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Cite as: [2005] HCJAC 129, [2005] ScotHC HCJAC_129

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Donnell v. Her Majesty's Advocate [2005] ScotHC HCJAC_129 (12 October 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lady Cosgrove

Lord Emslie

[2005HCJAC129]

Appeal No: XC1131/03

OPINION OF THE COURT

delivered by LORD MACFADYEN

APPLICATION

under section 107(8) of the Criminal Procedure (Scotland) Act 1995

DAVID DONNELL

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Scott, Q.C., Shead; Balfour & Manson, Edinburgh

Respondent: Beckett, Q.C., A.D.; Crown Agent

12 October 2005

Introduction
[1] The matter before us is an application under section 107(8) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") in terms of which the appellant seeks to show cause why leave should be granted to him to found on an aspect of his grounds of appeal which was not specified as arguable in the decision made at the second sift under section 107(5).

Procedural History
[2] The appellant was indicted at the instance of the respondent in the High Court of Justiciary at Glasgow on six charges. The principal charge was one of murder. That charge was in the following terms:

"(4) on 9 October 2002 at Kashmir Avenue, Linwood, you DAVID THOMAS DONNELL [and four others] did assault William Fargher ... and did strike him on the head and thereafter repeatedly discharge a firearm at him to his severe injury whereby he died later the same day within the Royal Alexandra Hospital, Paisley and you did murder him."

Two other charges were in the following terms:

"(1) on 12 September 2002 at 19 West Street, Paisley, you David Thomas Donnell did assault Tracy McGhee ... detain her against her will, present a handgun at her, force her to drink a quantity of alcohol and consume a quantity of tablets, lock her in a cupboard there and prevent her from leaving said house and you did imprison her there against her will;

(2) between 1 August 2002 and 9 October 2002, both dates inclusive, at 10 Lomond Crescent, at 34 Waverley Road, both Paisley and elsewhere, you DAVID THOMAS DONNELL were concerned in the supplying of a controlled drug, namely Amphetamine, a Class B drug specified in Part II of Schedule 2 to the aftermentioned Act, to another or others, in contravention of Section 4(1) of the said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)".

Charge (3) was one of culpable and reckless discharge of a shotgun. Finally there were two further charges (Charges (7) and (8)) libelling that the appellant had in his possession a handgun and silencer and a shotgun respectively, while not the holder of appropriate certificates, in contravention of the Firearms Act 1968, Section 2(1) as amended.

[3] Before the trial commenced, a motion was made on the appellant's behalf that Charges (1) and (2) be separated from the remainder of the indictment. That motion was opposed by the Crown. The motion was refused.

[4] The trial commenced on 27 August 2003. The Crown led no evidence in support of Charges (1) and (2). On 26 September 2003 the Advocate depute, having closed the Crown case, withdrew the libel against the appellant in respect of Charges (1) and (2). The trial judge accordingly acquitted the appellant of those charges.

[5] Thereafter a motion to desert the diet pro loco et tempore was made on behalf of the appellant's co-accused, Colin Ronald Garrett. That motion was adopted on the appellant's behalf. The trial judge refused the motion.

[6] In charging the jury the trial judge gave a direction in the following terms:

" ... when this case began long ago you had Charges (1) and (2) in front of you. No doubt they are still in front of you, although deleted on my instruction, but you will remember that no evidence was led about them, and accordingly following the law, I acquitted Donnell of these two charges, and they are out of the case. But the fact that they were there in the first place and they were read out to you against him in an indictment in which then four others, now three others, remain, is a matter of great seriousness. And if, because of that, Ladies and Gentlemen, you think that all or any of the accused have not had a fair trial, then you would be entitled, if you thought it right, to acquit him - all of them, if you thought it right - on that ground alone, before we get to any legal rules, framework or anything else. If you think they have been prejudiced in that (sic) their fair trial, then you would be entitled to take that view. You are not bound to. You are entitled to."

We say nothing at this stage about that direction.

[7] The jury, in accordance with a direction given by the trial judge, found the appellant not guilty of charge (3). They unanimously found him guilty as libelled of Charge (4). They also unanimously found him guilty of Charges (7) and (8), under certain restrictions as to date and place.

[8] The trial judge sentenced the appellant to life imprisonment from 7 November 2002 in respect of Charge (4) and set the punishment part at twenty-five years. He also sentenced the appellant to concurrent terms of five years imprisonment in respect of each of Charges (7) and (8).

