Scottish High Court of Justiciary Decisons

JOHN HEMPHILL v. HER MAJESTY'S ADVOCATE [2001] ScotHC 86 (10th August, 2001)

[1] The Minuter, John Hemphill, was indicted at the instance of Her Majesty's Advocate for trial at the High Court of Justiciary in Glasgow on 30 July 2001. The indictment contains nine charges. Charge 7 is a charge of murder. I shall refer to this indictment as the "new" indictment.

[2] In August 1995, the Minuter stood trial on an indictment containing six charges. I shall refer to that indictment as the "original" indictment. Charge 5 on the original indictment charged the same murder as is charged under charge 7 of the new indictment. On 23 August 1995, the Minuter was found guilty of the charge of murder, but on 27 April 2001, that verdict of guilty was set aside. Authority was granted for a new prosecution, in terms of sections 118(1)(c) and 119 of the Criminal Procedure (Scotland) Act 1995. It is by virtue of that authority that the Minuter is now indicted with the charge of murder contained in charge 7 of the new indictment.

[3] In terms of the present Minute under section 72 of the 1995 Act, the Minuter contended that the terms of section 119(5) of the Act had not been complied with, being out of time. That contention is not insisted in, and on behalf of the Minuter it is accepted that in respect of charge 7 the indictment is competent.

[4] Charges 1, 3, 5, 6 and 9 on the new indictment are the same (with certain changes of terminology which are of no importance for present purposes) as charges 1, 2, 3, 4 and 6 of the original indictment. At his trial on the original indictment in August 1995, each of these five charges was withdrawn by the Crown, and the Minuter was accordingly acquitted in respect of all of these five charges.

[5] Charges 2, 4 and 8 on the new indictment were not the subject of any corresponding charge in the original indictment. In relation to charges 2 and 4, it is accepted by the Crown that it would not have been competent, at the trial on the original indictment, to lead evidence relating to the matters covered by these charges. It is not suggested that any such evidence was then led. In relation to charge 8, it appears that certain evidence was led relating to the matter covered by the charge. On behalf of the Minuter, it was submitted that this had been incompetent and irrelevant, although objection had not been taken. On behalf of the Crown it was submitted that the evidence having been led without objection was to be regarded as competently led, although I did not understand it to be submitted that any objection, if advanced, could have been resisted. It did not appear to be disputed that the information upon which the Crown rely in bringing these three new charges was all available when the original indictment was brought, so that these charges could have been included in the original indictment, although they were not.

[6] The issue which arises in relation to charges 1, 3, 5, 6 and 9 does not depend on the specific nature of these charges, or any differences between them. It is however worth noting that charges 1, 3 and 5 are all charges of being concerned in the supplying of controlled drugs, between 1 August 1992 and 22 April 1995. Charge 6 is a charge under section 1(1)(a) of the Firearms Act 1968, relating to possession of a revolver handgun between 1 April 1992 and 23 April 1995, without a firearms certificate. And charge 9 is a charge under section 1(1)(b) of the same Act, as amended, of having four 9mm cartridges on 29 April 1995, without a certificate. In relation to the murder charge, charge 7, it is to be noted that the date of the alleged murder was 22 or 23 April 1995; that the locus is libelled as 33 Kelburn Terrace, Port Glasgow, which is also one of the locations libelled under charges 1, 3, 5 and 6; and that the murder is libelled as having been committed by firing a loaded handgun repeatedly at the deceased.

[7] In submitting that the new indictment was incompetent in respect of charges 1, 3, 5, 6 and 9, counsel for the Minuter emphasised the need to distinguish between questions as to the competency of an actual charge contained in an indictment and questions as to whether it would be competent for the Crown to lead any particular evidence at a trial upon a particular indictment. The present Minute was concerned only with the competency of including these charges in the indictment. It left entirely open all questions as to what evidence might competently be led at trial on an indictment containing charge 7. The general principles laid down in Nelson v H.M.A. 1994 J.C. 94 were not disputed. If the Minuter were to go to trial upon a new indictment containing charge 7 alone, it was of course possible that questions would arise as to what evidence might competently be led upon the basis of the principles set out in Nelson, as applied and clarified in Diamond v H.M.A. 1999 J.C. 244. But such issues did not arise at this stage: the Minute was concerned with the competency of charging in the new indictment offences which had been charged in the original indictment, and upon which the Minuter had been acquitted. Moreover, it was not disputed that in addition to leading any evidence which would be competent according to these general principles, there might be evidence which the Crown would wish to lead which was not covered by these general principles. Where there were proceedings in a new prosecution, that situation was now provided for by section 119(6) and (7). It did not appear that the Crown was at present intending to rely upon those provisions: the inclusion of charges 1, 3, 5, 6 and 9, if itself competent, would make it competent to lead evidence relevant to those charges regardless of the provisions of section 119(6) and (7), and any issue as to what might competently be led in relation to those additional charges was not a question arising under the Minute but a question which might arise at trial upon an indictment containing these additional charges.

