibzadeh v. Her Majesty's Advocate [2008] HCJAC 75

Wed, 17 Dec 2008 17:49:00 GMT

Criminal Note of Appeal Against Conviction and Sentence:- On 24 February 2006 the appellant was found guilty after trial by a majority verdict at Glasgow Sheriff Court of a contravention of section 5(3) of the Criminal Law (Consolidation) (Scotland) Act 1995. The appellant was sentenced to an extended sentence of 30 months, the duration of the custodial term being 18 months imprisonment, and the extended period being 12 months. The appellant lodged a Note of Appeal against conviction and sentence. Leave to appeal against conviction was granted, but leave to appeal against sentence was refused. During the evidence of a defence witness the defence witness was asked why he was scared to give evidence and the Crown objected on the basis of irrelevancy, and the jury withdrew. Counsel for the appellant maintained that she wanted to clarify what the witness meant when he said that he was terrified. The procurator fiscal depute objected on the ground that any such question could relevantly arise only if the witness had not spoken to the alibi and in the present case he had. The sheriff sustained the objection on the ground that the witness's credibility was not being put in issue by the defence. She thought that his evidence could be said to support the appellant's alibi, and also she considered that the witness was apprehensive about giving evidence as a whole. It is on that decision that the present appeal relates. It was submitted on behalf of the appellant that if the witness's account of being threatened had been regarded as reliable by the jury, then his evidence could not be properly described as irrelevant and it is always possible to cross-examine witnesses about any matter relevant to their credibility, and whether anyone has sought to influence their evidence. It was submitted on behalf of the apellant that the central issue in the case was the conflict of credibility between the complainer and her witness on one side, and the appellant and the defence witness on the other. It was submitted that the sheriff was wrong to exclude the evidence and, as a consequence, there may have been a miscarriage of justice. Here the court considered whether the sheriff was right to exclude the evidence and whether the exclusion of the evidence may have resulted in a miscarriage of justice.

R v Chargot Limited (t/a Contract Services) and others (Appellants) (On appeal from the Court of Appeal Criminal Division), [2008] UKHL 73

Wed, 10 Dec 2008 13:00:00 GMT

Shaun Riley worked for Chargot Ltd who were involved in the construction of a car park at a farm in Lancashire. The dumper truck which Mr Riley was driving tipped over on its side and he was buried by the load of spoil that he had been transporting. It was some time before he could be pulled out, attempts to revive him were unsuccessful and he died the following day in hospital.

Criminal proceedings were brought against the Chargot (first appellant) under s.33(1)(a) of the Health and Safety at Work etc Act 1974 alleging a breach of s.2(1) of the Act. As the operations were under the control of the principal contractor, Ruttle Contracting Ltd (second appellant), they were prosecuted under s.3(1). The third appellant, George Ruttle (a director of the first appellant and the second appellant’s managing director), was prosecuted under s.37. The appellants maintained that they had done everything that was reasonably practicable to ensure the health and safety of persons working on the site, including Mr Riley.

The appellants were found guilty and their appeal to the Court of Appeal was dismissed. They then appealed to the House of Lords.

The principal issues in the appeal were directed to the way in which the case for the prosecution had been presented to the jury. The prosecution had based its case against the first and second appellants on the proposition that it was sufficient for it to identify and prove a risk of injury arising from a state of affairs at work. The contention for the appellants was that it was for the prosecution to identify and prove particular acts or omissions consisting of a failure or failures to comply with the duties laid down in ss. 2 and 3 of the Act. The Court of Appeal held that the policy of the 1974 Act was to impose a positive burden on employers, rather than simply disciplining them for the breach of specific obligations. That being so, the prosecution was entitled simply to point to a state of affairs as amounting to a breach of the statutory duty. In this case the relevant risk was the risk of injury caused by driving the dumper truck. That this was a real risk, as opposed to a purely hypothetical one, was established by the fact that there was an accident. That was sufficient to justify the requirement that the first and second appellants should have the burden of proving that they had done all that was reasonably practicable to protect against that risk.

The case against the third appellant was that he was directly involved in the works, as he gave specific instructions as to how they were to be performed. He had signed a statement in which he said that his involvement in the project at the farm was considerable, that he ran the job and that he made most of the decisions. It was submitted on his behalf that the judge gave no guidance to the jury as to how the words “neglect, connivance or consent” in the charge against him could be relevant to the facts of the case. But there was no submission that he had no case to answer and the court said that the only sensible inference was that, if it was established that the company had committed an offence, he willingly allowed it to do so or knowingly turned a blind eye to it. The jury could not have been in any doubt about what those words meant in the context of this case.

