Criminal Appeals

Garry Whillans v. Procurator Fiscal, Edinburgh [2010] HCJAC 91

Thu, 02 Sep 2010 12:16:19 GMT

Bill of Suspension:- On 27 October 2009, the complainer signed a written intimation of his intention to plead guilty to a contravention of section 2 of the Road Traffic Act 1988. On 20 November 2009 at a pleading diet the plea of guilty was recorded and the court deferred sentence until 4 December 2009 for the personal appearance of the complainer given he was liable to be disqualified from driving. On 4 December 2009, the complainer was represented by a solicitor and after a plea in mitigation, the Sheriff imposed a fine of £660, discounted from £1,000 to reflect the plea of guilty, and disqualified the complainer from holding and obtaining a driving licence for a period of one year and thereafter until he had passed the extended driving test. The complainer sought separate legal advice "as he was shocked at the outcome of the case" as he had not obtained legal advice prior to his appearance in court other than a brief consultation with a solicitor as he was waiting outside court at his deferred sentence. In the bill of suspension presented the complainer maintained that he was not guilty of the charge of dangerous driving and that he tendered a plea of guilty in error, without the benefit of full and proper legal advice. It was submitted on behalf of the complainer that he did not understand the charge to which he was pleading guilty and that he had only been properly advised about that matter when he sought legal advice after the sentence had been imposed. It was submitted on behalf of the Crown that the charge on the complaint was unequivocal in its terms as was the letter sent to him by the Sheriff Clerk Depute. Here the court considered the current law in relation to when a plea of guilty may be withdrawn and what amounts to exceptional circumstances, for example where it is tendered by mistake or without the authority of an accused.

Ray Daniel Sneddon v. Her Majesty’s Advocate [2010] HCJAC 90

Thu, 02 Sep 2010 12:15:21 GMT

Criminal Note of Appeal Against Conviction:- On 13 May 2009, the appellant was found guilty after a trial at Edinburgh Sheriff Court of the following charge on indictment:- "On 31 May 2008 at …Bonnyrigg…you…did assault Marc Wilson .....and did strike him to the neck with your hand whilst holding a glass, causing the glass to break to his severe injury and permanent disfigurement". A rider was added to the verdict by the jury to the effect that the assault had been carried out under provocation. The appellant was subsequently sentenced to probation for a period of two years with certain conditions. The appellant lodged a note of appeal against his conviction on a number of grounds including inter alia:- (1) the sheriff misdirected the jury when he stated that the appellant used a weapon and this had a bearing on the jury’s assessment of whether the appellant was acting in self defence, in particular, whether the appellant had acted in a manner disproportionate to the violence the complainer had used against him; (2) the sheriff misdirected the jury in relation to self defence and ought to have directed the jury that if they accepted that the blow by the appellant was deliberate it then necessary them to consider self-defence before considering whether or not to convict the appellant; and (3) sheriff erred in law in repelling an objection made on behalf of the appellant during the trial when the procurator fiscal depute asked a question which suggested that the appellant had used a glass in order to assault the complainer and in repelling the objection the sheriff enabled the procurator fiscal depute to suggest to the appellant that he had used the glass as a weapon which again was important in the assessment of the special defence. It was submitted on behalf of the appellant that the charge was not to the effect that the appellant had struck the complainer on the neck with a glass and the sheriff had used language which suggested that the crime involved was more serious than it was. It was submitted on behalf of the Crown that the charge was simply a charge of an assault committed with a glass and on the basis of the evidence there was no basis for the plea of self-defence and the sheriff ought to have withdrawn the special defence from consideration by the jury. Here the court considered whether the directions of the sheriff, particularly in relation to the complainer being "struck in the neck with a glass", in light of the special defence lodged amounted to a misdirection and, if so, whether a miscarriage of justice had occurred.

Gavin Hardy Clark v. Her Majesty’s Advocate [2010] HCJAC 88

Thu, 02 Sep 2010 12:14:15 GMT

Criminal Note of Appeal Against Conviction:- On 1 August 2008, following a trial at the High Court in Edinburgh, the appellant was found guilty of a charge of attempted murder, a charge of being in possession of heroin, two charges of breach of the peace and a contravention of section 41(1)(a) of the Police (Scotland) Act 1967. The appellant was sentenced to a period of 9 years imprisonment in cumulo. The appellant appealed against his conviction in relation to the attempted murder charge on the grounds that the Crown failed in their duty of disclosure to the defence, by failing to disclose a certified copy notebook extract in relation to Crown witness Constable Colin Peaston. This related to remarks attributed to the appellant, made by him to Peaston and his colleague, whilst the appellant was being treated at hospital. These comments were not in Peaston’s notebook when he was referred to his notebook during the course of his evidence. It was submitted on behalf of the appellant that the remarks attributed to the appellant in the hospital were an essential part of the Crown case and the failure by the Crown to disclose the notebook resulted in the agents and counsel for the appellant being deprived of the opportunity to properly prepare his defence and challenge the disputed remarks and the trial had been rendered unfair. It was further submitted on behalf of the appellant that the question that had to be asked was whether, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict, had the duty of disclosure been performed fully and timeously. It was submitted on behalf of the Crown that there had been disclosure, albeit during the course of the trial and those representing the appellant at the trial had gone on to challenge the credibility and reliability of the police witnesses to a considerable extent. Further, the defence could have sought the adjournment of the trial or a desertion of the trial, however, counsel for the appellant proceeded at that time. Here the court considered whether if the notebook had been disclosed at an earlier stage prior to the trial it would have made any difference to the conduct of the trial or the likely verdict of the jury.

Petition to the Nobile Officium by John William Corkish v. Her Majesty’s Advocate [2010] HCJAC 89

Thu, 02 Sep 2010 12:13:11 GMT

The petitioner was listed as a Crown witness in an indictment containing a number of serious charges involving firearms. Those indicted were James Scott MacDonald and Raymond Anderson, Senior. The indictment was brought to trial at the High Court in Glasgow in March 2008 and the petitioner was called to give evidence by the Crown on 6, 7 and 11 March 2008. Due to certain problems with the jury in that trial, it was deserted pro loco et tempore on 11 March 2008, during the course of the cross-examination of the petitioner. During that cross-examination the petitioner failed to identify Raymond Anderson as the person he was referring to in evidence. He was warned about his behaviour in the witness box on a number of occasions by the trial judge, particularly in relation to prevaricating and telling lies. At the second trial later in March 2008 the petitioner again gave evidence as a Crown witness and during his examination-in-chief, he admitted that he had lied on oath at the previous trial. During the course of lengthy cross-examination the petitioner admitted that he had lied about various matters during the course of his evidence at the earlier trial. At the conclusion of his evidence, the trial judge ordained that the petitioner should seek legal advice on the question of whether he had committed a contempt of court and, subsequently, on 1 June 2009, the petitioner accepted that he had been in contempt of court in respect of his perjury and prevarication at the first trial and the trial judge sentenced the petitioner to imprisonment for one year. Here the petitioner brought the petition for the purpose of appealing against that sentence, it being the only mechanism where by such an appeal could be brought. Here on behalf of the petitioner, it was submitted that, albeit he accepted he had told lies and prevaricated at the earlier trial, at the second trial he had co-operated fully and identified the accused. Further, an affidavit from an Assistant Chief Constable with Strathclyde Police was tendered which expressed the opinion that, were the sentence of imprisonment imposed upon the petitioner to stand, that may have an adverse effect with regard to reluctant witnesses who may be dissuaded from giving evidence in serious cases in the future or providing information to the authorities. Here the court considered whether the sentence of one years’ imprisonment was excessive.

James Paterson v. Her Majesty’s Advocate [2010] HCJAC 85

Thu, 26 Aug 2010 13:43:14 GMT

Bill of Suspension:- On 7 August 2009, a justice of the peace in Glasgow granted a search warrant in terms of section 23(3) of the Misuse of Drugs Act 1971 and was contained in a pro forma single sheet document with typed text and blank boxes requiring completion. Boxes 4 and 5, which required the full name of the occupant and the full address or description of the premises to be searched to be completed had the complainer’s name “James Paterson” duly completed, however, in relation to the address of the subjects to be searched the address was stated as “ Flat 0/1 11 Anwoth Street” there being no reference to “Glasgow”. The complainer presented a bill seeking suspension of the search warrant on the basis that "properly understood, the premises to be searched were not identified adequately so as to allow any occupier of the premises which were searched to satisfy [himself] that the justice had granted authority to conduct a search of those premises". It was submitted on behalf of the complainer that the three fundamental elements for a valid search warrant were the date on which the warrant was granted, the justice's signature, and an adequate description of the premises to be searched, and in the present case there was no reference to a town or city. It was submitted that the lack of specification of town or city was fatal. It was submitted on behalf of the Crown that there was sufficient specification of the address in the application together with the name of the occupier and all of the entries were contained in a document which should be viewed as a whole, and included several references to Glasgow and Strathclyde. Here the court considered whether the test set down by Lord Justice General Emslie in Bell v H.M.A. 1988 J.C. 69 at page 73 had been met, namely:- "The test must be whether on examination of the warrant contained on the single sheet of paper the occupier of premises to whom it is shown will be able to satisfy himself that the constable has authority to search those premises. In other words, does the warrant clearly identify the premises which the constable has power to search?”

Hussnain Ashraf, Faris Ahmed, Raza Malik and Mohammed Mohammed v. Her Majesty’s Advocate [2010] HCJAC 87

Thu, 26 Aug 2010 13:40:13 GMT

Criminal Note of Appeal Against Sentence:- On 2 February 2010 at Glasgow Sheriff Court at a continued first diet the appellants each pled guilty to a charge of assault and robbery, having each been indicted on two charges of assault and robbery. The first and second appellants pled guilty as libelled to charge 1 and maintained their plea of not guilty to the second charge and the third and fourth appellants pled guilty as libelled to charge 2 but maintained their pleas of not guilty to charge 1. On 3 March 2010, the sheriff sentenced the first and second appellants to detention in a young offenders' institute for 509 days and sentenced the third appellant to detention in a young offenders' institute for 24 months. On 30 March 2010, the fourth appellant was sentenced to detention in a young offenders' institute for 24 months. Each of these sentences had been discounted by 20% to reflect the pleas of guilty at the continued first diet. The appellants each appealed on the ground that the sentence imposed was unduly excessive. It was submitted on behalf of each of the appellants that given the age of the appellants, the fact they had not been in trouble previously and the appellants’ personal circumstances the sentencing sheriff had erred in concluding that there was no other suitable method of disposal apart from a custodial sentence. It was further submitted that in the event that a custodial sentence was the correct disposal then the starting off point was too high and the discount applied was inadequate. Here the court considered whether it was appropriate, in terms of section 207(3) of the Criminal Procedure (Scotland) Act 1995, to impose a period of detention on each of the appellants having regard to their particular circumstances against the gravity of the offence to which they pled.

