Scottish High Court of Justiciary Decisons

ANTHONY DUFFY v. HER MAJESTY'S ADVOCATE [1999] ScotHC 241 (5th November, 1999)

On 21 March 1997 the appellant was found guilty of a charge of conspiracy. According to that charge he conspired with a Robert Miller to set fire to a house in Cumbernauld and to murder certain named persons who were occupants of the house, and in furtherance of that conspiracy he (a) purchased matches, a petrol can and a quantity of petrol; and (b) set fire to the house to the danger of the lives of those persons. The appellant was sentenced to 12 years imprisonment.

He originally appealed against sentence only. However, on 1 December 1998 the court allowed additional grounds of appeal relating to his conviction to be received. The principal point relied on in these grounds was that in earlier proceedings against Robert Miller on an indictment in similar terms the Crown had accepted a plea of guilty by him which was restricted to a conspiracy with another person (i.e. the appellant) to set fire to the house. It is maintained that in seeking the appellant's conviction in respect of the conspiracy with Miller to murder the occupants of the house the action was wrong in law, incompetent and oppressive.

When the appeal was called before this court on 23 March 1999 the Advocate depute indicated to the court that he conceded that he could not support the conviction in so far as it related to conspiracy to murder. During the course of the discussion that followed the court sought to discover whether this concession was well-founded. The court was also addressed by Miss Scott for the appellant who referred to the decision in McAuley v. H.M. Advocate 1946 J.C. 8, in which the court quashed a conviction on a charge of forming and carrying out a fraudulent scheme, in respect that one of the alleged accomplices in the scheme had already been acquitted on a charge of forming and carrying it out in concert with the appellant. Having been addressed by the Advocate depute and Miss Scott, the court rose in order to consider whether the appeal should be fully argued, despite the concession by the Advocate depute. However, when the court was reconvened shortly thereafter, the Advocate depute stated that he was seeking to withdraw the concession. This was opposed by Miss Scott. Since she had had no advance warning of this change of front, and since the Advocate depute had not prepared submissions on the merits of the appeal the court had no alternative but to continue the appeal to a date to be fixed.

The court has now heard argument in regard to the concession made by the Advocate depute. Miss Scott submitted that the Crown was bound by the concession and, as she put it, the court was bound to accept it. It was important to note its nature. It was an unequivocal and unqualified public statement on behalf of the Lord Advocate that it had been wrong for him, in the exercise of his discretion, to seek the conviction of the appellant in respect of conspiracy to murder. To that extent the Lord Advocate had sought to disclaim the prosecution which had been brought. On any view he had consented to the appeal being granted. The Crown could and should have adopted this view at an earlier stage. If the Crown had decided to restrict the libel at the trial, no question of the court being able to interfere with the conviction would have arisen. At the stage of an appeal the Lord Advocate was in reality an adversary he was bound by his concession. Miss Scott further submitted that the withdrawal of the concession had come too late. It was not open to the Advocate depute, who had concluded his submissions, to seek to withdraw it. He had not suggested before that the decision in McAuley should not be relied upon. In any event, the court, in the exercise of its discretion, should not allow the concession to be withdrawn. In view of the history of the case it was a very persuasive concession. The Crown had provided no justification or explanation for their change of front at that late stage. In order to maintain confidence in the system, the attitude of the Crown should be certain and final, and a change in it should not be countenanced. It should also be borne in mind that the Advocate depute had not been in a position to argue the merits of the appeal. Finally, Miss Scott submitted that it would be oppressive for the Crown to be permitted to withdraw the concession. This represented a third change of position on their part. The court should be slow to allow that. She pointed out that the Crown had some four months since the grounds of appeal against conviction were received in which they could decide their attitude to them. Since the previous hearing a further seven months had elapsed.

In considering these submissions it has, of course, to be recognised that the position of the prosecutor at the stage of an appeal against conviction is not the same as it was during the trial when he was the master of the instance (Alison, volume 2 pages 88 and 90). What happens to a conviction is not a matter within the control of the Crown. It is the responsibility of the court to decide whether there has been a miscarriage of justice, and hence whether it should interfere with the conviction which resulted from the jury's verdict. Unless and until it is persuaded that there has been a miscarriage of justice, the conviction must stand. Any concession made, or consent expressed, by the Crown does not guarantee the success of the appeal. It follows that, even if the Crown do not offer opposition, it is still for the court to decide whether it should be allowed, if necessary after the matter has been fully argued for the appellant. Thus there is no comparison between an unequivocal renunciation by the Lord Advocate of the right to prosecute (as in the case of Thom v. H.M. Advocate 1976 J.C. 48) and a concession by the Crown that it does not resist an appeal. It also follows that there can be no question of the court being bound to give effect to such a concession.

The starting point in the present appeal should therefore be whether the court is satisfied, regardless of the attitude of the Crown, that the appeal should be argued by the appellant. The questions in this appeal - which arise essentially out of the way in which the Crown elected to dispose of the case against Miller - are of some difficulty, and in our view they should be fully argued. They include the question whether the decision in McAuley v. H.M. Advocate should no longer be regarded as good law.

That being so, it appears to us that the real question is whether the Crown should be permitted in this appeal to present submissions in contradiction of those of the appellant. That is the practical effect of what Miss Scott referred to as the Crown being permitted to withdraw their concession. It is to be noted that the concession was a concession in law, namely whether the conviction could be defended. It is certainly undesirable and unfortunate that there should have been a volte face on the part of the Crown as to whether they were defending the conviction. Miss Scott took the opportunity to characterise this as a further example of the conduct of the Crown which is the subject of the appeal itself. However, the conduct of the Crown in the appeal is entirely distinct from its conduct of the prosecution. The court can safeguard an appellant against prejudice caused by the late change of position by the Crown, for example by granting a continuation of the appeal, as in the present case. Most importantly, if the conviction was well-founded, and hence the concession was wrongly made, it is not in the public interest that this should not be recognised.

In all the circumstances we are not satisfied that there is any ground which would preclude the Crown from presenting submissions in contradiction of the appeal, or that in the exercise of our discretion we should decline to hear such submissions. In an appeal against conviction the Crown are recognised, as a matter of course, as having a locus to defend the conviction which resulted from the successful prosecution of the appellant. If, as a result of the concession which the Advocate depute intimated, it is for the court to decide, as a matter of its discretion, whether the Crown should be heard, we are satisfied that it is appropriate that we should do so.

In these circumstances we reject the submissions which were made by Miss Scott on behalf of the appellant.

Since we were informed that the decision in McAuley v. H.M. Advocate is to be reconsidered by a bench of five judges in connection with another appeal we have not heard argument on the merits of the present appeal. This appeal should be remitted to the same bench of five judges so that it can be considered and decided along with that other appeal.