The House of Lords unanimously agreed that the Court of Appeal was right to hold that there were no grounds for setting aside the jury’s verdict in the case of any of the appellants. Accordingly, all three appeals were dismissed.

Paul Beckley v. Procurator Fiscal, Greenock [2008] HCJAC74

Wed, 10 Dec 2008 07:40:00 GMT

Appeal by Bill of Suspnsion:- On 2 May 2008 at Greenock Sheriff Court in a summary trial the Crown led two police officers in evidence and the case was part heard until 20 May 2008 when two defence witnesses were heard. The complainer represented himself at trial and the presiding sheriff found him guilty of the remaining charges on the complaint. In this Bill of Suspension the complainer sought to suspend the conviction which ensued at the conclusion of the summary trial on the ground that it was a miscarriage of justice for him to have been required to conduct the trial without the benefit of legal representation. Here the court considered the circumstances surrounding how the complainer came to represent himself at trial, however, there were several significant differences between the account of events set out in the Bill of Suspension and the account contained in the sheriff's report particularly where the complainer states that he made a motion to be allowed to instruct another solicitor, and advised the sheriff that he did not wish to conduct the trial without legal representation. The sheriff, however, made no mention of any motion having been made by the complainer, but did say that the complainer stated that he did not want the case adjourned. Here the court considered which version of events were to be relied upon and whether the sheriff's refusal to adjourn the trial amounted to a miscarriage of justice.

Graham Lynn & Stuart Logue v. Her Majesty's Advocate [2008] HCJAC 72

Tue, 02 Dec 2008 14:46:00 GMT

Criminal Appeals Against Sentence:- On 19 February 2008 the appellants pled guilty at the High Court in Glasgow to charges of causing death by dangerous driving in contravention of section 1 of the Road Traffic Act 1988. The appellants were sentenced to custodial sentences of ten years two months and eight years detention respectively. Each period of custody was discounted from 12 years on account of their pleas of guilty. Both appellants appealed solely on the selection of twelve years as an appropriate starting point in determining the sentences imposed, having regard to the fact that the maximum sentence for such an offence is fourteen years. Here the court considered whether the starting off point of 12 years was excessive in light of the circumstances of the offence, in particular, the deaths of three young people and the serious and permanent injury of others.

Derek Charles Ferguson v. H.M.A. [2008]HCJAC 71

Tue, 25 Nov 2008 20:57:00 GMT

Criminal Appeal Against Conviction and Sentence:- On 24 November 2005, at the High Court in Edinburgh, the appellant was convicted after trial of a charge of murder. On 15 December 2005, the trial judge sentenced the appellant to life imprisonment with a punishment part of 18 years. The note of appeal contained one ground which stated that the trial judge erred in failing to direct the jury that it was open to them to return a verdict of guilty to the lesser charge of culpable homicide. It was submitted on behalf of the appellant that if the jury had been satisfied that there had been a deliberate stabbing, as opposed to the accidental injury spoken to by the appellant, culpable homicide was still an option reasonably open to them and the issue of whether the crime was one of murder or culpable homicide was a classic jury question. It was submitted on behalf of the Crown that the verdict of culpable homicide was not one which was reasonably available on the evidence and the assault was of so grave a nature that the offence committed, if the defence of accident was rejected, was murder. Here the court considered whether there was an obvious alternative verdict reasonably available on the evidence, and whether a failure to refer to the alternative was a misdirection that amounted to a miscarriage of justice.

