Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Coulsfield Lord Osborne Lord Weir	Appeal No: C187/00 OPINION OF THE COURT delivered by LORD COULSFIELD in NOTES OF APPEAL AGAINST CONVICTION by EDWARD LYON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

Appellant: G. Jackson, Q.C., Shead; O'Donnell Vaughan, Glasgow

Respondent: S. Di Rollo, Q.C. A.D.; Crown Agent

24 October 2002

1. Between 3 August and 2 September 1994, the appellant, Edward Lyon was tried, along with a number of others, on an indictment including a number of charges of assault and one charge of murder. The appellant was convicted of three charges. The first of these, charge 1 on the indictment, was a charge that on 19 January 1994 he assaulted Stephen Barclay by stabbing him on the body with a knife. He was convicted of that charge by a majority verdict. The second charge of which he was convicted, by a unanimous verdict, was one of assaulting Stephen Barclay on 10 April 1994 by striking him on the body with a knife. The third charge of which he was convicted was the charge of murder, which was charge 5 on the indictment. That was a charge of assaulting William Barclay by a number of means, including stabbing him, on 10 April 1994. The jury convicted the appellant by a majority. Another accused, Garry Brotherston, was also convicted of the charge of murder but in his case the verdict was unanimous.
2. In his report the trial judge explains in some detail the sequence of events on 10 April 1994. In very brief summary, the position was that a series of incidents took place in an area near Dumbarton Road, Glasgow between a group of which the appellant and Brotherston were part, on the one hand, and the two brothers William and Stephen Barclay and another brother, Mark Barclay, on the other. In the course of these events, the appellant committed the assault on Stephen Barclay. After that assault, William and Mark Barclay ran away, pursued by a number of young people with weapons. At a point in Dumbarton Road, an assailant inflicted a single gaping knife wound to the right side of William's neck, as a result of which he collapsed immediately and died where he fell. Mark Barclay did not actually see the wound being inflicted but heard his brother collapse and turned and saw two youths turning away from William. Mark Barclay gave evidence identifying Brotherston and the appellant as the two youths whom he saw leaving the vicinity of William's body. The judge says that there was compelling circumstantial evidence to corroborate Mark Barclay's evidence so far as Brotherston was concerned and to identify him as having inflicted the fatal blow. As regards the appellant, however, the judge says:

"Without concert, the evidence implicating the appellant was minimal. While positively identified by witnesses at Dumbarton Road as one of two assailants with knives at the final incident there were many witnesses, some at Dumbarton Road, who said that they did not see the appellant or that they did not see him with a knife and others who saw him during scuffles without a knife. This was a conflict of evidence in regard to the appellant which the jury had to resolve."