David Alexander Hughes v. Her Majesty’s Advocate [2010] HCJAC 84

Thu, 19 Aug 2010 15:11:57 GMT

Criminal Note of Appeal Against Conviction:- On 20 February 2009 at Glasgow High Court the appellant was convicted after trial of a charge of murder. The appellant subsequently appealed against his conviction. The issue for the jury at trial had been whether the appellant, who accepted being in the presence of the deceased at the time of the attack on the deceased Andrew Best, was responsible for the murderous attack or whether it was the former co-accused John Maguire, who had previously pled guilty to the culpable homicide of the deceased, who was responsible. A number of grounds of appeal were lodged all of which related to the evidence of the appellant’s aunt and criticisms of the trial judge’s charge to the jury in respect of the directions given to regarding the aunt adopting a previous statement as her evidence including inter alia:- “…When her evidence is read clearly and properly it would not be open for any reasonable person to reach any other conclusion other than that she had clearly and specifically denied that any such statement was true…”. The trial judge, in his report said in relation to the aunt "..She was a thoroughly unsatisfactory witness. At times she adopted as true what she said to the police and at other times said it was false. It seemed to me that it was a matter for the jury what to make of that and that is the nub of the appeal." It was conceded on behalf of the appellant that even without the incriminating parts of the aunt’s statement being available for the consideration of the jury there was still a sufficiency of evidence to support a conviction of the appellant of the murder, however, the alleged misdirection was of such materiality that a miscarriage of justice had occurred. It was submitted on behalf of the Crown that the aunt had adopted what she had said to the police as her evidence at the trial and albeit she subsequently went on to say that what was recorded on the tape was not true it was for the jury to make what they could of her evidence taken as a whole and there had been no misdirection by the trial judge. It was further submitted on behalf of the Crown that even if there had been a misdirection by the trial judge there had been no miscarriage of justice given the other compelling evidence against the appellant in the case. Here the court considered whether the aunt had adopted certain incriminating statements she had said during the interview in to her evidence at the trial and whether the directions the jury received from the trial judge were adequate.

John Hunter v. Procurator Fiscal, Selkirk [2010] HCJAC 82

Thu, 12 Aug 2010 14:59:07 GMT

Criminal Appeal by Stated Case:- On 14 February 2008, following a trial at Selkirk District Court, the appellant was found guilty of a contravention of the Road Traffic Regulation Act 1984 Sections 88 and 89, namely, driving at a speed of 78 miles per hour on a 60 miles per hour limit road. On 27 March 2008 the appellant was fined £150 and had his driving licence endorsed with three penalty points. The appellant appealed against his conviction by way of stated case. Here the court considered the following three questions posed by the Justice:- “(1) Did I err in law in repelling the submission made on behalf of the appellant in terms of section 160 of the Criminal Procedure (Scotland) Act 1995?; (2) Was there sufficient evidence in law to entitle me to make findings in fact 6 and 9, as detailed on page 2 of the stated case?;… (4) Did I err in law in using my mathematical ability as an engineer in my decision making process when this use was not capable of being the subject of cross examination by the appellant?” There were no submissions made on behalf of the appellant in relation to questions 3 and 5 nor was the appeal against sentence considered at this time. On behalf of the appellant it was submitted that the Justice should not have relied on the accuracy of the safety camera due to various criticisms of the device and the way it was operated at the relevant time and these should have been assessed cumulatively, rather than individually, as the Justice had done at trial. In addition, it was submitted that the Justice had erred in using his own experience as an engineer in relation to the operation of the machine. It was further submitted that the Justice had not given proper consideration to the appellant's evidence, in particular, in relation to assessing his credibility and reliability. It was submitted on behalf of the Crown that the issue was whether there was any basis in evidence for the Justice having a reasonable doubt in relation to whether the safety camera was working properly, and, on the evidence led, there was not. It was further submitted that the appellant's evidence was not accepted due to the Justice accepting the Crown evidence as entirely credible and reliable. Here the court considered whether the Justice was entitled to rely on the evidence he had heard from the camera operators that the safety camera was accurate and operated properly.

Her Majesty’s Advocate v. Patrick Docherty [2010] HCJAC 81

Thu, 12 Aug 2010 14:53:57 GMT

Application for Leave to Appeal to the Supreme Court:- On 1 March 2005, the appellant was convicted of murder and was sentenced to life imprisonment. He appealed against conviction. At a procedural hearing on 15 October 2009 fresh counsel instructed advised that he wished to abandon certain grounds of appeal and to add new grounds. The additional grounds were subsequently referred to as a composite "ground 1A” and as at 15 October 2009, the grounds of appeal expected to be argued were grounds 4, 5 and 1A. At the start of the appeal hearing on 3 November 2009, senior counsel sought to lodge late three further additional grounds of appeal headed "note of appeal against conviction", which was referred to as “ground 1B” and included:- (a) the alleged non-disclosure of the police statements of a Crown witness the nephew and next-door-neighbour of the deceased whose statement assisted in focusing the time of death; (b) that the Crown witness did not attend an identification parade, but at the trial gave evidence that the appellant resembled one of two men seen acting suspiciously outside the deceased's house before the murder; and (c) that the appellant gave several interviews to police officers without having had access to a solicitor. It was conceded on behalf of the appellant that there was no good reason for the lateness of the proposed additional grounds. The Crown opposed the new proposed grounds as they were late and no objection had been taken during the trial to any of the evidence referred to in ground 1B, nor had there been any non disclosure as had been suggested. The court had refused to receive the new ground and the appeal had been heard, and, on 26 March 2010, the appeal against conviction was refused. On 30 June 2010 the appellant sought leave to appeal to the Supreme Court in relation to grounds 1A and 1B. Here the court considered whether the issues raised arguable points of law of general importance which merited consideration by the Supreme Court.

Her Majesty’s Advocate v. Doonin Plant Limited [2010] HCJAC 80

Thu, 05 Aug 2010 18:22:33 GMT

Crown Appeal Against Sentence:- On 21 October 2009 at Glasgow Sheriff Court the respondents pled guilty, at a continued first diet, to a contravention of section 33(1)(c) of the Environmental Protection Act 1990 in that they did:- “…dispose of controlled waste, namely paper, wood, plastic, metal, vegetation, polystyrene, insulation material, chipboard, cardboard, roofing felt, carpeting, a ladder, a bicycle, a mattress and a bath in a manner likely to cause pollution of the environment or harm to human health, namely that they did dispose of said waste on land that was not lined with an impermeable liner or supplied with an appropriate leachate collection system or landfill gas extraction system, resulting in (a) the likely release of leachate containing high levels of Biochemical Oxygen Demand and dissolved metals into ground water and water course; and (b) the likely release of landfill gas being released into the atmosphere, causing offensive odour which would impact on the quality of air…”. The respondents were fined £8,000, the fine being discounted from £10,000 on account of the plea being tendered at the continued first diet. The Crown appealed against that sentence on the ground that it was unduly lenient. It was submitted on behalf of the Crown that the fine imposed was unduly lenient having regard to various authorities involving the imposition of significantly higher fines on companies which were involved in breaches of health and safety legislation. It was further submitted that the discount applied was too generous having regard to the limited utilitarian value of the plea, and, by the time the plea was tendered, all the necessary preparation had been made by the prosecution for leading the technical evidence before the court. The Crown also cited the strong financial position the respondents were in. It was submitted on behalf of the respondents that the fine imposed reflected a proper exercise of the sheriff’s discretion and was not unduly lenient. Here the court considered whether the sentence imposed was unduly lenient, in particular, the court examined whether the respondents were able to pay a greater fine without suffering severe financial hardship having regard to their current financial position.

David Angus v. Procurator Fiscal, Perth [2010] HCJAC 76

Thu, 29 Jul 2010 19:15:30 GMT

Appeal by Stated Case:- The appellant was tried on summary complaint at Perth Sheriff Court on a charge of breach of the peace. At the end of the Crown case the solicitor appearing on behalf of the appellant made a no case to answer submission in terms of section 160 of the Criminal Procedure (Scotland) Act 1995. The submission was repelled and following the appellant giving evidence on his own behalf he was subsequently convicted by the sheriff of the following charge:- "On 11 June 2009 at Oakbank Crescent you did conduct yourself in a disorderly manner pass J born 10/09/1994, your newspaper delivery girl, a piece of paper with a message and your mobile phone number thereon, ask her to keep in touch with you, place her in a state of fear and alarm and commit a breach of the peace." In this appeal by stated case under Sections 175 and 176 of the Criminal Procedure (Scotland) Act 1995 the appellant appealed on the ground that the sheriff erred in repelling the no case to answer submission. It was submitted on behalf of the appellant that the conduct complained of amounted to a private conversation between two individuals and thus lacked the public element necessary to constitute breach of the peace. It was further submitted that the appellant's conduct did not constitute a breach of the peace in that it did not meet the "conjunctive” test and the conduct was neither severe enough to cause alarm to ordinary people nor threaten serious disturbance to the community. It was submitted on behalf of the Crown that although the precise nature of the contact between the appellant and J was private, the interaction would have been such as to be liable to cause alarm as children were told not to speak to strange men and regard also had to be had to the prospect of the conduct being discovered. Here the court considered whether the evidence led by the Crown was sufficient to entitle the sheriff to find that the conduct constituted a breach of the peace, having regard to whether what the appellant did and said was such as to cause alarm to ordinary people and threaten serious disturbance to the community.

Ian Angus Munro v. Her Majesty’s Advocate [2010] HCJAC 78

Thu, 29 Jul 2010 19:11:37 GMT

Note of Appeal Against Conviction:- On 6 March 2009 the appellant was convicted after trial at Aberdeen High Court of the following charge:- "on an occasion between 1 and 31 May 2006… you did assault BL then aged 4 years... and did put your private member in his mouth, pull down his pyjama bottoms...". On 17 April 2009 the appellant was sentenced to 30 months detention. The appellant appealed against his conviction on the following grounds:- (1) that the trial judge had erred in repelling the no case to answer submission on the basis that there was no corroboration of the complainer's evidence that the appellant had put his private member into his mouth; (2) that the trial judge failed to give the jury full and proper directions on how to deal with the adoption of prior statements, in particular, in relation to two contradictory parts of the complainer's mother's evidence and the jury should have been directed that the only use which they could make of the prior inconsistent statement was in relation to assessing the credibility and reliability of the witness and not as proof of the facts contained therein; and (3) that no reasonable jury, properly directed, could have returned a guilty verdict in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. It was submitted on behalf of the Crown that there was sufficient evidence, there being corroboration of an assault from the brother's evidence of hearing cries, seeing the appellant in close proximity to the complainer in his bedroom and being aware that his brother was being hurt together with the mother's evidence of tears in the pyjamas. It was further submitted that the directions in relation to prior statements had been sufficient and that the verdict reached was one which was open to the jury and should not be readily interfered with. Here the court considered whether there was corroboration of an assault on the complainer on the evidence led, in particular, in light of the evidence of the complainer’s brother and what he heard and saw at the material time. The court also considered the trial judge’s directions in relation to prior inconsistent statements and the reasonableness of the verdict reached by the jury on the evidence led in determining whether there had been a miscarriage of justice.