William McLellan v. Her Majesty's Advocate [2008] HCJAC66A

Tue, 25 Nov 2008 20:53:00 GMT

Criminal Appeal Against Conviction:- The appellant was indicted in the High Court at Edinburgh on a charge assault and robbery while acting with unknown individuals at commercial premises in Glasgow. On 20 June 2003 Lord Carloway refused a minute of postponement, lodged by the appellant following a change of agency on 16 May 2003. The purpose of the postponement was for an expert to examine video footage. On 24 June 2003 the appellant appeared for trial before Lord Hardie and newly appointed counsel moved the court to adjourn the trial for the same reason as before. Lord Hardie refused the defence motion stating that there had been no material change in circumstances to merit interference with Lord Carloway's decision and the trial took it's course. Crucial to the Crown case was the identification of the appellant from photographic stills taken from the video footage. The appellant was convicted and appealed against his conviction and lodged a devolution minute. On behalf of the apellant it was submitted that:- (1) the refusal to adjourn the trial diet had materially prejudiced the preparation and presentation of the appellant's defence; (2) the trial judge erred in relation to the directions about jury access to the video footage; (3) the trial judge erred in failing to give a direction that the jury should not make their own identification and the jury having been given access to the photographic stills should have been given such a direction; and (4) a claim of defective representation was made based on counsel's failure to cross-examine a police officer who did not know the appellant, yet identified him from a photographic stills. Here the court considered the various aspects of the appeal.

Derek Carswell v. Her Majesty's Advocate [2008] HCJAC70

Tue, 25 Nov 2008 20:52:00 GMT

Criminal Appeal Against Conviction:- On 11 January 2007 the appellant was convicted on indictment after trial at Peterhead Sheriff Court of a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 relating to the distribution of diamorphine in the Peterhead area. The apellant was sentenced to two years imprisonment. Three grounds of appeal were argued, albeit interrupted by the appellant withdrawng his instructions from counsel during the course of the appeal hearing. The grounds of appeal were:- (1) that there had been an infringement of section 99(2)(b) of the Criminal Procedure (Scotland) Act 1995 in that a juror had left the jury room for a purpose other than one authorised by that subsection and words had passed between the sheriff clerk and the juror with no written record of what had been said between the two; (2) the Crown had failed to lead any expert witness evidence in relation to the identification of the drug as diamorphine; and (3) the verdict reached was unreasonable. Here the court considered whether there was a breach of section 99(2)(b) and, if so, whether it led to a miscarriage of justice. Further, the court considered whether there was a sufficiency of evidence to allow the jury to convict the appellant in particular given the absence of expert evidence and the reliance placed by the Crown on lay testimony identifying the heroin.

Sharon Harkins v. Her Majesty's Advocate [2008] HCJAC66

Tue, 18 Nov 2008 08:42:00 GMT

Criminal Appeal Against Conviction:- The appellant and her co-accused James Carslaw, were both convicted after trial of a charge of murder and a charge of theft. The ground of appeal in respect of which leave to appeal was granted related to the admission in evidence of a deceased witness's statement in terms of section 259 of the Criminal Procedure (Scotland) Act 1995. The issue here was whether the admission of the hearsay evidence rendered the trial unfair and thus led to a contravention of Article 6 of the European Convention, notwithstanding the other evidence against the appellant and the terms of the trial judge's directions to the jury respecting this hearsay evidence. The deceased witness whose hearsay statement was in question, was a heroin addict and it was submitted on behalf of the appellant that the statements made by the deceased against the interest of the appellant were so unreliable that the trial judge should not have allowed it to be led. It was further submitted that at the close of the Crown case the trial judge should have reached the view that the hearsay evidence was characterised as being the sole or decisive evidence against the appellant thus rendering his trial unfair.Here the court considered, having regard to the other evidence in the case against the appellant, whether the inability of counsel for the appellant at the trial to cross-examine the deceased so handicapped the defence as to render the trial unfair.

Her Majesty's Advocate v. Thomas Russell Currie [2008] HCJAC 67

Tue, 18 Nov 2008 08:41:00 GMT

Crown Appeal Against Sentence:- On 8 March 2008 the respondent, following trial at the High Court, was found guilty of:- (1) a contravention of section 5(3) of the Criminal Law (Consolidation) (Scotland) Act 1995; and (2) a charge of attempted rape. On 7 March 2008, the trial judge made a Probation Order on the respondent for a period of three years and containing a condition that the respondent should undertake 200 hours of unpaid work in the community. Under sections 108 and 110 of the Criminal Procedure (Scotland) Act 1995 the Crown appealed against that disposal on the basis that it was unduly lenient. A number of grounds of appeal were argued including:- (1) the age of the complainer (13); (2) in relation to the attempted rape the trial judge erred in having insufficient regard to the serious nature of the offence, the age of the complainer and the use of force by the respondent;(3) the respondent's conviction suggested a risk of escalating offending towards young girls; (4) the trial judge erred in failing to obtain a full risk assessment with a view to imposing an extended sentence; and (5) the sentence imposed did not reflect the seriousness of the offences, the need for deterrence, or the need to protect the public. On behalf of the appellant it was submitted that a custodial sentence should have been selected following upon the making of a further risk assessment, which the trial judge should have ordered. On behalf of the respondent it was submitted that, although the sentence imposed could be considered lenient, it was not unduly lenient. Here the court considered the sentence in light of the particular circumstances of the case.