3. Before the trial, both the appellant and Brotherston gave notices of intention to incriminate each other. However, the appellant did not give evidence in his own defence and therefore did not personally incriminate Brotherston. Brotherston did give evidence. It appears that some questions had been put by his counsel which were consistent with an attempt to incriminate the appellant but in his evidence Brotherston denied all involvement in the stabbing, denied having a knife that evening at all and did not in any way incriminate the appellant.
4. The appellant has now lodged a Note of Appeal in which he maintains that there was a miscarriage of justice on the basis of the existence and significance of evidence not heard at the original trial. This evidence consists of evidence from Garry Brotherston and Edward Morrison. who was also one of those charged on the original indictment and who was convicted of assaulting William Barclay but not convicted of murder. For the present purpose, the evidence now offered from Garry Brotherston is the important matter. Brotherston has given an affidavit in which he gives an account of the incidents leading up to the murder of William Barclay and admits that at the final stage he ran over to William Barclay and used the knife on him, administering the fatal wound. In his affidavit he says that Edward Lyon, the appellant, was not present at that part of the incident and that he saw Edward Lyon after he had left the scene of the incident so that he was not at the scene at the time of the murder. Brotherston also says that certain of the witnesses at the trial who said that the appellant was present at the final stage were not correct and, in Brotherston's view, were not there at the particular time. His explanation for the change of evidence is that since his conviction and an unsuccessful appeal he has become a Christian and is conscious that his actions have resulted in the appellant being sentenced to life imprisonment. He explains that he accepts that at the trial he lied under oath. He also explains that, despite the fact that a notice of incrimination was lodged on his behalf, he did not give specific instructions for that to be done and, as has already been seen, he did not incriminate the appellant in his evidence. He explains also that at the time of his arrest and remand to Longriggend Young Offenders' Institution he was only 19, had never been in such a situation before and had never been in a police station before. He was doing everything that he could to escape conviction himself.
5. The appellant has also lodged affidavits from a Mr Alan McIntyre, the Reverend Colin Williamson and a Miss Ann Pearson. Mr McIntyre is an uncle of the appellant by marriage who describes the emotional state of Brotherston when he visited him in custody and also describes how eventually Brotherston confessed to him that he had done the stabbing and that Lyon had not been involved. Mr Williamson and Miss Pearson speak to Brotherston's involvement with the prison congregation and with courses undertaken in the prison and express their conviction that he has been sincere in his conversion to Christianity.
6. At the hearing of this appeal on 20 September 2002, counsel for the appellant submitted that the evidence of these witnesses should be heard by the court. He referred to section 106 of the Criminal Procedure (Scotland) Act 1995 and to the decision in Campbell and Steel v. H.M. Advocate 1998 S.C.C.R. 214. He submitted that the evidence of Brotherston was evidence not heard in the original proceedings: that there was a reasonable explanation for it not being heard, namely Brotherston's age, state of mind, and interest in protecting himself: that there was an explanation for the evidence which Brotherston now appeared ready to give, namely his sincere conversion to Christianity: and that there was independent support in the shape of the supporting evidence as to the sincerity of Brotherston's change of heart. Counsel submitted further that in a situation such as the present, if there was any doubt about any of the essential elements in a new evidence appeal, a proof before answer approach should be taken, meaning that the evidence should be heard and the position assessed in the light of that evidence.
7. The advocate depute submitted that the essential questions at this stage of the appeal were whether there was a reasonable explanation, or a possibly reasonable explanation, for the failure to give the evidence at the original trial and whether there was independent support for that explanation. He submitted, initially, that it could not be a reasonable explanation for a co-accused to give evidence and later seek to change what he had said, but accepted that he could see that there might be said to be a reasonable explanation in the shape of actions taken by a co-accused to defend himself. However that might be, there was no independent support for the explanation which was being put forward, as was required by the section. He accepted that it was difficult to see what kind of independent support could be available for a change of evidence by a co-accused in such a situation but submitted that the difficulty was only an indication that the proper approach was that a change of evidence by a co-accused in circumstances such as those of the present case was really not within the new evidence provisions at all.
8. This appeal seems to us to raise a question which was not, formally at least, decided in Campbell and Steel. It is also a question as to which the opinions of the judges in Campbell and Steel suggest somewhat different approaches. We do not, however, think that at this stage of this appeal we should attempt to analyse the decision or resolve any differences of approach that there may be. We are conscious that it was made clear in Campbell and Steel that satisfaction of the tests set out in section 106(3A) and (3C) comes before any attempt to assess the effect of any new evidence and we are therefore conscious that the "proof before answer" approach suggested by counsel for the appellant has its dangers. On the other hand, we would find it difficult to say that a desire to protect himself and a genuine and sincere change of heart on the part of a co-accused who had given evidence are factors which are incapable of affording a reasonable explanation in the circumstances contemplated in the section. The question of independent support in the case of a change of heart of that kind is unquestionably a very difficult one but, if the requirement is interpreted in the way suggested by the advocate depute, its effect is to defeat any possibility of considering a co-accused's evidence of a change of heart, however sincere that might be thought to be. If it was the intention of Parliament to exclude that sort of explanation, it would, it seems to us, have been preferable that it should have been done directly, rather than indirectly. In these circumstances we are reluctant to construe the section in the way suggested on behalf of the Crown without considering the whole circumstances.
9. For these reasons we have come to the view that the appropriate course in the present case is to allow the evidence to be heard without attempting to decide the difficult legal questions which undoubtedly do arise at this stage.