Scottish High Court of Justiciary Decisons

The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Ross), Lord McCluskey and Lord Morison for a hearing on 17 February 1995. Eo die their Lordships remitted the cause to a bench of five Lords Commissioners of Justiciary.

The cause thereafter called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Ross), Lord McCluskey, Lord Morison, Lord Morton of Shuna and Lord Cowie for a hearing on 16 March 1995. Eo die their Lordships made avizandum.

At advising, on 24 March 1995, —

LORD JUSTICE-CLERK (Ross)—The appellant is Angus Gordon Elliott, who was found guilty on 15 March 1994 in the High Court at Kirkcaldy of charges (1) and (2) on an indictment. Charge (1) was a charge of murder, and charge (2) was a charge of fire-raising and attempt to defeat the ends of justice. He was sentenced to life imprisonment on charge (1) and to imprisonment for a period of five years on charge (2). The appellant appealed against conviction.

In a note of appeal dated 12 May 1994 the following ground of appeal was stated: ‘I accepted and accept that I took the life of Irene Martin. My state of mind at the time was diminished to such an extent that I was not responsible for my actions and should not have been convicted of her murder.’

Following upon the lodging of that note of appeal, the trial judge furnished a report in terms of sec 236A of the Criminal Procedure (Scotland) Act 1975. In that report the trial judge summarised the evidence as follows: ‘The victim, who was a police officer, was the girlfriend of the appellant. Their relationship was not straightforward, particularly as the appellant was still seeing a former girlfriend. The deceased had moved out of the appellant's house and bought her own house in Dundee. They had arranged to go on holiday together to Cyprus and were due to leave on the early morning of Sunday, 14 November 1993. The appellant spent Saturday night at the deceased's flat. Between 3 and 4 am neighbours heard raised voices, screams and banging noises, which went on for about two minutes. Shortly after 4 am another neighbour was returning home and noticed smoke in the corridor. She phoned the fire brigade, who attended along with the police. The door of the deceased's flat was broken in and a small fire was extinguished. Examination showed that there had been five separate seats of fire. One of these was in the main bedroom where the body of the deceased was found, partially burnt. At post-mortem examination the deceased was found to have sustained 30 separate knife wounds. Some of these appeared to be defence wounds and some on the chest were superficial. There were five major wounds to the head and neck. The head wound was a stab entering the temple and penetrating the brain, the force required being sufficient to cause a piece of the tip of the knife to break off and become lodged in the brain. The pathologist's view was that this would cause extreme pain and cause the deceased to fall to the ground. There were four wounds closely grouped to the side of the neck, penetrating vital organs, and these were the fatal wounds. The pathologist's view was that these were caused after the deceased had fallen to the floor and was lying there when stabbed. The appellant was next seen by police officers when he was driving back towards the deceased's flat. When stopped by the police he said that he was coming to pick up his girlfriend to go on holiday. He was calm and showed no emotion. He was taken to the police office where he was told of the death of the deceased and again he showed little emotion. He was interviewed at length and gave the police a detailed account of his alleged movements on Saturday night, which I do not go into in detail as in evidence the appellant admitted that this detailed account was wholly false. He was subsequently seen by a solicitor and thereafter the latter informed the police that certain items would be found in the bin recess of the appellant's former girlfriend's house, to which the appellant had a key. The police went there and found badly bloodstained clothing of the accused and the knife which was subsequently established to be the murder weapon. There was accordingly ample evidence to show that the appellant had killed the deceased and the savage nature of the assault would clearly amount to murder.’

In his report the trial judge then goes on to summarise the evidence which the appellant gave. That evidence was as follows: ‘The appellant's evidence was that he had spent Saturday night at the deceased's flat. When they woke in the morning an argument started and the appellant said jokingly that he did not think he would bother going on holiday. Thereafter the deceased, who did not take this as a joke, started swearing at the appellant and suggesting that the reason for his reluctance to go on holiday was because he was still seeing his former girlfriend. She became more and more violent and then took out a knife from the bedside cabinet. This knife had formerly belonged to the appellant, but he had given it to the deceased because he was worried about the security of the flat. She was lashing out with the knife and the appellant grappled with her and eventually obtained possession of the knife. At that stage they were lying on the bed. They both fell off the bed and the appellant hit his head on the floor. The next thing he remembered was arms waving about and striking one another and he was not sure if he had the knife in his hand at that time. He did not remember inflicting any wounds on the deceased. His clear recollection was of seeing the deceased lying on the floor with blood everywhere. He had no recollection of starting any fires in the flat. He remembers being in the hall picking up his bag and running out of the door. He said that he told lies to the police because he was petrified. He maintained that he was fairly calm until the struggle started and then he became angry and alarmed and lost control. This account of events was advanced as being a defence of provocation.’

The trial judge goes on to remark that the account of events given by the appellant failed to explain how there were marks of blood throughout the bedroom where plainly the struggle had ranged over a substantial area; it failed to account for the large number of wounds sustained by the deceased; it failed to account for the setting fire to the flat, and in particular of the area in which the deceased was lying; it failed to account satisfactorily for the appellant's disposal of the bloodstained clothing and the knife; and it failed to account satisfactorily for the appellant's apparently calm demeanour when seen first by the police, and the totally false, but detailed and circumstantial, account which he gave to the police at that time. The trial judge remarks that, not surprisingly, the jury rejected this account.

The trial judge points out that the ground of appeal stated in the note of appeal appears to raise the issue of diminished responsibility. He states that there was no hint of a suggestion of such a defence advanced at the trial and that there was no medical evidence as to the appellant's state of mind. He also states that nothing said by the appellant himself would indicate any mental illness or anything approaching mental illness.

The appeal called before the appeal court on 8 July 1994, when it was continued to a date to be afterwards fixed. At a subsequent hearing on 18 January 1995 the appellant sought and obtained leave to lodge additional grounds of appeal within seven days and the appeal was continued to a date to be afterwards fixed. On 20 January 1995 a fresh note of appeal was lodged containing the following ground of appeal: ‘There has been a miscarriage of justice in that there is now material available which was not available at the time of the trial and which could not have reasonably been made available, indicating that the appellant at the time of the deceased's death had a state of mind bordering on, although not amounting to, insanity with the result that his responsibility for his actions should appropriately be regarded as diminished. In any event, the court ought now to take account of such material which was not originally before the trial judge in assessing whether or not a miscarriage of justice has occurred.’

On 17 February 1995 the appeal again called before the appeal court. Counsel for the appellant drew attention to the recent decision in Church v HM Advocate. He made it clear he would wish to rely upon this decision when making his submissions. Some members of the court expressed doubts about the soundness of the decision in Church v HM Advocate and expressed the view that it might require to be reconsidered by a Full Bench. The Lord Advocate stated that, following the decision in Church v HM Advocate, it was not clear whether, where an allegation of miscarriage of justice on the basis of the existence of additional evidence which was not heard at the trial was put forward, the additional evidence required to satisfy the test laid down in Salusbury-Hughes v HM Advocate, or whether a less restricted test as formulated in Church v HM Advocateapplied. As the Lord Advocate put it, there were now two lines of authority dealing with appeals where it was sought to lead additional evidence and neither appellants nor the Crown could be sure which approach fell to be applied. In the circumstances the court agreed with the Lord Advocate that it was desirable that the matter be considered by a Full Bench and for that reason the appeal was remitted to be heard by a quorum of five Lords Commissioners of Justiciary. That hearing has now taken place.

In presenting the appeal, senior counsel, who now appeared for the appellant along with junior counsel, drew the court's attention to the current legislation dealing with miscarriages of justice on the basis of fresh evidence, and also the legislation which it had replaced. He also reminded the court of the power which the court had in disposing of appeals and he stressed that the court now had wide powers to order the hearing of new evidence and to quash a conviction if satisfied that there had been a miscarriage of justice. He then referred to the seminal case of Gallacher v HM Advocate and to a large number of cases decided after the provisions relating to appeals contained in the Criminal Justice (Scotland) Act 1980 had come into force.