Rosemary Jane Mitchell v. Procurator Fiscal, Peebles [2010] HCJAC 79

Thu, 29 Jul 2010 19:08:23 GMT

Appeal by Stated Case:- On 28 October 2009 following a summary trial at Peebles Sheriff Court the appellant was convicted of a contravention of section 5(1)(a) of The Road Traffic Act 1988, namely drink driving, with the appellant having a reading of 70 micrograms of alcohol per 100 millilitres of breath. The appellant was fined £700 and disqualified from driving for 18 months. In this appeal by stated case under sections 175 and 176 of the Criminal Procedure (Scotland) Act 1995 the appellant appealed on the grounds that:- (1) the sheriff erred in repelling a submission of no case to answer; and (2) no reasonable sheriff could, on the established facts, have found the appellant guilty to the requisite standard of proof. It was submitted on behalf of the appellant that there was insufficient evidence proving that she had been driving at around 9 pm which was one of the sheriff’s findings-in-fact, and on the basis that the Crown case was founded upon proof that the appellant had been driving at that time then the conviction could not stand. It was submitted on behalf of the Crown that there was sufficient evidence, in particular, the piece of evidence that the police officers received information at 9.04 pm was significant and taken with the other circumstantial evidence was sufficient. Here the court considered the Crown case at its highest in considering whether the sheriff erred in repelling the no case to answer submission, and whether on the evidence led the findings-in-fact were ones which the sheriff was entitled to make.

W.M. v. Her Majesty’s Advocate [2010] HCJAC 75

Thu, 22 Jul 2010 18:11:16 GMT

Criminal Note of Appeal Against Conviction:- On 24 March 2009 at Glasgow High Court the appellant was convicted of various offences involving the serious sexual abuse of his two sons. He was also convicted of two charges of breach of the peace which involved the issuing of threats to his sons against reporting the allegations of abuse. It was in relation to the breach of the peace charges that the appellant appealed against conviction here. It was submitted on behalf of the appellant in relation to the first ground of appeal that as a matter of sufficiency the evidence presented did not satisfy the second part of the conjunctive test for breach of the peace, there having been no public element to the appellant's behaviour, such as was likely to threaten serious disturbance in the community as the conduct took place exclusively in private and the averments of "disorderly conduct" were devoid of any real content. The second ground of appeal was that the trial judge had not given directions in accordance with the conjunctive test and he had not applied his mind to the correct test and had given directions on the need for a "realistic risk" of private behaviour being discovered, these had been incomplete and could mislead jurors. It was submitted on behalf of the Crown that there had been sufficient evidence to satisfy the conjunctive test and while the conduct had taken place in private, there had been a realistic prospect of its being discovered, the emphasis had to be placed on the potential for, as opposed to the actual discovery of the conduct. It was further submitted that if there was insufficient evidence to satisfy the conjunctive test for breach of the peace, the evidence presented in the present case could have resulted in a conviction for another crime, namely, the issuing of threats. On behalf of the Crown it was submitted that section 118(1)(b) of the Criminal Procedure (Scotland) Act 1995 and paragraph 9(2) of Schedule 3 of the 1995 Act, permitted the verdicts in relation to the charges of breach of the peace to be set aside and amended verdicts of guilty of threats to be substituted, even where the Crown had not sought a conviction for such offences at the trial and there was little difference in the actus reus or mens rea of threats and breach of the peace. Here the court considered whether the conduct of the appellant was such that there was a realistic risk of the conduct being discovered and therefore evidence before the jury which could satisfy the conjunctive test. The court also considered the issue of alternative verdicts.

Alexander David Williamson Atkinson v. Her Majesty’s Advocate [2010] HCJAC 77

Thu, 22 Jul 2010 18:06:57 GMT

Criminal Note of Appeal against Conviction:- On 17 July 2009 following a trial on indictment at Perth Sheriff Court the appellant was found guilty of a charge of contravening section 4(3)(b) of the Misuse of Drugs Act 1971. The appellant was sentenced to 5 years imprisonment. He lodged a Note of Appeal containing the following ground:- “During the course of the trial, objection was taken to the evidence which indicated actual supply of drugs by the Appellant to any other person, on the basis that the libel of the charge in the indictment was, in terms of Section 4(3)(b), not Section 4(3)(a). Reference was made to HM Advocate v Grant 2008 SLT 339 and in particular their comments at paras 20 and 21. The objection was noted, but by agreement, the evidence was heard under reservation on the basis that the matter would be dealt with at the conclusion of all the evidence. The basis of the objection was (a) that there was no fair notice, as referred to in HM Advocate v Grant, in this case, that the Crown intended to rely on specific incidences of supply of heroin by the Appellant to named persons and, as such, that evidence was inadmissible; and (b) that if the Crown evidence amounted only to supply to one person, possibly the witness Santos, then there would be insufficient in law to allow the matter to proceed to the jury in respect of charge 1. The evidence was concluded and the objection was considered together with a submission of no case to answer which was also made...”. Here it was submitted on behalf of the appellant that:- (1) the evidence relating to the actual supply of drugs to an individual should not have been admitted due to the terms of charge 1, namely, an allegation of a contravention of section 4(3)(b) and not 4(3)(a); and (2) that in the absence of the evidence of an actual supply to the same individual there was insufficient evidence to convict the appellant of the charge of being concerned in the supply. It was further submitted that the Crown should have included notice of the Crown's intention to lead evidence of actual supply by averring "and in particular you supplied…” in the narrative of the charge. On behalf of the Crown it was submitted that fair notice had been given and further relied on the terms of Nelson v. H.M.A. 1994 SCCR 192 and the evidence the Crown sought to lead was not a crime of a different character or nature to that which the appellant faced. Here the court considered whether the Crown failed to give fair notice to the appellant of the case against him and whether it was necessary to include in the terms of the charge an averment of actual supply of the drug to the named individual. The court also considered the broader issue of the timeous lodging of preliminary issues, in particular, in relation to objections to the admissibility of evidence.

Barry Burgess, Keri-Anne Connolly and Carri-Anne Steven v. Her Majesty’s Advocate [2010] HCJAC 68

Thu, 22 Jul 2010 18:05:38 GMT

Criminal Note of Appeal Against Conviction:- In February 2009 the appellants stood trial on indictment at Perth Sheriff Court following a disturbance at a nightclub in Perth on 21 October 2007 which led to incidents between Gary Singh and the first appellant, and between Singh's partner Eilidh Duncan and the second and third appellants. On 17 February 2009 the first appellant was convicted of assaulting Singh to his severe injury and permanent disfigurement by punching and kicking him and striking him repeatedly with a bottle and a broken bottle and the second and third appellants were found guilty of assaulting Duncan by punching and kicking her, to her injury. The appellants appealed against their convictions on the basis of various aspects of the trial sheriff’s charge to the jury. On behalf of the first appellant it was submitted that the trial sheriff in his charge to the jury went too far in his comments relating to the lack of cross-examination of Singh, that there was no obligation upon the defence to lay a foundation for future defence evidence by cross-examining witnesses and questions of credibility and reliability were for the jury alone, and the sheriff was not entitled to invite the jury to take an adverse view of the accused. On behalf of the second appellant it was submitted that the sheriff had failed to direct the jury appropriately on the proper legal test applicable where someone intervenes in defence of another and the failure was material, and resulted in a miscarriage of justice. On behalf of the third appellant it was submitted that her position at trial had been that she had acted in self-defence when attacked by Duncan and was thus was not guilty of "assaulting" the complainer and the characterisation by the sheriff in his charge of her position being one of accepting that she had “assaulted” the complainer was inappropriate and the misdirection coloured her position and was material and resulted in a miscarriage of justice. On behalf of the Crown it was submitted that in relation to the first appellant the sheriff was entitled to give the jury some guidance and refer to an inference which the jury might choose to draw from the lack of cross-examination, however, the sheriff left all questions of credibility and reliability for the jury to decide. In relation to the second appellant it was submitted on behalf of the Crown that there was no evidential basis upon which to found any special defence of self-defence of a third party. In relation to the third appellant it was conceded by the Crown that the use of the word “assault” by the trial sheriff in his charge had been unfortunate but that no miscarriage of justice had resulted. Here the court considered the various grounds of appeal.

R (on the application of Noone) (FC) (Appellant) v The Governor of HMP Drake Hall and another (Respondents), [2010] UKSC 30

Thu, 08 Jul 2010 19:08:37 GMT

This appeal concerns the inter-relationship between the sentencing provisions of the Criminal Justice Act 1991 (‘the 1991 Act’) and the Criminal Justice Act 2003 (‘the 2003 Act’).

The Supreme Court unanimously allowed the appeal. Lord Judge deplored the fact that ‘so much intellectual effort, as well as public time and resources, have had to be expended in order to discover a route through the legislative morass to what should be, both for the prisoner herself, and for those responsible for her custody, the prison authorities, the simplest and most certain of questions – the prisoner’s release date’ [para 87].

Paulo Parracho v. Her Majesty’s Advocate [2010] HCJAC 59

Thu, 24 Jun 2010 16:06:54 GMT

Criminal Note of Appeal Against Conviction:- On 23 January 2009, the appellant was convicted unanimously after trial of the following charge:- "On 23 April 2008 at Ground Flat Left, 24 Waverley Road, Foxbar, Paisley you did assault Tracey Scott, formerly residing there and did repeatedly strike her on the head with a blunt object or similar instrument to the prosecutor unknown, to her severe injury, did rob her of £483.90 or thereby of money and you did murder her." Subsequently the appellant appealed against his conviction on three grounds:- (1) insufficiency of evidence; (2) the verdict was one which no reasonable jury properly directed could have returned in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995; and (3) the court allowing the desertion pro loco et tempore of the first trial diet following upon a defence submission of "no case to answer", and thereafter appointing a new trial diet in terms of section 81(2) of the 1995 Act. Here the only ground argued related to the contention that there was insufficient evidence to entitle the jury to convict the appellant. The Crown case at the trial was wholly circumstantial and they relied upon 12 distinct pieces of evidence. It was submitted on behalf of the appellant that the evidence the Crown relied upon was insufficient to identify the appellant as the perpetrator of the crime and thus the trial judge should have sustained the defence submission of "no case to answer" at the close of the Crown case. Here the court considered whether the trial judge erred in repelling the defence submission of "no case to answer" and examined the evidence as a whole, and considered that each piece of circumstantial evidence did not need to be incriminating in itself and could be open to more than one interpretation by the jury.

Thomas Robertson Willies v. Her Majesty’s Advocate [2010] HCJAC 51

Thu, 17 Jun 2010 19:58:45 GMT

Criminal Note of Appeal Against Conviction:- The appellant was convicted after trial at the High Court at Glasgow of being concerned in the supply of cannabis resin, cocaine and ecstasy contrary to section 4(3)(b)of the Misuse of Drugs Act 1971. On 13 July 2001, the appellant was sentenced to seven years' imprisonment in respect of the cannabis resin charge, nine years' imprisonment in respect of the cocaine charge and five years' imprisonment in respect of the ecstasy charge, all sentences to run concurrently. The appellant appealed against his conviction and sentence. The ground of appeal argued here related to the failure by the Crown to disclose certain material to the defence in advance of the trial. Two statements were of particular note in relation to the evidence of two police officers who stated at the trial that they had found a key in the possession of the appellant, a key which unlocked a padlock on a container within which was stored a significant quantity of cannabis resin. In one of these statements the officer describes the search of the appellant and finding the key and a notebook. In the other he describes finding only the notebook. It was the appellant’s position at trial that the key had been planted on him. Here it was submitted on behalf of the appellant that the appellant had been denied a fair trial. On behalf of the Crown it was submitted that the Court would not be able to determine the significance of the two statements of the police officer who compiled the two statements without being able to reach a conclusion as to which had been compiled first in time. If evidence was available that the detailed statement had been the first to be prepared, the effect of the second was negligible and the issue was what practical significance the material not disclosed might have had in the trial. Here the court heard the oral evidence from the police witness regarding the order in which the statements were prepared, namely, the longer one first, and the shorter, second. The court considered the present law in relation to disclosure as considered in McInnes v HMA 2010 S.C.C.R. 286 and considered whether there was a real possibility that, if the two statements of the police officer had been disclosed, in advance of the trial, the jury might have reasonably come to a different verdict as regards the cannabis resin charge.