Gordon Orrock v. Procurator Fiscal, Perth and Max Ludriecus v. Procurator Fiscal, Edinburgh [2008] HCJAC 65

Tue, 18 Nov 2008 08:40:00 GMT

Criminal Appeal by Stated Case:- Both appellants were charged with being in charge of a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in their breath exceeded the prescribed limit, contrary to the Road Traffic Act 1988, section 5(1)(b). Both appellants sought to invoke the statutory defence found in section 5(2) of that Act, by proving that there was no likelihood of him driving when he was still above the prescribed limit. In both of these appeals the court considered whether the sheriff had applied the correct test in considering whether the appellant has satisfied the court that the defence available under section 5(2) had been made out. Here the court considered the purpose of the legislation which was to provide the accused with the opportunity to exonerate himself from the charge if he could show that there was no likelihood that he would drive whilst he was so unfit. As such section 5(2) of the Act imposed a legal, rather than a persuasive burden on the appellant as in order to escape conviction he had to prove, on the balance of probabilities, that there was no likelihood that he would drive before the amount of alcohol in his system fell below the legal limit. On behalf of the appellants it was submitted that the phrase "no likelihood" of driving was unclear, and that there was little guidance available to work out how such a defence might be approached. Here the court considered whether the sheriffs each correctly understood the appropriate test and whether they applied that test in light of the particular circumstances of the cases before them.

Steven Edward Naismith Allison v. Her Majesty's Advocate [2008] HCJAC 63

Tue, 11 Nov 2008 13:44:00 GMT

Criminal Note of Appeal Against Conviction and Sentence:- Following trial at the High Court in Glasgow in August and September 2004 the appellant was convicted of four contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971 committed at various locii between 12 November and 3 December 2003. In a Note of Appeal under section 109 (1) of the Criminal Procedure (Scotland) Act 1995, the appellant appealled against conviction and sentence. The grounds argued at appeal related to:- (1) that there had been insufficient evidence against the appellant in that there had been various links between the appellant and those who had been involved in drug dealing, but there was never any direct linkage of the appellant to drugs which could justify conviction; (2) that the trial judge had erred in failing to direct the jury that they should not consider the evidence admitted under section 259 and the more important the evidence was, the less likely it was that it could be used consistently with trial being fair in terms of Article 6 of the European Convention; (3) that the failure by the Crown to disclose the previous convictions of the subject of the section 259 application resulted in a miscarriage of justice; and (4) that a direction given by the trial judge had not cured the prejudice caused by co-accused pleading guilty and a miscarriage of justice had resulted. Here the court considered the sufficiency of the circumstantial evidence against the appellant. In relation to the fairness of allowing the statement under section 259 to be admitted the question was whether the evidence concerned was "decisive" or "of critical importance". The court also considered whether the Crown, in failing to disclose the previous convictions of the witness, would have resulted in an unfair trial and whether the trial judge in his directions adequately dealt with the inappropriate remarks of the trial advocate depute in referring to former co-accused who had pled guilty.

Shehzada Hanif v. Her Majesty's Advocate 2008 HCJAC 47

Tue, 11 Nov 2008 13:43:00 GMT

Criminal Note of Appeal Against Conviction:- On 12 January 2006 at the High Court in Glasgow the appellant was found guilty of a charge of assault and attempted robbery. The central issue at trial was the identification of the appellant as the perpetrator. Both of the two female employees referred to in the charge gave evidence and the trial advocate depute sought a dock identification from them both. Formal objection was taken by defence counsel at that time. At the close of the Crown case defence counsel sought to advance the earlier objection to the admissibility of the dock identification on the basis that:- (1) the evidence was inadmissible at common law as having been unfairly obtained; and (2) its admission as evidence was incompatible with the appellant's rights under Article 6 of the European Convention in which respect counsel sought to have received a devolution minute. The trial judge refused the motion. Here the court considered the fairness of the identification notwithstanding the terms of section 79A(2) of the Criminal Procedure (Scotland) Act 1995 which generally requires such objections to be taken in advance of the trial diet. In particular, the court considered whether the showing of one witness emulator photographs of the appellant in the presence of the other witness, and there being no subsequent formal identification parade held, tainted the dock identifications to such an extent that it rendered the trial unfair.