Counsel recognised that in Church v HM Advocate the court had concluded that the test to be applied when it was sought to lead new evidence was less exacting than the test laid down in previous cases. He maintained that in Church v HM Advocate the court had identified the correct test, namely has a reasonable explanation been put forward for the failure of the accused to lead the evidence at the trial? He supported what had been said in Church v HM Advocate and submitted that the decision in that case should be followed.

For reasons of convenience the court decided, before considering the merits of this appeal, to hear all the submissions relating to the test to be applied to cases where it was sought to lead additional evidence relevant to an alleged miscarriage of justice and accordingly proceeded to hear the Lord Advocate on this question.

The Lord Advocate also referred to the legislation past and present and emphasised that until 1980 the test had been as laid down in Gallacher v HM Advocate. The test had been a generously expressed one but the courts had applied the test strictly. The matter had been considered by the Thomson Committee. Although Parliament had altered the law relating to fresh evidence appeals in 1980, it had not adopted the Thomson Committee's recommendation, and that was of some significance. He then made certain submissions as to the approach to be adopted in construing the present statutory provision to be found in sec 228(2) of the Criminal Procedure (Scotland) Act 1975, as amended; effect had to be given to the language used in the section. The interpretation favoured by the court in Church v HM Advocate had meant that the words in the latter part of sec 228(2) were redundant and that showed that the construction was unsound; the court had gone against the clear wishes of Parliament regarding the additional evidence which the court was entitled to hear. An aid to construction was to be found in the doctrine, expressio unius est exclusio alterius. The court should follow Salusbury-Hughes v HM Advocate and should disapprove of Church v HM Advocate insofar as it determined that the court could hear fresh evidence which was not led at the trial even though it did not meet the test contained in the second part of sec 228(2).

Having summarised the submissions made to this court, I now turn to examine the legislation and the authorities.

Section 228(1) of the Criminal Procedure (Scotland) Act 1975, as amended, confers upon any person convicted the right to appeal to the High Court inter alia against conviction.

Section 228(2) of the Act of 1975, as amended, is in the following terms: ‘By an appeal under subsec (1) of this section, a person may bring under review of the High Court any alleged miscarriage of justice in the proceedings in which he was convicted, including any alleged miscarriage of justice on the basis of the existence and significance of additional evidence which was not heard at the trial and which was not available and could not reasonably have been made available at the trial.’

The construction to be placed upon the foregoing subsection has been considered in a number of earlier cases, including Salusbury-Hughes v HM Advocate, and in the recent case of Church v HM Advocate. In Church v HM Advocate the Lord Justice-General (Hope), sitting with Lord Allanbridge and Lord Brand, decided that the court was entitled to entertain an appeal where new evidence was sought to be led even though the evidence was not evidence which was not available and could not reasonably have been made available at the trial. In effect the court decided that the stringent test laid down in the second part of sec 228(2) did not apply in all cases and that the first part of sec 228(2) was wide enough to enable the court to entertain an appeal on the basis of the existence of additional evidence which was not heard at the trial, and to hear such additional evidence in terms of sec 252(b) of the Act of 1975, provided that there was a reasonable explanation for the appellant's failure to lead the evidence at the trial. In so holding the court in Church v HM Advocate were disagreeing with the law as laid down in a number of cases, including Salusbury-Hughes v HM Advocate. In these circumstances, with all respect to the judges who sat in Church v HM Advocate, I am of opinion that that case itself should have been remitted to a Full Bench. Cases such as Salusbury-Hughes v HM Advocate were binding upon the court which sat in Church v HM Advocate. It is well established in the High Court of Justiciary that a quorum of the court is bound by a previous decision of a court of equal number (The Laws of Scotland: The Stair Memorial Encyclopaedia, vol 22, para 308). There is ample authority for the proposition that decisions of a bench of equal number are binding on the High Court of Justiciary and that such decisions can only be reviewed by a larger court: McAvoy v Cameron, per Lord Justice-General Strathclyde at p 3; Ritchie v Pirie, per Lord Wheatley at p 14.

It may be different if an earlier case was decided on the basis of legislation which is no longer in force, or if in the earlier case the court's attention was not drawn to the existence of some relevant authority or no argument was addressed to the court on the subject being considered in the later case (Cameron v HM Advocate at p 618). None of these considerations appear to me to apply to the present case and I am satisfied that, having regard to the view which they apparently held, the court in Church v HM Advocate should not have proceeded to decide the case, but should have remitted the case to be decided by five judges. However that may be, the issue which was decided in Church v HM Advocate is now being considered by this Full Bench.

In delivering the opinion of the court in Church v HM Advocate, the Lord Justice-General rehearsed the submissions which had been made to the court in that case and observed that the arguments related to the proper approach to be taken to the wording of sec 228(2) and to the scope of the powers which the High Court may exercise under sec 252 for the purposes of an appeal under sec 228(1) of the Act of 1975.

Section 252 of the Act of 1975, as amended, provides inter aliaas follows: ‘Without prejudice to any existing power of the High Court, that court may for the purposes of an appeal under sec 228(1) or 228A of this Act—…

(b) hear any additional evidence relevant to any alleged miscarriage of justice or order such evidence to be heard by a judge of the High Court or by such other person as it may appoint for that purpose.’

The Lord justice-General observed that at one stage counsel for the appellant had suggested that it was not necessary for an appellant to show that his appeal fell within the terms of sec 228(2) but that the court could exercise its power under sec 252(b) irrespective of whether the terms of sec 228(2) were satisfied. The Lord justice-General stated that the court did not agree with that submission. He stated at p 201D: ‘In our opinion sec 228(2) forms an essential part of the structure, and it is not open to an appellant to reach sec 252, as the advocate-depute put it, by the back door. Section 252 is concerned only with the powers which the High Court may exercise. The court must first be satisfied that the appeal is brought on a ground on which it is open to an appellant in terms of sec 228(2) to bring the proceedings in which he was convicted under review.’

I respectfully agree with that view, which counsel for the appellant did not seek to challenge before this court. Section 252 is designed to give the court powers which it may require for the purpose of dealing with appeals under sec 228. In my opinion, sec 252(b) confers upon the High Court power to hear additional evidence in any appeal which has been brought within the terms of sec 228(2) of the Act of 1975.

In the opinion of the court in Church v HM Advocate a detailed analysis is made of the terms of sec 228(2). With much of what the court says in that connection I am in agreement.

Thus I agree that sec 228(2) can properly be regarded as divided into two parts, with the first part being the general part in terms of which it is provided that a person may bring under review of the High Court any alleged miscarriage of justice in the proceedings in which he was convicted. The second part is the particular part which deals with any alleged miscarriage of justice on the basis of the existence and significance of additional evidence. As I read the subsection, there then follow certain requirements, namely that the additional evidence was not heard at the trial, and was not available and could not reasonably have been made available at the trial. There are a number of cases where the importance of these requirements has been emphasised. In Green v HM Advocate, which was the first fresh evidence appeal since the coming into force of the Criminal Justice (Scotland) Act 1980, Lord Justice-General Emslie, in delivering the opinion of the court, said (at p 47): ‘Let it be said at once that this ground of appeal echoes the language which is of importance in sec 228(2) of the Criminal Procedure (Scotland) Act 1975 as amended, and the first thing we have to be satisfied about is whether the additional evidence which has been submitted in the form of precognition, and which was clearly not heard at the trial, was not available and could not reasonably have been made available at the trial.’

In Cameron v HM Advocate at p 611 Lord justice-General Emslie stated: ‘What we had to decide under reference to sec 228(2) of the Criminal Procedure (Scotland) Act 1975 was whether the additional evidence which was concerned only with alleged sightings of the victim in charge (2) (Kay Wyllie) shortly before the time when she must have been killed could be regarded as evidence which was not available and could not reasonably have been made available at the trial and, further, upon a consideration of the content of precognitions of Mrs Steed, Hugh Steed, John Penman, Alexander Rennie and Isobel Green, whether the alleged additional evidence was, prima facie, of materiality.’