[9] The appellant lodged a Note of Appeal against conviction and sentence under section 110 of the 1995 Act. For present purposes it is sufficient to note the terms of paragraph 2 of the grounds of appeal. It was in the following terms:

"The appellant's right to a fair trial was prejudiced by the inclusion of charges 1 and 2 on the indictment before the jury until the conclusion of the Crown case. No evidence was led about them. The appellant was acquitted of these two charges. [The terms of Charges (1) and (2) were then summarised.] Prior to the start of the trial a minute for separation of charges 1, 2 and 3 from the indictment was lodged and argued on behalf of the appellant. The position of the Crown was that charges 1 and 2 were very closely linked with the other charges and the minute was refused by the learned trial judge. There was evidence at the trial that the murder may have been committed in the context of dealing in drugs. It is therefore submitted that the inclusion of charges 1 and 2 prejudiced the appellant's right to a fair trial. They were before the jury for approximately eight weeks. They were likely to result in serious prejudice in the mind of the jury. The prejudice would be such that it could not be cured by direction. At the close of the Crown case a motion was made on behalf of the fourth named panel to desert the trial pro loco et tempore on the basis of prejudice arising from the presence of charges 1 and 2. Counsel for the appellant supported the motion. It was refused. It is submitted that the learned trial judge erred in law by refusing the motion to desert. It is submitted that for these two reasons, that is, the existence of prejudice and the refusal of the motion to desert, the result is that the appellant has suffered a miscarriage of justice."

[10] The appellant's Note of Appeal was laid before a judge in terms of section 107(1) of the 1995 Act for consideration of whether leave to appeal should be granted. On 20 April 2004 leave to appeal against conviction was refused, but leave to appeal against sentence was granted. The judge set out in some detail his reasons for refusing leave to appeal against conviction. In relation to paragraph 2 of the Note of Appeal, he said:

"This ground amounts to a bare assertion that the inclusion in the indictment of two charges against the appellant could cause serious prejudice where these two charges were not ultimately proved, or at least where no evidence was led to support them. There is no basis for supposing that the jury would in any way be prejudiced against the appellant where he was acquitted of unproven charges. Indeed, it might be barely asserted with equal confidence that the opposite would be the case."

The decisions, and the judge's reasons for refusal of leave to appeal against conviction, were intimated to the appellant's solicitors on 5 May 2004.

[11] The appellant then applied to the High Court under section 107(4) of the 1995 Act for leave to appeal. In support of that application, there was submitted a document which contained an amplification or re-formulation of the grounds of appeal contained in paragraphs 2 and 3 of the document attached to the Note of Appeal. It is sufficient for present purposes to quote what was said in relation to paragraph 2. Omitting for the sake of brevity all references to authority, what was said about paragraph 2 was as follows:

"The existing ground 2 is or ought to be, properly framed as an abuse of process by the Crown.

The complaint is that the Crown placed these charges or allegations before the jury without leading any evidence of same and indeed without having any intention of doing so. The Crown placed the charges before the jury - they were not withdrawn and no explanation was made. The judge required to acquit the appellant in respect of same. Moreover their actions extended to resisting a defence motion to separate the charges from the indictment immediately before the start of the trial. This resistance must have been based on the submission that the charges were relevant and it would be in the interests of expeditious justice to avoid multiple trials. Whilst the trial judge provides no details of the position adopted he does suggest the latter factor influenced his decision to refuse the defence motion (Report p. 11). That position cannot be squared with an apparent intention not to lead any evidence of same.

If the Crown had indicated that there was no intention of leading any evidence in respect of the charges then it is difficult to see how the defence motion could have been refused. The only legitimate reason for inclusion of such charges is to properly try them with other related and relevant charges ... There would be no real basis of relevancy to justify them being conjoined ...

The Prosecutor is not entitled to make allegations to the jury against the accused which are irrelevant or not supported by the evidence. Particularly allegations which involve the commission of serious offences ... Here the placement of these charges before the jury amounts to same (sic).

Abuse of process obviously includes the deliberate misuse of the law and abuse of the procedure of the courts by inter alia the prosecution. Such action is oppressive. Fairness of the trial is violated where there is such abuse of process. ...

Whilst it is accepted that of course it is not necessarily abuse of process to leave charges on an indictment without seeking to prove same, where that is done deliberately the only reason for it can be prejudice to the accused. In this case the charges were serious and patently prejudicial in that they consisted of allegations of the use of guns and drug dealing in a trial for murder by shooting.