Joseph McKnight v. Her Majesty's Advocate [2008] HCJAC 62

Wed, 29 Oct 2008 10:13:00 GMT

Criminal Appeal Against Sentence:- On 16 November 2006 the appellant was driving a car in Great Western Road, Glasgow when he was stopped by police officers. He was found to be driving while disqualified. He was also found to have a quantity counterfeit bank notes in his possession. On 25 January 2007, the appellant was sentenced in the sheriff court to 8 months back-dated to 17 November 2006 in respect of the offence of driving while disqualified. He served that sentence as a short-term prisoner, and was released in March 2007. On 4 September 2007, following a five week trial at Edinburgh High Court the appellant was found guilty of a contravention of section 16(1) of the Forgery and Counterfeiting Act 1981 and sentenced to 3 years imprisonment in respect of the counterfeiting offence, to run consecutively to a sentence of 35 months which the appellant was serving at the time for separate crimes of dishonesty. In terms of section 27(5)(b) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 the sentences were to be treated as a single term of 5 years 11 months, thus the appellant's status changed from a short-term prisoner to a long-term prisoner, postponing his date of early release. Here the court considered whether the judge who imposed the 3 year consecutive sentence upon the appellant should have reduced that sentence to reflect that the appellant's status was changed from a short-term to a long-term prisoner, with a consequential effect on his date of early release. Further, the court considered whether the 3 year sentence should have been reduced to reflect the earlier 8 month sentence imposed in respect of a road traffic offence which arose out of the same incident.

DAVID JOHN SWANKIE (Appellant) v HER MAJESTY'S ADVOCATE [2008] HCJAC 59 Appeal No: XC 360/03

Thu, 16 Oct 2008 12:14:00 GMT

Appeal - convition of rape of appellant's wife. Evidence had been produced of bruising to the complainer's face as a result of the actions of the appellant. The complainer had been distressed the morning after the incident and had reported an assault to staff at a service station. Disputed, whether the trial judge had directed the jury correctly in stating that distress could corroborate the required lack of consent. The defence presented at the trial was that sexual intercourse had been consensual and that there was no explanation for the complainer's injuries. Disputed, whether cousel for the appellant had failed in his representation by 1) not presenting evidence of a pay-in book and 2) not examining a Dr Cochrane. Appeal refused.

STUART MARK HUNT (Complainer) v PROCURATOR FISCAL INVERNESS (Respondent) [2008] HCJAC 57Appeal No:XJ1776/05

Thu, 16 Oct 2008 10:51:00 GMT

The complainer was convicted of assualt. He was held to have punched a neighbour during an argument. The complainer lodged an application for a stated case in terms of s178 (1) of the Criminal Procedure (Scotland) Act 1995. A draft case was duly prepared by the justice. Adjustments were proposed by the Crown and a hearing was fixed. The complainer's stated case was refused. The Scottish Criminal Case Review Commission appealed on behalf of the complainer on the grounds that 1) the justice in his draft claim had not commented on issues of credibility and reliability of witnesses, nor had he commented on his decision on the applicant's special defence and 2) the justice had not been entitled to take the view he did about the physical viewpoint of the complainer's wife at the time of the accident. Disputed, whether the justice was entitled to discredit the evidence of a witness on his own view of a photograph. Bill refused.

NOTE OF APPEAL AGAINST CONVICTION and SENTENCE by JOHN JOSEPH McCARTHY (Appellant) v HER MAJESTY'S ADVOCATE (Respondent)

Thu, 09 Oct 2008 12:38:00 GMT

Appeal Court, High Court of Justiciary-Appeal of conviction for sexual intercourse with two girls under the age of sixteen and the supply of class A drugs to others. The Opinion of Lord Carloway narrates a very large volume of Minutes recording the procedure. The appellant had instructed 4 sets of agents and counsel/solicitor advocates. Over the course of proceedings he had repeatedly raised evidential points which required further consultations with his agents and large delays. Further, following his conviction, the period over which he was required to lodge his grounds of appeal was repeatedly extended to allow consultations and consideration of his appeal. Only one of several grounds of appeal was allowed. Appeal on ‘Anderson’ (Anderson v HM Advocate 1996 JC 29, SCCR 114) grounds. Appeal on bases that around 30 questions had been put by the appellant to his agent which had been unanswered. Among these was the unanswered question about why the charges would not be separated. Discussed why charges could not be separated. Appeal refused.