Subsequently he described the new evidence as having ‘passed the initial tests prescribed in sec 228(2)’.

In Salusbury-Hughes v HM Advocate at p 45 I stated: ‘Parliament has made it clear in sec 228(2) that it is not enough to found an allegation of miscarriage of justice that additional evidence of a significant nature exists. To be the basis of an alleged miscarriage of justice it must be shown that the additional evidence which was not heard at the trial was not available and could not reasonably have been made available at the trial.’

In Williamson v HM Advocate at p 59 Lord Justice-General Emslie, who was sitting with Lord Brand and Lord Allanbridge, stated: ‘With these observations in mind we have to ask ourselves, in the first place, whether we can be satisfied that the "additional evidence" relied upon by the appellant was evidence not heard at the trial, and which was not available and could not reasonably have been made available at the trial. If we are so satisfied we then have to direct our attention to the test to be applied to the additional evidence which was summarised in the opinion of the court in the case of Cameron v HM Advocate [at p 619] thus:

"‘… if the court is to find that a miscarriage of justice had occurred in an appeal such as this, it must be satisfied that the additional evidence is at least capable of being described as important and reliable evidence which would have been bound, or at least likely, to have had a material bearing upon, or a material part to play in, the jury's determination of a critical issue at the trial. If the court is so satisfied, it will be open to it to hold that a conviction returned in ignorance of the existence of that evidence represents a miscarriage of justice and it may exercise its power to authorise the bringing of a new prosecution."

’

A similar approach to fresh evidence tendered in an appeal may be seen in Mitchell v HM Advocate.

In Brodie v HM Advocate at p 379A Lord Justice-General Hope, sitting with Lord Cowie and Lord Mayfield, referred with apparent approval to what I said in Salusbury-Hughes v HM Advocate in the passage already quoted. In delivering the opinion of the court in that case, the Lord justice-General added: ‘It is only if it satisfies this test that the evidence can be said to provide a basis for an appeal on the ground of fresh evidence.’

That test was also accepted by Lord Justice-General Hope sitting with Lord Allanbridge and Lord Cowie in McCormack v HM Advocate. In the opinion of the court at p 592B, it is stated: ‘The fresh evidence must of course be additional evidence and not merely different evidence from that given at the trial. It must also be evidence which was not available and could not reasonably have been made available then, so an accused who is able to give evidence at his trial and chooses not to give evidence is unlikely to satisfy this requirement.’

In Ralton v HM Advocate Lord Justice-General Hope sitting with Lord Allanbridge and Lord Cowie, stated in the opinion of the court at p 322F: ‘Section 228(2) allows the court to have regard to the existence and significance of additional evidence which was not heard at the trial, which was not available and could not reasonably have been made available at the trial. The preliminary issue therefore which requires examination in all these cases is whether the evidence sought to be relied on as additional evidence was evidence which could not reasonably have been made available at the trial, and was not in fact available then.’

Subsequently, of the new material, it was said at p 322I: ‘Its significance is not a matter which we need to examine in the circumstances, because it would only be if we were satisfied that it was evidence which could not reasonably have been made available at the trial that it would be open to us to examine it.’

More recently in Beattie v HM Advocate Lord Justice-General Hope, sitting with Lord Allanbridge and Lord Sutherland, said at p 105E: ‘In terms of sec 228(2) of the 1975 Act, as now amended, the court also has power to have regard to evidence which was not led at the trial in considering whether or not there was a miscarriage of justice. But this provision is qualified by the requirement that it must be additional evidence which was not heard at the trial and which was not available and could not reasonably have been made available at the trial.’

In a subsequent passage, the Lord Justice-General emphasised that an accused is expected to lead all the evidence relevant to his defence at his trial and that it is too late for points which could have been taken at the trial to be raised as a ground of appeal once the trial is over. He went on to say at p 106A–B: ‘Irrespective therefore of whether an appeal is being taken under the old provisions or under the provisions introduced by the 1980 Act, the accused cannot challenge his conviction on the ground that there were defects in the Crown evidence which he could have revealed at the trial on the basis of facts known to him, or of which he could reasonably have known, at that time. He cannot allege that there was a miscarriage of justice on the ground that points were not brought out at the trial which he already knew about, or could reasonably have known about, and thus could have put at that stage to the Crown witnesses.’

Despite these clear statements regarding the construction which fell to be placed upon the language used in sec 228(2), the court in Church v HM Advocate concluded that the first part of sec 228(2) of the Act of 1975 was wide enough to enable the court to entertain an appeal on the ground of new evidence, and that the court could allow new evidence to be led even if the test laid down in the second part of sec 228(2) was not satisfied; it would suffice that the appellant had given a reasonable explanation for his not having led this evidence at the trial.

It will be observed from what I have said about the composition of the courts which have dealt with the proper approach to be taken to sec 228(2), that all three judges in Church v HM Advocatehave been members of courts which have in the past supported the construction set out in Salusbury-Hughes v HM Advocate. With all respect to these judges, they do not appear to me to have explained in Church v HM Advocate why they have altered the views which they previously expressed.

The critical question which must now be determined in this appeal is whether the conclusion of the court in Church v HM Advocate was soundly based.

The issue raised being one of statutory construction, the normal rules of statutory construction must be applied. As always, the object is to ascertain the intention of the legislature as expressed or implied by the statute itself. Where the meaning of a statutory provision is clear and explicit, effect must be given to it. ‘A construction which would leave without effect any part of the language of a statute will normally be rejected’ (Maxwell, Interpretation of Statutes (12th edn), p 36). ‘It is not, however, competent to a judge to modify the language of an Act of Parliament in order to bring it into accordance with his own views as to what is right or reasonable’ (Craies, Statute Law (7th edn), p 91).

In delivering the opinion of the court in Church v HM Advocate, the Lord Justice-General has set out the history of the statutory provisions now under review and since that is important, it is worth repeating. Section 2(1) of the Criminal Appeal (Scotland) Act 1926 provided that the appeal court was to allow an appeal against conviction if they thought, among other things, that on any ground there was a miscarriage of justice. That provision was not qualified or restricted in any way by the statute. Under sec 6 of the same Act the court had a discretion to admit fresh evidence if they thought it necessary or expedient in the interests of justice. In Slater v HM Advocate at p 102, Lord Justice-General Clyde, in delivering the opinion of the court, stated in relation to additional evidence which the appellant had been allowed to lead by virtue of sec 6 of the Act of 1926: ‘[I]t is impossible to leave out of view (1) the fact—if it be the fact—that it might have been discovered and produced by the appellant and his advisers at the trial; and in any case (2) that at the date of the trial it might have been answered by other evidence (given in chief or in cross by another witness) which is now irretrievably lost.’

In Gallacher v HM Advocate at p 45 Lord Justice-Clerk Thomson, who delivered the opinion of the court, said: ‘We might observe, however, that the first question which the Court is bound to ask of any appellant who tenders fresh evidence is why it was not tendered at the trial. We do not propose to canvass the issue of what might or might not be an adequate explanation. No general rule can possibly be laid down and the explanation in any particular case must be viewed, not in the light of any technicality or rule of practice or of procedure, but solely in the light of the dominating consideration that we may order new evidence if we think it necessary or expedient in the interests of justice.’

The Thomson Committee on Criminal Appeals in Scotland (First Report) August 1972 (Cmnd 5038) considered the test of the admissibility of fresh evidence as laid down in Gallacher v HM Advocateand contrasted that with the position in England. They concluded that the Scottish test was too restrictive, since its application made the admission of fresh evidence in practice very nearly impossible. They accordingly recommended that sec 6 of the Act of 1926 should be replaced by a section similar to sec 23 of the Criminal Appeal Act 1968 for England and Wales. Section 23(2) provides that where evidence is tendered to the Court of Appeal the court shall: ‘unless they are satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise their power of receiving it if: (a) it appears to them that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (b) they are satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it’.