Donald Birrell v. Her Majesty’s Advocate [2010] HCJAC 58

Thu, 17 Jun 2010 19:57:15 GMT

Petition to the Nobile Officium:- On 4 August 2008 the petitioner pled guilty of charges of fraud and money laundering at the High Court at Aberdeen. On moving for sentence the advocate depute applied for a confiscation order and invited the court to make a financial reporting order in terms of section 77 of the Serious Organised Crime and Police Act 2005. On 5 August 2008 the petitioner was sentenced to a period of imprisonment of three years in respect of the fraud charge and, in respect of the money laundering charge, to a consecutive sentence of seven years. Consideration of the application for a financial reporting order was continued until 16 September 2008. An application for leave to appeal against the sentence of imprisonment was lodged. On 17 September 2008 leave to appeal was granted. On 16 September 2008 counsel for the petitioner addressed the trial judge on the Crown's application for a financial reporting order and following further consideration on 31 October 2008 the court made an order for a period of seven years six months. On 27 March 2009 the appeal against sentence was upheld to the extent of substituting a sentence of eighteen months imprisonment in respect of the fraud charge and, for the money laundering charge, by substituting a sentence of four years imprisonment, still to be served consecutively. On 29 October 2009 a confiscation order in the sum of £61,442 was agreed. Here it was submitted that the imposition of a financial reporting order was incompetent in that the court purported to adjourn proceedings on 5 August 2008 in accordance with a non-existent provision, namely rule 49.32(a) of the Act of Adjournal (Criminal Procedure Rules) 1996. It was also submitted that the periods of adjournment granted by the court exceeded the time limit set out in section 201 of the Criminal Procedure (Scotland) Act 1995 in that they exceeded four weeks with no "cause shown" recorded in the court minutes. It was submitted that the financial reporting order had been imposed after an incompetent adjournment, and therefore was unlawful and should be quashed. On behalf of the Crown it was submitted that the court here could excuse the procedural irregularity under and in terms of section 300A of the 1995 Act. Further, it was submitted that section 299 of the 1995 Act grants power to correct any error in the minutes. Here the court considered whether the adjournment of the diet outwith the period of 4 weeks with no reference to cause shown in the court minutes was incompetent in light of the terms of section 307(1) of the 1995 Act which provides that a "sentence" is either a period of imprisonment or of detention passed in respect of a crime or offence.

Alexander Allan Bowes v. Procurator Fiscal, Aberdeen [2010] HCJAC 55

Thu, 17 Jun 2010 19:56:10 GMT

Bill of Suspension:- On 27 April 2006, the suspender pled guilty at Aberdeen Sheriff Court to the following charge on summary complaint:- "On 20 January 2006 at various roads between Banchory and Old Kemnay Road, Port Elphinstone, Inverurie, Aberdeenshire, you Alexander Allan Bowes did conduct yourself in a disorderly manner, utter comments of a sexual nature towards NC ... then aged 14 and did commit a breach of the peace." On 25 May 2006, when the case called for sentence, the suspender accepted he had caused upset, however, did not accept that there was a sexual motive to his behaviour and should not be subject to notification requirements. The sentencing sheriff considered that the offence did possess a significant sexual element and the court certified, under section 92(2) of the Sexual Offences Act 2003, that the suspender had been convicted of the offence in question and the offence was a sexual offence to which part 2 of the 2003 Act applied and the sheriff imposed a 2 year probation order. The suspender appealed by lodging a note of appeal:- "It is submitted that in the absence of any explicit sexual content, the comments made by the appellant, while clearly upsetting and distressing for the complainer, fall short of containing what can reasonably be described as a 'significant sexual element' and that accordingly the sentence of 2 years probation is excessive as is the appellant's inclusion on the Sex Offenders' Register." A bill of suspension was subsequently lodged. It was submitted on behalf of the suspender that, in the light of the decision of a court of five judges in Harris v HMA [2009] HCJA 80 the present case could not be considered to involve breach of the peace. It was submitted that the suspender had uttered comments of a sexual nature to the complainer while she was within a taxi during the course of a conversation while there were no third parties present during this time. It was submitted that the case was on all fours with Young v Heatly,1959 J.C. 66, which had been disapproved by the court in Harris and the suspender had pled guilty to something which was not the crime of breach of the peace. Here the Crown sought to distinguish the circumstances of the present case with Young v. Heatley. It was further submitted on behalf of the Crown that a plea of guilty could only be withdrawn, or a conviction resulting therefrom suspended or quashed in exceptional circumstances. Here the court considered whether what had been pled guilty to amounted to a breach of the peace having regard to the circumstances of the case, in particular, whether the conduct of the suspender was severe enough to cause alarm to ordinary people, and whether it threatened serious disturbance to the community. The court also considered whether the circumstances in which the suspender pled guilty were so exceptional that it would be proper for the conviction to be suspended.

Her Majesty’s Advocate v. David Graham [2010] HCJAC 50

Mon, 07 Jun 2010 18:50:39 GMT

Crown appeal against sentence:- On 14 August 2009 at the High Court of Justiciary at Glasgow the respondent pled guilty to a charge of lewd, indecent and libidinous conduct against boys, to two charges under section 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 Act and to two charges under section 52 of the Civic Government (Scotland) Act 1982. On 30 September 2009 the sentencing judge imposed an extended sentence in terms of section 210A of the Criminal Procedure (Scotland) Act 1995 of five years and nine months on the charge of lewd and libidinous practices which comprised of a custodial term of nine months, discounted from 12 months, and an extension period of five years. The judge imposed a cumulo sentence of nine months' imprisonment, discounted from 12 months, for the two section 1 offences to run consecutively to the sentence imposed on the charge of lewd and libidinous practices. On the two section 52 charges the judge imposed a cumulo sentence of six months' imprisonment, discounted from nine months to run consecutively to the sentences imposed on the other charges. The respondent was given the maximum discount of a third following a plea of guilty in the terms described being tendered at a continued preliminary hearing. Here the Crown appealed against the sentence imposed on the ground that it was unduly lenient. It was submitted on behalf of the Crown that the cumulo sentence of six months' imprisonment imposed on the section 52 charges failed to reflect the seriousness of the offences given the quantity and nature of the images and the sentence imposed was within summary limits and the sentencing judge failed to take into account that users such as the respondent maintained the market for such material. It was submitted that the sentence failed to have a sufficient deterrent effect and a substantial custodial sentence should have been imposed. Here the Crown invited the court to issue guidance in terms of section 118(7) of the 1995 Act on the sentences that are appropriate for offences under section 52 of the 1982 Act and to adopt the sentencing guidelines followed in England and Wales under the Sentencing Guidelines Council's Definitive Guideline on the Sexual Offences Act 2003. On behalf of the respondent it was submitted that the disposal in relation to all charges taken together should not be regarded as unduly lenient. The respondent downloaded over 79,000 still images of child sexual abuse and almost 1,200 moving images over a period of four and a half years. The respondent distributed the images over a period of four years and the images ranged across the Oliver scale, with thousands of them being at levels 4 and 5. Here the court considered whether the sentence was unduly lenient having regard to the circumstances of the case. The court also went on to consider the various factors which may affect sentences in such cases including the number and type of images, whether the images were moving and whether they were for commercial distribution. The court also considered the issue of discounts and the guidance as laid down in Spence v H.M.A. (2008 JC 174) and whether the discount of a third allowed for the respondent was appropriate. The court also considered the extent to which it could issue guidance under section 118(7) of the 1995 Act.

Luke Mitchell v. Her Majesty’s Advocate [2010] HCJAC54

Mon, 07 Jun 2010 18:46:14 GMT

Petition to the Nobile Officium:- On 21 January 2005 the petitioner was convicted of murder and subsequently appealed against his conviction and sentence. In February 2008 the appeal against conviction was heard. On 16 May 2008 the court refused the appeal against conviction. Here the petitioner applied to the nobile officium and sought leave to argue a ground of appeal that was not argued on his behalf when the court heard and refused the appeal against conviction. On 24 August 2009 Lord Carloway refused to grant a warrant for service of the petition on the basis that in terms of section 124(2) of the Criminal Procedure (Scotland) Act 1995 the determination was final and the petition was therefore incompetent. The ground related to fresh evidence which named two individuals, one who lived close to the locus at the time of the murder and the other which related to forensic evidence from the second person which was found close to the locus. It was submitted on behalf of the petitioner that the proposed new evidence was of such significance that the verdict returned should be regarded as a miscarriage of justice. In Beck, Petr and Ors (2010 SCCR 222) the court held that the nobile officium could not be invoked to challenge a decision on the merits by the High Court in its appellate capacity. Here counsel for the petitioner sought to distinguish Beck, Petr and Ors on the basis that the proposed ground of appeal referred to above had never been put before the court. Further, counsel for the petitioner stated that in the event that the court refused the petition he would go to the SCCRC. Here the court considered whether, as a remedy of last resort, the petition to the nobile officium was competent.

William Frederick Ian Beggs v. Her Majesty’s Advocate [2010] HCJAC 48

Mon, 07 Jun 2010 18:39:53 GMT

Application for leave to appeal to the Supreme Court:- On 9 March 2010 the Appeal Court refused the appeal of the appellant in his appeal against conviction. Here the appellant sought leave to appeal to the Supreme Court of the United Kingdom. There were four “devolution issues” upon which leave to appeal was sought:- (1) the rule of specialty; (2) prejudicial publicity and the problem of the possibility of jurors conducting searches of the internet in order to obtain access to material concerning the accused or the subject matter of the trial; (3) the absence of any requirement on a jury in this country to give reasons for its decision amounts to a contravention of Article 6 ECHR; and (4) the non-disclosure of a statement taken by the police from the witness Irene Callaghan. It was submitted on behalf of the appellant that all of the grounds of appeal taken collectively raised a question as to the general fairness of the trial and hence amounted to a breach of Article 6 of ECHR. Here the court considered whether any of the four grounds referred to constituted devolution issues and if so whether permission to appeal to the Supreme Court should be granted.

The Scottish Ministers v. Claire Rennison or Smith [2010] CSIH 44

Wed, 26 May 2010 12:19:56 GMT

Reclaiming Motion:- In the action the petitioners sought a recovery order under the Proceeds of Crime Act 2002. The first respondent was Lee Smith and the second respondent was his wife. In August 2006 the first respondent died and the second respondent opposed the petition for recovery as a party litigant. The petitioners sought recovery of four properties in Glasgow, including the former matrimonial home, the contents of three bank accounts held by the interim administrator and an insurance policy. The basis of the petition against the second respondent was that between 1997 and 2004 the second respondent received income and acquired assets with funds for which there was no legitimate source. Here the second respondent reclaimed against the interlocuter pronounced by Lord Bracadale on 28 January 2010. When the reclaiming hearing called the reclaimer failed to appear and a letter purporting to be from a doctor was tendered to the court which stated:- “…This 36 year old lady attended the surgery today for assessment of a health condition. In my professional opinion I consider her medically unfit to attend Court on Tuesday the 18^th May and I would be grateful if you could take this into consideration." Here the court considered the failure of the reclaimer to attend court and also the relevancy of her grounds of appeal which related to findings Lord Bracadale made on the evidence and that a criminal charge and conviction were prerequisites to any civil confiscation of property and assets.