APPEAL BY STATED CASE by JACQUELINE MICHELLE GILLIES (Appellant) against PROCURATOR FISCAL, ELGIN (Respondent) [2008] HCJAC 55 Appeal No: XJ358/08

Thu, 09 Oct 2008 12:31:00 GMT

Appeal Court, High Court of Justiciary-S14 Criminal Procedure (Scotland) Act 1995-Appellant convicted of obstructing police officers in the execution of their duties. Appeal on the grounds that the appellant had refused entry, by police officers, to her home when they had no warrant or consent to enter. Argued by the Crown that the Police officers had identified and ‘detained’ a suspect in the appellant’s hallway but were unable to bring him into their custody without entering the property; that they were ‘in hot pursuit’ of a suspect and that the appellant obstructed them, unlawfully, in their pursuit. Disputed by the appellant that s14 of the Act conferred right to use reasonable force in exercising the power to detain but had not conferred any power of entry. Further, it was discussed whether extending the common law to confer a right of entry in these circumstances would have the effect of criminalising the conduct of a person resisting what would otherwise have been a trespass. Appeal allowed.

Kevin Gibson v. Her Majesty's Advocate [2008]HCJAC 52

Tue, 30 Sep 2008 13:22:00 GMT

Criminal Appeal:- On 16 April 2004 at the High Court in Edinburgh the appellant was convicted of a charge of murder, a charge of attempting to defeat the ends of justice by disposing of the body and a charge of fraud by claiming the deceased's income support. The appellant was sentenced to life imprisonment, with a punishment part of 15 years in respect of the murder, imprisonment for 5 years in respect of the attempt to defeat the ends of justice and in respect of the fraud to imprisonment for a period of 1 year all to run concurrently from the date of their imposition. On 1 September 2004, the appellant lodged a note of appeal against conviction containing three grounds of appeal, only two of which were argued:- (1) " ...on the eleventh day of evidence...senior and junior counsel withdrew from acting as did the agents. New legal representatives were put in place and on...a motion on behalf of the appellant to desert the indictment pro loco et tempore was refused. The trial was adjourned until 7 April 2004 to allow the appellant's legal representatives to listen to the court tapes of the evidence... that the court erred in refusing the motion to desert pro loco et tempore"; and (2) "...that the learned trial judge misdirected the jury...that the evidence of the appellant cashing the deceased's benefit book was relevant to the question of who was responsible for killing the deceased and could be taken into account was a material misdirection..." It was submitted on behalf of the appellant that the court's refusal to desert the trial had created actual prejudice to a fair trial for the appellant. It was further submitted that the fraud alleged had no bearing upon the proving of the murder charge. Here the court considered whether the court of first instance had exercised its discretion correctly in continuing with the trial and not deserting it.

David Hunter v. Her Majesty's Advocate [2008] HCJAC 48

Wed, 17 Sep 2008 05:20:00 GMT

Criminal Appeal Against Conviction:- On 11 June 2003 at Glasgow High Court the appellant was convicted of one charge of attempted rape and one charge of indecent assault. The complainer on the first charge was a 15 year old girl called MB, the complainer on the second, a 14 year old girl called LT. One ground of appeal was insisted upon:- "It is submitted that there has been a miscarriage of justice in respect that the evidence of LD was not heard at the Trial, and could not reasonably have been available at the time of the Trial, but only came to light after the outcome of the Trial was publicised and the said LD approached a member of the Appellant's family. Her evidence, which is contained in an Affidavit attached hereto, is important and reliable and would have had a material bearing on the Jury's determination, had it been available at the time of the Trial." LD, a young friend or acquaintance of MB, was lodged. The court was persuaded to hear further evidence from LD, KM (a young male) and MB. LD and KM had not given evidence at the trial. The materiality and significance of additional evidence which was not heard at a trial may persuade the appeal court that had the original jury heard the new evidence the jury would have been bound to acquit. If that was case the conviction would be quashed. Even if the court could not say that the jury would have been bound to acquit, the court might nevertheless be satisfied that a miscarriage of justice had occurred. On behalf of the appellant it was submitted that the fresh evidence of KM and LD was relevant and significant and may be of material assistance in consideration of the critical issue at trial, namely consent. Here the court considered whether the fresh evidence would have had or was likely to have had a material bearing upon the verdict which the jury reached.