In the Thomson Committee Report, para 29, the committee sets forth the observations of Lord Justice-Clerk Thomson in Gallacher which I have already quoted. Paragraph 30 is in the following terms: ‘We respectfully agree with the Lord justice-Clerk that what amounts to a reasonable explanation for failure to adduce evidence must depend on the facts of each case and that the overriding consideration must always be the interests of justice, as is indeed provided in sec 23(1). Our own expectation is that the Appeal Court will be reluctant to admit evidence which was available, or could with reasonable diligence on the part of the appellant's advisers have been made available, at the trial, and that they will seldom admit evidence which was not adduced because of a deliberate tactical decision by the defence to withhold it. We accordingly recommend that sec 6 of the 1926 Act be replaced by legislation similar to sec 23 of the 1968 Act.’

It will thus be seen that the recommendation of the Thomson Committee was that it should be made a requirement for the leading of additional evidence which had not been heard at the trial that there was a reasonable explanation for the failure to adduce it.

As the Lord Justice-General points out in the opinion of the court in Church v HM Advocate, the provisions of secs 2 and 6 of the Act of 1926 were re-enacted in secs 252 and 254 of the Criminal Procedure (Scotland) Act 1975 and it was not until the provisions of that Act were amended by the Criminal Justice (Scotland) Act 1980 that the legislation in its present form was introduced. As he observes, no explanation appears from Hansard as to why the wording of sec 23(2) of the 1968 Act was not adopted. The Lord Justice-General goes on to express the view that the formula which appears in sec 228(2) appears to have been modelled on the decision of the Court of Appeal in R v Beresford. This may well be so, but I would have thought that the immediate source was more likely to be para 30 of the Thomson Committee Report. However that may be, what the Thomson Committee recommended was an alteration to the legislation which would have made it a requirement for the leading of additional evidence which had not been heard at the trial that there was a reasonable explanation for the failure to adduce such evidence. In the Act of 1980, however, Parliament did not accept that recommendation; they did not adopt the language suggested by the Thomson Committee; instead they enacted sec 228(2) in the terms which have already been noted. In my opinion, it is clear that Parliament intended to impose some restriction upon the leading of additional evidence which had not been heard at the trial. It is also my opinion that that restriction is to be found in the second part of sec 228(2). I am satisfied that Parliament has thus made it clear that if additional evidence which was not heard at the trial is to be adduced, it can only be adduced if it is evidence which was not available and could not reasonably have been made available at the trial. That appears to me to be the plain import of the language which Parliament has used in sec 228(2).

The court in Church v HM Advocate stated at p 204B–C: ’In our opinion the first part of sec 228(2) is wide enough to enable the court to entertain an appeal on that ground and, as the power of the High Court in sec 252(b) to hear any additional evidence relevant to any alleged miscarriage of justice is not restricted or qualified so as to confine its exercise only to the circumstances described in the second part of that subsection, it may be exercised so that the court may hear that evidence.’

With all respect to those judges who sat in Church v HM Advocate, I am of opinion that that proposition is unsound. The court in Church v HM Advocate opined that the function of the word ‘including’ in sec 228(2) was to enlarge the preceding part of the subsection for the avoidance of doubt by defining one particular example of a miscarriage of justice which may be brought under review of the High Court. As the Lord Advocate pointed out, what is mentioned in the first part of sec 228(2) is not merely ‘any alleged miscarriage of justice’ but ‘any alleged miscarriage of justice in the proceedings in which he was convicted’. Parliament may have gone on to provide ‘including any alleged miscarriage of justice on the basis of the existence and significance of additional evidence which was not heard at the trial’ in case it was thought, in the absence of such an express provision, that the latter might not be regarded as a miscarriage of justice in the proceedings, the proceedings being the stage which comes to an end on conviction. The Lord Advocate further contended that these words of express reference to alleged miscarriage of justice on the basis of the existence and significance of additional evidence which was not heard at the trial must be taken along with further qualifying words, namely ‘which was not available and could not reasonably have been made available at the trial’.

Whether or not the words ‘any alleged miscarriage of justice in the proceedings in which he was convicted’ have the significance for which the Lord Advocate contended, I am satisfied that the final sixteen words of sec 228(2) constitute a requirement which must be satisfied before the court can hear additional evidence under this subsection. I accept that the first part of sec 228(2) is expressed widely, and that the fact, that there follows a passage beginning wth the word ‘including’ shows that Parliament is proceeding to deal with the particular situation if any alleged miscarriage of justice on the basis of the existence and significance of additional evidence which was not heard at the trial. Parliament then proceeds to impose a further requirement, namely that the evidence was not available and could not reasonably have been made available at the trial. I am not persuaded that it is a reasonable construction to place upon sec 228(2) that these words should be wholly disregarded. In my opinion, Parliament has enacted clear provisions as to the requirements that must be satisfied if a miscarriage of justice is based upon the existence and significance of additional evidence which was not heard at the trial, and the court is bound to give effect to what Parliament has said.

As I understand the decision in Church v HM Advocate,the court proceeded to consider whether the evidence upon which the appellant sought to rely was not reasonably available to him at the trial. They stated that that question was a difficult one, but, as I understand it, they went on to conclude that, looking at the matter objectively, the evidence in question could reasonably have been made available at the trial. In other words, they held that one of the requirements contained in the second part of sec 228(2) had not been complied with. Somewhat surprisingly the court in Church v HM Advocate then [at p 205D] went on to determine: ‘that it is open to this court to hear the evidence under reference to the first part of sec 228(2) and that it is not necessary for us in this case to decide whether, as required by the more exacting text laid down in the second part, it was not available and could not reasonably have been made available at the trial’.

In my opinion it was not open to the court in Churchso to determine. The test laid down in the second part of sec 228(2) must be complied with and there is no alternative test to be found in the first part of the subsection. Moreover, as I understand the opinion of the court in Church v HM Advocate, the court then proceeded to hold that the accused should be allowed to lead the evidence since he had given a reasonable explanation for his not having led this evidence at the trial. With all respect to the judges in Church v HM Advocate, I do not understand how they came to apply ‘a reasonable explanation’ test. Section 228(2) prescribed requirements but did not stipulate that there must be ‘a reasonable explanation’. The Thomson Committee had recommended that sec 6 of the Act of 1926 should be replaced by legislation containing ‘a reasonable explanation’ test. Parliament, however, did not adopt that recommendation and must be taken to have rejected it. In these circumstances I do not see how, on any sound rule of construction, sec 228(2) can be construed as though it contained a ‘reasonable explanation’ test. In Church v HM Advocate the judges give no explanation as to why a ‘reasonable explanation’ test has been adopted. Even if that may be regarded as the test suggested by Lord Justice-Clerk Thomson in Gallacher v HM Advocate, I see no justification for concluding that that test can have survived the enactment of sec 228(2) of the Act of 1975, as amended. Since Parliament has provided a test in sec 228(2), I am of opinion that there can be no question of some other test being applied which is different from the one which Parliament has enacted.

As the court in Church v HM Advocate correctly recognised, the test laid down in the second part of sec 228(2) is more exacting than the ‘reasonable explanation’ test which they considered could be applied under reference to the first part of sec 228(2). The effect of their decision is thus to give the test laid down in the second part of sec 228(2) no content. If they are correct, then, if new evidence passes the ‘reasonable explanation’ test which the court in Church v HM Advocate have held would apply under the first part of sec 228(2), there would never be any need for it to pass the more exacting test in the second part of sec 228(2). Conversely, if new evidence failed to pass the ‘reasonable explanation’ test, it could never pass the more stringent test contained in the second part of sec 228(2). In my opinion, the fallacy in the approach of the judges in Church v HM Advocateis that they have construed sec 228(2) as if the last sixteen words in the subsection were not there. I am not persuaded that a construction which renders part of a section otiose or redundant is a sound one.