Her Majesty’s Advocate v. Discovery Homes (Scotland) Limited and Richard Pratt [2010] HCJAC 47

Wed, 26 May 2010 11:55:58 GMT

Crown Appeal Against Sentence:- On 29 May 2008 the first respondent, a building contractor, was constructing houses in Dundee when one of its employees, Andrezej Freitag, fell from the third to the second storey of a block under construction and sustained injuries from which he died. The first respondent was indicted to Dundee Sheriff Court and pled to contravention of sections 2(1) and 33(1)(a) of the Health and Safety at Work etc. Act 1974 namely that they failed to ensure the health, safety and welfare at work of one of their employees by failing to provide inter alia a guard-rail, barrier, or similar collective means of protection. The second respondent, a director of the first respondent was employed by the first respondent as site manager and was the sole full-time safety representative of the first respondent at the locus, pled guilty to a charge under section 37(1) of the 1974 Act. The sheriff fined the first respondent £5,000, discounted from £7,500, and the second respondent £4,000, discounted from £6,000. The pleas had been tendered at the earliest opportunity and the sheriff discounted the fines by a third to reflect those pleas. Here the Crown appealed against both sentences on the grounds that the starting off point selected by the sheriff was unduly lenient. In his report the sheriff stated that the fine imposed against the first respondent was limited as a substantial fine would almost inevitably result in the first respondents falling into administration or liquidation and the fine imposed was one which reflected the funds available to the first respondents. On behalf of the Crown it was submitted, referring to paragraph 25 of the Definitive Guideline issued by the (English) Sentencing Guidelines Council that:- "... where the [health and safety] offence is shown to have caused death, the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more" albeit the offence was committed prior to the operative date of the Definitive Guideline. The court considered the appeal having regard to a number of reports by accountants instructed by the Crown and the respondents, which were not available to the sentencing sheriff to consider whether either of the sentences imposed could be held to be unduly lenient.

John McDonald v. Her Majesty’s Advocate [2010] HCJAC 45

Thu, 13 May 2010 13:53:21 GMT

Criminal Note of Appeal Against Conviction:- On 1 September 2005 following trial at Glasgow High Court the appellant was convicted of a number of firearms offences, a charge of murder and a charge of assault to injury. The appellant was subsequently sentenced to life imprisonment on the murder charge, with a punishment part of 18 years, and various concurrent periods of imprisonment on the remaining charges. The appellant thereafter lodged a note of appeal on the ground that no reasonable jury properly directed ought to have attached sufficient weight to certain eye witness evidence by witness P, which amounted to identification of the appellant by his eyes, that would allow them to convict the appellant. It was submitted on behalf of the appellant that no reasonable jury could have accepted the evidence of identification given by P and since the corroborating circumstances were not in themselves incriminating, the jury would not have been entitled to use these circumstances to support the identification since they were also consistent with innocence and, as such, there was no rational basis for the jury's decision. On behalf of the Crown it was submitted that P had positively identified the appellant as the gunman whom he knew and there was nothing out of the ordinary about the identification and the qualifications to it, all of which were matters for the jury in deciding issues of credibility and reliability. Here the court considered whether the verdict reached by the jury was one which a reasonable jury, properly directed, could have returned.

Graham Gordon v. Her Majesty’s Advocate [2010] HCJAC 44

Thu, 06 May 2010 18:44:02 GMT

Reference from the Scottish Criminal Cases Review Commission:- On 5 September 2002 the appellant was convicted of a charge of rape following trial at the High Court at Aberdeen. The trial judge sentenced the appellant to five years imprisonment on the rape charge and admonished him for the indecent assault charge which he had earlier pled guilty to. A number of grounds of appeal were lodged, only one of which, relating to defective representation, passed the sift. However, on 30 April 2004 the court allowed the appellant to lodge two additional grounds of appeal which related to the absence of corroboration and the directions given by the trial judge on mens rea. On 29 September 2004 the appeal was heard and the two additional grounds were argued and refused, the defective representation ground being abandoned prior to the hearing. Thereafter the appellant applied to the Scottish Criminal Cases Review Commission on a number of grounds, many of which had been rejected either by the sift process or by the decision of the court in the appeal. In March 2007, the SCCRC referred the case on a number of grounds. :- (1) the police investigation had been defective; (2) there had been a failure by the Crown to disclose a statement of the complainer; (3) the uncovering of "fresh" evidence. At the hearing the appellant appeared on his own behalf and presented his appeal. A number of grounds of appeal were argued:- (a) failure to disclose the complainer's police statement; (b) fresh evidence from a Crown witness CL; (c) deliberate withholding of information on the charge of child neglect; and (d) police failures to preserve evidence, to trace witnesses and to carry out medical and forensic examinations. Here the court considered the various grounds of appeal and examined the evidence led at the trial to establish whether a miscarriage of justice had occurred.

Sher Khan v. Her Majesty’s Advocate [2010] HCJAC 38

Wed, 28 Apr 2010 18:45:11 GMT

Criminal Note of Appeal Against Conviction:- On 1 September 2008 the appellant was convicted after trial at Glasgow High Court of an assault to injury, an assault to injury and permanent disfigurement and an attempted murder, with each of the three charges aggravated by the appellant being on bail on two occasions. The appellant was sentenced to seven years and six months detention in cumulo with six months attributable to the bail aggravations. At the trial the appellant gave evidence and during cross examination by the advocate depute the appellant in response to a question stated:- "when I've never been involved in any incident such as this and that is the truth if that is what you are going to ask." Thereafter the advocate depute went on to disclose the appellant’s previous convictions after an objection by defence counsel to the line was repelled by the trial judge who decided that the exception to the general prohibition contained in section 266(4) of the Criminal Procedure (Scotland) Act 1995 referred to in sub-section (4)(b) had been met. Here it was submitted on behalf of the appellant that section 266(4)(b) had not been engaged at all and the appellant had not "given evidence of his own good character” and thus the appellant had not waived his protection under section 266(4) of the 1995 Act. Further, it was submitted that the normal directions given in relation to prior inconsistent statements which had been put to various Crown witnesses during cross examination had not been given by the trial judge. It was submitted on behalf of the Crown that the appellant had sought to portray himself as of good character and thus waived the general prohibition. Here the court considered whether the appellant had given evidence of his own good character and had thus waived his entitlement not to have his previous convictions placed before the jury, all of which had significant relevance to his credibility. In that event, the court went on to consider whether a miscarriage of justice had occurred in terms of section 106(3) of the 1995 Act.

Daniel McLean v. Her Majesty’s Advocate [2010] HCJAC 37

Wed, 28 Apr 2010 18:43:42 GMT

Criminal Note of Appeal Against Conviction:- The appellant was convicted of the following charge on 19 July 2009 under deletion of the word “repeatedly”:- “..you ... did assault S.A.B. ... and did [repeatedly] strike him on the neck and body with a knife or similar instrument, all to his severe injury, permanent disfigurement and to the danger of his life and you did attempt to murder him, and you did previously evince malice and ill-will towards him." The appellant appealed on the ground that the verdict was one which no reasonable jury, properly directed, could have returned, in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. It was submitted on behalf of the appellant that the deletion of "repeatedly" meant that the jury did not attribute all of the injuries sustained by S.A.B. to the appellant and decided that the appellant did not act alone but in concert with another unidentified person. Further, it was submitted that the Crown position and the trial judge's directions taken together, meant that the only basis for conviction presented to them and on which they were directed was that the appellant was exclusively responsible for the assault and each of the four injuries suffered by S.A.B. It was submitted on behalf of the Crown that that the verdict was consistent with a significant body of evidence which had been led at the trial. Here the court considered whether it could be said that no reasonable jury could have been satisfied beyond reasonable doubt that the accused was guilty and whether the demanding test for success in an appeal based on section 106(3)(b) of the 1995 Act had been met.

Simon Stuart v. Her Majesty’s Advocate [2010] HCJAC 34

Wed, 21 Apr 2010 16:04:18 GMT

Criminal Note of Appeal Against Sentence:- On 21 October 2004 the appellant was remitted to the High Court for sentencing for a serious assault and received an extended sentence of 9 years (with a custodial part of 6 years). In October 2008 the appellant was released on licence. On 3 November 2008 the appellant was granted bail at Glasgow District Court in relation to a charge of theft of a car and on 8 December 2008 he was alleged to have committed new offences, namely having with him in a public place an offensive weapon (a baseball bat) and assaulting a police officer by striking him with the baseball bat, both offences committed while on bail. The appellant was recalled by the Scottish Ministers on 22 December 2008 in terms of section 17 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. On 9 March 2009 the appellant pled guilty to the new offences at a first diet at Glasgow Sheriff Court. The sheriff sentenced the appellant in respect of the new offences without considering whether to remit the case to the High Court in terms of section 16. The sheriff imposed a sentence of 24 months in relation to the offensive weapon, with a consecutive sentence of 12 months in respect of the assault, which was to be served consecutively to the sentence which the appellant was currently serving. Given the terms of section 204A of the Criminal Procedure (Scotland) Act 1995 and the fact that the appellant had been recalled in terms of section 17 of the 1993 it was not in dispute that it was incompetent for the sheriff to impose a sentence to run consecutively to the sentence which the appellant was currently serving. Further, it was not in dispute that the sheriff should have considered whether to remit the appellant's case to the High Court for its consideration of the possible imposition of a section 16 return order.

Barry Hughes v. Her Majesty’s Advocate [2010] HCJAC 33

Wed, 21 Apr 2010 15:59:07 GMT

Criminal Appeal by Stated Case:- Following trial at Glasgow Sheriff Court the appellant was convicted on summary complaint of a contravention of section 49(1) of the Criminal Law (Consolidation)(Scotland) Act 1995, namely, being in possession of a knife in a public place with no good reason or lawful authority. The appellant appealed on a number of grounds only one of which was argued here and related to defective representation by the appellant's trial counsel. In particular, trial counsel’s failure to lead evidence from a defence witness who in a statement available to the defence said that prior to the entry of the police officers, the incriminee had been involved in an altercation with a third party in the course of which he had seen the incriminee put something shiny into his pocket. The appellant in an affidavit stated he wanted the witness to be called and understood that he would be called to give evidence on the appellant’s behalf. Trial counsel stated that the witness's evidence would not help the defence as it "might diminish the credibility of the appellant and his incriminee." Here it was submitted on behalf of the appellant that it had been agreed that the defence witness would be cited to attend court for the purpose of giving evidence on the appellant’s behalf. Counsel for the appellant argued that when counsel at the trial refrained from calling the witness to give evidence against a presumed instruction by the appellant that should be done, then the only issue was whether the absence of that evidence could have had an effect on the verdict of the court at first instance. Here the court considered the proposition that an accused person can direct his counsel as to what witnesses should be called to give evidence and that counsel has no option other than to comply with that instruction notwithstanding counsel’s professional view that such a course may be adverse to his client's interests.