It is respectfully submitted that the sifting judge and the trial judge failed to have regard to the above. This argument is not one which applies to any situation where the Crown failed to prove some charges (trial judge's report p. 11). With respect to the sifting judge the nature of the allegations made in the charges are the obvious basis for inferring prejudice.

In any event if the court were satisfied that these charges were placed before the jury as suggested in the ground of appeal and that this was oppressive and amounted to an abuse of process then no actual prejudice is required.

Further and in any event assessment of the merits of this ground requires sight of the submissions and debate at the separation of charges hearing [and] at the desertion motion. This is recognised by the trial judge in his report at p. 11."

That re-formulation is in places deficient in expression, but clearly continues to relate to the presence of Charges (1) and (2) on the indictment during the trial, while focusing the complaint of unfairness in a different way.

[12] That document was placed before the judges who heard the application made under section 107(4) for leave to appeal. They granted leave to appeal against conviction but indicated that the leave was granted:

"in relation to Para 3 of the original grounds of appeal."

They added the observation:

"It will be for the Court to decide at a Preliminary Hearing whether in addition the appellant should be allowed to argue the new or, at least, re-formulated ground of appeal referred to in the application to the Second Sift."

At a subsequent Procedural Hearing the court determined that that reference to the "re-formulated ground of appeal" was a reference to the re-formulation of paragraph 3 only, and allowed that re-formulated ground to be received.

[13] On 27 April 2005 the appellant presented an application under section 107(8) of the 1995 Act identifying the re-formulated version of paragraph 2 as a ground of appeal not specified as arguable in the decision granting leave to appeal, and seeking to show cause why leave should be granted under that section for him to found on that aspect of his appeal. We have now heard submissions in support of that application.

The legislation
[14] In terms of section 106(1) of the 1995 Act a person convicted on indictment may, with leave granted in accordance with section 107, appeal to the High Court against inter alia conviction, or sentence, or conviction and sentence. The decision whether to grant leave is in the first instance made by a judge of the High Court acting under section 107(1) - the first sift. If that judge refuses leave, an application may be made to the High Court (i.e. a quorum of the court) under section 107(4) - the second sift. The decision on such an application is made under section 107(5). When refusing leave, the first or second sift judges must give reasons in writing for the refusal (section 107(1)(b)(i) and (5)(b)(i)). When granting leave they may make such comments in writing as they consider appropriate (section 107(1)(a) and (5)(a)).

[15] Section 107(7) provides:

"Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted."

[16] Section 107(8) provides:

"Where the arguable grounds of appeal are specified by virtue of subsection (7) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified."

The appellant's submissions
[17] The principal submission advanced by Ms Scott, who appeared for the appellant, proceeded on the basis that, in the written comments appended to the second sift decision, paragraph 3 of the grounds of appeal had been specified as the arguable ground, and that consequently paragraph 2 could not be argued without the leave of this court granted on cause shown. She therefore sought to show cause why we should grant such leave. Before we turn to that submission, however, it is convenient to deal first with an alternative submission which Ms Scott sought to keep open.

[18] The alternative submission was that the appeal against conviction and sentence was a single appeal. In granting leave to appeal against sentence, therefore, the first sift judge must be regarded as having (a) granted leave in general, but (b) specified the grounds of appeal against sentence as the only arguable grounds. On that approach, the appeal to the second sift judges could therefore be regarded as inept (Beggs 2005 SCCR 47), and the application under section 107(8) could be regarded as based on the first sift decision rather than the second sift decision. In the event it is unnecessary for us to deal in any detail with that alternative submission. It is sufficient to indicate that the approach on which it is based is erroneous, for the reasons explained in Peter McLeod v H.M. Advocate 2005HCJAC128.