Amoco (UK) Exploration Company v. Procurator Fiscal Aberdeen [2008HCJAC49]

Wed, 17 Sep 2008 05:17:00 GMT

Appeal by Stated Case:- In 2005 the appellants were charged at the instance of the respondent in relation to a contravention of Section 3(1)(b) and (3) of the Prevention of Oil Pollution Act 1971. Following trial the sheriff found the appellants guilty as libelled, and imposed a fine of £25,000. On 9 December 2005 the appellants applied for a Stated Case which was issued on 21 March 2006. Two issues were raised and argued:- (1) whether the discharge of oil could properly be said to have taken place "as the result of any operation ..." as required by section 3(1)(b) of the 1971 Act; and (2) whether the defence provided by section 6(1) of the 1971 Act had been established. It was submitted on behalf of the appellants that there had to be proof of a causal connection between any discharge and a specified operation for the exploration of the sea-bed and subsoil or the exploitation of their natural resources and there was none. It was submitted on behalf of the Crown that the essential part of section 3(1)(b) had been established as being applicable. The court considered that here. It was further submitted for the appellants that the appellants had put in place all reasonable precautions to avoid the risk of a spillage of oil, and that an inexplicable action, such as that taken by an employee, was not reasonably foreseeable and the sheriff should have held that the appellants had, on a balance of probabilities, established that the incident was not due to any want of reasonable care. Here the court considered whether the sheriff misdirected himself in coming to the conclusion that the appellants had failed to establish that the discharge was not due to any want of reasonable care on their part.

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

Thu, 21 Aug 2008 11:24:00 GMT

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

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

Wed, 30 Jul 2008 10:48:00 GMT

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

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

Wed, 30 Jul 2008 10:47:00 GMT

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

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

Wed, 30 Jul 2008 10:45:00 GMT

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

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

Wed, 30 Jul 2008 07:27:00 GMT

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

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

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

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

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

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

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

Tue, 15 Jul 2008 17:40:00 GMT

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

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

Tue, 15 Jul 2008 17:39:00 GMT

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

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

Tue, 15 Jul 2008 17:38:00 GMT

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

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

Mon, 07 Jul 2008 08:53:00 GMT

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

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

Mon, 07 Jul 2008 08:51:00 GMT

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

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

Mon, 07 Jul 2008 08:44:00 GMT

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

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

Thu, 03 Jul 2008 14:51:00 GMT

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

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

Wed, 02 Jul 2008 14:01:00 GMT

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

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

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

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

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

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

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

The House of Lords unanimously dismissed the appeals.

CHARLES McKENNA v HMA [2008] HCJAC 33

Thu, 26 Jun 2008 09:45:00 GMT

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

Peter Mulligan v HMA [2008] HCJAC 32

Thu, 26 Jun 2008 09:35:00 GMT

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

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

Wed, 18 Jun 2008 22:00:00 GMT

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

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

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

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

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

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

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

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

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

Thu, 29 May 2008 14:25:00 GMT

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

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

Fri, 23 May 2008 07:18:00 GMT

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

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

Wed, 07 May 2008 10:13:00 GMT

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

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

Thu, 01 May 2008 10:20:00 GMT

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

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

Thu, 01 May 2008 10:19:00 GMT

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

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

Thu, 01 May 2008 09:21:00 GMT

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

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

Thu, 01 May 2008 09:21:00 GMT

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

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

Thu, 01 May 2008 09:17:00 GMT

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

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

Thu, 03 Apr 2008 12:48:00 GMT

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

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

Thu, 20 Mar 2008 17:08:00 GMT

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

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

Wed, 12 Mar 2008 11:20:00 GMT

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

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

Wed, 12 Mar 2008 11:18:00 GMT

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

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

Wed, 13 Feb 2008 10:23:00 GMT

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

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

Wed, 13 Feb 2008 10:22:00 GMT

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