Richard Joseph Coubrough’s Executrix v. Her Majesty’s Advocate [2010] HCJAC 32

Thu, 08 Apr 2010 17:40:17 GMT

On 2 July 1971 the appellant was convicted at Glasgow High Court after trial of a charge of murder. The appellant was sentenced to life imprisonment. On 13 June 1999 the appellant applied to the Scottish Criminal Cases Review Commission on a number of grounds including misdirections by the trial judge on onus and standard of proof. In terms of decisions dated 19 June 2001 and 25 March 2002, the SCCRC declined to refer the case on any of the grounds, however, the SCCRC reconsidered its decision in March 2005 when they decided to refer the case to the Court on the basis of fresh evidence. The fresh evidence was from a professor of psychology to show that police evidence of admissions made by the appellant was not credible. On 27 February 2008, the Court issued an Opinion in which it refused four grounds of appeal. However, two grounds of appeal, neither of which had been the subject of a referral, had been dealt with. On 27 May 2009, the Court allowed the appellant's sister and executrix to continue with the appeal under section 303A of the Criminal Procedure (Scotland) Act 1995 after the appellant died on 28 June 2008. The two remaining grounds related to alleged misdirections by the trial judge to the jury:- (1) in relation to how the jury should deal with the appellant’s evidence and the onus of proof; and (2) inadequately directing the jury as to the fallibility of eye witness identification evidence. Here the court considered whether there had been a material misdirection either on onus and standard or identification. In particular, in relation to onus, the court considered the issue of whether a miscarriage of justice had to be assessed according to the law and practice at the time of the trial or at the time of the appeal.

Frank Docherty and Brendan Christopher Dixon v. Her Majesty’s Advocate [2010] HCJAC 31

Thu, 01 Apr 2010 12:17:49 GMT

Criminal Note of Appeal Against Conviction:- On 1 March 2005, following trial at Kilmarnock High Court, the appellants were convicted of the murder of a 91-year-old woman who had been found dead in her home in Galston on 28 September 2003. She had been gagged with a duster and left lying face down on her bed with her hands tied behind her back. She had a number of head injuries, a broken rib, and bruising on the right hand, arm, left wrist and thumb. Following a post mortem the cause of death was found to be asphyxiation. At the trial, the appellants each lodged a special defence of alibi. During the trial, at the end of the Crown case, the judge refused a "no case to answer" submission made in respect of each appellant. Subsequently, the appellants were convicted and sentenced to life imprisonment. Both appellants appealed against their conviction on a number of grounds:- (1) that the circumstantial evidence was insufficient to convict them; (2) that there was non-disclosure of police statements given by Crown witness number 22 Sheena Orr; (3) alternatively, Mrs Orr's police statements comprised fresh evidence; (4) alternatively, there had been defective representation in that the defence had not obtained the information available in those police statements; and (5) that there had been a misdirection relating to corroboration and inappropriate treatment of two defence witnesses by the trial judge in connection with the case of the second appellant only. Here the court considered the circumstantial nature of the Crown case and looked at the evidence as a whole, the nature of circumstantial evidence led in that it may be open to more than one interpretation and the jury’s entitlement to reject any inconsistent evidence if they saw fit. The court also considered the special knowledge aspects of the case. The court also considered the extent and nature of the common criminal enterprise entered in to and whether there was sufficient evidence of each appellant’s active participation in it.

R. v Barker, February 16, 2010

Wed, 24 Mar 2010 17:02:45 GMT

Evaluates in a historical context the Court of Appeal guidance in R. v B, referred to as R. v Barker, on the correct interpretation of the child witness competence provisions in the Youth Justice and Criminal Evidence Act 1999 s.53, including as regards whether procedural delay or the professed inability of the defence to cross-examine effectively, particularly in the absence of an intermediary, should be deemed to be fatal to a trial's fairness.

R. v Chisholm (John), CA (Crim Div), 03 February 2010

Wed, 24 Mar 2010 16:57:02 GMT

Appeal dismissed: The court made obiter observations and gave guidance for the future about the use of special counsel in an appeal against conviction where the grounds of appeal related to a witness anonymity order made under the Criminal Evidence (Witness Anonymity) Act 2008. The guidance was prompted by the fact that the Act was relatively new and it was the first time complaints about its provisions had been presented for judicial consideration by the Court of Appeal.

Rose v DPP, [2010] EWHC 462 (Admin), 11 March 2010

Wed, 24 Mar 2010 16:50:21 GMT

Appeal dismissed: The judgment in Zafar v DPP [2004] EWHC 2468 (Admin), (2005) 169 J.P. 208, [2005] C.L.Y. 779 did not alter the position that a type-approved breathalyser could not be challenged in a criminal court, and the Crown Court had correctly dismissed an individual's appeal against conviction for an offence under the Road Traffic Act 1988 s.5(1)(a).

R. v Stredder (Shaun Terrance) CA (Crim Div) March 18, 2010

Wed, 24 Mar 2010 16:48:52 GMT

Outcome: Appeal allowed: The power of the appellate court to order a retrial following the quashing of a conviction was contained in the Criminal Appeal Act 1968 s.7 and was not eroded by the Criminal Justice Act 2003 s.75, which concerned the situation following an acquittal.

Martin Kyle v. Her Majesty’s Advocate [2010] HCJAC 28

Wed, 17 Mar 2010 21:40:55 GMT

Criminal Note of Appeal Against Sentence:- The appellant was convicted after trial on indictment at Dundee Sheriff Court on charges of:- (1) being concerned in the supply of heroin contrary to section 4(3)(b) of the Misuse of Drugs Act 1971; (2) obstructing officers of Tayside Police in execution of their duty contrary to section 23(4)(a) of the Misuse of Drugs Act 1971; and (3) being in possession of a quantity of cannabis resin contrary to section 5(2) of the Misuse of Drugs Act 1971. All of the offences were committed while the appellant was on bail and he was sentenced to four years' imprisonment on the supply charge of which period 6 month was attributed to the bail aggravation. On the obstruction charge he was sentenced to nine months' imprisonment, three months attributable to the bail aggravation. The appellant was admonished in regard to the possession of cannabis charge. The two sentences of imprisonment were ordered to run consecutively. The appellant lodged a note of appeal against sentence which contained two grounds:- (1) the sentences were excessive having regard to the circumstances of the offence and the personal circumstances of the appellant; and (2) the sheriff should have imposed concurrent sentences of imprisonment and not consecutive sentences. Leave to appeal was granted and on 27 June 2008 an interlocutor was pronounced remitting the appeal to a bench of three judges for "determination ... of the maximum sentence competently available to a sentencer in respect of bail aggravations on a complaint/indictment containing more than one bail aggravated charge ..." Here it was submitted on behalf of the appellant that the maximum period of imprisonment which could be imposed in respect of a bail aggravation was six months and the six months' extension to the sentencer's maximum powers was the maximum available to the sentencer for distribution over the totality of the aggravated charges. Accordingly, it was submitted that the imposition of nine months for the bail aggravations in the present case by the sheriff was incompetent. Here the court considered whether the sentence imposed was incompetent and also whether the sentence imposed was excessive to the extent that the sentences should have been imposed concurrently.

William Gemmell Mackintosh v. Her Majesty’s Advocate [2010] HCJAC 30

Wed, 17 Mar 2010 21:37:35 GMT

Criminal Note of Appeal Against Conviction:- Following trial at the High Court at Paisley on 15 August 2002 the appellant was convicted of a charge of assault to severe injury and a charge of rape. On 5 September 2002, the court sentenced the appellant to twelve years imprisonment to run from 15 August 2002, in cumulo in respect of the two charges. A number of grounds of appeal against his conviction were lodged one of which was to the effect that a miscarriage of justice had occurred in consequence of the trial judge having erroneously repelled a submission of no case to answer at the conclusion of the Crown case in relation to the rape. That ground of appeal was held to be well-founded and the conviction in relation to the rape charge was quashed last year. Here a further ground of appeal relevant to the appellant's conviction on both charges was considered. It was submitted on behalf of the appellant that the evidence of Patricia Belton was now available which was significant and would have had a material part to play in the jury's deliberations if it could have been led at the trial and could be being regarded by a reasonable jury as credible and reliable and there had been a miscarriage of justice. The evidence of Belton was heard and it was submitted on behalf of the appellant that the evidence was to be seen as fresh evidence and the issue of a reasonable explanation, in terms of section 106(3A) of the Criminal Procedure (Scotland) Act 1995, did not constitute an obstacle in the circumstances of the case here. It was further submitted that the evidence was capable of being regarded as both credible and reliable by a reasonable jury and was plainly of material importance. In these circumstances the appellant's conviction on the assault charge should also be quashed. Here the court considered, firstly, whether the evidence of Patricia Belton fell within the scope of section 106(3)(a) of the 1995 Act and, secondly, whether the court considered that the additional evidence was capable of being regarded as credible and reliable by a reasonable jury.

Gary Polland v. Her Majesty’s Advocate [2010] HCJAC 29

Wed, 10 Mar 2010 20:17:28 GMT

Reference from Scottish Criminal Cases Review Commission:- On 22 November 2006 following a trial at Glasgow High Court the appellant was convicted of two charges of aggravated assault. The appellant was subsequently sentenced to an extended sentence of 8 years detention comprising a custodial term of 6 years and an extension period of 2 years in relation to charge one. In relation to the second charge he was sentenced to 18 months detention to run concurrently with the first charge. The appellant appealed against his conviction on charge 1 on different grounds from those raised in this reference. In June 2007 application for leave to appeal was refused at both first and second sifts. The appellant applied to the Scottish Criminal Cases Review Commission who made a reference to the court on 14 October 2008. The first ground of appeal related to the failure by the Crown to disclose certain material relating to a defence witness of the appellant’s co-accused whom the Crown had obtained a statement from. In addition a synopsis of the CCTV footage prepared by a police officer was included in the report to the procurator fiscal but was not included as a production and was not disclosed to the defence. The second ground of appeal related to defective representation on the basis of an alleged failure of trial counsel, even in the absence of access to the undisclosed material, properly to appreciate the significance of the CCTV footage and to identify the man with the golf club as the defence witness and not the appellant. Here it was submitted on behalf of the appellant that the cumulative effect of the non‑disclosure and the defective representation gave rise to a miscarriage of justice. The Crown accepted that the material identified in the ground of appeal ought to have been disclosed, however, the advocate depute submitted that there had been no miscarriage of justice and as far as the question of defective representation was concerned the advocate depute submitted that it was not clear that trial counsel had been under a misapprehension as to the contents of the CCTV footage. Here the court considered whether there was a real possibility that the jury would have arrived at a different verdict if the undisclosed material had been available and whether trial counsel did misunderstand the contents of the CCTV footage to the extent of amounting to defective representation.