[19] We revert therefore to Ms Scott's primary submission. She submitted that the question for determination was whether cause had been shown for allowing the ground of appeal set out in the re-formulated paragraph 2 to be argued. The test was a wide one. It involved the exercise of judicial discretion. The onus was on the appellant to show sufficient reason to persuade the court to exercise its discretion to allow the ground of appeal in question to be argued. In deciding whether to exercise that discretion, the court should have regard to the whole circumstances. Part of the picture was the opportunity for an oral hearing, which was not available at sift (section 107(6)). It was accepted that it would be difficult to persuade the court to exercise its discretion if there was absolutely no material laid before it which was different from the material laid before the sift judges. The decision should be in keeping with the purpose for which the discretion was conferred on the court. The general purpose of the appeal provisions was to avoid miscarriages of justice. The purpose of the sifting system provided for in section 107 was to weed out frivolous and unmeritorious appeals (Hansard (House of Lords) 16 January 1995: Column 480, Lord Rodger of Earlsferry). Ms Scott cited H. M. Advocate v Montgomery and Coulter 1999 SCCR 959, which was concerned with showing cause for raising a devolution issue late. She recognised that showing cause in the context of failure to adhere to a time limit was distinguishable from showing cause for over-riding a judicial decision, but maintained that in both situations what was in issue was a discretion designed to enable injustice to be avoided.

[20] Turning from the general to the particular, Ms Scott submitted that it appeared from the decision of the second sift judges that they had not given consideration to the re-formulated version of paragraph 2. The focus of the re-formulated version of that ground of appeal was materially different from the focus of the original version commented on by the first sift judge. The re-formulation was an attempt specifically to address the reasons which the first sift judge had given for not regarding the original version as arguable. It was evident from the comments made on paragraph 3 that the second sift judges had had regard to the re-formulated version of that ground, albeit they had deferred to a Preliminary Hearing the question of whether the re-formulated version should be allowed to be argued. They had, however, said nothing whatsoever about the re-formulated version of paragraph 2. While section 107 does not require the sifting judges to give reasons for not specifying a ground of appeal as arguable, the fact that they had dealt explicitly with paragraph 3 but said nothing about paragraph 2 gave rise to an apprehension that the re-formulation of paragraph 2 had been overlooked. These circumstances were sufficient cause for the exercise of the discretion conferred by section 107(8) to allow the re-formulated version of paragraph 2, which was arguable, to be argued.

Discussion
[21] The issue for us to determine is whether in the particular circumstances of this case the appellant has shown cause for being granted leave to found on the re-formulated version of paragraph 2 of his grounds of appeal, notwithstanding the fact that that paragraph was not specified as arguable in the decision made by the second sift judges under section 107(5).

[22] It is, in our opinion, a necessary part of a successful application under section 107(8) that the judges hearing it be persuaded that the ground in question is arguable. To fail to require that much of an application under section 107(8) would be inconsistent with the purpose of the sifting system, as explained by Lord Rodger of Earlsferry in the passage from Hansard quoted in paragraph [19] above. It would allow "frivolous and unmeritorious" grounds of appeal to proceed to an appeal hearing. It is therefore wrong to suppose that an appellant can show cause under section 107(8) without at least satisfying the test of arguability.

[23] While Ms Scott addressed us on general considerations relating to the scope of the statutory requirement of "cause shown", we do not consider that it would be useful or wise for us to attempt any comprehensive definition of what the phrase means. We have come to the conclusion that in the particular circumstances of this case the application under section 107(8) should be granted and the appellant should be given leave to rely on the re-formulated version of paragraph 2 of his grounds of appeal. We take the view that the circumstances founded on by Ms Scott do amount to cause shown. In particular it is not clear that the second sift judges gave consideration to the reformulated version of paragraph 2. They can be seen to have addressed the re-formulated version of paragraph 3. In contrast they said absolutely nothing about the re-formulated version of paragraph 2. They were, of course, under no statutory obligation to give reasons for not regarding a ground of appeal as arguable where they were granting leave to appeal on the basis of the arguability of another ground. But two considerations lead us to the conclusion that cause has been shown. The first is that the second sift judges' silence on paragraph 2 comes against the background that the first sift judge did give reasons for regarding that paragraph as unarguable, but the re-formulation of that paragraph addressed the first sift judge's reasons, leaving them no longer wholly applicable. The second is that while there is no statutory obligation to give reasons for regarding a ground as unarguable, it is the practice to do so, as was recognised in Beggs (at 52A, paragraph [7]). Having reconsidered the position in the light of these circumstances, we do not consider that the re-formulated version of paragraph 2 should be regarded as unarguable. Since the merits of the ground will in due course have to be considered at the hearing of the appeal, we do not consider it appropriate to comment further on this issue

Result
[24] The application under section 107(8) therefore succeeds, and leave is granted to rely on the reformulated version of paragraph 2 of the grounds of appeal at the substantive hearing of the appeal.