The Lord Advocate, under reference to Bennion, Statutory Interpretation (2nd edn), pp 876–877, also founded upon the rule contained in the brocard expressio unius est exclusio alterius—the special mention of one thing operates as the exclusion of things differing from it. I think there is force in this submission. In Bennion it is stated: ‘The most common technique of extending the indisputable meaning of a term is by the use of an enlarging definition that is one in the form "A includes B". Where the stated B does not exhaust the class of which it is a member, the remaining class members are taken to be excluded from the ambit of the enactment.’

In the present case the class enacted is additional evidence, but it is additional evidence of a defined kind and, by implication, additional evidence that does not fall within the definition is excluded. This is a further reason for concluding that the construction placed upon sec 228(2) by the court in Church v HM Advocate is wrong.

In the penultimate paragraph of the opinion of the court in Church v HM Advocate the court explained that they were ‘looking at the matter more broadly’ and concluded that it was open to them to hear the evidence without deciding whether the test laid down in the second part of sec 228(2) had been met. I am aware that in recent years there has been criticism of the approach which the court has taken towards the leading of additional evidence in appeals based upon allegations of miscarriage of justice on the basis of the existence of additional evidence which was not heard at the trial. However, whatever may have been the position prior to the passing of the Act of 1980, since that Act came into force it is Parliament and not the court which has imposed restrictions upon the leading of additional evidence in such circumstances. It should be observed, however, that this matter is being reviewed by the government. In February 1994 the Scottish Office Home and Health Department issued a Consultation Paper entitled Sentencing and Appeals. In para 6.36 it was stated inter alia: ‘The Government would welcome views on the following issues: whether the Appeal Court should be prepared to receive a change of statement by a witness, where there is some reasonable explanation why the witness gave the previous evidence from which he now wishes to depart (paras 6.10 to 6.17); whether the terms of sec 228(2) should be amended to allow the Appeal Court to hear additional evidence which was available at the time of the trial where there is a reasonable explanation for the failure to adduce the evidence, and, if so, what form the statutory test should take (paras 6.18 to 6.25).’

Subsequently the government issued a White Paper entitled Firm and Fair—Improving the Delivery of Justice in Scotland.In para 6.6 of the White Paper it was stated: ‘The Government recognises that change to the criteria for consideration of appeals raised difficult issues of law and procedure, and that the precise nature of any changes would require careful consideration if the changes were not to undermine the general principle of finality of criminal proceedings and overload the Appeal Court with unmeritorious appeals. For the time being the Government does not propose to bring forward proposals for legislative change, but the issues will be considered further by the Committee along with possible changes to procedures for handling alleged miscarriages of justice.’

The reference to ‘the Committee’ is a reference to an independent committee which the government decided to set up to consider inter alia consideration of appeals. A committee has since been set up under the chairmanship of Sir Stewart Sutherland, the Vice-Chancellor of Edinburgh University. The terms of reference of the committee include examining the current criteria for consideration of appeals by the appeal court in Scotland and consideration of possible changes to the statutory criteria contained in secs 228 and 442 of the Criminal Procedure (Scotland) Act 1975. The committee are also required to make recommendations on these matters.

It may be that this committee will propose changes to the terms of sec 228(2) but, unless and until they do so, the court is required to apply the terms of that subsection as presently enacted. If any change is to be made to the provisions of sec 228(2) of the Act of 1975, that is a matter for Parliament and not for the court.

For the foregoing reasons I would move your Lordships to disapprove of Church v HM Advocate insofar as it held that the power of the High Court to hear any additional evidence relevant to any alleged miscarriage of justice was not restricted so as to confine its exercise only to the circumstances described in the second part of sec 228(2), and to affirm that the law in this connection is correctly stated in Salusbury-Hughes v HM Advocate and the subsequent cases in which that decision was followed.

Being now satisfied as to the proper construction of sec 228(2), it is necessary to consider the merits of this appeal. In presenting the appeal, counsel sought to support the ground of appeal contained in the fresh note of appeal. In this connection he drew attention to the terms of two reports provided by Dr Andrew Reid, a consultant psychiatrist, and two affidavits, one by the appellant and the other by the solicitor who acted for him in connection with his trial.

It is clear from these documents that prior to the trial the appellant's then solicitor obtained a psychiatric report upon the appellant from Dr Andrew Zealley, a consultant psychiatrist, and a short report from the appellant's general practitioner. In the latter report it was stated that there was nothing in his notes to suggest any particular medical problems that might account for his present predicament other than that he had a considerable history of migraine. In his report Dr Zealley stated that the appellant suffered from no mental disorder, either mental illness or mental handicap. He was sane and fit to plead. In the final paragraph of his report he expressed the view that the appellant had been chronically taunted by the deceased over a number of months and, no doubt, this might have had some relevance to the matter of provocation.

Dr Reid, for the purposes of his first report, examined the appellant on 27 June and 20 July 1994, that is, after the appellant had been convicted. For the purpose of his supplementary report, Dr Reid again examined the appellant on 9 March 1995. In his first report, dated 15 August 1994, Dr Reid said that he did not find the appellant to be suffering from any major mental illness and that he would agree that at the time of his trial he was sane and fit to plead. He went on to say that the death of the deceased had taken place against a background of great emotional stress for her and the appellant. In his conclusion Dr Reid stated: ‘I would accept that there was in Elliott at the time of Irene's (the victim's) death "a state of mind … bordering on, although not amounting to insanity", with the result that his responsibility for his act should appropriately be regarded as diminished.’

What is, of course, significant is that Dr Reid in that report negatived any major mental illness and did not suggest that the appellant suffered from any mental disease or disorder.

In his supplementary report, Dr Reid sought to expand and elaborate on his original report on the basis of further information and investigations which he had carried out. He proceeded to say: ‘Nothing has emerged from these further investigations to dissuade me from my view that Elliott was, at the time of Irene Martin's death, in a state of acute emotional stress sufficient to diminish his responsibility for his act. In that connection, the ICDIO classification of mental and behavioural disorders, which is the up-to-date classification of such disorders in use in the UK, does recognise acute stress reactions and post-traumatic stress disorders, and there are features of these disorders present in Elliott's behaviour and state of mind at the time of Irene Martin's death, and in his behaviour subsequently.’

Counsel accepted that Dr Zealley's report prior to the trial gave him no hint that a defence of diminished responsibility could be put forward. However, he maintained that it was clear from Dr Reid's reports that there was an element of mental disorder present which would have made it difficult for the appellant to give proper instructions regarding a defence of diminished responsibility. In these circumstances he submitted that the proper conclusion was that Dr Reid's evidence was not available and could not reasonably have been made available at the time of the trial or, alternatively, that there was a reasonable explanation for not having led that evidence at the trial. He accordingly submitted that the evidence satisfied the test laid down in sec 228(2) and that the court should proceed to hear the evidence of Dr Reid and, if need be, the evidence of the appellant and his solicitor.

The Lord Advocate maintained that, whatever test was to be adopted, the appellant's application to have additional evidence led could not succeed.

In Cameron v HM Advocate the court began by considering whether the additional evidence which was sought to be led passed the initial tests prescribed in sec 228(2). If it did, the additional evidence had still to pass a further test, namely it had to be shown to be evidence of such significance that a verdict which was reached in ignorance of it must be regarded as a miscarriage of justice. In some cases where the appellant has sought to have additional evidence led, the court has disposed of the appeal upon the view that the evidence could on no view pass the latter test of being evidence of such significance that a verdict reached in ignorance must be regarded as a miscarriage of justice.

In the present case the Lord Advocate referred to both these tests. He submitted that the evidence now sought to be led could not be regarded as evidence which was not available and could not reasonably have been made available at the trial. In view of what was stated in the two affidavits, it was plain that the issue of diminished responsibility had been considered by the defence prior to the trial. In his own affidavit the appellant states that he told his then solicitor that he wished the defence of diminished responsibility to be used at his trial. The appellant's then solicitor, however, in his affidavit explains that the appellant did no such thing. The solicitor states that he himself brought up with the appellant the issue of diminished responsibility and discussed it with him at very great length.