William Frederick Ian Beggs v. Her Majesty’s Advocate [2010] HCJAC 27

Wed, 10 Mar 2010 20:16:05 GMT

Criminal Note of Appeal Against Conviction:- On 12 October 2001 at Edinburgh High Court the appellant was convicted after trial of a charge of murder. After significant delay and protracted procedure a number of grounds of appeal were argued on behalf of the appellant:- (1) the appellant did not receive a fair trial as a consequence of prejudicial publicity both prior to and during his trial; (2) the trial judge erred in admitting, as hearsay evidence under section 259 of the Criminal Procedure (Scotland) Act 1995, a purported 'statement' made by Kenneth Petrie (who died on 23 February 2001) to police officers on 21 March 2000 and the document should have been regarded as a precognition; (3) the advocate depute made frequent, deliberate, inappropriate and prejudicial comments both in the course of the evidence led before the jury and in his address to them at the conclusion of the trial to the effect that the appellant was able to give evidence about matters which were relevant to the issues to be considered by the jury and that his silence was to be interpreted as an inference to the proof of his guilt; (4) the search warrant upon which the Crown relied did not authorise a search of the appellant’s house but was instead a warrant for the search of the appellant's garage at 2 Dee Avenue, Kilmarnock; (5) the trial Judge erred in rejecting a submission on the sufficiency of the evidence in relation to:- (a) the allegation of assault by punching the deceased on the face; (b) the allegation of assault by penetrating the deceased's hinder parts; (c) the charge of murder; and (d) any alternative finding in terms of culpable homicide; (6) the admissibility of evidence of travel by the appellant to the Netherlands and the effect of leading that evidence before the Jury was that evidence was led of a crime with which the Appellant was not charged and for which his extradition was not sought, namely an attempt to pervert the course of justice by fleeing and absconding; (7) the specialty rule precluded the leading of any evidence of actings which, while yet relevant and habile to prove the extradition crime, constituted in themselves a separate crime or offence for which express authority had not been granted by the extraditing state; (8) in the particular circumstances and complexities of the present case the fact that the jury did not give reasons for its verdict was not sufficient to meet the fair trial guarantee; (9) the failure of the Crown to disclose a police statement of the witness Irene Callaghan which impeded counsel in his field of cross-examination on the basis of a prior inconsistent statement. Here the court considered the various grounds on their individual bases, but also cumulatively, to assess whether a miscarriage of justice had occurred.

R. v B: CA (Crim Div): 21 January 2010

Wed, 24 Feb 2010 22:12:34 GMT

Appeal dismissed: The provisions of the Youth Justice and Criminal Evidence Act 1999 s.53 regarding the competence of witnesses to give evidence were clear and unequivocal and did not require reinterpretation, and a judge had been entitled to conclude that the competence of a four year old child to give evidence in relation to an allegation of rape had been established.

R. v Starmer (Richard Gordon) CA (Crim Div): 22 January 2010

Wed, 24 Feb 2010 22:10:26 GMT

Application refused: The need for a jury direction of the type from R. v Brown (Kevin) (1984) 1 B.C.C. 98970, [1984] C.L.Y. 624 would seldom occur and would not occur when what was alleged was a course of conduct. It was necessary only in those cases where two or more different ways of committing the same offence were alleged in the same count.

R. v Wilkinson (Lee Geoffrey) CA (Crim Div): 11 December 2009

Wed, 24 Feb 2010 22:01:20 GMT

Appeal allowed: A man who had pleaded guilty to possessing criminal property, namely a stolen car, after he had test-driven it had not "obtained property", so that a confiscation order should not have been made against him.

R. v M CA (Crim Div), 13 November 2009

Wed, 24 Feb 2010 21:59:51 GMT

Applications refused: Although the Criminal Justice Act 2003 Sch.21 para.10 was silent or unspecific in relation to cases of murder resulting from the misuse of knives, the purpose of the schedule was illustrative and not exhaustive. Accepting that the starting point would not normally be the same as that involving a firearm or explosive, nevertheless it would always be an aggravating feature in any case involving death or injury, that the death or injury had been inflicted with a knife.

He Ding Chang v. Her Majesty’s Advocate [2010] HCJAC 18

Wed, 24 Feb 2010 19:53:03 GMT

Criminal Note of Appeal Against Conviction:- On 14 November 2008, the appellant was convicted by a majority following a jury trial at Glasgow Sheriff Court of a contravention of section 4(2)(b) of the Misuse of Drugs Act 1971, namely the cultivation of cannabis. Here the appellant appealed against his conviction on two grounds:- (1) in relation to the sheriff's answer to a question from the jury; and (2) that no reasonable jury, properly directed, could have returned a guilty verdict in terms of section 106(3)(b). The question raised by the jury was:- “If we believed that he, that is the accused, was cooking and cleaning and was aware of the Cannabis cultivation but are not sure beyond a reasonable doubt that he had any dealings with the plants, can we find him guilty?”. The sheriff answered the question. Here it was submitted on behalf of the appellant that the effect of the answer given was to negate the impact of all the previous directions relating to acquittal in the event of acceptance of the appellant's evidence or that evidence raising a reasonable doubt and that amounted to a misdirection which amounted to a miscarriage of justice. It was further submitted that the evidence did not entitle a reasonable jury to conclude that the appellant was concerned in the cultivation of cannabis. Here the court considered whether the sheriff's answer negated the impact of his previous directions and caused confusion to the jury. Further, the court considered whether on the evidence led at the trial, no reasonable jury properly directed could have reached the guilty verdict.

Lee William Reid Niblock v. Her Majesty’s Advocate [2010] HCJAC 21

Wed, 24 Feb 2010 19:51:57 GMT

Criminal Note of Appeal Against Conviction:- On 15 January 2009, following jury trial at Ayr Sheriff Court, the appellant was convicted of assault to severe injury, permanent disfigurement and permanent impairment. The only eye witness evidence led at trial came from the complainer and a witness “Smith”, however, only the complainer identified the appellant as the perpetrator of the assault. During Smith’s evidence the procurator fiscal depute referred him to his police statement which he gave the day after the incident to DC McCreath in which he identified the appellant as the assailant. Smith confirmed in cross-examination that he had told DC McCreath what had happened, but went on to say that he was not saying that it was the appellant who committed the assault. In re-examination Smith confirmed that he had told DC McCreath the truth. Thereafter, DC McCreath gave evidence that Smith gave a statement to him on the day after the incident in which he identified the appellant as the assailant. At the close of the Crown case the solicitor for the appellant submitted that there was no case to answer since Smith's evidence did not corroborate the complainer's identification of the appellant as the assailant. The sheriff repelled the submission. During his charge the sheriff did not direct the jury on the evidential significance of Smith's police statement. The appellant was subsequently convicted. The appellant appealed on two grounds:- (1) that the sheriff erred in repelling the submission of no case to answer; and (2) in any event the sheriff misdirected the jury by failing adequately to direct them on the evidential value of Smith's police statement. Here the court considered whether the preconditions of section 260 of the Criminal Procedure (Scotland) Act 1995 were met and whether the witness Smith truly adopted his statement. Further, the court considered whether the sheriff's failure to direct the jury explicitly on the significance of the statement as an exception to the general rule on the inadmissibility of hearsay evidence constituted a misdirection.

Jacqueline Aiton v. Her Majesty's Advocate

Thu, 18 Feb 2010 07:59:18 GMT

Criminal Note of Appeal Against Conviction:- The appellant was convicted after trial at Edinburgh High Court of two charges of being concerned in the supply of diamorphine and cannabis resin contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The appellant lodged note of appeal under Section 110 of the Criminal Procedure (Scotland) Act 1995 and a number of grounds of appeal were considered at the appeal hearing. A number of criticisms were made of the trial judge’s directions to the jury, in particular, in relation to the burden of proof required which suggested that the jury could convict the appellant if all the Crown established was that she suspected or had reason to suspect that she was involved in an operation to supply the drugs specified in the charges. Further, it was submitted that there was insufficient evidence to establish that the appellant was concerned in the supplying of the controlled drugs during the period and at all the loci specified and the trial judge should have directed the jury that if they were to convict the appellant of either charge the libel should have been restricted in accordance with the evidence led and the latitude of the period of time of the libel should have been restricted to the single day on which the appellant was detained in terms of section 23 of the Misuse of Drugs Act 1971. Here the court considered whether the jury had a clear direction that it was for the Crown to prove that the appellant knew that she was involved in an operation the objective of which was the supplying of a material or substance to another or others. In addition, the court considered whether it was necessary for the jury to consider the terms and effect of section　28 of the Misuse of Drugs Act 1971 given that the appellant’s position was that of a simple denial of any involvement in a supplying operation, and ignorance of any drugs contained in the car in which she was travelling. In the event that the court considered there had been a misdirection it went on to consider whether there had been a miscarriage of justice.

Rory Connell Morrison v. Her Majesty's Advocate

Thu, 18 Feb 2010 07:55:01 GMT

Criminal Note of Appeal Against Conviction:- The appellant was convicted after trial on indictment at Edinburgh Sheriff Court of a charge of assault and a separate charge of robbery. The sheriff made an order in terms of section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in respect of sentences on another indictment matter, ordering that the appellant be returned to prison for a period of four　months. As regards the robbery charge on the present indictment, the appellant was sentenced to two　years and six months imprisonment and on the assault charge he was sentenced to eight months imprisonment and were ordered to run consecutively to each other and also consecutively to the period specified in the order under section 16. The appellant lodged a note of appeal under section 110 of the Criminal Procedure (Scotland) Act 1995 on the grounds that the jury had deleted any reference to an "assault" in relation to the robbery charge and in the absence of any other evidence of violence or intimidation, the jury ought to have convicted the appellant of theft only. It was further submitted that esto the conviction of the appellant for robbery was upheld a sentence of two　years six　months imprisonment was excessive. It was submitted on behalf of the appellant that the Crown had prosecuted their case as one of assault and robbery and once the jury had negatived the assault part of the charge the jury could not properly go on to convict of robbery and should have convicted the appellant of a simple theft. It was submitted on behalf of the Crown that the jury's verdict could be justified by the recognition that some violence had been used in the incident by the appellant, notwithstanding that the jury had made the deletions they did. Here the court considered the legal definition of robbery and, notwithstanding the deletions of the averment of assault and also the specification of the narrative relating to an assault, whether there was sufficient evidence of personal violence used for the purpose of appropriation of the property of the complainer to amount to a robbery. Further, the court went on to consider whether the sentence imposed on the robbery charge of two years and six months imprisonment was excessive.

Thomas Thomson v. Her Majesty's Advocate [2009] HCJAC 11

Thu, 11 Feb 2010 17:43:41 GMT

Criminal Note of Appeal Against Conviction:- On 10 August 1999 at Glasgow High Court the appellant was found guilty of a charge of rape. At trial the appellant's position was that although there had been sexual contact between him and the complainer it had been at her instigation and with her consent. Although he admitted to sexual intercourse in an interview with police, he denied in evidence that sexual intercourse had taken place, and claimed that he was under pressure during the interview. After the complainer completed her evidence in chief, counsel for the appellant sought leave of the court to allow certain questioning under and in terms of section 275(1)(c) of the Criminal Procedure (Scotland) Act 1995. The trial judge allowed questioning in relation to two parts of the application on the basis that the proposed questioning was directly relevant to the issues in the trial, however, he disallowed questioning in respect of the remaining three parts of the application on the basis that it could have no bearing on the credibility and reliability of the complainer in relation to the circumstances which were the subject of the trial and the line of evidence sought to be adduced was unsupported by any witnesses cited to give evidence for the defence in relation to the making of the false allegations referred to. The appellant appealed against his conviction on the basis that the trial judge had erred insofar as he refused the questioning, however, on 26 January 2001 the appeal was refused. In December 2003 the Scottish Criminal Cases Review Commission referred the appellant's case back to the court on the basis that it believed that there may have been a miscarriage of justice and expressed the view that the questioning disallowed at the trial did not strictly fall within the prohibition in section 274 of the 1995 Act, it being proposed only to show that the allegations were false, not that the complainer had in fact engaged in any other sexual behaviour. The only ground advanced at the hearing of the second appeal related to the trial judge's decision to refuse questioning in respect of the same matters as were referred to in the previous appeal and on 20 January 2005 the second appeal was refused. On 12 October 2006 the appellant's case was referred back to the court by the Commission which adhered to the views expressed in its earlier report, concluded that "the consequences of the approach taken by (the solicitor advocate) was that the applicant was denied the opportunity of having his appeal properly argued before the High Court and, as such, the applicant has suffered a miscarriage of justice". Here two grounds of appeal were argued:- (1) that the trial judge erred in refusing trial counsel leave to question the complainer in terms of the section 275 application; and (2) related to fresh evidence which was of such significance that the verdict reached in ignorance of it could be regarded as a miscarriage of justice. Here the court considered whether the trial judge was correct to hold that the proposed questioning was a collateral matter which was irrelevant and did not have any direct bearing on the credibility and reliability of the complainer. In relation to the "fresh evidence" the court considered whether it was admissible and, if it was, whether it would have been material.