[8] Counsel for the Minuter of course acknowledged the problems which had arisen in the various proceedings relating to Daniel Boyle: H.M.A. v Boyle 1993 J.C. 5; Boyle v H.M.A. 1993 S.L.T. 577, 1992 S.C.C.R. 824; H.M.A. v Boyle 1992 S.C.C.R. 939; and Boyle, Petitioner 1993 S.L.T. 1085, 1992 S.C.C.R. 949. But it was unnecessary to consider the Boyle cases in any detail. Since those cases, and indeed as a result of them, the law had been changed by the introduction of the provisions which were now to be found in section 119(2), (6) and (7) of the 1995 Act. The principal issues in the Boyle cases related to the court's decision to set aside the jury's verdict on all charges "so that the jury at the new prosecution can hear all the evidence which is relevant and material to the issues which were the subject of the first indictment." (1992 S.C.C.R. 838). When considering the problem which might arise when the original indictment contained charges other than the charge or charges which were the subject of appeal, the court had noted that these charges could include charges which were in the indictment "purely for evidential reasons or as background to the principal charge". Observing that charges of this character "would need to be included in the fresh indictment if the new prosecution was to proceed with any reasonable prospect of success" (1992 S.C.C.R. 955E), the court in Boyle, Petitioner had concluded that it was at least open to argument that the statutory provision permitted the setting aside of the verdict on "all charges intimately connected with the charge which was the subject of the appeal". But it was to be noted (i) that in the Boyle cases the question of setting aside the verdict on a charge upon which there had been an acquittal did not arise; (ii) that in any event in the present case the acquittal verdicts had not been set aside, so that the ground had not been cleared for bringing the same charges again as had happened in Boyle's case; and (iii) that the need to set aside verdicts on charges which were not the subject of appeal, so that the charges could be brought again for evidential or background reasons, no longer existed - these evidential purposes could now be achieved without bringing the same charges again, simply by following the procedures set out in section 119(6) and (7).

[9] On behalf of the Crown, the Advocate Depute stated that the Crown would not be seeking conviction upon any of these five charges. The only reason for including them was that which had been identified in the Boyle cases: in the new indictment, as in the original indictment, the charges were included purely for evidential reasons or as background to the principal charge. In Boyle v H.M.A. 1992 S.C.C.R. 838, the court had confirmed that it was for the Crown and not the court to determine what charges should be levelled against the accused in a new prosecution. "What the court does is to grant authority for the bringing of a new prosecution, leaving it to the Crown to decide whether to exercise that right and, if so, what charges to bring." That was all that the Crown were doing in including these charges.

[10] I am not persuaded that it is competent to include these five charges in the new indictment. The verdicts on the corresponding charges in the original indictment have not been set aside. I find nothing in the Boyle cases to suggest that without setting aside any original verdicts, it would have been seen as competent to include corresponding charges in the new indictment for evidential or background reasons. Indeed, as I understand the Boyle cases, the setting aside of such verdicts was seen as a necessary step if the charges are to be brought again. The fact that the verdicts have not been set aside is in my opinion sufficient to dispose of the matter. That being the position, the inclusion of the charges is in my opinion incompetent.

[11] In any event, however, and in particular where there has been, for any reason, an acquittal in the original proceedings, the general considerations which, under the pre-existing law, might lead a court to set aside verdicts on charges which were not the subject of appeal no longer apply. There is no need to set aside such verdicts under the law as it now stands. While the Crown offered no explanation as to why the acquittal verdicts had not been set aside in the present case, I cannot myself see any reason why they should have been. The inclusion in an indictment of charges upon which the Crown do not intend to seek conviction, and upon which they have perhaps never had sufficient evidence to justify seeking a conviction, is in my opinion always a somewhat unsatisfactory one, as a mechanism for introducing evidence which would not be competent in relation to the principal charge in terms of Nelson. But at least in relation to new prosecutions, section 119(6) and (7) provide an appropriate mechanism for introducing evidence which would not otherwise be competent in any event.

[12] Even upon the hypothesis that the original verdicts had been set aside, the Advocate Depute was unable to suggest any reason for including the charges in the new indictment rather than adopting the procedure envisaged in section 119(6) and (7). I did not understand him to dispute that these provisions were introduced precisely in order to deal with this particular problem. And he acknowledged that the new procedure had in fact been followed on at least one occasion, under reference to an indictment in H.M.A. v Platt which contained, after the actual charges, a formal notice that the Crown intended to lead evidence that the accused had been concerned in the supplying of a controlled drug but without charging that as an offence under the Misuse of Drugs Act 1971. Overall, I have to say that it did not appear to me that in including these charges in the new indictment, and in contending that this was competent, the Crown had given any adequate consideration to the fact that the verdicts of acquittal had not been set aside, or to the interrelation between the provisions of section 119(6) and (7) on the one hand and the Boyle cases on the other.

[13] I return briefly to charges 2, 4 and 8 in the new indictment. In relation to charges 2 and 4, the Advocate Depute did not suggest that evidence could competently have been led upon these matters in the original proceedings. Counsel for the Minuter submitted that it was oppressive to include these charges now. I accept that submission. As regards charge 8, even if the leading of evidence without objection in the original proceedings meant that it was competent for the Crown to lead that evidence in those proceedings, the inclusion of this charge, as a charge, as this stage is in my opinion oppressive, as submitted by counsel for the Minuter.

[14] In these circumstances I uphold the Minuter's submission in respect of all eight charges. I would emphasise that I am making no finding of any kind as to the competency or relevancy of any evidence which the Crown might seek to adduce in the new proceedings, in the absence of these charges.