It thus appears quite plain on the basis of the affidavits that the possible defence of diminished responsibility was considered prior to the trial. It is clear, particularly from the affidavit of his then solicitor, that the appellant's mental state was under active consideration and that steps were taken to obtain a report from Dr Zealley. It is manifest that both the appellant and his then solicitor had applied their minds to the issue of diminished responsibility and, in these circumstances, the evidence now tendered cannot be regarded as evidence which was not available and could not reasonably have been made available at the trial.

In any event, I am satisfied that the evidence tendered falls far short of what would be required to support a plea of diminished responsibility. In my opinion the evidence of Dr Reid and of what is contained in the two affidavits cannot be described as ‘important and reliable evidence which would have been bound, or at least likely, to have had a material bearing upon, or a material part to play in, the jury's determination of a critical issue at the trial’ (Cameron v HM Advocate, p 619).

Putting it at its highest, Dr Reid's evidence is that the appellant at the time of the crime was in a state of acute emotional stress, due to the way in which his relationship with the deceased was going at the time. Merely to say that some classification of mental and behavioural disorders recognises acute stress reactions is different from affirming that an individual has some form of mental disease or mental disorder. In my opinion, it is plain from Dr Reid's reports that he is not able to say that the appellant was at the time when the crime took place suffering from any mental disease or disorder.

There have been a number of recent cases where the court has considered what evidence is required to entitle a jury to reduce a charge from murder to culpable homicide (Connelly v HM Advocate;Martindale v HM Advocate). In the latter case at p 703C I stated: ‘The test is clearly laid down and as Lord Justice-Clerk Alness himself said, running through every case there must be some form of mental illness or mental disease. Referring to the matter in the case of Connelly the Lord Justice-General said of Lord-Justice Clerk Alness's dictum the following at p 509C:

"The passage must be read as a whole with all its elements, and it must be read together with the remark at the end that running through all the cases one can see that there must be some form of mental disease. In my opinion it is the presence or absence of that particular characteristic, which has itself been variously described, which marks the borderline between what is acceptable and what is not."

Subsequently, in his opinion, the Lord Justice-General said this [at p 509C]:

"The question for the expert medical witness will be whether there is something in the mental condition of the accused which can properly be described as a mental disorder or a mental illness or disease."

In Williamson v HM Advocate it was observed that an extreme form of personality disorder was not sufficient to satisfy the test of diminished responsibility and it was reaffirmed that before there can be diminished responsibility there must be some form of mental illness or mental disease.

Since the evidence which Dr Reid could give does not support the proposition that at the material time the appellant was suffering from a mental illness or a mental disease, I am clearly of opinion that his evidence does not satisfy the test laid down in Cameron v HM Advocate.

In these circumstances I am satisfied that the appellant has failed to demonstrate that there has been any misscarriage of justice on the ground put forward in his note of appeal and I would accordingly move your Lordships to refuse the appeal against conviction.

LORD MCCLUSKEY —The principal issue in this appeal is one of statutory interpretation. In relation to that issue, our only responsibility is to ascertain what Parliament intended when, in 1980, it amended and reworded sec 228 of the Criminal Procedure (Scotland) Act 1975. That section has since been further amended, but subsec (2), which is the subsection under consideration in this appeal, is still in the same terms as it was when enacted in 1980. I need not quote it in full as your Lordship in the chair has already done so. I repeat only the critical words, which provide that a person convicted on indictment ‘may bring under review of the High Court any alleged miscarriage of justice in the proceedings in which he was convicted, including any alleged miscarriage of justice on the basis of the existence and significance of additional evidence which was not heard at the trial and which was not available and could not reasonably have been made available at the trial’.

I agree with the construction of this section which your Lordship favours. But I also think it is possible to approach the problem in a different way.

The statutory provisions which this subsection replaced, although derived from the 1926 Act, were (as permitted by the Consolidation of Enactments (Procedure) Act 1949) first re-enacted in a different form in the consolidation statute, the Criminal Procedure (Scotland) Act 1975. In that Act, as first enacted in 1975, section 228 conferred certain rights of appeal upon a person convicted on indictment; in some instances leave to appeal was required; in some, not: sec 252 listed powers available to the High Court in the appeal proceedings: sec 254 prescribed the functions of the High Court in relation to the determination of appeals under Part I of the Act. I draw attention to the terms of sec 254 as first enacted because I wish to emphasise that it used the terms ‘a miscarriage of justice’ and ‘no substantial miscarriage of justice’ without further qualification, in either case. In the 1980 Act substantial amendments were made and the contents of these three sections were differently distributed among the sections that were substituted for them. Thus ‘miscarriage of justice’ came out of sec 254 but these words were inserted into sec 228(2). But, as will be seen by comparing the expression used in the 1975 Act, as originally enacted, with what replaced it in 1980, the expression ‘miscarriage of justice’ was not repeated in that simple and unqualified form; it was replaced by the term ‘miscarriage of justice in the proceedings in which he was convicted’. It is clear that ‘the proceedings’ referred to in the 1980 version were solemn proceedings commencing about the time of the application for a petition warrant and continuing beyond the stage of conviction, to include the passing of a sentence (including a deferred sentence) or the making of any other order of a kind specified in subsec (1).

Although, as your Lordship has noted, the Thomson Committee gave consideration to appeal procedures in solemn cases, it is absolutely clear that in 1980 Parliament—at least in relation to additional evidence—did not proceed upon the basis of the Thomson Committee recommendations in choosing the wording of the relevant solemn appeal provisions to replace those in the consolidation statute; and, in particular, it did not, in enacting the substituted sec 228(2), choose wording derived from the recommendations of the Thomson Committee. We must, therefore, construe the words in sec 228(2), as enacted in 1980, without positive assistance from any travaux préparatories. Nor were we invited to seek any assistance in the columns of the official reports of Parliamentary debates on the Criminal Justice (Scotland) Bill 1980. (The opinion of the court in the case of Church v HM Advocate suggests that there is no assistance to be found there anyway.)

It is perhaps not immediately clear why, in 1980, Parliament chose to employ the fuller expression, ‘miscarriage of justice in the proceedings in which he was convicted’ (my emphasis); but it did. We cannot ignore this substantial change in the wording. It could hardly have happened by accident. We have to discover the meaning and effect of the new wording.

In my opinion, the change in the wording was quite deliberate. Under the terms of the first part of the reworded sec 228(2), an appellant was to be restricted to seeking to bring under review only alleged miscarriages of justice in the proceedings in which he was convicted. Thus, as the Lord Advocate submitted, the wording of the first part of sec 228(2), if it had stood alone, would have restricted any review by the High Court to happenings in or features of the proceedings themselves. Such happenings or features would be discoverable only by an examination which would not necessarily be confined to the official records of those proceedings. Such ‘internal’ matters might include, for example, errors by the trial judge in relation to the admission or exclusion of evidence, or illegal acts by the prosecutor, such as asking the jury to draw inferences adverse to the accused from his not having giving evidence on oath in the trial or by deliberately and improperly referring to previous convictions of the accused person. They might also include procedural errors of various kinds and any improper conduct inconsistent with the exercise of judicial impartiality by the judge or by the jury—one thinks of the recent allegation that members of a jury in England used an Ouija board to assist them in their deliberations. What they would all have in common would be that they were events in the proceedings.

The alternative to this view would be that the words ‘in the proceedings in which he was convicted’ placed no such restriction upon the matters that the High Court might scrutinise to discover if a miscarriage of justice had occurred. If the wording placed no such restriction, the High Court could be invited to go outside the concluded proceedings to discover matters which might show that the result of the proceedings constituted a miscarriage of justice. On that view, even if the whole proceedings, from beginning to end, were conducted impeccably and free of any taint that was capable of being characterised as potentially productive of injustice, an appellant would none the less still be able to bring under review in the High Court some event or circumstance, not forming any part of the proceedings, but lying wholly outwith those proceedings, being an event or circumstance of such a character as to warrant the conclusion that the conviction, sentence or other disposal constituted a miscarriage of justice.