John Scott Anderson v. Her Majesty's Advocate [2010] HCJAC 9

Thu, 11 Feb 2010 17:42:39 GMT

Criminal Note of Appeal Against Conviction:- On 29 September 2008, the appellant was convicted at Edinburgh High Court after trial of a charge of murder. At the trial the position put forward by the appellant was that he had been acting in self defence of himself, his brother and his mother. During his address to the jury, senior counsel for the appellant raised the issue of provocation as being a basis upon which the jury might reduce a verdict of guilty from one of guilty of murder to one of guilty of culpable homicide. After the advocate depute and counsel for the appellant had addressed the jury the trial judge raised with them, outwith the presence of the jury, whether a verdict of culpable homicide was sustainable within the context of provocation. Following submissions by parties the trial judge intimated that he was of the view that provocation could not be made out and that his charge to the jury would contain a direction that the only verdict of acquittal which would be open to the jury would be on the basis of self defence. The appellant appealed against conviction on the basis of those directions. It was submitted on behalf of the appellant that the trial judge had erred in withdrawing provocation from the jury and had acted illogically in allowing the defence of self defence to go to the jury, whilst withdrawing that of provocation given there had only been one stab wound suffered by the deceased. It was submitted that the trial judge's failure to direct the jury that it would have been open to them to return a verdict of culpable homicide had given rise to a miscarriage of justice. It was submitted on behalf of the Crown that it was not appropriate for the trial judge to have directed the jury that a verdict of culpable homicide was open on the basis of only one stab wound as the kitchen knife had been directed towards a particularly vulnerable part of the body which it had fatally injured. Further, it was submitted that although defences of self defence and provocation were sometimes linked they are separate lines of defence and the facts here would not have warranted a jury holding that the elements of provocation necessary to reduce a charge of murder to one of culpable homicide. Here the court considered:- (1) whether this was a case in which it would have been appropriate for the trial judge to have directed the jury that it would have been open to them to return a verdict of culpable homicide on the basis that the appellant had only struck one blow; and (2) whether the trial judge was entitled to withdraw the defence of provocation from the jury.

Ian Matthew Hopton v. Her Majesty's Advocate [2010] HCJAC 10

Thu, 11 Feb 2010 17:41:29 GMT

Criminal Note of Appeal Against Conviction:- On 30 October 2008, the appellant was convicted at Edinburgh High Court after trial of a charge of rape and sentenced to 8 years imprisonment. The appellant appealed against conviction on two grounds relating to misdirections by the trial judge in his charge to the jury:- (1) that the jury could use evidence from both the complainer and the appellant that a chair had been put against the front door of the flat and that that piece of evidence could be used to find corroboration both that the complainer was not consenting and the appellant knew that she was not; and (2) the way the jury were to treat the evidence of the first adult person the complainer spoke to after the incident and whether the complainer displayed signs of distress to that witness which could be used by the jury to infer a lack of consent on the complainers part. It was submitted on behalf of the appellant that it had not been opened to the jury to draw any inference adverse to the appellant from the evidence which the appellant had himself given about the chair as it had not formed any part of the charge against the appellant that he had used a chair to barricade the complainer within her flat nor had the complainer suggested that and the Crown had not sought to rely on the evidence relating to the chair as a source of corroboration of any of the essential elements of the complainer's evidence. It was submitted that the evidence in relation to the chair could not have been viewed by the jury as a threat against the complainer, and evidence of her lack of consent, or of knowledge on the part of the appellant that the complainer was not consenting to sexual intercourse. It was submitted that the directions in relation to the first adult person the complainer spoke to after the incident were not balanced and that the witness' impression may be based on less complete information than the jury had and as a result the jury should have been directed to treat carefully the significance of the impression. It was submitted that these misdirections of the trial judge had led to a miscarriage of justice. It was submitted on behalf of the Crown that it had been open to the jury to hold from the appellant's evidence that the chair from the living room had been placed behind the front door as a barricade was consistent with his having been engaged in raping the complainer and whether there was anything wrong with the trial judge's directions in relation to ground 2. Here the court considered inter alia whether the trial judge's directions relating to the appellant's evidence of having placed a chair behind the front door did constitute a misdirection and, if so, whether it resulted in a miscarriage of justice.

Mohammed Atif Siddique v. Her Majesty's Advocate [2010] HCJAC 7

Wed, 03 Feb 2010 15:55:49 GMT

Criminal note of appeal against conviction and sentence:- On 17 September 2007, at the High Court of Justiciary at Glasgow, the appellant was convicted after trial of four offences related to terrorism and sentenced to:- (a) 6 years' imprisonment in respect of charge (1) from 13 April 2006; (b) 6 months' imprisonment in respect of charge (3); (c) 2 years' imprisonment in respect of charge (4); and (d) one year's imprisonment in respect of charge (5). The period of imprisonment for charge (3) was to run concurrently with the period on charge (1) and the periods imposed on charges (4) and (5) were to run concurrently but consecutively to the period imposed on charge (1). Subsequently, the appellant lodged a Note of Appeal against conviction and sentence on a number of grounds including inter alia that the trial judge misdirected the jury in the course of his charge in relation to the jury assessing the question of whether the appellant's possession of the articles was for a purpose connected with the commission, preparation or instigation of an act of terrorism and what evidence they could consider in that assessment. Further, it was submitted that the trial judge misdirected the jury as to what amounted to a reasonable excuse in relation to the statutory defence of reasonable excuse under Section 58(3) of the Terrorism Act 2000. In addition, it was submitted that the trial judge had failed to present a balanced picture of the evidence to the jury during the charge. Here the court considered the various grounds of appeal, in particular, whether the directions given by the trial judge in respect of the relationship between the statutory language used in section 57(1) and the defence created by section 57(2) were sufficiently clear for the jury.

R (on the application of A) (Appellant) v B (Respondent) [2009] UKSC 12

Tue, 02 Feb 2010 23:09:56 GMT

Supreme Court - Press Summary

BACKGROUND TO THE APPEAL
A is a former member of the Security Service, B its Director of Establishments. A wants to publish a book about his work in the Security Service. A duty of confidentiality binds A and he cannot publish material relating to the Security Service without B’s consent. B refused A’s application for consent to publish. As a result, A began proceedings in the High Court to challenge B’s decision. He claimed, amongst other things, that his right to freedom of expression under article 10 of the European Convention on Human Rights had been breached. B argued that section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 (“RIPA”) provided that the Investigatory Powers Tribunal (“the IPT”)
was “the only appropriate tribunal” in relation to proceedings under section 7(1)(a) of the Human Rights Act 1998 brought against the intelligence services, such that the High Court did not have jurisdiction to entertain A’s article 10 claim.

The High Court held that it had jurisdiction to hear A’s challenge. The Court of Appeal, by a majority, reversed the High Court’s decision, holding that exclusive jurisdiction did lie with the IPT. A appealed to the Supreme Court. Justice (an all-party law reform and human rights organisation) intervened in the appeal in support of A’s submissions.

JUDGMENT
The Supreme Court unanimously dismissed A’s appeal. Lord Brown, with whom all the members of the Court agreed, gave the leading judgment. Lord Hope gave a concurring opinion.

REASONS FOR THE JUDGMENT
Two alternative arguments were advanced by A:
 Section 65(2)(a) excludes the section 7(1)(a) jurisdiction of any other tribunal but not that of the courts.
 Even if section 65(2)(a) is to be construed as conferring exclusive section 7(1)(a) jurisdiction on the IPT, it does so only in respect of proceedings against the intelligence services arising out of the exercise of one of the investigatory powers regulated by RIPA.

As to the first argument, Lord Brown noted that the language of section 7(2) of the 1998 Act and the use of the word “only” before “appropriate tribunal” in section 65(2)(a) indicated that it was unlikely that Parliament was intending to leave it to a complainant to choose for himself whether to bring proceedings in court or before the IPT (Para 13). Whilst the IPT rules made under RIPA were restrictive (e.g. in relation to the limited disclosure of information to a complainant), there were various provisions in RIPA and the IPT rules which were designed to ensure that, even in the most sensitive cases, disputes could be properly determined. None of these provisions would be available in the courts (Para 14). A further telling consideration against A’s construction was that there were in fact no other tribunals with section 7(1)(a) jurisdiction over the categories of claim listed in section 65(3) of RIPA (Para 15).

As to the second argument, Lord Brown considered that A’s submission would involve reading into section 65(3)(a) (which contains the phrase “proceedings against any of the intelligence services”) words which were simply not there. There were, in addition, other provisions in RIPA which were more obviously directed to complaints of abuse of the intelligence services’ regulatory power which made it impossible to adopt A’s construction (Para 18). It also did not seem right to regard proceedings of the kind intended here as immune from the same requirement for non-disclosure of information as other proceedings against the intelligence services (Para 19).

Lord Brown then went on to consider whether there were sufficiently strong arguments available to A which would require the Court to construe section 65 in a way which was contrary to Lord Brown’s initial conclusions as to its construction. For the reasons set out below, Lord Brown concluded that there were no such arguments available to A.

Lord Brown rejected A’s argument to the effect that to construe section 65 as conferring exclusive jurisdiction on the IPT would constitute an ouster of the jurisdiction of the courts that would be constitutionally objectionable (Para 21). RIPA, the 1998 Act and the Civil Procedure Rules all came into force at the same time as part of a single legislative scheme and it could not be said that section 65(2)(a) was ousting some pre-existing right (Paras 21-22). Parliament had not ousted judicial scrutiny of the acts of the intelligence services, but had simply allocated that scrutiny (as to section 7(1)(a) proceedings) to the IPT (Para 23-24).

Lord Brown also rejected the argument that forcing A’s article 10 challenge into the IPT would result in breaches of article 6 of the Convention. Claims against intelligence services inevitably raise special problems that cannot be dealt with in the same way as other claims and this was recognised both domestically and by the European Court of Human Rights (Para 26). The Court would be going further than the Strasbourg jurisprudence if it were to hold that the IPT procedures are necessarily incompatible with article 6(1) and it would decline to do so here (Para 30). Even if the IPT’s rules are in any way incompatible with article 6, the remedy would be to modify them, instead of adopting some artificially limited construction of the IPT’s jurisdiction (Para 31).

The anomalies which A alleged would arise if the Court of Appeal’s construction were to be adopted also did not cast doubt on the correctness of the Court of Appeal’s decision (Paras 32-37).