It is not difficult to figure examples of matters external or extraneous to the proceedings which might show that the conviction or sentence was unjust. One which was discussed at the hearing of the appeal was this. After the conviction of an accused, a person who had played no part in the trial might go to the police and reveal, for the first time, that he had observed—and even filmed—the whole events giving rise to the charge in the indictment, that he had been afraid to come forward earlier, but that he had decided to do so after the conviction of the accused person because he now realised that his evidence, supported by his film, could demonstrate incontrovertibly that the accused had not committed the crime of which he had been convicted in the proceedings. Similarly, after the trial, a person who had played no part in the trial, and had not even been mentioned in it, might go to the authorities and swear an affidavit to the effect that he had learned of the conviction of the accused, that he could no longer keep silent and that it was he, not the convicted accused, who had committed the crime in question. This was what happened in Mitchell v HM Advocate (the person was Chapman—see p 507F), although ultimately Chapman's evidence played no part in the final decision of the court in that case. More important, however, is the case of Boyle v HM Advocate, which provides a striking example of circumstances external to and not forming any part of ‘the proceedings’ but none the less of such a character as to disclose that the end product of the proceedings was a miscarriage of justice. Boyle, after repeatedly confessing to the crime, pled guilty by letter in terms of sec 102 of the 1975 Act and was sentenced to nine years' imprisonment. Thereafter renewed investigations into the case disclosed that he could not have committed the crime and was wholly innocent of the charge to which he had pled guilty. The proceedings up to and including the sentencing were in all procedural senses flawless. In that context, holding that a substantial miscarriage of justice had occurred, though not in the proceedings, Lord Cameron, delivering the leading opinion, said, at p 37: ‘The Statute provides that the Court shall allow the appeal if they think … "that on any ground there was a miscarriage of justice". This phrase is to be contrasted with the two earlier grounds upon which an appeal shall be allowed which relate respectively to the quality of evidence or wrong decision of any question of law. From this it may legitimately be inferred that a miscarriage of justice therefore may be established from circumstances which lie outside the limits of the actual proceedings themselves and the jurisdiction of the Court in this last instance is not to be confined solely to consideration of the circumstances of the proceedings themselves.’

Thus the unqualified expression ‘miscarriage of justice’ in the 1926 Act (and the 1975 Act as originally enacted) opened the door to an examination of circumstances whether or not they could be said to ‘lie outside the limits of the actual proceedings themselves’; and the distinction between a miscarriage of justice established from ‘circumstances which lie outside the limits of the actual proceedings themselves’ and a miscarriage of justice in ‘the proceedings themselves’, was authoritatively recognised shortly before Parliament came to enact the reworded sec 228(2) in the Criminal Justice (Scotland) Act 1980.

In these circumstances, faced with a choice between the view that the words ‘in the proceedings in which he was convicted’ are really otiose, because no miscarriage of justice, whatever its character, could ever arise except in those proceedings, and the view that these words must be given some content, I prefer the view that these words are not mere surplussage. They were not in the 1926 Act and were added deliberately by Parliament in 1980. Goven the observations by Lord Cameron in the leading opinion in Boyle, which Parliament must have had in mind, it appears to me that the first part of the new sec 228(2), down to the words ‘proceedings in which he was convicted’ was deliberately intended to restrict the High Court's review to an examination of events, circumstances and features of the actual proceedings in which the appellant was convicted. On that view, if the provision had concluded with the words, ‘in which he was convicted’, it would, in my opinion, have been impossible for the High Court to have regard to any circumstance which was wholly extraneous to the proceedings themselves. Thus an appeal on the grounds advanced in Boyle could not have been entertained under a provision in those restricted terms.

It would, of course, have been a retrograde step, and quite wrong, to compel the High Court, when considering an appeal, to shut its eyes to the discovery of circumstances emerging outwith the proceedings themselves if they were circumstances indicative of the fact that the conviction or sentence was unjust. In my opinion, Parliament did not intend to restrict the review jurisdiction of the High Court in such a way. It quite deliberately did not end subsec (2) with the words ‘the proceedings in which he was convicted’, but added the forty words beginning ‘including’—the newly worded additional evidence provision. This addition was intended to permit the High Court to conclude, if necessary on the basis of material wholly extraneous to the proceedings themselves, that there had been a miscarriage of justice. The new wording replaced that originally contained in the 1926 Act, no doubt because of the restrictive interpretation and application of the 1926 Act in cases such as Gallacher v HM Advocate and Higgins v HM Advocate.

With this new provision in sec 228(2) there would be no difficulty in bringing under review a conviction if there were discovered circumstances of the kind mentioned in the three examples discussed above, namely the new crucial eyewitness, the confession by the real culprit, or the discovery that the accused had entered a wholly false ‘guilty’ plea. Indeed, the case reports since the 1980 Act came into force—including Mitchell—abound with examples of recourse to the second part of the section for exactly that purpose, the purpose of informing the court of the discovery of relevant circumstances extraneous to the proceedings. In McLay v HM Advocate a Full Bench held unanimously that evidence which was not even in existence at the time of the trial (such as a confession of sole guilt made for the first time only after the trial, by a person other than the convicted accused) could constitute additional evidence within the meaning of sec 228(2). Plainly, evidence that came into existence only after the trial, conviction and sentence could not be something in the proceedings.

In my opinion, therefore, the true significance of the second part of sec 228(2), namely the phrase introduced by the word ‘including’, is that it was intended to add to the concept of ‘any alleged miscarriage of justice in the proceedings in which he was convicted’ contained in the first part of the subsection. It was intended to provide a route—but the only route—by which the High Court could take note of an alleged miscarriage of justice said to derive from the existence of evidence not heard at the trial.

I have already indicated that I agree with the fuller analysis by your Lordship in the chair of the relationship between the first and second parts of the subsection and as to the application of the familiar rules of statutory construction to it. Put at its simplest, it is difficult to conceive of any reason why Parliament should go to the trouble of adding, in the final forty words of the subsection, a method of placing additional evidence before the court, being a method which could be employed only if the various obstacles set forth within the provision were overcome—particularly the obstacle of establishing that the additional evidence was not available and could not reasonably have been made available at the trial—if it was open to an appellant under the first part of the subsection to lead additional evidence without having to overcome these obstacles. In my opinion, there is no doubt whatsoever about the test to be used in applying the additional evidence provisions contained in the latter part of subsec (2): it is the test formulated in Salusbury-Hughes and applied in other cases referred to by your Lordship in the chair. It is not necessary for me to express any view as to whether or not those are applications that I would approve of. It appears to me that the concept of reasonableness introduced in the last eleven words of the subsection is a flexible concept and that the correct test is capable of being applied more indulgently than it has sometimes been applied. Indeed I consider that in some cases the test may have been applied less severely than in some others. However, the application of the test to different and unique sets of circumstances becomes a matter of judgment in each case. The fact that, in some cases, the judgment might be thought to have been relatively harsh could not warrant adopting a novel, unprecedented and unsupportable construction of the first part of the subsection.

In the whole circumstances, I agree with your Lordship in the chair that the court in Church v HM Advocate proceeded upon a faulty construction of sec 228(2) and that the decision must be overruled.

On the other matters raised by this appeal I agree with your Lordship in the chair and have nothing to add.

LORD MORISON —Since the amendment to sec 228 of the 1975 Act was introduced by sec 33 of the Criminal Justice (Scotland) Act 1980, subsec (2) of that section has, until the decision in Church, consistently been construed as meaning that if the existence of additional evidence is founded on in an appeal against conviction, it must be evidence which was not available and could not reasonably have been made available at the trial. The decision in Church that sec 228(2) allows consideration of additional evidence if a ‘reasonable explanation’ is given for an accused not having led the evidence at his trial appears to me to be inconsistent with previous authority, for example Salusbury-Hughes v HM Advocate, in which it was stated by the Lord Justice-Clerk at p 45 that: ‘To be the basis of an alleged miscarriage of justice it must be shown that the additional evidence which was not heard at the trial was not available and could not reasonably have been made available at the trial.’

In my opinion the words used in sec 228(2) cannot bear the meaning put on them by the court in Church. If additional evidence is admissible at an appeal when ‘a reasonable explanation’ has been given for it not having been led at the trial, the provision dealing with the availability of such evidence is superfluous. The latter provision must be assumed to have some content and it only has content if it is intended to restrict the court's consideration of additional evidence to cases in which the evidence was not and could not reasonably have been made available at the trial. Further, in accordance with the principle expressio unius exclusio alterius, the fact that such express provision has been made clearly excludes by implication any right of appeal based on additional evidence in cases where the requirement cannot be satisfied. The reason why an alleged miscarriage of justice based on the existence of additional evidence is expressed as being ‘included’ in the general provision relating to a ‘miscarriage of justice in the proceedings’ is because otherwise there might be doubt whether it falls within that general description.

In my opinion therefore it is clear from the wording of the subsection that the intention of the legislature was to restrict the court's entitlement to consider additional evidence as I have held. That intention seems to me to be quite understandable in view of the fact that the 1980 Act also introduced amendment to sec 254 of the 1975 Act, which enabled the court to grant authority to bring a new prosecution and thereby widened the test which previously had to be applied if an appeal based on additional evidence was to be allowed (ie, that the new evidence would have produced a contrary result): see Cameron v HM Advocate. But if confirmation of what I have held to be the intention of the legislature is thought necessary, it is provided by the fact that in similar legislation, introduced for England by sec 23 of the Criminal Appeal Act 1968, evidence may be tendered on appeal if the court inter alia is ‘satisfied that it was not adduced [at a trial] but there is a reasonable explanation for the failure to adduce it’.

It is clear that in the legislation introduced for Scotland following the report of the Thomson Committee, the legislature rejected their express recommendation that legislation for Scotland should be in terms similar to those in which sec 23 of the English Act had been enacted and therefore rejected the view expressed in Church that additional evidence should be admitted if a ‘reasonable explanation’ was given for failure to adduce it at the trial.

I consider accordingly that the decision in Churchshould be disapproved insofar as it proceeds on a construction of sec 228(2). Applying the availability test to the circumstances of the present case, in my opinion it is not satisfied in relation to the reports of Dr Reid. According to the affidavit of the appellant's solicitor, the question of diminished responsibility was discussed before the trial at great length and a psychiatrist's report was obtained. The possibility of a defence based on diminished responsibility was obviously carefully considered, but it was decided not to pursue that possibility. In these circumstances Dr Reid's opinion cannot be regarded as evidence which was not available and could not reasonably have been made available at the trial. I should add that, in any event, the opinion expressed in his reports does not seem to me to support the view that the appellant was suffering from a mental disorder or illness or disease when the crime was committee, in the sense that these conditions are to be understood as justifying a plea of diminished responsibility.

I therefore agree with your Lordship that the appeal should be refused.

LORD MORTON OF SHUNA —I agree with your Lordship in the chair that this appeal falls to be refused for the reasons stated by your Lordship. In view of the fact that the present case was referred to a court of five judges to consider the circumstances in which new evidence should be allowed to be heard, with particular reference to the opinion of the court in Church v HM Advocate, I consider it appropriate if I explain very shortly my own views on this matter, which are mainly, if not entirely, matters of statutory interpretation. I agree that the decision in Churchrequires to be disapproved.

The present provisions regarding appeal on the grounds of new evidence are contained in secs 228(2) and 252(b) of the Criminal Procedure (Scotland) Act 1975, as amended. Both of these provisions date from the Criminal Justice (Scotland) Act 1980, which amended secs 228 and 252 of the original Criminal Procedure (Scotland) Act 1975, which, in turn, in respect of these sections, repeated substantially the wording of the Criminal Appeal (Scotland) Act 1926. As the opinion of the court in Church states, the amendments in the 1980 Act appear to be the consequence of the Thomson Committee Report on appeals and the Thomson Committee recommended that sec 6 of the 1926 Act, thereafter sec 228 of the 1975 Act as originally framed and passed by Parliament, should be amended on the lines of sec 23 of the Criminal Appeal Act 1968 which applied to England and Wales only. This, however, is not what Parliament did. Parliament did not introduce a standard that for new evidence there had to be ‘a reasonable explanation for the failure to adduce’ the evidence in the original trial, to quote the 1968 Act or, in the words of the recommendation contained in para 30 of the Thomson Committee Report: ‘The Appeal Court will be reluctant to admit evidence which was available, or could with reasonable diligence on the part of the appellant's advisers have been made available at the trial, and that they will seldom admit evidence which was not adduced because of a deliberate tactical decision by the defence to withhold it.’

What Parliament did was to state an entirely different provision restricting new evidence in the phrase: ‘including any alleged miscarriage of justice on the basis of the existence and significance of additional evidence which was not heard at the trial and which was not available and could not reasonably have been made available at the trial’.

As I see it, a major difficulty in interpreting sec 228(2) as being in two separate parts—the first being any miscarriage of justice in the proceedings in which the appellant was convicted, and the second a miscarriage of justice on the basis of the existence of additional evidence, and so on—is that, if it is correct, there is then no purpose in the second part, which is thus otiose. As the first part covers any miscarriage and includes the second part, there is no reason why anyone should found on the second part in any situation that can be foreseen, especially as the second part contains requirements that are more difficult to meet.

It is a standard rule of statutory interpretation that ‘A construction which would leave without effect any part of the language of a statute will normally be rejected’ (Maxwell, Interpretation of Statutes (12th edn), p 36). There is also the principle expressed in Latin as expressio unius est exclusio alterius. Bennion, Statutory Interpretation (2nd edn) states at pp 886–877: ‘Where it is doubtful whether a stated term does or does not include a certain class, and words of extension are added which cover some only of the members of the class, it is implied that the remaining members of the class are excluded. The most common technique of extending the indisputable meaning of a term is by the use of an enlarging definition that is one in the form "A includes B". Where the stated B does not exhaust the class of which it is a member, the remaining class members are taken to be excluded from the ambit of the enactment.’

As an example the book quotes sec 2(3) of the Immigration Act 1971 which states that for the purpose of sec 2 of the Act the word ‘parent’ includes the mother of an illegitimate child. The class to which this extension relates is the parents of an illegitimate child. Lord Lane CJ said [see R v Secretary of State for the Home Department, ex parte Crew]: ‘Under the rule expressio unius est exclusio alterius,that express mention of the mother implies that the father is excluded.’

It is also in my opinion clear that Parliament specifically did not accept the Thomson Committee's recommendation about new evidence and inserted a different restriction from ‘reasonable diligence’ or ‘reasonable explanation for the failure to adduce it’ and chose the last sixteen words in sec 228(2), the meaning of which is, in my opinion, clear. It may well be that it is thought that the section places too great a restriction on the admission of new evidence but in my opinion that is a matter for Parliament and not for this court.

LORD COWIE —My Lords, I agree that this appeal should be refused. Even if the construction which the court in the case of Church v HM Advocate placed upon the terms of sec 228(2) of the Criminal Procedure (Scotland) Act 1975, as amended, was the correct one, there are, in my opinion, no grounds in the present case for allowing the additional evidence which the appellant seeks leave to lead, for the reasons given by your Lordship in the chair.

As regards the construction which was placed on the terms of sec 228(2) of the 1975 Act, as amended, in the case of Church v HM Advocate, I am of the opinion that it was wrong and, in particular, was contrary to the approach which was taken by the court of which I was a member in the case of Brodie v HM Advocate and McCormack v HM Advocate. On this point also, therefore, I would concur with the opinion of your Lordship in the chair and I have nothing further to add.